Criminal Procedure

3. That the accused is given the opportunity to be

VI. CRIMINAL PROCEDURE heard; and
4. That judgment is rendered only upon lawful
hearing. (Alonte v. Savellano, Jr., G.R. No. 131652,
09 Mar. 1998)

A. GENERAL MATTERS
1. CRIMINAL JURISDICTION; CONCEPT AND
REQUISITES OF EXERCISE

Criminal Procedure 1. Jurisdiction over the subject matter;

2. Jurisdiction over the territory; and
Criminal Procedure treats of the series of processes 3. Jurisdiction over the person of the accused.
by which the criminal laws are enforced and by
which the State prosecutes persons who violate the JURISDICTION OVER THE SUBJECT MATTER
penal laws. It regulates the steps by which one who
committed a crime is to be punished. (People v. Jurisdiction over the subject matter refers to the
Lacson, G.R. No. 149453, 01 Apr. 2003) authority of the court to hear and determine a
particular criminal case. It is, in simple terms,
It is a generic term to describe the network of laws jurisdiction over the offense charged. (Riano,
and rules which governs the procedural 2019)
administration of justice. (Black’s Law Dictionary,
Fifth Edition, 1979) Jurisdiction over the subject matter is the power to
hear and determine cases of the general class to
Criminal Law vs. Criminal Procedure which the proceedings in question belong. (Bernabe
v. Vergara, G.R. No. L-48652, 16 Sep. 1942)
CRIMINAL
CRIMINAL LAW
PROCEDURE It is the power to deal with the general subject
That branch or division involved in the action and means not simply
Lays down the
of law which defines jurisdiction over the particular case then occupying
procedure by which
crimes, treats of their the attention of the court but jurisdiction of the class
an offender is made to
nature, and provides for of cases to which the particular case belongs.
answer for violation of
their punishment.
the criminal laws.
(Reyes, 2008, citing 12 How Jurisdiction over the Subject Matter is
(Riano, 2019)
Cyc. 129) Conferred

Due Process in Criminal Proceeding
Due process in criminal proceeding is mandatory
and indispensable. It cannot be met without “a law
which hears before it condemns as well as proceeds
upon inquiry and renders judgment only after trial.”
Requirements of Due Process in a Criminal
Proceeding
1. Court or tribunal is properly clothed with
judicial power to hear and determine the
matter before it;
2. Jurisdiction is lawfully acquired over the person
of the accused;
Jurisdiction over the subject matter is conferred by
law (Durisol Philippines, Inc. v. CA, G.R. No. 121106,
20 Feb. 2000). It cannot be fixed by the will of the
parties nor can it be acquired or diminished by any
act of the parties. It cannot be conferred upon by the
accused, express waiver or otherwise, since the
jurisdiction is conferred by the sovereign authority
which organized the court and is given only by law
in the manner and form prescribed by law
(Fukuzume v. People, G.R. No. 143647, 11 Nov. 2005).
It is not conferred by a mere administrative policy
of any trial court. (Cudia v. CA, G.R. No. 110315, 16
Jan. 1998)

437 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
How Jurisdiction over the Subject Matter is
Determined
While jurisdiction of courts is conferred by law,
jurisdiction over the criminal case is determined by
the allegations in the complaint or information in
relation to the law prevailing at the time of the filing
of the filing of complaint or information (Asistio v.
People, G.R. No. 200465, 20 Apr. 2015). It is the
averments in the information which characterize
the crime to be prosecuted and the court before
which it must be tried. (Pangilinan v. CA, G.R. No.
117363, 17 Dec. 1999)
In determining whether the court has jurisdiction
over an offense, the penalty which may be imposed
upon the accused and not the actual penalty
imposed after the trial shall be considered. (People
v. Savellano, G.R. No. L-39951, 09 Sep. 1982)
JURISDICTION OVER THE TERRITORY
Venue in criminal cases is an essential element of
jurisdiction. Hence, for jurisdiction to be acquired
by a court in a criminal case, the offense should have
been committed or any one of its essential
ingredients should have taken place within the
territorial jurisdiction of the court. It is in that court
where the criminal action shall be instituted (Sec.
15(a), Rule 110, Rules of Court, as amended; Foz, Jr. v.
People, G.R. No. 167764, 09 Oct. 2009; Brodeth v.
People, G.R. No. 197849, 29 Nov. 2017).
Stated otherwise, in criminal cases, venue is
jurisdictional. (Pilipinas Shell Petroleum Corporation
v. Romars International Gases Corporation, G.R. No.
189669, 16 Feb. 2015)
JURISDICTION OVER THE
PERSON OF THE ACCUSED
Jurisdiction over the person of the accused is
acquired upon his arrest or apprehension, with or
without a warrant, or his voluntary appearance or
submission to the jurisdiction of the court.
(Valdepenas v. People, G.R. No. L-20687, 30 Apr.
1966)
The voluntary appearance of the accused, whereby
the court acquires jurisdiction over his person, is
438
accomplished either by his pleading to the merits
(such as by filing a motion to quash or other
pleadings requiring the exercise of the court’s
jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. (David v. Agbay, G.R.
No. 199113, 18 Mar. 2015)
Custody of the Law
Custody of the law is required before the court can
act upon the application for bail but is not required
for the adjudication of other reliefs sought by the
defendant where the mere application therefor
constitutes a waiver of the defense of lack of
jurisdiction over the person of the accused. (Ibid.)
Custody of the Law vs. Jurisdiction over the
Person of the Accused
Custody of the law is accomplished either by arrest
or voluntary surrender, while jurisdiction over the
person of the accused is acquired upon his arrest or
voluntary appearance. One can be under the
custody of the law but not yet subject to the
jurisdiction of the court over his person, such as
when a person arrested by virtue of a warrant files
a motion before arraignment to quash the warrant.
On the other hand, one can be subject to the
jurisdiction of the court over his person, and yet not
be in the custody of the law, such as when an
accused escapes custody after his trial has
commenced. Being in the custody of the law
signifies restraint on the person, who is thereby
deprived of his own will and liberty, binding him to
become obedient to the will of the law. Custody of
the law is literally custody over the body of the
accused. It includes, but is not limited to, detention.
(Ibid.)
 Criminal Procedure

JURISDICTION OVER THE SUBJECT MATTER XPNs:

vs. JURISDICTION OVER THE PERSON 1. When the statute expressly so provides; or
OF THE ACCUSED 2. When the statute is clearly intended to apply
to pending actions.
JURISDICTION OVER JURISDICTION OVER
THE SUBJECT THE PERSON OF Dismissal on Jurisdictional Grounds
MATTER THE ACCUSED
The authority of the GR: An objection on the ground that the court lacks
court to hear and jurisdiction over the subject matter may be raised
determine a particular The authority of the or considered motu proprio by the court at any stage
criminal case. This court over the person of the proceeding or appeal.
simply means charged.
jurisdiction over the XPN: A party may be estopped from questioning the
offense charged. jurisdiction of the court by reasons of public policy
Requires that the as when he initially invokes the jurisdiction of the
person be brought into court and later on repudiates that jurisdiction.
its forum by: (Tijam v. Sibonghanoy, G.R. No. L-21450, 15 Apr.
1968)
1. Arrest, with or
without a warrant; CUSTODY OF LAW vs.
or JURISDICTION OVER THE PERSON

2. GR: Voluntary JURISDICTION OVER

Mandates that the submission the
offense is one which jurisdiction of the
the court is, by law, court.
authorized to take
cognizance of. XPN: Making
special appearance
in court to question
the jurisdiction of
the court over the
person of the
accused. (Miranda
vs. Tuliao, G.R.
No. 158763, 31 Mar.
2006)
Principle of Adherence of Jurisdiction or
Continuing Jurisdiction
GR: Once a court acquires jurisdiction over a
controversy, it shall continue to exercise such
jurisdiction until the final determination of the case
and the same is not affected by the subsequent
legislation vesting jurisdiction over such
proceeding in another tribunal.
CUSTODY OF LAW
THE PERSON
Required before the
Required for the
court can act upon the
adjudication of reliefs.
application for bail.
Accomplished either Acquired upon his
by arrest or voluntary arrest or voluntary
surrender. appearance.
A person can be under
the custody of the law A person can be subject
but not yet subject to to the jurisdiction of
the jurisdiction of the the court over his
court over his person, person, and yet not be
such as when a person in the custody of the
arrested by virtue of a law, such as when an
warrant files a motion accused escapes
before arraignment to custody after his trial
quash the warrant. has commenced.
(Miranda vs. Tuliao,
supra)

439 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
JURISDICTION OF CRIMINAL COURTS
Municipal Trial Court (MTC), Municipal Circuit
Trial Court (MCTC), Municipal Trial Court in
Cities (MTCC) and Metropolitan Trial Court
(MeTC)
Except in cases falling within the exclusive
jurisdiction of the RTC and of the Sandiganbayan:
1. Exclusive original jurisdiction over all
violations of city or municipal ordinances
committed within their respective territorial
jurisdiction (Sec. 32(1), B.P. 129, as amended by
R.A. 7691);
2. Exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding 6
years irrespective of the amount of fine, and
regardless of other imposable or accessory
penalties (Sec. 32(2), B.P. 129, as amended by
R.A. 7691);
3. Exclusive original jurisdiction over offenses
involving damage to property through criminal
negligence (Sec. 32(2), B.P. 129, as amended by
R.A. 7691);
4. Summary procedure in certain cases; and
NOTE: The MTCs shall have jurisdiction over
the following cases falling within their
jurisdiction:
a. Violations of traffic laws, rules and
regulations:
b. Violations of the rental law;
c. B.P. 22 cases;
d. Violations 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, 000.00, or both; and
f. Offenses involving damage to property
through criminal negligence where the
imposable penalty does not exceed P10,
000.00. (Sec. 1 [b](b)(4), 1991 Rules on
Summary Procedure)
440
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. No. 129)
NOTE: Jurisdiction of MTC is qualified by the
phrase “Except in cases falling within the
exclusive jurisdiction of the RTC and of the
Sandiganbayan”. Hence not all offenses
punishable with imprisonment not exceeding 6
years shall be under the jurisdiction of MTC.
(Riano, 2019)
Regional Trial Court (RTC)
1. Exclusive original jurisdiction in all criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, except those now
falling under the exclusive and concurrent
jurisdiction of the Sandiganbayan (Sec. 20, B.P.
No. 129);
2. Original jurisdiction in the issuance of writs of
certiorari, prohibition, mandamus, quo
warranto, habeas corpus, and injunction,
enforceable in any part of their respective
regions (Sec. 21(1), B.P. No. 129);
3. Appellate jurisdiction over all cases decided by
the MTC within its territorial jurisdiction (Sec.
22, B.P. No. 129);
4. Special jurisdiction of certain branches to
handle exclusively criminal cases as may be
determined by the Supreme Court (Sec. 23, B.P.
No. 129); and
5. Jurisdiction over criminal cases under specific
laws such as:
a. Criminal and civil aspects of written
defamation (Art. 360, RPC);
b. Designated special courts over cases in
violation of the Comprehensive
Dangerous Drugs Act of 2002 (Sec. 90, R.A.
No. 9165);
c. Violation of intellectual property rights
(A.M. No. 03-03-03-SC); and
d. All cases on money laundering. (Sec. 5, R.A.
No. 9160)
 Criminal Procedure
Sandiganbayan (P.D. 1606, as amended by R.A.
7975 and R.A. 8249)
1. Violations of R.A. No. 3019, R.A. No. 1379, and
Chapter II, Sec. 2, Title VII, Book II of the RPC,
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 director and
higher, otherwise classified as Grade “27”
and higher of R.A. No. 6758;
i. Provincial governors, vice-governors,
members of the sanggunian
panlalawigan and provincial
treasurers, assessors, engineers and
other provincial departmental heads;
ii. City mayors, vice-mayors, members of
the sangguniang panlungsod, city
treasurer, assessors, engineers and the
city department heads;
iii. Officials of the diplomatic service
occupying the position of consul and
higher;
iv. Philippine army and air force colonels,
naval captain, and all officers of higher
rank;
v. Officers of the Philippine National
Police while occupying the position of
provincial director and those holding
the rank of senior superintendent or
higher;
vi. City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor;
vii. Presidents, directors or trustees, or
managers of government-owned or-
controlled corporations, state
universities or educational institutions
or foundations;
b. Members of Congress and officials thereof
classified as Grade “27” and up under R.A.
No. 6758;
441
i. Members of the judiciary without
prejudice to the provisions of the
Constitution;
ii. Chairmen and members of
Constitutional Commissions, without
prejudice to the provisions of the
Constitution; and
iii. All other national and local officials
classified as Grade “27” and higher
under R.A. 6758.
2. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees abovementioned
in relation to their office;
3. Civil and criminal cases filed pursuant to and in
connection with E.O. Nos. 1, 2, 14 and 14-A; and
4. Appellate jurisdiction over final judgments,
resolutions or orders of trial courts in cases
where none of the accused is occupying
position corresponding to salary grade “27” or
higher. (Sec. 4, P.D. 1606, as amended by R.A.
7975 and as amended further by R.A. 8249)
Officials and Employees with a Salary Grade of
27 or Higher
While the first part of Sec. 4(a) of P.D. No. 1606, as
amended covers only officials with the salary grade
27 and higher, the second part specifically includes
other executive officials whose positions may not be
with salary grade 27 and higher but who are by
express provision of law placed under the
jurisdiction of the said court. Thus, if the position is
enumerated under Sandiganbayan’s jurisdiction
and as long as the offense was committed in relation
to their office, regardless of salary grade,
Sandiganbayan has jurisdiction. (Geduspan v.
People, G.R. No. 158187, 11 Feb. 2005)
An Offense is Deemed to be Committed in
relation to the Public Office upon showing of Any
of the Following:
1. When such office is an element of the crime
charged; or
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
2. When the offense charged is intimately
connected with the charge of the official
functions of the accused.
Q: The accused public officer, a Senior Labor
Regulation Officer and Chief of the Labor
Regulations Section, conspired and connived
with the other accused, Elino Coronel, a Labor
Regulation Officer of the same office, took
advantage of their official positions, prepared
and falsified an official document, to wit: the CS
Personal Data Sheet, by making it appear in said
document that accused had taken and passed
the Career Service. Sandiganbayan convicted
petitioners of Falsification of a Public Document.
Does the Sandiganbayan have jurisdiction over
the case?
A: NO. In the instant case, there is no showing that
the alleged falsification was committed by the
accused, if at all, as a consequence of, and while they
were discharging, official functions. The
information does not allege that there was an
intimate connection between the discharge of
official duties and the commission of the offense.
Besides, falsification of an official document may be
committed not only by public officers and
employees but even by private persons only. Public
office is not an essential ingredient of the offense
such that the offense cannot exist without the office.
Clearly, therefore, as the alleged falsification was
not an offense committed in relation to the office of
the accused, it did not come under the jurisdiction
of the Sandiganbayan. It follows that all its acts in
the instant case are null and void ab initio.
(Bartolome v. People, G.R. No. L-64548, 07 July 1986)
Q: Engr. Magna Nakaw, the District Engineer of
the DPWH in the Province of Walang Progreso,
and Mr. Pork Chop, a private contractor, were
both charged in the Office of the Ombudsman for
violation of the Anti-Graft and Corrupt Practices
Act (R.A. No. 3019) under a conspiracy theory.
While the charges were undergoing
investigation in the Office of the Ombudsman,
Engr. Magna Nakaw passed away. Mr. Pork Chop
immediately filed a motion to terminate the
investigation and to dismiss the charges against
him, arguing that because he was charged in
conspiracy with the deceased, there was no
442
longer a conspiracy to speak of and,
consequently, any legal ground to hold him for
trial had been extinguished. Rule on the motion
to terminate filed by Mr. Pork Chop, with brief
reasons. (2017 BAR)
A: The motion should be denied. The death of any
public officer with whom respondent can be
charged for the said violation does not mean that
the allegation of conspiracy between them can no
longer be proved or that their alleged conspiracy is
already expunged. The law does not require that
such person must, in all instances, be indicted
together with the public officer. If circumstances
exist where the public officer may no longer be
charged in court, as in the present case where the
public officer has already died, the private person
may be indicted alone. Moreover, the only thing
extinguished by the death of Engr. Magna Nakaw is
his criminal liability. His death did not extinguish
the crime nor did it remove the basis of the charge
of conspiracy between him and private respondent.
(People v. Go, G.R. No. 168539, 25 Mar. 2014)
Q: The Ombudsman found probable cause to
charge with plunder the provincial governor,
vice governor, treasurer, budget officer, and
accountant. An Information for plunder was
filed with the Sandiganbayan against the
provincial officials except for the treasurer who
was granted immunity when he agreed to
cooperate with the Ombudsman in the
prosecution of the case. Immediately, the
governor filed with the Sandiganbayan a
petition for certiorari against the Ombudsman
claiming there was grave abuse of discretion in
excluding the treasurer from the Information.
a. Was the remedy taken by the governor
correct?
b. Will the writ of mandamus lie to compel the
Ombudsman to include the treasurer in the
Information?
c. Can the Special Prosecutor move for the
discharge of the budget officer to
corroborate the testimony of the treasurer
in the course of presenting its evidence?
(2015 BAR)
 Criminal Procedure
A:
a. NO. The remedy taken by the governor was not
correct. The SC has held that the proper remedy
from the Ombudsman’s orders or resolutions in
criminal cases is a petition for certiorari under
Rule 65 filed with the Supreme Court (Quarto v.
OMB, G.R. No. 169402, 05 Oct. 2011; Cortes v.
OMB, G.R. No. 187896-97, 10 June 2013). Here
the petition for certiorari was filed not with the
Supreme Court but the Sandiganbayan. Hence,
the remedy taken was not correct.
b. NO. The writ of mandamus will not lie to compel
the Ombudsman to include the Treasurer in the
information. The Supreme Court has held that
mandamus will lie only if the exclusion of a
person from the information was arbitrary.
Here, the exclusion was not arbitrary but based
on Sec. 17 of RA 6770 which empowers the
Ombudsman to grant immunity to witnesses.
(Ibid.)
c. NO. The Special Prosecutor cannot move for the
discharge of the budget officer to corroborate
the testimony of the treasurer. Under Section
17 of Rule 119 of the Rules of Court, a
requirement for discharge is that there is no
other direct evidence available for the
prosecution of the offense and that there is
absolute necessity for the testimony of the
accused whose discharge is requested. Here
since the budget officer’s testimony is merely
corroborative, there is no absolute necessity for
it. Necessity is not there when the testimony
would simply corroborate or otherwise
strengthen the prosecution’s evidence (Jimenez
v. People, G.R. No. 209195, 17 Sep. 2014). Hence,
the Special Prosecutor cannot move for the
discharge of the budget officer.
2. WHEN INJUNCTION MAY BE ISSUED TO
RESTRAIN CRIMINAL PROSECUTION
When Injunction may be Issued to Restrain
Criminal Prosecution (1999 BAR)
GR: The long-standing doctrine that writs of
injunction or prohibition will not lie to restrain a
criminal prosecution for the reason that public
interest requires that criminal acts be immediately
443
investigated and prosecuted for the protection of
society. (Domingo v. Sandiganbayan, G.R. No.
109376, 20 Jan. 2000)
XPNs:
1. To prevent the use of the strong arm of the law
in an oppressive and vindictive manner (Ibid.);
2. To afford adequate protection to
constitutional rights (Ibid.);
3. For the orderly administration of justice
(Hernandez v. Albano, G.R. No. 19272, 25 Jan.
1967);
4. To avoid multiplicity of actions (Ibid.);
5. In proper cases, because the statute relied
upon is unconstitutional, or was held invalid
(Ibid.);
6. When the acts of the officer are without or in
excess of authority (Planas v. Gil, G.R. No. L-
46440, 18 Jan. 1939);
7. When the court has no jurisdiction over the
offense (Lopez v. City Judge, G.R. No. L-25795,
29 Oct. 1966);
8. When there is a prejudicial question which is
sub judice (before a court or judge for
consideration);
9. Where the prosecution is under an invalid law,
ordinance or regulation;
10. When double jeopardy is clearly apparent;
11. Where it is a case of persecution rather than
prosecution;
12. Where the charges are manifestly false and
motivated by lust for vengeance; and
13. Where there is clearly no prima facie case
against the accused and a motion to quash on
that ground has been denied.
Mandamus to Compel Prosecution
Settled is the rule that the writ of mandamus is not
available to control discretion neither may it be
issued to compel the exercise of discretion. Truly, it
is a matter of discretion on the part of the
prosecutor to determine which persons appear
responsible for the commission of a crime.
However, the moment he finds one to be so liable it
becomes his inescapable duty to charge him
therewith and to prosecute him for the same. In
such a situation, the rule loses its discretionary
character and becomes mandatory.
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

Thus, in cases where despite the sufficiency of the
evidence before the prosecutor, he or she refuses to
file the corresponding information against the
person responsible, he or she abuses his discretion.
His act is tantamount to a deliberate refusal to
perform a duty enjoined by law. As such, mandamus
is a proper remedy when resolution of the
prosecutor is tainted with grave abuse of discretion.
(Metropolitan Bank and Trust Company v. Reynaldo,
G.R. No. 164538, 09 Aug. 2010)
B. PROSECUTION OF OFFENSES
(RULE 110)
CRIMINAL ACTIONS, HOW INSTITUTED
Criminal Action
Effect of Institution of a Criminal Action
GR: It interrupts the running of the period of
prescription of the offense charged. (Sec. 1, Rule 110,
ROC, as amended)
XPN: When a different rule is provided for in special
laws.
NOTE: Under Art. 91 of the Revised Penal Code
(RPC), the prescriptive period shall be interrupted
“by the filing of the complaint or information.” The
said article does not distinguish whether the
complaint is filed for preliminary examination or
investigation only or for an action on the merits.
Thus, the filing of the complaint even with the
fiscal's office suspends the running of the statute of
limitations. (Reodica v. CA, G.R. No. 125066, 08 July
1998)

There is No More Distinction between Cases

One by which the State prosecutes a person for an
under the RPC and those Covered by Special
act or omission punishable by law.
Laws

Criminal actions are instituted by:

In cases involving special laws, the Court has held
that the institution of proceedings for preliminary
1. Where preliminary investigation is required
investigation against the accused interrupts the
– filing the complaint with the proper officer for
period of prescription (People v. Pangilinan, G.R. No.
the purpose of conducting the requisite
152662, 13 June 2012; Sanrio Company Limited v.
preliminary investigation (Sec. 1, Rule 110,
Lim, G.R. No. 168662, 19 Feb. 2008; Ingco v.
Rules of Court, as amended); or
Sandiganbayan, G.R. No. 112584, 23 May 1997). As
such, the rule laid down in Zaldivia v. Reyes (G.R. No.
2. For all other offenses – filing the complaint or
102342, 03 July 1992) is no longer controlling in
information directly with the MTC and MCTC, or
special laws.
the complaint with the office of the prosecutor.
(Ibid.)
While it may be observed that the term “judicial
proceedings” in Sec. 2 of Act No. 3326 appears
NOTE: There is no direct filing of an information or
before “investigation and punishment” in the old
complaint with the RTC because its jurisdiction
law, with the subsequent change in set-up whereby
covers offenses which require preliminary
the investigation of the charge for purposes of
investigation.
prosecution has become the exclusive function of
the executive branch, the term “proceedings” should
There is likewise no direct filing with the MeTC
now be understood either executive or judicial in
because in Metro Manila and other chartered cities,
character: executive when it involves the
the complaint shall be filed with the office of the
investigation phase and judicial when it refers to the
prosecutor, unless otherwise provided by their
trial and judgment stage. With this clarification, any
charters. In case of conflict between a city charter
kind of investigative proceeding instituted against
and a provision of the Rules of Court, the former,
the guilty person which may ultimately lead to his
being substantive law, prevails.
prosecution should be sufficient to toll prescription.
(Panaguiton v. DOJ, G.R. No. 167571, 25 Nov. 2008)

444
 Criminal Procedure
The prevailing rule is, therefore, that irrespective of
whether the offense charged is punishable by the
RPC or by a special penal law, it is the filing of the
complaint or information in the office of the public
prosecutor for purposes of preliminary
investigation that interrupts the period of
prescription. (Riano, 2019 citing Disini v.
Sandiganbayan, G.R. Nos 169823-24, 11 Sep. 2013)
WHO MAY FILE THEM, CRIMES THAT CANNOT
BE PROSECUTED DE OFFICIO
GR: All criminal actions initiated by complaint or
information are filed by the prosecutor.
XPNs: Offenses or crimes that cannot be prosecuted
de officio.
These are crimes or offenses which cannot be
prosecuted except on complaint filed by the
offended party or, if the offended party is a minor,
by the parents, grandparents or the guardian. These
crimes are:
1. Adultery and concubinage;
2. Seduction, abduction and acts of lasciviousness;
and
3. Criminal actions for defamation imputing the
abovementioned offenses. (Sec. 5, Rule 110,
ROC, as amended)
NOTE: These crimes are known as private crimes
(which mean that these crimes cannot be
prosecuted except upon the complaint initiated by
the offended party). (Art. 344, RPC)
1. Party who may legally file a complaint for
adultery or concubinage
Only the offended spouse may file a complaint for
adultery or concubinage. (Sec. 5, Rule 110, ROC, as
amended)
NOTE: The offended spouse cannot institute a
criminal action for adultery without including the
guilty parties if both are alive; or if the offended
party has consented to the offense or pardoned the
offenders. (Sec. 5, Rule 110, ROC, as amended)
If the complainant has already been divorced, he can
445
no longer file the complaint. This is considered as
lack of status. (Pilapil v. Somera, G.R. No. 80116, 30
June 1989)
2. Parties who may file a complaint for
seduction, abduction or acts of lasciviousness
a. The offended party;
b. Parents of the offended party;
c. Grandparents of the offended party; or
d. Guardian of the offended party (Sec. 5, Rule 110,
ROC, as amended)
NOTE: Such crimes cannot be prosecuted if the
offender has been expressly pardoned by any of the
abovementioned parties. (Sec. 5, Rule 110, ROC, as
amended)
Filing a Complaint by a Minor for Seduction,
Abduction, or Acts of Lasciviousness (2000 BAR)
GR: The offended party, even if a minor, has the
right to initiate the prosecution of such offenses
independently of the said offended party’s parents,
grandparents or guardian.
XPNs: If the minor is:
1. Incompetent; or
2. Incapable of doing so. (Sec. 5, Rule 110, ROC, as
amended)
NOTE: If the minor fails to file a complaint, the said
minor’s parents, grandparents or guardian may file
the same. The right granted to the latter shall be
exclusive and successive in the order herein
provided. (Sec. 5, Rule 110, ROC, as amended)
Q: Fey, a minor orphan, was subjected to acts of
lasciviousness performed by her uncle Polo. She
informed her grandparents but was told not to
file charges.
a. Fey now asks you as counsel how she could
make her uncle liable. What would your
advice be? Explain.
b. Suppose the crime committed against Fey by
her uncle is rape, witnessed by your mutual
friend Isay. But this time, Fey was prevailed
upon by her grandparents not to file
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charges. Isay asks you if she can initiate the
complaint against Polo. Would your answer
be the same? Explain. (2000 BAR)
A:
a. Fey may file the complaint independently of her
grandparents, because she is not incompetent
or incapable of doing so upon grounds other
than her minority. (Sec. 5, Rule 110, ROC, as
amended)
b. YES. Since rape is now classified as a crime
against persons under the Anti-Rape Law of
1997 or RA 8353, Isay can initiate the complaint
against Polo.
Effect of Pardon on the Criminal Liability
The crimes of seduction, abduction and acts of
lasciviousness cannot be prosecuted if the offender
has been expressly pardoned by any of the persons
authorized to file a complaint under Sec. 5 of Rule
110 of the Rules of Court.
NOTE: In case where the offended party is a minor,
the pardon to be effective, as to prevent prosecution
of the accused, must be given by both parents and
the offended party. (U.S. v. Luna, G.R. No. 892, 11 Sep.
1902)
Pardon vs. Consent

Instances when the State may Initiate the Action PARDON CONSENT
for Seduction, Abduction or Acts of Refers to past acts. Refers to future acts.
Lasciviousness on behalf of the Offended Party In order to absolve In order to absolve the
the accused from accused from liability, it
1. When the offended party dies or becomes liability, it must be is sufficient even if
incapacitated before a complaint is filed; or extended to both granted only to the
2. The offended party has no known parents, offenders. offending spouse.
grandparents or guardian. (Sec. 5, Rule 110,
ROC, as amended) Parties who Can Give Pardon

NOTE: This is pursuant to the doctrine of parens PARTIES WHO CAN

patriae. CRIMES
GIVE PARDON
Concubinage Only the offended spouse,
Persons who may File a Complaint on Cases of and Adultery not otherwise incapacitated.
Unlawful Acts in R.A. No. 7610 (Special 1. The offended minor, if
Protection of Children against Child Abuse, with sufficient discretion,
Exploitation and Discrimination Act) can validly pardon the
accused by herself if she
1. Offended party; has no parents or where
2. Parents or guardians; the accused is her own
3. Ascendant or collateral relative within the third father and her mother is
degree of consanguinity; Seduction,
dead;
4. Officer, social worker or representative of a Abduction, and
licensed child-caring institution; Acts of
2. The parents, grandparents
5. Officer or social worker of the Department of Lasciviousness:
or guardian of the
Social Welfare and Development; offended minor, in that
6. Barangay Chairman; or order, extend a valid
7. At least 3 concerned, responsible citizens pardon in said crimes
where the violation occurred. (Sec. 27, R.A. No. without the conformity of
7610) the offended party, even if
the latter is a minor; or

446
 Criminal Procedure
3. If the offended woman is
of age and not otherwise
incapacitated, only she can
extend a valid pardon.
NOTE: The pardon shall be given before filing of the
criminal complaint in court. Pardon effected after
the filing of the complaint in court does not prohibit
the continuance of the prosecution of the offense.
While the offenses of seduction, abduction, rape or
acts of lasciviousness, shall not be prosecuted
except upon a complaint filed by the offended party
or her parents, grandparents, or guardian, nor in
any case, if the offender has been expressly
pardoned by the above named persons, as the case
may be, the pardon to justify the dismissal of the
complaint should have been made prior to the
institution of the criminal action. (Alonte v.
Savellano, G.R. No. 131652, 09 Mar. 1998)
Subsequent Marriage of the Accused and
Offended Party
GR: The subsequent marriage between the party
and the accused, even after the filing of the
complaint, extinguishes the criminal liability of the
latter, together with that of the co-principals,
accomplices and accessories.
XPNs:
1. Where the marriage was invalid or contracted
in bad faith in order to escape criminal
liability;
2. In “private libel” or the libelous imputation of
the commission of the crimes of concubinage,
adultery, seduction, abduction, rape or acts of
lasciviousness and in slander by deed; and
3. In multiple rape, in so far as the other accused
in the other acts of rape committed by them
are concerned.
3. Party who may file a complaint for defamation
which consist in the imputation of the offenses
of adultery, concubinage, seduction, abduction,
acts of lasciviousness.
447
It shall be brought at the instance of and upon the
complaint filed by the offended party. (Sec. 5, Rule
110, ROC, as amended)
Effect of Death of the Offended Party to the
Criminal Action
1. Prior to the filing of the case in court but after
a complaint was filed before the prosecutor –
the death of the complainant will not be
sufficient justification for the dismissal of the
information.
2. During the pendency of the case – the death of
the complainant will not extinguish the criminal
liability of the accused whether total or partial.
(Donio-Teves v. Vamenta, G.R. No. L-38308, 26
Dec. 1984)
CRIMINAL ACTIONS, WHEN ENJOINED
GR: The long-standing doctrine that writs of
injunction or prohibition will not lie to restrain a
criminal prosecution for the reason that public
interest requires that criminal acts be immediately
investigated and prosecuted for the protection of
society. (Domingo v. Sandiganbayan, G.R. No.
109376, 20 Jan. 2000)
XPNs:
1. To prevent the use of the strong arm of the law
in an oppressive and vindictive manner;
2. To afford adequate protection to
constitutional rights;
3. For the orderly administration of justice
(Hernandez v. Albano, supra);
4. To avoid multiplicity of actions;
5. In proper cases, because the statute relied
upon is unconstitutional, or was held invalid;
6. When the acts of the officer are without or in
excess of authority (Planas v. Gil, G.R. No. L-
46440, 18 Jan. 1939);
7. When the court has no jurisdiction over the
offense (Lopez v. City Judge, G.R. No. L-25795,
29 Oct. 1966);
8. When there is a prejudicial question which is
sub judice (before a court or judge for
consideration);
9. Where the prosecution is under an invalid law,
ordinance or regulation;
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10. When double jeopardy is clearly apparent;
11. Where it is a case of persecution rather than
prosecution;
12. Where the charges are manifestly false and
motivated by lust for vengeance; and
13. Where there is clearly no prima facie case
against the accused and a motion to quash on
that ground has been denied.
CONTROL OF PROSECUTION
GR: The public prosecutor shall prosecute, direct,
and control all criminal actions commenced by a
complaint or information. (Sec. 5, Rule 110, ROC, as
amended)
Since a criminal offense is an outrage against the
sovereignty of the State, it necessarily follows that a
representative of the State shall direct and control
the prosecution thereof.
XPN: The private prosecutor (private counsel) may
prosecute the case provided that:
1. The public prosecutor has heavy work
schedule; or
2. There is lack of public prosecutors.
NOTE: The private prosecutor must be authorized
in writing by the Chief Prosecution Office or
Regional State Prosecution; and such will be subject
to the court’s approval. (Sec. 5, Rule 110, ROC, as
amended)
In cases where only the civil liability is being
prosecuted by a private prosecutor, the head of the
prosecution office must issue in favor of the private
prosecutor a written authority to try the case even
in the absence of the public prosecutor. The written
authority must be submitted to the court prior to
the presentation of evidence by the private
prosecutor in accordance with Sec. 5, Rule 110.
(A.M. No. 15-06-10-SC)
With this authority on record, the court may set the
trial in the case and in other cases tried by private
prosecutors with delegated authority on separate
days when the presence of the public prosecutor
may be dispensed with. (Ibid.)
448
Q: Josefa married Amado when she was just 16
years old. Prior to a declaration of nullity of her
previous marriage with Amado, Josefa
contracted another marriage with Lorenzo
Bumatay. Jana, a foster daughter of Lorenzo,
filed a complaint against Josefa before the RTC
alleging that when Josefa married Lorenzo, she
knows fully well that her first marriage with her
first husband Amado, who is still living, has not
been legally dissolved. Amado subsequently
died. Therefore, Josefa sought to nullify her first
marriage with Amado. The RTC granted the
petition and declared her first marriage null and
void. She filed a Motion to Quash the
Information regarding the Bigamy case filed
against her. The RTC decided in her favor and
dismissed the case. Jana, feeling aggrieved,
appealed the same to the CA but the latter court
dismissed the same. Hence, Jana filed a petition
for review on certiorari under Rule 45 before
the SC. Is Janna correct?
A: NO. Jana has no legal capacity to assail the
dismissal of the criminal case. Sec. 5 of Rule 110 of
the Rules of Court dictates that all criminal actions
commenced by complaint or information shall be
prosecuted under the direction and control of a
public prosecutor. In appeals of criminal cases
before the SC, the authority to represent the State is
vested solely in the OSG.
Inasmuch as the private offended party is but a
witness in the prosecution of offenses, the interest
of the private offended party is limited only to the
aspect of civil liability. It follows therefore that in
criminal cases, the dismissal of the case against an
accused can only be appealed by the OSG, acting on
behalf of the State. (Bumatay v. Bumatay, G.R. No.
191320, 25 Apr. 2017, J. Caguioa)
Prescription of the authority of the private
prosecutor
The authority of the private prosecutor shall
continue until the end of the trial unless the
authority is revoked or withdrawn. (Sec. 5, Rule 110,
ROC, as amended)
 Criminal Procedure

Matters within the control and supervision of Resolution reversing the resolution of the
the prosecutor Provincial Prosecutor and directing him to
withdraw the Information. Before the Provincial
1. What charge to file; Prosecutor could comply with the directive of
2. Whom to prosecute; the Secretary of Justice, the court issued a
3. Manner of prosecution; and warrant of arrest against Peter. The Public
4. Right to withdraw information before Prosecutor filed a Motion to Quash the Warrant
arraignment even without notice and hearing. of Arrest and to withdraw the Information,
attaching to it the Resolution of the Secretary of
NOTE: Once a complaint or information is filed in Justice. The court denied the motion. Was there
court, any disposition of the case rests in the sound a legal basis for the court to deny the motion?
discretion of the court. Although the fiscal retains (2002 BAR)
the direction and control of the prosecution of
criminal cases even while the case is already in A: YES. There is a legal basis for the court to deny
court, he cannot impose his opinion on the trial the motion to quash the warrant of arrest and to
court. The determination of the case is within the withdraw the information. The court is not bound
court’s exclusive jurisdiction and competence. by the Resolution of the Secretary of Justice. This is
(Crespo v. Mogul, G.R. No. L-53373, 30 June 1987) because once an information is filed in court, any
disposition of the case as its dismissal or the
Matters within the control of the Court after the conviction or acquittal of the accused rests in the
case is filed sound discretion of the court. (Crespo v. Mogul, G.R.
No. L-53373, 30 June 1987)
1. Suspension of arraignment;
2. Reinvestigation; NOTE: When a trial court is confronted to rule on a
3. Prosecution by the fiscal; motion to dismiss a case or to withdraw an
4. Dismissal of the case; and Information, it is its bounden duty to assess
5. Downgrading of offense or dropping of accused independently the merits of the motion, and this
even before plea. assessment must be embodied in a written order
disposing of the motion. (Jose v. Suarez, G.R. No.
Limitations on the Court’s power of control 176111, 17 July 2013)

1. Prosecution is entitled to notice of hearing; SUFFICIENCY OF COMPLAINT OR INFORMATION

2. Prosecution’s stand to maintain prosecution
should be respected by the court; A complaint or information is deemed sufficient if it
3. The court must make its own independent contains the following:
assessment of evidence in granting or
dismissing motion to dismiss. Otherwise, the 1. Name of the accused, if the offense is
judgment is void; and committed by more than one person, all of
4. Court has authority to review the Secretary of them shall be included in the complaint or
Justice’s recommendation and reject it if there information;
is grave abuse of discretion. (Villanueva v. 2. Designation of the offense given by the
Secretary of Justice, G.R. No. 162187, 18 Nov. statute;
2005) 3. Acts or omissions complained of as
constituting the offense;
Q: After the requisite proceedings, the 4. Name of the offended party;
Provincial Prosecutor filed and Information for 5. Approximate date of the commission of the
homicide against Peter. The latter however, offense; and
timely filed a Petition for Review of the 6. Place where the offense was committed (Sec.
Resolution of the Provincial Prosecutor with the 6, Rule 110, ROC, as amended)
Secretary of Justice who, in due time, issued a

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Test of sufficiency of the complaint or Form of a valid complaint or information

information
1. In writing;
The test is whether the crime is described in 2. In the name of the People of the Philippines; and
intelligible terms with such particularity as to 3. Against all persons responsible for the offense
apprise the accused, with reasonable certainty, of involved. (Sec. 2, Rule 110, ROC, as amended)
the offense charged.
NOTE: In case of variance between the complaint
The raison d’etre of the rule is to enable the accused filed by the offended party and the information, the
to suitably prepare his defense. (Miranda v. Hon. complaint controls.
Sandiganbayan, G.R. No. 154098, 27 July 2005)
Another purpose is to enable accused, if found Name of the accused
guilty, to plead his conviction in a subsequent
prosecution for the same offense. (Serapio v. The complaint or information must state the name
Sandiganbayan, G.R. No. 148468, 28 Jan. 2003) and surname of the accused or any appellation or
nickname by which he has been or is known. If the
Information vs. Complaint name cannot be ascertained, he must be described
under a fictitious name with a statement that his
INFORMATION COMPLAINT true name is unknown. (Sec. 7, Rule 110, ROC, as
A sworn written amended)
An accusation in statement charging a
writing charging a person with an NOTE: If the true name of the accused is thereafter
person with an offense, offense, subscribed by disclosed or appears in some other manner, such
subscribed by the the offended party, any true name shall be inserted in the information or
prosecutor and filed by peace officer, or other complaint in record. (Ibid.)
him with the court. public officer charged
(Sec. 4, Rule 110, ROC, with the enforcement When an offense is committed by more than one
as amended) of the law violated. person, all of them shall be included in the
(Sec. 3, Rule 110, ROC, complaint or information. (Sec. 6, Rule 110, ROC, as
as amended) amended)
Requires no oath
because the prosecutor Mistake in the name of the accused
Must be “sworn,”
filing the information is
hence under oath.
acting under the oath of A mistake in the name of the accused is not
his office. equivalent and does not necessarily amount to a
Subscribed by: mistake in the identity of the accused especially
a) Offended party; when sufficient evidence is adduced to show that
b) Peace officer; or the accused is pointed to as one of the perpetrators
Subscribed by the c) Other public of the crime. (People v. Amodia, G.R. No. 173791, 07
prosecutor. officer charged Apr. 2009)
with the
enforcement of Name of the offended party
the law violated.
The complaint or information must state the name
NOTE: The complaint contemplated under Sec. 3 is and surname of the persons against whom or
different from the complaint filed with the against whose property the offense was committed
Prosecutor’s office. It refers to the one filed in court or any appellation or nickname by which such
for the commencement of the criminal prosecution, person has been or is known and if there is no better
i.e., private crimes. way of identifying him, he must be described under
a fictitious name.

450
 Criminal Procedure
1. 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 particular offense
charged. (Sec. 12(a), Rule 110, ROC, as amended)
2. If the true name of the offended party is
thereafter disclosed or ascertained, the court
must cause such true name to be inserted in the
complaint or information in record. (Sec. 12(b),
Rule 110, ROC, as amended)
3. 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(c), Rule 110, ROC, as
amended)
NOTE: In offenses against property, if the subject
matter of the offense is generic and not identifiable,
such as the money unlawfully taken, an error in the
designation of the offended party is fatal and would
result in the acquittal of the accused.
However, if the subject matter of the offense is
specific and identifiable, such as a warrant, or a
check, an error in the designation of the offended
party is immaterial. (Senador v. People, G.R. No.
201620, 6 March 2013)
Particularity of the date of the commission of the
offense in the complaint or information
GR: It is not required. It suffices that the allegation
approximates or be as near as the actual date when
the offense was committed. (Sec. 11, Rule 110, ROC,
as amended)
NOTE: Variance in the date of commission of the
offense as alleged in the information and as
established in evidence becomes fatal when such
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. In this event, the defective allegation in the
information is not deemed supplanted by the
evidence nor can it be amended but must be struck
down for being violative of the right of the accused
451
to be informed of the specific charge against him or
her. (People v. Delfin, G.R. No. 201572, 09 July 2014)
XPN: If the date of the commission of the offense
constitutes an essential element of the offense (e.g.,
infanticide, abortion, bigamy). (Sec. 11, Rule 110,
ROC, as amended)
NOTE: The remedy against an indictment that fails
to allege the time of commission of the offense with
sufficient definiteness is a motion for bill of
particulars under Sec. 10, Rule 116 of the Rules of
Court. (People v. Elpedes, G.R. Nos. 137106-07, 31 Jan.
2001)
Place of the commission of the crime
GR: The complaint or the information is sufficient if
it can be understood from its allegation that the
offense was committed, or some its essential
ingredients occurred at some place within the
jurisdiction of the court.
XPN: When the place of commission constitutes an
essential element of the offense charged or is
necessary for its identification (e.g., trespass to
dwelling, destructive arson, robbery in an inhabited
place). (Sec. 10, Rule 110, ROC, as amended)
DESIGNATION OF OFFENSE (2001 BAR)
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, ROC, as amended)
Q: Accused was charged with the offense of
Estafa through Falsification of Public
Documents under Art. 315 in relation to Art. 171
of the RPC in an information filed by the
prosecutor before the RTC of Quezon City.
Accused assailed the information claiming that
the information is invalid because the word
"fraud" or "deceit" was not alleged in the
information. Decide the case.
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A: Any error in the information, with regard to the
specification of the particular mode of estafa,
allegedly committed by petitioners will not result in
its invalidation because the allegations therein
sufficiently informed petitioners that they are being
charged with estafa through falsification of public
documents.
The Revised Rules of Criminal Procedure provides
that an information shall be deemed sufficient if it
states, among others, the designation of the offense
given by the statute and the acts or omissions
complained of as constituting the offense. However,
the Court has clarified in several cases that the
designation of the offense, by making reference to
the section or subsection of the statute punishing, it
is not controlling; what actually determines the
nature and character of the crime charged are the
facts alleged in the information. (Batulanon v.
People, G.R. No. 139857, 15 Sep. 2006; People v.
Delector, G.R. 200026, 04 Oct. 2017)
Conflict between the designation of the crime
and the recital of the facts constituting the
offense
The title of the information or designation of the
offense is not controlling. An Information does not
have to employ the exact language of the statute in
stating the charge. The criminal charge is
determined from the recital of facts, and not from
the caption, preamble, or formal specification of the
violated law. The information is deemed sufficient
as long as the controlling words in the body of the
Information adequately determine the crime
charged. (Bustillo v. People, G.R. No. 216933, 15 Mar.
2021)
Effect of failure to designate the offense by the
statute
The failure to designate the offense by statute, or to
mention the specific provision penalizing the act, or
an erroneous specification of the law violated does
not vitiate the information if the facts alleged clearly
recite the facts constituting the crime charged. What
controls is not the title of the information or the
designation of the offense, but the actual facts
recited in the information. In other words, it is the
recital of facts of the commission of the offense, not
452
the nomenclature of the offense that determines the
crime being charged in the information. (Malto v.
People, G.R. No. 164733, 21 Sept. 2007)
Q: May the accused be convicted of a crime more
serious than that named in the information?
GR: YES. The accused may be convicted of a crime
more serious than that named in the title or
preliminary part if such crime is covered by the facts
alleged in the information and its commission is
established by evidence. (Buhat v. CA, G.R. No.
119601, 17 Dec. 1996)
XPN: An accused could not be convicted under one
act when he is charged with a violation of another if
the change from the statute to the other:
1. Involves change in the theory of the trial;
2. Requires of the defendant a different defense;
or
3. Surprises the accused in any way. (U.S. v.
Panlilio, G.R. No. L-9876, 08 Dec. 1914)
CAUSE OF THE ACCUSATION
The acts or omissions complained of as constituting
the offense and the qualifying and aggravating
circumstances must be stated in ordinary and
concise language and not necessarily in the
language used in the statute but in terms sufficient
to enable a person of common understanding to
know what the offense is being charged as well as
the qualifying and aggravating circumstances. (Sec.
9, Rule 110, ROC, as amended)
Purposes of requiring that every element must
be alleged
1. To enable the court to pronounce the proper
judgment;
2. To furnish the accused with such a description
of the charge as to enable him to make a
defense; and
3. As a protection against further prosecution for
the same cause. (Herrera, 2007)
 Criminal Procedure
Effect when one or more elements of the offense
have NOT been alleged in the Information
The accused cannot be convicted of the offense
charged, even if the missing elements have been
proved during the trial. Even the accused’s plea of
guilty to such defective information will not cure the
defect, nor justify his conviction of the offense
charged.
Statement of the qualifying and aggravating
circumstances in the Information
The qualifying and aggravating circumstances must
be specified in the information. They must not only
be proven but they must also be alleged, otherwise,
they should not be considered. (Catiis v. CA, G.R. No.
153979, 06 Feb. 2006)
Negative Averments
GR: Where the statute alleged to have been violated
prohibits generally acts therein defined and is
intended to apply to all persons indiscriminately,
but prescribes certain limitation or exceptions from
its violation, the complaint or information is
sufficient if it alleges facts which the offender did as
constituting a violation of law, without explicitly
negating the exception, as the exception is a matter
of right which the accused has to prove.
XPN: Where the statute alleged to have been
violated applies only to specific classes of persons
and special conditions and the exemptions from its
violations are incorporated in the language defining
the crime that the ingredients of the offense cannot
be accurately and clearly set forth if the exemption
is omitted, then the indictment must show that the
accused does not fall within the exemptions.
(Herrera, 2007)
Matter/s to be alleged if the crime is “committed
in relation to his office”
Mere allegation in the information that the offense
was committed by the accused public officer in
relation to his office is not sufficient. The phrase is
merely “a conclusion of law,” not a factual averment
that would show close intimacy between the offense
charged and the discharge of the accused’s official
453
duties. What is controlling is the specific actual
allegation in the information. (Lacson v. Executive
Secretary, G.R. No. 128006, 20 Jan. 1999)
NOTE: An offense is deemed committed in relation
to public office when the “office” is a constituent
element of the offense. The test is whether the
offense cannot exist without the office. (Crisostomo
v. Sandiganbayan, G.R. No. 152398, 14 Apr. 2005) The
offense need not be connected with official duties. It
is enough that it is in relation to office. (Lecaroz v.
Sandiganbayan, G.R. No. 130872, 25 Mar. 1999)
DUPLICITY OF THE OFFENSE; EXCEPTION
GR: A complaint or information must charge only
one offense.
XPN: When the law prescribes a single punishment
for various offenses (Sec. 13, Rule 110, ROC, as
amended):
1. Complex crimes;
2. Special complex crimes;
3. Continuous crimes or delito continuado;
4. Crimes susceptible of being committed in
various modes; and
5. Crimes of which another offense is an
ingredient.
NOTE: Should there be duplicity of offense in the
information, the accused must move for the quashal
of the same before arraignment. (Sec. 3, Rule 117,
ROC, as amended) Otherwise, he or she is deemed to
have waived the objection and may be found guilty
of as many offenses as those charged and proved
during the trial. (Sec. 3, Rule 120, ROC, as amended)
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AMENDMENT OR SUBSTITUTION OF Tests to determine the propriety of amendment

COMPLAINT OR INFORMATION after plea

AMENDMENT 1. Whether a defense under the information as it

originally stood would be available after the
amendment is made; and
Procedure for amendment

2. Whether any evidence defendant might have

KIND OF HOW AMENDMENT
would be equally applicable to the information
AMENDMENT IS MADE
in the one form as in the other. An amendment
TO BE MADE
to an information which does not change the
Before plea
nature of the crime alleged therein does not
1. Formal
affect the essence of the offense or cause
amendment; or
Without leave of court surprise or deprive the accused of an
2. Substantial
opportunity to meet the new averment had
amendment.
each been held to be one of form and not of
Substantial substance. (Ricarze v. CA, G.R. No. 160451, 09
amendment which: Feb. 2007)
a. Downgrades the
1. Upon a motion by the
nature of the offense Formal Amendment
prosecutor;
charged; or
2. With notice to the
b. Excludes any
accused; and A formal amendment is made when:
accused from the
3. With leave of court.
complaint or
1. It neither affects nor alters the nature of the
information offense charged; or
2. The charge does not deprive the accused of a
After plea and during the trial fair opportunity to present his defense; or
1. With leave of court; 3. It does not involve a change in the basic theory
and of the prosecution.
2. Without causing
Formal Amendment prejudice to the rights NOTE: The following have been held to be mere
of the accused. (Sec. 14, formal amendments:
Rule 110, ROC, as
amended) 1. New allegations which relate only to the range
GR: Not allowed of the penalty that the court might impose in the
event of conviction;
XPN: If the amendment
Substantial
is beneficial to the 2. An amendment which does not charge another
Amendment
accused. (Riano, 2019 offense different or distinct from that charged
citing Ricarze v. CA, 515 in the original one;
SCRA 302)
3. Additional allegations which do not alter the
Matters subject to amendment prosecution’s theory of the case so as to cause
surprise to the accused and affect the form of
Only valid information may be amended. An defense he has or will assume;
information filed before the effectivity of the law
punishing the offense may not be amended after the 4. An amendment which does not adversely affect
law had come into effect. (Herrera, 2007) any substantial right of the accused; and

454
 Criminal Procedure
5. An amendment that merely adds specifications
to eliminate vagueness in the information and
not to introduce new and material facts, and
merely states with additional precision
something which is already contained in the
original information and which adds nothing
essential for conviction for the crime charged.
(Ricarze v. CA, G.R. No. 160451, 09 Feb. 2007)
Effect of a formal amendment
There is no need for another preliminary
amendment and retaking of the plea of the accused
if such were already conducted.
Substantial Amendment
An amendment is substantial when it covers
matters involving the recital of facts constituting the
offense charged and determinative of the
jurisdiction of the court.
NOTE: After arraignment, a substantial amendment
is prohibited except if the same is beneficial to the
accused. Substantial amendment after the plea has
been taken cannot be made over the objection of the
accused, for if the original would be withdrawn, the
accused could invoke double jeopardy. (Pacoy v.
Cajical, G.R. No. 157472, 28 Sep. 2007)
Q: An Information for Homicide was filed in the
RTC against petitioner. Upon arraignment,
petitioner, duly assisted by counsel de parte,
pleaded not guilty to the charge of
Homicide. However, on the same day and after
the arraignment, the respondent judge issued
another Order directing the trial prosecutor to
correct and amend the Information to Murder in
view of the aggravating circumstance of
disregard of rank alleged in the Information
which public respondent registered as having
qualified the crime to Murder. Acting upon such
Order, the prosecutor entered his amendment
by crossing out the word “Homicide” and instead
wrote the word “Murder” in the caption and in
the opening paragraph of the Information. The
accusatory portion remained exactly the same
as that of the original Information for Homicide.
Petitioner argued that the amendment and/or
correction ordered by the respondent judge was
455
substantial; and under Sec. 14, Rule 110 of the
Revised Rules of Criminal Procedure, this
cannot be done, since petitioner had already
been arraigned and he would be placed in
double jeopardy. Decide the case.
A: In the present case, the change of the offense
charged from Homicide to Murder is merely a
formal amendment and not a substantial
amendment or a substitution. There was no change
in the recital of facts constituting the offense
charged or in the determination of the jurisdiction
of the court.
Sec. 14, Rule 110 of the Revised Rules on Criminal
Procedure also provides that in allowing formal
amendments in cases in which the accused has
already pleaded, it is necessary that the
amendments do not prejudice the rights of the
accused. The test of whether the rights of an accused
are prejudiced by the amendment of a complaint or
information is whether a defense under the
complaint or information, as it originally stood,
would no longer be available after the amendment
is made; and when any evidence the accused might
have would be inapplicable to the complaint or
information. Since the facts alleged in the
accusatory portion of the amended Information are
identical with those of the original Information for
Homicide, there could not be any effect on the
prosecution's theory of the case; neither would
there be any possible prejudice to the rights or
defense of petitioner. (Pacoy v. Cajigal, G.R. No.
157472, 28 Sept. 2007)
Q: Espinosa was shot by Samonte in Nueva Ecija,
causing his death. Samonte was caught in
flagrante de licto and was arrested. After the
inquest proceedings, an information for murder
was filed against him. Upon arraignment,
Samonte admitted to the killing but pleaded self-
defense. Trial on the merits ensued. The
witnesses against the accused were duly
presented through affidavits of witnesses.
According to one of the witnesses, it was alleged
that it was Corpuz who instructed Samonte to
Kill Espinosa. Thus, probable cause was found to
indict Corpus for the murder of Espinosa and an
amended information before the RTC was filed
imputing conspiracy against Corpuz together
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

with Samonte for the murder of Espinosa. The upgrades it to a higher crime, the prosecutor, with
charge against Corpuz was however dismissed. leave of court, may amend the information to allege
Subsequently, the Regional Trial Court after such supervening fact and upgrade the crime
personally examining the amended information charged to the higher crime brought about by such
and its supporting documents found probable supervening fact.
cause and granted the amended information
issuing the warrant of arrest against Corpus and SUBSTITUTION
denying the motion to defer/suspend
arraignment and further proceedings. Thus, a
When substitution is proper
direct recourse to this Court via a petition for
certiorari under Rule 65. Did the trial court
If it appears any time before judgment that a
correctly admit the Amended Information in
mistake has been made in charging the proper
clear defiance of law and jurisprudence, which
offense, the court shall dismiss the original
proscribes substantial amendment of
complaint or information upon the filing of a new
information prejudicial to the right of the
one charging the proper offense, provided the
accused?
accused shall not be placed in double jeopardy. (Sec.
14, Rule 110, ROC, as amended)
A: NO. An allegation of conspiracy to add a new
accused without changing the prosecution's theory
Limitations on substitution (2002 BAR)
that the accused willfully shot the victim is merely a
formal amendment. However, the rule provides that
1. No judgment has yet been rendered;
only formal amendments not prejudicial to the
2. The accused cannot be convicted of the offense
rights of the accused are allowed after plea. The test
charged or of any other offense necessarily
of whether an accused is prejudiced by an
included therein; and
amendment is to determine whether a defense
3. The accused would not be placed in double
under the original information will still be available
jeopardy. (Herrera, 2007)
even after the amendment is made and if any
evidence that an accused might have would remain
Effect of a substitution
applicable even in the amended information. It is
undisputed that upon arraignment under the
Substitution of the information entails another
original information, Samonte admitted the killing
preliminary investigation and plea to the new
but pleaded self-defense. While conspiracy is
information.
merely a formal amendment, Samonte will be
prejudiced if the amendment will be allowed after
Amendment vs. Substitution (2001, 2002 BAR)
his plea. Applying the test, his defense and
corresponding evidence will not be compatible with
AMENDMENT SUBSTITUTION
the allegation of conspiracy in the new information.
May involve either Involves substantial
Therefore, such formal amendment after plea is not
formal or substantial change from the original
allowed. (Samonte vs. Pamular, G.R. 186403, 05 Sep.
changes. charge.
2018)
Amendment before
It must be with leave of
the plea is entered
Amendment in the Information which changes court as the original
can be effected
the nature of the crime after arraignment information has to be
without leave of
dismissed.
court.
GR: The prosecutor can no longer amend the
information after arraignment as it would prejudice Substitution of the
An amendment as to
information entails
the substantial rights of the accused. form will not require
another preliminary
another preliminary
XPN: When a fact supervenes which changes the investigation and plea to
investigation and
the new information.
nature of the crime charged in the information or

456
 Criminal Procedure

retaking of plea of the 2. Where the offense is committed on board a

accused. vessel on its voyage – The criminal action may
An amended be instituted and tried in the proper court of the
information refers to first port of entry or of any municipality or
the same offense territory through which the vessel passed
charged in the during such voyage subject to the generally
original information accepted principles of international law (Sec.
or to an offense which Requires or 15(c), Rule 110, ROC, as amended);
necessarily includes presupposes that the
or is necessarily new information 3. Felonies under Art. 2 of the RPC – Shall be
included in the involves a different cognizable by the proper court where the
original charge, offense which does not criminal action was first filed (Sec. 15(d), Rule
hence substantial include or is not 110, ROC, as amended);
amendments to the necessarily included in
information after the the original charge; 4. Continuous or transitory crimes – Such
plea has been taken hence the accused offenses may be tried by the court of any
cannot be made over cannot claim double jurisdiction wherever the offender may be
the objection of the jeopardy. found, but the complainant should allege that
accused, for if the the offense was committed within the
original would be jurisdiction of the court (Herrera, 2007);
withdrawn, the
accused could invoke 5. Piracy – The venue of piracy, unlike all other
double jeopardy. crimes, has no territorial limits. It is triable
anywhere;
VENUE OF CRIMINAL ACTIONS
6. Libel – The action may be instituted at the
Venue for the institution of criminal actions election of the offended or suing party in the
municipality or city where:
GR: Subject to existing laws, criminal action shall be
instituted and tried in the court of the municipality a. The libelous article is printed and first
or territory where the offense was committed or published;
any of its essential ingredients occurred. (Sec. 15(a), b. If one of the offended parties is a private
Rule 110, ROC, as amended) individual, where said private individual
actually resides at the time of the
NOTE: Venue is a jurisdictional matter. The court commission of the offense; or
cannot exercise jurisdiction over a person charged c. If the offended party is a public official,
with an offense committed outside its limited where the latter holds office at the time of
territory. (Riano, 2019) the commission of the offense.

XPNs: 7. B.P. No. 22 cases – The criminal action shall be

1. An offense was committed on a railroad train,
in an aircraft, or in any other public or
private vehicle in the course of trip – The
criminal action may be instituted and tried in
the court of any municipality or territory where
such train, aircraft or other vehicle passed
during such trip, including the place of
departure and arrival (Sec. 15(b), Rule 110, ROC,
as amended);
filed at the place where the check was drawn,
issued, delivered, or dishonored. In case of
crossed check, the place of the depositary or the
collecting bank
8. Perjury – The criminal action may be instituted
at the place where the testimony under oath is
given or where the statement is submitted,
since both are material ingredients of the crime

457 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
committed (Union Bank vs. People, G.R. No.
192562, 28 Feb. 2012);
9. Violation of Sec. 9 of Migrant Worker and
Oversees Filipino Act of 1995 – It shall be filed
not only in RTC where the offense was
committed but it may also be filed where the
offended party actually resides at the time of
the commission of the offense. The first court to
acquire jurisdiction excludes others;
10. Article 315(2)(d) of the RPC – It may be
instituted at the place where the deceit or
damage may arise;
11. Where the Supreme Court, pursuant to its
constitutional powers orders a change of venue
or place of trial to avoid a miscarriage of justice
(Section 5(4), Article VIII, 1987 Constitution of
the Philippines);
12. Cases cognizable by Sandiganbayan – Where
the case is cognizable by the Sandiganbayan, the
jurisdiction of which depends upon the nature
of the offense and the position of the accused
the offense need not be tried in the place where
the act was committed but where the court
actually sits in Quezon City.
Q: Mike was charged with libel. The information
however failed to allege that complainant Roy
was a resident of the place over which the court
has jurisdiction. May Mike file a motion to quash
based on such defect in the Information?
A: YES. In libel cases, failure to allege in the
information that the offended party is a resident of
the place over which the court where the
information was filed has jurisdiction and the fact
that the articles were first published and printed in
said place is a substantial defect that can be a proper
ground for a motion to quash on the ground of lack
of jurisdiction. Such defect is not merely as to form
which can be properly amended. (Agustin v. De Leon,
G.R. No. 164938, 22 Aug. 2005)
458
INTERVENTION OF OFFENDED PARTY
GR: The offended party has the right to intervene by
counsel in the prosecution of the criminal action
where the civil action for the recovery of civil
liability is instituted in the criminal action pursuant
to Rule 111. (Sec. 16, Rule 110, ROC, as amended)
XPNs:
1. From the nature of the crime and the law
defining or punishing it, no civil liability arises
in favor of the offended party, e.g., sedition,
rebellion, treason (crimes against national
security);
2. The offended party waived the right to civil
indemnity;
3. The offended party had already instituted
separate action; or
4. The offended party reserved the right to
institute it separately.
Q: Gary requested the Ombudsman to
investigate the petitioner, Retired Brig. Gen.
Jose S. Ramiscal, Jr., then President of the AFP-
RSBS together with 27 other persons for
allegedly conspiring in misappropriating AFP-
RSBS funds and in defrauding the government
millions of pesos in capital gains and
documentary stamp taxes. Special Prosecutor
Joy C. Rubillar-Arao filed 24 separate
Informations with the Sandiganbayan against
the petitioner and several other accused.
Ramiscal filed an Urgent Manifestation and
Motion to Suspend Proceedings, because of the
pendency of his motion for reinvestigation with
the Office of the Ombudsman. Pending
resolution of the aforementioned motions, the
law firm of Albano & Associates filed a “Notice of
Appearance” as private prosecutors. The notice
of appearance was apparently made
conformably to the letter-request of Retired
Commodore Ismael Aparri and Retired Brig.
Gen. Pedro Navarro, who are members
Association of Generals and Flag Officers, Inc.
(AGFOI). Petitioner opposed the appearance of
the law firm of Albano & Associates as private
prosecutors, contending that the charges
brought against him were purely public crimes
which did not involve damage or injury to any
private party; thus, no civil liability had arisen.
 Criminal Procedure
Is the contention of petitioner tenable? (2015
BAR)
A: YES. The court agreed with the contention of the
petitioner that the AGFOI, and even Commodore
Aparri and Brig. Gen. Navarro, are not the offended
parties envisaged in Sec. 16, Rule 110, in relation to
Sec. 1, Rule 111 of the Revised Rules of Criminal
Procedure. Under Sec. 5, Rule 110 of the Rules, all
criminal actions covered by a complaint or
information shall be prosecuted under the direct
supervision and control of the public prosecutor.
The prosecution of offenses is a public function.
Under Sec. 16, Rule 110 of the Rules of Criminal
Procedure, the offended party may intervene in the
criminal action personally or by counsel, who will
act as private prosecutor for the protection of his
interests and in the interest of the speedy and
inexpensive administration of justice. However, the
offended party is the government, which was
allegedly deprived by the petitioner and the other
accused of the capital gains and documentary stamp
taxes, based on the actual and correct purchase
price of the property stated therein in favor of the
AFP-RSBS. The AGFOI was not involved whatsoever
in the sales subject of the crimes charged; neither
was it prejudiced by the said transactions, nor is it
entitled to the civil liability of the petitioner for said
cases. Thus, it is not the offended party in the said
cases. (Ramiscal Jr., v. Sandiganbayan, G.R. No.
140576-99, 13 Dec. 2004)
C. PROSECUTION OF CIVIL ACTIONS
(RULE 111)
Every person criminally liable for a felony is also
civilly liable. (Art. 100, RPC) The prime purpose of
the criminal action is to punish the offender in order
to deter him and others from committing the same
or similar offense, to isolate him from society,
reform and rehabilitate him or, in general, to
maintain social order. On the other hand, the sole
purpose of the civil action is for the resolution,
reparation or indemnification of the private
offended party for the damage or injury he
sustained by reason of the delictual or felonious act
459
of the accused. (Ricarze v. Court of Appeals, G.R. No.
160451, 09 Feb. 2007)
Generally, a criminal case has two aspects, the civil
and the criminal.
RULE ON IMPLIED INSTITUTION OF CIVIL
ACTION WITH CRIMINAL ACTION
GR: The institution or filing of the criminal action
includes the institution therein of the civil action for
recovery of civil liability arising from the offense
charged.
XPNs: When the offended party:
1. Waives the civil action;
2. Reserves his right to file a separate civil action;
or
3. Institutes a civil action prior to the criminal
action. (Sec. 1, Rule 111, ROC, as amended)
Reservation to file a separate civil action
Jurisprudence instructs that the reservation may
not be necessarily expressed, but may be implied,
which may be inferred not only from the acts of the
offended party, but also from acts other than those
of the latter. (Herrera, 2007)
NOTE: Failure of the court to pronounce judgment
as to the civil liability amounts to the reservation of
the right to a separate civil action. (Ibid.)
Period when reservation of the right to file civil
action shall be made
The reservation of the right to institute separately
the civil action shall be made before the prosecution
starts presenting the evidence, and under
circumstances affording the offended party a
reasonable opportunity to make the reservation.
(Sec. 1(2), Rule 111, ROC, as amended)
Effect of reserving the right to file a separate
civil action
The prescriptive period of the civil action that was
reserved shall be tolled. (Sec. 2, Rule 111, ROC, as
amended)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
Real parties in interest in the civil aspect of the
cases
The real parties in interest in the civil aspect of a
decision are the offended party and the accused.
Hence, either the offended party or the accused may
appeal the civil aspect of the judgment despite the
acquittal of the accused. The public prosecutor
generally has no interest in appealing the civil
aspect of a decision acquitting the accused. (Hun
Hyung Park v. Eun Wong Choi, G.R. No. 165496, 12
Feb. 2007)
Instances when the reservation to file a separate
civil action is NOT allowed
1. Criminal action for violation of BP 22 (Sec.
1(b), Rule 111, ROC, as amended);
2. A claim arising from an offense which is
cognizable by the Sandiganbayan (Herrera,
2007); and
3. Tax cases (Sec. 7(b)(1), R.A. No. 9282)
NOTE: Only the civil liability arising from the crime
charged (cause of action arising from delict) as a
felony is now deemed instituted. (Sarmiento, Jr. vs.
Court of Appeals, G. R. No. 122502, 27 Dec. 2002)
Q: In an action for violation of BP 22, the court
granted the accused's demurrer to evidence
filed without leave of court. However, the
accused was required to pay private
complainant the face value of the check. The
accused filed a motion for reconsideration
regarding the order to pay the face value of the
check on the ground that the demurrer to
evidence applied only to the criminal aspect of
the case. Resolve the motion for
reconsideration. (2003, 2001 BAR)
A: The motion for reconsideration should be denied.
The ground that the demurrer to evidence applied
only to the criminal aspect of the case was not
correct. Under Rule 111 of the Rules of Court, the
criminal action for violation of B.P. No. 22 shall be
deemed to include the corresponding civil action.
No reservation to file such civil action separately
shall be allowed.
460
Q: May the offended party compromise the civil
aspect of a crime?
A: YES. Provided that it must be entered before or
during the litigation and not after final judgment.
Q: Can an employer be held civilly liable for
quasi-delict in a criminal action filed against his
employee?
A: NO. The employer cannot be held civilly liable for
quasi-delict since quasi-delict is not deemed
instituted with the criminal action. If at all, the only
civil liability of the employer would be his
subsidiary liability under the RPC. Noteworthy is
the fact that the subsidiary liability established in
Arts. 102 and 103 of the RPC may be enforced in the
same criminal case by filing in said criminal action a
motion for execution against the person subsidiarily
liable. (Maniago v. CA, G.R. No. 104392, 20 Feb. 1996)
WHEN A CIVIL ACTION MAY PROCEED
INDEPENDENTLY
Instances when civil actions may proceed
independently (2005, 2010 BAR)
1. Arising from breach of contract; and
2. Independent civil actions or those based on
Arts. 32, 33, 34 and Art. 2176 of the NCC or
quasi-delict (Herrera, 2007)
The quantum of evidence required is merely
preponderance of evidence. (Sec. 3, Rule 111, ROC, as
amended)
Reservation of the right to file independent civil
action
The failure to reserve the right to file the above-
enumerated actions does not amount to a waiver to
institute a separate civil action. (Herrera, 2007)
Recovery of civil liability under Articles 32, 33, 34
and 2176 of the Civil Code may be prosecuted
separately even without reservation. (DMPI
Employees Credit Cooperative v. Velez, G.R. No.
129282, 29 Nov. 2001)
NOTE: In no case, however, may the offended party
 Criminal Procedure
recover damages twice for the same act or omission
charged in the criminal action.
Q: Tomas was criminally charged with serious
physical injuries allegedly committed against
Darvin. During the pendency of the criminal
case, Darvin filed a separate civil action for
damages based on the injuries he had sustained.
Tomas filed a motion to dismiss the separate
civil action on the ground of litis
pendentia, pointing out that when the criminal
action was filed against him, the civil action to
recover the civil liability from the offense
charged was also deemed instituted. He insisted
that the basis of the separate civil action was the
very same act that gave rise to the criminal
action. Rule on Tomas' motion to dismiss, with
brief reasons. (2017 BAR)
A: Tomas’ motion to dismiss on the ground of litis
pendentia should be denied. In cases of physical
injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be
brought by the injured party. Such civil action shall
proceed independently of the criminal action and
hence may not be dismissed on the ground of litis
pendentia. (Art. 33, Civil Code; Sec. 3, Rule 111, ROC,
as amended)
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
GR: If the civil action is instituted before the
criminal action, the pending civil action, in whatever
stage it may be found, shall be suspended until final
judgment of the criminal action has been rendered.
(Sec. 2, Rule 111, ROC, as amended)
XPNs:
1. Independent civil actions based on Arts. 32, 33,
34 and 2176 of the Civil Code;
2. Civil action presenting a prejudicial question;
and
3. Civil action is not one intended to enforce the
civil liability arising from the offense.
Consolidation of civil action and criminal action
Before judgment on the merit is rendered in the civil
action, the same may, upon motion of the offended
party, be consolidated with the criminal action in
461
the court trying the criminal action. (Sec. 2, Rule 111,
ROC, as amended)
NOTE: In cases where the consolidation is given due
course, the evidence presented and admitted in the
civil case shall be deemed automatically reproduced
in the criminal action without prejudice to
admission of additional evidence and right to cross
examination. (Sec. 2, Rule 111, ROC, as amended)
EFFECT OF DEATH OF ACCUSED OR CONVICT ON
CIVIL ACTION
If the accused died:
1. After arraignment and during the pendency
of the criminal action
GR: The civil liability of the accused based on
the crime (civil liability ex delicto) is
extinguished.
XPNs:
a. Independent civil action based on Arts. 32
33, 34 and 2176 of the Civil Code; and
b. Civil liability predicated on other sources of
obligations, i.e., law, contract, and quasi-
contract, which are subsequently
instituted.
2. Before arraignment – the offended party may
file the civil action against the estate of the
deceased. (Sec. 4, Rule 111, ROC, as amended)
3. Pending appeal
a. Civil liability arising from the crime is
extinguished
b. Civil liability predicated from another source
survives i.e., civil liability arising from law,
contracts, quasi-contract and quasi-delict.
NOTE: In nos. 1 and 3(b), the civil action may be
continued against the estate or legal representative
of the accused after proper substitution, as the case
may be. (Sec. 4, Rule 111, ROC, as amended)
Where the civil liability survives, it may be pursued
by the filing of a separate civil action unless
otherwise waived, reserved or instituted prior to
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
the institution of the criminal action. (Herrera,
2007)
Q: Democrito Paras was charged with one count
of rape. The Regional Trial Court (RTC) found
Paras guilty as charged which was affirmed by
the Court of Appeals (CA). Paras appealed the
decision of CA before the Supreme Court.
However, the Court was informed that Paras had
died at the New Bilibid Prison Hospital. Is the
civil liability of Paras extinguished together
with his criminal liability in case of death
pending appeal?
A: YES. Under Article 89, paragraph 1 of the Revised
Penal Code, as amended, the death of an accused
pending his appeal extinguishes both his criminal
and civil liability ex delicto. In this case, when Paras
died on January 24, 2013, his appeal to the Court
was still pending. The death of Paras, thus,
extinguished his criminal liability, as well as his civil
liability directly arising from and based solely on the
crime committed. (People v. Paras, G.R. No. 192912,
03 Oct. 2014)
Extinguishment of criminal liability
GR: The extinction of the penal action does not
extinguish the civil action.
XPN: When there is a finding in a final judgment in
the criminal action that the act or omission from
which the civil liability might arise did not exist.
(Sec. 2, Rule 111, ROC, as amended)
NOTE: The civil action that is extinguished refers
exclusively to civil liability arising from the crime
and does not include civil actions:
1. Based on quasi-delict;
2. Based on Arts. 32, 33 and 34 of the NCC
(independent civil actions); and
3. Civil obligation not based on the criminal
offense. (Herrera, 2007)
Effect of the acquittal of the accused on his civil
liability
1. If the acquittal is based on the ground that he
was not the author of the crime - it will
462
extinguish his civil liability which may arise
from the offense; or
2. If the acquittal is based on reasonable doubt
on the guilt of the accused - the civil liability of
the accused arising from the crime may be
proved by preponderance of evidence.
(Herrera, 2007)
NOTE: When the trial court acquits the accused
based on reasonable doubt, it could make a
pronouncement on the civil liability of the accused.
(Lontoc v. Jarantilla, G.R. No. 80194, 21 Mar. 1989)
The court may be compelled to include in the
judgment of acquittal the civil liability through a
petition for mandamus. (Maximo v. Gerochi, G.R. Nos.
L-47994-97, 24 Sep. 1986)
Instances where the acquittal of the accused
does NOT bar the continuation of the civil case
1. Acquittal based on reasonable doubt;
2. The decision contains a declaration that the
liability of the accused is not criminal but only
civil in nature;
3. The civil liability is not derived from or based
on the criminal act of which the accused is
acquitted
4. When the statute so declares (e.g., Art. 332 of
the Revised Penal Code);
5. Art. 11(4) of the Revised Penal Code; and
6. Art. 12(1-6) of the Revised Penal Code.
Q: Does a judgment in favor of the defendant in
a civil action bar a criminal action for the same
act?
A: NO. Final judgment rendered in a civil action
absolving the defendant from civil liability is not a
bar to criminal action against the defendant for the
same act or omission subject of the civil action (Sec.
5, Rule 111, ROC, as amended) unless the civil action
is a prejudicial question which involves an issue
similar or intimately related to the issue raised in
the criminal, the resolution of which determines
whether or not the criminal action may proceed.
 Criminal Procedure
PREJUDICIAL QUESTION
It is an issue involved in a civil action which is
similar or intimately related to the issue raised in a
criminal action, the resolution of which determines
whether the criminal action may proceed.
A prejudicial question generally exists in a situation
where a civil action and a criminal action are both
pending, and there exists in the former an issue that
must be pre-emptively resolved before the latter
may proceed, because howsoever the issue raised in
the civil action is resolved would be determinative
of the guilt or innocence of the accused in the
criminal case. The rationale behind the principle is
to avoid two conflicting decisions. (Reyes v. Rossi,
G.R. No. 159823, 18 Feb. 2013)
NOTE: A petition for suspension of the criminal
action based upon the pendency of a prejudicial
question may be raised during the preliminary
investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall
be filed in the same criminal action at any time
before the prosecution rests. (Sec. 6, Rule 111, ROC,
as amended)
Elements of a prejudicial question
1. The civil action must be instituted prior to the
criminal action (Sec. 7, Rule 111, ROC, as
amended);
2. The civil action involves an issue similar or
intimately related to the issue raised in the
subsequent criminal action (Ibid.); and
3. The resolution of such issue determines
whether or not the criminal action may
proceed. (Ibid.)
NOTE: For the principle of prejudicial question to
apply, it is essential that there be two cases
involved, invariably a civil case and a criminal case.
Hence, it may not be invoked when:
(a) both cases are criminal,
(b) both are civil,
(c) both are administrative,
(d) one case is administrative and the other
civil, or
463
(e) one case is administrative and the other
criminal.
Further, the law limits a prejudicial question to a
previously instituted civil action not to a subsequent
one.
The tenor of Sec. 7, likewise, presupposes that the
issue that leads to a prejudicial question is one that
arises in the civil case and not in the criminal case.
The former needs to be resolved first before it is
determined whether or not the criminal case should
proceed or whether or not there should be, in the
criminal case, a judgment of acquittal or conviction.
(Riano, 2019)
Q: Rafael Consing together with his mother
obtained several loans from Unicapital Inc,
secured by a real estate mortgage. However, it
appears that the former are not the true owners
of the property and the Transfer Certificate Title
presented is spurious. Consing then filed a
petition for injunctive relief in the RTC of Pasig
seeking to enjoin Unicapital to proceed against
him on the ground that he merely acted as agent
of his mother. Unicapital, on the other hand,
initiated a criminal complaint for estafa through
falsification of public document. Unicapital also
filed a civil case in RTC of Makati for recovery of
sum of money and damages, with application for
a writ of preliminary attachment. Consing
moved to defer his arraignment in the Makati
criminal case on the ground of the existence of a
prejudicial question due to the pendency of the
Pasig and Makati civil case. Is there a prejudicial
question?
A: NONE. An independent civil action based on
fraud initiated by the defrauded party does not raise
a prejudicial question to stop the proceedings in a
pending criminal prosecution of the defendant for
estafa through falsification. This is because the
result of the independent civil action, the civil case
for damages and attachment, is irrelevant to the
issue of guilt or innocence of the accused. As far as
the Pasig civil case is concerned, the issue of
Consing’s being a mere agent of his mother, poses
no prejudicial question, and even if respondent is
declared merely an agent of his mother, he cannot
be adjudged free from criminal liability. Hence, the
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determination of the issue involved in the civil case
for injunctive relief is irrelevant to the guilt or
innocence of the respondent in the criminal case for
estafa through falsification of public document.
(Consing v. People, G.R. No. 161075, 15 July 2013)
Q: Solomon and Faith got married in 2005. In
2010, Solomon contracted a second marriage
with Hope. When Faith found out about the
second marriage of Solomon and Hope, she filed
a criminal case for bigamy before the RTC of
Manila sometime in 2011. Meanwhile, Solomon
filed a petition for declaration of nullity of his
first marriage with Faith in 2012, while the case
for bigamy before the RTC of Manila is ongoing.
Subsequently, Solomon filed a motion to
suspend the proceedings in the bigamy case on
the ground of prejudicial question. He asserts
that the proceedings in the criminal case should
be suspended because if his first marriage with
Faith will be declared null and void, it will have
subsequent effect of exculpating him from the
crime of bigamy. Decide. (2014 BAR)
A: The motion filed by Solomon should be denied.
The elements of a prejudicial question are:
(a) the previously instituted civil action
involves an issue similar or intimately related
to the issue raised in the subsequent criminal
action, and
(b) the resolution of such issue determines
whether or not the criminal action may
proceed.
Thus, in order for a prejudicial question to exist, the
civil action must precede the filing of the criminal
action. (Dreamwork Construction, Inc. v. Janiola, G.R.
No. 184861, 30 June 2009) Since the criminal case for
bigamy was filed ahead of the civil action for
declaration of nullity of marriage, the principle of
prejudicial action cannot apply.
Moreover, it has been settled that a pending case for
declaration of nullity of marriage does not raise a
prejudicial question to a charge of bigamy because a
person, by having contracted a second marriage
without first awaiting a judicial declaration of
nullity of his marriage, has already committed
464
bigamy. (People v. Odtuhan, G.R. No. 191566, 17 July
2013)
Q: Is the resolution of the action for annulment
of marriage a prejudicial question that warrants
the suspension of the criminal case for
frustrated parricide?
A: NO. There is a prejudicial question when a civil
action and a criminal action are both pending, and
there exists in the civil action an issue which must
be preemptively resolved before the criminal action
may proceed because the issue raised in the civil
action is resolved would be determinative of the
guilt or innocence of the accused in the criminal
case.
The issue in the annulment of marriage is not
similar or intimately related to the issue in the
criminal case for parricide. Further, the
relationship between the offender and the victim is
not determinative of the guilt or innocence of the
accused. Even if the marriage between petitioner
and respondent is annulled, petitioner could still be
held criminally liable since at the time of the
commission of the alleged crime, he was still
married to respondent. (Pimentel v. Pimentel, G.R.
No. 172060, 13 Sep. 2010)
Q: Atty. Alfred obtained a loan from Bing
covered by several postdated checks. The
checks were dishonored by the bank when Bing
tried to encash them. Bing filed a case for
violation of BP 22 before the MTC. Bing also filed
a disbarment case. Atty. Alfred argues that the
criminal prosecution constitutes a prejudicial
question in the administrative proceedings for
his disbarment. Is Atty. Alfred correct?
A: NO. Administrative cases against lawyers are sui
generis. They are distinct from and may proceed
independently of criminal cases. The burden of
proof in a criminal case is guilt beyond reasonable
doubt while in an administrative case only
substantial evidence is required. Thus, a criminal
prosecution will not constitute a prejudicial
question even if the same facts and circumstances
are attendant in the administrative proceedings. (Yu
v. Palaña, A.C. No. 7747, 14 July 2008)
 Criminal Procedure
Action in the event there exist a prejudicial
question
A petition for the suspension of the criminal action
based upon the pendency of a prejudicial question
in a civil case. (Sec. 6, Rule 111, ROC, as amended) It
cannot be done motu propio by the court. (Yap v.
Paras, G.R. No. 101236, 30 Jan. 1992)
Suspension of criminal case does not warrant its
dismissal, but only authorizes its suspension
pending the final determination of the issues in the
civil case. (Riano, 2019)
The petition to suspend can be filed only in the
criminal action, the determination of the pendency
of a prejudicial question should be made at the first
instance in the criminal action, and not before the
Supreme Court in an appeal from the civil action.
(IBP v. Atienza, G.R. No. 175241, 24 Feb. 2010)
Where to file the petition for suspension
1. The Office of the Prosecutor; or
2. The court where the criminal action has been
filed for trial at any time before the prosecution
rests. (Sec. 6, Rule 111, ROC, as amended)
Q: Sps. Rafael and Aurora Granda entered into
three sale transactions with Uy siblings and
Lastrilla, covering several parcels of land. After
the execution of the Deeds of Sale, the first and
second Deeds of Sale were annotated on the
respective TCTs. As a result, these TCTs were
cancelled and new TCTs were issued in the
names of the respective vendees. Sps. Granda
eventually died. After Aurora’s death, Rafaelo
Granda, the grandson of Sps. Granda, filed a
complaint for falsification which was allegedly
made by Lastrilla, Camenforte, and Uy siblings.
While the criminal cases against the Lastrillas
and Uys were pending, Benjamin Granda filed a
complaint for Nullification of Title and Deeds
with damages against Lastrilla and Uy siblings.
Will the criminal case prosper?
A: NO. The action is already barred by operation of
the doctrine of prejudicial question. Prejudicial
question is understood in law to be that which must
precede the criminal action that which requires a
465
decision before a final judgment is rendered in the
principal action with which said question is closely
connected.
Given the foregoing, the Court finds that although
the facts of this case involve a criminal action which
preceded the institution of civil action, a prejudicial
question nevertheless exists. Sec. 7 of Rule 111 of
the Revised Rules on Criminal Procedure is more
directory than mandatory and must give way to the
chief litmus test of whether the actions involve
prejudicial issues and facts that are intimately
related so a resolution in one concludes that
resolution in the other.
In sum, prejudicial factual finding of genuineness of
Sps. Granda’s signatures on the questioned deeds
must operate to bar the prosecution of respondents
for falsification of the same signatures. (People v.
Camenforte and Lastrilla, G.R. No. 220916, 14 June
2021, J. Caguioa)
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION
Filing fees shall be paid when damages are being
claimed by the offended party.
1. Actual damages
GR: No filing fee is required.
XPN: B.P. 22 cases, wherein the amount of the
filing fees shall be equivalent to the amount of
the check involved.
2. Liquidated, moral, nominal, temperate or
exemplary damages – The filing fee shall be
based on the amount alleged in the complaint or
information. (Sec. 1(4), Rule 111, ROC, as
amended)
NOTE: If the amount of the damages claimed is
not specifically alleged in the complaint or
information, but the court subsequently awards
such, the filing fees based on the amount
awarded shall constitute a first lien on the
judgment. (Sec. 1(3), Rule 111, ROC, as amended)
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Probable cause as determined by the Prosecutor

D. PRELIMINARY INVESTIGATION vs. Probable cause as determined by the Judge

PROBABLE CAUSE PROBABLE CAUSE AS

AS DETERMINED BY DETERMINED BY THE
1. EXECUTIVE v. JUDICIAL DETERMINATION OF
THE PROSECUTOR JUDGE
PROBABLE CAUSE
Purpose
For the issuance of
There are two kinds of determination of probable For the filing of an
cause: executive and judicial. warrant to determine
information in court
whether there is a
by determining
1. The executive determination of probable necessity for placing the
whether there is
accused under
cause is one made during preliminary reasonable ground to
immediate custody in
investigation. It is a function that properly believe that the
pertains to the public prosecutor who is given a order not to frustrate
accused is guilty of
the ends of justice.
broad discretion to determine whether the offense charged
(P/Supt. Cruz v. Judge
probable cause exists and to charge those and should be held for
whom he believes to have committed the crime Areola, A.M. No. RTJ-01-
trial.
1642, 06 Mar. 2002)
as defined by law and thus should be held for
trial. Function
Executive function Judicial function
2. The judicial determination of probable cause Basis
is one made by the judge to ascertain whether a The report and the
warrant of arrest should be issued against the supporting documents
accused. The judge must satisfy himself that submitted by the fiscal
Reasonable ground to
based on the evidence submitted, there is during the preliminary
believe that a crime
necessity for placing the accused under custody investigation and the
has been committed.
in order not to frustrate the ends of justice. If supporting affidavits
the judge finds no probable cause, the judge that may be required to
cannot be forced to issue the arrest warrant. be submitted.
(Reyes v. The Honorable Ombudsman, G.R. Nos.
212593-94, 15 Mar. 2016) NOTE: If the complaint or information is filed with
the Municipal Trial Court or Municipal Circuit Trial
If upon evaluation of the evidence, the prosecutor Court for an offense not requiring a preliminary
finds sufficient basis to find probable cause, he or investigation nor covered by the Rule on Summary
she shall cause the filing of the information with the Procedure, the judge is required to determine
court. Once the information has been filed, the judge probable cause not only for the issuance of a
shall then “personally evaluate the resolution of the warrant of arrest, but also for the issuance of a
prosecutor and its supporting evidence” to commitment order if the accused had already been
determine whether there is probable cause to issue arrested and hold him for trial. (Sec. 8(b), A.M. No.
a warrant of arrest. The difference is clear: the 05-8-26-SC, effective 30 Aug. 2005)
executive determination of probable cause
concerns itself with whether there is enough RESOLUTION OF INVESTIGATING PROSECUTOR
evidence to support an Information being filed. The
judicial determination of probable cause, on the Initial steps in Preliminary Investigation
other hand, determines whether a warrant of arrest
should be issued. (Mendoza v. People, G.R. No. It is the filing of the complaint with the investigating
197293, 21 Apr. 2014) prosecutor that starts the preliminary investigation
process. (Riano, 2019)

466
 Criminal Procedure
Documents accompanying the complaint
1. The affidavits of the complainant;
2. The affidavits of his witnesses; and
3. Other supporting documents that would
establish probable cause. (Sec. 3(a), Rule 112,
ROC, as amended)
NOTE: The affidavits of the complainant shall be
subscribed and sworn to before:
1. Any prosecutor;
2. Any government official authorized to
administer oaths; or
3. In the absence or unavailability of the above
mentioned, a notary public.
The officer or notary public before whom the
affidavits were subscribed and sworn to must
certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed
and understood their affidavits. (Sec. 3(a), Rule 112,
ROC, as amended)
Duty of the Investigating Officer
From the filing of the complaint, the investigating
officer has 10 days within which to decide on which
of the following options to take:
1. To dismiss the complaint if he finds no ground
to conduct the investigation; or
2. To issue a subpoena in case he finds the need to
continue with the investigation, in which case
the subpoena shall be accompanied with the
complaint and its supporting affidavits and
documents. (Sec. 3(b), Rule 112, ROC, as
amended)
NOTE: Within 10 days from receipt of subpoena, the
respondent is required to submit his counter-
affidavit, the affidavits of his witnesses and other
supporting documents relied upon for his defense.
(Sec. 3(c), Rule 112, ROC, as amended)
Despite the subpoena, if the respondent does not
submit his counter-affidavit within the ten-day
period granted him, the investigating officer shall
resolve the complaint based on the evidence
presented by the complainant. The same rule shall
467
apply in case the respondent cannot be subpoenaed.
(Sec. 3(d), Rule 112, ROC, as amended)
Filing of motion to dismiss during preliminary
investigation
GR: In preliminary investigation, a motion to
dismiss is not an accepted pleading for it merely
alleges the innocence of the respondent without
rebutting or repudiating the evidence of the
complainant.
XPN: When it contains countervailing evidence or
defenses and evidence which rebuts or repudiates
the charges; in which case it will be treated as a
counter-affidavit.
NOTE: If one files a motion to dismiss and he only
asserts that the case should be dismissed, then the
motion to dismiss is a mere scrap of paper. If the
respondent does not later on submit a counter-
affidavit, it will constitute a waiver on his part to file
a counter-affidavit.
Clarificatory Hearing
Clarificatory hearing is not mandatory. A hearing
may be set by the investigating officer only when
there are facts and issues to be clarified either from
a party or a witness, which shall be conducted
within 10 days from the submission of the counter-
affidavit, other affidavits and documents filed by the
respondent.
NOTE: A waiver, whether express or implied, must
be made in clear and unequivocal manner. Mere
failure of the accused and his counsel to appear
before the prosecutor for the clarificatory hearing
or when summoned when such right was vigorously
invoked at the start of the proceeding, is not a
waiver to the right to preliminary investigation.
(Larranga v. CA, G.R. No. 130644, 13 Mar. 1998)
NOTE: The parties do not have the right to examine
or cross-examine each other or the witnesses. If
they have questions to ask, they shall submit the
questions to the investigating officer who shall ask
the questions. (Sec. 3(e), Rule 112, ROC, as amended)
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Records supporting the Information or
Complaint
An information or complaint filed in court shall be
supported by the following:
1. Affidavits and counter-affidavits of the parties
and their witnesses; and
2. Other supporting evidence and the resolution
on the case. (Sec. 7(a), Rule 112, ROC, as
amended)
Record of the preliminary investigation
GR: Record of the preliminary investigation shall
not form part of the case.
XPNs:
1. When the court considers it necessary in the
resolution of the case or any incident therein; or
2. When it is introduced as evidence in the case by
the requesting party. (Sec. 7(b), Rule 112)
Resolution of the Investigating Prosecutor
Within 10 days from the termination of the
investigation, the investigating prosecutor shall
determine whether or not there is sufficient ground
to hold the respondent for trial. (Sec. 3(f), Rule 112,
ROC, as amended)
Afterwards, if the investigating officer finds cause to
hold the respondent for trial, he shall prepare the
resolution and information. Otherwise, he shall
recommend the dismissal of the complaint. (Sec. 4,
Rule 112, ROC, as amended)
The information shall contain a certification by the
investigating officer under oath in which he shall
certify the following:
1. That he, or as shown by the record, an
authorized officer, has personally examined the
complainant and his witnesses;
2. That there is reasonable ground to believe that
a crime has been committed and that the
accused is probably guilty thereof;
3. That the accused was informed of the complaint
and of the evidence submitted against him; and
468
4. That he was given an opportunity to submit
controverting evidence. (Sec. 4, Rule 112, ROC,
as amended)
Within 5 days from the issuance of his resolution,
the investigating prosecutor shall forward the
record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy by the Sandiganbayan in
the exercise of its original jurisdiction. They shall act
on the resolution within 10 days from their receipt
thereof and shall immediately inform the parties of
such action. (Sec. 4, Rule 112, ROC, as amended)
NOTE: The resolution of the investigating
prosecutor is merely recommendatory.
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy. (Sec. 4,
Rule 112, ROC, as amended)
Q: Sometime in 2006, based on an alleged
finding of the Commission on Audit of
overpricing and irregularities in the
procurement process, the Ombudsman
launched Task Force Abono (TFA) to specifically
conduct a fact-finding investigation into the
purported "fertilizer fund scam." A Complaint
dated December 27, 2012, was thereafter filed
by the TFA on June 21, 2013 against Perez,
Catamco and the other public officials involved
in the transaction. After more than two (2)
years, or on July 17, 2017, the Ombudsman
issued its Resolution finding probable cause to
indict Perez, Catamco and their co-respondents,
including Mayor Rama, for one (1) count of
violation of Section 3(e) of Republic Act (R.A.)
No. 3019 and two (2) counts of Malversation
under Article 217 of the Revised Penal Code
(RPC). The corresponding information were
filed before the Sandiganbayan. Before
arraignment, Catamco and Perez each moved for
the dismissal of the case against them claiming
that the Ombudsman's inordinate delay of more
than twelve (12) years, from the conduct of its
investigation in 2006 until the filing of the
Information in court, violated their
 Criminal Procedure
constitutional right to speedy disposition of
cases. Is the contention of Catamco and Perez
correct?
A: YES. In Cagang v. Sandiganbayan, the Court laid
down the guidelines in resolving issues concerning
the right to speedy disposition of cases. The
Ombudsman failed to observe the period prescribed
under its rules.
From the date the last counter-affidavit was filed,
the case remained stagnant for two (2) years and
two (2) months, until the investigating officer issued
a Resolution, on July 17, 2017, finding probable
cause against petitioners and their co-respondents.
Moreover, to justify the delay in the preliminary
investigation, the Ombudsman merely claimed that
it needed time to meticulously evaluate and review
numerous records and relied heavily on this Court's
recognition in a previous case of the steady stream
of cases handled by the Ombudsman. However,
while this Court has indeed recognized the reality
and inevitability of institutional delay, it does not, by
itself, justify the Ombudsman's failure to comply
with the periods provided under the rules. No less
than the Constitution mandates the Ombudsman to
act promptly on complaints filed before it, which
duty was further reinforced by R.A. No. 6670 or
"The Ombudsman Act of 1989," to promote efficient
government service to the people. Thus, absent any
proof of how the steady stream of cases or heavy
workload affected the resolution of a case, the
Ombudsman cannot repeatedly hide behind this
generic excuse.
Verily, by simply following the guidelines of Cagang,
the Court is left with no choice but to consider the
prosecution's failure to prove sufficient justification
for the delay. And, in view of petitioners’ timely
invocation of their right to speedy disposition of
cases, it is quite evident that the Sandiganbayan
committed grave abuse of discretion in denying the
motions to dismiss the case. (Catamco v.
Sandiganbayan Sixth Division, et. al, GR. Nos. 243560-
62 & 243261-63, 28 July 2020, J. Caguioa)
469
Effect when there is no prior written authority
or approval of the provincial, or city prosecutor
or the Ombudsman or his deputy
Complaints or information filed before the courts
without the prior written authority or approval of
the foregoing authorized officers renders the same
defective and, therefore, subject to quashal
pursuant to Section 3(d), Rule 117 of the Revised
Rules on Criminal Procedure. (Quisay v. People, G.R.
No. 216920, 13 Jan. 2016)
The filing of an Information by an officer without the
requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by
silence, waiver, acquiescence, or even by express
consent. Hence, such ground may be raised at any
stage of the proceedings. (Ibid.)
Q: The Office of the City Prosecutor issued a
Resolution finding probable cause against the
petitioner for the violation of R.A. No. 7610.
Later on, an Information was filed before the
RTC charging the petitioner of the said crime.
The Resolution was penned by an Assistant City
Prosecutor approved by a Senior Assistant City
Prosecutor. The Information was penned by ACP
De La Cruz, but without approval from any
higher authority. However, there was a
Certification claiming that ACP De La Cruz has
prior written authority or approval from the
City Prosecutor in filing the said Information.
The petitioner moved for the quashal of the
Information against her on the ground of lack of
authority of the person who filed the same
before the RTC. The RTC denied the motion to
quash for lack of merit. Is the RTC correct in
denying the motion to quash for lack of merit?
A: NO. Section 4, Rule 112 of the Revised Rules on
Criminal Procedure states that the filing of a
complaint or information requires a prior written
authority or approval of the named officers therein
before a complaint or information may be filed
before the courts. As a general rule, complaints or
informations filed before the courts without the
prior written authority or approval of the foregoing
authorized officers renders the same defective and,
therefore, subject to quashal pursuant to Section 3
(d), Rule 117 of the same Rules. Thus, the Resolution
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finding probable cause to indict petitioner of the
crime charged, was validly made as it bore the
approval of one of the designated review
prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein. However, the
same could not be said of the Information filed
before the RTC, as there was no showing that it was
approved by either the City Prosecutor of Makati or
any of the OCP-Makati’s division chiefs or review
prosecutors. (Quisay v. People, G.R. No. 216920, 13
Jan. 2016)
Different findings between the investigating
prosecutor and superior prosecutor
When the investigating prosecutor recommends the
dismissal of the complaint, but his findings are
reversed by the “Superior” Prosecutor or
Ombudsman on the ground that probable cause
exists, the “superior” prosecutor or Ombudsman
may, by himself, file the information against the
respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting
another preliminary investigation. (Sec. 4, Rule 112,
ROC, as amended)
REVIEW
Remedy of the aggrieved party from the
resolution of the Investigating Prosecutor as
approved by his superior
The aggrieved party is not precluded from filing a
motion for reconsideration from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed. (Sec. 3, 2000 NPS
Rule on Appeal, DOJ Department Circular No. 70)
An aggrieved party may appeal by filing a verified
petition for review with the Secretary of Justice and
by furnishing copies thereof to the adverse party
and prosecution office issuing the appealed
resolution. The appeal shall be taken within 15 days
from receipt of the resolution or of the denial of the
motion for reconsideration or reinvestigation if one
has been filed within 15 days from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed. Unless the
Secretary directs otherwise, the appeal shall not
stay the filing of the corresponding information in
470
court on the basis of the finding of probable cause in
the assailed decision.
The decision of the prosecutor may be reviewed by
the courts when he acts with grave abuse of
discretion amounting to lack of jurisdiction.
(Herrera, 2007)
Q: May a prosecutor be compelled by mandamus
to file a complaint regarding a complaint filed
which he previously dismissed for lack of merit
after preliminary investigation? (1999 BAR)
A: NO. This is because the determination of
probable cause is within the discretion of the
prosecutor. The remedy is an appeal to the
Secretary of Justice.
Reversal or modification of the Resolution of the
Provincial or City Prosecutor
The Secretary of Justice may motu proprio reverse
or modify the resolution of provincial or city
prosecutor or chief state prosecutor. The Secretary
of Justice may review 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, 06
Apr. 2005)
The Secretary of Justice exercises the power of
direct control and supervision over prosecutors,
and may thus affirm, nullify, reverse or modify their
rulings. In reviewing resolutions of state
prosecutors, the Secretary of Justice is not
precluded from considering errors, although
unassigned, for the purpose of determining whether
there is probable cause for filing cases in court.
NOTE: If 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. (Sec. 4, Rule 112, ROC, as
amended)
 Criminal Procedure
Once a complaint or information is filed in Court any
disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution
of criminal cases even while the case is already in
Court, he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what
to do with the case before it. The determination of
the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not
matter if this is done before or after the arraignment
of the accused or that the motion was filed after a
reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the
investigation. (Crespo v. Mogul, G.R. No. L-53373, 30
June 1987)
Remedy of an aggrieved party against a
Resolution of the Secretary of Justice
The party aggrieved by the Secretary of Justice may
file a Motion for Reconsideration within a non-
extendible period of 10 days from receipt of the
resolution on appeal.
The resolution of the Secretary of Justice is
appealable administratively before the Office of the
President, and the decision of the latter may be
appealed before the CA pursuant to Rule 43. (De
Ocampo v. Secretary of Justice, G.R. No. 147932, 25
Jan. 2006)
However, if there is grave abuse of discretion
resulting to lack or excess of jurisdiction, a petition
for certiorari under Rule 65 may be filed. (Ching v.
Secretary of Justice, G.R. No. 164317, 06 Feb. 2006)
NOTE: Memorandum Circular No. 58 dated 30 Jan.
1993 provides that appeals from or petition for
review of decisions/orders/resolutions of the
Secretary of Justice on preliminary investigations of
criminal cases are entertained by the Office of the
President under the following jurisdictional facts:
1. The offense involved is punishable by reclusion
perpetua to death;
471
2. New and material issues are raised which were
not previously presented before the
Department of Justice and were not ruled upon;
3. The prescription of the offense is not due to
lapse within six (6) months from notice of the
questioned resolution/order/decision; and
4. The appeal or petition for review is filed within
thirty (30) days from notice.
Henceforth, if an appeal or petition for review does
not clearly fall within the jurisdiction of the Office of
the President, as set forth in the immediately
preceding paragraph, it shall be dismissed outright
and no order shall be issued requiring the payment
of the appeal fee, the submission of appeal
brief/memorandum or the elevation of the records
to the Office of the President from the Department
of Justice.
Remedy of an aggrieved party against the
Resolution of the Ombudsman
The resolution of the Ombudsman in administrative
cases may be subject of petition for review via Rule
43 before the CA (Sec. 7, Rule III of the Rules of
Procedure of the Office of the Ombudsman) or a
special civil action for certiorari via Rule 65 before
the SC in criminal cases. (Mendoza-Arce v.
Ombudsman, G.R. No. 149148, 05 Apr. 2002)
NOTE: Consistent with its independence as
protector of the people and as prosecutor to ensure
accountability of public officers, the Ombudsman is
not and should not be limited in its review by the
action or inaction of complainants. On the other
hand, it is clear from Section 15 of R.A. No. 6770 that
the Ombudsman may motu proprio conduct a
reinvestigation to assure that the guilty do not go
unpunished. (Roxas v. Vasquez, G.R. No. 114944, 19
June 2001) The Ombudsman is not precluded from
ordering another review of a complaint, for he or
she may revoke, repeal or abrogate the acts or
previous rulings of a predecessor in office. (Alvarez
v. People, G.R. No. 192591, 29 June 2011)
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Effect of the filing of a Petition for Review before
the DOJ if the Information was already filed in
court
Should the information be already filed in court but
the accused filed a petition for review of the findings
of the prosecutors with the DOJ, the court is bound
to suspend the arraignment of the accused for a
period not exceeding 60 days. (Sec. 11, Rule 116,
ROC, as amended)
NOTE: The suspension shall be made upon motion
by the proper party. (Ibid.)
Q: Does the SC and CA have the power to review
the findings of prosecutors in preliminary
investigation?
A: YES. The SC and CA have the power to review the
findings of prosecutors in preliminary
investigations. Courts should never shirk from
exercising their power, when the circumstances
warrant, to determine whether the prosecutor’s
findings are supported by the facts, or by the law. In
so doing, courts do not act as prosecutors but as
organs of the judiciary, exercising their mandate
under the Constitution, relevant statutes, and
remedial rules to settle cases and controversies. The
exercise of this Court’s review power ensures that,
on the one hand, probable criminals are prosecuted,
and, on the other hand, the innocent are spared
from baseless prosecution. (Social Security System v.
DOJ, G.R. No. 158131, 08 Aug. 2007)
NOTE: Even the RTCs can also make its own
determination, upon proper motion, whether
probable cause exists to hold the accused for trial.
(Ladlad v. Velasco, G.R. Nos. 172070-72, 01 June
2007)
2. RULE 112
NATURE OF RIGHT
Preliminary Investigation
It is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-
founded belief that a crime has been committed and
the respondent is probably guilty thereof and
472
should be held for trial. (Sec. 1, Rule 112, ROC, as
amended)
It is merely inquisitorial and a means of determining
the persons who may be reasonably charged with a
crime. (Herrera, 2007) It is not, therefore, a trial and
so does not involve the examination of witnesses by
way of direct or cross-examinations.
Its purpose is not to declare the respondent guilty
beyond reasonable doubt, but only to determine
first, whether or not a crime has been committed
and second, whether or not the respondent is
“probably guilty” of the crime. The question to be
answered in a preliminary investigation is not: "Is
the respondent guilty or is he innocent?” More
accurately, the question sought to be answered is:
“Is the respondent probably guilty and therefore,
should go to trial?” (Riano, 2019; Ong v.
Sandiganbayan, G.R. No. 126858, 16 Sep. 2005)
NOTE: It is not part of the trial of the criminal action
in court. Nor is its record part of the records of the
case in the RTC. The dismissal of the case by the
investigator will not bar the filing of another
complaint for the same offense, but if re-filed, the
accused is entitled to another preliminary
investigation. (US v. Marfori, G.R. No. 10905, 09 Dec.
1916)
Specific Purposes of Preliminary Investigation
It is established by jurisprudence that the following
are specific purposes of preliminary investigation:
1. To inquire concerning the commission of a
crime and the connection of the accused with it,
in order that he may be informed of the nature
and character of the crime charged against him,
and if there is probable cause for believing him
guilty, that the state shall take the necessary
steps to bring him to trial;
2. To preserve the evidence and keep the
witnesses within the control of the state; and
3. To determine the amount of bail, if the offense
is bailable; (Callo-Claridad v. Esteban, G.R. No.
191567, 20 Mar. 2013)
 Criminal Procedure
Right to a Preliminary Investigation
The holding of a preliminary investigation is not
required by the Constitution. The right thereto is of
a statutory character and may be invoked only when
specifically created by statute. (Marinas v. Siochi,
G.R. No. L-25707, 14 May 1981)
While that right is statutory rather than
constitutional in its fundament, since it has in fact
been established by statute, it is a component part
of due process in criminal justice. The right to have
a preliminary investigation conducted before being
bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process
painful to anyone save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to
deprive him the full measure of his right to due
process. (Go v. Court of Appeals, G.R. No. 101837 11
Feb. 1992)
Waiver of the right to preliminary investigation
It shall be deemed waived by:
1. Express waiver or by silence (Herrera, 2007);
2. Failure to invoke it during arraignment (People
v. De Asis, G.R. No. 105581, 07 Dec. 1993);
3. Consenting to be arraigned and entering a plea
of not guilty without invoking the right to
preliminary investigation (People v. Bulosan,
G.R. No. 58404, 15 Apr. 1988); or
4. Failure to request for it within 5 days from the
time he learns of the filing of the complaint or
information, in those instances where the
accused is lawfully arrested without a warrant.
(Sec. 6, Rule 112, ROC, as amended)
NOTE: The waiver, whether express or implied,
must be in a clear and unequivocal manner.
(Herrera, 2007)
473
When preliminary investigation is required
GR: Before the filing of a complaint or information
for an offense where the penalty prescribed by law
is imprisonment of at least 4 years, 2 months and 1
day without regard to the imposable fine. (Sec. 1,
Rule 112, ROC, as amended)
XPNs:
1. Where an information or complaint is filed
pursuant to Sec. 7, Rule 112 of the Rules of
Court, i.e., the complaint or information is filed
directly in court (Ibid.); or
2. For cases requiring preliminary investigation,
when a person is lawfully arrested without a
warrant provided that inquest was made in
accordance with Rule 112. (Sec. 6, Rule 112,
ROC, as amended)
Rights of the respondent in a preliminary
investigation
Preliminary investigation is not part of trial and is
conducted only to establish whether probable cause
exists. Consequently, it is not subject to the same
due process requirements that must be present
during trial. Thus, a person's rights during
preliminary investigation are limited to those
provided by procedural law. (Reyes v. Office of the
Ombudsman, G.R. No. 208243, 05 June 2017)
1. To examine the evidence submitted by the
complainant at his own expense;
NOTE: Object evidence need not to be
furnished, but is available for examination,
copying or photographing at the expense of the
requesting party. (Sec. 3(b), Rule 112, ROC)
While a respondent under preliminary
investigation has the right to examine the
evidence submitted by the complainant, he or
she does not have a similar right over the
evidence submitted by his or her co-
respondents. (Reyes v. Office of the Ombudsman,
Ibid.)
2. To submit a counter affidavit (Sec. 3(c), Rule
112, ROC, as amended); and
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NOTE: The prosecutor is not mandated to
require the submission of counter-affidavits.
Probable cause may then be determined on the
basis alone of the affidavits and supporting
documents of the complainant, without
infringing on the constitutional rights of the
petitioners. (Borlongan, Jr. v. Pena, G.R. No.
143591, 23 Nov. 2007)
3. To be present during the clarificatory hearing.
(Sec. 3(e), Rule 112, ROC, as amended);
NOTE: While the parties can be present at the
hearing, they are without the right to examine
or cross-examine. They may, however, submit
to the investigating officer questions which may
be asked to the party or witness concerned.
PURPOSES OF PRELIMINARY INVESTIGATION
1. For the investigating prosecutor to determine if
the crime has been committed;
2. To inquire concerning the commission of a
crime and the connection of the accused with it,
in order that he may be informed of the nature
and character of the crime charged against him,
and if there is probable cause for believing him
guilty, that the state shall take the necessary
steps to bring him to trial; (Callo-Claridad v.
Esteban, G.R. No. 191567, 20 Mar. 2013)
3. To protect the accused from inconvenience,
expense and burden of defending himself in a
formal trial unless probability of his guilt is first
ascertained by a competent officer;
4. To secure the innocent against hasty, malicious,
and oppressive prosecution and to protect him
from an open and public accusation of a crime
and anxiety of a public trial;
5. To preserve the evidence and keep the
witnesses within the control of the state; (Ibid.)
6. To protect the State from having to conduct
useless and expensive trial; and
7. To determine the amount of bail, if the offense
is bailable. (Herrera, 2007)
474
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE
Probable cause in preliminary investigation
It is the existence of such facts and circumstances as
would excite belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor,
that the person charged was prosecuted. A finding
of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt. (Sps.
Balangauan v. CA, G.R. No. 174350, 13 Aug. 2008)
NOTE: The evidence needed is not based on clear
and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing
absolute certainty of guilt. It needs only to rest on
evidence showing that more likely than not a crime
has been committed by the accused. (People vs.
Borje, G.R. No. 170046, 10 Dec. 2014)
Instances when probable cause needs to be
established
It is not only in preliminary investigation that
probable cause needs to be determined. There are
other instances provided under the Rules where
probable cause needs to be established:
1. When issuing a warrant of arrest or a
commitment order (Secs. 5 and 8, Rule 112, ROC,
as amended);
2. A peace officer or a private person making a
warrantless arrest when an offense has just
been committed, and he has probable cause to
believe based on personal knowledge of facts or
circumstances that the person to be arrested
has committed it (Sec. 5(b), Rule 113, ROC, as
amended); and
3. To determine whether a search warrant shall be
issued. (Sec. 4, Rule 126, ROC, as amended)
Persons authorized to conduct a preliminary
investigation
1. Provincial or City prosecutors and their
assistants; (Sec. 2(a), Rule 112, ROC, as
amended)
 Criminal Procedure
2. National and Regional State Prosecutors; (Sec.
2(b), Rule 112, ROC, as amended)
3. Other officers as may be authorized by law, such
as:
a. Ombudsman - for any act or omission of
any public officers or employees which
appear to be illegal, unjust, improper or
inefficient which is cognizable by the
Sandiganbayan; (R.A. No. 6770);
b. COMELEC - for all election offenses
punishable by Omnibus Election Code;
(Sec. 265, Omnibus Election Code)
c. PCGG, with the assistance of the OSG – for
ill-gotten wealth cases of former President
Marcos, his relatives, and associates; (E.O.
No. 14)
d. Other government agencies, empowered to
investigate, file and prosecute cases
investigated by it.
NOTE: Their authority to conduct preliminary
investigation shall include all crimes cognizable by
the proper court in their respective territorial
jurisdiction. (Sec. 2, Rule 112, ROC, as amended)
Judges of first level courts are no longer authorized
to conduct preliminary investigation. (A.M. No. 05-8-
26-SC, effective 03 Oct. 2005)
Court interference in the conduct of preliminary
investigation
GR: The courts cannot interfere in the conduct of
preliminary investigations, leaving the
investigatory officers sufficient discretion to
determine probable cause.
XPN: When the acts of the officer are without or in
excess of authority resulting from a grave abuse of
discretion. (Sps. Balangauan v. CA, G.R. No. 174350,
13 Aug. 2008)
Extent of authority of the Ombudsman in the
conduct of preliminary investigation
The Ombudsman has primary authority to
investigate and exclusive authority to file and
475
prosecute Sandiganbayan cases. (Ledesma v. CA, G.R.
No. 161629, 29 July 2005)
The Ombudsman is authorized to take over at any
stage, from any investigatory agency of the
government, the investigation of such cases. (Sec.
15, R.A. No. 6770)
NOTE: The power to investigate and to prosecute
granted to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any
public officer or employee when such act or
omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan
and those cognizable by the regular courts. (Office of
the Ombudsman v. Breva, G.R. No. 145938, 10 Feb.
2006)
As an independent constitutional body, the Office of
the Ombudsman is beholden to no one, acts as the
champion of the people and is the preserver of the
integrity of the public service. Thus, it has the sole
power to determine whether there is probable
cause to warrant the filing of a criminal case against
an accused. This function is executive in nature.
(Dichaves v. Ombudsman, G.R. No. 206310, 07 Dec.
2016)
Generally, the Supreme Court will not interfere with
the Office of the Ombudsman's determination of
probable cause, unless there is a clear and
convincing showing of grave abuse of discretion.
(Binay v. Office of the Ombudsman, G.R. Nos. 213957-
58, 07 Aug. 2019)
NOTE: This, however, does not include
administrative cases of court personnel because the
1987 Constitution vests in the SC administrative
supervision over all courts and court personnel.
Preliminary investigation in election cases
The Commission on Elections is vested the power to
conduct preliminary investigations; it may deputize
other prosecuting arms of the government to
conduct preliminary investigation and prosecute
offenses. (People v. Basilla, G.R. Nos. 83938-40, 06
Nov. 1989)
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The Commission on Elections has exclusive power
to conduct preliminary investigation of all election
offenses punishable under the election laws and to
prosecute the same, except as may otherwise be
provided by law. The Commission on Elections
exercises constitutional authority to investigate
and, where appropriate, prosecute cases for
violation of election laws, including acts or
omissions constituting election frauds, offenses and
malpractices. (Albaña v. Belo, G.R. No. 158734, 02
Oct. 2009)
WHEN WARRANT OF ARREST MAY ISSUE
Determination of probable cause
Within 10 days from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor. In conducting the
evaluation of the resolution, the judge shall look into
supporting evidence. (Sec. 5(a), Rule 112, ROC, as
amended)
Options of the judge upon the filing of
Information
1. Dismiss the case if the evidence on record
clearly failed to establish probable cause;
2. If he or she finds probable cause, issue a
warrant of arrest or issue a commitment order
if the accused has already been arrested
pursuant to a warrant of arrest or lawfully
arrested without warrant; or
3. In case of doubt as to the existence of probable
cause, order the prosecutor to present
additional evidence within 5 days from notice,
the issue to be resolved by the court within 30
days from the filing of the information.
Upon filing of an information in court, trial court
judges must determine the existence or non-
existence of probable cause based on their personal
evaluation of the prosecutor's report and its
supporting documents. They may dismiss the case,
issue an arrest warrant, or require the submission
of additional evidence. However, they cannot
remand the case for another conduct of preliminary
investigation on the ground that the earlier
preliminary investigation was improperly
conducted. (Maza v. Turla, G.R. NO. 187094, 15 Feb.
476
2017)
But the option to order the prosecutor to present
additional evidence is not mandatory. The court’s
first option under the above is for it to "immediately
dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the
situation here: the evidence on record clearly fails
to establish probable cause against the respondents.
It is only "in case of doubt on the existence of
probable cause" that the judge may order the
prosecutor to present additional evidence within
five days from notice. (People v. Dela Torre-Yadao,
G.R. Nos. 162144-54, 13 Nov. 2012)
NOTE: It bears stressing that the judge is required
to personally evaluate the resolution of the
prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. (Ong
v. Genio, G.R. No. 182336, 23 Dec. 2009)
Q: The NBI Director requested the prosecution
of Janet Lim Napoles for serious illegal
detention. The assistant state prosecutor
recommended the dismissal of the complaint.
However, in a Review Resolution, the senior
deputy state prosecutor reversed the same and
recommended the filing of the information. An
Information for serious illegal detention was
filed before the RTC and Judge Alameda issued a
warrant for her arrest. Aggrieved, Napoles filed
before the CA a Petition for Certiorari imputing
grave abuse of discretion on the part of the
senior deputy state prosecutor. She contended
that there was no probable cause to charge her
with serious illegal detention, and that the RTC
Judge Alameda erred in issuing the arrest. Is she
correct?
A: NO. Even before the filing of the Petition
questioning the Review Resolution, an Information
for serious illegal detention has been filed against
Napoles. Therefore, with the filing of the
Information before the trial court, this Petition has
become moot and academic. The trial court has then
acquired exclusive jurisdiction over the case, and
the determination of the accused’s guilt or
innocence rests within the sole and sound
discretion of the trial court.
 Criminal Procedure
That Judge Alameda issued the arrest warrant
within the day he received the records of the case
from the prosecutor does not mean that the warrant
was hastily issued. Judge Alameda was under no
obligation to review the entire case record as
Napoles insists. All that is required is that a judge
personally evaluates the evidence and decides,
independent of the finding of the prosecutor, that
probable cause exists so as to justify the issuance of
an arrest warrant. (Napoles v. Hon. Sec. De Lima, G.R.
No. 213529, 13 July 2016)
Complaint filed pursuant to a lawful warrantless
arrest
The court shall issue a commitment order instead
of a warrant of arrest. In case the judge doubts the
existence of probable cause, the judge may order the
prosecution to present additional evidence within 5
days from notice. The issue must be resolved by the
court within 30 days from the filing of the complaint
or information. (Sec. 5(a), Rule 122, Rules of Court, as
amended by A.M. No. 05-08-26-SC, 30 Aug. 2005)
Instances when no warrant of arrest is
necessary
1. If the accused is already under detention
pursuant to a warrant of arrest issued by the
Municipal Trial Court pursuant to its power to
conduct preliminary investigation;
2. If the accused is lawfully arrested without a
warrant; or
NOTE: If the offense by which the person was
arrested requires a preliminary investigation,
an inquest proceeding shall be conducted.
3. If the offense is penalized by fine only. (Sec. 5(c),
Rule 112, ROC, as amended)
4. When there was no need for prior preliminary
investigation and the case is not governed by
the Rules on Summary Procedure, the judge
may issue summons instead of a warrant of
arrest, except when he fails to appear whenever
required; and
5. When the case is subject to the Rules on
Summary Procedure, except when he fails to
appear whenever required.
477
CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION
Cases not requiring a preliminary investigation
A preliminary investigation shall not be required
under the following:
1. When the penalty prescribed by law for the
offense involves an imprisonment of less than 4
years, 2 months and 1 day (Sec. 8(a), Rule 112,
ROC, as amended); and
2. If a person is arrested lawfully without a
warrant involving an offense which requires
preliminary investigation, an information or
complaint may be filed against him without
need for a preliminary investigation provided
an inquest has been conducted in accordance
with existing rules. (Sec. 6, Rule 112, as amended
by A.M. No. 05-08-26-SC, 30 Aug. 2005)
Thus, if a person is arrested by a police officer
in flagrante delicto while robbing the victim
through violence or intimidation, the arrest is a
lawful one and a preliminary investigation is
not required even if the penalty for robbery is
more than 4 years, 2 months, and 1 day. (Riano,
2019)
Furthermore, if he has been arrested in a place
where an inquest prosecutor is available, an
inquest will be conducted instead of a
preliminary investigation. In the absence or
unavailability of an inquest prosecutor, an
inquest may be dispensed with. The rule, hence,
allows the filing of the complaint directly with
the proper court by the offended party or peace
officer on the basis of the affidavit of the
offended party or arresting officer or person.
(Riano, 2019)
In cases where preliminary investigation is not
required, it may be instituted:
1. By filing the complaint directly with the
prosecutor; or
NOTE: The prosecutor shall act on the
complaint based on the affidavits and other
supporting documents submitted by the
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complainant within 10 days from its filing. (Sec.
8(a), Rule 112, ROC, as amended)
2. By filing the complaint or information with the
MTC.
Instances when amendment of an information
does NOT warrant a new preliminary
investigation
1. Amendment to information is not substantial
(Villaflor v. Vivar, G.R. No. 134744, 16 Jan. 2001);
2. The court orders the filing of correct
information involving a cognate offense (Sy Y
Lim v. CA, G.R. No. L-37494, 30 Mar. 1982); and
3. If the crime originally charged is related to the
amended charge such that an inquiry into one
would elicit substantially the same facts that an
inquiry to another would reveal. (Orquinaza v.
People, G.R. No. 165596, 15 Nov. 2005; Herrera,
2007)
Instances when amendment of an information
warrants a new preliminary investigation
1. If the amendment of the information changes
the nature of the crime charged (Luciano v.
Mariano, G.R. No. L-32950, 30 July 1971); or
2. When on its face the information is null and
void for lack of authority to file the same and
cannot be cured or revived by an amendment.
(Cruz, Jr. v. Sandiganbayan, G.R. No. 94595, 26
Feb. 1991)
Instances when a NEW preliminary
investigation is required to accord the accused
the right to submit counter-affidavits and
evidence
A new preliminary investigation is required in order
to accord the accused the right to submit counter-
affidavits and evidence only in the following
instances:
1. Where the original witnesses of the prosecution
or some of them may have recanted their
testimonies or may have died or may no longer
be available and new witnesses for the state
have emerged;
478
2. Where aside from the original accused, other
persons are charged under a new criminal
complaint for the same offense or necessarily
included therein;
3. If under a new criminal complaint, the original
charge has been upgraded; or
4. If under a new criminal complaint, the criminal
liability of the accused is upgraded from being
an accessory to that of a principal. (Ciron v.
Gutierrez, G.R. Nos. 194339-41, 20 Apr. 2015)
REMEDIES OF ACCUSED IF THERE WAS NO
PRELIMINARY INVESTIGATION
The accused must question the lack of preliminary
investigation before he enters his plea. The court
shall resolve the matter as early as practicable but
not later than the start of the trial.
An application for or admission of the accused to
bail does not bar him from raising such question.
(Sec. 26, Rule 114, ROC, as amended) Failure to
invoke the right before entering a plea will amount
to a waiver.
Remedies available to the accused if there was
no preliminary investigation conducted
pursuant to a lawful warrantless arrest
1. Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation but he must sign a waiver of the
provisions of Art. 125 of the RPC, as amended,
in the presence of his counsel;
NOTE: Art. 125 of the RPC deals with the period
of delay in the delivery of detained persons to
the proper judicial authorities.
Accused may file a petition for certiorari if
preliminary investigation is refused;
The waiver by the person lawfully arrested of
the provisions of Art. 125 of the RPC does not
preclude him from applying for bail;
2. After the filing of the complaint or information
in court without a preliminary investigation,
the accused may, within 5 days from the time he
learns of its filing, ask for a preliminary
 Criminal Procedure
investigation with the same right to adduce
evidence as provided in the Rule (Sec. 6, Rule
112, ROC, as amended);
3. Refuse to enter a plea upon arraignment and
object to further proceedings upon such
ground;
4. Raise lack of preliminary investigation as error
on appeal (US v. Banzuela, G.R. No. 10172, 01 Oct.
1915); or
5. File for prohibition (Conde v. CFI, G.R. No. 21236,
01 Oct. 1923).
Absence of a preliminary investigation; effects
1. It does not become a ground for a motion to
quash the complaint or information as it does
not impair the validity of the information or
render it defective or affect the jurisdiction of
the court (Sec. 3, Rule 117, ROC, as amended;
People v. Buluran, G.R. No. 113940, 15 Feb.
2000);
2. It does not affect the court’s jurisdiction but
merely the regularity of the proceedings
(People v. De Asis, G.R. No. 105581, 07 Dec. 1994);
3. It does not impair the validity of the
information or render it defective; and
4. It justifies the release of the respondent or
nullifies the warrant of arrest against him.
(Larranaga v. CA, G.R. No. 130644, 13 Mar. 1998)
NOTE: If the accused raises the issue of lack of
preliminary investigation before entering a plea, the
court, instead of dismissing the information, should
remand the case to the prosecutor so that the
investigation may be conducted. (Ibid.)
The right to preliminary investigation cannot be
raised for the first time on appeal. (Pilapil v.
Sandiganbayan, G.R. No. 101978, 07 Apr. 1993)
If lack of preliminary investigation is raised in a
proceeding pending before the Sandiganbayan, the
proceeding will be held in abeyance and case should
be remanded to the Office of the Ombudsman or the
Special Prosecutor to conduct the preliminary
investigation. (Ong v. Sandiganbayan, G.R. No.
126858, 16 Sept. 2005)
479
Q: The police officers arrived at the scene of the
crime less than one hour after the alleged
altercation and they saw Atty. Generoso badly
beaten. Atty. Generoso pointed to the
petitioners as those who mauled him, which
prompted the police officers to “invite” the
petitioners for investigation. Consequently, the
petitioners were indicted for attempted murder.
The petitioners filed an Urgent Motion for
Regular Preliminary Investigation on the
ground that they had not been lawfully arrested
as there was no valid warrantless arrest since
the police officers had no personal knowledge
that they were perpetrators of the crime. Were
the petitioners validly arrested without a
warrant?
A: YES. The records show that soon after the report
of the incident, SPO2 Javier was immediately
dispatched to render personal assistance to the
victim. This alone negates the petitioners’ argument
that the police officers did not have personal
knowledge that a crime had been committed.
Personal knowledge of a crime just committed does
not require actual presence at the scene while the
crime was being committed; it is enough that
evidence of the recent commission of the crime is
patent and the police officer has probable cause to
believe based on personal knowledge of facts and
circumstances, that the person to be arrested has
recently committed the crime. (Pestilos, et al. v.
Generoso and People, G.R. No. 182601, 10 Nov. 2014)
INQUEST
Inquest Proceeding
It is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without
the benefit of a warrant of arrest. It is informal and
summary and is issued by the court for the purpose
of determining whether or not said persons should
remain under custody and correspondingly be
charged in court. (Sec. 1, DOJ Circular No. 61)
Duties of an inquest officer
The initial duty of the inquest officer is to determine
if the arrest of the detained person was valid and in
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accordance with Sec. 5(a) and (b) of Rule 113 of the Finding of probable cause
Rules of Court; should the inquest officer find that
the arrest was not made in accordance with the 1. If the inquest officer finds that probable
Rules, he shall: cause exists - he or she shall forthwith prepare
the corresponding complaint or information
1. Recommend the release of the person arrested with the recommendation that the same be filed
or detained; in court. (Sec. 13, Part II, Manual for
2. Note down the disposition on the referral Prosecutors)
document;
3. Prepare a brief memorandum indicating the 2. If the inquest officer finds no probable cause
reasons for the action taken; and – he or she shall recommend the release of the
4. Forward the same, together with the record of arrested or detained person. (Sec. 15, Part II,
the case, to the City or Provincial Prosecutor for Manual for Prosecutors)
appropriate action. (Sec. 9, DOJ Circular No. 61)
Matters included in a referral document
NOTE: Where the recommendation is approved by
the City or Provincial Prosecutor but the evidence 1. Affidavit of arrest;
on hand warrant the conduct of a regular 2. Investigation report;
preliminary investigation, the order of release shall 3. The statement of the complainant and
be served on the officer having custody of said witnesses; and
detainee and shall direct the said officer to serve 4. Other supporting evidence gathered by the
upon the detainee the subpoena or notice of police in the course of the latter's investigation
preliminary investigation, together with the copies of the criminal incident involving the arrested
of the charge sheet or complaint, affidavit or sworn or detained person.
statements of the complainant and his witnesses
and other supporting evidence. NOTE: The inquest officer shall, as far as
practicable, cause the affidavit of arrest and
Should it be found that the arrest was properly statements or affidavits of the complainant and the
effected, the officer shall: witnesses to be subscribed and sworn to before him
by the arresting officer and the affiants. (Sec. 3, Part
1. Ask the detained person if he desires to avail II, Manual for Prosecutors)
himself of a preliminary investigation; and
2. If he does, he shall be made to execute a waiver Preliminary investigation vs. Inquest
of the provision of Art. 125 of RPC with the proceeding
assistance of a lawyer. (Sec. 10, Part II, Manual
for Prosecutors) PRELIMINARY INQUEST
INVESTIGATION PROCEEDING
Person to conduct preliminary investigation To determine whether
Conducted to
the accused should
determine probable
The preliminary investigation may be conducted by remain under custody
cause.
the inquest officer himself or by any other assistant and be charged in court.
prosecutor to whom the case may be assigned by
the city or provincial prosecutor, which Instances when production of a detained person
investigation shall be terminated within 15 days before the inquest officer is dispensed with
from its inception. (Sec. 10, Part II, Manual for
Prosecutors) 1. If he is confined in a hospital;
2. If he is detained in a place under maximum
security;

480
 Criminal Procedure

3. If production of the detained person will

involve security risks; or E. ARREST
4. If the presence of the detained person is not (RULE 113)
feasible by reason of age, health, sex and other
similar factors. (Sec. 6, Part II, Manual for
Prosecutors)
It is the taking of a person into custody in order that
he may be bound to answer for the commission of
Q: Leo was arrested without a warrant following
an offense. (Sec. 1, Rule 113, ROC, as amended)
the issuance by PGMA of PD 1017. On the eve of
his arrest, Leo was subjected to an inquest at the
Persons who are NOT subject to arrest
Quezon City Hall of Justice for Inciting to
Sedition (Art. 142, RPC) based on a speech he
1. A senator or member of the House of
allegedly gave during a rally. The inquest was
Representatives shall, in all offenses punishable
based on a joint affidavit of Leo’s arresting
by not more than 6 years of imprisonment, be
officers who claimed to have been present at the
privileged from arrest while Congress is in
rally. The inquest prosecutor filed the
session (Sec. 11, Art. VI, 1987 Constitution);
corresponding Information with the MeTC.
Several days after the first inquest, he was again
NOTE: The privilege of a senator or
subjected to a second inquest but this time for
congressman will not apply when the offense is:
rebellion allegedly committed based on the
letters of CIDG investigators claiming that Leo
a. Punishable by imprisonment of more than
was the leader/promoter of an alleged plot to
6 years even if Congress is in session
overthrow the Arroyo government. The panel of
(People v. Jalosjos, G.R. Nos. 132875-76, 03
prosecutors from the DOJ which conducted the
Feb. 2000); or
second inquest subsequently issued a resolution
b. If the offense is punishable by
finding probable cause to indict Leo as
imprisonment of not more than 6 years if
leader/promoter of alleged rebellion. The panel
Congress is not in session.
filed an Information with the RTC of Makati. The
court sustained the finding of probable cause
2. Under the generally accepted principles of
against Leo. Leo filed a Petition to set aside the
international law, sovereign and other chiefs of
orders finding probable cause and the denial of
state, ambassadors, ministers plenipotentiary,
the MR to enjoin his prosecution. Was the
ministers resident, and charges d’affaires are
second inquest valid?
immune from the criminal jurisdiction of the
country of their assignment and are therefore
A: NO. Inquest proceedings are proper only when
immune from arrest; and
the accused has been lawfully arrested without
warrant. Sec. 5, Rule 113 of the Revised Rules of
3. Duly accredited ambassadors, public ministers
Criminal Procedure provides the instances when
of a foreign country, their duly registered
such warrantless arrest may be effected.
domestics, subject to the principle of
reciprocity. (Secs. 4 and 7, R.A. No. 75)
The joint affidavit of Leo’s arresting officers states
that the officers arrested Leo, without a warrant, for
Arrest, How Made
Inciting to sedition, and not for rebellion. Thus, the
inquest prosecutor could only have conducted – as
1. By an actual restraint of a person to be arrested;
he did conduct – an inquest for Inciting to Sedition
or
and no other. Consequently, when another group of
2. By his submission to the custody of the person
prosecutors subjected Leo to a second inquest
making the arrest. (Sec. 2, Rule 113, ROC, as
proceeding for rebellion, they overstepped their
amended)
authority rendering the second inquest void.
(Beltran v. People, G.R. No. 175013, 01 June 2007)

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NOTE: Arrest may be made on any day, at any time any other person of suitable age and
of the day or night. (Sec. 6, Rule 113, ROC, as discretion. (Sec 23, Rule 114, ROC, as
amended) amended)

The head of the office to which the warrant was Q: On his way home, a member of the Caloocan
delivered must cause it to be executed within 10 City police force witnessed a bus robbery in
days from its receipt, and the officer to whom it is Pasay City and effects the arrest of the suspect.
assigned must make a report to the judge who Can he bring the suspect to Caloocan City for
issued the warrant within 10 days from the booking since that is where he is stationed?
expiration of the period. If he fails to execute it, he Explain briefly. (2007 BAR)
should state the reason therefore. (Sec. 4, Rule 113,
ROC, as amended) A: NO. Under Sec. 3, Rule 113 of the Revised Rules
on Criminal Procedure, it shall be the duty of the
ARREST WITHOUT WARRANT, WHEN LAWFUL officer executing the warrant to arrest the accused
and to deliver him to the nearest police station or jail
Instances when warrant of arrest is NOT without unnecessary delay. This rule equally
necessary applies to situations of warrantless arrests. Here,
the arrest was made in Pasay City. Hence, the
1. Accused is already under detention; suspect should be brought to the nearest police
2. Complaint or information was filed pursuant to station in Pasay City for booking and not in Caloocan
a valid warrantless arrest; and City.
3. Complaint or information is for an offense
penalized by fine only. (Sec. 5(c), Rule 112, ROC, METHOD OF ARREST
as amended)
EXCEPTION TO THE
METHOD OF
Instances of a valid warrantless arrest RULE ON GIVING
ARREST
INFORMATION
1. In flagrante delicto arrest; Arrest by officer by virtue of a warrant
2. Doctrine of hot pursuit; (Sec. 7, Rule 113, ROC, as amended)
3. Escapee (Sec. 5, Rule 113, ROC, as amended); and The officer shall inform
4. Other lawful warrantless arrests: the person to be
arrested of (a) the
a. When a person previously and lawfully cause of the arrest; and 1. When the person
arrested, escapes or is rescued, any person (b) the fact that the to be arrested
may immediately pursue or retake him warrant has been flees;
without a warrant at any time and in any issued for his arrest. 2. When he forcibly
place within the Philippines (Sec 13, Rule resists before the
113, ROC, as amended); NOTE: The officer need officer has an
not have the warrant in opportunity to
b. When an accused released on bail his possession at the inform him; and
attempts to depart from the Philippines time of the arrest but 3. When the giving of
without permission of the court where the must show the same such information
case is pending (Sec 23, Rule 114, ROC, as after the arrest, if the will imperil the
amended); and person arrested so arrest.
requires. (Sec. 7, Rule
c. For the purpose of surrendering the 113, ROC, as amended)
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

482
 Criminal Procedure

It must also be noted held criminally liable 3. When the giving of

that warrant is not for illegal detention. such information will
jurisdictional. imperil the arrest.

The officer assigned to BY OFFICER WITH WARRANT

execute the warrant of
arrest has, after the
arrest of the accused,
the duty to deliver the
person arrested to the
nearest police station
or jail without
unnecessary delay.
(Sec. 3, Rule 113, ROC, as
amended)
Arrest by officer without a warrant
(Sec. 8, Rule 113, ROC, as amended)
1. When the person to
be arrested is
engaged in the
commission of an
offense or is pursued
The officer shall immediately after its
inform the person to commission;
be arrested of his (a) 2. When he has escaped,
authority and (b) the flees, or forcibly
cause of the arrest resists before the
without a warrant officer has an
opportunity to do so
inform him; and
3. When the giving of
such information will
imperil the arrest.
Arrest by a private person
(Sec. 9, Rule 113, ROC, as amended)
The private person 1. When the person to
shall inform the be arrested is
person to be arrested engaged in the
of (a) the intention to commission of an
arrest him and (b) the offense or is pursued
cause of the arrest. immediately after its
commission;
NOTE: The private 2. When he has escaped,
person must deliver flees, or forcibly
the arrested person resists before the
to the nearest police officer has an
station or jail, opportunity to do so
otherwise, he may be inform him; and
Amount of force to be used in making an arrest
GR: 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, Rule 113, ROC, as amended)
XPN: If necessary to secure and detain the offender,
overcome his resistance, prevent his escape,
recapture him and protect himself from bodily
harm. (Albano, Remedial Law Reviewer, 2010,
hereinafter referred to as Albano, 2010; People v.
Delima, G.R. No. 18660, 22 Dec. 1922)
NOTE: An officer may break into a building or
enclosure to effect an arrest provided that:
1. The person to be arrested is or is reasonably
believed to be in the said building;
2. The officer has announced his authority and
purpose for entering therein; and
3. He has requested and been denied admittance.
(Sec. 11, Rule 113, ROC, as amended)
A lawful arrest may be made anywhere, even on a
private property or in a house. This rule is
applicable both where the arrest is under a warrant,
and where there is a valid warrantless arrest.
Objects subject to confiscation from the person
arrested
1. Objects subject of the offense or used or
intended to be used in the commission of the
crime;
2. Objects which are fruits of the crime;
3. Those which might be used by the arrested
person to commit violence or to escape; and
4. Dangerous weapons and those which may be
used as evidence in the case.
NOTE: Arrest must precede the search; the
process cannot be reversed. Nevertheless, a search

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substantially contemporaneous with an arrest can
precede the arrest at the outset of the search.
Q: Jose, Alberto and Romeo were charged with
murder. Upon filing of the information, the RTC
judge issued the warrants of arrest. Learning of
the issuance of the warrants, the three accused
jointly filed a motion for reinvestigation and for
the recall of the warrants of arrest. On the date
set for hearing of their motion, none of the
accused showed up in the court for fear of being
arrested. The RTC judge denied their motion
because the RTC did not acquire jurisdiction
over the persons of the movants. Did the RTC
rule correctly? (2008 BAR)
A: NO. The court acquired jurisdiction over the
person of the accused when they filed the aforesaid
motion and invoked the court’s authority over the
case, without raising the issue of jurisdiction over
their person. Their filing the motion is tantamount
to voluntary submission to the court’s jurisdiction
and contributes voluntary appearance. (Miranda v.
Tuliao, G.R. No. 158763, 31 Mar. 2006)
BY OFFICER WITHOUT WARRANT (2017 BAR)
GR: No peace officer or person has the power or
authority to arrest anyone without a warrant except
in those cases expressly authorized by law. (Umil vs.
Ramos, G.R. No. 81567, 03 Oct. 1991)
XPNs:
1. In flagrante delicto arrest - When, in his
presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense (Sec. 5(a), Rule
113, ROC, as amended);
Elements of In flagrante delicto arrest are:
a. The person arrested must execute an overt
act indicating that he has just committed, is
actually committing, or is attempting to
commit a crime; and
b. Such overt act is done in the presence or
within the view of the arresting officer.
NOTE: Reliable information provided by
police assets alone is not sufficient to justify
484
a warrantless arrest. There must be
independent circumstances perceivable by
the arresting officers suggesting that a
criminal offense is being committed to
comply with the exacting requirements of
Rule 113, Section 5 of the Rules of Court. An
accused must perform some overt act
within plain view of the police officers
indicating that she or "he has just
committed, is actually committing, or is
attempting to commit a crime. (Villasana v.
People, G.R. No. 209078, 04 Sept. 2019)
2. Hot pursuit arrest - When an offense has been
committed and he has probable cause to believe
based on personal knowledge of facts and
circumstances that the person to be arrested
has committed it (Sec. 5(b), Rule 113, ROC, as
amended);
Elements of Hot pursuit arrest are:
a. An offense has been committed and there is
close proximity between the arrest and the
time of commission of the crime (Pamaran,
2007);
b. The offense has just been committed; and
c. Probable cause based on personal
knowledge on the part of the person
making the arrest, of facts or circumstances
that the person/s to be arrested committed
it. (Herrera, 2007)
NOTE: There must be compliance with the
element of immediacy between the time of the
commission of the crime and the time of arrest.
(People v. Salvatiera, G.R. No. 104663, 24 July
1997)
Personal knowledge (2016 BAR)
“Personal knowledge of the facts and circumstances
that the person to be arrested committed it" means
personal knowledge not of the commission of the
crime itself but of facts and circumstances which
would lead to the conclusion that the person to be
arrested has probably committed the crime. Such
personal knowledge arises from reasonably worthy
information in the arresting person’s possession
coupled with his own observation and fair
 Criminal Procedure
inferences therefrom that the person arrested has
probably committed the offense. (People v. Del
Rosario, G.R. No. 127755, 14 Apr. 1999)
NOTE: Personal gathering of information is
different from personal knowledge. The rule
requires that the arrest immediately follows the
commission of the offense. (People v. Manlulu, G.R.
No. 102140, 22 Apr. 1994)
Q: Under Section 5, Rule 113, a warrantless
arrest is allowed when an offense has just been
committed and the peace officer has probable
cause to believe, based on his personal
knowledge of facts or circumstances, that the
person to be arrested has committed it. A
policeman approaches you for advice and asks
you how he will execute a warrantless arrest
against a murderer who escaped after killing a
person. The policeman arrived two (2) hours
after the killing and a certain Max was allegedly
the killer per information given by a witness. He
asks you to clarify the following: How long after
the commission of the crime can he still execute
the warrantless arrest? (2016 BAR)
A: The arrest must be made within 24 hours after
the commission of the crime. Where the arrest took
place a day after the commission of the crime, it
cannot be said that an offense has just been
committed. (People v. Del Rosario, G.R. No. 127755,
14 Apr. 1999)
ALTERNATIVE ANSWER: In executing a
warrantless arrest under Section 5, Rule 113 of the
Revised Rules on Criminal Procedure, the Supreme
Court held that the requirement that an offense has
just been committed means that there must be a
large measure of immediacy between the time the
offense was committed and the time of the arrest.
(Pestilos v. Generoso, G.R. No. 182601, 10 Nov. 2014).
If there was an appreciable lapse of time between
the arrest and the commission of the crime, a
warrant of arrest must be secured. In any case,
personal knowledge by the arresting officer is an
indispensable requirement to the validity of a valid
warrantless arrest.
The exact period varies on a case-to-case basis. In
People v. Gerente, G.R. Nos. 95847-48, 10 Mar. 1993),
485
the Supreme Court ruled that a warrantless arrest
was validly executed upon the accused three (3)
hours after the commission of the crime. In People v.
Tonog, Jr., G.R. No. 94533, 04 Feb. 1992, the Supreme
Court likewise upheld the valid warrantless arrest
which was executed on the same day as the
commission of the crime. However, in People v. Del
Rosario (365 Phil. 292, 14 Apr. 1999), the Supreme
Court held that the warrantless arrest effected a day
after the commission of the crime is invalid. In Go v.
Court of Appeals (G.R. No. 101837, 11 Feb. 1992), the
Supreme Court also declared invalid a warrantless
arrest effected six (6) days after the commission of
the crime.
Q: As Cicero was walking down a dark alley one
midnight, he saw an "owner-type jeepney"
approaching him. Sensing that the occupants of
the vehicle were up to no good, he darted into a
gave chase and apprehended him. The police
apprehended Cicero, frisked him and found a
sachet of 0.09 gram of shabu tucked in his waist
and a Swiss knife in his secret pocket, and
detained him thereafter. Is the arrest and body
search legal? (2010 BAR)
A: NO. The arrest and the body-search were not
legal. Cicero’s act of running does not show any
reasonable ground to believe that a crime has been
committed or is about to be committed for the police
officers to apprehend him and conduct body search.
Hence, the arrest was illegal as it does not fall under
any of the circumstances for a valid warrantless
arrest provided in Section 5, Rule 113 of the Rules
of Criminal Procedure.
3. Evasion of service of sentence by prisoner -
When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another (Sec. 5(c), Rule 113,
ROC, as amended);
4. Where a person who has been lawfully arrested
escapes or is rescued (Sec. 13, Rule 113, ROC, as
amended);
UNIVERSITY OF SANTO TOMAS
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5. By the bondsman for the purpose of
surrendering the accused (Sec. 23, Rule 114,
ROC, as amended);
6. Where the accused out on bail attempts to leave
the country without permission of the court
(Sec. 23, Rule 114, ROC, as amended); and
7. Buy-bust Operation - A buy-bust operation is a
form of entrapment, in which the violator is
caught in flagrante delicto and the police
officers conducting the operation are not only
authorized, but duty-bound, to apprehend the
violator and to search him for anything that
may have been part of or used in the
commission of the crime.
Obligation of the arresting officer after the
warrantless arrest
The arresting officer must comply with the
provisions of Art. 125 of the RPC, otherwise, he may
be held criminally liable for arbitrary detention
under Art. 124, RPC. Jurisdiction over the person
arrested must be transferred to the judicial
authorities. Art. 125 is a procedural requirement in
case of warrantless arrest. A case must be filed in
court.
Period for officers to deliver the person
detained under Art. 125 of the RPC
The person must be delivered to the judicial
authorities within the period specified in Art. 125
(Delay in the delivery of detained persons to the
proper judicial authorities):
1. 12 hours - Light penalties (i.e., arresto menor,
public censure or a fine less than P200.00);
2. 18 hours - Correctional penalties (i.e., prision
correccional, arresto mayor, suspension,
destierro. or a fine not exceeding P6,000.00 but
not less than P200.00);
3. 36 hours - Afflictive or capital penalties (i.e.,
death, reclusion perpetua, reclusion temporal,
perpetual or temporary absolute
disqualification, perpetual or temporary special
disqualification, prision mayor, or a fine
exceeding P6,000.00).
486
NOTE: The accused should be brought to the
prosecutor for inquest proceedings wherein
existence of probable cause will be determined.
Then, the judge shall issue a commitment order
(order issued by the judge when the person charged
with a crime is already arrested or detained) and
not a warrant.
Q: Fred was arrested without a warrant. After
preliminary investigation, an information was
filed in court. He pleaded not guilty during
arraignment. After trial on the merits, he was
found guilty by the court. On appeal he claims
that judgment was void due to his illegal arrest.
As Solicitor General, how would you refute said
claim? (2000 BAR)
A: Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when
he pleaded not guilty at the arraignment without
raising the question. It is too late to complain about
a warrantless arrest after trial is commenced and
completed and a judgment of conviction rendered
against the accused. (People v. Cabiles, G.R. No.
112035, 16 Jan. 1998)
NOTE: An accused who enters his plea of not guilty
and participates in the trial waives the illegality of
the arrest. Objection to the illegality must be raised
before arraignment, otherwise it is deemed waived,
as the accused, in this case, has voluntarily
submitted himself to the jurisdiction of the court.
(People v. Macam, G.R. Nos. L-91011-12, 24 Nov.
1994)
Application or admission to bail does not bar the
accused to question the validity of his arrest or the
legality of the warrant issued provided that he
raises it before he enters his plea.
Q: Boy Maton, a neighborhood tough guy, was
arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag.
When Boy Maton was searched immediately
after the arrest, the officer found and recovered
10 sachets of shabu neatly tucked in the inner
linings of the clutch bag. At the time of his arrest,
Boy Maton was watching a basketball game
being played in the town plaza, and he was
cheering for his favorite team. He was
 Criminal Procedure
subsequently charged with illegal possession of
dangerous drugs, and he entered a plea of not
guilty when he was arraigned.
During the trial, boy Maton moved for the
dismissal of the information on the ground that
the facts revealed that he had been illegally
arrested. He further moved for the suppression
of the evidence confiscated from him as being
the consequence of the illegal arrest, hence, the
fruit of the poisonous tree. The trial court, in
denying the motions of Boy Maton, explained
that at the time the motions were filed Boy
Maton had already waived the right to raise the
issue of the legality of the arrest. The trial court
observed that, pursuant to the Rules of Court,
Boy Maton, as the accused, should have assailed
the validity of the arrest before entering his plea
to the information. Hence, the trial court opined
that any adverse consequence of the alleged
illegal arrest had also been equally waived.
Comment on the ruling of the trial court. (2017
BAR)
A: The trial court is correct insofar as Boy Maton is
considered to have waived his objections to the
illegality of his arrest. In Villanueva v. People (G.R.
No. 199042, 17 Nov. 2014), the Supreme Court held
that objections to the irregularity of arrest must be
made before his arraignment. In this case, Boy
Maton made no objection to the irregularity of his
arrest before his arraignment. Hence, the trial court
is correct when it ruled that Boy Maton had already
waived his right to question the illegality of his
arrest. Any irregularity attending the arrest of an
accused “should be timely raised in a motion to
quash the information at any time before
arraignment, failing in which, he is deemed to have
waived” his right to question the regularity of his
arrest. (People v. Cunanan, G.R. No. 198924, 16 Mar.
2015)
However, the trial court erred when it ruled that
Boy Maton likewise waived his right to assail the
illegal search. In Villanueva, the Supreme Court
ruled that “a waiver of an illegal arrest is not a
waiver of an illegal search.” It further held that
“while the accused has already waived his right to
contest the legality of his arrest, he is not deemed to
487
have equally waived his right to contest the legality
of the search.” Therefore, Boy Maton may still move
for the suppression of the evidence confiscated from
him being the consequences of the illegal arrest.
Ratification of an Illegal Arrest
An illegal arrest may not be ratified by the
subsequent filing of information in court.
Once a person has been duly charged in court, he
may no longer question his detention by petition for
habeas corpus. His remedy is to quash the
information and/or the warrant of arrest.
NOTE: Lack of jurisdiction over the person of an
accused as a result of an invalid arrest must be
raised through a motion to quash before an accused
enters his or her plea. Otherwise, the objection is
deemed waived, and an accused is estopped from
questioning the legality of his or her arrest.
The voluntary submission of an accused to the
jurisdiction of the court and his or her active
participation during trial cures any defect or
irregularity that may have attended an arrest. The
reason for this rule is that "the legality of an arrest
affects only the jurisdiction of the court over the
person of the accused. (Veridiano v. People, G.R. No.
200370, 07 June 2017)
Consequences of Illegal Arrests
1. The court does not acquire jurisdiction over the
person of the accused;
2. Law enforcers incur criminal liability for the
illegal arrest;
3. Any search incident to the arrest becomes
invalid rendering the evidence acquired as
constitutionally inadmissible; (Veridiano v.
People, G.R. No. 200370, 07 June 2017)
4. The documents, things or articles seized
following the illegal arrest are inadmissible in
evidence;
5. Arresting officer may be held civilly liable for
the damages under Art. 32, NCC; and
6. He may also be held administratively liable.
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Q: May authorities resort to warrantless arrest
in cases of rebellion?
A: YES. Since rebellion has been held to be a
continuing crime, authorities may resort to
warrantless arrest of persons suspected of
rebellion, as provided under Sec. 5, Rule 113.
However, this doctrine should be applied to its
proper context – i.e., relating to subversive armed
organizations, such as the New People’s Army, the
avowed purpose of which is the armed
overthrowing of the organized and established
government. Only in such instance should rebellion
be considered a continuing crime. (People v. Suzuki,
G.R. No. 120670, 23 Oct. 2003)
BY PRIVATE PERSON (2017 BAR)
Instances when a private person may make an
arrest (1999, 2004 BAR)
1. When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense (in flagrante
delicto);
2. When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it
(hot pursuit); and
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending
or has escaped while being transferred from
one confinement to another.
NOTE: In cases falling under numbers (1) and (2)
above, the person arrested without a warrant shall
be forthwith delivered to the nearest police station
or jail and shall be subjected to an inquest
proceeding.
488
REQUISITES OF A VALID WARRANT OF ARREST
Warrant of Arrest
It is a legal process issued by a competent authority,
directing the arrest of a person or persons upon the
grounds stated therein. (Herrera, 2007)
Person who may issue a warrant of arrest
The 1987 Constitution speaks of “judges” which
means judges of all levels. This power may not be
limited much less withdrawn by Congress. The
power to determine the existence of probable cause
to issue a warrant of arrest is a function of the judge
and such power lies in the judge alone. (People v.
Inting, G.R. No. 88919, 25 July 1990)
NOTE: The exception is in case of deportation of
illegal and undesirable aliens, whom the President
or the Commissioner of Immigration may order
arrested following a final order of deportation for
the purpose of deportation. (Salazar v. Achacoso,
G.R. No. 81510, 14 Mar. 1990)
Essential requisites of a valid warrant of arrest
1. Issued upon probable cause;
2. Probable cause is to be determined personally
by the judge after examination under oath of the
complainant and the witnesses he may
produce;
3. The judge must personally evaluate the report
of the prosecutor and the evidence adduced
during the preliminary examination (Soliven v.
Makasiar, G.R. No. L-82585, 14 Nov. 1988);
NOTE: A warrant of arrest issued based only on
the prosecutor’s findings and recommendation
like the information and resolution finding a
probable cause, without the court determining
on its own the issue of probable cause based on
evidence is null and void (Ho v. People, G.R. No.
106632, 09 Oct. 1997; Pamaran, 2007).
4. The warrant must particularly describe the
person to be arrested; and
5. It must be in connection with specific offense or
crime.
 Criminal Procedure
Period of the validity of a warrant of arrest
No time limit is fixed for the validity of a warrant of
arrest, unlike a search warrant, which is effective
only for 10 days. (Pamaran, 2007) It remains valid
until arrest is effected or the warrant is lifted.
(Manangan v. CFI, G.R. No. 82760, 30 Aug. 1990)
Remedy for warrant of arrest
Where a warrant of arrest was improperly issued,
the proper remedy is a petition to quash it, not a
petition for habeas corpus, since the court in the
latter case may only order his release but not enjoin
the further prosecution or the preliminary
examination of the accused. (Alimpoos v. CA, G.R. No.
L-27331, 30 July 1981)
Objection on the validity of the warrant
Any objection involving a warrant of arrest or the
procedure for the acquisition by the court of
jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the
objection is deemed waived. An accused may be
estopped from assailing the illegality of his arrest if
he fails to move for the quashing of the information
against him before his arraignment. And since the
legality of an arrest affects only the jurisdiction of
the court over the person of the accused, any defect
in the arrest of the accused may be deemed cured
when he voluntarily submits to the jurisdiction of
the trial court. (Lapi v. People, G.R. No. 210731, 13
Feb. 2019)
DETERMINATION OF PROBABLE CAUSE FOR
ISSUANCE OF WARRANT OF ARREST
Probable Cause
It refers to facts and circumstances which would
lead a reasonably discreet and prudent man to
believe that an offense has been committed by the
person ought to be arrested. It requires neither
absolute certainty nor clear and convincing
evidence of guilty. The test for issuing a warrant of
arrest is less stringer than that used for establishing
guilt of the accused. As long as the evidence shows
prima facie case against the accused, the trial court
489
has sufficient ground to issue a warrant of arrest.
(People v. Tan, 608 SCRA 85, 26 July 2010)
It need not be based on clear and convincing
evidence of guilt. It simply implies probability of
guilt and requires more than bare suspicion but less
than evidence which would justify a conviction. (The
Presidential Ad-Hoc Fact-Finding Committee on
Behest Loans v. Desierto, G.R. No. 136225, 23 Apr.
2008).
An arrest without a probable cause is an
unreasonable seizure of a person and violates the
privacy of persons which ought not to be intruded
by the State. (Borlongan v. Peña, G.R. No. 143591, 05
May 2010)
Probable cause to be determined personally by
the judge
Under Section 2, Article III of the 1987 Constitution,
no warrant of arrest shall issue except upon
probable cause “to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may
produce.” This constitutional provision does not
mandatorily require the judge to personally examine
the complainant and her witnesses. Instead, he or she
may opt to personally evaluate the report and
supporting documents submitted by the prosecutor
or he or she may disregard the prosecutor’s report
and require the submission of supporting affidavits
of witnesses. (AAA v. Carbonell, G.R. No. 171465, 08
June 2007)
Q: An information for murder was filed against
Rapido. The RTC judge, after personally
evaluating the prosecutor's resolution,
documents and parties' affidavits submitted by
the prosecutor, found probable cause and issued
a warrant of arrest. Rapido's lawyer examined
the rollo of the case and found that it only
contained the copy of the information, the
submissions of the prosecutor and a copy of the
warrant of arrest. Immediately, Rapido's
counsel filed a motion to quash the arrest
warrant for being void, citing as grounds:
a. The judge before issuing the warrant did not
personally conduct a searching examination
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of the prosecution witnesses in violation of
his client's constitutionally mandated
rights;
b. There was no prior order finding probable
cause before the judge issued the arrest
warrant.
May the warrant of arrest be quashed on the
grounds cited by Rapido's counsel? State your
reason for each ground. (2015 BAR)
A: NO. The warrant of arrest may not be quashed on
the grounds cited by Rapido’s counsel.
a. The Supreme Court has held in Soliven v.
Makasiar (167 SCRA 393, 14 Nov. 1988) that
Section 2 of Art. III of the Constitution does not
mandatorily require the judge to personally
examine the complainant and his witnesses.
The judge may opt to personally evaluate the
report and supporting documents submitted by
the regarding the existence of probable cause
and on the basis thereof issue a warrant of
arrest.
b. There is no requirement of a prior order by the
judge finding probable cause. The SC has held
that the judge may rely upon the resolution of
the investigating prosecutor provided that he
personally evaluates the same and the affidavits
and supporting documents, which he did.
(People v. Grey, G.R. No. 180109, 26 July 2010)
F. BAIL
(RULE 114)
NATURE
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 prescribed
under the Rules. (Sec. 1, Rule 114, ROC, as amended)
Basis of the right to bail
The right to bail is a constitutional right which flows
from the presumption of innocence in favor of every
490
accused who should not be subjected to the loss of
freedom.
Thus, the right to bail only accrues when a person is
arrested or deprived of his liberty. The right to bail
presupposes that the accused is under legal custody.
(Paderanga v. CA, G.R. No. 115407, 28 Aug. 1995)
It would be premature to file a petition for bail for
someone whose freedom has yet to be curtailed.
(Alva v. CA, G.R. No. 157331, 12 Apr. 2006)
Constitutional principles on bail
a. All persons, except those charged with offenses
punishable by reclusion perpetua when
evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law.
b. The suspension of the privilege of the writ of
habeas corpus does not impair the right to bail.
c. Excessive bail is not to be required. (Sec. 13,
Article III, 1987 Constitution)
The applicant for bail must be in custody
Bail as defined in Section 1 of Rule 114 is “the
security given for the release of a person in custody
of the law.” Based on this definition, the accused
must be in custody of the law or otherwise deprived
of his or her liberty to be able to post bail. (Tejano v.
Marigomen, A.M. No. RTJ-17-2492, 26 Sept. 2017) A
free man, therefore, is not entitled to bail. A fugitive
may not apply for bail unless he gives himself up
first so he may be placed under the custody of law.
(Riano, 2019)
A person applying for admission to bail must be in
the custody of the law or otherwise deprived of his
liberty. A person who has not submitted himself to
the jurisdiction of the court has no right to invoke
the processes of that court. (Miranda v. Tuliao, G.R.
No. 158763, 31 Mar. 2006)
Effect of mitigating circumstances in
determining the right to bail
The presence or absence of mitigating
circumstances is not a consideration that the
 Criminal Procedure
Constitution deemed worthy. It is, therefore, the
maximum penalty provided by the offense that has
bearing and not the possibility of mitigating
circumstances being appreciated in the accused’s
favor. (Enrile v. Sandiganbayan, G.R. No. 213847, 18
Aug. 2015)
Nature of bail proceedings
The hearing of an application for bail should be
summary in nature or otherwise in the discretion of
the court.
NOTE: 'Summary hearing' means such brief and
speedy method of receiving and considering the
evidence of guilt as is practicable and consistent
with the purpose of the hearing which is merely to
determine the weight of the evidence for purposes
of bail. (Ocampo v. Bernabe, G.R. No. L-439, 20 Aug.
1946)
Purposes of bail
1. To relieve an accused from the rigors of
imprisonment until his conviction and yet
secure his appearance at the trial (Almeda v.
Villaluz, G.R. No. L-31665, 06 Aug. 1975);
2. To honor the presumption of innocence until
his guilt is proven beyond reasonable doubt;
and
3. To enable him to prepare his defense without
being subjected to punishment prior to
conviction.
Conditions attached to the grant of bail
All kinds of bail are subject to the following
conditions:
1. The undertaking shall be effective upon
approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation
of the judgment of the Regional Trial Court,
irrespective of whether the case was originally
filed in or appealed to it;
2. The accused shall appear before the proper
court whenever required by the court or the
Rules;
491
3. The failure of the accused to appear at the trial
without justification and despite due notice
shall be deemed a waiver of his right to be
present thereat. In such case, the trial may
proceed in absentia; and
4. The bondsman shall surrender the accused to
the court for execution of the final judgment.
(Sec. 2, Rule 114, ROC, as amended)
NOTE: The original papers shall state the full name
and address of the accused, the amount of the
undertaking and the conditions required by this
section. Photographs (passport size) taken within
the last 6 months showing the face, left and right
profiles of the accused must be attached to the bail.
(Sec. 2, Rule 114, ROC, as amended)
When the court finds that there is likelihood of the
accused jumping bail or committing other harm to
the citizenry, the court may grant other conditions
in granting bail. (Almeda v. Villaluz, G.R. No. L-31665,
06 Aug. 1975)
Bail shall be filed:
1. In the court where the case is pending;
2. In the absence or unavailability of the judge
thereof, with any RTC judge, MTC judge, or
MCTC judge in the province, city, or
municipality;
NOTE: Where there is no showing that the
judge of court where the criminal case is
pending is unavailable, another judge who
entertains a bail application despite knowledge
of the pendency of the case in another court is
clearly in error. (Savella v. Ines, A.M. No. MTJ-07-
1673, 19 Apr. 2007)
3. If the accused is arrested in a province, city, or
municipality other than where the case is
pending, bail may also be filed with any RTC of
said place, or if no judge thereof is available,
with any MTC judge, MCTC therein; (Sec. 17(a),
Rule 114, ROC, as amended)
NOTE: When bail is filed with a court other than
where the case is pending, the judge who
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accepted the bail shall forward it, together with
the order of release and other supporting
papers, to the court where the case is pending.
(Sec. 19, Rule 114, ROC, as amended)
4. Any person in custody who is not yet charged in
court may apply for bail with any court in the
province, city, or municipality where he is held
(Sec. 17(c), Rule 114, ROC, as amended); or
5. Where the grant of bail is a matter of discretion,
or the accused seeks to be released on
recognizance, the application may only be filed
in the court where the case is pending, on trial
or appeal. (Sec. 17(b), Rule 114, as amended by
A.M. No. 05-8-26-SC, 03 Oct. 2005)
Q: If an information was filed in the RTC Manila
charging Mike with homicide and he was
arrested in Quezon City, in what court or courts
may he apply for bail? Explain. (2002 BAR)
A: Mike may apply for bail in the RTC Manila where
the information was filed or in the RTC Quezon City
where he was arrested, or if no judge thereof is
available, with any MTC or MCTC judge therein. (Sec.
17(a), Rule 114, ROC, as amended)
Q: The accused was arrested lawfully without a
warrant for carnapping and detained at Camp
Crame in Quezon City. He asked for a
preliminary investigation and signed a waiver of
the provisions of Art. 125 of the RPC. However,
the assisting judge of the RTC in Marikina
approved the bail bond for the accused who was
being held in Quezon City. Was the approval of
the bail bond proper?
A: NO. The bail must be applied for and issued by
the court in the province, city, or municipality
where the person arrested is held. In this case, the
bail application should have been filed with a
Quezon City court which has the authority to grant
the bail and not Marikina court. (Ruiz v. Beldia, Jr.,
A.M. No. RTJ-02-1731, 16 Feb. 2005)
Q: Is arraignment required before the court
grants bail?
A: NO. For the following reasons:
492
1. The trial court could ensure the presence of the
accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceedings (Sec. 2(b), Rule 114,
ROC, as amended); and
2. The accused would be placed in a position
where he has to choose between (1) filing a
motion to quash and thus delay his release on
bail, and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once and
thereafter be released on bail. (Lavides v. CA,
G.R. No. 129670, 01 Feb. 2000)
Q: Bobby was charged with plunder before the
Sandiganbayan. Thereafter, he was arrested by
virtue of a warrant of arrest. He then filed an
application for bail. The Sandiganbayan refused
to resolve his application for bail until after his
arraignment. He argues that his arraignment is
not a pre-condition to his application for bail. Is
Bobby correct? Explain.
A: YES. The arraignment of an accused is not a
prerequisite to the conduct of hearings on his
petition for bail. A person is allowed to petition for
bail as soon as he is deprived of his liberty by virtue
of his arrest or voluntary surrender. An accused
need not wait for his arraignment before filing a
petition for bail.
NOTE: If the court finds in such case that the
accused is entitled to bail because the evidence
against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in
such a situation, bail would be “authorized” under
the circumstances. (Serapio v. Sandiganbayan, G.R.
Nos. 148468, 148769, and 149116, 28 Jan. 2003)
Law on Juveniles in conflict with the law with
respect to bail of non-capital offenses
1. The privileged mitigating circumstances of
minority shall be considered. (Sec. 34, R.A. No.
9344, Juvenile and Justice Act of 2006)
2. Where a child is detained, the court shall order
the:
a. Release of the minor on recognizance to
his/her parents and other suitable person;
 Criminal Procedure
b. Release of the child in conflict with the law
on bail; or
c. Transfer of the minor to a youth detention
home or youth rehabilitation center. (Sec.
35, R.A. No. 9344)
NOTE: The court shall not order the detention of a
child in a jail pending trial or hearing of his/her case.
(Sec. 35, R.A. No. 9344)
If minor is unable to furnish bail
The minor shall be, from the time of his arrest,
committed to the care of the DSWD or the local
rehabilitation center or upon recommendation of
DSWD or other agencies authorized by the court
may, in its discretion be released on recognizance.
(Sec. 36, R.A. No. 9344)
Court martial offenses
The right to bail has traditionally not been
recognized and is not available in the military, as
an exception to the general rule embodied in the Bill
of Rights. (Commendador v. De Villa, G.R. No. 93177,
02 Aug. 1991)
Filing of bail after a final judgment
GR: Bail may not be filed once there is already a final
judgment. (Sec. 24, Rule 114, ROC, as amended)
XPN: Even after conviction by the MTC, bail is still a
matter of right.
NOTE: If before such finality, the accused applies for
probation, he may be allowed temporary liberty
under his bail. In no case shall bail be allowed after
the accused has commenced to serve sentence.
Forms of bail
1. Corporate surety/ Bail bond
a. It is an obligation under seal given by the
accused with one or more sureties and
made payable to the proper officer with the
condition to be void upon performance by
the accused of such acts as he may be
legally required to perform;
493
b. The accused goes to an authorized bonding
company and he will pay a premium for the
service which is a percentage of the total
amount of bail. The bonding company will
then go to the court and execute an
undertaking, or "security bond" in the
amount of the bail bond in behalf of the
accused, that if the accused is needed, the
bonding company will bring him before the
court;
c. If the accused jumps bail, the bond will be
cancelled, and the bonding company will be
given sufficient time to locate the
whereabouts of the accused who posted
bail but later on jumps bail. Notice to
bonding company is notice to the accused.
Notice is usually sent to the bonding
company in order to produce the body of
the accused.
NOTE: Liability of surety or bondsman
covers all three stages: trial, promulgation,
and execution of sentence.
2. Property bond
a. The title of the property will be used as
security for the provisional liberty of the
accused which shall constitute a lien over
the property;
b. The accused shall cause the annotation of
the lien within 10 days after approval of the
bond before the:
i. Registry of Deeds if the property is
registered; or
ii. Registration Book in the Registry of
Deeds of the place where the land lies
and before the provincial, city or
municipal assessor on the
corresponding tax declaration if
property is not registered (Sec. 11,
Rule 114, ROC, as amended);
c. The person who undertakes the conditions
of a regular bond will be the custodian of
the accused during the time that he is under
provisional liberty.
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NOTE: In all cases, the surety of properties
must be worth the amount specified in his own
undertaking over and above all just debts,
obligations and properties exempt from
execution. (Sec. 12, Rule 114, ROC, as amended)
3. Cash deposit or Cash bond
court. This is the remedy because no money is
involved in recognizance.
Where Recognizance also applies
Under R.A. No. 10389, recognizance is not solely
allowed or applied to light felonies.

a. It is deposited by the accused himself or
any person acting in his behalf;
b. Cash shall be in the amount fixed by the
court or recommended by the prosecutor
who investigated the case;
Under Sec. 5 of R.A. No. 10389, the release on
recognizance of any person in custody or detention
for the commission of an offense is a matter of right
when the offense is not punishable by death,
reclusion perpetua, or life imprisonment.

c. It is to be deposited before the:
i. Nearest collector of internal revenue;
ii. Provincial, city or municipal treasurer;
or
iii. Clerk of court where the case is
pending;
d. No further order from the court is
necessary for the release of the accused if
the conditions prescribed were complied
with (Sec. 14, Rule 114, ROC, as amended);
e. If the accused does not appear when
required, the whole amount of the cash
bond will be forfeited in favor of the
government and the accused will now be
arrested.
However, the accused must file an application for
such in the following instances:
a) Before or after conviction by the Metropolitan
Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities and Municipal Circuit Trial
Court; and
b) Before conviction by the Regional Trial Court:
Provided, further, That a person in custody for
a period equal to or more than the minimum of
the principal penalty prescribed for the offense
charged, without application of the
Indeterminate Sentence Law, or any modifying
circumstance, shall be released on the person’s
recognizance. (Sec. 5, R.A. No. 10389)
Bail bond vs. Recognizance

4. Recognizance BAIL BOND RECOGNIZANCE

An obligation under
An obligation of record
a. An obligation of record, entered into before seal given by the
entered into before
some court or magistrate duly authorized accused with one or
some court or
to take it with the condition to do some more sureties and
magistrate duly
particular act. It is an undertaking of a made payable to the
authorized to take it
disinterested person with high credibility proper officer with the
with the condition to do
wherein he will execute an affidavit of condition to be void
some particular act, the
recognizance to the effect that when the upon performance by
most usual condition in
presence of the accused is required in the accused of such
criminal cases being the
court, the custodian will bring him to that acts as he may legally
appearance of the
court; be required to
accused for trial.
b. This is allowed for light felonies only. perform.

NOTE: If the accused does not appear despite

notice to the custodian, or the person who
executed the recognizance does not produce
the accused, he may be cited for contempt of

494
 Criminal Procedure
Liability of the surety or bondsmen
It is inherently civil in nature. The liability of the
bondsmen on the bail bond arises not from the
violation of, or an obligation to comply with, a penal
provision of law. It emerges instead from a contract,
the bond subscribed jointly by the accused and the
surety or bondsmen.
The obligation of the accused on the bond is
different from the surety in that the former can be
made to suffer a criminal penalty for failure to
comply with the obligations on the bail bond.
However, the surety is not under a similar pain of
punishment, as its liability on the bail bond would
merely be civil in character. (Reliance Surety and
Insurance Co. v. Amante, Jr., et. al., G.R. No. 150994, 30
June 2005)
NOTE: The court may not impose additional
obligations upon the bondsmen other than those
provided by law. The obligation imposed upon the
bondsmen cannot be greater nor of a different
character than those imposed upon the accused.
(Bandoy v. Judge of CFI of La Laguna, G.R. No. L-5200,
11 Mar. 1909)
Effect of filing forged bail bonds
By filing forged bail bonds, appellants are
considered not merely to have jumped bail, but for
all intents and purposes to have escaped from
detention. Hence, their pending appeal should be
dismissed, subject to the filing of the proper
criminal cases against the parties responsible
therefor. (People v. Del Rosario, G.R. Nos. 107297-98,
19 Dec. 2000)
WHEN A MATTER OF RIGHT; EXCEPTIONS
Bail as a matter of right
1. Before or after conviction by the MeTC, MTC,
MTCC or MCTC;
NOTE: All criminal cases under their
jurisdiction are bailable as a matter of right
because these courts have no jurisdiction to try
cases punishable by death, reclusion perpetua,
495
or life imprisonment. (Enrile v. Sandiganbayan,
G.R. No. 213847, 18 Aug. 2015)
2. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment (Sec. 4, Rule 114, ROC, as
amended); and
3. Before final conviction by all children in conflict
with the law for an offense not punishable by
reclusion perpetua or life imprisonment.
Q: When the accused is entitled as a matter of
right to bail, may the court refuse to grant him
bail on the ground that there exists a high
degree of probability that he will abscond or
escape? Explain. (1999 BAR)
A: NO. Where the offense is bailable, the mere
probability that the accused will escape or if he had
previously escaped while under detention does not
deprive him of his right to bail. The remedy is to
increase the amount of bail, provided the amount is
not excessive. (Sy Guan v. Amparo, G.R. No. L-1771,
04 Dec. 1947)
WHEN A MATTER OF DISCRETION
Bail as a matter of discretion (2017 BAR)
1. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment;
2. Regardless of the stage of the criminal
prosecution, a person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence
of guilt is not strong (Sec. 7, Rule 114, ROC, as
amended); and
3. A child in conflict with the law charged with an
offense punishable by death, reclusion perpetua
or life imprisonment when evidence of guilt is
not strong. (Sec. 28, A.M. No. 02-1-18-SC)
NOTE: The prosecution cannot adduce evidence for
the denial of bail where it is a matter of right.
However, where the grant of bail is discretionary,
the prosecution may show proof to deny the bail.
Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
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 Remedial Law
to the prosecutor or fiscal, or at least he must be
asked for his recommendation.
Recommendation is necessary because in fixing the
amount of bail, the judge is required to take into
account a number of factors such as the applicant’s
character and reputation, forfeiture of other bonds
or whether he is a fugitive from justice.
Remedy of the accused when bail is
discretionary
When bail is discretionary, the remedy of the
accused is to file a petition for bail. Once a petition
for bail is filed, the court is mandated to set a
hearing to give opportunity to the prosecution to
prove that the evidence of guilt is strong. If strong,
the bail will be denied. If weak, the bail will be
granted.
Bail upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment
The application for bail may be filed and acted upon
by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original
record to the appellate court. However, if the
decision of the trial court convicting the accused
changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed
with and resolved by the appellate court. (Sec. 5,
Rule 114, ROC, as amended)
Q: Charged with murder, Leviste was convicted
with the crime of homicide and was sentenced to
suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12
years and one day of reclusion temporal as
maximum. Pending appeal he applied for bail,
but the same was denied by the CA. Petitioner’s
theory is that, where the penalty imposed by the
trial court is more than 6 years but not more
than 20 years and the circumstances mentioned
in the third paragraph of Sec. 5 are absent, bail
must be granted to an appellant pending appeal.
In an application for bail pending appeal by an
appellant sentenced to a penalty of
imprisonment for more than six years, does the
discretionary nature of the grant of bail pending
496
appeal mean that bail should automatically be
granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule
114 of the Rules of Court?
A: NO. In an application for bail pending appeal by
an appellant sentenced for more than six years, the
discretionary nature of the grant of bail pending
appeal does not mean that bail should automatically
be granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule 114
of the Rules of Court.
The third paragraph of Sec. 5 of Rule 114 applies to
two scenarios where the penalty imposed on the
appellant applying for bail is imprisonment
exceeding 6 years. The first scenario involves the
absence of any of the circumstances enumerated in
the said paragraph. The second scenario
contemplates the existence of at least one of the said
circumstances.
In the first situation, bail is a matter of sound judicial
discretion. This means that, if none of the
circumstances mentioned in the third paragraph of
Sec. 5, Rule 114 is present, the appellate court has
the discretion to grant or deny bail. An application
for bail pending appeal may be denied even if the
bail-negating circumstances in the third paragraph
of Sec. 5, Rule 114 are absent.
On the other hand, on the second situation, the
appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether
any of the enumerated circumstances in fact exists.
If it so determines, it has no other option except to
deny or revoke bail pending appeal. Thus, a finding
that none of the said circumstances is present will
not automatically result in the grant of bail. Such
finding will simply authorize the court the less
stringent sound discretion approach. (Leviste v. CA,
G.R. No. 189122, 17 Mar. 2010)
Q: Enrile and several others were charged with
plunder in the Sandiganbayan on the basis of
their purported involvement in the diversion
and misuse of appropriations under the Priority
Development Assistance Fund (PDAF). On the
same day that the warrant for his arrest was
issued, Enrile voluntarily surrendered.
 Criminal Procedure
Consequently, Enrile filed a Motion to Fix Bail
which was likewise denied by the
Sandiganbayan. Is Enrile entitled to bail?
A: YES. The Sandiganbayan arbitrarily ignored the
objective of bail to ensure the appearance of the
accused during the trial; and unwarrantedly
disregarded the clear showing of the fragile health
and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion to Fix Bail. The Court is
further mindful of the Philippines’ responsibility in
the international community arising from the
national commitment under the Universal
Declaration of Human Rights to uphold the
fundamental human rights as well as value the
worth and dignity of every person. In the Court’s
view, his social and political standing and his having
immediately surrendered to the authorities upon
his being charged in court indicate that the risk of
his flight or escape from this jurisdiction is highly
unlikely. (Enrile v. Sandiganbayan, G.R. No. 213847,
18 Aug. 2015)
Grounds for denial of bail if the penalty imposed
by the trial court exceeds 6 years
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 the following or other similar
circumstances:
1. That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
2. That he previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
3. That he committed the offense while under
probation, parole, or conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if released on bail; or
5. That there is undue risk that he may commit
another crime during the pendency of the
appeal. (Sec. 5, Rule 114, ROC, as amended)
497
Bail may also be availed under any of the
following instances:
1. When a person lawfully arrested without a
warrant asks for a preliminary investigation
before the complaint or information is filed in
court, he may apply for bail. (Sec. 6, Rule 112,
ROC, as amended)
2. The court may require a witness to post bail if
he is a material witness and bail is needed to
secure his appearance. When the court is
satisfied, upon proof or oath, that a material
witness will not testify when required, it may,
upon motion of either party, order the witness
to post bail in such sum as may be deemed
proper. Upon refusal to post bail, the court shall
commit him to prison until he complies or is
legally discharged after his testimony is taken.
(Sec. 14, Rule 119, ROC, as amended)
Bail in Extradition Cases
1. While our extradition law does not provide for
the grant of bail to an extraditee, however, there
is no provision prohibiting him or her from
filing a motion for bail, a right to due process
under the Constitution.
2. While extradition is not a criminal proceeding,
it still entails a deprivation of liberty on the part
of the potential extraditee and furthermore, the
purpose of extradition is also the machinery of
criminal law.
3. The Universal Declaration of Human Rights
applies to deportation cases; hence, there is no
reason why it cannot be invoked in extradition
cases.
4. The main purpose of arrest and temporary
detention in extradition cases is to ensure that
the potential extraditee will not abscond.
5. Under the principle of pacta sunt servanda, the
Philippines must honor the Extradition Treaty
it entered into with other countries. Hence, as
long as the requirements are satisfactorily met,
the extraditee must not be deprived of his right
to bail. (Government of Hong Kong Special
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Administrative Region v. Olalia, G.R. No. 153675,
19 Apr. 2007)
NOTE: The required proof of evidence is “clear and
convincing evidence” and not preponderance of
evidence nor proof beyond reasonable doubt. The
burden of proof lies with the extraditee. (Ibid.)
Bail in deportation proceedings
It is available; however, bail in deportation
proceedings is wholly discretionary. (Hang, etc. et al
v. Commissioner of Immigration, G.R. No. L-9700, 28
Feb. 1962)
Guidelines regarding the effectivity of bail
The SC En Banc laid the following policies
concerning the effectivity of the bail of the accused:
1. When the accused is charged with an offense
which is punishable by a penalty lesser than
reclusion perpetua at the time of the
commission of the offense, or the application
for bail and thereafter he is convicted of a
lesser offense than that charged, he may be
allowed to be released on the same bail he
posted, pending his appeal provided, he does
not fall under any conditions of bail.
2. The same rule applies if he is charged with a
capital offense but later on convicted of a
lesser offense, that is, lower than that charged.
3. If on the other hand, he is convicted of that
offense which was charged against him, his
bail shall be cancelled and he shall thereafter
be placed in confinement.
NOTE: Bail in these circumstances is still not a
matter of right but only a matter of sound discretion
of the court. (Herrera, 2007)
HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES
A hearing of the application for bail is to be
conducted when a person is in custody for the
commission of an offense punishable by death,
498
reclusion perpetua, or life imprisonment. (Sec. 8,
Rule 114, ROC, as amended)
In a petition for admission to bail, the judge is under
legal obligation to receive evidence from the
prosecution with the view of determining whether
the evidence of guilt is so strong as to warrant the
denial of bail. For this purpose, therefore a hearing
must be conducted to give opportunity for the
prosecution to present evidence that the guilt of the
accused is so strong before resolution of the motion.
(Tolentino v. Camano, Jr., AM No. RTJ-00-1522, 20 Jan.
2000)
The fact that the prosecutor interposed no objection
to the application for bail by the accused did not
relieve respondent judge of the duty to set the
motion for bail for hearing. (Managuelod v. Paclibon,
Jr., A.M. No. RTJ-02-1726, 12 Dec. 2003)
Capital Offense
A capital offense is an offense which, under the law
existing at the time of its commission and of the
application for admission to bail, may be punished
with death. (Sec. 6, Rule 114, ROC, as amended)
NOTE: The imposition of death penalty was
prohibited by R.A. No. 9346 or “An Act Prohibiting
the Imposition of Death Penalty in the Philippines.”
Hearing of application for bail in offenses
punishable by death, reclusion perpetua or life
imprisonment
1. The hearing of the accused's motion for bail
shall be summary; with the prosecution bearing
the burden of showing that the evidence of guilt
is strong. The accused may at his option, if he
wants the court to consider his evidence as well,
submit in support of his motion the affidavits of
his witnesses attesting to his innocence.
2. At the hearing of the accused's motion for bail,
the prosecution shall present its witnesses with
the option of examining them on direct or
adopting the affidavits they executed during the
preliminary investigation as their direct
testimonies.
 Criminal Procedure
3. The court shall examine the witnesses on their
direct testimonies or affidavits to ascertain if
the evidence of guilt of the accused is strong.
The court's questions need not follow any
particular order and may shift from one witness
to another. The court shall then allow counsels
from both sides to examine the witnesses as
well. The court shall afterwards hear the oral
arguments of the parties on whether or not the
evidence of guilt is strong.
4. Within 48 hours after hearing, the court shall
issue an order containing a brief summary of
the evidence adduced before it, followed by its
conclusion of whether or not the evidence of
guilt is strong. Such conclusion shall not be
regarded as a pre-judgment on the merits of the
case that is to be determined only after a full-
blown trial. (Sec. 6, A.M. No. 12-11-2-SC)
NOTE: The court consistently applies the rule
that it is a mandatory duty to conduct a hearing
even if the prosecution chooses to just file a
comment or leave the application for bail to the
discretion of the court. The purpose is to
determine whether the evidence of guilt is
strong as to deny the application for bail.
(Goodman vs. De la Victoria, A.M. No. RTJ-99-
1473, 16 Feb. 2000)
Duties of the trial judge if an application for bail
in offenses punishable by reclusion perpetua,
life imprisonment or death
1. Reasonably notify the prosecutor of the
hearing of the application for bail or require
him to submit his recommendation (Sec. 18,
Rule 114, ROC, as amended);
2. Conduct a hearing of the application for bail
regardless of whether or not the prosecution
refuses to present evidence to show that the
guilt of the accused is strong for the purpose of
enabling the court to exercise its sound
discretion (Secs. 7 and 8, Rule 114, ROC, as
amended);
3. Decide whether the evidence of guilt of the
accused is strong based on the summary of
499
evidence of the prosecution (Baylon v. Sison,
A.M. No. 92-7-360-0, 06 Apr. 1995); and
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of the
bail bond. Otherwise, petition should be
denied. (Sec. 19, Rule 114, ROC, as amended)
Party with the burden of proof in bail
applications
It is the prosecution who has the burden of showing
that evidence of guilt is strong at the hearing of an
application for bail filed by a person who is charged
with a capital offense or an offense punishable by
reclusion perpetua or life imprisonment. (Sec. 8, Rule
114, ROC, as amended)
Effect of a grant of bail
The accused shall be released upon approval of the
bail by the judge. (Sec. 19, Rule 114, ROC, as
amended)
Remedy of the accused when bail is denied by
the trial court
File a petition for certiorari under Rule 65 based on
grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing such order. Such
petition must take into account the hierarchy of
courts. In the meantime, however, while the case is
pending, the accused may not be released. (Caballes
v. CA, G.R. No. 163108, 23 Feb. 2005)
Evidence in bail hearing is automatically
reproduced
The evidence presented during the bail hearing
shall be considered automatically reproduced at the
trial but, upon motion of either party, the court may
recall any witness for additional examination unless
the latter is dead, outside the Philippines, or
otherwise unable to testify. (Sec. 8, Rule 114, ROC, as
amended)
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GUIDELINES IN FIXING AMOUNT OF BAIL
The basic rule in fixing the amount of bail is that
excessive bail shall not be required. (Sec. 13, Art. III,
Bill of Rights, 1987 Constitution)
In fixing the amount of bail, the amount should be
high enough to assure the presence of the accused
when such presence is required, but not higher than
what is reasonably calculated to fulfill the purpose.
(Villaseñor v. Abano G.R. No. L-23599, 26 Sept. 1967)
Fixing of the amount of bail
Pending the raffle of the case to a regular branch of
the court, the accused may move for the fixing of the
amount of bail, in which event, the executive judge
shall cause the immediate raffle of the case for
assignment and the hearing of the motion. (Sec. 2,
A.M. No. 12-11-2-SC)
Duty of the court to fix appropriate bail
The court shall, after finding sufficient cause to hold
the accused for trial, fix the amount of bail that the
latter may post for his provisional release, taking
into account the public prosecutor's
recommendation and any relevant data that the
court may find from the criminal information and
the supporting documents submitted with it,
regarding the following:
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing in trial;
8. Forfeiture of other bonds;
9. The fact that the accused was a fugitive from
justice when arrested; and
10. Pendency of the cases in which the accused is
under the bond. (Sec. 1, A.M. No. 12-11-2-SC)
500
BAIL WHEN NOT REQUIRED
Instances when bail is not necessary or when
recognizance is sufficient
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or Php2,000 fine,
under circumstances provided under RA 6036
(An Act providing that bail shall not, with certain
exceptions, be required in cases of violations of
municipal or city ordinances and in light
offenses);
2. Where a person has been in custody for a period
equal to or more than the minimum of the
imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case
the court, in its discretion, may allow his release
on a reduced bail or on his own recognizance
(Sec. 16, Rule 114, ROC, as amended);
3. When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense
charged, he shall be released immediately,
without prejudice to the continuation of the
trial or the proceedings on appeal. If the
maximum penalty to which the accused may be
sentenced is destierro, he shall be released after
30 days of preventive imprisonment (Sec. 16,
Rule 114, ROC, as amended);
4. The accused who has been detained for a period
at least equal to the minimum of the penalty for
the offense charged against him shall be
ordered released, motu proprio or on motion
and after notice and hearing, on his own
recognizance without prejudice to the
continuation of the proceedings against him
(Sec. 5, A.M. No. 12- 11-2-SC citing Sec. 16, Rule
114, Rules of Court, as amended and Sec. 5(b),
R.A. No. 10389);
5. Where the accused has applied for probation,
pending the resolution of the case but no bail
was filed or the accused is incapable of filing
one (Sec. 24, Rule 114, ROC, as amended);
 Criminal Procedure
6. In case of a youthful offender held for a physical
and mental examination, trial, or appeal, if he is
unable to furnish bail and under circumstances
envisaged in P.D. No. 603 (Child and Youth
Welfare Code), as amended; and
7. Before final conviction, all juveniles charged
with offenses falling under the Revised Rule on
Summary Procedure shall be released on
recognizance to the custody of their parents or
other suitable person who shall be responsible
for the juveniles’ appearance in court whenever
required. (Sec. 25, A.M. No. 02-1-18-SC)
When bail is not allowed
1. A person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, shall not be admitted to bail
when evidence of guilt is strong; (Sec. 7, Rule
114, ROC, as amended)
2. After judgment of conviction has become final;
(Sec. 24, Rule 114, ROC, as amended) or
3. After the accused has commenced to serve his
sentence. (Ibid.)
Q: Paz was awakened by a commotion coming
from a condo unit next to hers. Alarmed, she
called up the nearby police station. PO1 Remus
and P02 Romulus proceeded to the condo unit
identified by Paz. PO1 Remus knocked at the
door and when a man opened the door, PO1
Remus and his companions introduced
themselves as police officers. The man readily
identified himself as Oasis Jung and gestured to
them to come in. Inside, the police officers saw a
young lady with her nose bleeding and face
swollen. Asked by P02 Romulus what happened,
the lady responded that she was beaten up by
Oasis Jung. The police officers arrested Oasis
Jung and brought him and the young lady back
to the police station. PO1Remus took the young
lady's statement who identified herself as AA.
She narrated that she is a sixteen-year-old high
school student; that previous to the incident, she
had sexual intercourse with Oasis Jung at least
five times on different occasions and she was
paid P5,000.00 each time and it was the first
time that Oasis Jung physically hurt her. P02
Romulus detained Oasis Jung at the station's jail.
501
After the inquest proceeding, the public
prosecutor filed an information for Violation of
R.A. No. 9262 (The VAWC Law) for physical
violence and five separate information for
violation of R.A. No. 7610 (The Child Abuse Law).
Oasis Jung's lawyer filed a motion to be admitted
to bail but the court issued an order that
approval of his bail bond shall be made only
after his arraignment.
a. Did the court properly impose that bail
condition before arraignment, Oasis Jung's
lawyer moved to quash the other four
separate information for violation of the
child abuse law invoking the single larceny
rule?
b. Should the motion to quash be granted?
c. After his release from detention on bail, can
Oasis Jung still question the validity of his
arrest? (2015 BAR)
A:
a. NO. The court did not properly impose the
condition that the approval of the bail bond
shall be made only after the arraignment. In a
case involving similar facts, the Supreme Court
held that in cases where it is authorized, bail
should be granted before arraignment,
otherwise the accused may be hindered from
filing a motion to quash since his arraignment
would necessarily be deferred pending the
resolution of the motion to quash. This would
amount to a substantial dilution of his right to
file a motion to quash. (Lavides v. CA, G.R. No.
129670, 01 Feb. 2000)
b. NO. The motion to quash should not be granted.
In a case involving similar facts, the Supreme
Court held that each act of sexual intercourse
with a minor is a separate and distinct offense
under R.A. No. 7610. Hence the single larceny or
single offense rule is not applicable. (Id.)
c. YES. Oasis Jung can still question the validity of
his arrest after his release from detention on
bail. Under the Rules on Criminal Procedure,
admission to bail shall not bar the accused from
challenging the validity of his arrest provided
that he does so before entering his plea. (Sec. 26,
Rule 114, ROC, as amended)
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INCREASE OR REDUCTION OF BAIL
After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its
amount. When increased, the accused may be
committed to custody if he does not give bail in the
increased amount within a reasonable period. (Sec.
20, Rule 114, ROC, as amended)
NOTE: A motion to reduce the amount of bail
likewise requires a hearing before it is granted in
order to afford the prosecution the chance to
oppose it. (Sec. 18, Rule 114, ROC, as amended)
Excessive bail may not be imposed because that is
tantamount to denying bail.
When accused does not have financial ability to
post the bail initially fixed by the court
The accused may move for its reduction by
submitting documents and affidavits that may
warrant his claim for reduction. (Sec. 3, A.M. No. 12-
11-2-SC)
Priority of Hearing for motion for reduction of
bail
Such motion shall enjoy priority in the hearing of
cases. (Sec. 3, A.M. No. 12-11-2-SC)
The order fixing the amount of the bail shall not be
subject to appeal. (Sec. 4, A.M. No. 12-11-2-SC)
FORFEITURE AND CANCELLATION OF BAIL
Effects of the failure of the accused to appear in
court when so required
1. The bail shall be declared forfeited; and
2. The bondsmen are given 30 days within which
to:
a. Produce the body of their principal or give
the reason for his non-production; and
b. Explain why the accused did not appear
before the court when first required to do
so. (Sec. 21, Rule 114, ROC, as amended)
502
Liability of the bondsmen for failure to comply
with their obligations when the accused fails to
appear when required
A judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of
the bail. (Sec. 21, Rule 114, ROC, as amended)
NOTE: The court shall not reduce or mitigate the
liability of the bondsmen, unless the accused has
been surrendered or is acquitted. (Sec. 21, Rule 114,
ROC, as amended)
The 30-day period granted to the bondsmen to
comply with the two requisites for the lifting of the
order of forfeiture cannot be shortened by the court
but may be extended for good cause shown.
Bench Warrant
Aside from the forfeiture, when the accused fails to
appear in court despite notice, the court may issue a
bench warrant for his arrest.
It is a writ issued directly by a judge to a law
enforcer, for the arrest of a person who has been
held in contempt, has disobeyed a subpoena, or has
to appear for a hearing or trial. (Magleo v. De Juan-
Quinagoran, A.M. No. RTJ-12-2336, 12 Nov. 2014)
Cancellation of bail
1. Upon the application of the bondsmen, with due
notice to the prosecutor, the bail may be
cancelled upon:
a. Surrender of the accused; or
NOTE: In order to cancel bail on the ground
of surrender, the surrender must be
voluntary. (Esteban v. Alhambra, G.R. No.
135012, September 4, 2004)
b. Proof of his death.
2. The bail shall be deemed automatically
cancelled upon:
a. Acquittal of the accused;
b. Dismissal of the case; or
 Criminal Procedure

c. Execution of the judgment of conviction.
(Sec. 22, Rule 114, ROC, as amended)
NOTE: In all instances of cancellation of bail,
automatic or otherwise, it shall be without prejudice
to any liability on the part of the surety. (Sec. 22, Rule
114, ROC, as amended)
Order of forfeiture vs. Order of cancellation
motion to quash. The purpose of bail is to obtain the
provisional liberty of a person charged with an
offense until his conviction while at the same time
securing his appearance at the trial. On the other
hand, a motion to quash an information is the 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 for defects
which are apparent on the face of the information.

ORDER OF ORDER OF These two reliefs have objectives which are not
FORFEITURE CANCELLATION necessarily antithetical to each other. The right of an
Not independent of the accused to seek provisional liberty when charged
order of forfeiture. It is a with an offense not punishable by death, reclusion
judgment ultimately perpetua or life imprisonment, or when charged
determining the liability with an offense punishable by such penalties but
Conditional and
of the surety after due hearing, evidence of his guilt is found not
interlocutory. It is not
thereunder and to be strong, does not preclude his right to assail the
appealable.
therefore final. validity of the information charging him with such
offense. It must be conceded, however, that if a
Execution may issue at motion to quash a criminal complaint or
once. information on the ground that the same does not
charge any offense is granted and the case is
APPLICATION NOT A BAR TO OBJECTIONS IN dismissed and the accused is ordered released, the
ILLEGAL ARREST, LACK OF OR IRREGULAR petition for bail of an accused may become moot and
PRELIMINARY INVESTIGATION academic. (Serapio v. Sandiganbayan, G.R. Nos.
148468, 148769, and 149116, 28 Jan. 2003)
Bail not a bar to objections on illegal arrest, lack
of or irregular preliminary investigation HOLD DEPARTURE ORDER
AND BUREAU OF IMMIGRATION WATCHLIST
An application for bail is not a bar to objections in
illegal arrest or irregularity or lack of preliminary An accused released on bail may be re-arrested
investigation, provided that he raises them before without the necessity of a warrant if he attempts to
entering his plea. The court shall resolve the matter depart from the Philippines without permission of
as early as possible, not later than the start of the the court where the case is pending. (Sec 23, Rule
trial on the case. (Sec. 26, Rule 114, ROC, as amended) 114, ROC, as amended)

Q: Paolo was charged with estafa. Thereafter, he
was arrested by virtue of a warrant of arrest
issued by the RTC. Before arraignment, Paolo
filed an application for bail. Paolo then filed a
motion to quash information on the ground that
it charges more than one offense. RTC denied
bail to Paolo on the ground that an application
for bail and a motion to quash are inconsistent
remedies. Is the RTC correct?
A: NO. There is no inconsistency in filing an
application of an accused for bail and his filing of a
Hold Departure Order (HDO)
It is an order issued by the Secretary of Justice or the
proper RTC commanding the Commissioner of the
Bureau of Immigration to prevent the departure for
abroad of Filipinos and/or aliens named therein by
including them in the Bureau’s Hold Departure List.
(DOJ Dept. Order No. 17)
NOTE: The proper court may issue an HDO or direct
the Department of Foreign Affairs to cancel the
passport of the accused. This is a case of a valid
restriction on a person’s right to travel so that he

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may be dealt with in accordance with the law.
(Silverio v. CA, G.R. No. 94284, 08 Apr. 1991)
Who may issue an HDO
1. The RTC pursuant to SC Circular 39-97; or
2. The RTC, sitting as a Family Court pursuant to
A.M. No. 02-11-12-SC;
NOTE: The DOJ Circular No. 41 granting the DOJ the
power to issue an HDO was held to be
unconstitutional as it is violative of the person’s
right to travel as enshrined in our constitution.
(Genuino v. De Lima, G.R. No. 197930, 17 Apr. 2018)
NOTE: SC Circular 39-97 (19 June 1997) limits the
authority to issue HDO to the RTCs. Considering that
only the RTC is mentioned in said Circular and by
applying the rule on legal hermeneutics of express
mention implied exclusion, courts lower than the
RTC — such as the MeTC, MTC, MTCC and MCTC —
has no authority to issue hold departure orders in
criminal cases. (A.M. No. 99-9-141-MTCC, 25 Nov.
1999)
Q: In 2010, Acting DOJ Secretary Agra issued DOJ
Circular No. 41 governing the issuance and
implementation of Hold Departure Orders
(HDO), Watchlist Orders (WLO), and Allow
Departure Orders (ADO). In 2011, DOJ Sec. De
Lima issued a WLO against Former President
Arroyo on the ground that criminal charges of
plunder, qualified theft and violation of
Omnibus Election Code were filed against them.
Arroyo filed a TRO against the issued HDO and
WLO of DOJ and seeking relief that they be
allowed to travel to seek medical treatment
abroad. The court granted relief sought on a
condition that a bond will be filed, an
undertaking that Arroyo will report to the
Philippine Consulate in the countries they are to
visit and appointing a representative to receive
legal processes. Instead of following the order of
the court, DOJ refused to process the travel
documents. Genuino filed a petition questioning
the constitutionality of the DOJ Circular on the
ground that it infringes the constitutional right
to travel. Is DOJ Circular No. 41 violative of the
constitutional right to travel?
504
A: YES. DOJ Circular No. 41 was held to be
unconstitutional. It bears reiterating that the power
to issue HDO is inherent to the courts. The courts
may issue a HDO against an accused in a criminal
case so that he may be dealt with in accordance with
law. The point is that the DOJ may not justify its
imposition of restriction on the right to travel of the
subjects of DOJ Circular No. 41 by resorting to an
analogy. Contrary to its claim, it does not have
inherent power to issue HDO, unlike the courts, or
to restrict the right to travel in anyway. It is limited
to the powers expressly granted to it by law and
may not extend the same on its own accord or by
any skewed interpretation of its authority. (Genuino
v. De Lima, G.R. No. 197930, 17 Apr. 2018)
HDO when issued
HDO shall be issued only in criminal cases within
the exclusive jurisdiction of the RTCs upon proper
motion of the party. (SC Circular 39-97)
Effect of the acquittal of the accused or dismissal
of the case to the hold departure order issued by
the RTC
Whenever (a) the accused has been acquitted; or (b)
the case has been dismissed, the judgment of
acquittal or the order of dismissal shall include
therein the cancellation of the HDO issued. The
courts concerned shall furnish the Department of
Foreign Affairs and the Bureau of Immigration with
a copy each of the judgment of acquittal
promulgated or the order of dismissal issued within
24 hours from the time of promulgation or issuance
and likewise through the fastest available means of
transmittal.
Permission to leave the country
Permission to leave the country should be filed in
the same court where the case is pending because
they are in the best position to judge the propriety
and implication of the same. (Santiago v. Vasquez,
G.R. No. 99289-90, 27 Jan. 1993)
 Criminal Procedure
Remedy against HDO or WLO
HDO or WLO may be assailed by:
1. Filing a motion for cancellation; or
2. Filing a Motion to Lift Hold Departure Order.
Allow Departure Order (ADO)
ADO is a directive that allows the traveler to leave
the territorial jurisdiction of the Philippines. This is
issued upon application to the Commissioner of
Immigration and the appropriate government
agency.
Remedy of a person who is not the same person
whose name appears in the HDO or WLO
Any person who is prevented from leaving the
country because his/her name appears to be the
same as the one that appears in the HDO or WLO
may upon application under oath obtain a
Certification to the effect that said person is not the
same person whose name appears in the issued
HDO or WLO upon submission of the following
requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing
the personal details;
3. Latest clearance from the National Bureau of
Investigation; and
4. Clearance from the court or appropriate
government agency when applicable.
G. ARRAIGNMENT AND PLEA
RULE 116
ARRAIGNMENT AND PLEA, HOW MADE
It is the formal mode of implementing the
constitutional right of the accused to be informed of
the nature of the accusation against him. (People v.
Pangilinan, G.R. No. 171020, 14 Mar. 2007)
Arraignment is a proceeding in a criminal case, the
object of which is to fix the identity of the accused,
505
to inform him of the charge and to give him an
opportunity to plead, or to obtain from the accused
his answer, in other words, his plea to the
information.
NOTE: Arraignment is an indispensable
requirement of due process.
How arraignment is made
The arraignment is made in open court by the judge
or clerk by furnishing the accused with a copy of the
complaint or information, reading the same in the
language or dialect known to him, and asking him
whether he pleads guilty or not guilty. (Sec. 1(a),
Rule 116, ROC, as amended)
Period of arraignment
GR: Arraignment shall be made within 30 days from
the date the court acquires jurisdiction over the
person of the accused. (Sec. 1(g), Rule 116, ROC, as
amended)
NOTE: The time of the pendency of a motion to
quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be
excluded in computing the period.
XPNs:
1. 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 (R.A. No. 8493, Speedy Trial
Act);
3. Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without delay;
4. Cases under R.A. No. 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from
arraignment;
5. Cases under R.A. No. 9165 (Dangerous Drugs
Act); and
6. Cases under SC AO 104-96 i.e., heinous crimes,
violations of the Intellectual Property Rights
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law, these cases must be tried continuously
until terminated within 60 days from
commencement of the trial and to be decided
within 30 days from the submission of the case.
Procedure of arraignment
1. It must be in open court where the complaint or
information has been filed or assigned for trial;
2. By the judge or clerk of court;
3. By furnishing the accused with a copy of the
complaint or information;
4. Reading it in a language or dialect known to the
accused (People v. Albert, G.R. No. 114001, 11
Dec. 1995);
5. Asking accused whether he pleads guilty or not
guilty (Sec. 1(a), Rule 116, ROC, as amended);
and
6. Both arraignment and plea shall be made of
record but failure to enter of record shall not
affect the validity of the proceedings. (Sec. 1(b),
Rule 116, ROC, as amended)
NOTE: The accused must be arraigned before the
court where the complaint or information was filed
or assigned for trial. (Sec. 1(a), Rule 116, ROC, as
amended)
The accused cannot waive the reading of the
information to him and just enter his plea because it
is constitutionally required.
NOTE: Accused is presumed to have been validly
arraigned in the absence of proof to the contrary.
Options of the accused before arraignment and
plea:
1. Bill of particulars;
2. Suspension of arraignment;
3. Motion to Quash; or
4. Challenge the validity of arrest or legality of the
warrant issued or assail the regularity or
question the absence of preliminary
investigation of the charge.
506
NOTE: The principle that the accused is precluded
from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his
plea and participates during trial, without
previously invoking his objections thereto. The
arraignment of the accused constitutes a waiver of
the right to preliminary investigation or
reinvestigation.
GR: Judgment is void if accused has not been validly
arraigned.
XPN: If accused went into trial without being
arraigned, the procedural defect was cured. The
active participation in hearing is a clear indication
that the accused is fully aware of the charges against
him. (People v. Pangilinan, G.R. No. 171020, March
14, 2007) (People v. Pangilinan, G.R. No. 171020, 14
Mar. 2007) In such case, an arraignment may be
made after the case has been submitted for decision.
Absence of arraignment
NOTE: If the accused has not been arraigned, he
cannot be tried in absentia. (Sec. 14(2), Art. III, 1987
Constitution)
Presence of the accused during arraignment
The accused must be present at the arraignment and
personally enter his plea. (Sec. 1(b), Rule 116, ROC,
as amended) Counsel cannot enter plea for the
accused.
NOTE: Both arraignment and plea shall be made in
record but failure to do so shall not affect the
validity of the proceedings. (Sec. 1(b), Rule 116, ROC,
as amended)
Presence of the offended party during
arraignment
The private offended party shall be required to
appear in the arraignment for the following
purposes:
1. Plea bargaining;
2. Determination of civil liability; and
3. Other matters requiring his presence. (Sec. 1(f),
Rule 116, ROC, as amended)
 Criminal Procedure

NOTE: In case the offended party fails 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, ROC, as amended)
Right to counsel de officio
While the right to be represented by counsel is
immutable, the option to secure the services of
counsel de parte, however, is not. The court may
restrict the accused’s option to retain a counsel de
parte if the accused insists on an attorney he cannot
afford or chooses a counsel who is not a member of
the bar, or when the attorney declines to represent
the accused for a valid reason, such as conflict of
interests. (People v. Servo, G.R. No. 119217, 19 Jan.
2000)
Persons allowed to be appointed as counsel de
officio
1. Members of the bar in good standing;
2. Has the ability, experience and competence to
defend the accused; and
3. In localities where such members of the bar are
not available, the court may appoint any person
who is a resident of such province with good
repute for probity and ability, to defend the
accused (Sec. 7, Rule 116, ROC, as amended)
NOTE: Whenever a counsel de officio is appointed
by the court, he shall be given reasonable time to
consult with the accused as to his plea before
proceeding with arraignment. (Sec. 8, Rule 116, ROC,
as amended)
Arraignment and Preliminary Investigation
under amended or substituted information
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED
A plea of not guilty shall be entered:
1. When the accused so pleaded;
2. When he refuses to plead (Sec. 1(c), Rule 116,
ROC, as amended);
3. When he enters a conditional plea of guilty (Sec.
1(c), Rule 116, ROC, as amended);
NOTE: A plea of guilt subject to a proviso that a
certain penalty be imposed upon the accused is
equivalent to a plea of not guilty and would,
therefore require a full-blown trial. (People vs.
Magat, G.R. No. 130026, 31 May 2000)
4. Where after a plea of guilty but presents
exculpatory circumstances, his plea shall be
deemed withdrawn and a plea of not guilt shall
be entered for him (Sec. 1(d), Rule 116, ROC, as
amended); or
5. When the plea is indefinite or ambiguous.
NOTE: A plea of guilty shall be definite,
unambiguous, and absolute, otherwise, it shall be
considered as a plea of not guilty.
Plea of guilty
It is an unconditional plea of guilt which admits the
truth of the material facts and all the attendant (e.g.,
aggravating) circumstances alleged in the
information. (People v. Koloh Pohong, G.R. No. L-
32332, 15 Aug. 1973)
NOTE: It operates to have the penalty imposed at its
minimum period. However, such plea shall not be
considered mitigating in culpable felonies and in
crimes punishable by special laws. (Reyes, 2012)

FORMAL SUBSTANTIAL Effect of a plea of guilty

AMENDMENT AMENDMENT
There is no need for It is mandatory 1. Submission to the court’s jurisdiction; and
preliminary because the accused 2. It cures the defect in his arrest.
investigation and has the constitutional
retaking of the plea of right to be informed of Requisites of a voluntary plea of guilty
the accused. the accusation against
him. 1. Spontaneous confession of guilt;
2. It is made in open court;

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3. It is made prior to the presentation of evidence
for prosecution; and
4. Confession of guilt was to the offense charged in
the information.
Reception of evidence in case the accused pleads
guilty
The plea of guilty does not dispense with the
presentation of evidence as it is merely a secondary
basis of the guilt of the accused.
1. For non-capital offenses - the reception of
evidence is merely discretionary on the part of
the court. (Sec. 4, Rule 116, ROC, as amended) If
the information or complaint is sufficient for
the judge to render judgment on a non-capital
offense, he may do so.
2. For capital offense - the reception of evidence
to prove the guilt and degree of culpability of
the accused is mandatory in which case, the
accused may present evidence in his behalf and
the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the
consequences of his plea. (Sec. 3, Rule 116, ROC,
as amended)
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY
TO A LESSER OFFENSE
The accused, with the consent of the offended party
and the prosecutor, may plead guilty to a lesser
offense which is necessarily included in the offense
charged. (Sec. 2, Rule 116, ROC, as amended)
Requisites for a plea of guilty to a lesser offense
made at the arraignment
1. The lesser offense is necessarily included in the
offense charged; and
NOTE: It is necessarily included when some of
the essential elements or ingredients of the
crime charge constitute the lesser offense and
vice versa.
2. The plea must be with the consent of both the
offended party and the prosecutor. (Sec. 2, Rule
116, ROC, as amended) Consent of the offended
508
party will not be required if said party, despite
due notice, fails to appear during arraignment.
(Riano, 2019)
NOTE: The rule uses the word may in Sec. 2
Rule 116, denoting an exercise of discretion
upon the trial court on whether to allow the
accused to make such plea. (Daan vs
Sandiganybayan, G.R. Nos. 163972-77, 28 Mar.
2008)
Effect of plea of guilty without consent of
offended party and prosecutor
If accused was convicted, the accused’s subsequent
conviction of the crime charged would not place him
in double jeopardy. (Sec. 7(c), Rule 117, ROC, as
amended)
Q: Private respondent was charged with
violations of “Comprehensive Drug Act of 2002”,
as amended by R.A. No. 10640. He then pleaded
guilty of a lesser offense. Petitioner filed a
petition for certiorari against the trial court
with grave abuse of discretion when it granted
private respondent's proposal to plead guilty to
lesser offenses over the prosecution's vigorous
objection. It insisted that the prosecutor's
consent in plea bargaining was a condition
precedent to a valid plea of guilty to a lesser
offense. Is the consent of the prosecutor
indispensable to a valid plea bargain in drugs
cases?
A: YES. Sec. 2, Rule 116 of the Revised Rules on
Criminal Procedure ordains that with the consent of
the offended party and the prosecutor, plea
bargaining to a lesser offense which is necessarily
included in the offense charged, may be allowed.
Contrary to the position taken by the trial court and
the Court of Appeals, the conformity of the
prosecutor to the proposed plea bargaining in drugs
cases is not optional, nay, to be disregarded. For the
prosecutor has full control of the prosecution of
criminal actions; his duty is to always prosecute the
proper offense, not any lesser or graver one, based
on what the evidence on hand can sustain. As
guardian of the rights of the people, the State files
the criminal action in the name of the People of the
 Criminal Procedure
Philippines. (People vs Lascano, G.R No. 250295, 15
Mar. 2021)
Q: May the accused enter a plea of guilty to a
lower offense?
A: YES.
1. During arraignment
a. If the offended party is present, the latter
must consent with the prosecutor to the
plea; and
b. That the lesser offense is necessarily
included in the offense charged.
2. After arraignment but before trial, provided
the following requisites are present:
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the withdrawal of
the previous guilty plea shall be made
before trial;
c. The lesser offense is necessarily included in
the offense charged; and
d. The plea must have the consent of the
prosecutor and the offended party. (Sec. 2,
Rule 116, ROC, as amended)
NOTE: No amendment of complaint or
information is necessary. (Sec. 2, Rule 116, ROC,
as amended) A conviction under this plea shall
be equivalent to a conviction of the offense
charged for purposes of double jeopardy.
(People v. Magat, G.R. No. 130026, 31 May 2000)
3. During Pre-trial- Under Sec. 1(a), Rule 118,
Plea-bargaining is one of the matters to be
considered.
4. After prosecution rests – Allowed only when
the prosecution does not have sufficient
evidence to establish guilt for the crime
charged.
Period to enter plea of guilty to a lesser offense
GR: Plea bargaining is made during pre-trial stage of
criminal proceedings.
XPN: The law still allows accused to change his plea
thereafter provided that the prosecution does not
509
have sufficient evidence to establish guilt of the
crime charged. (People vs. Valderama, G.R. No.
99287, 23 Jun. 1992)
Q: D was charged with theft of an article worth P
15,000. Upon being arraigned he pleaded not
guilty to the offense charged. Thereafter, before
trial commenced, he asked the court to allow
him to change his plea of not guilty to a plea of
guilty but only to estafa involving P 5,000. Can
the court allow D to change his plea? Why?
(2002 BAR)
A: NO. A plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included
in the offense charged. (Sec. 2, Rule 116, ROC, as
amended) Estafa involving P 5,000 is not necessarily
included in theft of an article worth P 15,000.
Plea Bargaining
Plea bargaining in criminal cases is a process
whereby the accused and the prosecution work a
mutually satisfactory disposition of the case subject
to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to
only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that
for the graver charge. (Daan v. Sandiganbayan, G.R.
No. 163972-77, 28 Mar. 2008)
NOTE: It is to be noted that the decision to accept or
reject a plea-bargaining agreement is within the
sound discretion of the court subject to certain
requirements of statutes or rules. (Amante-
Descallar v. Judge Ramas, A.M. No. RTJ-08-2142 (OCA-
IPI No. 08-2779-RTJ), 20 Mar. 2009)
A plea of guilty to a lesser offense to which he was
convicted of which was made without the consent of
the prosecution makes the plea bargaining is void,
rendering the judgment by the court void ab initio
and cannot be considered to have attained finality
for the simple reason that a void judgment has no
legality from its inception. (People v. Reafor, G.R. No.
247575, 16 Nov. 2020)
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ACCUSED PLEADS GUILTY TO A CAPITAL
OFFENSE, WHAT THE COURT SHOULD DO
Duty of the court after the accused pleads guilty
to a capital offense
When the accused pleads guilty to a capital offense,
the court shall:
1. Conduct a searching inquiry into the:
a. Voluntariness of the plea, and
b. Full comprehension of the consequences of
the plea;
2. Require the prosecution to prove guilt and the
precise degree of his culpability; and
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so if
he desires.
NOTE: The defendant after pleading guilty may
not present evidence as would exonerate him
completely from criminal liability such as proof
of self-defense.
This procedure is mandatory, and a judge who fails
to observe it commits grave abuse of discretion. The
reason for this strictness is to assure that the State
makes no mistake in taking life except the life of the
guilty. (People v. Diaz, G.R. No. 119073, 13 Mar. 1996)
Purpose of the presentation of evidence after
the plea of guilty
To preclude any room for reasonable doubt in the
mind of either the trial court or of the Supreme
Court, on review, as to the possibility that there
might have been misunderstanding on the part of
the accused as to the nature of the charges to which
he pleaded guilty; and to ascertain the
circumstances attendant to the commission of the
crime which justify or require the exercise of
greater or lesser degree of severity in the imposition
of prescribed penalties. (People v. Busa, G.R. No. L-
32047, 25 Jun. 1973)
510
No collateral attack on plea of guilty
A plea of guilty entered by one who is fully aware of
the direct consequences, including the actual value
of any commitments made to him by court, the
prosecutor or his own counsel, must stand.
NOTE: It is only when the consensual character of
the plea is called into question that the validity of a
guilty plea may be impaired.
SEARCHING INQUIRY
Purpose of searching inquiry
To determine whether the plea of guilty was made
voluntarily and whether the accused understood
fully the consequence of his plea.
Duty of the judge in conducting searching
inquiry
The judge must convince himself that:
1. The accused is entering the plea voluntarily and
intelligently;
2. There exists a rational basis for finding of guilt
based on accused’s testimony; and
3. Inform the accused of the exact length of
imprisonment and the certainty that he will
serve it in a national penitentiary.
NOTE: The case of People v. Pastor (G.R. No.
140208, March 12, 2002) (G.R. No. 140208, 12
Mar. 2002) provided the following guidelines on
how judges must conduct a “searching inquiry:”
a. Ascertain from the accused himself (i) how
he was brought into custody of the law; (ii)
whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations; and (iii)
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;
 Criminal Procedure
c. Elicit information about the personality
profile of the accused;
d. Inform the accused of 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;
f. All questions posed to the accused should
be in a language known and understood by
the latter; and
g. The trial judge must satisfy himself that the
accused is truly guilty. (Riano, 2019 citing
People v. Pastor, 379 SCRA 181, 189-190;
People v. Mira. 535 SCRA 543, 551-552)
NOTE: Conduct of a searching inquiry remains the
duty of judges, as they are mandated by the rules to
satisfy themselves that the accused had not been
under coercion or duress; mistaken impressions; or
a misunderstanding of the significance, effects, and
consequences of their guilty plea. (People v.
Jandalani, et al., G.R. No. 188314, 10 Jan. 2011)
IMPROVIDENT PLEA
It is a plea without information as to all the
circumstances affecting it. It is based upon a
mistaken assumption or misleading information or
advice. (Black’s Law Dictionary)
Instances of improvident plea
1. Plea of guilty was compelled by violence or
intimidation;
2. The accused did not fully understand the
meaning and consequences of his plea;
3. Insufficient information to sustain conviction of
the offense charged;
4. Information does not charge an offense; or
5. Court has no jurisdiction.
511
Period to withdraw an improvident plea
The court may permit an improvident plea of guilty
to be withdrawn, at any time before the judgment of
conviction becomes final and be substituted by a plea
of not guilty. (Sec. 5, Rule 116, ROC, as amended)
NOTE: The withdrawal of a plea of guilty at any time
before judgment is not a matter of strict right to the
accused but of sound discretion to the trial court.
(Sec. 5, Rule 116, ROC, as amended; People v.
Lambino, G.R. No. L-10875, 28 Apr. 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.
Effect of withdrawal of improvident plea
The court shall set aside the judgment of conviction
and re-open the case for new trial.
NOTE: Convictions based on an improvident plea of
guilt are set aside only if such plea is the sole basis
of the judgment. (People v. Documento, G.R. No.
188706, 17 Mar. 2010)
GROUNDS FOR SUSPENSION OF ARRAIGNMENT
Upon motion by the proper party, the arraignment
shall be suspended in the following cases:
1. The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently
thereto;
2. There exists a valid prejudicial question;
3. A petition for review of the resolution of the
prosecutor is pending at the Department of
Justice or the Office of the President (Sec. 11,
Rule 116, ROC, as amended); and
4. There are pending incidents such as:
a. Motion to Quash;
b. Motion for Inhibition; or
c. Motion for Bill of Particulars.
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NOTE: The period of suspension shall not exceed NOTE: These grounds may be invoked at any stage
sixty (60) days counted from the filing of the of the proceedings.
petition with the reviewing office. (Sec. 11, Rule 116,
ROC, as amended) Who may file

Procedurally speaking, after the filing of the
information, the court is in complete control of the
case and any disposition therein is subject to its
sound discretion. The decision to suspend
arraignment to await the resolution of an appeal
with the Secretary of Justice is an exercise of such
discretion. (Solar Team Entertainment Inc., v. How,
G.R. No. 140863, 22 Aug. 2000)
The right to file a motion to quash belongs only to
the accused. The court is not authorized to motu
proprio initiate a motion to quash by issuing an
order requiring an explanation why the information
should not be quashed. The court, though, has the
discretion to dismiss the case if the information is
not sufficient or on any ground provided by law, or
to dismiss the information for a different one.

Form and contents of motion to quash

H. MOTION TO QUASH
(RULE 117) The motion to quash shall be:

1. In writing;
2. Signed by the accused or his counsel; and
Purpose of motion to quash
3. Specify distinctly the factual and legal grounds
on which it is based. (Sec. 2, Rule 117, ROC, as
The designated purpose of a motion to quash is to
amended)
assail the validity of the criminal information for
defects or defenses apparent on the face of the
Thus, there can be no oral motion to quash.
information. (Galzole y Soriaga v. Briones and
People, G.R. No. 164682, 14 Sept. 2001)
NOTE: The court shall not consider any other
ground other than those specifically stated in the
NOTE: A motion to quash based on double jeopardy
motion to quash except lack of jurisdiction over the
or extinction of the criminal action or liability, may,
offense charged and when the information does not
by their nature, be based on matters outside of the
charge an offense. (Omnibus Motion Rule, Sec. 2, Rule
allegations of the information or complaint. (Riano,
117, ROC, as amended)
2019)

GROUNDS (F-O-P-A-C-M-E-L-D)
Period to file motion to quash an information or
complaint
1. The Facts charged do not constitute an offense
2. Lack of jurisdiction over the Offense charged
GR: At any time before entering his plea, the accused
3. Lack of jurisdiction over the Person of the
may move to quash the complaint or information.
accused
(Sec. 1, Rule 117, ROC, as amended)
4. Lack of Authority of the officer to file
information
XPNs: Instances where a motion to quash may be
5. When the complaint or information does not
filed after entering plea:
Conform substantially to the prescribed form
6. Multiplicity of offenses charged
1. The facts charged do not constitute an offense;
7. Extinction of criminal action or liability
2. Lack of jurisdiction over the offense charged;
8. The complaint or information contains
3. The criminal action or liability has been
averments, which if true, would constitute a
extinguished; and
Legal excuse or justification
4. Double Jeopardy. (Sec. 9, Rule 117, ROC, as
9. Double Jeopardy
amended)

512
 Criminal Procedure

NOTE: The enumeration is exclusive. Effect of failure to move to quash or to allege any
grounds therefor
Q: The information against Roger Alindogan for
the crime of acts of lasciviousness under Article GR: The failure of the accused to assert any ground
336 of the Revised Penal Code avers: of a motion to quash before he pleads to the
complaint or information shall be deemed a waiver
"That on or about 10:30 o'clock in the of any objections.
evening of February 1, 2010 at Barangay
Matalaba, Imus, Cavite and within the XPNs: (F-L-E-D)
jurisdiction of this Honorable Court, the 1. The Facts charged do not constitute an offense;
above-named accused, with lewd and 2. Lack of jurisdiction over the offense charged;
unchaste design, through force and 3. Extinguishment of criminal action or liability;
intimidation, did then and there, wilfully, and
unlawfully and feloniously commit sexual 4. Double Jeopardy. (Sec. 9, Rule 117, ROC, as
abuse on his daughter, Rose Domingo, a amended)
minor of 11 years old, either by raping her
or committing acts of lasciviousness on DISTINGUISH FROM DEMURRER TO EVIDENCE
her, against her will and consent to her
damage and prejudice. DEMURRER TO
MOTION TO QUASH
EVIDENCE
ACTS CONTRARY TO LAW." Filed before the Filed after the
defendant enters his prosecution has rested
The accused wants to have the case dismissed plea. its case.
because he believes that the charge is confusing, Does not go into the
Based on the ground of
and the information is defective. What ground merits of the case but is
insufficiency of
or grounds can he raise in moving for the anchored on matters
evidence adduced by
quashal of the information? Explain. (2016 BAR) not directly related to
the prosecution in
the question of guilt or
support of the
A: The grounds which the accused can raise in innocence of the
accusation.
moving for the quashal of the information are the accused.
following: Governed by Rule 117 Governed by Rule 119
of the Rules of Court. of the Rules of Court.
a. THE INFORMATION CHARGES MORE THAN May be filed by the
ONE OFFENSE. The information charges two Does not require a accused either with
offenses, that is, rape and sexual abuse. Worse, prior leave of court. leave or without leave
the charges are stated in the alternative, making of court.
it unclear to the accused as to what offense When it is granted,
exactly he is being charged with. dismissal of the case An order granting the
will not necessarily demurrer to evidence
b. THE INFORMATION DOES NOT CONFORM follow. The court may operates as an
SUBSTANTIALLY TO THE REQUIRED even order the filing of acquittal. Any
FORM. The information merely states that the a new complaint or subsequent
accused committed acts of lasciviousness upon information because prosecution of the
the victim without specifying what those acts of an order sustaining the same offense would
lasciviousness were. motion is generally not tantamount to double
a bar to another jeopardy. (People vs.
prosecution, (Sec. 5-6, Laguio, G.R. No.
Rule 116, ROC, as 128587, 16 Mar. 2007)
amended)

513 UNIVERSITY OF SANTO TOMAS

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 Remedial Law

If the court, in denying A: YES. Art. III, Sec. 21 of the 1987 Constitution
the motion to dismiss provides that "no person shall be twice put in
or motion to quash acts The order denying the jeopardy of punishment for the same offense. If an
without or in excess of motion for leave to file act is punished by a law and an ordinance,
jurisdiction or with a demurrer or the conviction or acquittal under either shall constitute
grave abuse of demurrer itself shall a bar to another prosecution for the same act." This
discretion, then not be reviewable by is what is otherwise known as the right against
certiorari or appeal or by certiorari double jeopardy.
prohibition lies. before judgment. (Sec.
(Lazarte v. 23, Rule 119, ROC, as At the outset, it is important to point out that the
Sandiganbayan, G.R. amended) Court agrees with the CA that the RTC should not
No. 180122, 13 Mar. have granted Raya and Borromeo's Demurrer.
2009) Therefore, even if the RTC clearly erred in acquitting
Raya and Borromeo by granting their Demurrer, the
Where Certiorari may not lie in the denial of CA could not, and should not have, granted the
Demurrer to Evidence petition for certiorari for this was in violation of
their right against double jeopardy.
A petition for certiorari assailing the denial of a
demurrer to evidence will not resolve the merits of The grave abuses of discretion alleged by the People
the case in advance of trial. in its petition for certiorari constituted, in reality,
mere errors of judgment or misapprehension of
The court tasked with resolving the petition for evidence which do not justify the issuance of the
certiorari may only review whether the lower court writ of certiorari. Ultimately, the CA erred in
denied the demurrer to evidence with grave abuse granting the petition for certiorari and reinstating
of discretion. the proceedings against Raya and Borromeo. (Raya
v. People, G.R. No. 237798, 05 May 2021, J. Caguioa)
Filing petitions for certiorari to assail denials of
demurrers to evidence is emphatically discouraged. Procedure when motion to quash is denied
There is clearly a remedy still left to the accused,
which is to continue with trial. (Espinosa v When the motion to quash is denied, the accused
Sandiganbayan, G.R. No. 191834, 04 Mar. 2020) should:

Q: After the prosecution rested its case, the 1. Plead;

defense filed a Motion for Leave to File Attached
Demurrer to evidence with attached Demurrer
to Evidence. The RTC then issued a Resolution
granting the Demurrer on the ground that based
on its assessment, the testimonies of the
prosecution witnesses were plagued with
inconsistencies. Disagreeing with the RTC, the
OSG filed a petition for certiorari before the CA.
The CA granted the petition for Certiorari and
reversed the acquittal made by the RTC. The CA
thus declared null and void the RTC's Resolution
granting the Demurrer, and ordered the case
reinstated for continuation of the proceedings.
Did the CA err in reversing Ray and Borromeo's
acquittal?
2. Go to trial without prejudice to the special
defenses he invoked in the motion; and
3. Appeal from the judgment of conviction, if any,
and interpose the denial of the motion as an
error.
Q: Is the order denying the motion to quash
appealable?
A: NO.
GR: It is interlocutory and not appealable. Certiorari
and prohibition are not the correct remedies against
an order denying a motion to quash. The defendant
should instead go to trial and raise the special
defense he had invoked in his motion. And if after
trial on the merits, an adverse decision is rendered,

514
 Criminal Procedure
remedy is to appeal in the manner authorized by
law. (Bulaong v. CA, G.R. No. 78555, 30 Jan. 1990)
XPNs:
1. The act has ceased to be an offense;
2. When intervention by higher court is required
for te orderly administration of justice in the
interest of both the accused and the public;
3. It is unfair and unjust to make the accused go to
trial;
4. When the circumstances warrant that
technicalities of procedures should be set aside;
and
5. If the court denying the motion to quash acted
without or in excess of jurisdiction or with
grave abuse of discretion.
Q: Bimby is charged with illegal possession of
firearms under an Information signed by the
Provincial Prosecutor. After arraignment but
before pre-trial, he found out that the Provincial
Prosecutor had no authority to sign and file the
Information as it was the City Prosecutor who
has such authority. During the pre-trial, Bimby
moves that the case against him be dismissed on
the ground that the information is defective
because the officer signing it lacked the
authority to do so. The Provincial Prosecutor
opposes the motion on the ground of estoppel as
Bimby did not move to quash the Information
before arraignment. If you are the counsel for
Bimby, what is your argument to refute the
opposition of the Provincial Prosecutor? (2000
BAR)
A: I would argue that since the Provincial
Prosecutor had no authority to file the information,
the court did not acquire jurisdiction over the
person of the accused and over the subject matter of
the offense charged. Hence, this ground is not
waived if not raised in a motion to quash and could
be raised at the pre-trial. (People v. Hon. Zeida
Aurora Garfin, G.R. No. 153176, 29 Mar. 2004)
EFFECTS OF SUSTAINING THE MOTION TO
QUASH
1. If the motion to quash is sustained, the court
may order that another complaint or
information be filed except when the motion
515
was based on the extinction of criminal action
or liability or when it is based on double
jeopardy, as provided in Section 6 of Rule 117,
ROC, as amended.
a. If the order is made, the accused, if in
custody, shall not be discharged unless
admitted to bail.
b. If no order is made, or if having been
made, no new information is filed within
the time specified in the order or within
such further time as the court may allow
for good cause, the accused, if in custody,
shall be discharged unless he is also in
custody for another charge. (Sec. 5, Rule
117, ROC, as amended)
2. If the motion to quash is sustained upon any of
the following grounds, the court must state, in
its order granting the motion, the release of the
accused if he is in custody, or the cancellation of
his bond if he is out on bail:
a. That a criminal action or liability has been
extinguished;
b. That it contains averments which, if true,
would constitute a legal excuse or
justification; or
c. That the accused has been previously
convicted or acquitted of the offense
charged.
3. If the ground upon which the motion to quash
was sustained is that the court has no
jurisdiction over the offense charged, the better
practice is for the court to remand or forward
the case to the proper court, not to quash the
complaint or information.
4. If the motion is based on any of the following
grounds:
a. That the facts charged do not constitute an
offense;
b. That the officer who filed the information
had no authority to do so;
c. That it does not conform substantially to
the prescribed form; or
d. That more than one offense is charged.
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F A C U LT Y O F C I V I L L A W
 Remedial Law
The court should order the prosecution to file
another information or an amendment thereof, as
the case may be, with a definite period, the order
further stating that in case of failure to comply
therewith, the accused if he is in custody shall be
discharged, or his bond cancelled if he is bonded.
(Pamaran, 2010)
EXCEPTION TO THE RULE THAT SUSTAINING
THE MOTION IS NOT A BAR TO ANOTHER
PROSECUTION
GR: An order sustaining the motion to quash is not
a bar to another prosecution for the same offense.
XPNs: The motion was based on the grounds of:
1. Extinction of criminal action or liability; and
2. Double jeopardy (Sec. 6, Rule 117, ROC, as
amended)
DOUBLE JEOPARDY
(RES JUDICATA IN PRISON GREY)
Double jeopardy, as a criminal law concept, refers to
jeopardy of punishment for the same offense,
suggesting that double jeopardy presupposes two
criminal prosecutions. (Riano, 2019 citing Garcia v.
Sandiganbayan, 603 SCRA 348, 361)
A person who has been convicted, acquitted or the
case against him dismissed or otherwise terminated
without his express consent cannot again be charged
with the same or identical offense.
The Philippine Constitution does not prohibit
placing a person in jeopardy. What it prohibits is
putting the accused in double jeopardy in which he
is put in danger of conviction and punishment for
the same offense for more than once. (Riano, 2019)
Purpose of the right against double jeopardy
The purpose is to set the effects of the first
prosecution forever at rest, assuring the accused
that he shall not thereafter be subjected to the
danger and anxiety of a second charge against him
for the same offense. (Caes v. Intermediate Appellate
Court, G.R. Nos. 74989-90, 06 Nov. 1989)
516
It protects the accused not against the peril of
second punishment but against being tried again.
Finality-of-Acquittal Doctrine
GR: An acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately
final and cannot be appealed. (People vs.
Sandiganbayan, G.R. No. 164068-69, 19 Nov. 2013)
XPN: When the proceedings were rigged, and a
sham and a mock trial held with pre-determined
judgment of acquittal, the proceedings are unlawful
and void ab initio. Double jeopardy then cannot be
invoked in setting aside such judgment because the
prosecution was denied of due process. (Galman vs.
Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
Kinds of double jeopardy
1. No person shall be put twice in jeopardy for the
same offense.
NOTE: This prohibits double jeopardy of
punishment for the same offense.
2. When the act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
same act. (Sec. 21, Art. III, 1987 Constitution)
NOTE: This kind prohibits double jeopardy of
punishment for the same act.
Q: Manuel was charged with violation of a city
ordinance prohibiting the use of unauthorized
installations of electric wirings. The case was
dismissed on the ground of prescription.
Subsequently, an information for theft of
electric power was filed against Manuel. May
Manuel properly invoke the principle of double
jeopardy?
A: YES. The immediate physical effect of the
unauthorized installation was the inward flow of
electric current into Manuel’s ice plant without the
corresponding recording thereof in his electric
meter. In other words, the “taking” of electric
current was integral with the unauthorized
installation of electric wiring and devices. The
 Criminal Procedure
dismissal of the information for violation of the local
ordinance amounts to an acquittal of the accused of
that offense. (People v. Relova, G.R. No. L-45129, 06
Mar. 1987)
Elements of Double Jeopardy
1. Conviction or acquittal, or dismissal was made
without the consent of the accused;
2. Conviction or acquittal, or dismissal was made
by a court of competent jurisdiction;
3. A valid information sufficient in form and
substance to sustain a conviction of the crime
charged;
4. Accused enters a valid plea; and
5. The subsequent prosecution is for an offense
which is:
a. the same as in the former complaint or
information;
b. frustration of; or
c. for any offense which is necessarily
included in the offense charged in the
former complaint or information.
NOTE: The prohibition against double jeopardy
refers to the same offense and not to the same act.
The offense charged in the two prosecutions must
be the same in law and in fact, because the same acts
may be violative of two or more provisions of the
criminal law.
For a dismissal to be a bar under the jeopardy clause
of the Constitution, it must have the effect of an
acquittal. (People v. Obsania, G.R. No. L-24447, 29 Jun.
1968)
Q: Can a person convicted by a court-martial be
prosecuted again in the civil court?
A: NO. A person convicted by a court-martial cannot,
for the same offense, be prosecuted again in the civil
court. A court martial is a court, and the prosecution
of an accused before it is criminal, not
administrative; thus, it would be, under certain
conditions, a bar to another prosecution of the
defendant for the same offense, because the latter
would place the accused in double jeopardy.
(Marcos v. Chief of Staff, G.R. No. L-4663, 30 May
1951)
517
Q: Is there double jeopardy when the complaint
or information was dismissed before the
defendant has been arraigned and had pleaded
thereto?
A: NO. The requirement that the accused must have
been arraigned and pleaded to the charge rests
upon the idea that it is only from that moment that
the issues for trial are deemed joined. Before that,
the accused is not in danger of being validly
convicted. (People vs. Apostol, 64 Phil. 676)
Q: Dora and Egor were charged with homicide in
one information. Before they could be
arraigned, the prosecution moved to withdraw
the information altogether and its motion was
granted. Can the prosecution re-file the
information although this time for murder?
(2002 BAR)
A: YES. The prosecution can re-file the information
for murder in substitution of the information for
homicide because no double jeopardy has as yet
attached. (Galvez v. Court of Appeals, G.R. No. 114046,
24 Oct. 1994)
Q: Juancho entered a plea of guilty when he was
arraigned under an information for homicide.
To determine the penalty to be imposed, the
trial court allowed Juancho to present evidence
proving any mitigating circumstance in his
favor. Juancho was able to establish complete
self-defense. Convinced by the evidence
adduced by Juancho, the trial court rendered a
verdict of acquittal. May the Prosecution assail
the acquittal without infringing the
constitutional guarantee against double
jeopardy in favor of Juancho? Explain your
answer. (2017 BAR)
A: YES. A plea of guilty is an “unconditional
admission of guilt” with respect to the offense
charged. It forecloses the right to defend oneself
from said charge and leaves the court with no
alternative but to impose the penalty fixed by law
under the circumstances. Since the accused was
only allowed to testify in order to establish
mitigating circumstances, for the purpose fixing the
penalty, the testimony could not be taken as a trial
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
on the merits to determine the guilt or innocence of
the accused. Since the accused asserted self-defense
in his testimony, said assertion had the effect of
vacating his plea of guilty. The trial court should
have required him to plead anew to the charge, or at
least direct that a new plea of not guilty be entered
for him and conducted trial on the merits. This was
not done. It follows that, in effect, there having been
no standing plea at the time the court a quo
rendered its judgment of acquittal; there can be no
double jeopardy with respect to the appeal of the
prosecution. (People v. Balicasan, G.R. No. L-26376,
31 Aug. 1966)
Q: Dondon was charged with slight physical
injuries in the MTC. He pleaded not guilty and
went to trial. After the prosecution has
presented its evidence, the trial court set the
continuation of the hearing on another date. On
the date scheduled for hearing, the prosecutor
failed to appear, whereupon the court, on
motion of Dondon, dismissed the case. A few
minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court
reconsidered its order and directed Dondon to
present his evidence. Before the next date of
trial came, however, he moved that the last
order be set aside on the ground that the
reinstatement of the case had placed him twice
in jeopardy. Acceding to this motion, the court
again dismissed the case. The prosecutor then
filed an information in the RTC, charging
Dondon with direct assault based on the same
facts alleged in the information for slight
physical injuries but with the added allegation
that he inflicted the injuries out of resentment
for what the complainant had done in the
performance of his duties as chairman of the
board of election inspectors. He moved to quash
the second information on the ground that its
filing had placed him in double jeopardy. How
should Dondon’s motion to quash be resolved?
(2002 BAR)
A: Dondon’s motion to quash should be granted on
the ground of double jeopardy because the first
offense charged is necessarily included in the
second offense charged. Although the dismissal of
the first case was upon motion of the accused,
double jeopardy attached since the dismissal was
518
due to failure to prosecute which amounts to an
acquittal. (People v. Clobel, G.R. No. L-20314, 31 Aug.
1964; Esmeñe v. Pogoy, G.R. No. L-54110, 20 Feb.
1981)
Tests in determining the identity of the offenses
for the purpose of applying the rule on double
jeopardy
1. Same offense test – Whether the offense
charged in the first information is the same
offense in the second charge, or whether the
second offense necessarily includes or is
necessarily included in the first offense charged
in the former complaint or information.
2. Same evidence test – Whether the facts alleged
in the second information, if proved, would
have been sufficient to sustain the former
information, or from which the accused may
have been acquitted or convicted.
Identity Rule
GR: There is identity between two offenses not only
when the second offense is exactly the same as the
first, but also when the second offense includes or is
necessarily included in the first offense or an
attempt or frustration thereof, or when it
necessarily includes or is necessarily included in the
offense charged in the first information.
XPNs:
1. The graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge. (Sec.
7(a), Rule 117, ROC, as amended);
2. The facts constituting the graver offense
became known or were discovered only after a
plea was entered in the former complaint or
information (Sec. 7(b), Rule 117, ROC, as
amended); and
3. The plea of guilty to the lesser offense was made
without the consent of the prosecutor and the
offended party. (Sec. 7(c), Rule 117, ROC, as
amended);
XPN to the XPN: The plea of guilty to a lesser
offense was made with the conformity of the
prosecutor alone because of the failure of the
 Criminal Procedure
offended party to appear at the arraignment despite
due notice. (Sec. 1(f), Rule 116);
NOTE: In any of the foregoing cases, where the
accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the
event of conviction for the graver offense. (Sec. 7,
Rule 117, ROC, as amended)
The rule of identity does not also apply when the
second offense was not in existence at the time of
the first prosecution for the simple reason that in
such case, there is no possibility for the accused,
during the first prosecution, to be convicted for an
offense that was then inexistent. (Melo v. People, G.R.
No. L–3580, 22 Mar. 1950)
Instances where double jeopardy will not attach
1. The dismissal of a case during preliminary
investigation does not constitute double
jeopardy, preliminary investigation not being
part of the trial. (Flores v. Montemayor, G.R. No.
170146, 08 Jun. 2011).
2. When the Court finds that the “criminal trial
was a sham” because the prosecution
representing the sovereign people in the
criminal case was denied due process. (Galman
v. Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
3. A void judgment for having been issued without
jurisdiction. No double jeopardy attaches
because a void judgment is, in legal effect, no
judgment at all. By it, no rights are
divested. Through it, no rights can be
attained. Being worthless, all proceedings
founded upon it are equally worthless. It
neither binds nor bars anyone. (People v. Court
of Appeals, G.R. No. L-54641, 28 Nov. 1980)
4. Dismissal is with the express consent of the
accused except on the following:
a. The dismissal is based on insufficiency of
evidence; or
b. The case is dismissed for violation of the
accused’s right to speedy trial. (Benares v.
Lim, G.R. No. 173421, 14 Dec. 2006)
519
5. The dismissal by a competent court motu
proprio of a valid information, after the accused
has pleaded not guilty, does not bar further
prosecution for the same offense, if such
dismissal was made without prejudice to the
refiling of the case in the proper court. (People
v. Manlapas, G.R. No. L-17993, 24 Aug. 1962)
6. The rule on double jeopardy does not apply to a
controversy where one is an administrative
case, and the other is criminal in nature. (Riano,
2019, citing Icasiano v. Sandiganbayan, G.R. No.
95642, 28 May 1992)
7. In People v. Balisacan (G.R. No. L-26376, 31 Aug.
1966), the accused had first entered a plea of
guilty but subsequently testified, in the course
of being allowed to prove mitigating
circumstances, that he acted in complete self-
defense. Said testimony had the effect of
vacating his plea of guilty and the trial court did
not require him to plead anew on the charge, or
at least direct that a new plea of not guilty be
entered for him. There having been no standing
plea at the time the trial court rendered its
judgment of acquittal, there can be no double
jeopardy with respect to the appeal in this case.
8. An order of dismissal of a criminal case has the
effect of such judgment, and if given verbally, is
incomplete and does not have the effect of
acquitting the accused before it is withdrawn.
Hence, the prosecution of the case after such
verbal order of dismissal has been withdrawn
by the court, does not place the accused in
double jeopardy (Cabarroguis v. Diego, et al.,
G.R. No. L-19517, 30 Nov. 1962)
Variance doctrine
GR: The accused may be convicted only of the crime
with which he is charged. (Riano, 2019)
NOTE: A minor variance between the information
and the evidence does not alter the nature of the
offense, nor does it determine or qualify the crime
or penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for acquittal. (People
v. Noque, G.R. No. 175319, 15 Jan. 2010)
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XPN: When there is variance between the offense
charge in the complaint or information and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is
included in the offense charged, or of the offense
charged which is included in the offense proved.
(Sec. 4, Rule 120, ROC, as amended)
1. The accused can be convicted of an offense only
when it is both charged and proven;
2. The mere fact that the evidence presented
would indicate that a lesser offense outside the
court’s jurisdiction was committed does not
deprive the court of its jurisdiction, which had
vested in it under the allegations in the
information. (People v. Ocaya, G.R. No. L-47448,
17 May 1978)
XPN TO XPN: Where there are facts that
supervened after the filing of the information which
change the nature of the offense.
Doctrine of Supervening Fact
Where after the first prosecution a new fact
supervenes for which the defendant is responsible,
which changes the character of the offense and,
together with the facts existing at the time,
constitutes a new and distinct offense, the accused
cannot be said to be in second jeopardy, if indicted
for the new offense. (People v. City Court of Manila,
G.R. No. L-36342, 27 Apr. 1983)
Q: Accused was charged with and convicted of
less serious physical injuries. The accused had
already begun serving his sentence when it was
found out that the complainant’s injuries did not
heal within the period formerly estimated, and
so the provincial fiscal filed another information
for serious physical injuries. The accused moved
to quash this second information on the ground
of double jeopardy. Is the accused correct?
A: NO. Reversing the trial court’s order granting his
motion, the SC reiterated the Melo ruling and then
added: “That rule applies to the present case where,
after the prosecution for a lesser crime, new facts
have supervened which, together with those
already in existence at the time of the first
520
prosecution, have made the offense graver and the
penalty first imposed legally inadequate.” (Double
Jeopardy: The Supervening Event Doctrine, 76 SCRA
469; Melo v. People, G.R. No. L-3580, 22 Mar. 1950)
NOTE: “It is indispensable that a new fact for which
the defendant is responsible had supervened and
this new fact changes the character of the crime first
imputed to him so that, together with the facts
previously existing, it constitutes a new and distinct
offense. (Ibid.)
Effect of double jeopardy on the civil aspect of
the case
The offended party or the accused may appeal the
civil aspect of the case because the concept of
double jeopardy evidently has reference only to the
criminal case and has no effect on the civil liability
of the accused. (Riano, 2019)
Q: Can the public prosecutor appeal the civil
aspect of a criminal case?
A: NO. A public prosecutor cannot appeal the civil
aspect of a decision in a criminal case. The acquittal
of accused ends his work and the case is terminated
as far as the prosecutor is concerned. (Cruz v. CA,
G.R. No. 123340, 29 Aug. 2002; Salazar v. People, G.R.
No. 151931, 23 Sept. 2003)
Double jeopardy in quasi-offenses
Q: As a result of vehicular mishap, petitioner
was charged before the MTC of two separate
offenses in two information for:
a. Reckless imprudence resulting in slight
physical injuries; and
b. Reckless imprudence resulting in homicide
and damage to property for the death of the
husband of the respondent and damage to
the vehicle.
Petitioner pleaded guilty to the first information
and was punished only by public censure.
Invoking such conviction, petitioner now moves
for the quashal of the other information on the
ground of double jeopardy. Does double
jeopardy apply to quasi offenses?
 Criminal Procedure

A: YES. The two charges arose from the same facts Period when provisional dismissal becomes
and were prosecuted under the same provision of permanent
the RPC, namely Art. 365. The doctrine is that
reckless imprudence under Art. 365 is a single 1. Offenses punishable by imprisonment not
quasi-offense by itself and not merely a means to exceeding 6 years or a fine of any amount, or
commit other crimes. Hence, conviction or acquittal both - shall become permanent 1 year after
of such quasi-offense bars subsequent prosecution issuance of the order without the case having
for the same quasi offense, regardless of its various been revived.
resulting acts. (Ivler v. Modesto- San Pedro, G.R. No. 2. Offenses punishable by imprisonment of
172716, 17 Nov. 2010) more than 6 years – shall become permanent 2
years after issuance of the order without the
Dismissal vs. Acquittal case having been revived. (Sec. 8, Rule 117, ROC,
as amended)
DISMISSAL ACQUITTAL
Does not decide on the Always based on the Time-bar Rule
merits, does not merits. Defendant is
determine the acquitted because guilt If no revival of the case is made within the
defendant’s guilt or was not proven beyond prescribed period, the dismissal shall be removed
innocence. reasonable doubt. from being provisional and shall become
Double jeopardy does Double jeopardy permanent.
not always attach. always attaches.
NOTE: The State may revive a criminal case beyond
Instances where dismissal of the case is the one-year or two-year periods, provided there is
tantamount to an acquittal justifiable necessity for the delay, and subject to the
right of the accused to oppose the same on the
1. Dismissal based on insufficiency of evidence of ground of double jeopardy, or that such revival or
the prosecution (demurrer to evidence); and refiling is barred by the statute of limitations.
2. Dismissal due to violation of right to speedy (People v. Lacson, G.R. No. 149453, 07 Oct. 2003)
trial (even if dismissal was upon motion of the
accused or with his express consent). Revival of the case

Rules on the application of double jeopardy on
State witnesses
An order discharging an accused as a State witness
amounts to an acquittal, hence double jeopardy will
apply. However, if he fails or refuses to testify
against his co-accused in accordance with his sworn
statement, he may be prosecuted again.
The case may be revived by the State within the
time-bar rule either by the refiling of the
information or by filing of new information for the
same offense or offense necessarily included
therein. There would be no need for a new
preliminary investigation.
Requisites of provisional dismissal

PROVISIONAL DISMISSAL 1. The prosecution with the express conformity of

the accused, or the accused, moves for a
It contemplates that the dismissal of the action is provisional (sin perjuicio) dismissal of the case;
not permanent and can be revived within the period or both the prosecution and the accused move
set by the Rules of Court. (Riano, 2019) for a provisional dismissal of the case;

2. The offended party is notified of the motion for

a provisional dismissal of the case;

521 UNIVERSITY OF SANTO TOMAS

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 Remedial Law
3. The court issues an order granting the motion
and dismissing the case provisionally; and
4. The public prosecutor is served with a copy of
the order of provisional dismissal of the case.
(People v. Lacson, et al., G.R. No. 149453, 01 Apr.
2003)
Rule on provisional dismissal of a case
GR: Where the case was dismissed provisionally
with the consent of the accused, he cannot invoke
double jeopardy in another prosecution therefor
or where the case was reinstated on a motion for
reconsideration by the prosecution.
XPNs: The dismissal amounts to an acquittal even if
the dismissal was ordered at the instance of the
defendant if:
1. It is based on lack or insufficiency of evidence;
2. It was predicated upon the violation of the right
of the accused to a speedy trial, hence, even if
the accused gave his express consent to such
dismissal or moved for dismissal, such consent
would be immaterial as such dismissal is
actually an acquittal; and
3. There is variance between the proof and the
allegations in the complaint or information.
Express consent
Express consent to a provisional dismissal is given
either orally or in writing. It is a positive, direct,
unequivocal consent requiring no inference or
implication to supplying its meaning. (People v.
Vergara, G.R. No. 101557-58, 28 Apr. 1993)
The mere inaction or silence of the accused or his
failure to object to a provisional dismissal of the
case does not amount to express consen. (People v.
Ylagan, G.R. No. L-38443, 25 Nov. 1933)
Provisional dismissal under A.M. No. 12-11-2-SC
(Guidelines for Decongesting Holding Jails by
Enforcing the Rights of Accused Persons to Bail
and to Speedy Trial)
1. When the delays are due to the absence of an
essential witness whose whereabouts are
522
unknown or cannot be determined and,
therefore, are subject to exclusion in
determining compliance with the prescribed
time limits which caused the trial to exceed 180
days, the court shall provisionally dismiss the
action with the express consent of the detained
accused.
2. When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence though his
whereabouts are known, the court shall
provisionally dismiss the action with the
express consent of the detained accused
provided:
a. The hearing in the case has been previously
twice postponed due to the non-
appearance of the essential witness and
both the witness and the offended party, if
they are two different persons, have been
given notice of the setting of the case for
third hearing, which notice contains a
warning that the case would be dismissed if
the essential witness continues to be
absent; and
b. There is proof of service of the pertinent
notices of hearings or subpoenas upon the
essential witness and the offended party at
their last known postal or e-mail addresses
or mobile phone numbers.
3. For the above purpose, the public or private
prosecutor shall first present during the trial
the essential witness or witnesses to the case
before anyone else. An essential witness is one
whose testimony dwells on the presence of
some or all of the elements of the crime and
whose testimony is indispensable to the
conviction of the accused. (Sec. 10, A.M. No. 12-
11-2-SC)
Reckoning period of one- or two-year period for
revival of criminal case
The one- or two-year period allowed for reviving a
criminal case that has been provisionally dismissed
shall be reckoned from the issuance of the order of
dismissal. The dismissal shall become automatically
 Criminal Procedure

permanent if the case is not revived within the
required period. Such permanent dismissal shall
amount to an adjudication of the case on the merits.
(Sec. 14, A.M. No. 12-11-2-SC)
I. PRE-TRIAL
(RULE 118)
Pre-trial is a procedural device intended to clarify
and limit the basic issues between the parties and to
take the trial of cases out of the realm of surprise
and maneuvering. It thus paves the way for a less
cluttered trial and resolution of the case. (LCK
Industries v. Planters Development Bank, G.R. No.
170606, 23 Nov. 2007)
5. Municipal Trial Court; and
6. Municipal Circuit Trial Court (Sec. 1, Rule 118,
ROC, as amended)
The holding of a pre-trial conference is mandatory
and failure to do so is inexcusable. When the law or
procedure is so elementary, such as the provisions
of the Rules of Court, not to know it or to act as if one
does not know it constitutes gross ignorance of the
law. Such ignorance of a basic rule in court
procedure, as failing to conduct a pre-trial, sadly
amounts to gross ignorance and warrants a
corresponding penalty. (National Power
Corporations. Adiong (A.M. No. RTJ-072060
[Formerly OCA IPI No. 06-2498-RTJ]), 27 Jul. 2011)
Matters to be considered during Pre-Trial

1. Plea bargaining;
Period of pre-trial

2. Stipulation of facts;
It shall be held after arraignment and within 30 days
from the date the court acquires jurisdiction over
NOTE: In order for the accused to be bound, it
the person of the accused unless a shorter period is
must be signed by him.
provided for in special laws or circulars of the
Supreme Court. (Sec. 1, Rule 118, ROC, as amended)
3. Marking for identification of evidence of
parties;
If the accused is under preventive detention, the
pre-trial shall be held within 10 days after
NOTE: No evidence shall be allowed to be
arraignment unless a law provides for a shorter
presented and offered during the trial other
period. (A.M. No. 03-1-09-SC, IB(1))
than those identified and marked during the
pre-trial except when allowed by the court for
Under the Revised Guidelines for Continuous Trial
good cause shown. (I-B (2), AM No. 03-1-09-SC)
of Criminal Cases, the arraignment and pre-
trial/preliminary conference are scheduled on the
4. Waiver of objections to admissibility of
same day.
evidence;
5. Modification of the order of the trial if one of the
Furthermore, the Pre-Trial Order shall immediately
accused admits the charge but interposes a
be served upon the parties and counsel on the same
lawful defense (reverse trial); and
day after its termination. (A.M. No. 15-06-10-SC)
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil
Court in which pre-trial is mandatory
aspects of the case. (Sec. 1, Rule 118, ROC, as
amended)
Pre-trial is mandatory in all criminal cases
cognizable by the:
NOTE: If the accused has pleaded not guilty to the
crime charged, he may state whether he interposes
1. Sandiganbayan;
a negative or affirmative defense. A negative
2. RTC;
defense shall require the prosecution to prove the
3. Metropolitan Trial Court;
guilt of the accused beyond reasonable doubt, while
4. Municipal Trial Court in Cities;
an affirmative defense may modify the order of

523 UNIVERSITY OF SANTO TOMAS

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 Remedial Law
trial and require the accused to prove such defense
by clear and convincing evidence. (Sec. 3, R.A. No.
8493, Speedy Trial Act)
Plea bargaining
It is the process whereby the accused, the offended
party and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval. It usually involves the defendant’s
pleading guilty to a lesser offense or to only one or
some of the counts of a multi-count indictment in
return for a lighter sentence than that for the graver
charge.
In this jurisdiction, 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. vs. Lobrigo, G.R. No. 226679, 15 Aug.
2017)
It usually involves the defendant’s pleading guilty to
a lesser offense or to only one or some of the counts
of a multi-count indictment in return for a lighter
sentence than that for the graver charge. (People vs.
Mamarlon, GR. No. 137554, 01 Oct. 2003)
Duty of the judge when plea bargaining is agreed
upon
During the pre-trial, the trial judge shall consider
plea-bargaining arrangements, except in cases for
violations of the Comprehensive Dangerous Drugs
Act regardless of the imposable penalty. (Sec. 23,
R.A. No. 9165)
Duty of the judge when plea bargaining fails
1. Adopt the minutes of preliminary conference as
part of the pre-trial proceedings, confirm
markings of exhibits or substituted photocopies
and admissions on the genuineness and due
execution of documents and list object and
testimonial evidence;
2. Scrutinize every allegation of the information
and the statements in the affidavits and other
documents which form part of the record of the
preliminary investigation and other documents
524
identified and marked as exhibits in
determining further admissions of facts,
documents and in particular as to the following:
a. The identity of the accused;
b. Court’s territorial jurisdiction relative to
the offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of
documents;
f. The cause of death or injury, in proper
cases;
g. Adoption of any evidence presented during
the preliminary investigation;
h. Disclosure of defenses of alibi, insanity,
self-defense, exercise of public authority
and justifying or exempting circumstances;
and
i. Such other matters that would limit the
facts in issue.
3. Define factual and legal issues;
4. Ask parties to agree on the specific trial dates
and adhere to the flow chart determined by the
court which shall contain the time frames for
the different stages of the proceeding up to
promulgation of decision and use the time
frame for each stage in setting the trial dates;
5. Require the parties to submit to the Branch COC
the names, addresses and contact numbers of
witnesses that need to be summoned by
subpoena; and
6. Consider modification of order of trial if the
accused admits the charge but interposes a
lawful defense. (A.M. No. 03-1-09-SC)
Duty of the judge before pre-trial conference
The judge before pre-trial conference must study
the following:
1. Allegations of the information;
2. Statements in the affidavits of witnesses; and
3. Other documents which form part of the record
of the preliminary investigation. (A.M. No. 03-1-
09-SC)
 Criminal Procedure
Duty of the branch clerk of court during the
preliminary conference
During the preliminary conference, the branch
clerk of court shall:
1. Assist the parties in reaching a settlement of the
civil aspect of the case;
2. Mark the documents to be presented as exhibits
and copies thereof attached to the records after
comparison;
3. Ascertain from the parties the undisputed facts
and admissions on the genuineness and due
execution of documents marked as exhibits;
and
4. Consider such other matters as may aid in the
prompt disposition of the case. (A.M. No. 03-1-
09-SC)
NOTE: The proceedings during the preliminary
conference shall be recorded in the minutes of
preliminary conference to be signed by both parties
and counsel. (A.M. No. 03-1-09-SC)
Order of pre-trial conference
Order for pre-trial conference must contain orders:
1. Requiring the private offended party to appear
thereat for purposes of plea-bargaining and for
other matters requiring his presence;
2. Referring the case to the branch clerk of court, if
warranted, for a preliminary conference to be
set at least 3 days prior to the pre-trial to mark
the documents or exhibits to be presented by
the parties and copies thereof to be attached to
the records after comparison and to consider
other matters as may aid in its prompt
disposition; and
3. Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown. In mediatable
cases, the judge shall refer the parties and their
counsel to the Philippine Mediation Center unit
for purposes of mediation if available. (A.M. No.
03-1-09-SC)
525
What the court should do when Prosecution and
Offended Party agree to the Plea offered by the
Accused
The court shall:
1. Issue an order which contains the plea
bargaining arrived at;
2. Proceed to receive evidence on the civil aspect
of the case; and
3. Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence. (A.M. No. 03-1-09-
SC)
PRE-TRIAL AGREEMENT
All agreements or admissions made or entered into
during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel;
otherwise, the same cannot be used against the
accused. (Sec. 2, Rule 118, ROC, as amended) (2004
BAR)
NOTE: The court shall approve the agreements
covering the matters in the pre-trial conference.
Pre-trial agreement as evidence
Requisites before a pre-trial agreement may be used
as evidence:
1. It is reduced in writing; and
2. Signed by the accused and his counsel
The agreements in relation to matters referred to in
Sec. 1, Rule 118 are subject to the approval of the
court. (Sec. 2, Rule 118, ROC, as amended) Provided,
that the agreement on the plea of the accused to a
lesser offense may only be revised, modified, or
annulled by the court when the same is contrary to
law, public morals, or public policy. (Sec. 3, R.A. No.
8493, Speedy Trial Act)
NOTE: The requirement of Sec. 2, Rule 118 of the
Revised Rules on Criminal Procedure is intended to
further safeguard the rights of the accused against
improvident or unauthorized agreements or
admissions which his counsel may have entered
into, or which any person may have ascribed to the
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

accused without his knowledge, as he may have at the arraignment, promulgation of judgment or
waived his presence at the pre-trial conference. when required to appear for identification.
(People vs. Uy, G.R. No. 128046, 07 Mar. 2000) (Regalado, 2008)

Stipulation of facts during pre-trial is allowed by PRE-TRIAL ORDER

Rule 118 of the Revised Rules of on Criminal
Procedure. Section 2 of Rule 118, meanwhile, Pre-trial order
prescribes that all agreements or admissions made
or entered during the pre-trial conference shall be It is an order issued by the court reciting the actions
reduced in writing and signed by the accused and taken, the facts stipulated, and the evidence marked
counsel, otherwise, they cannot be used against the during the pre-trial conference. (Sec. 4, Rule 118,
accused. In this case, while it appears that the pre- ROC, as amended)
trial agreement was signed only by the prosecution
and defense counsel, the same may nevertheless be Purpose and effect of the pre-trial order
admitted given that the defense failed to object to its
admission. (People v. Likiran, G.R. No. 201858, 04 Jun. The pre-trial order shall:
2014)
1. Bind the parties;
Amendment of pre-trial agreement 2. Limit the trial to those matters not disposed of;
and
Pre-trial may be amended on the grounds of: 3. Control the course of the action during the trial,
unless modified by the court to prevent
1. Agreement; or manifest injustice. (Ibid.; Sec. 5, RA 8493, Speedy
2. Palpable mistake Trial Act)

NON-APPEARANCE DURING PRE-TRIAL NOTE: To prevent manifest injustice, however, the

court, upon its own initiative or at the instance of
Effect of non-appearance of counsel for the any party, may modify the pre-trial order.
accused or the prosecutor during the pre-trial
without valid justification Period for the trial judge to issue a pre-trial
order and its contents
The court may impose proper sanctions or penalties
in the form of reprimand, fines or imprisonment, if It must be issued within 10 days after the
the counsel does not offer an acceptable excuse for termination of the pre-trial. It shall set forth the
his lack of cooperation. (Sec. 3, Rule 118, ROC, as following:
amended; Sec. 5, R.A. No. 8493, Speedy Trial Act)
1. Actions taken during the pre-trial conference;
Rationale of the exclusion of the accused in the 2. Facts stipulated;
mandatory appearance during pre-trial 3. Admissions made;
4. Evidence marked; and
The principal reason why the accused is not 5. Number of witnesses to be presented and the
included in the mandatory appearance is the fear schedule of trial. (Sec. 4, Rule 118, ROC, as
that to include him is to violate his constitutional amended)
right to remain silent. (Sec. 12(1), Art. III, 1987
Constitution)
NOTE: Unless otherwise required by the court,
personal appearance of the accused at the
conference is not indispensable. This is aside from
the consideration that the accused may waive his
presence at all stages of the criminal action, except

526
 Criminal Procedure

Pre-trial in a Civil Case vs. Pre-trial in a Criminal criminal liability as one

Case (1997 BAR) of its purpose. (Ibid.)
The agreements and
All agreements or
PRE-TRIAL IN PRE-TRIAL IN admissions may be
admissions made or
CIVIL CASE CRIMINAL CASE contained in the record
entered during the pre-
Pre-trial is ordered by of pre-trial and pre-
trial conference shall
Pre-trial is preceded by the court and no trial order. The
be reduced in writing
a motion ex parte filed motion to set the case “Minutes of
and signed by both the
by the plaintiff to set for pre-trial is required Preliminary
accused and counsel;
the case for pre-trial. from either the Conference may be
otherwise, they cannot
(Sec. 1, Rule 18, ROC, as prosecution or the signed by either the
be used against the
amended) defense. (Sec. 1, Rule party or his counsel.
accused.
118, ROC, as amended)
The pre-trial is ordered A pre-trial brief is
by the court after required to be
arraignment and submitted before the
A pre-trial brief is not
within 30 days from court and must be
specifically required.
the date the court served on the adverse
acquires jurisdiction party. (Sec. 6, Rule 18,
over the person of the ROC, as amended)
accused. (Ibid.)
The motion to set the
case for pre-trial is
NOTE: The J. TRIAL
made after the last
arraignment and RULE 119
pleading has been
preliminary
served and filed. (Ibid.)
conference shall be
simultaneously held in
It is the examination before a competent tribunal
mediatable cases
according to the laws of the land, of facts put in issue
subject to the Rule on
in a case for the purpose of determining such issue.
Summary Procedure.
(A.M. No. 15-06-10-SC
When trial shall commence
Resolution, effective
April 25, 2017)
1. The trial shall commence within 30 days from
The “proper sanctions
receipt of pre-trial order. (Sec. 1, Rule 119, ROC,
and penalties” for non-
as amended)
appearance may be
The sanction for non- 2. If the accused is to be tried again pursuant to an
imposed upon the
appearance is imposed order for a new trial, the trial shall commence
counsel or the
upon the non- within 30 days from notice of the order granting
prosecutor in case of
appearing party. (Sec. a new trial. (Sec. 5, Rule 119, ROC, as amended)
failure to offer an
5, Rule 18, ROC, as
acceptable excuse for
amended) NOTE: Period may be extended to one not
lack of cooperation.
exceeding 180 days from notice of order if period
(Sec. 3, Rule 118, ROC,
becomes impractical due to unavailability of
as amended)
witness and other factors. (Ibid.)
Considers the Does not include the
possibility of an considering of the
amicable settlement or possibility of amicable
compromise. settlement of a

527 UNIVERSITY OF SANTO TOMAS

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 Remedial Law
Summary of Periods
Arraignment
a. Within 30 days from the date the court
acquires jurisdiction over the accused, unless
a shorter period is provided by special law or
Supreme Court circular. (Sec. 1(g), Rule 116,
ROC, as amended)
b. When the accused is under preventive
detention, the accused shall be arraigned
within 10 days from date of raffle. (Sec. 1(e),
Rule 116, ROC, as amended)
Pre-trial
a. After arraignment and within 30 days from
the date the court acquires jurisdiction over
the person of the accused, unless a shorter
period is provided by special law or Supreme
Court circular. (Sec. 1, Rule 118, ROC, as
amended)
b. If the accused is under preventive detention,
the pre-trial shall be held within 10 days after
arraignment. (Sec. 1(e), Rule 116, ROC, as
amended)
Trial
The general period applicable is 30 days from
receipt of the pre-trial order. (Sec. 1, Rule 119,
ROC, as amended)
Hearing
Hearing is not confined to trial but embraces several
stages of litigation including the pre-trial stage. A
hearing does not necessarily imply the presentation
of oral or documentary evidence in open court but
that the parties are afforded an opportunity to be
heard. (Republic v. Sandiganbayan, G.R. No. 104768,
21 Jul. 2003)
Continuous Trial
The trial once commenced, shall continue from day
to day as far as practicable until terminated.
However, it may be postponed for a reasonable
period of time for good cause. (Sec. 2, Rule 119, ROC,
as amended)
528
It is one where the courts are called upon to conduct
the trial with utmost dispatch, with judicial exercise
of the court’s power to control the trial to avoid
delay and for each party to complete the
presentation of evidence with the trial dates
assigned to him. (Adm. Cir. No. 4, 22 Sep. 1988)
NOTE: The granting or refusal of an application for
continuance or postponement of the trial lies within
the sound discretion of the court and the discretion
will not be interfered with by mandamus or by
appeal unless there is grave abuse of discretion.
Purpose of the continuous trial system
The purpose of the system is to “expedite the
decision or resolution of cases in the trial courts”
considering the mandate of Sec. 12, Art. XVIII of the
1987 Constitution. SC Circular No. 1-89 requires
that the “judge shall conduct the trial with utmost
dispatch, with judicious exercise of the court's
power to control the trial to avoid delay” and that “a
strict policy on postponements shall be observed.”
NOTE: The SC adopted the continuous trial system
as a mode of judicial fact-finding and adjudication
conducted with speed and dispatch so that trials are
held on the scheduled dates without postponement,
the factual issues for a trial well defined at pre-trial
and the whole proceedings terminated and reason
or judgment within 90 days from the date of initial
hearing, unless for meritorious reasons an
extension is permitted.
Duties of the Presiding Judge under the
continuous trial system
a. Adhere faithfully to the session hours
prescribed by laws;
b. Maintain full control of the proceedings;
c. Effectively allocate and use time and court
resources to avoid court delays; and
d. Continuous trial on a weekly or other short-
term trial calendar at earliest possible time.
 Criminal Procedure
Factors to be considered for granting
continuance
Whether or not:
1. The failure to grant a continuance would likely
make a continuation of such proceeding
impossible or result in a miscarriage of justice;
and
2. The case, as a whole, is so novel, unusual and
complex, due to the number of accused or the
nature of the prosecution, or that it is
unreasonable to expect adequate preparation
within the periods of time established therein.
(Sec. 4, Rule 119, ROC, as amended)
Prohibited grounds for a continuance
1. Congestion of the court’s calendar;
2. Lack of diligent preparation;
3. Failure to obtain available witnesses on the part
of the prosecutor. (Sec. 4, Rule 119, ROC, as
amended)
Time limit for the trial of criminal cases
GR: Trial shall not exceed 180 days from the first
day of trial. (Sec. 2, Rule 119, ROC, as amended)
XPNs:
1. Those governed by the rules on summary
procedure;
2. Those where the penalty prescribed by law
does not exceed 6 months imprisonment or a
fine of P1,000 or both; and
3. Those authorized by the Chief Justice of the
Supreme Court. (Sec. 6, R.A. No. 8493, Speedy
Trial Act)
Commencement of trial may be extended based on
the following conditions:
1. For the 180 days, for the first 12 calendar
month period from the effectivity of the law;
2. 120 days for the second 12-month period; and
3. 80 days for the third 12-month period. (Sec. 9,
R.A. No. 8493)
529
Exclusions in computation of time within which
trial must commence
1. Any periods of delay resulting from other
proceedings concerning the accused, including
but not limited to the following:
a. Examination of the physical and mental
condition of the accused;
b. Proceedings with respect to other criminal
charges against the accused;
c. Extraordinary remedies against
interlocutory orders;
d. Pre-trial proceedings; provided, that the
delay does not exceed 30 days;
e. Orders of inhibition, or proceedings
relating to change of venue of cases or
transfer from other courts;
f. A finding of the existence of a prejudicial
question; or
g. Those delays reasonably attributable to
any period, not to exceed 30 days, during
which any proceeding concerning the
accused is actually under advisement.
a. Any period of delay resulting from the absence
or unavailability of an essential witness;
NOTE: An essential witness shall be considered
absent when his whereabouts are unknown or
undetermined by due diligence. He shall be
considered unavailable whenever his whereabouts
are known but his presence for trial cannot be
obtained by due diligence.
b. Any period of delay resulting from the mental
incompetence or physical inability of the
accused to stand trial;
c. If the information is dismissed upon motion of
the prosecution and thereafter a charge is filed
against the accused for the same offense, any
period of delay from the date the charge was
dismissed to the date the time limitation would
commence to run as to the subsequent charge
had there been no previous charge;
d. A reasonable period of delay when the accused
is joined for trial with a co-accused over whom
the court has not acquired jurisdiction, or, as to
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whom the time for trial has not run and no
motion for separate trial has been granted; and
e. Any period of delay resulting from a
continuance granted by any court motu proprio,
or on motion of either the accused or his
counsel, or the prosecution, if the court granted
the continuance on the basis of its findings set
forth in the order that the ends of justice served
by taking such action outweigh the best interest
of the public and the accused in a speedy trial.
(Sec. 3, Rule 119, ROC, as amended)
Q: In a petition assailing the validity of the order
of the trial court, the petitioner insists that the
judge acted with grave abuse of discretion when
it dismissed the criminal case against the
accused on the ground that that the 30-day time
limit set by Rule 119 had been breached. It is
further claimed by the petitioner that their
pending petition for transfer of venue should
interrupt proceedings and, therefore, halt the
running of the 30-day time limit. Is the petition
meritorious?
A: NO. The delays that may be excluded from the
time limit in Sec. 3 of Rule 119 within which trial
must commence are those resulting from
proceedings concerning the accused. The time
involved in the proceedings in a petition for transfer
of venue can only be excluded from said time limit if
it was the accused who instituted the same. Further,
the petition for transfer of venue cannot interrupt
proceedings unless a TRO or writ of preliminary
injunction has been issued in accordance with Sec. 7
of Rule 65 as said petition is akin to a petition for
certiorari. (Mari vs. Gonzales, G.R. No. 187728, 12
Sept. 2011)
Remedies of the accused when a prosecuting
officer without just cause secures
postponements of the trial against his protest
beyond a reasonable period of time:
1. Mandamus to compel a dismissal of the
information; or
2. If he is restrained of his liberty, by habeas
corpus to obtain his freedom.
530
Acts of the counsel, attorney, or prosecutor
which would warrant a sanction
1. Knowingly allowing the case to be set for trial
without disclosing that a necessary witness
would be unavailable for trial;
2. Files a motion solely for delay, knowing it to be
frivolous and without merit;
3. Makes a statement in order to obtain
continuance which he knows to be false, and
which is material to the granting of a
continuance; and
4. Willfully fails to proceed to trial without
justification. (Sec. 8, Rule 119, ROC, as amended)
ORDER OF TRIAL IN CRIMINAL CASES
In criminal cases, the trial shall proceed in the
following order:
1. The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
NOTE: In Dangerous Drugs Cases, it is the duty
of the prosecution to present a complete picture
detailing the buy-bust operation – from the
initial contact between the poseur-buyer and
the pusher, the offer to purchase, the promise
or payment of the consideration, until the
consummation of the sale by the delivery of the
illegal subject of sale. (People v. Ong, G.R. No.
175940, 06 Feb. 2008)
2. The accused may present evidence to prove his
defense, and damages, if any, arising from the
issuance of a provisional remedy in the case.
3. The prosecution may present rebuttal evidence
unless the court, in furtherance of justice,
permits them to present additional evidence
bearing upon the main issue.
NOTE: Rebuttal evidence is any competent
evidence to explain, repel, counteract or
disprove the adversary’s proof. It is receivable
only where new matters have been developed
by the evidence of one of the parties and is
generally limited to a reply to new points.
 Criminal Procedure
4. The accused may present rebuttal evidence
unless the court permits them to present
additional evidence bearing upon the main
issue.
5. Upon admission of the evidence of the parties,
the case shall be deemed submitted for decision
unless the court directs them to argue orally or
to submit written memoranda. (Sec. 11, Rule
119, ROC, as amended)
NOTE: The order of the trial may be modified when
the accused admits the act or omission charged in
the complaint or information but interposes a
lawful defense. (Sec. 11(e), Rule 119, ROC, as
amended)
Q: What is reverse trial and when may it be
resorted to? Explain briefly. (2012 BAR)
A: When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the trial court may
allow the accused to present his defense first and
thereafter give the prosecution an opportunity to
present its rebuttal evidence. A departure from the
order of the trial is not reversible error as where it
was agreed upon or not seasonably objected to, but
not where the change in order of the trial was timely
objected by the defense.
NOTE: Where the order of the trial set forth was not
followed by the court to the extent of denying the
prosecution an opportunity to present evidence, the
judgment is a nullity. If there is not enough evidence
to prove the accused’s guilt beyond reasonable
doubt, then the defense should file demurrer to
evidence.
Case deemed submitted for decision
Upon the admission of the parties’ evidence-in-
chief, rebuttal and sur-rebuttal proof, the case is
deemed submitted for decision unless the court
directs them to argue their respective memoranda.
Mistake in charging the proper offense
GR: When it becomes manifest at any time before
judgment that a mistake has been made in charging
531
the proper offense, the accused cannot be convicted
of the offense charged or any other offense
necessarily included therein.
XPN: The accused shall not be discharged if there
appears to be a good cause to detain him. In such
case, the court shall commit the accused to answer
for the proper offense and dismiss the case upon
filing of the proper information. (Sec. 19, Rule 119,
ROC, as amended)
NOTE: This rule is predicated on the fact that an
accused has the right to be informed of the nature
and cause of the accusation against him.
Reopening of the proceedings
At anytime before finality of judgment of conviction,
the judge may motu proprio or upon motion, with
hearing in either case, reopen the proceedings to
avoid a miscarriage of justice. The proceedings shall
be terminated within 30 days from the order
granting it. (Sec. 24, Rule 119, ROC, as amended)
The case may be reopened upon the showing of the
following requirements:
1. The reopening must be before finality of a
judgment of conviction;
2. The order is issued by the judge on his own
initiative or upon motion;
3. The order is issued only after the hearing is
conducted;
4. The order intends to prevent a miscarriage of
justice; and
5. The presentation of additional and/or further
evidence should be terminated within thirty
days from the issuance of the order. (Cabales v.
Maceda, 516 SCRA 303, 20 Feb. 2007)
INSTANCES WHEN PRESENCE OF ACCUSED IS
REQUIRED BY LAW
In the following instances, the presence of the
accused is required:
1. At arraignment and plea, whether of innocence
or of guilt; (Sec. 1(b), Rule 116, ROC, as amended)
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2. During trial whenever necessary for
identification purposes; and (Sec. 1(c), Rule 115,
ROC, as amended)
3. At the promulgation of sentence, unless it is for
a light offense, in which case, the accused may
appear by counsel or representative. (Sec. 6,
Rule 120, ROC, as amended)
Waiver of Right
GR: The accused may waive his presence at the trial
pursuant to the stipulations set forth in his bail.
(Sec. 1(c), Rule 115, ROC, as amended)
XPN: Unless his presence is specifically ordered by
the court for purposes of identification. (Sec. 1(c),
Rule 115, ROC, as amended)
Duty of the public attorney when accused is
imprisoned
It shall be his duty to do the following:
a. Promptly undertake to obtain the presence of
the prisoner for trial or cause a notice to be
served on the person having custody of the
prisoner requiring such person to so advice the
prisoner of his right to demand trial.
b. Upon receipt of that notice, the custodian of that
prisoner shall promptly advice the prisoner of
the charge and of his right to demand trial. If at
any time thereafter the prisoner informs his
custodian that he demands such trial, the latter
shall cause notice to that effect to be sent
promptly to the public attorney.
c. Upon receipt of such notice, the public attorney
shall promptly seek to obtain the presence of
the prisoner for trial.
d. When the custodian of the prisoner receives
from the public attorney a properly supported
request for the availability of the prisoner for
purposes of trial, the prisoner shall be made
available accordingly. (Sec. 7, Rule 119, ROC, as
amended)
532
Conduct of trial for several accused
GR: When two or more persons are jointly charged
with an offense, they shall be tried jointly. This rule
is so designed as to preclude a wasteful expenditure
of judicial resources and to promote an orderly and
expeditious disposition of criminal prosecutions.
XPN: The court, in its discretion and upon motion of
the prosecutor or any of the defendants, may order
a separate trial for one or more accused. (Sec. 16,
Rule 119, ROC, as amended)
NOTE: In the interest of justice, a separate trial may
be granted even after the prosecution has finished
presenting its evidence in chief. (Joseph v. Villaluz,
G.R. No. L-45911, 11 Apr. 1979)
If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is not
admissible against the latter. In joint trial, it would
be admissible if the latter had an opportunity for
cross-examination.
REQUISITES BEFORE A TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS
To justify delay or suspension of trial by reason of
the absence of a witness, the following must be
present:
1. Witness is essential and appears to the court to
be so;
NOTE: “Essential” means indispensable,
necessary, or important in the highest degree.
(Riano, 2019)
2. His absence is brought by either of the
following:
a. His whereabouts are unknown; or
b. His whereabouts cannot be determined by
due diligence.
NOTE: A witness shall be considered unavailable
even if his whereabouts are known but his presence
for the trial cannot be obtained by due diligence.
(Sec. 3(b), Rule 119, ROC, as amended)
 Criminal Procedure

Effect of Absence of Witness will not be able to 2. He has to leave the

attend the trial. Philippines with
Any period of delay resulting from the absence or 2. He resides more no definite date of
unavailability of an essential witness shall be than 100 return. (Sec. 15,
excluded in computing the time within which trial kilometers and has Rule 119, ROC, as
must commence. (Sec. 3, Rule 119, ROC, as amended) no means to attend amended)
the same.
Appearance of material witness 3. Other similar
circumstances
Either party may, upon motion, secure an order exist that would
from the court for a material witness to post bail for make him
such sum as maybe deemed proper, if the court is unavailable or
satisfied upon either proof or oath that a material prevent him from
witness will not testify when required. (Sec. 14, Rule attending trial.
119, ROC, as amended) (Sec. 12, Rule 119,
ROC, as amended)
If the witness refuses to post bail, the court shall 4. May be made if the
commit him to prison until he compiles or is legally witness resides
discharged after his testimony has been taken. more than 100 km
(Ibid.) from the place of
trial. (Secs. 13 and
Some rules on witness’ credibility 15, Rule 119, ROC,
as amended)
1. Affidavits, which are usually taken ex parte, are Conducted before any
Conducted only before
often incomplete and inaccurate. (Resayo v. judge, member of bar
the judge or the court
People, 522 SCRA 391, 27 Apr. 2007) in good standing or
where the case is
2. Truth is established not by the number of before any inferior
pending.
witnesses but by the quality of their court.
testimonies. (Ceniza-Manantan v. People, 531 Right to cross-
SCRA 364, 28 Aug. 2007) examine. Hence such
statements of the
No right to cross
Examination of defense witness vs. Examination prosecution witnesses
examine.
of prosecution witness BEFORE TRIAL may thereafter be
admissible in behalf of
EXAMINATION OF EXAMINATION OF or against the accused.
DEFENSE WITNESS PROSECUTION
WITNESS TRIAL IN ABSENTIA
The accused may have
his witness examined Conducted in the Sec. 14 (2), Art. III of the Constitution provides that
conditionally in his presence of the trial may proceed notwithstanding the absence of
behalf before trial accused unless he the accused provided that he has been duly notified
upon motion with waived his right after and his failure to appear is unjustifiable. (Parada v.
notice to all other reasonable notice. Veneracion, A.M. No. RTJ-96-1353, 11 Mar. 1997)
parties.
Grounds Requisites of trial in absentia:
1. Witness is so sick
1. The witness is too
to afford 1. The accused has already been arraigned;
sick to appear at
reasonable ground 2. He has been duly notified of the trial; and
trial.
to believe that he

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3. His failure to appear is unjustified. (Sec. 14(2),
Art. III, 1987 Constitution of the Philippines;
Bernardo v. People, G.R. No. 166980, 04 Apr.
2007)
Effects of trial in absentia
The accused waives the right to present evidence
and cross-examine the witnesses against him. The
accused’s waiver does not mean, however, that the
prosecution is deprived of the right to require the
presence of the accused for purposes of
identification by the witnesses which is vital for
conviction of the accused, except where he
unqualifiedly admits in open court after his
arraignment that he is the person named as
defendant in the case on trial.
Q: Assailing the validity of the decisions of both
trial and appellate court, the petitioner
questions the decisions of both courts
convicting him for violation of BP 22 on the
ground that he was denied due process of law as
the trial court proceeded with his trial and
promulgated the assailed decision in absentia. Is
the petition meritorious?
A: NO. The holding of trial in absentia is authorized
by law. Under Sec. 14 (2), Art. III of the 1987
Constitution, “after arraignment, trial may proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable.” The failure of the
accused to appear before the court in spite of notice
has been considered a waiver of their right to be
present at their trial, and the inability of the court to
notify them of the subsequent hearings did not
prevent it from continuing with their trial. They
were deemed to have received notice. Thereafter,
the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused
and to render its judgment accordingly. (Bernardo
vs. People, G.R. No. 166980, 04 Apr. 2007)
REMEDY WHEN ACCUSED IS NOT BROUGHT TO
TRIAL WITHIN THE PRESCRIBED PERIOD
If the accused is not brought to trial within the time
limit required by Sec. 1(g), Rule 116, and Section 1,
as extended by Section 6 of this Section 119, the
534
information may be dismissed on motion of the
accused on the ground of denial of his right to
speedy trial. (Sec. 9, Rule 119, ROC, as amended)
NOTE: The dismissal shall be subject to the rules on
double jeopardy. (Ibid.)
Burden of proving the motion
The accused has the burden of proving the motion,
but the prosecution shall have the burden of going
forward with the evidence to establish the exclusion
of time under Sec. 3, Rule 117, ROC, as amended.
(Ibid.)
Failure of the accused to move for dismissal
prior to trial
The failure of the accused shall constitute a waiver
of the right to dismiss under Sec. 9, Rule 117 of the
Revised Rules on Criminal Procedure.
REQUISITES FOR DISCHARGE OF ACCUSED TO
BECOME A STATE WITNESS
State witness
He is one of two or more persons jointly charged
with the commission of a crime but who is
discharged with his consent as such accused so that
he may be a witness for the State. (People v. Ferrer,
G.R. No. 102062, 14 Mar. 1996)
Requisites before an accused may become a
State witness:
1. Two or more accused are jointly charged with
the commission of an offense;
2. The motion for discharge is filed by the
prosecution before it rests its case;
3. The prosecution is required to present evidence
and the sworn statement of each proposed state
witness at a hearing in support of the discharge;
4. The accused gives his consent to be a state
witness; and
5. The trial court is satisfied that:
 Criminal Procedure
a. There is absolute necessity for the
testimony of the accused whose
discharge is requested;
b. There is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of the said
accused;
c. The testimony of said accused can be
substantially corroborated in its material
points;
d. Said accused does not appear to be the most
guilty; and
e. Said accused has not at any time been
convicted of any offense involving moral
turpitude. (Sec. 17, Rule 119, ROC, as
amended)
When an accused be discharged to become a
state witness
The discharge can be at any time from filing to the
time the defense starts to offer any evidence.
(People v. Aninon, G.R. No. L-39083, 06 Mar. 1988)
Q: May an accused who has pleaded guilty to an
offense still be discharged to become a state
witness?
A: YES, for as long as he or she has not yet been
sentenced. The basic reason for the rule is that the
discharge of an accused is a matter of discretion.
(People vs. Ocimar, G.R. No. 94555, 17 Aug. 1992)
The guidelines however in the discharge of an
accused must be complied with. Another reason is
that the prosecutor should know better than the
court and the defense for that matter, as to who
among the accused would best qualify to be
discharged to become a state witness. The public
prosecutor knows the evidence in his possession
ahead of all the rest. He knows he needs to establish
his case. (Albano, 2020)
Q: Petitioner claims that the public respondent
judge erred when it ordered the discharge of
private respondents as state witnesses when the
535
latter were already charged along with the other
accused, including him, before they were
admitted to the Witness Protection under RA
6981. Petitioner argues that if this were to be
allowed, the same is tantamount to permitting
the prosecution to supplant with its own the
court’s exercise of discretion on how a case over
which it has acquired jurisdiction will proceed.
Is the petition meritorious?
A: NO. The discharge of an accused under R.A. No.
6981 is separate and distinct from Rule 119. Rule
119 of the Revised Rules on Criminal Procedure
does not support the proposition that the power to
choose who shall be a state witness is an inherent
judicial prerogative. The Rules of Court have never
been interpreted to be beyond change by legislation
designed to improve the administration of our
justice system. R.A. No. 6981 is one of the much-
sought penal reform laws to help government in its
uphill fight against crime. What is only required
under R.A. No. 6981 is compliance with Sec. 14 of
Rule 110 requiring that the exclusion of the accused
be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court.
(Yu v. Judge RTC of Tagaytay City, G.R. No. 142848, 30
Jun. 2006)
EFFECTS OF DISCHARGE OF ACCUSED AS STATE
WITNESS
GR:
1. Discharge of accused operates as an acquittal
and bar to further prosecution for the same
offense (Sec. 18, Rule 119, ROC, as amended);
2. Evidence adduced in support of the discharge
shall automatically form part of the trial (Sec.
17, Rule 119, ROC, as amended); and
3. If the court denies the motion to discharge the
accused as State witness, his sworn statement
shall be inadmissible in evidence. (Sec. 17, Rule
119, ROC, as amended)
XPNs:
1. When the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of his
discharge (Sec. 18, Rule 119, ROC, as amended);
2. Failure to testify refers exclusively to
defendant’s will or fault; and
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3. Where an accused who turns into a state Witness Protection Program vs. Sec. 17, Rule
witness on a promise of immunity but later 119 of the Rules of Court
retracts and fails to keep his part of the
agreement, his confession made under such a WITNESS
promise may be used against him. (People v. PROTECTION RULES OF COURT
Beberino, G.R. No. L-23092, 28 Oct. 1977) PROGRAM
Applicability to Felonies
NOTE: Discharge under this rule is only one of the The offense in which
modes to be a State witness. Other modes are: the testimony is to be
used is limited only to It has no qualification.
1. The Witness Protection Program of R.A. No. grave felony under the It applies to all felonies.
6981; RPC or its equivalent
2. The power of the Ombudsman to grant under special law.
immunity under Sec. 17, R.A. No. 6770; Additional Requirement
3. Immunity under P.D. No. 749 or granting Any member of the
immunity from prosecution to givers of bribes family of the person
and other gifts and to their accomplices in applying for admission
bribery and other graft cases against public within the second civil
officers; degree of
4. Immunity under E.O. 14-A or granting consanguinity or
immunity from criminal prosecution to any affinity is subjected to
person who provides information or testifies in threat of his life or
any investigation conducted by Presidential bodily injury or there is
Commission on Good Governance (PCGG); This is not required.
a likelihood that he will
5. Immunity under the Comprehensive Dangerous be killed, forced,
Drugs Act of 2002, R.A. No. 9165; and intimidated, harassed
6. Immunity and Protection under the Human or corrupted to
Security Act of 2007, R.A. No. 9372. prevent him from
testifying or to testify
Q: Is the discharge of an accused as a state falsely or evasively on
witness necessary before the prosecution can account of his
present him as a prosecution witness? testimony.
Law Enforcement Officer as Witness
A: NO. As there is nothing in the rules that require There is no such
that the accused be discharged first as a state limitation. One can be
witness before he becomes a prosecution witness. The witness applying is
discharged as a
While it is true that an accused cannot be made a not a law enforcement
witness whether he is a
hostile witness for the prosecution, for to do so officer.
law enforcement
would compel him to be a witness against himself, officer or not.
he may, however, testify against a co-defendant Granting of Immunity
where he has agreed to do so, with full knowledge of The immunity is The court grants the
his right and the consequences of his acts. There is a granted by DOJ. immunity.
difference between testifying as state witness and
Entitlement to Certain Rights
testifying as a co-accused. In the first, the proposed
The witness so
state witness has to qualify as a witness for the state,
The witness is discharged must still
after which he is discharged as an accused and
automatically entitled apply for the
exempted from prosecution. In the second, the
to certain rights and enjoyment of said
witness remains an accused and can be made liable
benefits. rights and benefits in
should he be found guilty of the criminal offense.
the DOJ.
(People v. Chaves, G.R. No. 131377, 11 Feb. 2003)

536
 Criminal Procedure

Prior Charge NOTE: Generally, in criminal cases, the grant of a

He is charged in court demurrer is tantamount to an acquittal and the
The witness need not as one of the accused as dismissal order may not be appealed because this
be charged elsewhere. stated in the would place the accused in double
information. jeopardy. Although the dismissal order is not
Effect subject to appeal, it is still reviewable but only
The charges against through certiorari under Rule 65 of the Rules of
No information may Court.
him shall be dropped
thus be filed against
and the same operates
the witness. For the writ to issue, the trial court must be shown
as an acquittal.
to have acted with grave abuse of discretion
NOTE: Both require that there is absolute necessity amounting to lack or excess of jurisdiction such as
for the testimony and that there is no other direct where the prosecution was denied the opportunity
evidence available for the prosecution of the offense to present its case or where the trial was a sham
committed. thus rendering the assailed judgment void. The
burden is on the petitioner to clearly demonstrate
DEMURRER TO EVIDENCE that the trial court blatantly abused its authority to
a point so grave as to deprive it of its very power to
It is an objection by one of the parties in an action to dispense justice. (People v. Sandiganbayan, G.R. No.
the effect that the evidence which his adversary 174504, 21 Mar. 2011)
produced is insufficient in point of law to make out
a case or sustain the issue. (Nicolas v. Effect of filing a demurrer with leave of court vs.
Sandiganbayan, G.R. Nos. 175930-31, 11 Feb. 2008) Filing a demurrer without leave

NOTE: A demurrer to evidence is actually a motion DEMURRER WITH DEMURRER

to dismiss that is filed by the accused after the LEAVE OF COURT WITHOUT LEAVE OF
prosecution has rested its case. COURT
Denial of Demurrer
To be considered sufficient, the evidence must It is tantamount to a
prove: waiver of the accused’s
right to present
The accused may
1. The commission of the crime; and evidence and as a
proceed with the
2. The precise degree of participation therein by consequence the case
presentation of his
the accused. (Singian, Jr. v. Sandiganbayan, G.R. will be submitted for
evidence.
No. 195011-19, 30 Sept. 2013) judgment on the basis
of the evidence for the
RULES ON DEMURRER TO EVIDENCE prosecution.
How made 1. Court on its own initiative; or Grant of Demurrer
2. Upon filing of the accused for The case is dismissed, and the effect is an
demurrer of evidence: acquittal.
a. With leave of court; or Motion for Leave of Court
b. Without leave of court. The motion for leave of
When made After the prosecution rests its court to file a demurrer
case. to evidence shall
Ground Insufficiency of evidence specifically state its
Effect The court may dismiss the case. grounds and shall be
(Sec. 23, Rule 119, ROC, as filed within a non-
amended) extendible period of 5
days after the

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prosecution rests its NOTE: In order to determine whether the pleading

case. The prosecution filed is demurrer to evidence or a motion to dismiss,
may oppose the the Court must consider:
motion within a non-
extendible period of 5 a. the allegations in it made in good faith;
days from its receipt. b. the stage of proceeding at which it is filed;
If leave of court is and
granted, the accused c. the primary objective of the party filing it.
may file the demurrer (Cabador v. People, GR No. 186001, 02 Oct.
to evidence within 10 2009)
days. The prosecution
may however, oppose Demurrer to Evidence in a Civil Case vs.
the demurrer to Demurrer to Evidence in a Criminal Case
evidence within a non-
extendible period of 10 DEMURRER TO DEMURRER TO
days from the receipt EVIDENCE IN A CIVIL EVIDENCE IN A
of the demurrer. (Sec. CASE CRIMINAL CASE
23, Rule 119, ROC, as Leave of Court
amended) Leave of Court is not A demurrer is filed
required before the with or without a
Purpose of leave of court filing of a demurrer. leave of court.
Appeal
The purpose of leave of court is to determine Order of dismissal is Order of dismissal is
whether or not the defendant in a criminal case has appealable, if the not appealable
filed the demurrer merely to stall the proceedings. dismissal is reversed, because of the
(People v. Mahinay, G.R. No. 109613, July 17, 1995) the defendant is Constitutional policy
deemed to have waived against double
Demurrer to evidence vs. Motion to dismiss his right to present his jeopardy. (People v.
evidence. (Sec. 1, Rule Tan, G.R. No. 167526,
DEMURRER TO MOTION TO DISMISS 33, ROC, as amended) 26 Jan. 2010)
EVIDENCE Effect of Denial
It is based on the The accused may
denial of the accused’s adduce his evidence in
Assumes that the
right to speedy trial his evidence only
prosecution has already
characterized by when the demurrer
rested its case filed by
unreasonable, that was denied was
the accused with or
vexatious and If the demurrer is filed with leave of
without leave of court
oppressive delay denied, the defendant court.
and submits the case for
without fault of the may proceed to present
judgment on the
accused, or by his evidence. (Sec. 1, When filed without
evidence of the
unjustified statements Rule 33, ROC, as leave of court and the
prosecution.
that unreasonably amended) He or she demurrer is denied,
prolonged the trial. does not lose his right the accused waives his
It may be filed in good It is filed without leave to present evidence. right to present
faith with or without of court and before the evidence and submits
leave of court. prosecution has the case for judgment
rested its case. on the basis of the
evidence for the
prosecution. (Sec. 23,

538
 Criminal Procedure

Rule 119, ROC, as 4. Contains clearly and distinctly a statement of

amended) the facts and the law upon which it is based.
(Sec. 1, Rule 120, ROC, as amended)

Jurisdictional requirements before a judgment

Basis may be rendered
A demurrer to evidence
in a civil a case is A demurrer in a 1. Jurisdiction over the subject matter;
anchored upon the criminal case is 2. Jurisdiction over the territory; and
failure of the plaintiff to predicated upon 3. Jurisdiction over the person of the
show that upon the insufficiency of accused. (Antiporda, Jr. v. Garchitorena,
facts and the law, he is evidence. G.R. No. 133289, 23 Dec. 1999)
entitled to relief.
Motu Proprio CONTENTS OF JUDGMENT
The court cannot move
at its own instance. The court may move at The judgment must state:
Motion from the its own instance.
defendant is required. 1. If of conviction:
a. Legal qualification of the offense
constituted by the acts committed by the
accused, and the aggravating or mitigating
K. JUDGMENT
circumstances attending its commission;
(RULE 120)
b. Participation of the accused whether as
principal, accomplice or accessory;
c. Penalty imposed upon the accused; and
Judgment is the adjudication by the court that the d. Civil liability or damages caused by the
accused is guilty or not guilty of the offense charged wrongful act or omission unless a separate
and the imposition of the proper penalty and civil civil action has been reserved or waived.
liability, if any. (Sec. 1, Rule 120, ROC, as amended) (Sec. 2, Rule 120, ROC, as amended)

REQUISITES OF A JUDGMENT 2. If of acquittal:

Formal requisites
1. Written in official language;
NOTE: If given verbally, it is incomplete. (People
v. Catolico, G.R. No. L-31260, 29 Feb. 1972) An
oral dismissal of a criminal case does not attain
the effect of judgment of acquittal. So that it is
still within the powers of the judge to set aside
and enter another order. This is so because the
order of dismissal must be written and signed
by the judge. (Abay, Sr. v. Garcia, G.R. No. L-
66132, 27 June 1988)
2. Personally and directly prepared by the judge;
3. Signed by the judge; and
a. Whether the evidence of the prosecution
absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt
beyond reasonable doubt; and
b. In either case, the judgment shall
determine if the act or omission from which
the civil liability might arise did exist. (Sec.
2, Rule 120, ROC, as amended)
Penalties in the alternative
Q: Can the courts impose penalties in the
alternative?
A: NO. It is true that under many of the provisions of
the penal law, the court has the discretion or
alternative of imposing one or another of different
penalties; but certainly it cannot be argued that,
because the judge has the discretion of fixing one or

539 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
another penalty, he can impose both in the
alternative. He must fix positively and with
certainty the particular penalty. (U.S. vs. Chong Ting,
G.R. No. 7259, 02 Sept. 1912)
Award of indemnity to offended party in spite of
acquittal
In case of acquittal, unless there is a clear showing
that the act from which the civil liability might arise
did not exist, the judgment must make a finding on
the civil liability of the accused in favor of the
offended party. (Sec. 2, par. 2, Rule 120, ROC, as
amended)
Remedies when the judgment fails to award civil
liability:
1. Appeal;
2. Certiorari; or
3. Mandamus.
Duplicitous complaint or information
When two or more offenses are charged in a single
complaint or information but the accused fails to
object to it before trial, the court may convict him of
as many offenses as are charged and proved, and
impose on him the penalty of each offense, setting
out separately the findings of the fact and law in
each offense. (Sec. 3, Rule 120, ROC, as amended) The
failure to object is tantamount to a waiver.
Judgment rendered by judge who did not hear
the case
The SC clarified that the fact that the trial judge who
rendered judgment was not the one who had the
occasion to observe the demeanor of the witnesses
during trial, but merely relied on the records of the
case, does not render the judgment erroneous,
especially where the evidence on record, is
sufficient to support its conclusions. (People v.
Alfredo, G.R. No. 188560, 15 Dec. 2010)
The judge who presided over the entire trial would
be in a better position to ascertain the truth or
falsity of the testimonies. But the judge who only
took over can render a valid decision by relying on
540
the transcript. It does not violate due process.
(People v. Badon, G.R. No. 126143, 10 June 1999)
Variance doctrine
GR: An accused can be convicted of an offense only
when it is both charged and proved.
XPN: When the offense as charged is included in or
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is
included in the offense charged, or of the offense
charged which is included in the offense proved.
(Sec. 4, Rule 120, ROC, as amended)
NOTE: The accused can be convicted of an offense
only when it is both charged and proven.
The mere fact that the evidence presented would
indicate that a lesser offense outside the court’s
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it under
the allegations in the information. (People v. Ocaya,
G.R. No. L-47448, 17 May 1987)
Q: When does an offense include or is included
in another?
A: An offense charged necessarily includes that
which is proved when some of the essential
elements or ingredients of the former, as this is
alleged in the complaint or information, constitutes
the latter. An offense charged is necessarily
included in the offense proved, when the essential
ingredients of the former constitute or form a part
of those constituting the latter. (Sec. 5, Rule 120,
ROC, as amended)
Q: The information alleges “force and
intimidation” as the mode of commission, while
the victim testified during the trial that she was
asleep at the time it happened and only awoke
to find the male organ of the accused inside her
mouth. Is the variance fatal to the conviction of
the accused for rape by sexual assault?
A: NO. A variance in the mode of conviction of the
offense is binding upon the accused if he fails to
object the evidence showing that the crime was
committed in a different manner than what was
 Criminal Procedure

alleged. In this case, the accused did not object to the Difference between a judgment and a ratio
presentation of evidence showing that the crime decidendi
was committed in a different manner than what was
stated in the information. The variance is not bar to A judgment pronounces the disposition of the case;
his conviction of the crime charged in the while a ratio decidendi provides the basic reason
information. (People v. Corpuz, G.R. No. 168101, 13 for such determination.
Feb. 2006)
Final Order vs. Interlocutory Order
Effect of the judgment of conviction upon a
minor FINAL ORDER INTERLOCUTORY
ORDER
GR: The courts shall promulgate the sentence and It disposes of the It is issued by the court
ascertain any civil liability which the accused may whole subject matter when the proceeding is
have incurred. The sentence, however, shall be or terminates a not yet terminated
suspended without need of application pursuant to particular issue because not all matters
PD 603 or the Child and Youth Welfare Code. In leaving nothing to be of the proceedings have
which case, the child shall have been committed done but to enforce been finished.
under the care of the DSWD or any other accredited by execution what
government institution until he reaches the age of has been determined.
21 or until the court so determines. (Sec. 40, R.A. No.
8344, Juvenile Justice and Welfare Act of 2006) PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA
XPNs: There is no suspension of sentence when
such minor offender: Promulgation of judgment

1. Has enjoyed previous suspension of sentence; It is the official proclamation or announcement of

2. Is convicted of a crime punishable by death or
life imprisonment;
3. Is convicted by a military tribunal; or
4. Is already of age at the time of sentencing even
if he was a minor at the time of the commission
of the crime. (Declarador v. Gubaton, G.R. No.
159208, 18 Aug. 2006)
Rule if the minor already reached the age of
majority upon the promulgation of his sentence
He is no longer entitled to the suspension of
sentence. However, the time he spent during the
period of his confinement shall be credited to his
actual service of sentence. Furthermore, he shall
still be entitled to the privileged mitigating
circumstance of minority. (People v. Francisco, G.R.
No. 102976, 25 Oct. 1995; R.A. No. 9344, Juvenile
Justice and Welfare Act of 2006)
judgment. It is promulgated by reading it in the
presence of the accused and any judge of the court
which it was rendered, or when the judgment is one
of conviction for a light offense, in the presence of
the accused’s counsel or representative. (Sec. 6, Rule
120)
Authority to promulgate the judgment
GR: The judge of the court who renders the
judgment.
XPNs:
1. When the judge is absent or outside the
province or city – Judgment may be
promulgated by the clerk of court; and
2. When the accused is confined or detained in
another province or city – Judgment may be
promulgated by the executive judge of the RTC
having jurisdiction over the place of
confinement or detention. (Sec. 6, Rule 120, ROC,
as amended)

541 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
NOTE: When it is not merely physical absence of the
judge who penned the decision, but the cessation or
termination of his incumbency as such judge, there
is no judgment validly entered in such a case. (Ong
Siu vs. Paredes, G.R. No. L-21638, 26 July 1966)
Sin perjuicio judgment
It is a judgment without a statement of the facts in
support of its conclusion to be later supplemented
by the final judgment. This practice is discouraged
by the courts. (Dizon v. Lopez, A.M. No. RTJ-96-1338,
05 Sept. 1997) This is a practice which should not be
followed and cannot be looked upon with favor.
(Director of Lands v. Sanz, 45 Phil. 117, 31 Aug. 1923)
Notice of promulgation to the accused
The proper clerk of court shall give notice to the
accused requiring him or to be present at the
promulgation of the decision:
1. personally;
2. through his bondsman or warden and counsel;
or
3. notice shall be served at his or her last known
address, if the accused tried in absentia because
he jumped bail or escaped from prison
How promulgation is made when the accused is
absent despite notice
The promulgation shall still be made by:
1. Recording such judgment in the criminal
docket; and
2. Serving him a copy thereof at his last known
address or through his counsel.
Effects of the absence of the accused in the
promulgation of judgment; remedies
If judgment is one of conviction and the accused is
absent without justifiable cause, the court shall
order his arrest and he shall lose the remedies
available in the rules against the judgment and his
bail shall be forfeited.
542
However, the accused may surrender and file a
motion for leave of court to avail of these remedies
within 15 days from the promulgation of judgment.
If such motion is granted, he may avail of these
remedies within 15 days from notice of such order
granting the motion. (Sec. 6, Rule 120, ROC, as
amended) He must however, state the reasons for
his absence at the promulgation and prove that his
absence was for a justifiable cause.
Instances when judgment may be promulgated
even if the accused is not present
1. A judgment of acquittal; and
2. Judgment is for a light offense, in which case
judgment may be promulgated in the presence
of the counsel for the accused or a
representative
Modification of judgment
A judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes
final or before appeal is perfected. (Sec. 7, Rule 120)
Thus, a modification of the judgment must be upon
motion of the accused. It cannot be done on the
court’s own motion.
NOTE: A judgment of acquittal becomes final
immediately after promulgation and cannot be
recalled for correction or amendment. (People v.
Sison, G.R. No. L-11669, 30 Jan. 1959)
INSTANCES WHEN JUDGMENT BECOMES FINAL
A judgment becomes final:
1. After the lapse of time for perfecting an appeal;
NOTE: In case the death penalty is imposed, the
CA shall automatically review the judgment
before it becomes final.
2. When the sentence has been partially or totally
satisfied;
3. When the accused has expressly waived in
writing his right to appeal; or
4. When the accused has applied for probation.
(Sec. 7, Rule 120, ROC, as amended)
 Criminal Procedure

NOTE: Applying for probation is necessarily

deemed a waiver of one’s right to appeal. L. MOTION FOR NEW TRIAL OR
Appeal and probation are mutually exclusive RECONSIDERATION
remedies. Implicit in an application for (RULE 121)
probation is an admission of guilt. (Enrique
Almero v. People, G.R. No. 188191, 12 Mar. 2014)
(2012 BAR)
Period to file a Motion for New Trial or Motion
for Reconsideration
Entry of Judgment

It should be filed with the trial court within 15 days

The recording of the judgment or order in the book
from the promulgation of the judgment. If an appeal
of entries of judgments shall constitute its entry.
has already been perfected, a motion for new trial
The record shall contain the dispositive part of the
on the ground of newly discovered evidence maybe
judgment order and shall be signed by the clerk,
filed in the appellate court.
with a certificate that such judgment or order has
become final and executory. (Sec. 2, Rule 36, ROC, as
A new trial or reconsideration may be granted at
amended)
any time before the judgment of conviction becomes
final:
Finality of judgment vs. Entry of judgment

1. On motion of the accused; or

The finality of the judgment is entirely distinct from
2. On motion of the court but with consent of the
its entry and the delay in the latter does not affect
accused.
the effectivity of the former, which is counted from
the expiration of the period to appeal. (Munnez vs.
Form of a motion for new trial or
CA, G.R. No. L-46040, 23 July 1987)
reconsideration

Remedies before the judgment of conviction

The motion must:
becomes final

1. Be in writing;
Before the judgment of conviction becomes final,
2. Be filed in court;
the convicted accused may avail of certain remedies,
3. State the grounds on which it is based; and
to wit:
4. If the motion for new trial is based on newly
discovered evidence, it must be supported by
a. Modification of judgment (Sec. 7, Rule 120, ROC,
the affidavits of the witness by whom such
as amended)
evidence is expected to be given or duly
b. Reopening of the proceedings (Sec. 24, Rule 119,
authenticated copies of documents which it is
Rules of Court)
proposed to introduce in evidence. (Sec. 4, Rule
c. Motion for New Trial (Sec. 1, Rule 121, ROC, as
121, ROC, as amended)
amended)
d. Motion for Reconsideration (Sec. 1, Rule 120,
NOTE: While the rule requires that an affidavit of
ROC, as amended)
merit be attached to support a motion for new trial
e. Appeal from the judgment (Rule 122, ROC, as
based on newly discovered evidence, the rule also
amended)
allows that the defect of lack of affidavit of merit
may be cured by the testimony under oath of the
defendant at the hearing of the motion. (Paredes v.
Borja, G.R. No. L-15559, 29 Nov. 1961)

543 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
Notice of the motion for new trial or reconsideration
shall be given to the prosecutor. (Sec. 4, Rule 121,
ROC, as amended)
GROUNDS FOR NEW TRIAL
New trial
Rehearing of a case already decided but before the
judgment of conviction therein rendered has
become final, whereby errors of law or
irregularities are expunged from the record or new
evidence is introduced, or both steps are taken.
NOTE: A hearing shall be conducted when the
motion for new trial calls for a resolution of a
question of fact. The court may hear evidence on the
motion by affidavits or otherwise. (Sec. 5, Rule 121,
ROC, as amended)
Grounds
1. Errors of law have been committed during the
trial;
2. Irregularities prejudicial to the substantial
rights of the accused have been committed
during the trial; or
3. 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. (Sec. 2, Rule 121, ROC, as amended)
GROUNDS FOR RECONSIDERATION
Reconsideration
May be filed in order to correct errors of law or fact
in the judgment. It does not require any further
proceeding.
Grounds
1. Errors of law in the judgment which requires no
further proceedings; or
2. Errors of fact in the judgment which requires no
further proceedings. (Sec. 3, Rule 121, ROC, as
amended)
544
NOTE: The principle underlying this rule is to afford
the trial court the opportunity to correct its own
mistakes and to avoid unnecessary appeals from
being taken.
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE (Berry Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered
and produced at the trial even with the exercise
of reasonable diligence;
3. It is new and material, not merely cumulative,
corroborative or impeaching; and
4. The evidence is of such a weight that it would
probably change the judgment if admitted.
(Tadeja v. People, G.R. No. 145336, 20 Feb. 2013)
NOTE: The most important requisite is that the
evidence could not have been discovered and
produced at the trial even with reasonable
diligence; hence, the term “newly discovered.”
(Ibid.)
It must be of weighty influence and will affect
the result of the trial. (People v. Alfaro, G.R. Nos.
136742-43, 30 Sept. 2003)
Q: May errors or ignorance of counsel be a
ground for new trial or reconsideration?
A: GR: Mistakes or errors of counsel in the conduct
of his case are not grounds for new trial. This rule is
the same whether the mistakes are the result of
ignorance, inexperience, or incompetence.
XPN: If the incompetence, ignorance or
inexperience of counsel is so great and the error
committed as a result thereof is so serious that the
client, who otherwise has a good cause, is
prejudiced and denied his day in court, the litigation
may be reopened to give the client another chance
to present his case. (Abrajano v. CA, G.R. No. 120787,
13 Oct. 2000)
A motion for a new trial may be granted on a ground
not specifically provided in the rules, provided that
it is sought in the interest of justice. The relief of a
new trial may be granted to client who has suffered
 Criminal Procedure
by reason of his/her counsel’s gross mistake and
negligence. (People v. Almendras, G.R. No. 145915, 24
Apr. 2003)
Recantation vs. Desistance
RECANTATION AFFIDAVIT OF
DESISTANCE
A witness who The complainant
previously gave a states that he did not
testimony subsequently really intend to
declares that his institute the case and
statements are untrue he is no longer
publicly. (People v. interested in
Ballabare, G.R. No. testifying or
108871, 19 Nov. 1996) prosecuting.
It is not by itself a
ground for dismissal
GR: It is not a ground for
of the action. (People
granting a new trial and
v. Ramirez, G.R. Nos.
are hardly given weight
150079-80, 10 June
2004)
XPN: When there is no
evidence sustaining the
It is merely an
judgment of conviction
additional ground to
other than the
buttress the defense
testimony of the
and not a sole
recanting witness. (Tan
consideration for
Ang Bun v. CA, G.R. No. L-
acquittal. (People v.
47747, 15 Feb. 1990)
Ballabare, G.R. No.
108871, 19 Nov. 1996)
New trial vs. Reopening of the case
NEW TRIAL RE-OPENING OF THE
CASE
Filed after judgment is Made by the court
rendered but before before the judgment is
the finality thereof. rendered in the
exercise of sound
discretion.
Made by the court on Does not require the
motion of the accused consent of the accused;
or at its own instance may be at the instance
but with the consent of of either party who can
the accused. thereafter present
additional evidence.
545
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
In all cases, when the court grants a new trial or
reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
accordingly.
The other effects would depend upon the ground
availed of in granting the new trial or
reconsideration, thus:
1. Errors of law or irregularities committed
during the trial
a. All proceedings and evidence not affected
by such errors and irregularities shall
stand;
b. Those affected shall be set aside and taken
anew; and
c. In the interest of justice, the court may
allow the introduction of additional
evidence.
2. Newly discovered evidence
a. The evidence already taken shall stand; and
b. Newly discovered and other evidence as
the court may, in the interest of justice,
allow to be introduced, shall be taken and
considered together with the evidence
already in the record. (Sec. 6, Rule 121, ROC,
as amended)
NOTE: The effect of granting a new trial is not to
acquit the accused of the crime of which the
judgment finds him guilty but precisely to set aside
said judgment so that the case may be tried de novo
as if no trial had been had before.
APPLICATION OF NEYPES DOCTRINE IN
CRIMINAL CASE
The Neypes rule (Fresh Period Rule)
The period for appeal is not only within 15 days
from notice of the judgment but also within 15 days
from notice of the final order appealed from.
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

NOTE: A fresh period of 15 days to appeal is counted Search warrant

from the denial of the motion for reconsideration or
new trial. (Neypes v. CA, G.R. No. 141524, 14 Sept. 1. An order in writing issued in the name of the
2005) People of the Philippines;
2. Signed by a judge; and
The raison d’être for the "fresh period rule" is to 3. Directed to a peace officer, commanding him to:
standardize the appeal period provided in the Rules
and do away with the confusion as to when the 15- a. Search for personal property described
day appeal period should be counted. therein; and
b. Bring it before the court. (Sec. 1, Rule 126,
The new rule aims to regiment or make the appeal ROC, as amended)
period uniform, to be counted from the receipt or
the order denying the motion for new trial, motion The power to issue such search warrants is
for reconsideration (whether full or partial) or any exclusively vested with the trial judges in the exercise
final order of resolution. (Neypes v. Court of Appeals, of their judicial functions. (Skechers, USA v. Inter
G.R. No. 141524, 14 Sept. 2005) Pacific Industrial Trading Corporation, G.R. No.
164321, 30 Nov. 2006)

M. SEARCH AND SEIZURE NOTE: The warrant must name the person upon
(RULE 126) whom it is to be served except in those cases where
it contains a descriptio personae such as will enable
the officer to identify the person. The description
must be sufficient to indicate clearly the proper
NATURE OF SEARCH WARRANT
person upon whom it is to be served. (People v.
Veloso, G.R. No. L-23051, 20 Oct. 1925)
It is in the nature of a criminal process and may be
General warrant
invoked only in furtherance of public prosecutions.
Search warrants have no relation to civil process or
A general warrant is defined as a search or arrest
trials and are not available to individuals in the
warrant that is not particular as to the person to be
course of civil proceedings, nor for the maintenance
arrested or the property to be seized. It allows the
of a mere private right. It is interlocutory in
seizure of one thing under a warrant describing
character because it leaves something more to be
another and gives the officer executing the warrant
done, which is the determination of the guilt of the
the discretion over which items to take.
accused.

Such discretion is abhorrent, as it makes the person,

It is not a proceeding against a person but is solely
against whom the warrant is issued, vulnerable to
for the discovery and to get possession of personal
abuses. The Constitution guarantees our right
property. It is a special and peculiar remedy, drastic
against unreasonable searches and seizures, and
in nature, and made necessary because of public
safeguards have been put in place to ensure that
necessity. It resembles in some respects with what
people and their properties are searched only for
is commonly known as John Doe proceedings.
the most compelling and lawful reasons.
(Riano, 2019, citing Worldwide Web Corporation v.
(Worldwide Web Corporation v. People, G.R. No.
People, G.R. No. 161106, 13 Jan. 2014)
161106, 13 Jan. 2014)

An application for a search warrant is not a criminal

NOTE: A search warrant need not describe the
action. Hence, any aggrieved party may question an
items to be seized in precise and minute detail. The
order quashing the same without need for the
warrant is valid when it enables the police officers
conformity of the public prosecutor. (Riano, 2019)
to readily identify the properties to be seized and
leaves them with no discretion regarding the
articles to be seized. (Ibid)

546
 Criminal Procedure

Scatter-shot search warrant Time of Service

To be served only in
It is a warrant issued for more than one offense. daytime unless the
May be served on any
(Retired SP04 Laud v. People, G.R. No. 199032, 19 Nov. affidavit alleges that the
day and at any time of
2014) It is invalid because it violates what the law property is on the
day or night.
requires in a warrant of arrest. person or in the place to
be searched.
NOTE: There must be strict compliance with the Necessity of Searching Examination
constitutional and statutory requirements. The judge must
Otherwise, it is void. No presumptions of regularity Searching examination personally conduct an
are to be invoked in aid of the process when an of witnesses is not examination of the
officer undertakes to justify it. (People v. Veloso, G.R. necessary. complainant and the
No. 23051, 20 Oct. 1925) It will always be construed witnesses.
strictly without going the full length of requiring Manner of Examination
technical accuracy. Examination must be
Judge is merely called
probing. Not enough to
Duration of the validity of a search warrant upon to examine and
merely adopt the
evaluate the report of
questions and answers
A search warrant is valid for 10 days from the date the prosecutor and the
asked by a previous
of its issue. After such time, it is void. (Sec. 10, Rule evidence.
investigator.
126, ROC, as amended) Persons/Objects to the Seized
Concerned with the
A search warrant can be used only once, thereafter Concerned with the
seizure of personal
it becomes functus officio, except when the search seizure of a person so
property subject of the
conducted on one day was interrupted, in which he may be made to
offense, stolen or
case the same may be continued under the same answer for the
embezzled property,
warrant the following day if not beyond the 10-day commission of an
fruits of the offense, or
period. offense. It involves
those intended to be
taking of a person into
used to commit an
DISTINCTIONS BETWEEN WARRANT OF custody.
offense.
ARREST AND SEARCH WARRANT Existence of a Pending Criminal Case
Does not require the
WARRANT OF SEARCH WARRANT Presupposes the
existence of a criminal
ARREST existence of a pending
case. It may be issued
Content criminal case that gave
prior to the filing of the
rise to the warrant.
Order directed to the Order in writing in the case.
peace officer to execute name of the People of
the warrant by taking the Philippines signed Distinguish search from seizure
the person stated by the judge and
therein into custody so directed to the peace Search is an examination of a man’s house or other
that he may be bound to officer to search buildings or premises or of his person for the
answer for the personal property discovery of contraband or illicit or stolen property
commission of the described therein and or some evidence of guilt to be used in the
offense. to bring it to court. prosecution of a criminal action for some offense
with which he is charged. (People v. Norris, 262 Cal.
Period of Validity App. 2d Supp. 898, 01 Apr. 1968)

Does not become stale. Valid for 10 days only. Seizure, on the other hand, is the physical taking of
a thing into custody. (Riano, 2019)

547 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
APPLICATION FOR SEARCH WARRANT,
WHERE FILED
Court where an application for a search warrant
is filed
GR: It should be filed with a court within whose
territorial jurisdiction the crime was committed.
(Sec. 2(a), Rule 126, ROC, as amended)
XPNs:
1. For compelling reasons, 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;
NOTE: Filing in such courts requires
compelling reasons stated in the application.
The rule is of a mandatory nature. (Pilipinas
Shell Petroleum Corporation v. Romars
International Gases Corporation, G.R. No.
189669, 16 Feb. 2015)
2. However, if the criminal action has been filed,
the application shall only be made in the court
where the criminal action is pending (Sec. 2,
Rule 126, ROC, as amended); and
3. In case of search warrant involving heinous
crimes, illegal gambling, illegal possession of
firearms and ammunitions as well as violations
of the Comprehensive Dangerous Drugs Act of
2002, the Intellectual Property Code, the Anti-
Money Laundering Act of 2001, the Tariff and
Customs Code, the Executive judges and
whenever they are on official leave of absence
or are not physically present in the station, the
Vice-Judges of RTCs of Manila and Quezon City
shall have the authority to act on the application
filed by the NBI, PNP and the Anti-Crime Task
Force (ACTAF), Presidential Anti-Organized
Crime Task Force (PAOC-TF), and the Reaction
Against Crime Task Force (REACT-TF).
(Administrative Matter No. 99-10-09-SC; Sps.
Marimla v. People, G.R. No. 158467, 16 Oct. 2009)
NOTE: The application shall be personally endorsed
by the heads of such agencies and shall particularly
describe therein the places to be searched and/or
548
the property or things to be seized as prescribed in
the Rules of Court. The Executive Judges and the
Vice-Executive Judges concerned shall issue the
warrants if justified, which may be served outside
the territorial jurisdiction of said courts. (Sps.
Marimla v. People, G.R. No. 158467, 16 Oct. 2009)
Q: A search warrant was issued by the RTC-La
Trinidad against Baguio Gas, whose business
presence is in Baguio, City and not in La
Trinidad. Can RTC-La Trinidad issue said
warrant considering that the offenses imputed
against Baguio Gas were committed outside its
territorial jurisdiction?
A: YES. The court held that power to issue search
warrant is inherent in all courts, such that the power
of courts to issue it where the place to be searched
is within the jurisdiction is not intended to exclude
other courts from exercising the same power.
Section 2 of Rule 126 of the Rules of Court provides
that generally, the search warrant application must
be filed with the court which has territorial
jurisdiction over the place where the offence was
alleged to be committed. However, for compelling
reasons, which must be expressly stated in the
application, it can be filed in a court other than the
one having jurisdiction. (Petron Gasul LPG Dealers
Association, et. al, v. Elena Lao, et. al, G.R. No. 205010,
18 July 2016)
Ex parte application for a search warrant
An application for a search warrant is heard ex
parte. It is neither a trial nor a part of the trial.
Action on these applications must be expedited for
time is of the essence. Great reliance has to be
accorded by the judge to the testimonies under oath
of the complainant and the witnesses. (Santos v.
Pryce Gases, 538 SCRA 474, 487 citing Chemise
Lacoste, S.A. v. Fernandez, 214 Phil. 332)
Requisites before a search warrant may be
issued (P-O-D-E-P2-S)
1. It must be issued upon Probable cause;
2. It must be in connection with One specific
offense;
 Criminal Procedure
3. Probable cause must be Determined by the
issuing judge personally;
4. The judge must have personally Examined, in
the form of searching questions and answers,
the applicant and his witnesses;
5. The search warrant must Particularly describe
or identify the property to be seized as far as the
circumstances will ordinarily allow;
6. The warrant issued must Particularly describe
the place to be searched and the persons or
things to be seized; and
7. The Sworn statements together with the
affidavits submitted by witnesses must be
attached to the record. (Prudente v. Dayrit, G.R.
No. 82870, December 14, 1989)
NOTE: The warrant must not have been issued
more than 10 days prior to the search made
pursuant thereto. (Sec. 10, Rule 126, ROC, as
amended)
PROBABLE CAUSE FOR THE ISSUANCE OF
SEARCH WARRANT
Probable cause, as a condition for the issuance of a
search warrant, is such reasons supported by facts
and circumstances as will warrant a cautious man to
believe that his action and the means taken in
prosecuting it are legally just and proper. (HPS
Software and Communications Corporation v. PLDT,
G.R. No. 170217, 10 Dec. 2012)
It requires facts and circumstances that would lead
a reasonably prudent man to believe that an offense
has been committed and that the object sought in
connection with that offense are in the place to be
searched. (Ibid)
Basis of probable cause
The basis must be the personal knowledge of the
complainant or the witnesses he may produce and
not mere hearsay. The test of sufficiency of a
deposition or affidavit is whether it has been drawn
in a manner that perjury could be charged thereon
and the affiant be held liable for damage caused.
Mere affidavits of the complainant and his witnesses
are not sufficient. The judge has to take the
depositions of the complainant and the witnesses in
549
writing and attach them to the record. (Mata v.
Bayona, G.R. No. L-50720, 26 Mar. 1984)
Q: The Municipal Police Station of M'lang, North
Cotabato received a radio message about a
silver-gray Isuzu pickup—with plate number
619 and carrying three (3) people—that was
transporting marijuana from Pikit. At around
9:30 a.m., the tipped vehicle reached the
checkpoint and was stopped by the team of
police officers on standby. The team leader
asked the driver about inspecting the vehicle.
The driver alighted and, at an officer's prodding,
opened the pickup's hood. Two (2) sacks of
marijuana were discovered beside the engine.
An Information was filed against Sison, Yanson,
and Bautista before the RTC of Cotabato City,
charging them with violation of Section 4 of the
Dangerous Drugs Act of 1972. Is the search and
seizure made valid?
A: NO. Article III, Section 2 of the 1987 Constitution
requires a warrant to be issued by a judge before a
search can be validly effected. While there are
exceptions to this rule, warrantless searches can
only be carried out when founded on probable
cause, or “a reasonable ground of
suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the
offense with which he is charged.” There must be a
confluence of several suspicious circumstances. A
solitary tip hardly suffices as probable cause; items
seized during warrantless searches based on
solitary tips are inadmissible as evidence. (People v
Sison, G.R. No. 238453, 31 July 2019)
Q: Are facts discovered during surveillance
operations conducted by the authorities on the
basis of information and evidence provided by
the complainants constitute personal
knowledge which could form the basis for the
issuance of a search warrant?
A: YES. The facts discovered during surveillance
conducted by the NBI agents- on the basis of
information and evidence provided by petitioners -
constitute personal knowledge, which could form
the basis for the issuance of a search warrant. The
surveillance and investigation conducted by an
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agent of the NBI obtained from confidential has been committed and that it was committed by
information supplied to him enabled him to gain the offender. (World Wide Web Corporation v.
personal knowledge of the illegal activities People, G.R. No. 161106, 13 Jan. 2014)
complained of. The validity of the search warrant is
sustained. (Petron LPG Dealers Association, et al. v. Q: Does the absence of probable cause on a
Nena Ang, et al., G.R. No. 199371, 03 Feb. 2016) particular article invalidate the entire search
warrant?
Factors to consider for the determination of
probable cause A: NO. Such particular article may be severed from
the rest of the search warrant, provided that the
1. Time of the application in relation to the alleged remaining parts meet the requirements of probable
offense committed. The nearer the time at cause and particularity.
which the observation of the offense is alleged
to have been made, the more reasonable the NOTE: The determination of probable cause does
conclusion of establishment of probable cause. not call for the application of rules and standards of
(Asian Surety Insurance v. Herrera, G.R. No. L- proof that a judgment of conviction requires after
25232, 20 Dec. 1973); and trial on the merits. Probable cause is concerned with
probability, not absolute or even moral certainty.
2. There must be competent proof of particular The prosecution need not present at this stage proof
acts or specific omissions but only the best beyond reasonable doubt. The standards of
evidence under the circumstances is required. judgment are those of a reasonably prudent man,
(People v. Judge Estrada, G.R. No. 124461, 26 not the exacting calibrations of a judge after a full-
Sept. 1998) blown trial. (Century Chinese Medicine Co. v. People,
G.R. No. 188526, 11 Nov. 2013)
Probable cause to arrest vs. probable cause to
search PERSONAL EXAMINATION BY JUDGE OF THE
APPLICANT AND WITNESSES
PROBABLE CAUSE TO PROBABLE CAUSE TO
ARREST SEARCH How the examination shall be conducted by the
In determining judge
probable cause to
arrest, the judge must Probable cause to search 1. Must be personally conducted by the judge;
have sufficient facts in requires facts to show 2. Must be in the form of searching questions and
his hands that would that particular things answers;
tend to show that a connected with a crime 3. The complainant and the witnesses shall be
crime has been are found in a specific examined on those facts personally known to
committed and that a location. them;
particular person 4. The statements must be in writing and under
committed it. oath; and
5. The sworn statements of the complainant and
No exact test for the determination of probable the witnesses, together with the affidavits
cause submitted, shall be attached to the record. (Sec.
5, Rule 126, ROC, as amended)
There is no exact test for the determination of
probable cause in the issuance of search warrants. “Personal determination” does not mean that
It is a matter wholly dependent on the finding of judges are obliged to conduct the personal
trial judges in the process of exercising their judicial examination themselves
function. They determine probable cause based on
evidence showing that, more likely than not, a crime “Personal determination” does not mean that judges
are obliged to conduct the personal examination of

550
 Criminal Procedure
the complainant and his witnesses themselves. To
require thus would be to unduly laden them with
preliminary examinations and investigations of
criminal complaints instead of concentrating on
hearing and deciding cases filed before them.
Rather, what is emphasized merely is the exclusive
and personal responsibility of the issuing judge to
satisfy himself as to the existence of probable cause.
(Borlongan v. Peña, G.R. No. 143591, 05 May 2010)
To this end, the judge may: (a) personally evaluate
the report and the supporting documents submitted
by the prosecutor regarding the existence of
probable cause and, on the basis thereof, issue a
warrant of arrest; or (b) if on the basis thereof he
finds no probable cause, disregard the prosecutor’s
report and require the submission of supporting
affidavits of witnesses to aid him in determining his
existence. What he is never allowed to do is to follow
blindly the prosecutor’s bare certification as to the
existence of probable cause. (Ibid)
PARTICULARITY OF PLACE TO BE SEARCHED
AND THINGS TO BE SEIZED
Tests to determine particularity of the place to
be searched
1. When the description therein is as specific as
the ordinary circumstance will allow (People v.
Rubio, G.R. No. L-35500, 27 Oct. 1932);
2. When the description expresses a conclusion of
fact, not of law which the warrant officer may
be guided in making the search and seizure; and
3. When the things described therein are limited
to those which bear direct relation to the
offense for which the warrant is being issued.
Importance of describing with particularity the
place to be searched and the persons or things
to be seized
The purpose of the rule is to leave the officers of the
law with no discretion regarding what articles they
shall seize, to the end that “unreasonable searches
and seizures” may not be made that abuses may not
be committed. (Stonehill v. Diokno, G.R. No. L-19550,
19 June 1967)
551
Standard for determining the legality of a
warrant against a person
The standard is whether the person has been
sufficiently described with particularity sufficient to
identify him with reasonable certainty. Even if the
name is unknown or erroneously written, the
description of the person with certainty to identify
him and set him apart from others is enough to lend
validity to a warrant. (United States v. Ferrone, 438
F.2d 381, 3d Cir. 1971)
Standard for determining the legality of a
warrant against a place to be searched
The warrant must sufficiently describe the premises
to be searched so that the officer executing the
warrant may, with reasonable effort, ascertain and
identify the place intended. (People v. Peck, 1974, 38
CA 3d 993, 1000, 113 CR 806)
Description of a place to be searched is sufficient if
the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and
distinguish it from other places in the community.
Any designation or description known to the
locality that points out the place to the exclusion of
all others, and on inquiry leads the officers
unerringly to it, satisfies the constitutional
requirement. (Retired SP04 Laud v. People, G.R. No.
199032, 19 Nov. 2014)
Rule with respect to the time of making a search
GR: A search warrant must be served at daytime.
XPN: A search warrant may be made at night when
it is positively asserted in the affidavit that the
property is on the person or in the place ordered to
be searched. The affidavit making such assertion
must itself be sufficient as to the fact so asserted, for
if the same is based upon hearsay, the general rule
shall apply. A search warrant conducted at night
without direction to that effect is an unlawful
search. The same rule applies where the warrant
left blank the “time” for making the search.
Where a search is to be made during the nighttime,
the authority for executing the same at that time
should appear in the directive on the face of the
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 Remedial Law
search warrant. (Asian Surety v. Herrera, G.R. No. L-
25232, 20 Dec. 1973)
Q: May the implementation of the search
warrant be done on different days?
A: YES. It could be served at any time within its 10-
day lifetime, and if its object or purpose cannot be
accomplished in one day, the same may not be used
for a different purpose on each day. After the
articles for which the warrant was issued have been
seized, the same warrant cannot be utilized as
authority to make another search. (Gorospe, 2006,
citing Uy Kheytin v. Villareal, 42 Phil. 886)
The time must not be one which is intrusive or
violative of one’s privacy, like at the middle of the
night. Then, too, depending on the locality, what
may be reasonable time in one place would not be
so in some other cases. (Gorospe, 2006)
Service of the search warrant
Generally, officers executing a search must do the
following acts:
1. Announce their presence;
2. Identify themselves to the accused and to the
persons who rightfully have possession of the
premises to be searched;
3. Show to them the search warrant; and
4. Explain the warrant in a language or dialect
known and understood by them. (People v.
Huang Zen Hua, G.R. No. 139301, 29 Sept. 2004)
Rules to be observed in case of search of a house
or room
In order to ensure that the execution of the warrant
will be fair and reasonable, and in order to insure
that the officer conducting the search shall not
exceed his authority or use unnecessary severity in
executing the search warrant, as well as for the
officer’s own protection against unjust accusations,
it is required that the search be conducted in the
presence of the:
1. Lawful occupant of the place to be searched;
2. Any member of his family; or
552
3. In their absence, in the presence of 2 witnesses
of sufficient age and discretion residing in the
same locality. (Sec. 8, Rule 126, ROC, as
amended)
NOTE: A public officer or employee who exceeds his
authority or uses unnecessary severity in executing
the warrant is liable under Art. 129, RPC.
Search in presence of two witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality. (Sec.
8, Rule 126, ROC, as amended)
Right to break door or window to effect search
The officer, if refused admittance to the place of
directed search after giving notice of his purpose
and authority, may break open any outer or inner
door or window of a house or any part of a house or
anything therein to execute the warrant to liberate
himself or any person lawfully aiding him when
unlawfully detained therein. (Sec. 7, Rule 126, ROC,
as amended)
“Knock and announce” principle
An officer should knock, introduce himself and
announce his purpose and only in exceptional cases
may he forego the same, like when his safety is in
danger of being jeopardized or when evidence is
about to be destroyed. (Wilkinson v. Arkansas, 514
U.S. 927)
A lawful entry is the indispensable predicate of a
reasonable search. A search would violate the
constitutional guarantee against unreasonable
search and seizure if the entry was illegal, whether
accomplished by force, or by threat or show of force
or obtained by stealth, or coercion.
 Criminal Procedure
Instances when an unannounced intrusion into
the premises is permissible
1. A party whose premises or is entitled to the
possession thereof refuses, upon demand, to
open it;
2. Such person in the premises already knew of
the identity of the officers and of their authority
and persons;
3. The officers are justified in the honest belief
that there is an imminent peril to life or limb; or
4. Those in the premises, aware of the presence of
someone outside, are then engaged in activity
which justifies the officers to believe that an
escape or the destruction of evidence is being
attempted.
NOTE: The exceptions above are not exclusive or
conclusive. There is no formula for the
determination of reasonableness. Each case is to be
decided on its own facts and circumstances. (People
v. Huang Zhen Hua, G.R. No. 139301, 29 Sept. 2004)
PERSONAL PROPERTY TO BE SEIZED
The property subject of a search warrant is personal
property. A search warrant may be issued for search
and seizure of the following:
1. Personal property subject of the offense;
2. Personal property stolen or embezzled and
other proceeds, or fruits of the offense; or
3. Personal property used or intended to be used
as a means of committing an offense.
NOTE: It is not required 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 or possession of the property
sought to be seized. (Burgos v. Chief of Staff, G.R. No.
L-65332, 26 Dec. 1984)
Human remains as subject of a search warrant
Human remains can be a subject of a search
warrant, since “personal property” refers to the
thing’s mobility, and not its capacity to be owned or
alienated by a particular person. Article 416 of the
Civil Code states that all things which can be
553
transported from place to place are deemed to be
personal property. Considering that human remains
can generally be transported from place to place,
considering further that they qualify under the
phrase “subject of the offense” given that they prove
the crime’s corpus delicti, it follows that they may be
valid subjects of a search warrant. (Laud v People,
G.R. No. 199032, 19 Nov. 2014)
EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT
GR: The procurement of a warrant is required
before a law enforcer can validly conduct a search
and seizure.
XPNs: Instances of a valid warrantless search
1. Search incident to lawful arrest;
2. Consented search (waiver of right);
3. Search of moving vehicle (Caroll doctrine);
4. Checkpoints; body checks in airports;
5. Plain view doctrine;
6. Stop and frisk situations (Terry doctrine);
7. Enforcement of custom laws;
8. Immediate control test;
9. Exigent and emergency circumstances; and
10. Inspection of buildings and other premises for
the enforcement of fire, sanitary, and building
regulations.
1. Search incident to lawful arrest
This includes searching the person who is arrested,
in order to find and seize the things connected with
the crime as fruits or as the means by which it was
committed.
NOTE: In searches incident to lawful arrest, the
arrest must precede the search and the process
cannot be reversed, unless, the police officers have
probable cause to make the arrest at the outset of
the search. (People v. Nuevas, G.R. No. 170233, 22
Feb. 2007)
Parameters of a search incident to a lawful
arrest; immediate reach and control rule
Sec. 13 of Rule 126 of the Revised Rules on Criminal
Procedure specially enumerates the allowable
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 Remedial Law
scope of a search incident to a lawful arrest. The
provision limits the search to the following:
1. Dangerous weapons;
2. Anything which may have been used in the
commission of an offense; and
3. Anything which constitute proof in the
commission of an offense.
Purpose
1. To ensure the officer’s safety;
2. To prevent the frustration of the arrest itself;
and
3. To prevent the concealment or destruction of
the evidence.
2. Consented Search
Consent cannot be presumed simply because the
accused failed to object to the search. To constitute
a waiver, the following requisites must concur:
1. The right exists;
2. The person involved had knowledge, actual or
constructive, of the existence of such rights; and
3. Actual intention to relinquish such rights.
(People v. Burgos, G.R. No. 92739, 02 Aug. 1991)
NOTE: A peaceful submission to a search or seizure
is not consent or an invitation thereto but is merely
a demonstration of regard for the supremacy of the
law. (People vs. Nuevas, G.R. No. 170233, 22 Feb.
2007)
Canine/Dog sniff test
The canine sniff test was applied by the Supreme
Court of the United States differently depending on
the place where the sniff was done as when the
same was conducted in a private resident, airport,
highway or in routine traffic stops.
The government’s use of trained dogs to investigate
the home and its surroundings is a “search” within
the meaning of the Fourth Amendment. (Riano,
2019)
554
Use of thermal imaging device
“Where the government uses a device that is not in
general public use, to explore details of a private
home that would previously have been unknowable
without physical intrusion, the surveillance is a
Fourth Amendment “search,” and is presumptively
unreasonable without a warrant.” (Kyllo v. U.S., 533
U.S. 27, 11 June 2001)
3. Search of moving vehicle; Carroll Doctrine
Search of moving vehicles or Carroll Doctrine can be
validly made without a search warrant. A search
warrant may readily be obtained when the search is
made in a store, dwelling house or other immobile
structure. But it is impracticable to obtain a warrant
when the search is conducted on a mobile ship, on
an aircraft, or in other motor vehicles since they can
quickly be moved out of the locality or jurisdiction
where the warrant must be sought. (People v.
Mariacos, G.R. No. 188611, 16 June 2010)
Peace officers in such cases, however, are limited to
routine checks where the examination of the vehicle
is limited to visual inspection. When a vehicle is
stopped and subjected to an extensive search, such
would be constitutionally permissible only if the
officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or
other vehicle contains as item, article or object
which by law is subject to seizure and destruction.
(People v. Libnao, G.R. No. 136860, 20 Jan. 2003)
Q: A police officer received an information from
an asset regarding the alleged purchase of shabu
by suspected drug dealers Evardo and Algozo,
who were already in the police watch list and
were the subject of prior police operations. The
police officers set up their checkpoint. In the
course thereof, the team flagged down a tricycle,
with Evardo and Algozo seated at the tricycle’s
sidecar. Thereafter, the officer allegedly saw
Algozo place something in the rolled-up rain
cover of the sidecar. He then went to retrieve it
and recovered seven plastic sachets containing
a white crystalline substance. Subsequently,
Evardo and Algozo were asked to disembark.
The police asked for Algozo’s wallet, which
 Criminal Procedure
Algozo gave, and frisked him after. Upon
frisking, they found 11 more plastic sachets
containing a white crystalline substance inside
his wallet. While Evardo was alighting as
instructed, a police officer saw another sachet
tucked at the edge of the garter of Evardo’s
underwear. Thereafter, the accused were
arrested. Were the search, seizure, and arrest
conducted by the police officers at the
checkpoint valid?
A: NO. A warrantless search of a moving vehicle
cannot be premised solely on an initial tip. It must
be found on probable cause where “there must be a
confluence of several suspicious circumstances.” As
for the cause of the search, each such circumstance
must occur before the search is commenced.
Further, they must each be independently
suspicious. Thus, when law officers are predisposed
to perceive guilt – as when specific persons are
targets of checkpoints, patrols, and similar
operations – their subjective perception cannot
anchor probable cause.
Moreover, independently of the tip conveyed to a
police officer, there was no “confluence of several
suspicious circumstances” that were “sufficiently
strong in themselves” to justify a search more
intensive than a mere visual survey. Any item
subsequently obtained cannot be the basis of any
further legal act, including arrest, prosecution, and
conviction for criminal liability. (Virgilio Evardo y
Lopena v. People, G.R. No. 234317, 10 May 2021)
4. Checkpoints; body checks in airports
Searches conducted in checkpoints are valid for as
long as they are warranted by the exigencies of
public order and are conducted in a way least
intrusive to motorists. For as long as the vehicle is
neither searched nor its occupants subjected to a
body search, and the inspection of the vehicle is
limited to a visual search, said routine checks cannot
be regarded as violative of an individual’s right
against unreasonable search. (People v. Vinecario,
G.R. No. 141137, 20 Jan. 2004)
In body checks in airports, passengers attempting to
board an aircraft routinely pass through metal
detectors; their carry-on baggage as well as checked
555
luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of
suspicious objects, physical searches are conducted
to determine what the objects are. (People v.
Johnson, G.R. No. 138881, 18 Dec. 2000)
There is little question that such searches are
reasonable, given their minimal intrusiveness, the
gravity of the safety interests involved, and the
reduced privacy expectations associated with
airline travel. Indeed, travelers are often notified
through airport public address systems, signs, and
notices in their airline tickets that they are subject
to search and, if any prohibited materials or
substances are found, such would be subject to
seizure. These announcements place passengers on
notice that ordinary constitutional protections
against warrantless searches and seizures do not
apply to routine airport procedures. (Ibid)
5. Plain view doctrine
Objects falling in the plain view of an officer has a
right to be in the position to have that view are
subject to seizure and may be presented as
evidence.
For the doctrine to apply, the following requisites
must be met:
1. Prior valid intrusion 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 had the right to be where they are;
3. Evidence must be immediately apparent; and
4. “Plain view” justified mere seizure of evidence
without further search. (People v. Mariacos, G.R.
No. 188611, 21 June 2010)
The ‘Inadvertence’ requirement under the plain
view doctrine
It means that the officer must not have known in
advance of the location of the evidence and intend
to seize it. Discovery should not be anticipated.
(United Laboratories v. Isip, G.R. No. 163858. 28 June
2005)
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The plain view doctrine does not apply where
officers did not just accidentally discover the
evidence but actually searched for it. The plain view
doctrine may not be used to launch unbridled
searches and indiscriminate seizures or to extend a
general exploratory search made solely to find
evidence of defendant’s guilt. (Valeroso v. CA, G.R.
No. 164815, 03 Sept. 2009)
In the course of the lawful intrusion, the officer
came inadvertently across a piece of evidence
incriminating the accused. The object must be open
to eye and hand and its discovery inadvertent.
(Miclat v. People, G.R. No. 176077, 31 Aug. 2011;
People v. Chi Chan Liu, G.R. No. 189272, 21 Jan. 2015)
The “Immediately apparent” requirement under
the plain view doctrine
To be immediately apparent, the rule does not
require an unduly high degree of certainty as to the
incriminating character of the evidence. “It requires
merely that the seizure be presumptively
reasonable assuming that there is probable cause to
associate the property with criminal activity; that a
nexus exists between a viewed object and criminal
activity.” (United Laboratories v. Isip, G.R. No.
163858, 28 June 2005)
6. Stop and frisk operations
This is a limited protective search of the outer
clothing of a person to determine the presence of
weapons. Probable cause is not required, but a
genuine reason (not mere suspicion) must exist, in
the light of the officer’s experience and surrounding
circumstances, to warrant the belief that the
persons has concealed weapons. (Malacat v. Court of
Appeals, G.R. No. 123595, 12 Dec. 1997)
Its object is either to:
1. Determine the identity of a suspicious
individual; or
2. Maintain the status quo momentarily while the
police officer seeks to obtain more information.
556
Terry Doctrine
A valid “stop” by an officer requires that he has a
reasonable and articulable belief that criminal
activity has happened or is about to happen. The
“frisk” made after the “stop” must be done because
of a reasonable belief that the person stopped is in
possession of a weapon that will pose danger to the
officer and others. The “frisk” must be a mere pat
down outside the person’s outer garment and not
unreasonably intrusive. (Riano, 2019)
Existence of a genuine reason under the Terry
Doctrine
What is essential is that a genuine reason must exist,
in light of the police officer’s experience and
surrounding conditions, to warrant the belief that
the person who manifests unusual suspicious
conduct has weapons or contraband concealed
about him. (Esquillo v. People, G.R. No. 182010, 25
Aug. 2010)
Dual purpose of the stop-and-frisk principle
The “stop-and-frisk” practice serves a dual purpose:
1. the general interest of effective crime
prevention and detection; and
2. the more pressing interest of safety and self-
preservation 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 be used against him.
(Esquillo v. People, G.R. No. 182010, 25 Aug.
2010)
NOTE: The officer may search the outer clothing of
the person in an attempt to discover weapons which
might be used to assault him. (Manalili v. CA, G.R. No.
113447, 09 Oct. 1997)
Q: The search warrant authorized the seizure of
“undetermined quantity of shabu.” During the
service of the search warrant, the raiding team
also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to
suppress the marijuana leaves as evidence for
the violation of Sec. 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were
 Criminal Procedure
not covered by the search warrant. The State
justified the seizure of the marijuana leaves
under the “plain view” doctrine. There was no
indication of whether the marijuana leaves were
discovered and seized before or after the
seizure of the shabu. If you are the judge, how
would you rule the motion to suppress? (2008
BAR)
A: It should be granted. The search warrant violates
the constitutional and statutory requirement that
should particularly describe the person or things to
be seized. (Sec. 2, Art. III, 1987 Constitution; Sec. 2,
Rule 126, ROC, as amended)
The “plain view” doctrine cannot be invoked
because the marijuana leaves were wrapped in
newsprint. Besides the marijuana leaves are not the
subject of the search warrant. There was no
evidence as to whether the marijuana leaves were
discovered and seized before or after the seizure of
the shabu. If they were discovered after the seizure
of the shabu, then they could not have been seized
in plain view. The confiscation of the marijuana
leaves must not be upheld, hence rendering the
same inadmissible in evidence against the accused.
7. Enforcement of custom laws
The Collector of Customs is authorized to effect
searches and seizure for the enforcement of
customs duties and tariff laws. (General Travel
Services v. David, G.R. No. L-19259, 23 Sept. 1966)
The 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, 27 Oct. 2006)
8. Other exceptions
a. Exigent and emergency circumstances - a
prevailing general chaos and disorder because
of an ongoing coup, and the raid of the
557
office/building was precipitated by an
intelligence report that said office was being
used as headquarters by the RAM. Also, the
surveillance team, before the raid, was fired
upon by the people inside. 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, 06 July 1994)
b. Buy-bust operation - This is a form of
entrapment legally employed by peace officers
as an effective way of apprehending drug
dealers in committing an offense. There is no
need for a search warrant because the accused
is caught in flagrante delicto.
c. Private searches – In a case where the
evidence was obtained by a private person
acting in a private capacity, while performing
company standard operating procedures and
without state participation and intervention. It
was held that the constitutional rights cannot
be invoked when there is no government
interference. (People v. Marti, G.R. No. 81561, 18
Jan. 1991)
d. Immediate control test – search incidental to
a lawful warrantless arrest may extend beyond
the person where the exigencies of the situation
justify a warrantless search for dangerous
weapons and to prevent the arrestee from
destroying evidence of the crime within reach.
(People v. Musa, G.R. No. 95329, 27 Jan. 1993)
Effect of an illegal search and seizure (Fruit of
the poisonous tree doctrine)
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding. (Sec. 3[2], Art. 3, 1987
Constitution)
The effect of an illegal search and seizure is the
exclusion of the evidence obtained from being used
against the person whose rights were violated by
the search.
The exclusionary rule prevents, upon proper
motion or objection, the admission of evidence
illegally obtained. Thus, the most important effect of
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
an illegal search and seizure is the exclusion of the
evidence obtained from being used against the
person whose rights were violated by the search,
the evidence being the proverbial and
jurisprudential “fruit of the poisonous tree.” The
violation of the individual’s rights also inevitably
results into civil, criminal, and administrative
charges against the officer responsible for the
violation. (Riano, 2019)
REMEDIES FROM UNLAWFUL SEARCH AND
SEIZURE
Parties who may question the validity of search
and seizure
It can be contested only by the party whose rights
have been impaired thereby, and that the objection
to an unlawful search and seizure is purely personal
and cannot be availed by third parties. (Stonehill v.
Diokno, G.R. L-19550, 19 June 1967)
Remedies against an unlawful search
1. Motion to quash the search warrant;
2. Motion to suppress as evidence the objects
illegally taken;
3. Replevin, if the objects are legally possessed;
and
4. Certiorari, where the search warrant is a patent
nullity.
NOTE: The remedies are alternative. If a motion to
quash is denied, a motion to suppress cannot be
availed consequently. The illegality of the search
warrant does not call for the return of the things
seized, the possession of which is prohibited by law.
However, those personal properties seized in
violation of the constitutional immunity whose
possession is not illegal or unlawful per se ought to
be returned to their rightful owner or possessor.
Venue of filing a motion to quash search warrant
1. It may be filed and acted upon only by the court
where the action has been instituted; or
2. If no criminal action has been instituted, it may
be filed in and resolved by the court that issued
the search warrant. However, if such court
failed to resolve the motion and a criminal case
558
is subsequently filed in another court, the
motion shall be resolved by the latter court.
(Sec. 14, Rule 126, ROC, as amended)
Rule with respect to waiver of legality and
admissibility of a search warrant
Objection to the legality of the search warrant, or as
to the admissibility of the evidence obtained is
deemed waived where no objection of the search
warrant was raised during the trial of the case nor
to the admissibility of the evidence obtained
through said warrant. (Demaisip v. CA, G.R. No.
89393, 25 Jan. 1991)
Q: Boy Maton, a neighborhood tough guy, was
arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag.
When Boy Maton was searched immediately
after the arrest, the officer found and recovered
10 sachets of shabu neatly tucked in the inner
linings of the clutch bag. At the time of his arrest,
Boy Maton was watching a basketball game
being played in the town plaza, and he was
cheering for his favorite team. He was
subsequently charged with illegal possession of
dangerous drugs, and he entered a plea of not
guilty when he was arraigned.
During the trial, Boy Maton moved for the
dismissal of the information on the ground that
the facts revealed that he had been illegally
arrested. He further moved for the suppression
of the evidence confiscated from him as being
the consequence of the illegal arrest, hence,
the fruit of the poisonous tree. The trial court, in
denying the motions of Boy Maton, explained
that at the time the motions were filed Boy
Maton had already waived the right to raise the
issue of the legality of the arrest. The trial court
observed that, pursuant to the Rules of
Court, Boy Maton, as the accused, should have
assailed the validity of the arrest before
entering his plea to the information. Hence, the
trial court opined that any adverse consequence
of the alleged illegal arrest had also been equally
waived.
Comment on the ruling of the trial court. (2017
BAR)
 Criminal Procedure
A: The ruling of the court denying the motion for
dismissal of the information on the ground of illegal
arrest is proper. Under the Rules of Criminal
Procedure, the accused’s failure to file a motion to
quash before plea is a waiver of the objection to lack
of personal jurisdiction or of the objection to an
illegal arrest.
Here, Boy Maton entered a plea without filing a
motion to quash on the ground of lack of personal
jurisdiction. Hence, he is deemed to have waived the
ground of illegal arrest which is subsumed under
lack of personal jurisdiction.
However, the ruling denying the motion to suppress
evidence is not correct. The SC has held that a
waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest.
A waiver of an illegal arrest is not a waiver of an
illegal search.
The Constitution provides that evidence seized in
violation of the right against illegal search is
inadmissible in evidence.
Here, the evidence seized was by virtue of an illegal
search since the arrest was illegal. Thus, such
evidence may be suppressed.
Q: Judge Sabarre and Judge Cabalona issued
search warrants against Mayor Espinosa and
Yap who are detainees inside the Baybay Sub-
Provincial Jail, a facility under the control of the
government. The OCA opined that the issuance
of search warrants to search jail facilities of the
government can be considered as gross
ignorance of the law for which judges can be
held liable. In Senate Committee Report No. 46,
the Committee on Public Order and Dangerous
Drugs and the Committee on Justice and Human
Rights stated that there is no need to issue
search warrants because there is no reasonable
expectation of privacy inside Baybay Sub-
Provincial Jail. Applications should have been
denied because the proper action in this case
should have been coordination with the jail
guards or the PNP personnel augmented inside
the jail premises. Is the issuance of a search
559
warrant against an inmate in a government-
controlled detention facility proper?
A: YES. A comprehensive analysis of searches that
may be conducted in a penal institution by
correctional officers and those that may be
implemented by law enforcers other than
correctional officers in charge of the detention
facility reveal their manifest differences in terms of
purpose, frequency, and scope.
In a search conducted by jail guards, the search is
routinary and is intended to preserve internal order
and security in the entire detention facility. A search
conducted as a protective measure in prison
management is noncriminal in nature and does not
require a finding of probable cause.
Meanwhile, a search carried out as an incident to a
criminal investigation and intended to uncover
evidence of a crime may be narrower in scope and
may be limited only to a specific jail cell and articles
specified in the warrant, as in the case. As a rule, a
warrant is still necessary to execute a search in a
controlled detention facility in relation to a criminal
investigation. Strict compliance with governing
laws, rules, and procedures on the issuance of
search warrants and implementation of the search
in a controlled detention facility is required to carry
out a valid search. (Re: Rolando Espinosa, Sr., A.M.
No. RTJ-17-2494 & A.M. No. RTJ-19-2557, 26 Jan.
2021)
N. PROVISIONAL REMEDIES IN CRIMINAL CASES
(RULE 127)
NATURE
They are those to which parties may resort for the
preservation or protection of their rights or
interests and for no other purposes during the
pendency of the action.
They are applied to a pending litigation for the
purpose of securing the judgment or preserving the
status quo; and in some cases, after judgment, for
the purpose of preserving or disposing of the
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
subject matter. (Cala v. Roldan, G.R. No. L-252, 30
Mar. 1946)
Availability of Provisional Remedies
The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in connection
with the civil action deemed instituted with the
criminal action. (Sec. 1, Rule 127, ROC, as amended)
KINDS OF PROVISIONAL REMEDIES
Kinds of Provisional Remedies available in
criminal cases
1. Attachment (Rule 57, ROC, as amended);
2. Preliminary injunction (Sec. 58, ROC, as
amended);
3. Receivership (Rule 59, ROC, as amended);
4. Replevin (Rule 60, ROC, as amended); and
5. Support pendente lite (Rule 61, ROC, as
amended)
1. Attachment
It is a remedy afforded to the offended party to have
the property of the accused attached as security for
satisfaction of any judgment that may be recovered
from the accused.
It is a provisional remedy by which the property of
an adverse party is taken into legal custody, either
at the commencement of an action or at any time
thereafter, as a security for the satisfaction of any
judgment that may be recovered by the plaintiff or
any proper party. (Northern Islands Company, Inc. v.
Spouses Garcia, G.R. No. 203240, 18 Mar. 2015)
Party who may apply for attachment
The plaintiff or any proper party may have the
property of the adverse party attached. (Sec. 1, Rule
57, ROC, as amended) Hence, the aggrieved party in
whose behalf the civil aspect of the criminal action
is prosecuted may apply for the issuance of a writ of
preliminary attachment, he being the person
primarily and directly interested thereby. The
prosecutor in the criminal action may make such an
application in behalf of or for the protection of the
interest of the offended party.
560
Cases wherein attachment is made available
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 officer, or any officer of
a corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his employment
as such, or by any person in a fiduciary capacity,
or for a willful violation of a duty;
3. When the accused has concealed, removed or
disposed of his property or is about to do so;
and
4. When the accused resides outside the
Philippines. (Sec. 2, Rule 127, ROC, as amended)
2. Preliminary Injunction
It is an order of the court to perform or refrain from
performing a particular act or acts.
3. Receivership
It requires the appointment of a receiver aimed at
the preservation of and securing the property or
fund subject of the litigation.
4. Replevin
It is a procedure whereby seized goods may be
provisionally restored to their owner pending the
outcome of an action.
5. Support Pendente Lite
It is an order against the accused to provide
support pendente lite to the child born to the
offended party allegedly because of the crime. The
application therefor may be filed successively by the
offended party, her parents, grandparents or
guardian and the State in the corresponding
criminal case during its pendency. (Sec. 6, Rule 61,
ROC, as amended)
 Criminal Procedure

arraignment without need of comment and/ or

O. REVISED GUIDELINES FOR CONTINUOUS opposition.
TRIAL OF CRIMINAL CASES
(A.M. 15-06-10-SC) The following motions are prohibited:
(JuDe-P-Re-Q-Bi-Su-Su-Po)

a. Motion for Judicial determination of

Applicability
probable cause.

The Revised Guidelines for Continuous Trial of

b. Motion for Preliminary investigation filed
Criminal Cases (Revised Guidelines) shall apply to:
beyond the five (5)-day reglementary
period in inquest proceedings under Sec. 6,
1. All newly filed criminal cases in the First and
Rule 112, or when preliminary
Second Level Courts, the Sandiganbayan and
investigation is required under Sec. 8, Rule
the Court of Tax Appeals, as of effectivity date;
112, or allowed in inquest proceedings and
2. All newly filed criminal cases governed by
the accused failed to participate in the
Special Laws and Rules, as of effectivity date;
preliminary investigation despite due
and
notice.
3. Pending criminal cases with respect to the
remainder of the proceedings.
c. Motion for Reinvestigation of the
prosecutor recommending the filing of
NOTE: Unless otherwise specifically provided
information once the information has been
herein, the Revised Guidelines shall not apply to
filed before the court
criminal cases filed under the Rule on Summary
Procedure.
i. if the motion is filed without prior
leave of court;
Procedure
ii. when preliminary investigation is not
required under Sec. 8, Rule 112; and
Trial shall be held from Monday to Thursday, and
iii. when the regular preliminary
courts shall call the cases at exactly 8:30 A.M. and
investigation is required and has been
2:00 P.M., pursuant to Administrative Circular No.
actually conducted, and the grounds
3-99. Hearing on motions, arraignment and pre-
relied upon in the motion are not
trial, and promulgation of decisions shall be held in
meritorious, such as issues of
the morning of Fridays, pursuant to Sec. 7, Rule 15
credibility, admissibility of evidence,
of the Rules of Court.
innocence of the accused, or lack of due
process when the accused was actually
All courts shall ensure the posting of their court
notified, among others.
calendars outside their courtrooms at least one (1)
day before the scheduled hearings, pursuant to OCA
d. Motion to Quash information when the
Circular No. 250-2015.
ground is not one of those stated in Sec. 3,
Rule 117, ROC, as amended.
Motions

e. Motion for Bill of particulars that does not

1. Motion for Inhibition - Motions for inhibition
conform to Sec. 9, Rule 116 ROC, as
based on grounds provided for under Rule 137
amended.
of the Rules of Court shall be resolved
immediately or within two (2) calendar days
f. Motion to Suspend the arraignment based
from date of their filing.
on grounds not stated under Sec. 11, Rule
2. Prohibited Motions - Prohibited motions shall
116 ROC, as amended.
be denied outright before the scheduled

561 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
g. Petition to Suspend the criminal action on
the ground of prejudicial question, when no
civil case has been filed, pursuant to Sec. 7,
Rule 111 ROC, as amended.
h. Motion for Postponement, except if it is
based on acts of God, force majeure or
physical inability of the witness to appear
and testify.
3. Meritorious Motions - Motions that allege
plausible grounds supported by relevant
documents and/ or competent evidence, except
those that are already covered by the Revised
Guidelines, are meritorious motions, such as:
a. Motion to withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review;
b. Motion to quash warrant of arrest;
c. Motion to suspend arraignment on the
ground of an unsound mental condition
(Sec. 11 [a], Rule 116, ROC, as amended);
d. Motion to suspend proceedings on the
ground of a prejudicial question where a
civil case was filed prior to the criminal
case (Sec. 11 [b], Rule 116, ROC, as
amended);
e. Motion to quash information on the
grounds that the facts charged do not
constitute an offense, lack of jurisdiction,
extinction of criminal action or liability, or
double jeopardy (Sec. 3, pars. [a], [b], [g],
and [i] Rule 117, ROC, as amended);
f. Motion to discharge accused as a state
witness (Sec. 17, Rule 119, ROC, as
amended);
g. Motion to quash search warrant under (Sec.
14, Rule 126, ROC, as amended) or motion to
suppress evidence; and
562
h. Motion to dismiss on the ground that the
criminal case is a Strategic Lawsuit Against
Public Participation (SLAPP) under Rule 6
of the Rules of Procedure for
Environmental Cases.
Rules on Motion for Postponement
1. A motion for postponement may be written or
oral;
2. It shall be at all times accompanied by the
original receipt from the Office of the Clerk of
Court evidencing payment of the postponement
fee under Sec. 21 (b), Rule 141 of the Rules of
Court;
3. The original receipt of payment shall be
submitted to either at the time of the filing of
said motion or not later than the next hearing
date; and
4. The Clerk of Court shall not accept the motion
unless accompanied by the original receipt.
GR: Motion for postponement is prohibited
XPN: If it is based on acts of God, force majeure or
physical inability of the witness to appear and
testify.
NOTE: If the motion is granted based on such
exceptions, the moving party shall be warned that
the presentation of its evidence must still be
finished on the dates previously agreed upon.
Free Legal Assistance
If a party fails to qualify to avail of the services of the
Public Attorney's Office:
1. The Integrated Bar of the Philippines Local
Chapter shall provide free legal assistance to
said party;
2. The IBP Local Chapter shall submit to the
Executive Judges a list of IBP-local lawyers who
may be appointed by the courts to act as counsel
de officio in such cases; and
3. The lists shall be disseminated among all the
trial courts in the station. (Par. 3, A.M. No. 15-06-
10-SC)
 Criminal Procedure
NOTE: The IBP Local Chapter is also duty bound to
submit the names of local lawyers to the Executive
Judge who may be appointed as counsel de officio.
(Notes and Cases on the Revised Guidelines on
Continuous Trial in Criminal Cases by Atty. Moya,
2018)
Private Prosecutor
In cases where only the civil liability is being
prosecuted by a private prosecutor, the head of the
prosecution office must issue in favor of the private
prosecutor a written authority to try the case even
in the absence of the public prosecutor. The written
authority must be submitted to the court prior to
the presentation of evidence by the private
prosecutor in accordance with Sec. 5, Rule 110 of
the Revised Rules on Criminal Procedure.
With this authority on record, the court may set the
trial in the case and in other cases tried by private
prosecutors with delegated authority on separate
days when the presence of the public prosecutor
may be dispensed with. (Par. 4, A.M. No. 15-06-10-
SC)
The prosecution of crimes lies with the executive
department of the government whose principal
power and responsibility is to see that the laws of
the land are faithfully executed. A necessary
component of this power to execute the laws is the
right to prosecute their violators. (Punzalan v. Plata,
G.R. No. 160316, 02 Sept. 2013)
The above mandate is founded on the theory that a
crime is a breach of the security and peace of the
people at large, an outrage against the very
sovereignty of the state. It follows that a
representative of the State shall direct and control
the prosecution of the offense. (Tan v. Gallardo, G.R.
No. L-41213-14, 05 Oct. 1976)
Consolidations
1. Newly-filed Cases - When newly-filed criminal
cases involving offenses based on the same facts
or forming part of a series of offenses of similar
character, are accompanied by a motion for
consolidation filed by the Office of the
Prosecutor, the Executive Judge shall cause the
563
raffle to only one court which shall then resolve
said motion for consolidation, preferably on the
date of the arraignment and in the presence of
the accused and counsel.
2. Pending Cases with Multiple Accused - In
cases involving multiple accused where a
subsequent information is filed involving an
accused who has been subjected to further
investigation by the Office of the Prosecutor
over an incident which has the same subject
matter as a prior information/s against
different accused, said subsequent case when
filed accompanied by a motion for
consolidation from the Office of the Prosecutor
shall no longer be raffled.
The subsequent case shall be assigned directly
by the Executive Judge to the court where the
earlier case is pending. If the earlier case is
already at the trial stage and witnesses have
been presented, the parties may be allowed to
adopt the evidence so far presented, without
prejudice to additional direct examination
questions and cross-examination questions.
(Par. 5, A.M. No. 15-06-10-SC)
Archiving of Cases
The archiving of cases shall be done within the
period prescribed under the Guidelines in the
Archiving of Cases under SC Administrative Circular
No. 7-A-92, as restated in OCA Circular No. 89-2004.
A criminal case shall be archived only if, after the
issuance of the warrant of arrest, the accused
remains at large for six (6) months from the delivery
of the warrant to the proper peace officer.
Such case shall likewise be archived when
proceedings therein are ordered suspended for an
indefinite period because:
1. The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently, or
to undergo trial, and he has to be committed to
a mental hospital;
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
2. A valid prejudicial question in a civil action is
invoked during the pendency of the criminal
case, unless the civil and criminal cases are
consolidated;
3. An interlocutory order or incident in the
criminal case is elevated to, and is pending
resolution/decision for an indefinite period
before a higher court which has issued a
temporary restraining order or writ of
preliminary injunction; and
4. When the accused has jumped bail before
arraignment and cannot be arrested by the
bondsman. (Par. 6, A.M. No. 15-06-10-SC)
Revival of Provisionally Dismissed Cases
Revival of provisionally dismissed cases shall
conform to the requisites and the periods provided
for under Sec. 8, Rule 117 of the Revised Rules on
Criminal Procedure. Provisional dismissal of
offenses punishable by imprisonment not exceeding
six (6) years or a fine of any amount or both shall
become permanent one (1) year after issuance of
the order without the case having been revived.
Provisional dismissal of offenses punishable by
imprisonment of more than six (6) years, shall
become permanent two (2) years after the issuance
of the order without the case having been revived.
(Par. 7, A.M. No. 15-06-10-SC)
Requisites:
1. The prosecution with the express conformity of
the accused, or the accused, moves for a
provisional dismissal (sin perjuicio) of his case;
or both the prosecution and the accused moved
for its provisional dismissal
2. The offended party is notified of the motion for
a provisional dismissal of the case;
3. The court issues an order granting the motion
and dismissing the case provisionally; and
4. The public prosecutor is served with a copy of
the order of provisional dismissal of the case.
(Bonsubre, Jr v. Pedro, G.R. No. 205952, 11 Feb.
2015)
564
Arraignment and Pre-trial
1. Schedule of Arraignment and Pre-trial
Once the court has acquired jurisdiction over
the person of the accused, the arraignment of
the accused and the pre-trial shall be set within
ten (10) calendar days from date of the court's
receipt of the case for a detained accused, and
within thirty (30) calendar days from the date
the court acquires jurisdiction (either by arrest
or voluntary surrender) over a non-detained
accused, unless a shorter period is provided by
special law or Supreme Court circular.
The court must set the arraignment of the
accused in the commitment order, in the case of
detained accused, or in the order of approval of
bail, in any other case.
For this purpose, where the Executive Judge
and Pairing Judges act on bail applications in
cases assigned to other courts, they shall
coordinate with the courts to which the cases
are actually assigned for scheduling purposes.
Once the court has acquired jurisdiction over
the person of the accused:
2. Notice of Arraignment and Pre-Trial
Notice of arraignment and pre-trial shall be sent
to the accused, his/her 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.
3. Waiver of Reading of the Information
In multiple cases, the court, upon personal
examination of the accused, may allow a waiver
of the reading of the information upon the full
understanding and express consent of the
accused and his/her counsel, which consent
shall be expressly stated in both the minutes/
certificate of arraign1nent and the order of
arraignment. The court shall explain the waiver
to the accused in the language or dialect known
to him/her, and ensure the accused's full
 Criminal Procedure
understanding of the consequences of the
waiver before approving the same.
In multiple cases, the court, upon personal
examination of the accused, may allow a waiver
of the reading of the information upon the full
understanding and express consent of the
accused and his/her counsel, which consent
shall be expressly stated in both the minutes/
certificate of arraign1nent and the order of
arraignment. The court shall explain the waiver
to the accused in the language or dialect known
to him/her, and ensure the accused's full
understanding of the consequences of the
waiver before approving the same.
4. Arraignment Proper
a. Plea Bargaining Except in Drug Cases -
Plea bargaining shall immediately proceed
if:
i. The accused desires to enter a plea of
guilty to a lesser offense;
ii. The private offended party in private
crimes, or the arresting officer in
victimless crimes, is present to give
his/her consent with the conformity of
the public prosecutor to the plea
bargaining.
Thereafter, judgment shall be immediately
rendered in the same proceedings.
b. Plea of Guilty to the Crime Charged in
the Information - If the accused pleads
guilty to the crime charged in the
information, judgment shall be
immediately rendered, except in those
cases involving capital punishment.
c. Where No Plea Bargaining or Plea of
Guilty Takes Place - If the accused does
not enter a plea of guilty, whether to a
lesser offense or to the offense charged in
the information, the court shall
immediately proceed with the arraignment
and the pre-trial, in accordance with the
succeeding provisions on pre-trial.
565
The schedule of the trial dates, for both the
prosecution and the accused, shall be
continuous and within the periods
provided in the Regular Rules/ Special
Rules. The trial dates may be shortened
depending on the number of witnesses to
be presented. In this regard, a flowchart
shall be prepared by the court which shall
serve as the final schedule of hearings.
5. Arraignment and Preliminary Conference of
Mediatable Cases subject to the Rule on
Summary Procedure
The arraignment and preliminary conference
shall be simultaneously held, and the court shall
take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
preliminary conference.
a. If the accused pleads guilty to the crime
charged in the information, subheading
Plea of Guilty to the Crime Charged in the
Information shall be followed.
b. If the accused pleads guilty to a lesser
offense, subheading III, Plea Bargaining
except in Drug Cases shall be followed.
c. If the accused does not enter a plea of
guilty, whether to a lesser offense or to the
offense charged in the information, the
court shall immediately proceed with the
arraignment and the preliminary
conference, and thereafter refer the case to
mediation.
6. Conduct of Pre-trial
a. Absence of parties. - The court shall
proceed with the pre-trial despite the
absence of the accused and/ or private
complainant, provided they were duly
notified of the same, and the counsel for the
accused, as well as the public prosecutor,
are present.
b. Stipulations. - Proposals for stipulations
shall be done with the active participation
of the court itself and shall not be left alone
to the counsels.
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c. Marking of evidence. - The documentary
evidence of the prosecution and the
accused shall be marked.
d. Pre-trial Order. - The Pre-trial Order shall
immediately be served upon the parties
and counsel on the sa1ne day after the
termination of the pre-trial.
e. Compliance with Rules. - Courts must
strictly comply with the Guidelines to be
Observed in the Conduct of Pre-Trial under
A.M. No. 03-1-09-SC.
Mediation
1. The following cases shall be referred to
mediation on the civil liability unless a
settlement is reached earlier in the pre-
trial/preliminary conference:
a. Crimes where payment may prevent
criminal prosecution or may extinguish
criminal liability, such as violations of:
i. B.P. Blg. 22;
ii. SSS Law (R.A. No. 1161, as
amended by R.A No. 8282); and
iii. PAG-IBIG Law. (R.A. No. 9679)
b. Crimes against property under Title 10
of the Revised Penal Code (RPC), where
the obligation may be civil in nature,
such as:
i. Theft under Art. 308, RPC,
cognizable by the first level courts;
ii. Estafa under Art. 315(1), RPC, except
estafa under Art. 315 (2) and (3);
iii. Other forms of swindling under Art.
316, RPC;
iv. Swindling of a minor under Art. 317,
RPC;
v. Other deceits under Art. 318, RPC;
and
vi. Malicious mischief under Art. 327,
RPC.
c. Crimes against honor under Title 13, RPC,
where the liability may be civil in nature,
such as:
566
i. Libel by means of writings or similar
means under Art. 355, RPC;
ii. Threatening to publish and offer to
present such publication for a
compensation under Art. 356, RPC;
iii. Prohibited publication of acts ref
erred to in the course of official
proceedings under Art. 357, RPC;
iv. Grave Slander (Grave Oral
Defamation) of serious and insulting
nature under Art. 358, par. 1, RPC;
v. Simple Slander (Oral Defamation) -
not of a serious and insulting nature
under Art. 358, par. 2, RPC;
vi. Grave Slander by Deed - of a serious
nature under Art. 359, par. 1, RPC;
vii. Simple Slander by Deed - not of a
serious nature under Art. 359, par. 2,
RPC;
viii. Incriminating innocent person
under Art. 363, RPC;
ix. Intriguing against honor under Art.
364, RPC;
d. Libel under R.A. 10175 (Cybercrime
Prevention Act of 2012) where the liability
may be civil in nature;
e. Criminal negligence under Title 14, RPC,
where the liability may be civil in nature;
and
f. Intellectual property rights cases where the
liability may be civil in nature.
2. The referral of the case for mediation to the
Philippine Mediation Center (PMC) Unit shall be
made only after the conduct of the arraignment
and the pre-trial/preliminary conference.
The court shall serve the Order of Referral to
the PMC Unit immediately after the
arraignment and the pre-trial/preliminary
conference.
The mediation shall be terminated within a
non-extendible period of thirty (30) calendar
days from the date of referral by the court to the
PMC Unit. After the lapse of the mediation
period or if mediation fails, trial shall proceed.
 Criminal Procedure
Except those cases mentioned above, criminal
cases subject to the Rule on Summary
Procedure shall not be referred to mediation.
Bail
a. Petition for bail
Petition for bail filed after the filing of the
information shall be set for summary hearing
after arraignment and pre-trial. Testimony of a
witness in petition for bail may be in the form
allowed, provided that the demeanor of the
witness is not essential in determining his/her
credibility.
Petition for bail shall be heard and resolved
within a non-extendible period of thirty (30)
calendar days from date of the first hearing,
except in drug cases which shall be heard and
resolved within twenty (20) calendar days,
without need of oral argument and submission
of memoranda, consistent with the summary
nature of the proceedings.
Motion for reconsideration on the resolution of
petition for bail shall be resolved within a non-
extendible period of ten (10) calendar days
from date of submission of the motion.
b. Evidence in petition for bail
The resolution of petition for bail shall be based
solely on the evidence presented during the bail
proceedings by the prosecution. The
prosecution shall present only pieces of
evidence that are essential in establishing that
the evidence of guilt is strong. The accused need
not present evidence to contradict or rebut the
prosecution's evidence.
c. Non-suspension of the presentation of
evidence
The court shall not suspend the presentation of
the evidence in chief while awaiting resolution
of the petition for bail or the motion for
reconsideration.
567
Form of Testimony
a. For First Level Courts
In all criminal cases, including those covered by
the Rule on Summary Procedure, the
testimonies of witnesses shall consist of the
duly subscribed written statements given to
law enforcement or peace officers or the
affidavits or counter-affidavits submitted
before the investigating prosecutor, and if such
are not available, testimonies shall be in the
form of judicial affidavits, subject to additional
direct and cross-examination questions.
The trial prosecutor may dispense with the
sworn written statements submitted to the law
enforcement or peace officers and prepare the
judicial affidavits of the affiants or modify or
revise the said sworn statements before
presenting it as evidence.
b. For Second Level Courts, Sandiganbayan and
Court of Tax Appeals
In criminal cases where the demeanor of the
witness is not essential in determining the
credibility of said witness, such as forensic
chemists, medico-legal officers, investigators,
auditors, accountants, engineers, custodians,
expert witnesses and other similar witnesses,
who will testify on the authenticity, due
execution and the contents of public documents
and reports, and in criminal cases that are
transactional in character, such as falsification,
malversation, estafa, or other crimes where the
culpability or innocence of the accused can be
established through documents, the
testimonies of the witnesses shall be the duly
subscribed written statements given to law
enforcement or peace officers or the affidavits
or counter-affidavits submitted before the
investigating prosecutor, and if such are not
available, testimonies shall be in the form of
judicial affidavits, subject to additional direct
and cross-examination questions.
In all other cases where the culpability or the
innocence of the accused is based on the
testimonies of the alleged eyewitnesses, the
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testimonies of these witnesses shall be in oral
form.
NOTE: Mere relationship of the witness with the
victim does not necessarily tarnish the witness’
testimony. When there is no showing of improper
motive on the part of the witness in testifying
against the accused, her relationship with the victim
does not render her testimony less worthy of
credence. In fact, relationship itself could even
strengthen credibility in a particular case, for it is
highly unnatural for an aggrieved relative to falsely
accuse someone other than the actual culprit.
(People v. Solar y Dumbrique, G.R. No. 225595, 06
Aug. 2019, J. Caguioa)
Stipulations
During pre-trial/preliminary conference, the court
shall require the parties to enter into stipulations on
the subject of both direct and cross-examinations of
witnesses who have no personal knowledge of the
material facts constituting the crimes, such as
forensic chemists, medico-legal officers,
investigators, auditors, accountants, engineers,
custodians, expert witnesses and other similar
witnesses, who will testify on the authenticity, due
execution and the contents of public documents and
reports; corroborative witnesses; and those who
will testify on the civil liability.
This rule is without prejudice to allowing additional
direct and cross-examination questions.
If stipulations cannot be had in full, where the
adverse party does not waive the right to cross-
examination, the subject of the direct testimony of
these witnesses should be stipulated upon, without
prejudice to additional direct and cross-
examination questions.
Trial
a. The court shall encourage the accused and the
prosecution to avail of:
1. For the accused - Secs. 12 and 13, Rule 119
of the Rules of Court on the application for
examination of witness for accused before
trial and how it is made; and
568
2. For the prosecution - Sec. 15, Rule 119 of
the Rules of Court on the conditional
examination of witness for the prosecution.
b. 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.
c. Offer of evidence - The offer of evidence, the
comment/ objection thereto, and the court
ruling thereto shall be made orally. A party is
required to make his/her oral offer of evidence
on the same day after the presentation of
his/her last witness, and the opposing party is
required to immediately interpose his/her oral
comment/objection thereto. Thereafter, the
court shall make a ruling on the offer of
evidence in open court.
In making the offer, the counsel shall cite the
specific page numbers of the court record
where the exhibits being offered are found, if
attached thereto. The court shall ensure that all
exhibits offered are submitted to it on the same
day of the offer.
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.
d. Demurrer to Evidence - After the prosecution
has rested its case, the court shall inquire from
the accused if he/she desires to move for leave
of court to file a demurrer to evidence, or to
proceed with the presentation of his/her
evidence.
If the accused orally moves for leave of court to
file a demurrer to evidence, the court shall
orally resolve the same. If the motion for leave
is denied, the court shall issue an order for the
accused to present and terminate his/her
evidence on the dates previously scheduled and
agreed upon, and to orally offer and rest his/her
case on the day his/her last witness is
presented.
If despite the denial of the motion for leave, the
accused insists on filing the demurrer to
 Criminal Procedure
evidence, the previously scheduled dates for the
accused to present evidence shall be cancelled.
The demurrer to evidence shall be filed within
a non-extendible period of ten (10) calendar
days from the date leave of court is granted, and
the corresponding comment shall be filed
within a non-extendible period of ten (10)
calendar days counted from date of receipt of
the demurrer to evidence. The demurrer shall
be resolved by the court within a non-
extendible period of thirty (30) calendar days
from date of the filing of the comment or lapse
of the ten (10)-day period to file the same.
If the motion for leave of court to file demurrer
to evidence is granted, and the subsequent
demurrer to evidence is denied, the accused
shall likewise present and terminate his/her
evidence (one day apart, morning and
afternoon) and shall orally offer and rest
his/her case on the day his/her last witness is
presented. The court shall rule on the oral offer
of evidence of the accused and the comment or
objection of the prosecution on the same day of
the offer. If the court denies the motion to
present rebuttal evidence because it is no
longer necessary, it shall consider the case
submitted for decision.
e. 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 accused had rested his/her 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
in sur-rebuttal after the presentation of its last
sur-rebuttal witness. Thereafter, the court shall
submit the case for decision.
NOTE: If the court denies the motion to present
rebuttal evidence because it is no longer
necessary, it shall consider the case submitted
for decision.
569
f. One-day examination of witness rule - The
court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day.
Memoranda
The submission of memoranda is discretionary on
the part of the court, which in no case shall exceed
twenty-five (25) pages in length, single-spaced, on
legal size paper, using size 14 font. The period to
submit memoranda shall be non-extendible and
shall not suspend the running of the period of
promulgation of the decision; thus, with or without
memoranda, the promulgation shall push through
as scheduled.
Lack of Stenographic Notes
Judges who conducted the trial and heard the
testimonies of some or all of the witnesses shall not
defer the submission of the case for decision on the
ground of incomplete or missing transcript of
stenographic notes. If the case was heard
completely by another judge, not the judge tasked to
write the decision, the latter shall direct the
stenographers concerned to submit the complete
transcripts within a period of thirty (30) calendar
days from date of his/her assumption to office.
Promulgation
Schedule of promulgation - The court shall
announce in open court and include in the order
submitting the case for decision, the date of the
promulgation of its decision which shall not be more
than ninety (90) calendar days from the date the
case is submitted for decision., except when the case
is covered by Special Rules and other laws which
provide for a shorter period.
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 under Rule 121
filed within the reglementary period of fifteen (15)
days from promulgation shall be resolved within a
non-extendible period of ten (10) calendar days
from the submission of the comment of the
prosecution. With or without comment, the court
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shall resolve the motion within the ten (10)-day
period.
Effect of Non-Compliance
Non-compliance with the Revised Guidelines,
including failure to observe the timelines and
deadlines herein provided, is a ground for
disciplinary action.
P. THE RULE ON CYBERCRIME WARRANTS
(A.M. No. 17-11-03-SC)
center manned by special investigators to
exclusively handle cases involving violations of this
Act. (Sec. 10, R.A. No. 10175)
It must be noted, however, that the phrase “to
exclusively handle cases involving violation of this
Act” does not confer the NBI Cyber Crime Division
(CCD) and PNP Anti-Cybercrime Group (ACG) the
sole authority and competence to investigate cases
involving violations of R.A. No. 10975. Rather, the
exclusivity phrase provides a limitation on the type
of cases that may be handled by the NBI-CCD and
PNP-ACG, thus, bolstering their status as specialized
units.

The intent of the law is to create specialized

Scope and Applicability
cybercrime units that will only handle cybercrime
and cyber-related cases. However, this does not
This rule sets forth the procedure for the application
preclude other investigative units or agencies in
and grant of warrants and related orders involving
handling cyber-related offenses or those offenses
the preservation, disclosure, interception, search,
involving electronic evidence. (DOJ Advisory Opinion
seizure, and/or examination, as well as the custody,
No. 1, Series of 2018)
and destruction of computer data, as provided
under, R.A. 10175, otherwise known as the
Where to apply for an Application for a Warrant
“Cybercrime Prevention Act of 2012.”

It shall be filed by the law enforcement authorities

Venue
before any of the designated cybercrime courts of
the province or the city where the offense or any of
The venue for criminal actions for violation of Secs.
its elements:
4 (Cybercrime offenses) and 5 (Other offenses) of
R.A. 10175, shall be filed before the designated
1. has been committed;
cybercrime court of the province or city:
2. is being committed;
3. is about to be committed; or
1. Where the offense or any of its elements is
4. where any part of the computer system used is
committed OR
situated, or where any of the damage caused to
2. Where any part of the computer system used
a natural or juridical person took place.
is situated, OR
3. Where any of the damage caused to a natural
However, the cybercrime courts in Quezon City, the
or juridical person took place:
City of Manila, Makati City, Pasig City, Cebu City,
Iloilo City, Davao City and Cagayan De Oro City shall
Provided, that the court where the criminal action is
have the special authority to act on applications and
first filed shall acquire jurisdiction to the exclusion
issue warrants which shall be enforceable
of the other courts. (Sec. 2.1, A.M. No. 17-11-03-SC)
nationwide and outside the Philippines.

The National Bureau of Investigation (NBI) and the

An application for a warrant under this Rule for
Philippine National Police (PNP) shall be
violation of crimes defined and penalized by the
responsible for the efficient and effective law
Revised Penal Code, as amended, and other special
enforcement of the provisions of this Act. The NBI
laws, if committed by, through, and with the use of
and the PNP shall organize a cybercrime unit or
Information and Communications Technology (ICT)
shall be filed by the law enforcement authorities

570
 Criminal Procedure
with the regular or other specialized regional trial
courts, as the case may be, within its territorial
jurisdiction. (Sec. 2.2, A.M. No. 17-11-03-SC)
Effective Period of Warrants
Any warrant issued under this Rule shall only be
effective for the length of time as determined by the
court, which shall not exceed a period of ten (10)
days from its issuance. The court issuing the
warrant may, upon motion, extend its effectivity
based only on justifiable reasons for a period not
exceeding ten (10) days from the expiration of the
original period. (Sec. 2.5, A.M. No. 17-11-03-SC)
Contempt (D-I-S-S-E)
Failure to timely file the returns for any of the issued
warrants under this Rule or to duly turn-over to the
court's custody any of the items Disclosed,
Intercepted, Searched, Seized, and/or Examined as
prescribed hereunder, shall subject the responsible
law enforcement authorities to an action for
contempt, which procedures shall be governed by
Rule 71 of the Revised Rules on Civil Procedure,
insofar as they are applicable. (Sec. 2.6, A.M. No. 17-
11-03-SC)
Preservation of Computer Data
The integrity of traffic data and subscriber’s
information shall be kept, retained, and preserved
by a service provider for a minimum period of six
(6) months from the date of the transaction.
On the other hand, content data shall be preserved
for six (6) months from the date of the receipt
order from law enforcement authorities requiring
its preservation. (Sec. 3.1, A.M. No. 17-11-03-SC)
NOTE: Law enforcement authorities requiring its
preservation may order a one-time extension for
another six (6) months: Provided, that once
computer data is preserved, transmitted or stored
by a service provider is used as evidence in a case,
the receipt by the service provider of a copy of the
transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the
computer data until final termination of the case
and/or as ordered by the court, as the case may be.
571
Warrant to Disclose Computer Data (W-I-S-A)
1. An order in Writing;
2. Issued in the name of the People of the
Philippines;
3. Signed by a judge, upon application of law
enforcement authorities (LEA);
4. Authorizing the LEA 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. (Sec. 4.2, A.M. No. 17-11-03-SC)
Contents of WDCD (Po-RN-N-I-Pa-PLa-M-O)
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 the investigation;
3. Names of the Individual or entities whose
computer data or subscriber's information are
sought to be disclosed, including the names 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. (Sec. 4.3, A.M. No. 17-11-03-SC)
Return on the WDCD
Within forty-eight (48) hours from
implementation OR after the expiration of the
effectivity of the WDCD, whichever comes first, the
authorized law enforcement officer shall submit a
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return on the WDCD to the court that issued it and
simultaneously turn over the custody of the
disclosed computer data or subscriber's
information thereto.
NOTE: It is the duty of the issuing judge to ascertain
if the return has been made, and if none, to summon
the law enforcement officer to whom the WDCD was
issued and require him to explain why no return
was made, without prejudice to any action for
contempt. (Sec. 4.5, A.M. No. 17-11-03-SC)
Law Enforcement Authorities are allowed to
retain a copy of the disclosed computer data or
subscriber's information subject of the WDCD
which may be utilized for case build-up or
preliminary investigation purposes, without the
need of any court intervention; Provided, that the
details thereof are kept strictly confidential and that
the retained copy shall be labelled as such.
The retained copy shall be turned over upon the
filing of a criminal action involving the disclosed
computer data or subscriber's information to the
court where such action has been instituted, or if no
criminal action has been filed, upon order of the
issuing court under the procedure set forth in
paragraph 3 of Section 8.2 of this Rule.
Upon its turn-over, the retained copy shall always
be kept, destroyed, and/or returned together with
the computer data or subscriber's information that
was originally turned over to the issuing court. (Sec.
4.5, A.M. No. 17-11-03-SC)
Warrant to Intercept Computer Data (WICD)
(W-I-S-A-L-Re-M-S)
It is an order:
1. In Writing;
2. Issued in the name of the People of the
Philippines;
3. Signed by a judge, upon application of law
enforcement authorities;
4. Authorizing the latter to carry out any or all of
the following activities:
a. Listening to;
b. Recording;
c. Monitoring; or
572
d. Surveillance of the content of
communications, including procuring of
the content of computer data, either
directly, through access and use of a
computer system or indirectly, through the
use of electronic eavesdropping or tapping
devices, at the same time that the
communication is occurring. (Sec. 5.2, A.M.
17-11-03-SC)
NOTE: The verified application for a WICD, as well
as the supporting affidavits, shall state the essential
facts similar to those in Section 4.3 of this Rule,
except that the subject matter is the communication
or computer data sought to be intercepted. (Sec. 5.3,
A.M. No. 17-11-03-SC)
Return of the WICD
Within forty-eight (48) hours from
implementation OR after the expiration of the
effectivity of the WICD, whichever comes first, the
authorized law enforcement officers shall submit a
return on the WICD to the court that issued it and
simultaneously turn-over the custody of the
intercepted communication or computer data.
It is the duty of the issuing judge to ascertain if the
return has been made, and if none, to summon the
law enforcement officer to whom the WICD was
issued and require him to explain why no return
was made, without prejudice to any action for
contempt. (Sec. 5.5, A.M. No. 17-11-03-SC)
Notice after Filing of Return
Within thirty (30) days from the filing of the
return, or, if no return is filed, from the lapse of the
forty-eight (48) hour period to file the return,
the authorized law enforcement officer has the duty
to notify the person whose communications or
computer data have been intercepted of the
activities conducted pursuant to the WICD. If a
return has been filed, a copy of the same shall be
attached to the notice. On the other hand, if no
return has been filed, the notice shall state the
details of the interception activities, including the
contents of the intercepted communication or
computer data.
 Criminal Procedure
Within ten (10) days from notice, the person
whose communications or computer data have been
intercepted may challenge, by motion, the legality of
the interception before the issuing court. (Sec. 5.6,
A.M. No. 17-11-03-SC)
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. (Sec. 6.1,
A.M. No. 17-11-03-SC)
Contents for Application of WSSECD
The verified application for a WSSECD, as well as the
supporting affidavits, shall state the essential facts
similar to those in Section 4.3 of this Rule, except
that the subject matter is the computer data sought
to be searched, seized, and examined, and all other
items related thereto.
In addition, the application shall contain:
1. An explanation of the search and seizure
strategy to be implemented;
2. Including a projection of whether or not an off-
site or on-site search will be conducted, taking
into account the nature of the computer data
involved, the computer or computer system's
security features, and/or other relevant
circumstances, if such information is available.
(Sec. 6.2, A.M. No. 17-11-03-SC)
Issuance of WSSECD
If the judge is satisfied that there is probable cause
to believe that the facts upon which the application
for WSSECD exists, he shall issue the WSSECD. (Sec.
6.3, A.M. No. 17-11-03-SC)
Off-site and On-site Principle
Law enforcement authorities shall, if the
circumstances so allow, endeavor to first make a
forensic image of the computer data on-site as well
573
as limit their search to the place specified in the
warrant.
Otherwise, an off-site search may be conducted,
provided that a forensic image is, nevertheless,
made, and that the reasons for the said search are
stated in the initial return. (Sec. 6.4, A.M. No. 17-11-
03-SC)
Return of Items seized Off-site
A person whose computer devices or computer
system have been searched and seized off-site may,
upon motion, seek the return of the said items from
the court issuing the WSSECD:
Provided, that a forensic image of the computer data
subject of the WSSECD has already been made. The
court may grant the motion upon its determination
that no lawful ground exists to otherwise withhold
the return of such items to him. (Sec. 6.4, A.M. No. 17-
11-03-SC)
Allowable Activities during the Implementation
of the WSSECD
The interception of communications and computer
data may be conducted during the implementation
of the WSSECD, provided that:
1. The interception activities shall only be limited
to communications and computer data that are
reasonably related to the subject matter of the
WSSECD; and
2. The said activities are fully disclosed, and the
foregoing relation duly explained in the initial
return.
LEAs may order any person, who has knowledge
about the functioning of the computer system and
the measures to protect and preserve the computer
data therein, to provide, as is reasonable, the
necessary information to enable the undertaking of
the search, seizure and examination. (Sec. 6.5, A.M.
No. 17-11-03-SC)
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Initial Return of the WSSECD
Within ten (10) days from the issuance of the
WSSECD, the authorized law enforcement officers
shall submit an initial return that contains the
following information:
1. A list of all the items that were seized, with a
detailed identification of:
a. the devices of the computer system seized,
including the name, make, brand, serial
numbers, or any other mode of
identification, if available; and
b. the hash value of the computer data and/or
the seized computer device or computer
system containing such data.
2. A statement on whether a forensic image of the
computer data was made on-site, and if not, the
reasons for making the forensic image off-site;
3. A statement on whether the search was
conducted on-site, and if not, the reasons for
conducting the search and seizure off-site;
4. A 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 said items'
reasonable relation to the computer data
subject of the 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
574
6. A reasonable estimation of how long the
examination of the items seized will be
concluded and the justification therefor.
NOTE: It is the duty of the issuing judge to ascertain
if the initial return has been made, and if none, to
summon the law enforcement authority to whom
the WSSECD was issued and require him to explain
why no initial return was made, without prejudice
to any action for contempt. (Sec. 6.6, A.M. No. 17-11-
03-SC)
Period to examine and Order for Return
After the initial return is submitted to the court
pursuant to the WSSECD, the court shall issue an
order fixing the period to conclude the examination
of all the items seized, which period may be
extended not exceeding thirty (30) days, upon
motion, for justifiable reasons. (Sec. 6.7, A.M. No. 17-
11-03-SC)
Final Return of the WSSECD
Within forty-eight (48) hours after the expiration
of the period to examine as provided under Section
6.7 of this Rule, the authorized law enforcement
officers shall submit a final return on the WSSECD
to the court that issued it, and 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, following the procedure under
Section 7.1 of this Rule.
It is the duty of the issuing judge to ascertain if the
final return has been made, and if none, to summon
the law enforcement officer to whom the WSSECD
was issued and require him to explain why no final
return was made, without prejudice to any action
for contempt. (Sec. 6.8, A.M. No. 17-11-03-SC)
Warrant to Examine Computer Data (WECD)
It is issued upon acquiring possession of a computer
device or computer system via a lawful warrantless
arrest, or by any other lawful method, BUT law
enforcement authorities shall first apply for a
warrant (WECD) before searching the said
computer device or computer system for the
 Criminal Procedure
purpose of obtaining for forensic examination the
computer data contained therein.
The verified application for a WECD, as well as the
supporting affidavits, shall state the essential facts
similar to those in Section 4.3 of this Rule, except
that the subject matter is the computer data sought
to be examined. In addition, the application shall
disclose the circumstances surrounding the lawful
acquisition of the computer device or computer
system containing the said computer data. (Sec. 6.9,
A.M. No. 17-11-03-SC)
Deposit and Custody of the Computer Data
Upon the filing of the return for a WDCD or WICD, or
the final return for a WSSECD or WECD, all
computer data subject thereof shall be
simultaneously deposited in a sealed package with
the same court that issued the warrant. It shall be
accompanied by a complete and verified inventory
of all the other items seized in relation thereto, and
by the affidavit of the duly authorized law
enforcement officer containing:
1. The date and time of the disclosure,
interception, search, seizure, and/or
examination of the computer data, as the
case may be. If the examiner or analyst has
recorded his/her examination, the
recording shall also be deposited with the
court in a sealed package and stated in the
affidavit;
2. The particulars of the subject computer
data, including its hash value;
3. The manner by which the computer data
was obtained;
4. Detailed identification of all items seized
in relation to the subject computer data,
including the computer device containing
such data and/or other parts of the
computer system seized, indicating the
name, make, brand, serial numbers, or any
other mode of identification, if available;
5. The names and positions of the law
enforcement authorities who had access to
575
the computer data from the time of its
seizure until the termination of the
examination but prior to depositing it with
the court, and the names of officers who
will be delivering the seized items to the
court;
6. The name of the law enforcement officer
who may be allowed access to the
deposited data. When the said officer dies,
resigns of severs tie with the office, his/her
successor may, upon motion, be granted
access to the deposit; and
7. A certification that no duplicates or copies
of the whole or any part thereof have been
made, or if made, all such duplicates or
copies are included in the sealed package
deposited, except for the copy retained by
law enforcement authorities pursuant to
paragraph 3 of Section 4.5 of this Rule.
The return on the warrant shall be filed and kept by
the custodian of the logbook on search warrants
who shall enter therein the date of the return, the
description of the sealed package deposited, the
name of the affiant, and other actions of the judge.
(Sec. 7.1, A.M. No. 17-11-03-SC)
Access to and Use of Computer Data
The package containing the computer data so
deposited under Section 7.1 of this Rule shall not be
opened, or the recordings replayed, or its contents
revealed, or, in any manner, used as evidence,
except upon motion duly granted by the court.
The motion for the purpose shall state:
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.
The motion shall further include proof of service of
copies sent to the person or persons whose
computer data is the subject of the motion. The said
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person or persons shall be given ten (10) days from
receipt of notice thereof to file a comment, after
which the court shall rule on the motion, unless it
finds it necessary to conduct a clarificatory hearing
for the purpose. (Sec. 7.3, A.M. No. 17-11-03-SC)
Destruction and Return of Computer Data in the
Custody of the Court
Upon motion and due hearing, the court may, for
justifiable reasons, order the complete or partial
destruction, or the return to its lawful owner or
possessor, of the computer data or any of the related
items turned over to its custody.
The court may, motu proprio, and upon written
notice to all the parties concerned, order the
complete or partial destruction, or return to its
lawful owner or possessor, of the computer data or
any of the related items turned over to its custody if
no preliminary investigation or case involving these
items has been instituted after thirty-one (31)
days from their deposit, or if preliminary
investigation has been so instituted within this
period, upon finality of the prosecutor's resolution
finding lack of probable cause. In its sound
discretion, the court may conduct a clarificatory
hearing to further determine if there is no
reasonable opposition to the items' destruction or
return.
If the court finds the destruction or return of
disclosed computer data or subscriber's
information subject of a WDCD to be justified under
this Section, it shall first issue an order directing the
law enforcement authorities to turnover the
retained copy thereof as described in paragraph 3 of
Section 4.5 of this Rule. Upon its turn-over, the
retained copy shall be simultaneously destroyed or
returned to its lawful owner or possessor together
with the computer data or subscriber's information
576
that was originally turned over to the issuing court.
(Sec. 8.2, A.M. No. 17-11-03-SC)
Manner of Destruction of Computer Data
The destruction of computer data and related items,
if so, allowed under Section 8.2 of this Rule, shall be
made in the presence of:
1. 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/s from whom such
items were seized, or his/her representative or
counsel;
3. The law enforcement officer allowed access to
such items as indicated in the inventory, or
his/her duly authorized representative, may
also be allowed to witness the said activity;
Provided, that they appear during the
scheduled date of destruction upon written
notice to them by the Branch Clerk-of-Court at
least three (3) days prior to the
aforementioned date.
Within twenty-four (24) hours from the
destruction of the computer data, the Branch Clerk-
of-Court or the witness duly designated by the court
shall issue a sworn certification as to the fact of
destruction and file the said certificate with the
same court.
The storage device, or other items turned over to
the court's custody, shall be destroyed by shredding,
drilling of four holes through the device, prying the
platters apart, or other means in accordance with
international standards that will sufficiently make it
inoperable. (Sec. 8.3, A.M. No. 17-11-03-SC)
 Criminal Procedure

Procedure for Inquest Proceedings

Commences by receipt of
complaint by an inquest
officer from the law
enforcer

Inquest officer shall

determine if the arrest
is valid

If the arrest is valid, detainee shall be asked if

If not valid, he shall proceed with the inquest the detainee wants a new preliminary
but shall recommend the release to be investigation, and if he does, he shall be made
approved by the city or provincial prosecutor to execute a waiver of the provision of Art. 125
of RPC

Otherwise, Inquest proper shall be conducted

When the recommendation for release is
approved, but the evidence warrants the
conduct of a preliminary investigation,
the said order shall be served on the
officer having custody of the detainee If the inquest officer finds probable cause, he
and shall direct the said officer to serve must prepare a complaint or information with
upon the detainee the subpoena or notice recommendation to be filed in court, otherwise
of preliminary investigation recommend the release of person (Part II,
Manual for Prosecutors).

Summary of the remedies available to the aggrieved party

Resolution of the Office of the Prosecutor

MOTION FOR RECONSIDERATION APPEAL

Before the Office of the Prosecutor Before the Secretary of Justice within 15
within 15 days from receipt of days from receipt of assailed resolution
assailed resolution or 15 days from receipt of denial of MR

APPEAL
Before the Office of the President
PETITION FOR CERTIORARI
Before the CA under Rule 65 and only where
the decision of the Secretary is tainted with APPEAL
grave abuse of discretion Before the CA under Rule 43

APPEAL BY CERTIORARI
Before the SC under Rule 45

NOTE: Appeals before the Office of the President may only be taken under the following conditions:

577 UNIVERSITY OF SANTO TOMAS

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1. The offense involved is punishable by reclusion perpetua to death;

2. New and material issues are raised which were not presented before the DOJ;
3. The prescription of the offense is not due to lapse within 6 months from notice of the questioned
resolution; and
4. The appeal or petition for review is filed within 30 days from notice.

Determination of the Existence of Probable Cause

Within 10 days from the filing of the

complaint or information, the judge
shall personally evaluate the
resolution of the prosecutor and its
supporting evidence.

In case of doubt on the existence of probable

He may immediately dismiss the case If he finds probable cause, he shall
cause, the judge may order the prosecutor to
if the evidence on record clearly fails issue a warrant of a'rrest, or a
present additional evidence within 5 days from
to establish probable cause. commitment order. (Sec. 6, Rule 112)
notice and the issue must be resolved by the
court within 30 days from the filing of the
complaint or information.

578
 Evidence

Evidence in Civil Cases and Evidence in Criminal

VII. EVIDENCE Cases

EVIDENCE IN CIVIL EVIDENCE IN

CASE CRIMINAL CASE
The party having the The guilt of the
A. GENERAL CONCEPTS burden of proof must accused must be
prove his claim by a proved beyond
preponderance of reasonable doubt. (Sec.
Concept of Evidence evidence. (Sec. 1, Rule 2, Rule 133, ROC, as
133, ROC, as amended) amended)
Evidence is the means, sanctioned by the Rules of GR: An offer of
Court, of ascertaining in a judicial proceeding the compromise is not an
truth respecting a matter of fact. (Sec. 1, Rule 128, implied admission of
ROC, as amended) any liability, and is not
admissible in evidence
Principle of Uniformity GR: An offer of
against the offeror.
compromise by the
The Rules of Evidence shall be the same in all courts accused may be
Neither is evidence of
and in all trials and hearings, except as otherwise received in evidence as
conduct nor statements
provided by law or the Rules of Court. an implied admission of
made in compromise
guilt.
negotiations
Applicability of the Rules on Evidence admissible.
XPNs:
The Rules of Evidence, being part of the Rules of 1. Those involving
XPN: Evidence
Court, apply only to judicial proceedings. (Sec. 1, quasi-offenses
otherwise discoverable
Rule 128, ROC, as amended) (criminal
or offered for another
negligence); and
purpose, such as
The Rules of Court shall not apply to: (N-I-C-O-L-E) proving bias or
2. Criminal cases
prejudice of a witness,
1. Naturalization proceedings; allowed by law to
negativing a contention
2. Insolvency proceedings; be compromised.
of undue delay, or
3. Cadastral proceedings; (Sec. 28, Rule 130,
proving an effort to
4. Other cases not provided in the Rules of Court; ROC, as amended)
obstruct a criminal
5. Land registration proceedings; and investigation or
6. Election cases (Sec. 4, Rule 1, ROC, as amended) prosecution. (Sec. 28,
Rule 130, ROC, as
However, the rules may apply to the amended)
abovementioned proceedings and cases by analogy The concept of
or in a suppletory character and whenever presumption of
practicable and convenient. (Sec. 4, Rule 1, ROC, as innocence does not
amended) The accused enjoys the
apply and generally
constitutional
there is no
presumption of
presumption for or
innocence.
against a party except
in cases provided for by
law.
The concept of Confession is a
confession does not declaration of an

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apply. accused 2. BURDEN OF PROOF VS. BURDEN OF

acknowledging his EVIDENCE
guilt.
BURDEN OF
BURDEN OF PROOF
1. PROOF VS. EVIDENCE EVIDENCE
It is the duty of a party
PROOF EVIDENCE to present evidence
It is the duty of a party
It is the mode or sufficient to establish
It is merely the to present evidence on
manner of proving or rebut a fact in issue
probative effect of the facts necessary to
competent facts in to establish a prima
evidence and is the establish his or her
judicial proceedings. facie case. (Sec. 1, Rule
conviction or claim or defense by the
(Bustos v. Lucero, 81 131, ROC, as amended)
persuasion of the mind amount of evidence
Phil. 640)
resulting from required by law. (Sec. 1,
Burden of evidence is
consideration of the Rule 131, ROC, as
Without evidence, that logical necessity
evidence. amended)
there is no proof. which rests upon a
Effect or result of party at any particular
Medium of proof. Burden of proof or
evidence. time during the trial to
“onus probandi”
create a prima facie
traditionally refers to
Factum Probandum vs. Factum Probans case in his favor or to
the obligation of a party
overthrow one when
to a litigation to
FACTUM created against him.
FACTUM PROBANS persuade the court that
PROBANDUM (People of the
he is entitled to relief.
The facts or material Philippines v. CA, G.R.
The fact or proposition (Riano, 2019)
evidencing the fact or No. 183652, 25 Feb.
to be established. 2015)
proposition to be
established. Duty of a party to
The fact to be proved, The probative or present evidence to
the fact which is in evidentiary fact establish his claim or Duty of the party to go
issue and to which the tending to prove the defense by the amount forward with the
evidence is directed. fact in issue. of evidence required by evidence to overthrow
Intermediate or law, which is the prima facie
Ultimate Facts. preponderance of evidence against him.
evidentiary facts.
Hypothetical. Existent. evidence in civil cases. (Bautista v. Sarmiento,
(Supreme Transliner, G.R. No. L-45137,
Illustration: If P claims to have been injured by the Inc. v. CA, G.R. No. September, 23, 1985)
negligence of D, while D denies having been 125356, November 21, (Bautista v. Sarmiento,
negligent, the negligence is the fact to be 2001) (Supreme G.R. No. L-45137, 23
established. It is the factum probandum. The Transliner, Inc. v. CA, Sept. 1985)
evidence offered by P constitutes the material to G.R. no. 125356, 21 Nov.
prove the liability of D. The totality of the evidence 2001)
to prove the liability is the factum probans. (Riano, Never shifts. (Sec. 1, May shift from one
2019) Rule 131, ROC, as party to the other in
amended) the course of the
It remains throughout proceedings,
the entire case exactly depending on the
where the pleadings exigencies of the case.
originally placed it or (Sec. 1, Rule 131, ROC,
with the party upon as amended)

580
 Evidence

whom it is imposed. plaintiff makes out a prima facie case in his favor,
(Republic v. Mupas, G.R. the duty or the burden of evidence shifts to
No. 181892, September defendant to controvert plaintiff’s prima facie case,
8, 2015) (Republic v. otherwise, a verdict must be returned in favor of
Mupas, G.R. No. 181892, plaintiff. Hence, the plaintiff must establish the
08 Sept. 2015) failure to pay on the part of the defendant, the latter,
Generally determined on the other hand, has to prove their defense that
by the developments the obligation was extinguished.
of the trial, or by the
provisions of In this case, BPI, as plaintiff, had to prove that
Generally determined
substantive law or spouses De Leon failed to pay their obligations
by the pleadings filed
procedural rules under the promissory note. The spouses, on the
by the party.
which may relieve the other hand, had to prove their defense that the
party from presenting obligation was extinguished by the loss of the
evidence of the facts mortgaged vehicle, which was insured. The mere
alleged. loss of the mortgaged vehicle does not automatically
relieve the spouses De Leon of their obligation. As
Test for determining where the Burden of Proof provided in the Promissory Note with Chattel
lies Mortgage, the mortgagor must notify and submit
proof of loss to the mortgagee. (De Leon v. BPI, G.R.
Ask which party to an action or suit will fail if he No. 184565, 20 Nov. 2013)
offers no evidence competent to show the facts
averred as the basis for the relief he seeks to obtain.
B. ADMISSIBILITY
3. EQUIPOISE RULE

A situation where the evidence of the parties is

1. REQUISITES (RULE 128)
evenly balanced, or there is doubt on which side the
evidence preponderates (or weighs more heavily).
1. The evidence is relevant to the issue; and
(Rivera v. Court of Appeals, G.R. No. 115625, January
23, 1998) (Rivera v. Coart of Appeals, G.R. No. 115625, NOTE: It is relevant if it has such a relation to
23 Jan. 1998)
the fact in issue as to induce belief in its
existence or non-existence. (Sec. 4, Rule 128,
It is based on the principle that no one shall be ROC, as amended)
deprived of his life, liberty or property without due
process of law. (Sec. 1, Art III, 1987 Constitution)
2. The evidence is competent.

In criminal cases, where the evidence is evenly

balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.
In civil cases, when the evidence of the parties is in
equipoise, the party who has the burden of proof
loses.
NOTE: The evidence is competent when it is not
excluded by the Constitution, the law or the
Rules of Court. (Sec. 3, Rule 128, ROC, as
amended). Competency is determined by the
prevailing exclusionary rules of evidence.
2. EXCLUSIONARY RULES

Q: In a collection case, who has the burden of proof?
A: The party who alleges a fact has the burden of
proving it. In the course of trial in a civil case, once
Rules on evidence consist of established precepts
for inclusion or exclusion of factum probans toward
the desired factum probandum. Whatever tends in
reason to establish a fact in issue is relevant, and

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that which does not answer this requirement is not. of 2009) (Sec. 8, R.A. No. 9745 or Anti Torture Act
(Peralta & Peralta, Jr., 2020) of 2009)

Evidence is admissible when it is relevant to the C. Under the Rules of Court, Rule 130 is the
issue and is not excluded by the Constitution, the applicable rule in determining the admissibility
law, or these rules. (Sec. 3, Rule 128, ROC, as of evidence.
amended)
D. Court issuances, such as:
A. Constitutional Exclusionary Rules
1. Rules on Electronic Evidence, e.g., compliance
1. Unreasonable searches and seizures; (Sec. 2, with authentication requirements for electronic
Art. III, 1987 Constitution) evidence;
2. Privacy of communication and correspondence; 2. Rule on Examination of Child Witness, e.g.,
(Sec. 3, Art. III, 1987 Constitution) sexual abuse shield rule; and
3. Right to counsel, prohibition on torture, force, 3. Judicial Affidavit Rule.
violence, threat, intimidation, or other means
which vitiate the free will; prohibition on secret Admissibility vs. Weight
detention places, solitary, incommunicado; and
(Sec. 12, Art. III, 1987 Constitution) WEIGHT
4. Right against self-incrimination. (Sec. 17, Art. III, ADMISSIBILITY (PROBATIVE
1987 Constitution) VALUE)
Refers to the question
B. Statutory Exclusionary Rules of whether or not the
Refers to the question
evidence is to be
of whether or not the
1. Lack of documentary stamp tax in documents, considered at all.
evidence proves an
instruments, or papers required by law to be (Atienza v. Board of
issue.
stamped makes such documents inadmissible Medicine, G.R. No.
as evidence in court until the requisite stamp/s 177407, 09 Feb. 2011)
shall have been affixed thereto and cancelled. Pertains to evidence
(Sec. 201, NIRC) already submitted
and its tendency to
Depends on relevance
2. Any communication obtained by a person, not convince or persuade.
and competence.
being authorized by all the parties to any (Tating v. Marcella,
private communication, by tapping any G.R. No. 155208, 27
wire/cable or using any other Mar. 2007)
device/arrangement to secretly
overhear/intercept/record such information Doctrine of the Fruit of the Poisonous Tree
by using any device, shall not be admissible in
evidence in any judicial/quasi- Illegally obtained evidence shall be inadmissible in
judicial/legislative/administrative hearing or evidence for any purpose in any proceeding because
investigation. (Secs. 1 and 4, R.A. No. 4200, Anti- they are the “fruit of the poisonous tree.”
Wire Tapping Act)
E.g., Evidence obtained without a valid search
3. Any confession, admission or statement warrant subject to exceptions; issuance of general
obtained as a result of torture shall be warrants that encourage law enforcers to go on
inadmissible in evidence in any proceedings, fishing expeditions (Sec. 3 (2), Art. III, 1987
except if the same is used as evidence against a Constitution) (2010 BAR)
person or persons accused of committing
torture. (Section 8, RA 9745 or Anti Torture Act

582
 Evidence
Illegally seized evidence is obtained as a direct
result of the illegal act, whereas the "fruit of the
poisonous tree" is the indirect result of the same
illegal act. The "fruit of the poisonous tree" is at least
once removed from the illegally seized evidence, but
it is equally inadmissible. The rule is based on the
principle that evidence illegally obtained by the
State should not be used to gain other evidence
because the originally illegally obtained evidence
taints all evidence subsequently obtained. (People v.
Alicando, G.R. No. 117487, 12 Dec. 1995)
Relevancy of Evidence
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or non-
existence. (Sec. 4, Rule 128, ROC, as amended)
The court will admit only evidence which is relevant
to the issue. (Sec. 3, Rule 128, ROC, as amended)
Collateral matters
Collateral matters refer to matters other than the
fact in issue.
GR: Evidence on collateral matters is not allowed.
Illustration: Motive of a person or his reputation is
a matter that may be considered collateral to the
subject of controversy.
XPN: It is allowed when it tends in any reasonable
degree to establish the probability or improbability
of the fact in issue. (Sec. 4, Rule 128, ROC, as
amended)
Multiple Admissibility (2005 BAR)
Where the evidence is relevant and competent for
two or more purposes, such evidence should be
admitted for any or all purposes for which it is
offered provided it satisfies all the requirements of
law for its admissibility (Regalado, 2008).
Illustration: Depending upon circumstances, the
declaration of a dying person may be admissible for
two or more purposes. It may be offered as a dying
declaration under Sec. 38, Rule 130, ROC, as
amended, and as part of res gestae under Sec. 44,
583
Rule 130, ROC, as amended. The statement by a bus
driver immediately after the collision that he dozed
off in the wheel while driving may be admissible as
an admission under Sec. 27, Rule 130, ROC, as
amended and/or as part of res gestae pursuant to
Sec. 44, Rule 130, ROC, as amended.
Conditional Admissibility (2011 BAR)
Where the evidence at the time of its offer appears
to be immaterial or irrelevant unless it is connected
with the other facts to be subsequently proved, such
evidence may be received on condition that the
other facts will be proved thereafter, otherwise the
evidence already given will be stricken out.
(Regalado, 2008)
Curative Admissibility
It allows a party to introduce otherwise
inadmissible evidence to answer the opposing
party’s previous introduction of inadmissible
evidence. (Riano, 2019)
Illustration: In an action for damages arising from
car accident, the plaintiff, despite objection by the
defendant, was allowed to introduce evidence to
show that, on several occasions, the defendant, in
the past, had injured pedestrians because of
negligence. Following the concept of curative
admissibility, the court may be asked to give the
defendant the chance to contradict or explain his
alleged past acts and to show evidence of his past
acts of diligence to counteract the prejudice which
the improperly admitted evidence may have caused.
(Riano, 2019)
Thus, a party who first introduces either irrelevant
or incompetent evidence into the trial cannot
complain of the subsequent admission of similar
evidence from the adverse party relating to the
subject matter. (Commonwealth v. Alexander, 5
S.W.rd 104, 26 Aug. 1999) Conversely, the doctrine
should not be invoked where evidence was properly
admitted.
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Multiple, Conditional, and Curative
Admissibility
In gist, if relevant and competent, evidence may be
(1) Conditional, which connotes tentative or
temporary evidence; (2) Multiple, where it is
legally permissible for different aspects; or (3)
Curative, when it is intended to receive
inadmissible evidence from a party to neutralize a
previously accepted inadmissible evidence from the
other party. (Peralta & Peralta, 2020)
Direct Evidence
That which proves a fact without the need to make
an inference from another fact. (Riano, 2019)
Circumstantial Evidence or Indirect Evidence
That which proves a fact in issue indirectly through
an inference which the fact finder draws from the
evidence established. (People v. Matito, G.R. No.
144405, 24 Feb. 2004)
It may happen that no prosecution witness has
actually seen the commission of the crime. However,
jurisprudence tells us that direct evidence of the
crime is not the only matrix from which a trial court
may draw its conclusion and finding of guilt. The
rules on evidence allow a trial court to rely on
circumstantial evidence Circumstantial Evidence to
support its conclusion of guilt.
Illustration: The prosecution presented
corroborating evidence which constitute an
unbroken chain leading to the inevitable conclusion
that accused is guilty of killing the victim. For
instance, the presence of gunpowder nitrates on
accused after a paraffin test; the firearm used in the
killing which could either be a .38 caliber or 9 mm
pistol details with the testimony of a witness that he
saw accused carrying a .38 caliber short firearm
which was later found to have been recently fired;
and the absence of gunpowder nitrates on the hands
of the victim after a paraffin test which belies
accused’s claim that he was shot by the victim or
that the latter exchanged fire with a police office.
(People v. Alawig, G.R. No. 187731, 13 Sept. 2013)
584
Difference between Direct Evidence and
Circumstantial Evidence
The difference involves a relationship of the fact
inferred to the facts that constitute the offense.
Their difference does not relate to the probative
value of the evidence. Direct evidence proves a
challenged fact without drawing any inference.
Circumstantial evidence, on the other hand,
indirectly proves a fact in issue, such that the fact-
finder must draw an inference or reason from
circumstantial evidence. (Planteras v. People, G.R.
No. 238889, 03 Oct. 2018)
Q: X and Y were charged with Robbery with
Homicide. The prosecution established that on
the day of the incident, J and L were having a
conversation in their house when two (2)
persons asked them where the house of the
victim was located. J and L, in response, pointed
to the house of their neighbor. Later, J and L
heard someone shouting and moaning inside
the house of the victim, who was their neighbor.
J went out of the house and saw somebody
waving a flashlight inside the victim's house, as
if looking for something. This prompted him to
call L and V. A few minutes later, a man wearing
a black t-shirt and carrying a backpack, followed
by another man wearing a green shirt and
carrying a pair of shoes, came out of the house of
the victim. J and L immediately ran after them
unto the basketball court and saw that the two
were already on board a black Yamaha
motorcycle. Luckily, V arrived with the barangay
tanod and immediately accosted the two men. J,
L, and V recognized the two as the same persons
who asked them earlier about the location of
Laurora's house. The man wearing black shirt
was identified as the accused-appellant, while
the one wearing green shirt was identified as Y.
Recovered from their possession were personal
properties belonging to the victim. When
Accused-appellant was further frisked, a screw
driver was found in his possession. V then asked
the victim's laundrywoman to check on the
victim. When she returned, she told them that
the victim was killed. The laundrywoman also
identified that the green shirt worn by Y belongs
to the victim. Is the RTC correct in convicting the
accused based on circumstantial evidence?
 Evidence
A: YES. The lack or absence of direct evidence does
not necessarily mean that the guilt of the accused
cannot be proved by evidence other than direct
evidence. Direct evidence is not the sole means of
establishing guilt beyond reasonable doubt,
because Circumstantial evidence, if sufficient, can
supplant the absence of direct evidence. The crime
charged may also be proved by circumstantial
evidence, sometimes referred to as indirect or
presumptive evidence. In this case, the Court agreed
with the RTC and CA that the circumstantial
evidence proven by the prosecution sufficiently
established that appellant committed the offense
charged. (People v. Papillero, G.R. No. 229087, 17 June
2020)
Cumulative Evidence and Corroborative
Evidence
Cumulative Evidence refers to evidence of the same
kind and character as that already given and that
tends to prove the same proposition. (Wyne v.
Newman, 75 Va., 811, 817)
Corroborative Evidence is one that is
supplementary to that already given tending to
strengthen or confirm it. It is additional evidence of
a different character to the same point. (Edwards v.
Edwards, Tenn. App., 501 S.W. 2d 283. 289)
An extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3,
Rule 133, ROC, as amended)
NOTE: Corroborative testimony is not always
required.
The law does not require that the testimony of a
single witness must be corroborated except where
expressly mandated. The weight and sufficiency of
evidence is determined not by the number of the
witnesses presented but by the credibility, nature,
and quality of the testimony. (People v. Gapasan, G.R.
No. 110812, 29 Mar. 1995)
585
Positive Evidence
Exists when the witness affirms in the stand that a
certain state of facts does exist or that a certain
event happened.
Negative Evidence
Exists when the witness states that an event did not
occur or that the state of facts alleged to exist does
not actually exist. (Riano, 2019)
Greater probative value is given to evidence that is
positive in nature than that which is accorded to
evidence that is negative in character. (Republic v.
Bautista, G.R. No. 169801, 11 Sept. 2007)
NOTE: When a witness declares of his personal
knowledge that a fact did not take place, that is
actually positive testimony since it is an affirmation
of the truth of a negative fact. (Regalado, 2008)
Denial as Negative Evidence
Denial is considered by the Court to be a very weak
form of defense and can never overcome an
affirmative or positive testimony particularly when
the latter comes from the mouth of a credible
witness. (People v. Mendoza, G.R. No. 146693-94, 31
July 2003)
The defense of denial is viewed with disfavor for
being inherently weak. To be worthy of
consideration at all, denials should be substantiated
by clear and convincing evidence. (Riano, 2019)
Competent Evidence
One that is not excluded by law in a particular case.
Competence, in relation to evidence in general,
refers to eligibility of an evidence to be received as
such. The test of competence is the Constitution, the
laws or the rules.
Credibility
The worthiness of belief, that quality which renders
a witness worthy of belief. (Black’s Law Dictionary,
5th Ed., p.330)
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NOTE: Admissible evidence is not necessarily
credible evidence. Admissibility does not guarantee
credibility. (Riano, 2019)
Findings and conclusions of the trial court on the
credibility of witnesses are entitled to great respect
because they have the advantage of observing the
demeanor of witnesses as they testify. (Riano, 2019)
When affirmed by the appellate court, it is accorded
full weight and credit as well as great respect, if not
conclusive effect, except when facts and
circumstances of weight and influence were
overlooked or the significance of which was
misappreciated or misinterpreted by the lower
courts. (Riano, 2019)
3. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
(Rule 129)
Facts that need not be proved (JN-JA-C-D-I-F-R-
A)
1. Those of which the courts may take Judicial
Notice (Rule 129, ROC, as amended);
2. Those that are Judicially Admitted (Rule 129,
ROC, as amended);
3. Those that are Conclusively presumed (Rule
131, ROC, as amended);
4. Those that are Disputably presumed but
uncontradicted (Rule 131, ROC, as amended);
5. Immaterial allegations;
6. Facts admitted or not denied provided they
have been sufficiently alleged (Sec. 11, Rule 8,
ROC, as amended);
7. Res Ipsa Loquitur; and
8. Admissions by adverse party (Rule 26, ROC, as
amended)
Judicial Notice
It is the cognizance of certain facts which judges
may properly take and act upon without proof
because they are supposed to be known to them. It
is based on considerations of expediency and
convenience. It displaces evidence, being equivalent
to proof. (Regalado, 2008)
586
Function of Judicial Notice
It dispenses the presentation of evidence and fulfills
the purpose for which the evidence is designed to
fulfill. Its function is to abbreviate litigation by
admission of matters that needs no evidence
because judicial notice is a substitute for formal
proof of a matter by evidence. (Riano, 2019)
Kinds of judicial notice
1. Mandatory – insofar as those matters
enumerated under Sec. 1, Rule 129;
2. Discretionary – on matters which are of
public knowledge, or are capable of
unquestionable demonstration, or ought to
be known to judges because of their
functions (Sec. 2, Rule 129, ROC, as amended)
Mandatory Judicial Notice
When the matter is subject to a mandatory judicial
notice, no motion or hearing is necessary for the
court may take judicial notice of a fact.
When Judicial Notice is Mandatory
(E-PO-L-A-P-O-L-M-G)
1. Existence and territorial extent of states;
2. Political history, forms of government and
symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world and
their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of legislative, executive and judicial
departments of the National Government of the
Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions (Sec. 1, Rule 129, ROC, as
amended)
NOTE: The list here is EXCLUSIVE.
 Evidence

When Judicial Notice of a fact may be taken
During the pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties on the
propriety of taking judicial notice of any matter.
No hearing is required in the enumeration under
Sec. 2, Rule 129.
Requisites for the application of the Principle of
Discretionary Judicial Notice

Before judgment or on appeal, the court, motu 1. The matter must be one of common and general
proprio or upon motion, may take judicial notice of knowledge;
any matter and shall hear the parties thereon if such 2. It must be well and authoritatively settled and
matter is decisive of a material issue in the case. not doubtful or uncertain; and
(Sec. 3, Rule 129, ROC, as amended) 3. It must be one which is not subject to a
reasonable dispute in that it is either:
When Judicial Notice is Discretionary (P-D-F)
(2005 BAR) a. Generally known within the territorial
jurisdiction of the trial court; or
1. Matters which are of Public knowledge; b. Capable of accurate and ready
determination by resorting to sources
NOTE: Public knowledge are those matters whose accuracy cannot reasonably be
coming to the knowledge of men generally in questionable. (Expert Travel & Tours, Inc. v.
the course of ordinary experiences of life, or CA, G.R. No. 152392, 26 May 2005)
they may be matters which are generally
accepted by mankind as true and are capable of Test of Notoriety
ready and unquestioned demonstration.
Whether the fact involved is so notoriously known
2. Capable of unquestionable Demonstration; or as to make it proper to assume its existence without
proof.
NOTE: Matters which are capable of
unquestionable demonstration are facts, Mandatory Judicial Notice vs. Discretionary
theories and conclusions which have come to be Judicial Notice
established and accepted by the specialists in
the areas of natural science, natural MANDATORY DISCRETIONARY
phenomena, chronology, technology, JUDICIAL NOTICE JUDICIAL NOTICE
geography, statistical facts and other fields of Court is compelled to Court is not compelled
professional and scientific knowledge. take judicial notice. to take judicial notice.
(Francisco, 1996) May be at court’s own
Takes place at court’s
initiative or on request
initiative.
3. Ought to be known to judges because of their of a party.
judicial Functions. (Sec. 2, Rule 129, ROC, as No motion or hearing. Needs hearing.
amended)
Instances when the Court takes Judicial Notice
NOTE: Judicial Notice is not Judicial Knowledge. The
mere personal knowledge of the judge is not the 1. The existence and location within the territory
judicial knowledge of the court, and he is not over which they exercise jurisdiction of great
authorized to make his individual knowledge of a rivers and lakes, and their relation to provincial
fact, not generally or professionally known, the boundaries, of navigability of streams,
basis of his action. Judicial cognizance is taken only constituting highway commerce and notorious
of those matters which are "commonly" known. facts concerning the same. (Banatao v. Tuliao,
(State Prosecutors v. Muro, A.M. No. RTJ-92-876, 19 G.R. No. 12264, 23 Sept. 1918)
Sept. 1994)

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2. The financial problem is a factor that beset the
sugar industry; that there is crisis in the sugar
industry. (Hilado v. Leogardo, Jr., G.R. No. L-
65863, 11 June 1986)
3. The general increase in rentals of real estate
especially of business establishments.
(Commander Realty, Inc. v. CA, G.R. No. L-77227,
29 Nov. 1988)
4. The reality that, especially in local elections,
political rivals or operators benefited from the
usually belated decisions by COMELEC on
petitions to cancel or deny due course to CoCs
of potential nuisance candidates. (Dela Cruz v.
Commission on Elections, G.R. No. 192221, 13
Nov. 2012)
5. How rapists are not deterred by the presence of
people nearby, such as the members of their
own family inside the same room, with the
likelihood of being discovered, since lust
respects no time, locale or circumstance.
(People of the Philippines v. Neil B. Colorado, G.R.
No. 200792, 14 Nov. 2012)
6. The government is and has for many years been
financially strapped, to the point that even the
most essential services have suffered serious
curtailment. (La Bugal-B’Laan Tribal Assoc. v.
Ramos, G.R. No. 127882, 01 Dec. 2004)
7. That Oakwood standoff was widely known and
was extensively covered by the media made it a
proper subject of judicial notice. (Magdalo Para
sa Pagbabago v. COMELEC, G.R. No. 190793, 19
June 2012)
8. Senate Report on the Maysilo Estate being an
official act of the legislative department of the
National Government of the Philippines. (CLT
Realty Development Corporation v. Hi-Grade
Feeds Corporation, et al., G.R. No. 160684, 02
Sept. 2015)
9. Moral damages and death indemnity require
neither pleading nor evidence simply because
death through crime always occasions moral
sufferings on the part of the victim’s heirs.
588
(Barut v. People of the Philippines, G.R. No.
167454, 24 Sept. 2014)
Matters NOT Proper Subject of Judicial Notice
1. GR: Courts are not mandated to take judicial
notice of the practice of banks in conducting
background checks on borrowers and sureties.
XPN: They nevertheless may do so under the
rule on discretionary judicial notice
Discretionary Judicial Notice. (Solidbank
Corporation v. Mindanao Ferroalloy Corp., G.R.
No. 153535, 28 July 2005)
2. GR: Courts are not authorized to take judicial
notice of the contents of the records of other
cases even when said cases have been tried or
are pending in the same court or before the
same judge.
XPN: They may, however, take judicial notice of
a decision or the facts prevailing in another case
sitting in the same court if:
a. the parties present them in evidence, absent
any opposition from the other party; or
b. the court, in its discretion, resolves to do so.
(Land Bank v. Yatco Agricultural, G.R. No.
172551, 15 Jan. 2014)
3. Proprietary acts of GOCCs, e.g., management
contract entered into by the GOCC (Asian
Terminals v. Malayan Insurance, G.R. No. 171406,
April 4, 2011). (Asian Terminals v. Malayan Insurance,
G.R. No. 171406, 04 April 2011)
4. The assessed value of realty.
5. Administrative regulation of a statute that is not
yet effective.
6. No judicial notice is taken of whiplash injury
since it is not capable of unquestionable
demonstration and the courts lack the proper
medical knowledge to assume this fact. (Dela
Llana v. Biong, G.R. No. 182356, 04 Dec. 2013)
NOTE: Judicial knowledge is different from
judicial notice. Judicial knowledge is
knowledge of the judge. Judicial notice must be
knowledge of everyone or almost everyone
 Evidence
such that there is no doubt, it is certain, and
that it is well-settled. (Sps. Latip v. Chua, G.R.
No. 177809, 16 Oct. 2009)
7. Criminal activities such as robbery and
kidnappings are becoming daily fares in the
society. (New Sun Valley Homeowner’s
Association v. Sangguniang Barangay,
Barangay Sun Valley, Parañaque City, G.R. No.
156686, 27 July 2011)
8. Actual Damages. (Barut v. People of the
Philippines, G.R. No. 167454, 24 Sept. 2014)
Judicial Notice of Foreign Laws (2005 BAR)
GR: Courts cannot take judicial notice of foreign
laws. They must be alleged and proved.
XPN: When said laws are within the actual
knowledge of the court and such laws are:
1. Well and generally known; or
2. Actually ruled upon in other cases before it; and
none of the parties claim otherwise. (PCIB v.
Escolin, G.R. Nos. L-27860 and L-27896, G.R. No.
29 Mar. 1974)
Doctrine of Processual Presumption
In international law, the party who wants to have a
foreign law applied to a dispute or case has the
burden of proving the foreign law. Where a foreign
law is not pleaded or even if pleaded, is not proved,
the presumption is that the foreign law is same as
ours. (ATCI Overseas Corporation v. Echin, G.R. No.
178551, 11 Oct. 2010)
When Foreign law is part of a Published
Treatise, Periodical or Pamphlet
When the foreign law is part of a published treatise,
periodical or pamphlet and the writer is recognized
in his profession or calling as expert in the subject,
the court, may take judicial notice of the treatise
containing the foreign law. (Sec. 48, Rule 130, ROC,
as amended)
589
When a Foreign Law refers to the Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. (Sec. 2, Art. II, 1987 Constitution of the
Philippines)
Being part of the law of the land, they are therefore,
technically in the nature of local laws and hence, are
subject to mandatory judicial notice under Sec. 1 of
Rule 129. (Riano, 2019)
Rules regarding Judicial Notice of Municipal or
City Ordinances
1. MTCs are required to take judicial notice of the
ordinances of the municipality or city wherein
they sit.
2. RTCs must take judicial notice of ordinances in
force in the municipalities within their
jurisdiction only:
a. When expressly authorized to do so by
statute; or
b. In case on appeal before them and wherein
the inferior court took judicial notice of an
ordinance involved in the same case.
3. Appellate courts may also take judicial notice of
ordinances not only because the lower courts
took judicial notice thereof but because these
are facts capable of unquestionable
demonstration. (Riano, 2019)
Rules on Judicial Notice of Records of another
case previously tried
GR: Courts are not authorized to take judicial notice
of the contents of the records of other cases, even
when such cases have been tried or are pending in
the same court, and notwithstanding the fact that
both cases may have been heard or are actually
pending before the same judge. (Calamba Steel
Center, Inc. v. CIR, G.R. No. 151857, 28 Apr. 2005)
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XPNs: witness on the same matter. Each magistrate who

1. When in the absence of any objection, with the
knowledge of the opposing party, the contents
of said other cases are clearly referred to by title
and number in a pending action and adopted or
read into the record of the latter;
2. When the original record of the other case or
any part of it is actually withdrawn from the
archives at the court’s discretion upon the
request, or with the consent, of the parties, and
admitted as part of the record of the pending
case (Jumamil v. Cafe, G.R. No. 144570, 21 Sept.
2005);
3. When the action is closely interrelated to
another case pending between the same
parties;
4. Where the interest of the public in ascertaining
the truth are of paramount importance;
hears the testimony of a witness is called upon to
make his own appreciation of the evidence. (People
v. Langit, G.R. Nos. 134757-58, 04 Aug. 2000)
Judicial Admissions
These are admissions, oral or written, made by a
party in the course of the proceedings in the same
case, which do not require proof. (Sec. 4, Rule 129,
ROC, as amended)
Requisites of Judicial Admission (P-C-OW)
1. It must be made by a Party to the case or his
counsel;
2. It must be made in the Course of the
proceedings in the same case; and
3. It can be Oral or Written. (Sec. 4, Rule 129, ROC,
as amended)
Judicial Admissions vs. Extrajudicial Admissions

5. In cases seeking to determine what is JUDICIAL EXTRAJUDICIAL

reasonable exercise of discretion or whether ADMISSIONS ADMISSIONS
the previous ruling is applicable in a case under Those made out of
Those made in the
consideration; or court or in a judicial
course of the
proceeding other than
proceeding in the same
6. Where there is finality of a judgment in another the one under
case.
case that was previously pending consideration.
determination and therefore, res judicata. Do not require proof
(Herrera, 1999) and may be
contradicted only by
Regarded as evidence
Q: Anna and Badong were accused of killing showing that it was
and must be offered as
Cathy. However, only Anna was arrested since made through palpable
such, otherwise the
Badong went into hiding. After trial, Anna was mistake or that the
court will not consider
acquitted of the charge in a decision rendered by imputed admission
it in deciding the case.
Judge Santos. Subsequently, Badong was was not, in fact, made.
arrested and brought to trial. After trial, Badong (Sec. 4, Rule 129, ROC,
was found guilty of homicide in a decision as amended)
rendered by Judge Yantok, the judge who Judicial admissions
replaced Judge Santos after the latter retired. On need not be offered in
appeal, Badong argues that Judge Yantok should evidence since it is not
Requires formal offer
have taken judicial notice of the acquittal of evidence. It is superior
for it to be considered.
Anna rendered by Judge Santos. Is Badong to evidence and shall be
correct? considered by the court
as established.
A: NO. The appreciation of one judge of the Conclusive upon the
testimony of a certain witness is not binding on Rebuttable.
admitter.
another judge who heard the testimony of the same

590
 Evidence

Admissible even if self- Not admissible if self- 2. They cannot be contradicted because they are
serving. serving. conclusive upon the party making it. (Solivio v.
Subject to cross- Not subject to cross- CA, G.R. No. 83484, 12 Feb. 1990)
examination. examination.
Admissions made in pleadings which were NOT
Different Forms of Judicial Admission filed with the court

1. Oral – Verbal waiver of proof made in open Admissions made therein are not judicial
court, a withdrawal of contention, or disclosure admissions:
made before the court, or admission made by
witness in his testimony or deposition; 1. If signed by the party litigant himself or
herself – Considered as extrajudicial admission.
2. Writing – Pleading, bill of particulars, 2. If signed by the counsel – Not admissible
stipulation of facts, request for admission, or a because a counsel only binds his or her client
judicial admission contained in an affidavit with respect to admissions in open court and in
used in the case (Programme Inc. v. Province of pleadings actually filed with the court. (Riano,
Bataan, G.R. No. 144635, 26 June 2006) 2019)

How Judicial Admissions are made
Judicial admissions may be made in:
1. The pleadings filed by the parties;
2. The course of the trial either by verbal or
written manifestations or stipulations,
including depositions, written interrogatories
and requests for admissions; or
3. Other stages of the judicial proceedings, as in
pre-trial. (Binarao v. Plus Builders, Inc., G.R. No.
154430, 16 June 2006)
Two ways in which admissions are made in
pleadings
1. Actual Admission – When a party categorically
admits a material allegation made by the
adverse party.
2. Implied Admission – When the admission is
inferred from the failure to specifically deny the
material allegations in the other party’s
pleadings.
Effect of Judicial Admissions
1. They do not require proof; and
Averments in pleadings which are not deemed
admissions
1. Immaterial allegations (Sec. 11, Rule 8, ROC, as
amended);
2. Conclusions, non-ultimate facts in the pleadings
(Sec 1, Rule 8, ROC, as amended); and
3. Amount of unliquidated damages (Sec. 11, Rule
8, ROC, as amended)
Effect of an Invalid and Ineffective Denial of
Actionable Documents Attached to the
Complaint
When an action or defense is founded upon an
actionable document, the genuineness and due
execution of the same instrument shall be deemed
admitted unless it is specifically denied under oath.
(Sec. 8, Rule 8, ROC, as amended)
Failure to deny the genuineness and due execution
of said document amounts to a judicial admission.
(PNB v. Refrigeration Industries, Inc. G.R. No. 156178,
20 Jan. 2006)
NOTE: But the failure to deny the genuineness and
due execution of an actionable document does not
preclude a party from arguing against the document
by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want
of consideration. He or she is however, precluded
from arguing that the document is a forgery because

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the genuineness of document is impliedly admitted.
(Acabal v. Acabal, G.R. 148376, 31 Mar. 2005)
Admissions made in Amended Pleadings
Admissions in a pleading which had been
withdrawn or superseded by an amended pleading,
although filed in the same case, are considered as
extrajudicial admissions.
Pleadings that have been amended disappear from
the record, lose their status as pleadings, and cease
to be judicial admissions. To be utilized as
extrajudicial admission, they must, in order to have
such effect, be formally offered in evidence. (Ching
v. Court of Appeals, G.R. No. 110844, 27 Apr. 2000)
Rule regarding Self-Serving Evidence
Self-serving declaration is one that is made by a
party, out of court and in his favor. It does not
include the testimony he gives as a witness in court.
(People v. Villarama, G.R. No. 139211, 12 Feb. 2003)
This cannot be said of a party’s testimony in court
made under oath, with full opportunity on the part
of the opposing party for cross-examination. (People
v. Omictin, G.R. No. 188130, 26 July 2010)
Effect of a guilty plea made by the accused
during his arraignment later withdrawn
A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of
conviction becomes final. Such plea is not
admissible in evidence against the accused and is
not even considered as an extrajudicial admission.
Grounds for contradicting Judicial Admissions
1. Upon showing that the admission was made
through palpable mistake; or
2. When it is shown that the imputed admission
was not, in fact, made. (Sec. 4, Rule 129, ROC, as
amended)
NOTE: This argument may be invoked when the
statement of a party is taken out of context or that
his statement was made not in the sense it is made
to appear by the other party. (Riano, 2019)
592
Remedy of a party who made a Judicial
Admission
1. In case of written admission – File a motion to
withdraw such pleading, or any other written
instrument containing such admission; and
2. In case of oral admission – The counsel may
move for the exclusion of such admission.
Admissions in the Pre-trial of Civil Cases
Pre-trial is mandatory. One of the purposes of pre-
trial in civil cases is for the court to consider the
possibility of obtaining stipulations or admissions
of facts. Admissions, therefore, in the pre-trial, as
well as those made during depositions,
interrogatories or requests for admissions, are all
deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
2019)
Admissions in the Pre-trial of Criminal Cases
Admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against
him or her. To be admissible, the conditions set
forth by Sec. 2 of Rule 118 must be complied with.
All the agreements or admissions made or entered
during the pre-trial conference shall be:
1. Reduced in writing; and
2. Signed by the accused and counsel.
Otherwise, they cannot be used against the accused.
(Sec. 2, Rule 118, ROC, as amended)
C. OBJECT (REAL) EVIDENCE
(RULE 130, A)
Nature of Object (Real) Evidence (2005 BAR)
Objects as evidence are those addressed to the
senses of the court. When an object is relevant to the
fact in issue, it may be exhibited to, examined or
viewed by the court. (Sec. 1, Rule 130, ROC, as
amended)
 Evidence
It is not limited to the view of an object. It covers the
entire range of human senses: hearing, taste, smell,
and touch. (Riano, 2019)
Physical evidence is a mute, but eloquent
manifestation of truth and it ranks high in our
hierarchy of trustworthy evidence- where physical
evidence runs counter to testimonial evidence, the
physical evidence should prevail. (Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, 11 Feb.
2008)
In criminal cases such as murder/homicide or rape,
in which the accused stand to lose their liberty if
found guilty, the Supreme Court has, on many
occasions, relied principally upon physical evidence
in ascertaining the truth. Where the physical
evidence on record runs counter to the testimonies
of witnesses, the primacy of the physical evidence
must be upheld. (PO1 Ocampo v. People of the
Philippines, G.R. No. 194129, 15 June 2015)
NOTE: Documents are object (real) evidence or
Object (Real) Evidence if the purpose is to prove
their existence or condition, or the nature of the
handwriting thereon, or to determine the age of the
paper used, or the blemishes or alterations thereon,
as where falsification is alleged. (Regalado, 2008)
Examples of Object (Real) Evidence
1. Any article or object which may be known or
perceived using the senses;
2. Examination of the anatomy of a person or of
any substance taken therefrom;
3. Conduct of tests, demonstrations or
experiments;
4. Examination of representative portrayals of the
object in question (e.g., maps, diagrams);
5. Documents, if the purpose is to prove their
existence or condition, or the nature of the
handwriting thereon or to determine the age of
the paper used, or the blemishes or alterations
(Regalado, 2008); and
593
6. A person’s appearance, where relevant. (People
v. Rullepa, G.R. No. 131516, 05 Mar. 2003)
Paraffin Test
A test which can establish the presence or absence
of nitrates or nitrites on the hand, but the test alone
cannot determine whether the source of the nitrates
or nitrites was discharge of a firearm.
NOTE: The paraffin test Paraffin Test is merely
corroborative evidence, neither proving nor
disproving that a person did indeed fire a gun. The
positive or negative results of the test can be
influenced by certain factors such as the wearing of
gloves by the subject, perspiration of the hands,
wind direction, etc. (People v. Buduhan, G.R. No.
178196, 06 Aug. 2008)
A person who tests positive may have handled one
or more substances with the same positive reaction
for nitrates such as explosives, fireworks, fertilizers,
pharmaceuticals, tobacco and leguminous plants.
(People v. Cajumocan, G.R. No. 155023, 28 May 2004)
Polygraph Test (Lie Detector Tests)
It is an electromechanical instrument that
simultaneously measures and records certain
physiological changes in the human body that are
believed to be involuntarily caused by an
examinee’s conscious attempt to deceive the
questioner. (West’s Legal Thesaurus Dictionary,
1986)
A polygraph test operates on the principle that
stress causes physiological changes in the body
which can be measured to indicate whether the
subject examination is telling the truth. (Riano,
2019)
Q: Ron was charged with murder for shooting
Carlo. After trial, Ron was found guilty as
charged. On appeal, Ron argued that the trial
court should have acquitted him as his guilt was
not proved beyond reasonable doubt. He argues
that the paraffin test conducted on him 2 days
after he was arrested yielded a negative result.
Hence, he could not have shot Carlo. Is Ron
correct?
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A: NO. While the paraffin test was negative, such fact
alone did not ipso facto prove that Ron is innocent.
A negative paraffin result is not conclusive proof
that a person has not fired a gun. It is possible to fire
a gun and yet be negative for nitrates, as when the
culprit is wearing gloves or he washes his hands
afterwards. Here, since Ron submitted himself for
paraffin testing only two days after the shooting, it
was likely he had already washed his hands
thoroughly, thus removing all traces of nitrates
therefrom. (People v. Brecinio, G.R. No. 138534, 17
Mar. 2004)
Requisites for Admissibility (ReCo-A-C-O)
1. It must be Relevant and Competent;
2. It must be Authenticated;
NOTE: To authenticate the object, it must be
shown that the object is the very thing that is
either the subject matter of the lawsuit or the
very one involved to prove an issue in the case.
3. The authentication must be made by a
Competent witness who should identify the
object to be the actual thing involved; and
4. The Object must be formally offered in
evidence. (Riano, 2019)
Purposes of Authentication of Object (Real)
Evidence
1. Prevent the introduction of an object different
from the one testified about; and
2. Ensure that there have been no significant
changes in the object’s condition.
Circumstances when the court may refuse the
introduction of Object or Real Evidence and rely
on Testimonial Evidence alone
1. Its exhibition is contrary to public morals or
decency;
NOTE: But if the exhibition of such object is
necessary in the interest of justice, it may still
be exhibited, and the court may exclude the
public from such view. Such exhibition may not
594
be refused if the indecent or immoral objects
constitute the very basis of the criminal or civil
action. (Moran, 1980)
2. To require its being viewed in court or in ocular
inspection would result in delays,
inconvenience, or unnecessary expenses which
are out of proportion to the evidentiary value of
such object;
3. Such Object Evidence would be confusing or
misleading, as when the purpose is to prove the
former condition of the object and there is no
preliminary showing that there has been no
substantial change in said condition; or
4. The Testimonial or Documentary Evidence
already presented clearly portrays the object in
question as to render a view thereof
unnecessary. (Regalado, 2008)
Q: In a criminal case for murder, the prosecution
offered as evidence, photographs showing the
accused mauling the victim with several of the
latter’s companions. The person who took the
photograph was not presented as a witness. Be
that as it may, the prosecution presented the
companions of the victim who testified that they
were the ones in the photographs. The defense
objected to the admissibility of the photographs
because the person who took the photographs
was not presented as witness. Is the contention
of the defense tenable?
A: NO. Photographs, when presented in evidence,
must be identified by the photographer as to its
production and testified as to the circumstances
under which they were produced. The value of this
kind of evidence lies in its being a correct
representation or reproduction of the original, and
its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
The photographer, however, is not the only witness
who can identify the pictures he has taken. The
correctness of the photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses who can testify to its exactness and
 Evidence
accuracy, after which the court can admit it subject
to impeachment as to its accuracy. Here, the
photographs are admissible as evidence in as much
as the correctness thereof was testified to by the
companions of the victim. (Sison v. People, G.R. Nos.
108280-83, 16 Nov. 1995)
Q: Thor was charged with and convicted of the
special complex crime of robbery with homicide
by the trial court. On his appeal, he asseverates
that the admission as evidence of victim's wallet
together with its contents, violates his right
against self-incrimination. Likewise, Thor
sought for their exclusion because during the
custodial investigation, wherein he pointed to
the investigating policemen the place where he
hid the victim's wallet, he was not informed of
his constitutional rights (Miranda rights).
Decide the case.
A: The Right Against Self-Incrimination does not
apply to the instant case where the evidence sought
to be excluded is not an incriminating statement but
an Object Evidence. Infractions on the so-called
“Miranda rights” render inadmissible only the
extrajudicial confession or admission made during
custodial investigation. The admissibility of other
evidence is not affected even if obtained or taken in
the course of custodial investigation. Concededly,
Thor was not informed of his rights during the
custodial investigation. Neither did he execute a
written waiver of these rights in accordance with
the constitutional prescriptions. Nevertheless, these
constitutional shortcuts do not affect the
admissibility of the victim's wallet and its contents.
(People v. Malimit, G.R. No. 109775, 14 Nov. 1996)
Categories of Object (Real) Evidence for
purposes of Authentication
1. Unique objects – Those that have readily
identifiable marks (e.g., a caliber 40 gun with
serial number XXX888);
595
2. Objects made unique – Those that are made
readily identifiable (e.g., a bolo knife with
identifying marks on it); and
3. Non-unique objects – Those which have no
identifying marks and cannot be marked (e.g.,
drops of blood). (Riano, 2019)
NOTE: In case of non-unique objects, the proponent
of the evidence must establish a chain of custody.
Chain of Custody in relation to Section 21 of the
Comprehensive Dangerous Drugs Act Of 2002
Purpose
To guaranty the integrity of the physical evidence
and to prevent the introduction of evidence which is
not authentic. Where the exhibit is positively
identified, the chain of custody of physical evidence
is irrelevant.
Since it is called a chain, there must be links to the
chain. The links are the people who actually handled
or had custody of the object. Each link must show
how he received the object, how he handled it to
prevent substitution and how it was transferred to
another. Each must testify to make the foundation
complete.
Links in the chain of custody
1. Seizure and marking, if practicable, of the
illegal drug recovered from the accused;
2. Turnover of the illegal drug by the
apprehending officer to the investigating
officer;
3. Turnover by the investigating officer to the
forensic chemist for laboratory examination;
and
4. Turnover and submission of the marked illegal
drug by the forensic chemist to court. (People
v. Gayoso, G.R. No. 206590, 27 Mar. 2017)
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Procedure to be followed in the custody and handling of seized dangerous drugs (Sec. 21, Art. II of R.A. No.
9165, as amended by R.A. No. 10640)

Apprehending team shall, immediately after seizure and confiscation, make a physical inventory and photograph of the
same in the
presence of:

1. Accused or the` person/s from which such

items were confiscated and/or seized;
2. His/her representative or counsel; WITH
3. A representative of the National Prosecution Service (NPS) OR the media; AND
4. Any elected public official who shall be required to sign the copies of the inventory and be given a copy. (People v.
Santos, G.R. No. 243627, 27 Nov. 2019)

The objects seized must be submitted to PDEA for qualitative and quantitative examination within 24 hours from the
confiscation/seizure.

The forensic laboratory examiner is required to issue within 24 hours after receipt of the drugs a certification of the
forensic laboratory examination results which shall be done under oath.

After filing of the criminal case, the court shall, within 72 hours, conduct an ocular inspection and the PDEA shall within
24 hours proceed with the destruction of the same.

Dangerous Drugs Board shall then issue a sworn certification as to the fact of destruction or burning to be submitted to
the court. Also, to be submitted are the representative samples (only minimum quantity) of the substances in the
custody of PDEA.

NOTE: The alleged offender or his/her representative or counsel shall be allowed to personally observe all the
above proceedings. His presence shall NOT constitute an admission of guilt.

Strict Compliance with Section 21 receipt for “a sachet containing marijuana

Q: Banding was arrested at Mercury Drug Store
Lagro branch in Quezon City for illegal sale of
dangerous drugs (Section 5, R.A. No. 9165). The
dangerous drugs sachets containing white
crystalline substance were marked by PO2
Inway with AB-20-09-10. To avoid the on-going
commotion in the area, the team proceeded to
Camp Karingal which is 17 kilometers car ride
away from the place of arrest.
There, physical inventory, and photographing
required under Sec. 21 of R.A. No. 9165 was
conducted in the presence of Banding, the buy-
bust team, and a media representative. After the
inventory, PO3 Corona prepared the inventory
fruiting tops.” This was submitted to the QCPD
Crime Laboratory. Banding was later on charged
with violation of Section 5 of R.A. No. 9165.
Banding argues that he cannot be convicted due
to lapses in the chain of custody of the drugs
seized. Can Banding be held criminally liable
under Section 5 of R.A. No. 9165?
A: Banding cannot be convicted under Section 5 of
R.A. No. 9165 due to the lapses in the chain of
custody procedure required under Section 21 of the
same law. Section 21 requires strict compliance. The
accuracy it requires goes into the covertness of buy-
bust operation and the very nature of narcotic
substance.

596
 Evidence
From the language of Section 21, the mandate to
conduct inventory and take photographs
"immediately after seizure and confiscation"
necessarily means that these shall be
accomplished at the place of arrest. When this is
impracticable, the Implementing Rules and
Regulations of R.A. No. 9165 allows for two (2) other
options: at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures. To sanction non-compliance, the
prosecution must prove that the inventory was
conducted in either practicable place.
The physical inventory and photographing of the
drugs seized was not done in the place of arrest, but
was done in Camp Karingal, which was impractical
since it was 17 kilometers car ride away from the
place of arrest. The clerical errors and discrepancies
in the inventory receipt and the chemistry report
cannot be dismissed since they cast doubt as to the
origin of the drug seized. (People of the Philippines v.
Banding, G.R. No. 2333470, 14 Aug. 2019)
In the case of People of the Philippines v. Ramos, the
Supreme Court ruled that the witnesses' absence at
the time of seizure is not a justifiable ground for not
immediately marking the items, since they should
have at the onset, been present or near the place of
seizure. Since the law requires the apprehending
team to conduct the inventory in front of the
required witnesses and immediately after seizure,
this necessarily means that, in buy-bust operations,
the required witnesses must be present at the time
of seizure. (G.R. No. 225335, 28 Aug. 2019)
The phrase "immediately after seizure and
confiscation" means that the physical inventory and
photographing of the drugs were intended by the
law to be made immediately after, or at the place of
apprehension. It is only when the same is not
practicable that the law allows the inventory and
photographing to be done as soon as the buy-bust
team reaches the nearest police station or the
nearest office of the apprehending team/officer.
Well-entrenched in jurisprudence is the rule that
the conviction of the accused, must rest, not on the
weakness of the defense, but on the strength of the
prosecution. Since there is no showing that a proper
597
inventory and taking of pictures was done by the
apprehending officers, the Court is left with
absolutely no guarantee of the integrity of the
sachets other than the self-serving assurances of the
police officers. (People of the Philippines v. Que, G.R.
No. 212994, 31 Jan. 2018)
Citing People v. Que, what is critical in drug cases is
not the bare conduct of the inventory, marking, and
photographing. Instead, it is the certainty that the
items allegedly taken from the accused retain their
integrity, even as they make their way from the
accused to an officer effecting the seizure, to an
investigating officer to a forensic chemist, and
ultimately, to courts where they are introduced as
evidence. Sec. 21(1)’s requirements are designed to
make the first and second link foolproof. Conducting
the inventory and photographing immediately after
seizure, exactly where the seizure was done, or at a
location as practicably close to it, minimizes, if not
eliminates, room for adulteration or planting of
evidence. (People of the Philippines v. Banding,
supra.)
Q: Karlo was charged with Illegal Possession of
Dangerous Drugs. He questions his conviction
by arguing that there are inconsistencies in the
testimonies of the witnesses. He argues that the
prosecution failed to establish compliance with
the three-witness rule mandated by R.A. No.
9165. Furthermore, Karlo casts doubt on the
validity of the search conducted in that the
implementation of the search warrant was
documented to begin at 4:30 A.M. while the
seizure of the drugs was made at around 6:30
A.M. Such interval, Karlo claims, gave the police
officers an opportunity to fabricate evidence
against him. Do the alleged inconsistencies in
the testimonies of the witnesses warrant the
reversal of the conviction of Karlo?
A: NO. As to the first argument, the fact that Cruz's
affidavit neglects to categorically mention the
presence of DOJ representative Mendoza during the
search operation does not run counter to his
testimony. The perceived discrepancy neither
affects the truth of the testimony of the prosecution
witness nor discredits his positive identification of
appellant. Besides, apart from the duly signed
Certificate of Inventory and Certificate of orderly
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Search, it had already been stipulated and admitted
by the parties that Mendoza was indeed a witness in
the conduct of the search and inventory of the
confiscated drugs. For this reason, such stipulation
is already a judicial admission of the facts stipulated.
Appellant is clearly beyond his bearings in disputing
this judicially admitted fact. What is more,
photographs were offered in evidence to prove that
the necessary witnesses, including Mendoza, had
been present during the search operation.
As to the second argument, the supposed
inconsistency regarding the exact time the search
warrant was implemented is, if at all, minor and
without consequence. As argued by the appellee, the
team had arrived at appellant's house to implement
the search warrant at 4:30 a.m. The police officers
did not immediately search the residence because
they still had to wait for the barangay officials and
the media representatives. Such minor
inconsistency does not warrant the reversal of
appellant's conviction. (Concepcion y Tabor v.
People, G.R. No. 243345, 11 March 2019, J. Caguioa)
Integrity and Evidentiary Value of the Seized
Items
The prosecution is not required to elicit testimony
from every custodian or from every person who had
an opportunity to come in contact with the evidence
sought to be admitted. As long as one of the chains
testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is
preserved, his testimony alone is adequate to prove
the chain of custody.
Failure to strictly comply with rules of procedure,
however, does not ipso facto invalidate or render
void the seizure and custody over the items. Minor
deviations from the chain of custody rule Chain of
Custody Rule are justified when the prosecution is
able to show that:
1. There is justifiable ground for non-compliance;
and
2. The integrity and evidentiary value of the
seized items are properly preserved (People v.
Dumagay, G.R. No. 216753, 07 Feb. 2018)
598
Q: A buy-bust operation was conducted wherein
PO2 Montales was designated as the poseur-
buyer. The buy-bust team proceeded to Saunar's
residence. PO2 Montales introduced herself as a
buyer of shabu and handed Saunar the marked
money. After a brief conversation, Saunar went
inside the house. She returned moments later
"with two (2) transparent plastic sachets
containing white crystalline substance." PO2
Montales examined the plastic sachets and gave
the pre-arranged signal by removing her
sunglasses. This indicated the consummation of
the transaction to the other members of the buy-
bust team. PO2 Montales brought the seized
items to the crime laboratory for scientific
examination. The contents of the two (2) plastic
sachets weighed 0.0496 grams and 0.0487
grams. They tested positive for shabu. Is Saunar
liable even if only a miniscule amount is alleged
to have been seized from him?
A: NO. The prosecution must prove beyond
reasonable doubt that the transaction actually took
place by establishing the following elements: "(1)
the identity of the buyer and the seller, the object
and the consideration; and (2) the delivery of the
thing sold and the payment." Aside from this, the
corpus delicti must be presented as evidence in
court. In cases involving dangerous drugs, "the
corpus delicti is the dangerous drug itself." Although
strict compliance with the Chain of Custody Rule
may be excused provided that the integrity and
evidentiary value of the seized items are preserved,
a more exacting standard is required of law
enforcers when only a miniscule amount of
dangerous drugs are alleged to have been seized
from the accused.
In this case, only 0.0496 grams and 0.0487 grams or
a total of 0.0983 grams of shabu were allegedly
taken from accused-appellant. Such a miniscule
amount of drugs is highly susceptible to tampering
and contamination. A careful review of the factual
findings of the lower courts shows that the
prosecution failed to discharge its burden of
preserving the identity and integrity of the
dangerous drugs allegedly seized from accused-
appellant. The prosecution failed to establish who
held the seized items from the moment they were
taken from accused-appellant until they were
 Evidence
brought to the police station. The designated
poseur-buyer, PO2 Montales, did not mention who
took custody of the seized items for safekeeping.
(People v. Saunar, G.R. No. 207396, 09 Aug. 2017)
Marking after seizure is the starting point in the
custodial link, thus it is vital that the seized
contrabands are immediately marked because
succeeding handlers of the specimen will use the
markings as reference. (People v. Salim, G.R. No.
208093, 20 Feb. 2017)
Q: A buy-bust operation was conducted by the
police where PO1 Aure, as the poseur-buyer,
was accompanied by the informant. The team
proceeded to the whereabouts of Holgado. PO1
Aure handed Holgado two marked Php 100 bills.
Holgado called Misarez. Misarez stepped out of
the restroom and handed a plastic sachet
containing a white crystalline substance to PO1
Aure. PO1 Aure examined the sachet’s contents
and took out his cellphone signaling that the sale
of drugs had been consummated. The police
operatives then approached PO1 Aure and
apprehended Holgado and Misarez. PO3
Abuyme prepared an inventory of the seized
items. PO1 Aure supposedly marked the plastic
sachet handed to him by Misarez at the site of
the buy-bust operation.
Following their arrest, Holgado and Misarez
were charged with violating Secs. 5 (Sale of
dangerous drugs), 11 (Possession of dangerous
drugs), and 12 (Possession of drug
paraphernalia) of R.A. No. 9165.
RTC found Holgado and Misarez guilty of illegal
sale of dangerous drugs and acquitted them of
the charges pertaining to Sec. 11 as the drugs
supposedly seized were not introduced in
evidence. Holgado, was also acquitted of the
charges relating to Sec. 12 of as the
paraphernalia to which PO2 Castulo testified to
in court were different from those indicated in
the inventory supposedly made. CA affirmed the
conviction. Is the presumption of regularity in
the performance of duties applicable in this
case?
A: The presumption of regularity in the
performance of duties cannot be applied in this case.
599
Given the flagrant procedural lapses the police
committed in handling the seized shabu and the
obvious evidentiary gaps in the chain of its custody,
a presumption of regularity in the performance of
duties cannot be made in this case. The presumption
applies when nothing in the record suggests that the
law enforcers deviated from the standard conduct
of official duty required by law; where the official
act is irregular on its face, the presumption cannot
arise. (People of the Philippines v. Holgado, G.R. No.
207992, 11 Aug. 2014)
DNA EVIDENCE
Meaning of DNA
DNA is the fundamental building block of a person’s
entire genetic make-up. A person’s DNA profile can
determine his identity. The DNA profile is unique
for each person, except for identical twins.
Everyone is born with a distinct and genetic
blueprint called DNA.
When a crime is committed, material is collected
from the scene of the crime or from the victim's
body for the suspect's DNA. This is the evidence
sample. The evidence sample is then matched with
the reference sample taken from the suspect and the
victim.
DNA analysis
A procedure in which DNA extracted from a
biological sample obtained from an individual is
examined. (Herrera v. Alba, G.R. No. 148220, 15 June
2000)
The purpose of DNA testing is to ascertain whether
an association exists between the evidence sample
and the reference sample. The samples collected are
subjected to various chemical processes to establish
their profile. The test may yield three possible
results:
1. The samples are different and therefore
must have originated from different sources
(exclusion). This conclusion is absolute and
requires no further analysis or discussion;
2. It is not possible to be sure, based on the
results of the test, whether the samples have
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similar DNA types (inconclusive). This might
occur for a variety of reasons including
degradation, contamination, or failure of some
aspect of the protocol. Various parts of the
analysis might then be repeated with the same
or a different sample, to obtain a more
conclusive result; or
3. The samples are similar, and could have
originated from the same source (inclusion). In
such a case, the samples are found to be similar,
the analyst proceeds to determine the statistical
significance of the similarity. (People v. Vallejo,
G.R. No. 144656, 09 May 2002)
Rule on DNA Evidence (A.M. No. 06-11-5-SC)
It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence
in all criminal and civil actions as well as special
proceedings. (Sec. 1, A.M. No. 06-11-5-SC)
Application for DNA Testing Order
DNA testing order may be done motu proprio or on
application of any person having legal interest in the
matter in litigation.
DNA testing order shall issue after due hearing and
notice to the parties upon showing that:
1. A biological sample exists that is relevant to the
case;
2. The biological sample:
a. was not previously subjected to the type of
DNA testing now requested; or
b. was previously subjected to DNA testing,
but the results may require confirmation
for good reasons;
3. The DNA testing uses a scientifically valid
technique;
4. The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and
600
5. The existence of other factors, if any, which the
court may consider as potentially affecting the
accuracy of integrity of the DNA testing.
NOTE: This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest of
any party, including law enforcement agencies,
before a suit or proceeding is commenced. (Sec. 4,
A.M. No. 06-11-5-SC)
Post-Conviction DNA Testing
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment provided that:
1. A biological sample exists;
2. Such sample is relevant to the case; and
3. The testing would probably result in the
reversal or modification of the judgment of
conviction. (Sec. 5, A.M. No. 06-11-5-SC) (2012
BAR)
Assessment of Probative Value of DNA Evidence
and Admissibility
The courts must consider the following standards,
known as the Vallejo Standards, in assessing the
probative value of DNA evidence: (2009, 2010
BAR)
a. How the samples were collected;
b. How they were handled;
c. The possibility of contamination of the samples;
d. The procedure followed in analyzing the
samples;
e. Whether the proper standards and procedures
were followed in conducting the tests; and
f. The qualification of the analyst who conducted
the tests. (People v. Vallejo, G.R. No. 144656, 09
May 2002)
Rules on evaluation of Reliability of DNA testing
Methodology
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
 Evidence

a. The chain of custody, including how the alone. (Herrera v. Alba, G.R. No. 148220, 15 June
biological samples were collected, how they 2005)
were handled, and the possibility of
contamination of the samples; Real Evidence vs. Demonstrative Evidence

b. The DNA testing methodology, including the DEMONSTRATIVE

REAL EVIDENCE
procedure followed in analyzing the samples, EVIDENCE
the advantages and disadvantages of the Tangible object that Tangible evidence that
procedure, and compliance with the played some actual role merely illustrates a
scientifically valid standards in conducting the in the matter that gave matter of importance
tests; rise to the litigation in the litigation
Intends to show that
c. The forensic DNA laboratory, including the demonstrative
accreditation by any reputable standards- object fairly
setting institution and the qualification of the represents or
analyst who conducted the tests. If the illustrates a Real
laboratory is not accredited, the relevant Evidence
experience of the laboratory in forensic
casework and credibility shall be properly Illustration: Where a
established; and drawing is presented to
illustrate the relative
d. The reliability of the testing result, as positions of the
hereinafter provided. (Sec. 7 (a), A.M. No. 06-11- protagonists and
Intends to prove that
5-SC) witnesses to the killing,
the object is used in the
the foundation for
underlying event
DNA is Admissible Evidence of Paternity demonstrative
evidence will normally
It is not enough to state that the child's DNA profile consist of the
matches that of the putative father. A complete testimony of an
match between the DNA profile of the child and the eyewitness or
DNA profile of the putative father does not investigator stating
necessarily establish paternity. that the drawing
indeed fairly
For this reason, following the highest standard represents the position
adopted in an American jurisdiction,53 trial courts of those present in the
should require at least 99.9% as a minimum value event. (Francisco,
of the Probability of Paternity ("W") prior to a 1996)
paternity inclusion. W is a numerical estimate for
the likelihood of paternity of a putative father View of an Object or Scene
compared to the probability of a random match of
two unrelated individuals. When an object is relevant to the fact in issue, it may
be exhibited to, examined or viewed by the court.
An appropriate reference population database, such (Sec 1, Rule 130, ROC, as amended)
as the Philippine population database, is required to
compute for W. Due to the probabilistic nature of Where the object in question cannot be produced in
paternity inclusions, W will never equal to 100%. court because it is immovable or inconvenient to
However, the accuracy of W estimates is higher remove, it is proper for the tribunal to go to the
when the putative father, mother and child are object in its place and there observe it (Francisco,
subjected to DNA analysis compared to those 1996).
conducted between the putative father and child

601 UNIVERSITY OF SANTO TOMAS

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 Remedial Law

An ocular inspection conducted by the judge
without the presence of the parties or due notice is
not valid, as an ocular inspection is part of the trial.
(Regalado, 2008, citing Adan v. Abucejo-Luzano, et.
al., A.M. No. MTJ-00-1298, 03 Aug. 2000)
that words were uttered in a particular accent, then
it is object evidence. (Francisco, 1996)
Q: May a private document be offered and
admitted in evidence both as documentary
evidence and object evidence? (2005 BAR)

D. DOCUMENTARY EVIDENCE A: YES. A private document may be offered and

(RULE 130, B) admitted in evidence both as documentary evidence
and as object evidence depending on the purpose
for which the document is offered. If offered to
prove its existence, conditions or for any purpose
1. DEFINITION
other than the contents of a document, the same is
considered as object evidence. When the private
Documents as evidence consist of writings,
document is offered as proof of its contents, the
recording, photographs, or any material containing
same is considered as documentary evidence. The
letters, words, sounds, numbers, figures, symbols,
document may be offered for both purposes under
or their equivalent, or other modes of written
the principle of multiple admissibility. (Riano, 2019)
expressions, offered as proof of their contents.
Photographs include still pictures, drawings, stored
Requisites for Admissibility
images, x-ray films, motion picture or videos. (Sec. 2,
Rule 130, ROC, as amended)
The requisites for admissibility of documentary
evidence are: (R-A-M-O)
NOTE: Being writing or materials containing modes
of written expressions do not ipso facto make such
1. The document should be Relevant;
materials documentary evidence. For such writings
or materials to be deemed documentary evidence,
2. The documents should be Authenticated and
the same must be offered as proof of their contents.
proved in the manner provided in the Rules of
(Riano, 2019)
Court. Such authentication must be done by a
competent witness;
Categories of Documentary Evidence

3. The documents should be identified and

1. Writings;
Marked; and
2. Recordings;
3. Photographs;
4. They should be formally Offered to the court
4. Any other material containing letters, words,
and shown to the opposing party so that the
sounds, numbers, figures, symbols or their
latter may have the opportunity to object
equivalent; or
thereto. (Ramcar, Inc. v. Hi-Power Marketing,
5. Other modes of written expression offered as a
G.R. No. 157075, 17 July 2006)
proof of their contents.

Q: When Linda died, her common-law husband,

NOTE: Photographs include still pictures, drawings,
Lito and their alleged daughter, Nes, executed an
stored images, x-ray films, motion pictures or
extrajudicial partition of Linda’s estate.
videos. (Sec. 2, Rule 130, ROC, as amended)
Thereafter, the siblings of Linda filed an action
for partition of Linda’s estate and annulment of
Tape-recording as Documentary Evidence
titles and damages with the RTC. The RTC
dismissed the complaint and ruled that Nes was
If a tape recording is played to show that particular
the illegitimate daughter of the decedent and
words were uttered, it will constitute documentary
Lito based solely on her birth certificate, which
evidence. However, if it is played to simply show
on closer examination, reveals that Nes was

602
 Evidence
listed as “adopted” by both Linda and Lito. Is the
trial court correct?
A: NO. A record of birth is merely prima facie
evidence of the facts contained therein. It is not
conclusive evidence of the truthfulness of the
statements made therein by the interested parties.
Nes should have adduced evidence of her adoption,
in view of the contents of her birth certificate. The
mere registration of a child in his or her birth
certificate as the child of the supposed parents is not
a valid adoption, does not confer upon the child the
status of an adopted child and the legal rights of
such child, and even amounts to simulation of the
child's birth or falsification of his or her birth
certificate, which is a public document. (Rivera v.
Heirs of Villanueva, G.R. No. 141501, 21 July 2006)
Theory of Indivisibility (Rule on Completeness)
When part of an act, declaration, conversation,
writing, or record is given in evidence by one party,
the whole of the same subject may be inquired into
by the other; and when a detached act, declaration,
conversation, writing, or record is given in evidence,
any other act, declaration, conversation, writing or
record necessary to its understanding may also be
given in evidence. (Sec. 17, Rule 132, ROC, as
amended)
2. ORIGINAL DOCUMENT RULE
(PREVIOUSLY KNOWN AS THE
BEST EVIDENCE RULE)
The erstwhile “Best Evidence Rule” is now known as
the “Original Document Rule” in order to avoid
confusion.
The “Best Evidence Rule” is a misnomer because it
misleadingly suggests that the doctrine applies to all
types of evidence. The Best Evidence Rule only
applies to documents or writings; there is no
requirement that parties introduce the best
evidence bearing on other matters they seek to
prove in court. Thus, the more accurate or apt label
for the doctrine is the “Original Document Rule.”
(Rules Committee Notes, as cited in Peralta & Peralta,
2020)
603
Meaning of the Rule
GR: It provides that when the subject of the inquiry
is the contents of the document, writing, recording,
photograph or other record, no evidence shall be
admissible other than the original document itself.
XPNs: (Lo-Cus-Ju-N-Pu-C)
1. When the original is Lost, or destroyed, or
cannot be produced in court, without bad faith
on the part of the offeror;
2. When the original is in the Custody or under the
control of the party against whom the evidence
is offered, and the latter fails to produce it after
reasonable notice, or the original cannot be
obtained by local Judicial processes or
procedures;
3. When the original consists of Numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from them
is only the general result of the whole;
4. When the original is a Public record in the
custody of a public officer or is recorded in a
public office; and
5. When the original is not closely-related to a
Controlling issue. (Sec. 3, Rule 130, ROC, as
amended)
NOTE: Where the issue is only as to whether such a
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its
execution or delivery (external facts), the best
evidence rule (now, original document rule), does
not apply, and testimonial evidence is admissible.
(Moran, 1980)
The Best Evidence Rule (now original document
rule), applied to documentary evidence, operates as
a rule of exclusion, that is, secondary evidence
cannot be inceptively introduced as the original
writing itself must be produced in court, except in
the instances mentioned in Sec. 3. (Regalado, 2008)
UNIVERSITY OF SANTO TOMAS
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 Remedial Law
Q: What is the reason underlying the adoption of
the best evidence rule (now the original
document rule)? (1998 BAR)
A: There is a need to present to the court the exact
words of a writing where a slight variation of words
may mean a great difference in rights. It is also for
the prevention of fraud or mistake in the proof of
the contents of a writing.
Q: Police officers arrested Mr. Druggie in a buy-
bust operation and confiscated from him 10
sachets of shabu and several marked genuine
peso bills worth P5,000.00 used as the buy-bust
money during the buy-bust operation. At the
trial of Mr. Druggie for violation of R.A. No. 9165,
the Prosecution offered in evidence, among
others, photocopies of the confiscated marked
genuine peso bills. The photocopies were
offered to prove that Mr. Druggie had engaged at
the time of his arrest in the illegal selling of
dangerous drugs. Invoking the Best Evidence
Rule Atty. Maya Bang, the defense counsel,
objected to the admissibility of the photocopies
of the confiscated marked genuine peso
bills. Should the trial judge sustain the
objection of the defense counsel? Briefly explain
your answer. (2017 BAR)
A: NO. The best evidence rule (now the original
document rule) applies only to documentary
evidence, not to object or testimonial evidence. The
presentation at the trial of the "buy-bust money" is
not indispensable to the conviction of the accused
especially if the sale of dangerous drugs had been
adequately proved by the testimony of the police
officers. So long as the drug actually sold by the
accused had been submitted as an exhibit, the
failure to produce the marked money itself would
not constitute a fatal omission.
Q: Respondent Martinez is the registered owner
of the Pingol Property. Two mortgages were
constituted over this property – the first (PNB
Mortgage), and the second (DBP Mortgage).
Respondent agreed to constitute the DBP
Mortgage upon Clark’s request, and that, in
order to release the Pingol Property from the
PNP Mortgage, the Petitioner Spouses Tapayan
and Respondent agreed to utilize a portion of
604
the proceeds of the DBP Loan to settle the
remaining balance of the proceeds of the DBP
Loan to settle the remaining Respondent’s PNB
Loan (P65,320.55). Subsequently, the parties
executed a Deed of Undertaking in reference to
the DBP Mortgage that in the event of the
Petitioners could not pay the loan and
consequently, the property of the Respondent is
foreclosed and is not redeemed, the Petitioners
shall acknowledge as his indebtedness the
amount due to the DBP upon foreclosure or the
amount paid by the Respondent in paying the
loan, but in either case shall be deducted
therefrom the amount of P65,320.55 plus
interests and fees. The DBP Loan was not paid
when it fell due.
Petitioners assert that the RTC and CA erred in
ruling that the plain copy of the Deed of
Undertaking was admissible as proof of its
contents, in violation of the Best Evidence Rule
under Rule 130 of the Rules of Court. Also,
Petitioners insist that the Deed of Undertaking
is a falsity and should not be given credence. Are
the Petitioners correct?
A: NO. Petitioners waived their right to object to the
admission of the Deed of Undertaking on the basis of
the Best Evidence Rule (now Original Document
Rule). The Best Evidence Rule (now Original
Document Rule) requires that when the subject of
inquiry is the contents of the document, no evidence
is admissible other than the original document itself
except in the instances mentioned in Section 3, Rule
130 of the Revised Rules of Court. Nevertheless,
evidence not objected to is deemed admitted
and may be validly considered by the court in
arriving at its judgement. Courts are not
precluded to accept in evidence a mere
photocopy of a document when no objection was
raised when it was formally offered.
Petitioners failed to object to the admission of the
plain copy of the Deed of Undertaking at the time it
was formally offered in evidence before the RTC. In
fact, in their Reply, Petitioners admit that they only
raised this objection for the first time before the CA.
Having failed to timely raise their objection when
the Formal Offer of Evidence was filed in the RTC,
petitioners are deemed to have waived the same.
 Evidence
Hence, they are precluded from assailing the
probative value of the plain copy of the Deed of
Undertaking.
Petitioners failed to rebut the presumption of
regularity ascribed to the Deed of Undertaking as
a notarized public document.
The Deed of Undertaking became a public document
by virtue of its acknowledgement before a notary
public. Hence, it enjoys the presumption of
regularity, which can only be overcome by clear and
convincing evidence. While Petitioners vehemently
deny participation in the execution of the Deed of
Undertaking, they did not present any evidence to
support their claim that their signatures thereon
were forged. Hence, the presumption of regularity
ascribed to the Deed of Undertaking must be upheld.
(Sps. Tapayan v. Martinez, G.R. No. 207786, 30 Jan.
2017, J. Caguioa)
When Applicable
1. The original document of the writing is the
writing itself;
2. The contents of which is the subject of the
inquiry; and
3. The original document must be produced if
the purpose is to prove its contents. (Tan,
2019)
NOTE: When the truth of the document is in issue
and not the contents thereof, the original document
rule is not applicable. In such case, it is the hearsay
rule that will apply. (Riano, 2019)
Where the issue is the execution or existence of the
document or the circumstances surrounding its
execution, the original document does not apply and
testimonial evidence is admissible. (Arceo, Jr. v.
People, G.R. No. 142641, 17 July 2006)
Subject of Inquiry
When the original document rule comes into
operation, it is presumed that the subject of the
inquiry is the contents of the document, thus the
party offering the document must present the
original thereof and not any other secondary
evidence.
605
Collateral Facts Rule
A document or writing which is merely “collateral”
to the issue involved in the case on trial need not be
proved. Where the purpose of presenting a
document is not to prove its contents, but merely to
give coherence to, or to make intelligible the
testimony of a witness regarding a fact
contemporaneous to the writing, the original of the
document need not be presented.
Meaning of Original Document and Duplicate
An “original” of a document is either:
1. the document itself; or
2. any counterpart intended to have the same
effect by a person executive or issuing it.
NOTE: An original of a photograph includes the
negative or any print therefrom.
NOTE: If data is stored in a computer or similar
device, any printout or other output readable by
sight or other means, shown to reflect the data
accurately, is an “original.” This is considered as the
“Functional Equivalent” of the original under the
Rules on Electronic Evidence.
A “duplicate” is a counterpart produced by the
same impression as the original, or from the same
matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical
reproduction, or by other equivalent techniques
which accurately reproduce the original.
GR: A duplicate is admissible to the same extent as
an original.
XPN:
1. A genuine question is raised as to the
authenticity of the original; or
2. In the circumstances, it is unjust or inequitable
to admit the duplicate in lieu of the original.
(Sec. 4, Rule 130, ROC, as amended)
NOTE: Writings with identical contents made by
printing, mimeographing, lithography, and other
UNIVERSITY OF SANTO TOMAS
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 Remedial Law
similar methods executed at the same time are
considered as original document. Thus, each
newspaper sold in the stand is an original. (Riano,
2019)
Production of the original may be dispensed with if,
in the trial court’s discretion, the opponent (1) does
not dispute the contents of such document and (2)
no other useful purpose will be served by the
production. Secondary evidence of the contents of
the writing would be received in evidence if no
objection was made to its reception. (Estrada v.
Desierto, G.R. No. 146710-15, 02 Mar. 2001)
3. SECONDARY EVIDENCE
Evidence other than the original instrument or
document itself. It is the class of evidence that is
relevant to the fact in issue, it being first shown that
the primary evidence of the fact is not obtainable. It
performs the same functions as that of primary
evidence. (EDSA Shangri-La Hotel and Resort, Inc. v.
BF Corporation, G.R. Nos. 145842 & 145873, 27 June
2008)
NOTE: A party must first present to the court proof
of loss or other satisfactory explanation for the non-
production of the original instrument. When more
than one original copy exists, it must appear that all
of them have been lost, destroyed or cannot be
produced in court before secondary evidence can be
given. (Country Bankers Insurance Corp. v. Lagman,
G.R. No. 165487, 13 July 2011)
The non-production of the original document,
unless it falls under any of the exceptions in Sec. 3,
Rule 130, gives rise to the presumption of
suppression of evidence. (De Vera, et. Al. v. Aguilar,
et. al. G.R. No. 83377, 09 Feb. 1993)
Requisites before the Contents of the Original
Document may be proved by Secondary
Evidence (Laying the Basis/Laying the
Predicate) (2000 BAR)
The offeror must prove the following: (E-C-U)
1. The Execution or existence of the original
document;
2. The Cause of its unavailability; and
606
3. The Unavailability of the original is not due to
bad faith on his or her part. (Sec. 5, Rule 130,
ROC, as amended)
NOTE: Accordingly, the correct order of proof is as
follows: existence, execution, loss, and contents.
This order may be changed, if necessary, at the
sound discretion of the court. (Citybank, N.A.
MasterCard v. Teodoro, G.R. No. 150905, 23 Sept.
2003)
Due Execution and Authenticity of Private
Document
It may be proved by any of the following means:
1. By anyone who saw the document executed or
written;
2. By evidence of the genuineness of the signature
or handwriting of the maker; or
3. By other evidence showing its due execution
and authenticity. (Sec. 20, Rule 132, ROC, as
amended)
NOTE: Any other private document need only be
identified as that which it is claimed to be.
Q: Young Builders Corporation (YBC for brevity)
filed before the Regional Trial Court in Cebu City
(RTC) a complaint for collection of sum of money
against Benson Industries, Inc (BII). Among the
pieces of evidence presented were: 1. YBC's
Accomplishment Billing dated 18 May 1998
(Exhibit "B"/Exhibit "2"); 2. BII’s Letter dated 7
May 1998 (Exhibit "F"); and 3. The Certification
dated 15 November 1997 (Exhibit "E"). With
respect to YBC's Accomplishment Billing dated
18 May 1998 (Exhibit "B"/Exhibit "2"), YBC is of
the position that there is no longer the need to
prove the genuineness and due execution of the
Accomplishment Billing because it is an
actionable document that was attached to the
complaint and not specifically denied under
oath by BII. YBC argues that BII's denial in its
Answer was insufficient because it did not
specifically deny the genuineness and due
execution of the Accomplishment Billing. With
respect to BII's Letter dated 7 May 1998 (Exhibit
"F"), YBC claims that the CA erred in holding
inadmissible the letter dated 7 May 1998
 Evidence
(Ernesto Letter), allegedly written by Ernesto
Dacay, Sr. (Ernesto), who apologized to YBC for
BII's inability to fulfill its payment due to
financial constraints. YBC reasoned that the CA
should have given credence to the Ernesto
Letter because it is an admission against BII's
interest. With respect to The Certification dated
15 November 1997 (Exhibit "E"), YBC argues
that the CA should not have disregarded the
Certification dated 15 November 1997 (Mary
Certification), allegedly issued by BII's
President, Mary Dacay, affirming YBC's
successful completion of the subject building
even if YBC's witness, Yu, allegedly admitted in
his testimony that the subject building was not
completed. Decide whether those pieces of
evidence are admissible.
A: NO. With respect to YBC's Accomplishment
Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2"),
the complaint filed by YBC is an action for a sum of
money arising from its main contract with BII for
the construction of a building. YBC's cause of action
is primarily based on BII's alleged non-payment of
its outstanding debts to YBC arising from their main
contract, despite demand. If there was a written
building or construction contract that was executed
between BII and YBC, then that would be the
actionable document because its terms and
stipulations would spell out the rights and
obligations of the parties. However, no such
contract or agreement was attached to YBC's
Complaint.
With respect to BII 's Letter dated 7 May 1998
(Exhibit "F") and the Certification dated 15
November 1997 (Exhibit "E"), for the Ernesto Letter
to be given credence as an admission against BII's
interest, it should first be admissible as
documentary evidence. Like the Accomplishment
Billing, which is also a private document, the due
execution and authenticity of the Ernesto Letter
must be proved by YBC. As a prerequisite to the
admission in evidence of the Ernesto Letter, which
is private document, its identity and authenticity
must be properly laid and reasonably established.
This is mandated by Section 20, Rule 132 of the
Rules. Here, the records of the case show that the
Ernesto Letter was only entered into evidence but
was never actually identified in open court by YBC's
607
witness, Yu. The CA thus correctly ruled that the
Ernesto Letter is inadmissible in evidence in view of
YBC's failure to authenticate the same. No probative
value can be accorded to it.
With respect to The Certification dated 15
November 1997 (Exhibit "E"), The Court notes that
Exhibit "E" is a mere photocopy. Pursuant to Section
3, Rule 130 of the Rules or the Best Evidence Rule:
SEC. 3. Original document must be produced;
exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from them
is only the general result of the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office.
The records show that YBC did not invoke any of the
foregoing exceptions to the Best Evidence Rule to
justify the admission of a secondary evidence in lieu
of the original Mary Certification. Having been
admitted in violation of the Best Evidence Rule,
Exhibit "E" should have been excluded and not
accorded any probative value. (Young Builders Corp.
v. Benson Industries, Inc., GR No. 198998. 19 June
2019, J. Caguioa)
Intentional Destruction of the Original
Document
Intentional destruction of the originals by a party
who acted in good faith does not preclude the
introduction of secondary evidence of the contents
thereof. (Regalado, 2008)
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 Remedial Law
Proof of Loss or Destruction
It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, has
made sufficient examination in the places
where the document or papers of similar
character are usually kept by the person in
whose custody the document was and has been
unable to find it; or
3. Any person who has made any other
investigation which is sufficient to satisfy the
court that the document is indeed lost.
NOTE: A reasonable probability of its loss is
sufficient, and this may be shown by a bona fide and
diligent search, fruitlessly made, in places where it
is likely to be found. (Paylago v. Jarabe, G.R. No. L-
20046, 27 Mar. 1968)
All duplicates or counterparts of a lost or destroyed
document must be accounted for before using
copies thereof since all duplicates are parts of the
writing to be proved. (De Vera, et al. v. Aguilar, et al.,
G.R. No. 83377, 09 Feb. 1993)
While a marriage certificate is considered the
primary evidence of a marital union, it is not
regarded as the sole and exclusive evidence of
marriage. Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person’s
birth certificate may be recognized as competent
evidence of marriage between parents. (Vda. De
Avenido v. Avenido, G.R. No. 173540, 22 Jan. 2014)
Order of Presentation of Secondary Evidence
Upon proof of its execution and loss of the original
document, its contents may be proved by the
following, in the order stated:
1. By a copy of the original;
2. By recital of the contents of the document in
some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130,
ROC, as amended)
608
Definite Evidentiary Rule
Where the law specifically provides for the class and
quantum of secondary evidence to establish the
contents of a document, or bars secondary evidence
of a lost document, such requirement is controlling.
E.g., evidence of a lost notarial will should consist of
a testimony of at least two credible witnesses who
can clearly and distinctly establish its contents. (Sec.
6, Rule 76, ROC, as amended; Regalado, 2008)
Waiver of the Presentation or Offer of the
Original
The presentation or offer of the original may be
waived upon failure to object by the party against
whom the secondary evidence is offered when the
same was presented, as the secondary evidence
becomes primary evidence. But even if admitted as
primary evidence, admissibility of evidence should
not be confused with its probative value. (Heirs of
Teodoro De la Cruz v. CA, G.R. No. 117384, 21 Oct.
1998)
When Original Document is in Adverse party’s
Custody or Control
If the document is in the custody or under the
control of the adverse party, he or she must have
reasonable notice to produce it. If after such notice
and after satisfactory proof of its existence, he fails
to produce the document, secondary evidence may
be presented as in the case of its loss. (Sec. 6, Rule
130, ROC, as amended)
Requisites for Admissibility of Secondary
Evidence when the Original Document is in the
Custody or Control of the Adverse party
1. That the original exists;
2. That said document is under the custody or
control of the adverse party;
3. That the proponent of secondary evidence has
given the adverse party reasonable notice to
produce the original document; and
NOTE: No particular form of notice is required,
to be given to the adverse party, as long as it
fairly appraises the other party as to what
 Evidence
papers are desired. Even an oral demand in
open court for such production at a reasonable
time thereafter will suffice. Such notice must,
however, be given to the adverse party, or his
attorney, even if the document is in the actual
possession of a third person. (Regalado, 2008)
The notice may be in the form of a motion for
the production of the original or made in an
open court in the presence of the adverse party,
or via a subpoena duces tecum, provided that
the party in custody of the original has sufficient
time to produce the same. When such party has
the original of the writing and does not
voluntarily offer to produce it, secondary
evidence may be admitted. (Magdayao v. People
G.R. No. 152881, 17 Aug. 2004)
4. That the adverse party failed to produce the
original document despite the reasonable
notice. (Sec. 6, Rule 130, ROC, as amended)
NOTE: A justified refusal or failure of the
adverse party to produce the original document
will not give rise to the presumption of
suppression of evidence or create an
unfavorable inference against him. It only
authorizes the presentation of secondary
evidence. (Regalado, 2008)
The mere fact that the original of the writing is in the
custody or control of the party against whom it is
offered does not warrant the admission of
secondary evidence. The offeror must prove that he
has done all in his power to secure the best evidence
by giving notice to the said party to produce the
document. (Magdayao v. People, G.R. No. 152881, 17
Aug. 2004)
Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a
promissory note executed by the latter. During
the hearing, Paula testified that the original note
was with Lynette and the latter would not
surrender to Paula the original note which
Lynette kept in a place about one day's trip from
where she received the notice to produce the
note and despite such notice to produce the
same within 6 hours from receipt of such notice,
Lynette failed to do so. Paula presented a copy of
609
the note which was executed at the same time as
the original and with identical contents. Over
the objection of Lynette, can Paula present a
copy of the promissory note and have it
admitted as valid evidence in her favor? Why?
(2001 BAR)
A: YES. Although the failure of Lynette to produce
the original of the note is excusable since she was
not given reasonable notice, a requirement under
the Rules before secondary evidence may be
presented, the copy in possession of Paula is not
secondary evidence but a duplicate original because
it was executed at the same time as the original and
with identical contents. Hence, being an original, the
rule on secondary evidence need not be complied
with. (Sec. 6, Rule 130, ROC, as amended)
When the Original consists of Numerous
Accounts
When the contents of documents, records,
photographs, or numerous accounts are
voluminous and cannot be examined in court
without great loss of time, and the fact sought to be
established is only the general result of the whole,
the contents of such evidence may be presented in
the form of a chart, summary, or calculation. (Sec. 7,
Rule 130, ROC, as amended)
NOTE: A witness may be allowed to offer a
summary of a number of documents, or a summary
of the contents may be admitted if documents are so
voluminous and intricate as to make an examination
of all of them impracticable. They may also be
presented in the form of charts or calculations.
(Riano, 2019)
Q: In 2004, the Province of Isabela procured, by
direct contracting, 15,333 bottles of liquid
organic fertilizer. The Commission on Audit
found that the procurement was done without
open competitive bidding, and that the procured
items were overpriced. On 04 July 2011, the
Ombudsman filed a complaint against the public
officers involved in the subject transaction,
including Javier and Tumamao, who were the
Provincial Accountant and Provincial
Agriculturist of Isabela, respectively. After
almost five years, or on 19 September 2016, the
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Special Panel on Fertilizer Fund Scam of the
Ombudsman issued its Resolution finding
probable cause to indict Javier and Tumamao
for violation of Section 3(e), of R.A. No. 3019
(R.A. No. 3019). Thereafter, on 04 October 2017,
an Information dated 14 June, 2017 was filed
against Javier and Tumamao for violation of
Section 3(e) of R.A. No. 3019. Javier and
Tumamao filed a Motion to Quash on 24
November 2017, arguing that the period
constituting five years and four months from the
filing of the complaint to the approval of the
resolution finding probable cause constituted
delay which violated their right to speedy
disposition of cases. Is the contention of Javier
and Tumamao correct?
A: YES. The right to speedy disposition of cases of
both Javier and Tumamao were violated by the
Ombudsman's delay in concluding the preliminary
investigation. For purposes of computing the length
of delay in the present case, the Cagang guidelines
will be followed, and the case against Javier and
Tumamao would be deemed initiated only upon the
filing of the complaint, or on 27 April 2011. Javier
and Tumamao were given the opportunity to be
heard and were therefore able to file their counter-
affidavits on 15 November 2011 and 22 November
2011, respectively. After these dates, it appears
from the record that the case had become dormant
until 05 December 2016 when the Ombudsman
approved the resolution finding probable cause
against Javier and Tumamao.
The prosecution must be able to prove: First, that it
followed the prescribed procedure in the conduct of
preliminary investigation and in the prosecution of
the case; Second, that the complexity of the issues
and the volume of evidence made the delay
inevitable; and third, that no prejudice was suffered
by the accused as a result of the delay. In this case,
the prosecution justified the delay of five years by
merely claiming that the case had voluminous
records, without offering any proof as to the said
assertion or at least specifying how voluminous
such records were. The prosecution basically relied
on such unsubstantiated claim and rested on the
Court's recognition in a previous case that there is a
steady stream of cases that reaches their office.
610
Another requisite to invoke the right to speedy
disposition of cases as provided for in Cagang is the
timely assertion of the right. Here, the Court holds
that Javier and Tumamao's acts, or their inaction,
did not amount to acquiescence. While it is true that
the records are bereft of any indication that Javier
and/or Tumamao "followed-up" on the resolution
of their case, the same could not be construed to
mean that they acquiesced to the delay of five years.
(Pete Gerald L. Javier and Danilo B. Tumamao v.
Sandiganbayan and People of the Philippines, G.R. No.
237997, 10 June 2020, J. Caguioa)
Requisites for the Admissibility of Secondary
Evidence when the Original consists of
Numerous Accounts
1. The original must consist of numerous accounts
or other documents;
2. They cannot be examined in court without great
loss of time or inconvenient inconvenience
(Riguera, 2020 citing Republic v. Mupas, G.R. No.
181892, 08 Sept. 2015);
NOTE: The court may admit a summary of
voluminous original documents, in lieu of the
original documents, if the party has shown that
the underlying writings are numerous and that
an in-court examination of these documents
would be inconvenient. The rule does away
with item-by-item court identification and
authentication of voluminous exhibits which
would only be burdensome and tedious for the
parties and the court.
However, as a condition precedent to the
admission of a summary of numerous
documents, the proponent must lay a proper
foundation for the admission of the original
documents on which the summary is based. The
proponent must prove that the source
documents being summarized are also
admissible if presented in court. In concrete
terms, the source must be shown to be original,
and not secondary. (Ibid.)
3. The fact sought to be established from them is
only the general result of the whole. (Sec. 7, Rule
130, ROC, as amended)
 Evidence

NOTE: Voluminous records must be made Production of Documents under Sec. 9, Rule 130
accessible to the adverse party so that the vs. Rule 27 (Modes of Discovery)
correctness of the summary of the voluminous
records may be tested on cross-examination. SEC. 9, RULE 130 RULE 27
(Compaña Maritima v. Allied Free Workers Union, et Procured by mere The production of
al., G.R. No. L-28999, 24 May 1977) notice to the adverse document is in the
party, which is a nature of a mode of
When Original Document is a Public Record condition precedent discovery and can be
(2000 BAR) for the subsequent sought only by proper
introduction of motion in the trial
When the original of a document is in the custody of secondary evidence by court and is permitted
public officer or is recorded in a public office, its the proponent. only upon good cause
contents may be proved by a certified copy issued shown.
by the public officer in custody thereof. (Sec. 8, Rule Contemplates a
130, ROC, as amended) situation wherein the
Presupposes that the
document is either
document to be
Proof of the Contents if the Original Document is assumed to be
produced is intended
a Public Record favorable to the party
as evidence for the
in possession thereof
proponent who is
The contents may be proved by: or that the party
presumed to have
seeking its production
knowledge of its
1. A certified copy issued by the public officer in is not sufficiently
contents.
custody thereof (Sec. 8, Rule 130, ROC, as informed of the
amended); and contents of the same.

2. Official publication. (Herrera, 1999) 4. Parol Evidence Rule

NOTE: Public records are generally not to be Meaning of the Rule

removed from the places where they are recorded
and kept. Hence, proof of the contents of a document
which forms part of a public record may be done by
secondary evidence.
When a document produced is not offered in
evidence
If the party who calls for the production of a
document does not offer the same in evidence, no
unfavorable inference may be drawn from such
failure. This is because a party who calls for the
production of a document is not required to offer it.
(Sec. 9, Rule 130, ROC, as amended)
When the terms of an agreement have been reduced
to writing, it is considered as containing all the
terms agreed upon and there can be, as between the
parties and their successors-in-interest, no
evidence of such terms other than the contents of
the written agreement. (Sec. 10, Rule 130, ROC, as
amended)
NOTE: Among the evidentiary rules, it is the parol
evidence rule that has direct application to the law
on contracts. The rule applies only to contracts
which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to oral
contracts. (Riano, 2019)

Parol evidence

It is any evidence aliunde (extrinsic evidence) which

is intended or tends to vary or contradict a complete
and enforceable agreement embodied in a

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document (Regalado, 2008). It may refer to
testimonial, real or documentary evidence.
NOTE: Parol evidence is evidence outside of the
agreement of the parties while the parol evidence
rule prevents the presentation of such parol
evidence.
Rationale for the adoption of the Parol Evidence
Rule (2009 BAR)
When the parties have reduced their agreement in
writing, it is presumed that they made such writing
as the repository of all terms of the agreement, and
whatever is not found in the said writing must be
considered as waived and abandoned. (Tan, 2010)
Condition Precedent and a Condition
Subsequent established by Parol Evidence
Condition precedent may be established by parol
evidence because there is no varying of the terms of
the written contract by extrinsic agreement. There
is no contract in existence so there is nothing in
which to apply the excluding rule. Meanwhile,
conditions subsequent may not be established by
parol evidence since a written contract already
exists.
NOTE: The present rule now requires that the
admissibility of subsequent agreements be
conditioned upon its being put in issue in a verified
pleading. (Sec. 10, Rule 130, ROC, as amended)
Requisites for the Application of the Rule
1. There must be a valid contract;
2. The terms of the agreement must be reduced to
writing. The term “agreement” includes wills;
3. The dispute is between the parties or their
successors-in-interest; and
4. There is dispute as to the terms of the
agreement.
Parties should be Privies to the Contract
The parol evidence rule does not apply, and may not
be properly invoked, by either party to the litigation
against the other, where at least one party to the suit
is not a party or privy to the written instrument in
612
question and does not base a claim or assert a right
originating in the instrument of the relation
established thereby. Thus, if one of the parties to the
case is a complete stranger to the contract involved
therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of
the writing. (Lechugas v. CA, et al., G.R. Nos. L-39972
& L-40300, 06 Aug. 1986)
Application of the Rule to Wills
The parol evidence rule applies to agreements, i.e.,
contractual obligations. However, the term
“agreement” includes wills. Therefore, there can be
no evidence of the terms of the will other than the
contents of the will itself. (Riano, 2019)
NOTE: While parol evidence applies to wills, an
express trust concerning an immovable or any
interest therein may not be proved by parol
evidence. (Art. 1443, NCC)
Q: IPAMS is a corporation recruiting nurses for
work deployment. It entered a memorandum of
agreement (MOA) with an insurer, Country
Bankers, for surety bonds to be provided to the
recruited nurses and to secure the latter's
obligations in the immigration and deployment
processes. The MOA stated that IPAMS needs to
present two demand letters, an affidavit stating
reason of any violation, a statement of account,
and the transmittal claim letter, in order to
claim on the surety bonds.
Country Bankers initially paid the claims of
IPAMS, but later began neglecting their
payment. Country Bankers later on asked for
official receipts, which could not be produced by
IPAMS. Since the claims remained unpaid, the
IPAMS sought the intervention of the Insurance
Commission (IC). The IC ruled that Country
Bankers is liable to settle the subject claim, and
if it does not, the IC will take disciplinary action.
The Department of Finance and the Office of the
President later affirmed this decision. However,
the Court of Appeals reversed.
In the present petition before the Supreme
Court (SC), IPAMS prays for the reversal of the
CA's decision, as well as the
suspension/revocation of the license of Country
 Evidence

Bankers, the awarding of the total amount of its
claim, as well as damages. Should the SC grant
the claim for suspension of Country Bankers'
license, the awarding of IPAMS' claim and
damages?
the true intent of the parties. In this case, parol
evidence then becomes competent and admissible
to prove that the instrument was in truth and in fact
given merely as a security for the repayment of a
loan. (Madrigal v. CA, G.R. No. 142944. 15 Apr. 2005)

A: NO. The prayer of IPAMS for the total amount of Kinds of Ambiguities
its claims as well as damages could be granted, since
the orders of the IC in question were issued in its INTRINSIC EXTRINSIC
INTERMEDIATE
capacity as a regulator and not as an adjudicator of OR LATENT OR PATENT
claims. This being the case, jurisprudence states On its face, Ambiguity is
that the matter should be referred back to the IC so the writing apparent on
that it could determine the remaining amount and appears clear the face of Ambiguity
extent of the liability that should be settled by and the writing consists in the
respondent Country Bankers in order to avoid the unambiguous and requires use of equivocal
IC's disciplinary action. (Industrial Personnel and but there are that words
Management Services, Inc. v. Country Bankers collateral something susceptible of
Insurance Corporation, G.R. No. 194126, 17 Oct. 2018, matters be added to two or more
J. Caguioa) which make make the interpretation.
the meaning meaning
Exceptions to Parol Evidence Rule uncertain. certain.
Cannot be
A party may present evidence to modify, explain or cured by
add to the terms of the written agreement if he or evidence
she puts in issue in a verified pleading the following: aliunde
(F-I-V-E) because it is
only
1. Failure of the written agreement to express the intrinsic
Curable by Curable by
true intent of the parties thereto (2001 BAR); ambiguity
evidence evidence
not extrinsic
aliunde. aliunde.
2. Intrinsic ambiguity, mistake or imperfection in ambiguity
the written agreement; which serves
as an
3. Validity of the written agreement; or exception to
the parol
4. Existence of other terms agreed to by the evidence
parties or their successors in interest after the rule.
execution of the written agreement. (Sec. 10, Where the Where the
Rule 130, ROC, as amended) document contract
refers to a refers to an
Mistake particular unidentified
Use of terms
person or grantee or
such as “dollars”
The mistake contemplated is one which is a mistake thing but does not
“tons” and
of fact mutual to both parties. (Gurango vs. IAC, G.R. there are two particularly
“ounces.”
No. 75290, 04 Nov. 1992) or more identify the
persons subject
Even when a document appears on its face to be a having the matter
sale, the owner of the property may prove that the same name thereof such
contract is really a loan with mortgage by raising as or two or that, in
an issue the fact that the document does not express

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more things either case executed at the same time as the original and
to which the the text does with identical contents. Over the objection of
description not disclose Lynette, will Paula be allowed to testify as to the
in the writing who are or true agreement or contents of the promissory
may apply. what is note? Why? (2001 BAR)
referred to.
A: YES. As an exception to the parol evidence rule, a
Failure of the Written Agreement to Express party may present evidence to modify, explain or
True Intent of the Parties add to the terms of the written agreement if he puts
in issue in his pleading the failure of the written
Parol evidence may be admitted to show the true agreement to express the true intent and agreement
consideration of the contract, or the want or of the parties thereto. Here, Paula has alleged in her
illegality thereof, or the incapacity of the parties, or complaint that the promissory note does not
the fact that the contract was fictitious or absolutely express the true intent and agreement of the parties.
simulated, or that there was fraud in inducement The parol evidence rule may be admitted to show
(Regalado, 2008). Despite the meeting of the minds, the true consideration of the contract. (Sec. 10, Rule
the true agreement of the parties is not reflected in 130, ROC, as amended)
the instrument. (Riano, 2019)
Distinctions between the Original Document
NOTE: In an action for reformation of instrument Rule and the Parol Evidence Rule
under Art. 1359 of the Civil Code of the Philippines,
the plaintiff may introduce parol evidence to show ORIGINAL DOCUMENT PAROL EVIDENCE
the real intention of the parties. An action for RULE RULE
reformation presupposes that a meeting of the The original document
minds exists between the parties, i.e., there is a is not available or there Presupposes that the
contract between them although the instrument is a dispute as to original document is
that evidences the contract does not reflect the true whether said writing is available in court
agreement of the parties by reason of, for instance, original
fraud or mistake. (Riano, 2019) Prohibits the
introduction of
Q: Paula filed a complaint against Lynette for the secondary evidence in Prohibits the varying of
recovery of a sum of money based on a lieu of the original the terms of a written
promissory note executed by the latter. Paula document regardless of agreement
alleged in her complaint that although the whether it varies the
promissory note says that it is payable within contents of the original
120 days, the truth is that the note is payable Applies only to written
Applies to all kinds of
immediately after 90 days but that if Paula is agreements (contracts)
writings
willing, she may, upon request of Lynette give and wills
the latter up to 120 days to pay the note. During Can be invoked only
the hearing, Paula testified that the truth is that Can be invoked by any when the controversy is
the agreement between her and Lynette is for party to an action between the parties to
the latter to pay immediately after 90 days’ time. whether he has the written agreement,
Also, since the original note was with Lynette participated in the their privies, or any
and the latter would not surrender to Paula the writing involved party affected thereby
original note which Lynette kept in a place about like a cestui que trust
one day's trip from where she received the
notice to produce the note and in spite of such
notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so.
Paula presented a copy of the note which was

614
 Evidence
Waiver of the Parol Evidence Rule
Failure to invoke the benefits of the rule constitutes
as waiver. Inadmissible evidence may be rendered
admissible by failure to object. (Riano, 2019)
Probative Value
Even if the parol evidence is admitted, it does not
mean that the court would give probative value to
the parol evidence. Admissibility is not the
equivalent of probative value or credibility. (Riano,
2019)
Considering the agreement’s mistake, imperfection
or supposed failure to express the parties’ true
intent was successfully put in issue in the complaint,
this case falls under the exceptions provided by Sec
9, Rule 130. Accordingly, the testimonial and
documentary parol evidence sought to be
introduced, which attest to these supposed flaws
and what they aver to have been the parties’ true
intent, may be admitted and considered. However,
this admission and availability for consideration is
no guarantee of how exactly the parol evidence
adduced shall be appreciated by the court. They do
not guarantee the probative value, if any, that shall
be attached to them. (Paras v. Kimwa Construction
and Development Corp., G.R. No. 171601, 08 Apr.
2015)
5. INTERPRETATION OF DOCUMENTS
How interpreted
The language of a writing is to be interpreted
according to the legal meaning it bears in the place
of its execution, unless the parties intended
otherwise. (Sec. 11, Rule 130, ROC, as amended)
When there are Several Provisions or
Particulars
In the construction of an instrument, where there
are several provisions or particulars, such a
construction is, if possible, to be adopted as will give
effect to all. (Sec. 12, Rule 130, ROC, as amended)
615
Conflict between General and Particular
Provision
When a general and a particular provision are
inconsistent, the following rules shall be followed:
1. The particular provision is paramount to the
general;
2. A particular intent will control a general one
that is inconsistent with it. (Sec. 13, Rule 130,
ROC, as amended)
Interpretation according to Circumstances
The proper construction of an instrument according
to the circumstances shall be as follows:
a. The circumstances under which it was made,
including the situation of the subject thereof
and of the parties to it, may be shown;
b. Such circumstances must be shown so that the
judge may be placed in the position of those
whose language he or she is to interpret. (Sec.
14, Rule 130, ROC, as amended)
Presumption on Terms of Writing
The terms of a writing shall be interpreted as
follows:
1. It shall be presumed to have been used in their
primary and general acceptation;
2. Evidence is admissible to show that they have a
local, technical, or otherwise peculiar
signification; and
3. Evidence is admissible to show that it was so
used and understood in the particular instance,
in which case the agreement must be construed
accordingly. (Sec. 15, Rule 130, ROC, as
amended)
Conflict between Written and Printed
When an instrument consists partly of written
words and partly of a printed form, and the two are
inconsistent, the written controls the printed form.
(Sec. 16, Rule 130, ROC, as amended)
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When the Character of Writing is Difficult to
Decipher
When the characters in which an instrument is
written are difficult to be deciphered, or the
language is not understood by the court, it can be
proved by evidence of:
1. Persons skilled in deciphering the characters;
or
2. Those who understand the language, is
admissible to declare the characters or the
meaning of the language. (Sec. 17, Rule 130, ROC,
as amended)
Q: What is the rule in case the terms of an
agreement admit of two (2) interpretations?
A: When the terms of an agreement have been
intended in a different sense by the different parties
to it, it shall be construed as follows, to wit:
1. That sense is to prevail against either party in
which he supposed the other understood it; and
2. When different constructions of a provision are
otherwise equally proper, that is to be taken which
is the most favorable to the party in whose favor the
provision was made. (Sec. 18, Rule 130, ROC, as
amended)
E. TESTIMONIAL EVIDENCE
(RULE 130, C)
Testimonial or oral evidence is evidence elicited
from the mouth of a witness. It is sometimes called
viva voce evidence which literally means “living
voice” or by word of mouth. In this kind of evidence,
a human being (witness) is called to the stand, is
asked questions, and answers the question asked of
him. (Riano, 2019)
616
1. QUALIFICATION OF WITNESSES
Who may be a witness
A person may be a witness if he or she:
1. Can perceive;
2. Can make known his perceptions to others (Sec.
21, Rule 130, ROC, as amended);
3. Must take either an oath or an affirmation; and
4. Must not possess any of the disqualifications
imposed by law or the rules. (Riano, 2019)
Factors that do not affect the competency of a
witness
1. Religious belief;
2. Political belief;
3. Interest in the outcome of the case; or
4. Conviction of a crime, unless otherwise
provided by law. (Sec. 21, Rule 130, ROC, as
amended)
Related jurisprudence
There is no provision in the Rules disqualifying
parties declared in default from taking the witness
stand for non-disqualified parties. (Cavili v.
Florendo, G.R. No. 73039, 09 Oct. 1987)
It is axiomatic that truth is established not by the
number of witnesses but by the quality of their
testimonies. The testimony of a single witness, if
positive and credible, is sufficient to support a
conviction even in a charge of murder.
The number of witnesses does not determine the
outcome of the case. A positive identification will
prevail over the defense of alibi, the latter being
considered as a weaker defense since it can be easily
fabricated. (People v. Gani, G.R. No. 195523, 05 June
2013)
Drug abuse will not render a person incompetent to
testify. Drug abuse becomes relevant only if the
witness was under the influence of drugs at the time
he is testifying. (Riano, 2019) (2011 BAR)
The relationship of a witness with a party does not
ipso facto render him a biased witness in a criminal
 Evidence

case and likewise in a civil case. (Northwest Airlines produced for examination in court or at the taking
v. Chiong, G.R. No. 155550, 31 Jan. 2008) of their depositions. (Regalado, 2008)

Inconsistencies in the testimonies of prosecution Burden of Proof

witnesses that do not relate to the elements of the
offense are too inconsequential to warrant a The burden is upon the party objecting to the
reversal of the trial court’s judgment of conviction. competency of a witness to establish the ground of
Also, the defenses of denial and frame-up must be incompetency.
substantiated with clear and convincing evidence;
otherwise, same cannot prevail over the positive Competency vs. Credibility of a Witness
and credible testimonies of the prosecution
witnesses. (Aurelio v. People, G.R. No. 174980, 31 COMPETENCY CREDIBILITY
Aug. 2011) OF WITNESS OF WITNESS
Refers to the basic Refers to the
Presumption of Competency of a Witness qualifications of a believability of a
witness. witness.
GR: A person who takes the witness stand, is It is a matter of law or a
presumed to be qualified to testify. A party who matter of rule.
desires to question the competence of a witness Refers to the weight
must do so by making an objection as soon as the It also includes the and trustworthiness or
facts tending to show incompetency are apparent. absence of any of the reliability of the
(Jones on Evidence, Vol. 3, Sec. 796) disqualifications testimony.
imposed upon a
A prospective witness must show that he has the witness.
following abilities:
GR: Discrepancies between the statements of the
1. To observe – The testimonial quality of affiant in his affidavit and those made by him or her
perception; on the witness stand do not necessarily discredit
2. To remember – The testimonial quality of him or her because it is a matter of judicial
memory; experience that an affidavit, being taken ex parte, is
3. To relate – The testimonial quality of narration; almost always incomplete and often inaccurate.
and
4. To recognize a duty to tell the truth – The XPN: The credibility of witnesses will be impaired
testimonial quality of sincerity. (Herrera, 1999) if:

XPNs: There is prima facie evidence of 1. The omission in the affidavit refers to a very
incompetency in the following: important detail of the incident that one
relating the incident as an eyewitness would
1. The fact that a person has been recently found not be expected to fail to mention; or
of unsound mind by a court of competent
jurisdiction; or 2. When the narration in the sworn statement
2. That one is an inmate of an asylum. (Torres v. substantially contradicts the testimony in court.
Lopez, 48 Phil. 772)
The point of inquiry is whether the omission is
Time when the Witness must Possess the important or substantial. (People v. Calegan, G.R.
Qualifications No. 93846, 30 June 1994)

The qualifications and disqualifications of witnesses

are determined as of the time said witnesses are

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Credibility of a Witness witnesses themselves and observed their

deportment during trial. Here, there is nothing from
A testimony must not only come from a credible the records that would impel this Court to deviate
witness, but must be credible in itself, tested by from the findings and conclusions of the trial court
human experience, observation, common as affirmed by the CA. (People v. Ending G.R. No.
knowledge, and accepted conduct that has evolved 183827, 12 Nov. 2012)
through the years. (People v. Mirandilla Jr., G.R. No.
186417, 21 July 2011) Disqualification of Witnesses

NOTE: Mental unsoundness of the witness which
occurred at the time of taking his testimony, affects
only his credibility. Nevertheless, as long as the
witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions
propounded, she is a competent witness even if she
is feeble-minded or is a mental retardate or is a
schizophrenic. (People v. De Jesus, G.R. No. L-39087,
27 Apr. 1984)
Findings on the Credibility of a Witness
GR: The determination of credibility of witnesses is
properly within the domain of the trial court as it is
in the best position to observe their demeanor and
bodily movements. The findings of the trial court
with respect to the credibility of witnesses and their
testimonies are entitled to great respect, and even
finality. (Llanto v. Alzona, G.R. No. 150730, 31 Jan.
2005)
1. Disqualification by reason of marriage or the
Marital Disqualification Rule (Sec. 23, Rule 130,
ROC, as amended);
2. Disqualification by reason of privileged
communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications
made in official confidence. (Sec. 24, Rule
130, ROC, as amended)
NOTE: The qualifications and disqualifications of
witnesses are determined as of the time they are
produced for examination in court or at the taking
of the depositions. Blood relationship does not
disqualify a witness. (Bernardo, 2008)

XPNs: Absolute Disqualification vs. Relative

1. The lower court has reached conclusions that Disqualification
are clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances ABSOLUTE RELATIVE
of weight and influence which, if considered, DISQUALIFICATION DISQUALIFICATION
would affect the result of the case. (People v. The proposed witness
Dalag, G.R. No. 129895, 30 Apr. 2003) is prohibited to testify
only on certain matters
NOTE: It is a jurisprudentially conceded rule that it The proposed witness specified under Secs.
is against human nature for a young girl to fabricate is prohibited to take 23 and 24 (now only
a story that would expose herself as well as her the witness stand. Sec. 24), Rule 130 due
family to a lifetime of shame, especially when her (Herrera, 1999) to interest or
charge could mean the death or lifetime relationship, or to
imprisonment of her own father. "AAA" was without privileges of other
doubt telling the truth when she declared that her parties. (Ibid.)
father raped her on three separate occasions. The Disqualification by
Disqualification by
attempt to discredit the testimony of "AAA" by the reason of privileged
reason of marriage.
accused deserves no merit. When credibility is in communication. (Sec.
(Sec. 23, Rule 130, ROC,
issue, the Court generally defers to the findings of 24, Rule 130, ROC, as
as amended)
the trial court considering that it was in a better amended)
position to decide the question, having heard the

618
 Evidence
Conviction of a Crime as a Ground for
Disqualification
GR: Conviction of a crime is not a ground for
disqualification as a witness. (Sec. 21, Rule 130, ROC,
as amended)
XPNs: Otherwise provided by law, such as the
following:
1. Those who have been convicted of falsification
of a document, perjury or false testimony are
prohibited from being witnesses to a will (Art.
821, NCC);
2. Those who have been convicted of an offense
involving moral turpitude cannot be discharged
to become a State witness (Sec. 17, Rule 119,
ROC, as amended); and
3. Those who fall under the disqualification
provided under Secs. 23 and 24, Rule 130.
Disqualification by Reason of Marriage (Marital
Disqualification/Spousal Immunity Rule)
During their marriage, the husband or the wife
cannot testify against the other without the consent
of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s
direct descendants or ascendants. (Sec. 23, Rule 130,
ROC, as amended)
Rationale for the Disqualification
a. There is identity of interests between husband
and wife;
b. There is a consequent danger of perjury if one
were to testify for or against the other;
c. The policy of the law is to guard the security and
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent
domestic disunion and unhappiness; and
d. Where there is want of domestic tranquility,
there is danger of punishing one spouse
through the hostile testimony of the other.
(Alvarez v. Ramirez, G.R. No. 143439, 14 Oct.
2005)
619
Requisites for the Applicability of Spousal
Immunity
1. That the spouse for or against whom the
testimony of the other is offered is a party to the
case;
2. That the spouses are legally married (valid until
annulled);
3. That the testimony is offered during the
existence of the marriage; and
4. That the case is not by one against the other.
(Herrera, 1999)
Exceptions to Spousal Immunity
1. Consent is given by the party-spouse;
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one
against the other or the latter’s direct
descendants or ascendants (Sec. 23, Rule 130,
ROC, as amended);
4. Where the testimony was made after the
dissolution of the marriage (Riano, 2019); or
5. Where the spouse-party fails to raise the
disqualification, it is deemed a waiver.
Waiver of Spousal Immunity
Objections to the competency of a husband or wife
to testify in a criminal prosecution against the other
may be waived as in the case of the other witnesses
generally. Thus, the accused waives his or her
privilege by calling the other spouse as a witness for
him or her. It is also true that objection to the
spouse's competency must be made when he or she
is first offered as witness, and that the
incompetency may be waived by the failure of the
accused to make timely objection to the admission
of the spouse's testimony, although knowing of such
incompetency, and the testimony admitted. (People
v. Francisco, 78 Phil. 694, citing 3 Wharton's Criminal
Evidence, 11th Ed., Section 1205, pp. 2060-2061)
Extent of Prohibition
The prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in
favor of the spouse. It also extends to both criminal
and civil cases (Riano, 2019), and not only consists
of utterances but also the production of documents.
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
(Riano, 2019, citing State v. Bramlet, 114 S. C. 389,
103 S.E. 755)
Who can claim Spousal Immunity
The privilege to object may be claimed only by the
spouse-party and not the other spouse who is
offered as a witness. (Herrera, 1999, citing Ortiz vs.
Arambulo, 8 Phil. 98)
Testimony where Spouse is Accused with Others
The spouse could testify in a murder case against
the other co-accused who were jointly tried with the
accused-spouse. This testimony cannot, however,
be used against accused-spouse directly or through
the guise of taking judicial notice of the proceedings
in the murder case without violating the marital
disqualification rule, if the testimony is properly
objected. (People v. Quidato, Jr., G.R. No. 117401, 01
Oct. 1998)
Marrying the Witness
An accused can effectively “seal the lips” of a witness
by marrying the witness. As long as a valid marriage
is in existence at the time of the trial, the witness-
spouse cannot be compelled to testify –even though
the marriage was entered into for the express
purpose of suppressing the testimony. (Herrera,
1999)
Testimony by the Estranged Spouse
Q: Ivy was estranged from her husband Bob for
more than a year due to Bob’s suspicion that she
was having an affair with Jeff, their neighbor. Ivy
was temporarily living with her sister in Pasig
City. For unknown reasons, the house of Ivy’s
sister was burned, killing the latter. Ivy
survived. Ivy saw her husband in the vicinity
during the incident. Later, Bob was charged with
arson in an Information filed with the RTC, Pasig
City. During the trial, the prosecutor called Ivy to
the witness stand and offered her testimony to
prove that her husband committed arson. Can
Ivy testify over the objection of her husband on
the ground of marital privilege? (2006, 2013
BAR)
620
A: YES. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and tranquility
which may be disturbed, the marital disqualification
no longer applies.
The act of Bob in setting fire to the house of his
sister-in-law, knowing fully well that his wife was
there, is an act totally alien to the harmony and
confidences of marital relations which the
disqualification primarily seeks to protect. The
criminal act complained of had the effect of directly
and vitally impairing the conjugal relation. (Alvarez
v. Ramirez, G.R. No. 143439, 14 Oct. 2005)
Q: Alex and Bianca are legally married. Alex is
charged in court with the crime of serious
physical injuries committed against Carding,
son of Bianca and stepson of Alex. Bianca
witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called
Bianca to the witness stand and offered her
testimony as an eyewitness. Counsel for Alex
objected on the ground of the marital
disqualification rule under the Rules of Court.
a. Is the objection valid?
b. Will your answer be the same if Bianca’s
testimony is offered in a civil case for
recovery of personal property filed by
Carding against Alex? (2000, 2004 BAR)
A:
a. NO. While neither the husband nor the wife
may testify against each other without the
consent of the affected spouse, one exception is
if the testimony of the spouse is in a criminal
case for a crime committed by one against the
other or the latter’s direct descendants or
ascendants. (Sec. 23, Rule 130, ROC, as amended)
Here, Carding is the direct descendant of
Bianca, the wife of Alex. Hence, the testimony of
Bianca falls under the exception to the marital
disqualification rule.
b. NO. The marital disqualification rule applies
this time. One of the exceptions to the marital
disqualification rule is when the testimony is
given in a civil case by one spouse against the
 Evidence

other. Here, the case involves a case by Carding maintenance of the sacred institution of marriage.
for the recovery of personal property against (Herrera, 1999)
Bianca’s spouse Alex.
Requisites for the Application of Marital
2. TESTIMONIAL PRIVILEGE Privilege

Scope of Disqualification by reason of Privileged 1. There must be a valid marriage between the
Communication husband and wife;
2. There is a communication received in
The disqualification by reason of privileged confidence by one from the other;
communication applies to both civil and criminal 3. The confidential communication was received
cases except doctor-patient privilege, which is during the marriage (Riano, 2019); and
applicable only in civil cases. Unless waived, the 4. The spouse against whom such evidence is
disqualification under Sec. 24, Rule 130 remains being offered has not given his or her consent to
even after the various relationships therein have such testimony. (Regalado, 2008)
ceased to exist.
Cases when Marital Privilege is NOT Applicable
Who may assert the Privilege
A. In a civil case by one against the other;
The holder of the privilege, authorized persons and B. In a criminal case for a crime committed by one
persons to whom privileged communication were against the other or the latter’s direct
made may assert the privilege. (Herrera, 1999) descendants or ascendants (Sec. 24[a], Rule
130) (Sec. 24(a), Rule 130, ROC, as amended); or
Rule on Third Parties C. Information acquired by a spouse before the
marriage even if received confidentially will not
The communication shall remain privileged, even in fall squarely within the privilege. (Riano, 2019)
the hands of a third person who may have obtained
the information, provided that the original parties Marital Disqualification vs. Marital Privilege
to the communication took reasonable precaution
to protect its confidentiality. (Sec. 24, Rule 130, ROC, DISQUALIFICATION
DISQUALIFICATION
as amended) BY REASON OF
BY REASON OF
MARITAL
MARRIAGE
MARITAL/SPOUSAL PRIVILEGE PRIVILEGE
(SEC. 23)
(Sec. 24(A), Rule 130) (SEC. 24(A))
When can be invoked
The husband or the wife, during or after the
Can be invoked only if Can be claimed whether
marriage, cannot be examined without the consent
one of the spouses is a the other spouse is a
of the other as to any communication received in
party to the action. party to the action.
confidence by one from the other during the
marriage except in a civil case by one against the Coverage
other, or in a criminal case for a crime committed by Includes facts,
Only to confidential
one against the other or the latter's direct occurrences or
information received
descendants or ascendants. (Sec. 24(a), Rule 130, information even prior
during the marriage.
ROC, as amended) to the marriage.
Duration
Purpose of Marital Privilege Applies only if the
Can be claimed even
marriage is existing at
The society has a deeply rooted interest in the after the marriage has
the time the testimony
preservation of peace in families and in the been dissolved.
is offered.

621 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law

Limitations this time on the ground of marital privilege

Constitutes a total Applies only to rule under Sec. 24, Rule 130?
prohibition against confidential c. Suppose the information received by B was
any testimony for or communications communicated to A during their marriage,
against the spouse of between the spouses. can A validly object to the testimony of B if it
the witness. (Regalado, 2008) was offered after the dissolution of their
The spouse affected by marriage on the ground of marital
the disclosure of the disqualification rule under Sec. 23 Rule 130?
information or
testimony may object A:
Can no longer be even after the a. YES. Irrespective of the fact that B was
invoked once the dissolution of the informed of the killing before her marriage to A,
marriage is dissolved. marriage. (Riano, 2019) still, the testimony was offered during their
marriage, which brings it into the ambit of the
NOTE: It is not affected marital disqualification rule under Sec. 23, Rule
by the death of the 130.
other spouse.
In both cases, it is essential that the marriage be b. NO. The testimony even if confidential was not
valid in order to claim such privilege. communicated to B during the time of marriage,
but after the marriage.
Other Items of Communication Overheard or in
Presence of Third Parties c. NO. He can only object based on the marital
disqualification rule if the testimony was
GR: Third persons who, without the knowledge of offered during their marriage and not to
the spouses, overheard the communication are not testimony offered after the dissolution of the
disqualified to testify. marriage. The proper objection must be based
on marital privilege rule under Sec. 24, Rule 130
XPNs: because such defense is applicable even after
1. When there is collusion and voluntary the dissolution of marriage provided that the
disclosure to a third party, that third party communication was made confidentially to B
becomes an agent and cannot testify. (Francisco, during their marriage.
1993)
Q: James, an alien, was criminally charged of
2. The communication shall remain privileged, promoting and facilitating child prostitution
even in the hands of a third person who may and other sexual abuses under R.A. 7610. The
have obtained the information, provided that principal witness against him was his Filipina
the original parties to the communication took wife, Conching. Earlier, she had complained that
reasonable precaution to protect its James’ hotel was being used as a center for sex
confidentiality. (Sec. 24, Rule 130, ROC, as tourism and child trafficking. The defense
amended) counsel for James objected to the testimony of
Conching at the trial of the child prostitution
Q: In June 1998, A told B that he killed C. After a case and the introduction of the affidavits she
year, A married B. Upon the offer of testimony of executed against her husband as a violation of
B for the alleged killing of C. spousal confidentiality and marital privilege
rule. It turned out that Patring, the minor
a. Can A validly make an objection? daughter of Conching by her first husband who
b. Suppose the testimony was offered at the was a Filipino, was molested by James earlier.
time the marriage between A and B was Thus, Conching had filed for legal separation
already terminated, can A still validly object, from James since last year. May the court admit
the testimony and affidavits of the wife,

622
 Evidence
Conching, against her husband, James, in the
criminal case involving child prostitution?
Reason. (2004 BAR)
A: YES. If the testimony and affidavit of the wife are
evidence used in the case against her husband for
child prostitution involving her daughter, the
evidence are admissible. The marital privileged
communication rule under Sec. 24 of Rule 130, as
well as the marital disqualification rule under Sec.
23 of the same rule, do not apply to and cannot be
invoked in a criminal case committed by a spouse
against the direct descendants of the other.
A crime committed by the husband against the
daughter of his wife is considered a crime
committed against the wife and directly attacks or
vitally impairs the marital relations. (Riano, 2019,)
Q: John filed a petition for declaration of nullity
of his marriage to Anne on the ground of
psychological incapacity under Article 36 of the
Family Code. He obtained a copy of the
confidential psychiatric evaluation report on his
wife from the secretary of the psychiatrist. Can
he testify on the said report without offending
the rule on privileged communication? (2016
BAR)
A: YES. Under the rule on privileged
communication, the husband or the wife, during or
after the marriage, cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other during
the marriage except in a civil case filed by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s
direct descendants or ascendants. (Sec. 24(a), Rule
130, ROC, as amended) In this case, Anne cannot
prevent John from testifying against her since the
petition for declaration of nullity is a civil case filed
by one spouse against the other; hence, the rule on
privileged communication between the spouses
does not apply. John could testify on the confidential
psychiatric evaluation report of his wife that he
obtained from the secretary of the psychiatrist,
without offending the rule on privileged
communication.
623
ATTORNEY AND CLIENT
(Sec. 24(B), Rule 130)
Requisites for the Privilege
1. There must be a communication made by the
client to the attorney, or and advice given by the
attorney to his client;
2. The communication or advice must be given in
confidence; and
3. The communication or advice must be given
either in the course of the professional
employment or with a view of professional
employment. (Riano, 2019)
The Rules safeguarding privileged communications
between attorney and client shall apply to similar
communications made to or received by the law
student, acting for the legal clinic (Sec. 3, Rule 138-A,
ROC, as amended). The privilege does not extend to
communications where the client’s purpose is the
furtherance of a future intended crime or fraud, or
for the purpose of committing a crime or a tort, or
those made in furtherance of an illicit activity
(Riano, 2019).
Purpose of Attorney-Client Privilege
To encourage full disclosure by client to her
attorney of all pertinent matters, so as to further the
administration of justice. (Herrera, 1999)
Test in Applying the Attorney-Client Privilege
The test is whether the communications are made
to an attorney with a view of obtaining from him
professional assistance or advice regardless of
whether there is a pending or merely impending
litigation or any litigation. (Herrera, 1999)
NOTE: The present rules do not require a perfected
attorney-client relationship for the privilege to
exist. It is enough that the communication or advice
be “with a view to” professional employment.
(Riano, 2019)
The scope of this privilege is extended not only to
the Attorney but also to those persons reasonably
believed by the client to be licensed to engage in the
practice of law.
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
In addition, an attorney’s secretary, stenographer,
or clerk, or other persons assisting the attorney
cannot be examined without the consent of the
client and his or her employer, concerning any fact
the knowledge of which has been acquired in such
capacity. (Section 24(b), Rule 130, ROC, as amended)
Confidential communication
It refers to information transmitted by voluntary act
of disclosure between attorney and client in
confidence and by means which, so far as the client
is aware, discloses the information to no third
person other than one reasonably necessary for the
transmission of the information or the
accomplishment of the purpose for which it was
given. (Mercado v. Vitriolo, A.C. No. 5108, 26 May
2005)
Waiver of Attorney-Client Privilege
The privilege belongs to the client and if he waives
the privilege, no one else, including the attorney, can
invoke it. (Riano, 2019)
Doctrine of Absolute Privilege
A communication is absolutely privileged when it
is not actionable, even if the author has acted in bad
faith. This class includes allegations or statements
made by parties or their counsel in pleadings or
motions or during the hearing of judicial and
administrative proceedings, as well as answers
given by the witness in reply to questions
propounded to them in the course of said
proceedings, provided that said allegations or
statements are relevant to the issues, and the
answers are responsive to the questions
propounded to said witnesses. (Belen v. People, G.R.
No. 211120, 13 Feb. 2017)
The absolute privilege remains regardless of the
defamatory tenor and the presence of malice,
pertinent or material to the cause in and or subject
of the inquiry. (Ibid.)
624
Cases when the Privilege is Applicable
1. Privilege is not confined to communications
regarding actual pending cases. It may also
refer to anticipated litigations;
2. Communication may be oral or written but it is
deemed to extend to other forms of conduct,
like physical demonstration;
3. The statement of the client need not be made to
the attorney in person. Those made to the
attorney’s secretary, clerk or stenographer for
purpose of the professional relationship, or the
knowledge acquired by such employees in such
capacity; and
4. In an action filed for payment of attorney’s fees
or for damages against the negligence of the
attorney.
Communications NOT Covered by the Privilege
If the communication is:
1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
NOTE: The privilege does not extend to
communications where the client’s purpose is
the furtherance of a future intended crime or
fraud, or for the purpose of committing a crime
or a tort, or those made in furtherance of an
illicit activity (Riano, 2019).
4. Received from third persons not acting in behalf
or as agents of the client; or
5. Made in the presence of third parties who are
strangers to the attorney-client relationship.
(Regalado, 2008)
Cases when the Privilege is NOT Applicable
a. Furtherance of crime or fraud/ “Future crime-
fraud exception”. If the services or advice of the
lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the
client knew or reasonably should have known
to be a crime or fraud;
 Evidence
NOTE: The rationale for this exception is that
clients are not entitled to use lawyers to help
them in pursuing unlawful or fraudulent
objectives. If the privilege were to cloak such
activity, the result would be loss of public
confidence and corruption of profession.
(Explanatory Notes, ROC, as amended)
The policy of the privilege is that of promoting
the administration of justice and it would be a
perversion of the privilege to extend it to the
client who seeks advice to aid him in carrying
out an illegal fraudulent scheme. This would be
tantamount to participating in a conspiracy.
(Explanatory Notes, ROC, as amended)
b. Claimants through some deceased client. As to
communication relevant to an issue between
parties who claim through the same deceased
client, regardless of whether the claims are by
testate or intestate or by inter vivos transaction;
NOTE: While the attorney-client privilege
survives the death of the client, there is no
privilege in a will contest or other case between
parties who both claim through that very client.
This is because his communications may be
essential to an accurate resolution of competing
claims of succession, and the testator would
presumably favor disclosure in order to dispose
of his estate accordingly. (Explanatory Notes,
ROC, as amended)
c. Breach of duty by lawyer or client/Self-defense
exception. As to communication relevant to an
issue of breach of duty by the lawyer to his or
her client, or by the client to his or her lawyer;
NOTE: If the lawyer and client become involved
in a dispute between themselves concerning the
services provided by the lawyer, the privilege
does not apply to their dispute. Thus, where a
client alleges breach of duty on the part of the
lawyer, i.e., professional malpractice,
incompetence, or ethical violations – or where
the lawyer sues a client for his fee, either the
lawyer or client may testify as to
communications between them. (Explanatory
Notes, ROC, as amended)
625
In theory, the client has impliedly waived the
privilege by making allegations of breach of
duty against the lawyer. (Ibid.)
d. Document attested by the lawyer. As to a
communication relevant to an issue concerning
an attested document to which the lawyer is an
attesting witness;
e. Joint clients. As to a communication relevant to
a matter of common interest between two or
more clients if the communication was made by
any of them to a lawyer retained or consulted in
common, when offered in action between any of
the clients, unless they have expressly agreed
otherwise. (Sec. 24(b), Rule 130, ROC, as
amended)
NOTE: The rationale for the exception is that
joint clients do not intend their
communications to be confidential from each
other, and typically their communications are
made in each other’s presence. Agreeing to joint
representation means that each joint client
accepts the risk that another joint client may
later use what he or she has said to the lawyer.
(Explanatory Notes, ROC, as amended,)
Applicability of the Rule regarding the Identity
of the Client
GR: A lawyer may NOT invoke the privilege and
refuse to divulge the name or identity of his client.
XPNs:
1. Where a strong possibility exists that revealing
the client’s name would implicate the client in
the very activity for which he sought the
lawyer’s advice;
2. Where disclosure would open the client to civil
liability; or
3. Last Link Doctrine – Where the government’s
lawyers have no case against an attorney’s
client unless, by revealing the client’s name, the
said name would furnish the only link that
would form the chain of testimony necessary to
convict an individual for a crime. (Regala v.
Sandiganbayan, G.R. No. 105938, 03 Sept. 1996)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
Q: On August 15, 2008, Edgardo committed
estafa against Petronilo in the amount of 3
million pesos. Petronilo brought his complaint
to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice,
the first time on August 14, and the second
August 16, 2008; and that both visits concerned
the swindling of Edgardo.
During the trial, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to
testify the conversations during their first and
second meetings. May the subpoena be quashed
on the ground of privileged communication?
Explain fully. (2008 BAR)
A: NO. The subpoena may not be simply quashed on
the allegation that the testimony to be elicited
constitutes privileged communication. It may be
noted that the accused committed the crime
swindling on August 15, 2008, whereas he first
visited his lawyer on August 14, 2008 or before he
committed the swindling.
Clearly, the conversations the accused had with his
lawyer before he committed the swindling cannot
be protected by the privilege between attorney and
client because the crime had not been committed
yet and it is no part of a lawyer’s professional duty
to assist or aid in the commission of a crime; hence
not in the course of professional employment.
The second visit by accused Edgardo to his lawyer
on the next day (August 16, 2008) after the
swindling was committed may also suffer from the
same infirmity as the conversations had during
their first meeting inasmuch as there could not be a
complaint made immediately after the estafa was
committed. The privilege covering a lawyer-client
relation under Sec. 24(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of
the Rules of Court.
Q: A tugboat owned by SPS sank in Manila Bay
while helping to tow another vessel, drowning
five (5) of the crew in the resulting shipwreck. At
the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely to
defend against potential claims and to sue the
626
company owning the other vessel for damages to
the tug. Ely obtained signed statements from the
survivors. He also interviewed other persons, in
some instances making memoranda. The heirs
of the five (5) victims filed an action for damages
against SPS.
Plaintiff’s counsel sent written interrogatories
to Ely, asking whether statements of witnesses
were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to
be set forth in detail. Ely refused to comply,
arguing that the documents and information
asked are privileged communication. Is the
contention tenable? Explain. (2008 BAR)
A: NO. The documents and information sought to be
disclosed are not privileged. They are evidentiary
matters which will eventually be disclosed during
the trials.
Under Sec. 24(b) of Rule 130, the privileged matters
are:
a. The communication made by the client to the
attorney; or
b. The advice given by the attorney, in the course
of, or with the view to professional
employment.
The information sought is neither a communication
by the client to the attorney nor an advice by the
attorney to his client (Riano, 2019).
PHYSICIAN AND PATIENT
(SEC. 24(C), RULE 130)
Requisites for the Applicability of the Privilege
1. The privilege is claimed in a civil case;
NOTE: This privilege cannot be claimed in a
criminal case presumably because the interest
of the public in criminal prosecution should be
deemed more important than the secrecy of the
communication. (Riano, 2019)
2. The person against whom the privilege is
claimed is a physician, psychotherapist or a
person reasonably believed by the patient to be
 Evidence
authorized to practice medicine or psychology;
and
3. It refers to any confidential communication
made for the purpose of diagnosis or treatment
of the patient’s physical, mental or emotional
condition, including alcohol or drug addiction.
NOTE: This privilege also applies to persons,
including members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist.
Psychotherapist
a. A person licensed to practice medicine
engaged in the diagnosis or treatment of a
mental or emotional condition; or
b. A person licensed as a psychologist by the
government while similarly engaged. (Sec 24
(c), Rule 130, ROC, as amended)
NOTE: For one to be considered a
“psychotherapist,” a medical doctor need only be
“licensed” to practice medicine and need not be a
psychiatrist, whereas a psychologist must be
“licensed” by the government. (Explanatory Notes,
ROC, as amended)
Purpose of the Privilege
The privilege is intended to facilitate and make safe,
full and confidential disclosure by patient to doctor
of all facts, circumstances, and symptoms,
unrestricted by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may
form a correct opinion and be enabled safely and
efficaciously to treat his patient. (Herrera, 1999)
This rule is intended to encourage the patient to
open up to the physician, relate to him the history of
his ailment, and give him access to his body,
enabling the physician to make a correct diagnosis
of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the
future to come to court and narrate all that had
transpired between him and the patient might
627
prompt the latter to clam up, thus putting his own
health at great risk. (Chan v. Chan, G.R. No. 179786,
24 July 2013)
NOTE: This privilege does not apply to autopsy.
There is no patient or treatment involved in
autopsies, the autopsy having been conducted on a
dead person. (Riguera, 2020)
This privilege is not limited to testimonial evidence
because to compel physician to disclose records or
such documents would be in effect to compel him to
testify against the patient. (Ibid.)
Attending physician may testify as an expert
provided that his opinion is strictly based on
hypothetical facts, excluding and disregarding any
personal knowledge of the information on the
patient acquired to the physician-patient
relationship. (Ibid.)
Information which CANNOT be Disclosed
1. Any confidential communication made for the
purpose of diagnosis or treatment of the
patient’s physical, mental or emotional
condition, including alcohol or drug addiction;
and
2. Any information acquired by persons, including
members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist. (Sec. 24(c), Rule 130, ROC, as
amended)
Waiver of Privilege by the patient; Express or
Implied
1. By a contract, as in medical or life insurance;
2. Disclosure by the patient of the information;
3. When the patient answers questions on matters
which are supposedly privileged on cross-
examination (Riano, 2019); or
4. By operation of law. (Sec. 4, Rule 28, ROC, as
amended)
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Cases when the Privilege is NOT Applicable
a. The communication was not given in
confidence;
b. The communication is irrelevant to the
professional employment;
c. The communication was made for an unlawful
purpose;
d. The information was intended to be made
public; or
e. There was a waiver of the privilege either by
provisions of contract or law (Regalado, 2008);
and
f. Dentists, pharmacists or nurses are
disqualified.
XPN: If the third person is acting as an agent of
the doctor in a professional capacity.
NOTE: It is essential that at the time the
communication was made, the professional
relationship is existing when the doctor was
attending to the patient for curative, preventive or
palliative treatment. The treatment may have been
given at the behest of another, the patient being in
extremis. (Regalado, 2008)
The rule does not require that the relationship
between the physician and the patient be a result of
a contractual relationship. It could be the result of a
quasi-contractual relationship as when the patient
is seriously ill and the physician treats him even if
he is not in a condition to give his consent. (Riano,
2019)
PRIEST AND PENITENT
(SEC. 24(D), RULE 130)
A minister, priest or person reasonably believed to
be so cannot, without the consent of the affected
person, be examined as to any confession made to
or any advice given by him or her in his or her
professional character in the course of discipline
enjoined by the church to which the minister or
priest belongs. (Sec. 24(d), Rule 130, ROC, as
amended)
628
Purpose of the Priest-Penitent Privilege
Allow and encourage individuals to fulfill their
religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
(Peralta, Jr., 2005)
Requisites for the Applicability of the Priest-
Penitent Privilege
1. The communication, confession, or advice must
have been made to the priest in his or her
professional character in the course of
discipline enjoined by the church to which the
minister or priest belongs. (Sec. 24(d), Rule 130,
ROC, as amended); and
2. Communications made must be confidential
and must be penitential in character, e.g., under
the seal of the confessional. (Regalado, 2008)
NOTE: The privilege also extends not only to a
confession made by the penitent but also to any
advice given by the minister or priest.
Extent of the Priest-Penitent privilege
The communication must be made pursuant to
confession of sins. Where the penitent discussed
business arrangements with the priest, the privilege
does not apply. (Riano, 2019)
A third person who overheard the confession is not
disqualified. (Herrera, 1999)
Who holds the Privilege
The person making the confession holds the
privilege. The priest or minister hearing the
confession in his professional capacity is prohibited
from making a disclosure of the confession without
the consent.
Q: For over a year, Nenita had been estranged
from her husband Walter because of the latter’s
suspicion that she was having an affair with
Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day, the
house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister were
 Evidence
caught inside the house but Nenita survived as
she fled in time, while her sister was caught
inside when the house collapsed. As she was
running away from the burning house, Nenita
was surprised to see her husband also running
away from the scene. Dr. Carlos, Walter’s
psychiatrist who lived near the burned house
and whom Walter medically consulted after the
fire, also saw Walter in the vicinity some
minutes before the fire. Coincidentally, Fr.
Platino, the parish priest who regularly hears
Walter’s confession and who heard it after the
fire, also encountered him not too far away from
the burned house. Walter was charged with
arson and at his trial, the prosecution moved to
introduce the testimonies of Nenita, the doctor
and the priest confessor, who all saw Walter at
the vicinity of the fire at about the time of the
fire. (2006, 2013 BAR)
a. May the testimony of Nenita be allowed over
the objection of Walter?
b. May the testimony of Dr. Carlos, Walter’s
psychiatrist, be allowed over Walter’s
objection?
c. May the testimony of Fr. Platino, the priest
confessor, be allowed over Walter’s
objection?
A:
a. NO. Nenita may not be allowed to testify against
Walter. Under the Marital Disqualification Rule,
neither the husband nor the wife, during their
marriage, may testify for or against the other
without the consent of the affected spouse,
except in a civil case by one against the other, or
in a criminal case for a crime committed by one
against the other or the latter's direct
descendants or ascendants. (Sec. 23, Rule 130,
ROC, as amended)
The foregoing exceptions cannot apply since it
only extends to a criminal case of one spouse
against the other or the latter’s direct
ascendants or descendants. Clearly, Nenita is
not the offended party and her sister is not her
direct ascendant or descendant for her to fall
within the exception.
629
b. YES. The testimony of Walter’s psychiatrist may
be allowed. The privileged communication
contemplated under Sec. 24(c) Rule applies
only in civil cases and not in a criminal case for
arson. Besides, the subject of the testimony of
Dr. Carlos was not in connection with the advice
or treatment given by him to Walter, or any
information he acquired in attending to Walter
in a professional capacity. The testimony of Dr.
Carlos is limited only to what he perceived at
the vicinity of the fire and at about the time of
the fire.
c. YES. The priest can testify over the objection of
Walter. The disqualification requires that the
same were made pursuant to a religious duty
enjoined in the course of discipline of the sect
or denomination to which they belong and must
be confidential and penitential in character, e.g.,
under the seal of confession. (Sec. 24(d), Rule
130, ROC, as amended) Here, the testimony of Fr.
Platino was not previously subject of a
confession of Walter or an advice given by him
to Walter in his professional character. The
testimony was merely limited to what Fr.
Platino perceived “at the vicinity of the fire and
at about the time of the fire.”
PUBLIC OFFICERS
(SEC. 24(E), RULE 130)
A public officer cannot be examined during or after
his or her tenure as to communications made to him
or her in official confidence, when the court finds
that the public interest would suffer by the
disclosure.
Rationale
General grounds of public policy.
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject
to such limitations as maybe provided by law. (Sec.
7, Article III, 1987 Constitution)
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 Remedial Law
Requisites for its Application
1. The holder of the privilege is the government,
acting through a public officer;
2. The communication was given to the public
officer in official confidence;
3. The communication was given during or after
his or her tenure; and
4. The public interest would suffer by the
disclosure of the communication. (Herrera,
1999)
Cases when the Privilege is Inapplicable and
Disclosure will be Compelled
1. The disclosure is useful to vindicate the
innocence of an accused person;
2. To lessen risk of false testimony;
3. The disclosure is essential to the proper
disposition of the case; or
4. The benefit to be gained by a correct disposition
of the litigation was greater than any injury
which could inure to the relation by a disclosure
of information. (Francisco, 1996)
NOTE: To invoke this rule, it must first be
established that public interest would suffer by the
disclosure. In the case of closed bank, any
disclosure of tapes and transcripts would not pose
danger or peril to the economy. (Riguera, 2020)
The disclosure or non-disclosure is not dependent
on the will of the officer but on the determination by
a competent court. (Riano, 2019)
Executive Privilege
The power of the President and other high-ranking
executive officers to withhold information from the
public, the courts, and the Congress.
This privilege, based on the constitutional doctrine
of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary
citizen or organization where such exemption is
necessary to the discharge of highly important
executive responsibilities involved in maintaining
governmental operations, and extends not only to
military and diplomatic secrets but also to
documents integral to an appropriate exercise of the
630
executive’s domestic decisional and policy making
functions, that is, those documents reflecting the
frank expression necessary in intra-governmental
advisory and deliberative communications. (Senate
v. Ermita, G.R. No. 169777, 20 Apr. 2006)
There are types of information which the
government may withhold from the public like
secrets involving military, diplomatic, and national
security matters, and information on investigations
of crimes by law enforcement agencies before the
prosecution of the accused before the prosecution
of the accused were exempted from the right to
information. (Chavez v. Public Estates Authority. G.R.
No. 133250, 09 July 2002)
It is a privilege which protects the confidentiality of
conversations that take place in the President’s
performance of his official duties. The privilege may
be invoked not only by the President, but also by his
close advisors under the “operational proximity
test.” (Neri v. Senate Committee on Accountability of
Public Officers and Investigations, G.R. No. 180643, 25
Mar. 2008)
Requisites of Presidential Communications
Privilege
1. The protected communication must relate to a
“quintessential and non-delegable presidential
power;”
2. The communication must be authored or
“solicited and received” by a close advisor of the
president or the president himself. The judicial
test is that an advisor must be in operational
proximity with the president;
3. The presidential communication privilege
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought “likely contains
important evidence” and by the unavailability
of the information elsewhere by an appropriate
investigating authority. (Neri v. Senate
Committee on Accountability of Public Officers
and Investigations, G.R. No. 180643, 25 Mar.
2008)
 Evidence
Q: The Senate sought to question Mr. Romulo
Neri, a member of President Arroyo’s cabinet, on
whether President Arroyo followed up the
National Broadband Network project financed
by Chinese loans, whether she directed him to
prioritize it, and whether she directed him to
approve it. Mr. Neri invoked executive privilege
stating that his conversations with the president
dealt with delicate and sensitive national
security and diplomatic matters relating to the
impact of scandal on high government officials
and the possible loss of confidence by foreign
investors and lenders. May Mr. Neri’s invocation
of executive privilege be upheld?
A: YES. The Supreme Court upheld Mr. Neri’s
invocation of executive privilege (more specifically
the presidential communications privilege) stating
that the disclosure might impair our diplomatic as
well as economic relations with China (Neri v. Senate
Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 Mar. 2008)
Deliberative Process Privilege
The privilege protects from disclosure advisory
opinions, recommendations, and deliberations
comprising part of a process by which
governmental decisions and polices are formulated.
(Riguera, 2020)
Written advice from variety of individuals is an
important element of the government’s decision-
making process and the interchange of advice could
be stifled if courts forced the government to disclose
those recommendations; thus, the privilege is
intended to prevent the “chilling” of deliberative
communications. (Ibid.)
The deliberative process privilege applies if its
purpose is served, that is, to protect the frank
exchange of ideas and opinions critical to the
government’s decision-making process where
disclosure would discourage such discussion in the
future. (Ibid.)
631
PARENTAL AND FILIAL PRIVILEGE RULE
(Sec. 25, Rule 130)
No person shall be compelled to testify against his
or her parents, other direct ascendants, children or
other direct descendants, except when such
testimony is indispensable in a crime against that
person or by one parent against the other.
NOTE: It is a privilege which consist of exempting
the witness, having attended the court where his
testimony is desired, from disclosing a certain part
of his knowledge. (Fit for a Queen Agency, Inc. v.
Ramirez, SP-06510, 15 Nov. 1977)
Two Types of Privileges under Sec. 25, Rule 130
1. Parental privilege rule - a parent cannot be
compelled to testify against his child or other
direct descendants.
NOTE: A person, however, may testify against
his parents or children voluntarily but if he
refuses to do so, the rule protects him from any
compulsion. Said rule applies to both criminal
and civil cases since the rule makes no
distinction. (Sec. 25, Rule 130, ROC, as amended)
2. Filial privilege rule – a child may not be
compelled to testify against his parents, or
other direct descendants.
NOTE: The filial privilege rule applies only to
“direct” ascendants and descendants, a family
tie connected by a common ancestry – a
stepdaughter has no common ancestry by her
stepmother. (Lee v. Court of Appeals, G.R. No.
177891, 13 July 2010)
NOTE: An adopted child is covered by the rule.
Criminal Cases
GR: No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents.
XPNs: The descendant may be compelled to give his
testimony in the following instances:
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 Remedial Law
1. When such testimony is indispensable in a
crime committed against said descendant; or
2. In a crime committed by one parent against the
other. (Art. 215, Family Code)
Q: A was convicted of raping his own daughter.
His son, an 8-year-old boy, testified against him.
Can he object to the testimony on the ground of
filial privilege and invoke the incompetence of
the child?
A: NO. The competency of his son is not affected by
the filial privilege rule. The Rule is not strictly
speaking a disqualification but refers to a privilege
not to testify, which can be invoked and waived like
other privileges. The son was not compelled to
testify against his father but chose to waive that
filial privilege when he voluntarily testified against
the accused. (People v. Invencion, G.R. No. 131636, 05
Mar. 2003)
Q: A, married to B, killed the latter. One of the
witnesses was C, the mother of B, who was being
compelled to testify against A. Can A object on
the ground of parental privilege?
A: NO. C is not a direct ascendant of A but that of B,
being the mother of the latter. Thus, the privilege
does not belong to A.
NOTE: The Child Witness Rule provides that every
child is presumed qualified to be a witness. (Sec. 6,
A.M. NO. 004-07-SC or the Rule on Examination of a
Child Witness, 21 Nov. 2000)
Q: C is the child of the spouses H and W. H sued
his wife W for judicial declaration of nullity of
marriage under Article 36 of the Family Code. In
the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objections
which are the following:
a. H cannot testify against her because of the
rule on marital privilege;
b. C cannot testify against her because of the
doctrine on parental privilege; and
c. D cannot testify against her because of the
doctrine of privileged communication
between patient and physician. (1998 BAR)
632
A:
a. The rule of marital privilege cannot be invoked
in the annulment case under Article 36 of the
Family Code because it is a civil case filed by one
against the other. (Sec. 23, Rule 130, ROC, as
amended)
b. W cannot invoke the privilege which belongs to
the child. C may testify if he wants to although
he may not be compelled to do so. (Sec. 25, Rule
130, ROC, as amended)
c. D, as a doctor who used to treat W, is
disqualified to testify against W over her
objection as to any advice or treatment given by
him or any information which he may have
acquired in his professional capacity. (Sec.
24(c), Rule 130, ROC, as amended)
TRADE SECRETS
(Sec. 26, Rule 130)
Trade Secret
A secret formula or process not patented but known
only to certain individuals using it in compounding
some article of trade having a commercial value.
Trade secrets are privilege matters whose
disclosure is proscribed and penalized under the
Securities and Exchange Commission and the
Revised Penal Code.
A person cannot be compelled to testify about any
trade secret unless the non-disclosure will conceal
fraud or otherwise work injustice. When disclosure
is directed, the court shall take such protective
measure as the interest of the owner of the trade
secret and of the parties and the furtherance of
justice may require. (Sec. 26, Rule 130, ROC, as
amended)
Trade secrets should receive greater protection
from discovery because they derive economic value
from being generally unknown and not readily
ascertainable by the public. (Air Philippines
Corporation v. Pennswell, Inc., G.R. No. 1723835, 13
Dec. 2007)
 Evidence
Exception to the Application of the Privilege
The privilege is not absolute; the court may compel
disclosure where it is indispensable for doing
justice. (Ibid.)
Other Privileged Matters (Gu-E-V-Ta-Ba-C-A-I-
M)
1. The Guardian ad litem shall not testify in any
proceeding concerning any information,
statement, or opinion received from the child in
the course of serving as guardian ad litem,
unless the court finds it necessary to promote
the best interests of the child; (Sec. 5(e), Rule on
Examination of a Child Witness)
2. Editorial Privilege – Editors may not be
compelled to disclose the source of published
news; (R.A. No. 53, as amended by R.A. No. 1477)
3. Voters may not be compelled to disclose for
whom they voted;
4. Information contained in Tax census returns
(Ibid.);
5. Bank deposits, except in certain cases provided
for by law; (Sec. 2, R.A. No. 1405)
6. Information and statements made at
Conciliation proceedings; (Art. 233, Labor Code)
7. Institutions covered by the law and its officers
and employees who communicate a suspicious
transaction to the Anti-Money Laundering
Council; (Sec. 6 of R.A. No. 9194 amending Sec. 9
of R.A. No. 9160) and
8. Informer’s Privilege - The Prosecutor may not
be compelled to present an informer to protect
his identity and when his testimony would be
merely corroborative and cumulative. (Herrera,
1999)
NOTE: Human Security Act provides that the
name and identity of the informant of on a
suspect in the crime of terrorism shall be
considered confidential and shall not be
unnecessarily revealed until after the
633
proceedings against the suspect shall have been
terminated.
9. Media Practitioner’s Privilege
GR: Without prejudice to his liability under the
civil and criminal law, any publisher, owner,
duly registered or accredited journalist, writer,
reporter, contributor, opinion writer, editor,
columnist manager, media practitioner
involved in the writing, editing, production, and
dissemination of news for mass circulation of
any print, broadcast, wire service organization,
or electronic mass media cannot be compelled
to reveal the source of any news item, report or
information appearing or being reported or
disseminated through said media which was
related in confidence to the abovementioned
media practitioners.
XPN: Revelation can be compelled if the court
or the Congress or any of its committees finds
that such revelation is demanded by the
security of the State.
NOTE: On the ground of public policy, the rules
providing for the production and inspection of
books and papers do not authorize the production
or inspection of privileged matter; that is, books and
papers which, because of their confidential and
privileged character, could not be received in
evidence. Such a condition is in addition to the
requisite that the items be specifically described
and must constitute or contain evidence material to
any matter involved in the action and which are in
the party’s possession, custody or control. (Air
Philippines Corporation v. Pennswell Inc., G.R. No.
172835, 13 Dec. 2007)
3. ADMISSIONS AND CONFESSIONS
Admission
Any statement of fact made by a party against his
interest or unfavorable to the conclusion for which
he contends or is inconsistent with the facts alleged
by him.
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F A C U LT Y O F C I V I L L A W
 Remedial Law

CLASSIFICATIONS OF ADMISSIONS Development Corp., G.R. No.

It is a positive statement or act. 149576, 08 Aug. 2006)
Express
Those made in definite, certain
and unequivocal language. Requisites for admissions to be admissible
It is one which may be inferred
from the declarations or acts of a 1. They must involve matters of fact and not of
Implied person. Therefore, an admission law;
may be implied from conduct, 2. They must be categorical and definite;
statement of silence of a party. 3. They must be knowingly and voluntarily made;
When made in the course of a and
Judicial judicial proceeding. 4. They must be adverse to the admitter’s
interests, otherwise it would be self-serving
When made out of court or even and inadmissible. (Regalado, 2008)
Extrajudicial in a proceeding other than the
one under consideration. Admissions vs. Confessions
It is a party’s reaction to a
statement or action by another ADMISSION CONFESSION
person when it is reasonable to A statement of fact A statement of fact
treat the party’s reaction as an which does not involve which involves an
admission of something stated an acknowledgment of acknowledgment of
or implied by the other person. A guilt or liability. guilt or liability.
third person’s statement May be made by third Can be made only by
becomes the admission of the persons and in certain the party himself and,
party embracing or espousing it. cases, are admissible in some instances, are
Adoptive admission may occur against a party. admissible against his
when a party: co-accused.
Applies to both
Applies only to
a. Expressly agrees to or criminal and civil
criminal cases.
concurs in an oral cases.
statement made by another; Must be express.
May be express or tacit.
(Regalado, 2008)
Adoptive b. Hears a statement and later
on essentially repeats it; NOTE: An admission, in general sense, includes
confessions, the former being a broader term
c. Utters an acceptance or because, accordingly, a confession is also an
builds upon the assertion of “admission… by the accused of the fact charged
another; against him or of some fact essential to the charge.”
(4 Wigmore, Sec. 1050) A confession is a specific
d. Replies by way of rebuttal type of admission which refers only to an
to some specific points acknowledgement of guilt. (Riano, 2019)
raised by another but
ignores further points Admission by a Party
which he or she has heard
the other make; or The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him
e. Reads and signs a written or her. (Sec. 27, Rule 130, ROC, as amended)
statement made by another.
(Republic v. Kendrick

634
 Evidence
Requisites for the admissibility of an admission
1. The act, declaration or omission must have
been made by a party or by one by whom he is
legally bound;
2. The admission must be as to a relevant fact; and
3. The admission may only be given in evidence
against him. (Herrera, 1999)
Self-Serving Declaration
It is one which has been made extra-judicially by the
party to favor his interest. It is not admissible in
evidence because they are inherently
untrustworthy and would open the door to fraud
and fabrication of testimony. (Lichauco v. Atlantic
Gulf and Pacific Co. of Manila, 84 Phil. 330)
NOTE: Self-serving evidence are inadmissible
because the adverse party is not given the
opportunity for cross-examination, and their
admission would encourage fabrication of
testimony. (Hernandez v. CA, G.R. No. 104874, 14 Dec.
1993)
Statements in affidavits are not sufficient to prove
the existence of agricultural tenancy. It is self-
serving. It will not suffice to prove consent of the
owner. Independent evidence is necessary.
(Rodriguez v. Salvador, G.R. No. 171972, 08 June
2011)
An admission against interest is the best evidence
which affords the greatest certainty of the facts in
dispute since no man would declare anything
against himself unless such declaration is true.
Thus, an admission against interest binds the
person who makes the same, and absent any
showing that this was made thru palpable mistake,
no amount of rationalization can offset it. (Stanley
Fine Furnitures, Elena and Carlos Wang v. Gallano,
G.R. No. 190486, 26 Nov. 2014)
Q: After working as a laborer for 43 years, A
resigned from Rufina Patis Factory. Thereafter,
he availed of his pension from the SSS and
executed an affidavit stating that he was never
re-employed. However, when he filed a claim for
retirement benefits from his employer before
the NLRC, he alleged that he continued working
635
for Rufina Patis Factory for 4 more years. Can
Rufina Patis Factory use A’s affidavit executed
before the SSS as an admission against his
interest?
A: YES. The document is the best evidence which
affords greater certainty of the facts in dispute.
While the affidavit may have facilitated the release
of the retirement benefits from SSS, hence,
beneficial to him at that time, it may still be
considered as an admission against interest since
the disserving quality of the admission is judged as
of the time it is used or offered in evidence and not
when such admission was made. Thus, it matters
not that the admission was self-serving at the time
it was made, so long as it is against A’s present claim.
(Rufina Patis Factory v. Alusitain, G.R. No. 146202, 14
July 2004)
RES INTER ALIOS ACTA RULE
Res inter alios acta alteri nocere non debet
This principle literally means “things done between
strangers ought not to injure those who are not
parties to them.” (Dynamic Signmaker Outdoor
Advertising Services, Inc. v. Potongan, G.R. No.
156589, 27 June 2005)
Reason for the Rule on Res inter alios acta
On the principle of good faith and mutual
convenience, a man’s own acts are binding upon
himself and are evidence against him. So are his
conduct and declarations. It would not only be
rightly inconvenient but also manifestly unjust, that
a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to
be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against
him. (People v. Guittap, G.R. No. 144621, 09 May
2003)
Two branches of Res inter alios acta Rule
1. Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or
omission of another (Sec. 29, Rule 130, ROC, as
amended) (2003 BAR); and
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2. Similar Acts Rule. Evidence that one did or did
not do a certain thing at one time is not
admissible to prove that he did or did not do the
same or similar thing at another time. (Sec. 35,
Rule 130, ROC, as amended)
NOTE: The rule has reference to extrajudicial
declarations. Hence, statements made in open court
by a witness implicating persons aside from him are
admissible as declarations from one who has
personal knowledge of the facts testified to. (Riano,
2019)
The testimony of the accused against his co-accused
in open court is considered as admissible testimony
and not subject of the res inter alios acta rule since
such testimony is subject to cross examination.
Q: Mau sued Kenstar Travel Corporation for
breach of contract on the ground that when she
went on a European tour, there was no European
tour manager, the Filipino guide was a first
timer, and the hotels where they were billeted
were not first class. Kenstar contended that the
tour was satisfactory because out of 18
participants, only Mau actually complained. Can
the fact that the other participants in the tour
filed no case against Kenstar be used as evidence
to show that B has no cause of action?
A: NO. Sec. 28, Rule 130 of the Rules of Court
provides that the rights of a party cannot be
prejudiced by an act, declaration or omission of
another. The failure of the other participants to file
and action should not prejudice Mau. (Geraldez v.
Court of Appeals, G.R. No. 108253, 23 Feb. 1994)
Admission by a Third Party
The rights of a party cannot be prejudiced by an act,
declaration, or omission of another. (Sec. 28, Rule
130, ROC, as amended)
GR: The act, declaration or omission made out of
court of a party as to a relevant fact may be given in
evidence against him but may not be given in
evidence against another person.
636
XPN: The act or omission of one party made out of
court may be used as evidence against another
when its admission is made by:
a. A partner, during the existence of the
partnership (Sec. 30, Rule 130, ROC, as
amended);
b. An agent authorized by the party to make a
statement concerning the subject or within the
scope of his or her authority, during the
existence of the agency (Ibid.);
c. A joint owner;
d. A joint debtor;
e. A person jointly interested with the party;
f. A conspirator; or
g. A privy or successor in interest (Suarez and De
la Banda, 2006)
Q: Francisco was charged with violating PD No.
1612 or the Anti Fencing Decree. Among the
evidence submitted against him was the
testimony of Jovita in a previous criminal case
wherein the accused therein, Pacita, was
convicted of theft and where she stated that
Francisco bought stolen jewelries from her. Can
the admission in the previous case be used
against Francisco?
A: NO. Francisco was not a party to the previous
criminal case where Pacita was the accused. The
acts or declarations of a person are not admissible
against a third party. Only parties to a case are
bound by a judgment of the trial court. (Francisco v.
People, G.R. No. 146584, 12 July 2004)
Without presenting Jovita to testify on her
admission during the previous criminal case, even if
made in a previous judicial proceeding, it remains
an extrajudicial admission without any effect,
insofar as the present action against Francisco is
concerned.
Admission by a Co-Partner or Agent
The act or declaration of a partner or agent
authorized by the party to make a statement
concerning the subject, or within the scope of his or
her authority and during the existence of the
 Evidence
partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or
declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (Sec. 30,
Rule 130, ROC, as amended)
Requisites for an Admission of a Partner to bind
his Co-Partners or for an Agent to bind his
Principal
1. The act or declaration of a partner or agent of
the party must be within the scope of his
authority;
2. The admission was made during the existence
of the partnership or agency; and
3. The existence of the partnership or agency is
proven by independent evidence other than
such act or declaration. The Articles of
Incorporation or a Special Power of Attorney
may be presented for such purpose. (Suarez and
De la Banda, 2000)
NOTE: Any declaration made before the
partnership or agency existed, or those made after,
are not admissible against the other partners or
principal but remains admissible as against the
partner or agent making the declaration. (Riano,
2019)
The same rule applies to an act or declaration of a
joint owner, joint debtor or other person jointly
interested with the party. (Sec. 29, Rule 130, ROC, as
amended)
Dissolved Partnership
GR: Admissions made after a partnership has been
dissolved do not fall within the exception because
such are made when the partnership ceased to exist.
XPN: Where the admissions are made in connection
with the winding up of the partnership affairs, said
admissions are still admissible as the partner is
acting as an agent of his co-partner in said winding
up. (Regalado, 2008)
637
Q: The Republic of the Philippines filed a
forfeiture case against the heirs of the late
former President Marcos. In one of her
manifestations before the Sandiganbayan,
Imelda Marcos admitted that she owned 90% of
the Swiss bank deposits and only 10% belongs
to the estate of the late President Marcos. The
other heirs also made separate admissions in
their pleadings. What is the value of these
admissions?
A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29
(now Sec. 30), Rule 130 of the Rules of Court. The
declaration of a party is admissible against a party
whenever a “privity of estate” exists between the
declarant and the party. It generally denotes a
succession of rights. Without doubt, privity exists
among the respondents in this case. Where several
co-parties exist, who are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, G.R. No. 152154, 15 July 2003)
Admission by a Conspirator
The act or declaration of a conspirator in
furtherance of the conspiracy and during its
existence may be given in evidence against the co-
conspirator after the conspiracy is shown by
evidence other than such act or declaration. (Sec. 31,
Rule 130, ROC, as amended)
Conspiracy
A conspiracy exists when two or more persons come
to an agreement concerning the commission of a
felony and decide to commit it. (Herrera, 1999)
NOTE: Once conspiracy is proven, the act of one is
the act of all. The statement therefore of one may be
admitted against the other co-conspirators as an
exception to the rule of res inter alios acta. (Riano,
2019)
Requisites of an Admission by a Conspirator
a. The declaration or act be made or done during
the existence of the conspiracy;
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b. The declaration or act must be in furtherance of
the purpose and object of the conspiracy; and
c. The conspiracy must be shown by evidence
other than the declaration or act (evidence
aliunde). (Sec. 31, Rule 130, ROC, as amended)
NOTE: This rule applies only to extrajudicial acts or
admission and not to testimony at trial where the
party adversely affected has the opportunity to
cross-examine the witness. (People v. Baharan, G.R.
No. L-188314, 10 Jan. 2011)
Q: A was convicted of robbery with homicide.
Among the evidence used to convict her was the
extrajudicial confession of her co-accused, an
alleged co-conspirator, which confession was
made with the assistance of counsel. Can such
admission be used against A?
A: NO. In order for such admission to be admissible
in evidence, there must be independent evidence
aside from the extrajudicial confession to prove
conspiracy. There being no independent evidence to
prove conspiracy, A’s culpability was not
sufficiently established. (People v. Guittap, G.R. No.
144621, 09 May 2003)
Extrajudicial Admissions made After the
Conspiracy had Terminated
GR: Extrajudicial admissions made by a conspirator
after the conspiracy had terminated and even
before trial are not admissible against the co-
conspirator.
XPNs:
1. If made in the presence of the co-conspirator
who expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed
in the individual extrajudicial confessions made
by the co-conspirator after their apprehension;
3. As a circumstance to determine the credibility
of the witness; or
4. As circumstantial evidence to show the
probability of the co-conspirator’s participation
in the offense. (Regalado, 2008)
638
When extrajudicial admission becomes a
judicial admission
While it is true that statements made by a
conspirator against a co-conspirator are admissible
only when made during the existence of the
conspiracy, if the declarant repeats the statement in
court, his extrajudicial confession becomes a
judicial admission, making the testimony
admissible as to both conspirators. (People v.
Baharan, G.R. No. 188314, 10 Jan. 2011)
Admission by Privies
Where one derives title to property from another,
the latter’s act, declaration, or omission of the latter,
while holding the title, in relation to the property, is
evidence against the former if done while the latter
was holding the title. (Sec. 32, Rule 130, ROC, as
amended)
Privies
Persons who are partakers or have an interest in
any action or thing, or any relation to another.
(Black’s Law Dictionary, 5th Ed.)
The declarations of a person are admissible against
a party whenever a "privity of estate" exists
between the declarant and the party, the term
"privity of estate" generally denoting a succession
in rights. Consequently, an admission of one in
privity with a party to the record is
competent. Without doubt, privity exists among the
respondents in this case. And where several co-
parties to the record are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, Ferdinand E. Marcos, and Imelda
Romualdez Marcos, G.R. No. 152154, 15 July 2003)
Requisites of an Admission by Privies
1. There must be an act, declaration, or omission
by a predecessor-in-interest;
2. The act, declaration, or omission of the
predecessor must have occurred while he was
holding (not after) the title to the property; and
 Evidence
3. The act, declaration, or omission must be in
relation to the property. (Sec. 32, Rule 130, ROC,
as amended; Riano 2016)
Q: Del Monte Development Corporation filed a
case to be adjudged owner of a piece of land
against Ababa claiming that it acquired a lot
from Lucero in 1964. As a defense, Ababa
presented a document executed by Lucero in
1968 to settle the controversy. Can the
document bind Del Monte as successor in
interest of Lucero?
A: NO. The admission of a former owner of a
property must have been made while he was the
owner thereof in order that such admission may be
binding upon the present owner. Hence, Lucero’s
act of executing the 1968 document have no binding
effect on Del Monte, the ownership of the land
having passed to it in 1964. (Gevero v. IAC, G.R. No.
77029, 30 Aug. 1990)
Admission by Silence
There is admission by silence when a party does or
says nothing when he hears or observes an act or
declaration made in his presence when such act or
declaration is such as naturally to call for action or
comment if not true, and when proper and possible
for him or her to do so. Such may be given in
evidence against him or her. (Sec. 33, Rule 130, ROC,
as amended)
Requisites of an Admission by Silence
1. The party heard and understood the statement;
2. He or she was at a liberty to make a denial;
3. The statement was about a matter affecting his
or her rights or in which he or she was
interested and which naturally calls for a
response;
4. The facts were within his or her knowledge; and
5. The fact admitted from his or her silence is
material to the issue. (Riano, 2019)
639
NOTE: The silence of a person under investigation
for the commission of an offense should not be
construed as an admission by silence because a
person has the right to remain silent and to be
informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, 2019)
However, if it is not the police investigators who
confronted the accused but the owner of a
carnapped vehicle, the silence of one after being
implicated by the other accused serves as an
admission by silence as he did not refute the
statements of his co-accused despite having heard
of them. (People v. Garcia, Jr., G.R. No. 138470, 01 Apr.
2003)
Q: Pogi was brought to the police station for
investigation on the alleged rape of Ganda.
While in the police station, Ganda pointed to
Pogi and said, “He’s the one who raped me.” Pogi
remained silent. May Pogi’s silence be offered in
evidence as an implied admission of guilt?
A: NO. The rule on admission by silence does not
apply since Pogi had a right to remain silent while
under custodial investigation. (Riguera, 2020)
Principle of Adoptive Admission
It is a party’s reaction to a statement or action by
another person when it is reasonable to treat the
party’s reaction as an admission of something stated
or implied by the other person. The basis for the
admissibility of admissions made vicariously is that
arising from the ratification or adoption by the party
of the statements which the other person had made.
(Estrada v. Desierto, G.R. Nos. 146710-15, 3 Apr.
2001)
Illustration: The alleged admissions made by
President Estrada when his options had dwindled
when, according to the Angara Diary, the Armed
Forces withdrew its support from him as President
and Commander-in-Chief. Thus, Angara had to
allegedly ask Senate President Pimentel to advise
Estrada to consider the option of “dignified exit or
resignation.” Estrada did not object to the suggested
option but simply said he could never leave the
country. According to the court, his silence on this
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and other related suggestions can be taken as
adoptive admissions by him. (Ibid.)
CONFESSIONS
The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein, may be given in
evidence against him or her. (Sec. 34, Rule 130, ROC,
as amended)
Requisites for the admissibility of a confession
1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales, 28
Phil. 362);
2. Facts admitted must be constitutive of a
criminal offense (U.S. v. Flores, 26 Phil. 262);
3. It must have been given voluntarily (People v.
Nishishima, 57 Phil. 26);
4. It must have been intelligently made (Bilaan v.
Cusi, G.R. No. L-18179, 29 June 1962), the
accused realizing the importance or legal
significance of his act (U.S. v. Agatea, 40 Phil.
596);
5. There must have been no violation of Sec. 12,
Art. III, 1987 Constitution (Regalado, 2008); and
NOTE: A confession to a person, who is not a
police officer, is admissible in evidence. The
declaration acknowledging his guilt of the
offense charged, or of any offense necessarily
included therein, may be given in evidence
against the declarant. Such admissions are not
covered by Secs. 12 (1) and (3), Article III, 1987
Constitution, because they were not extracted
while he or she was under custodial
investigation. (People v. Davao, et al., G.R. No.
174660, 30 May 2011)
6. It must be in writing and signed by such person
in the presence of his counsel or in the latter’s
absence, upon a valid waiver and in the
presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor
640
or priest or minister of the gospel as chosen by
him or her. (Sec. 2(d), R.A. No. 7438)
CLASSIFICATION OF CONFESSIONS
One made by the accused before
an open court in which the case
is pending and in the course of
Judicial legal proceedings therein and, by
confession itself, can sustain conviction and
is admissible against one’s co-
accused. It is governed by Secs. 1,
3 & 4 of Rule 116.
One made in any other place or
occasion other than the court
where the case is pending and
cannot sustain a conviction
unless corroborated by evidence
of corpus delicti. It is generally
binding only upon the confessant
and is not admissible against his
Extrajudicial co-accused. It is governed by Sec.
confession 33 of Rule 130. (Regalado, 2008)
NOTE: If the accused admits
having committed the act in
question but alleges a
justification therefor, such as
absence of criminal intent, the
same is merely an admission.
(Ibid.)
Admissibility of Extrajudicial Confessions
GR: An extrajudicial confession is not admissible
against the confessor’s co-accused. Said confession
is hearsay evidence and violative of the res inter
alios acta rule.
XPN: It may be admitted in evidence against his co-
accused in the following cases:
1. In case of implied acquiescence of the co-
accused to the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by
the confessant after being apprised of such
confession;
 Evidence
4. If they are charged as co-conspirators of the
crime which was confessed by one of the
accused and said confession is used only as
corroborating evidence;
5. Where the confession is used as circumstantial
evidence to show the probability of
participation by the co-conspirator;
6. When the confessant testified for his co-
defendant; and
7. Where the co-conspirator’s extrajudicial
confession is corroborated by other evidence
on record. (Regalado, 2008)
Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
attesting that he was the last person seen with
the woman when she was still alive, Carlito was
arrested within 5 hours after the discovery of
the cadaver and brought to the police station.
The crime laboratory determined that the
woman had been raped. While in police custody,
Carlito broke down in the presence of an
assisting counsel and orally confessed to the
investigator that he had raped and killed the
woman, detailing the acts he had performed up
to his dumping of the body near the creek. He
was genuinely remorseful. During the trial, the
State presented the investigator to testify the
oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar)
A: NO. The oral confession is not admissible as
evidence of guilt. The confession is in the nature of
an extrajudicial confession before an investigator
while under custodial investigation. Hence, the
statutory provisions under R.A. No. 7438 (Sec. 2(d))
will have to be complied with.
Under said law, any extrajudicial confession made
by a person arrested, detained, or under custodial
investigation shall be in writing and signed by such
person in the presence of his counsel. An oral
confession does not comply with the mandatory
provisions of the law. Under R.A. No. 7438, the
confession is inadmissible in evidence in any
proceeding. (Sec. 2(d), R.A. No. 7438)
641
Requirements for an admission of guilt of an
accused during a custodial investigation to be
admitted in evidence
1. The admission must be voluntary (Sec. 12(1),
1987 Constitution);
2. The admission must be in writing (R.A. No.
7438);
3. The admission must be made with the
assistance of competent, independent counsel
(Sec. 12, 1987 Constitution);
4. The admission must be express (People v.
Prinsipe, G.R. No. 135862, 02 May 2002); and
5. In case the accused waives his rights to silence
and to counsel, such waiver must be in writing,
executed with the assistance of competent,
independent counsel. (R.A. No. 7438)
Doctrine of Interlocking Confessions
It states that extrajudicial confessions
independently made without collusion which are
identical with each other in their essential details
and corroborated by other evidence against the
persons implicated, are admissible to show the
probability of the latter’s actual participation in the
commission of the crime. (People v. Mulit, G.R. No.
181043, 08 Oct. 2008)
Q: May an extrajudicial confession made by an
accused be sufficient ground for conviction
A: NO, unless it is corroborated by evidence of
corpus delicti. (Riguera, 2020)
4. PREVIOUS CONDUCT AS EVIDENCE
Similar Acts as Evidence
GR: Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he
or she did or did not do the same or similar thing at
another time. (Sec. 35, Rule 130, ROC, as amended)
This is also referred to as the “Propensity Rule.”
(2002 Bar)
NOTE: This provision constitutes as the second
branch of the res inter alios acta rule as previously
mentioned.
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XPNs: Evidence of similar or previous acts may be to act in a given manner but rather conduct that is
received to prove the following: semi-automatic in nature. In determining whether
(S-K-I-P-S – S-C-H-U-L) the examples are numerous enough and sufficiently
regular, the key criteria are adequacy of sampling
1. Specific intent; and uniformity of response.
2. Knowledge;
3. Identity; Here the defendants did not introduce evidence that
4. Plan; XEI and all the lot buyers in the subdivision had
5. System; executed contracts of sale containing uniform terms
6. Scheme; and conditions. Moreover, even in the 3 contracts
7. Custom; adduced by the defendants, there was no uniformity
8. Habit; as two referred to 120-month terms while the third
9. Usage; and mentioned a 180-month term. (Boston Bank v.
10. The Like (Ibid.) Manalo, G.R. No. 158149, 09 Feb. 2006).

Purpose of the Rule Admissibility of Offers of Compromise

Evidence of similar acts or occurrences compels the CIVIL CASE CRIMINAL CASE
defendant to meet allegations that are not GR: It is NOT an GR: It may be received in
mentioned in the complaint, confuses him in his admission of any evidence as an implied
defense, raises a variety of relevant issues, and liability and is NOT admission of guilt.
diverts the attention of the court from the issues admissible against
immediately before it. Hence, the evidentiary rule the offeror. XPNs:
guards the practical inconvenience of trying 1. In quasi-offenses
collateral issues and protracting the trial, and Neither is evidence where there is no
prevents surprise or other mischief prejudicial to of conduct nor criminal intent
litigants. (Cruz v. CA, G.R. No. 126713, 27 July 1998) statements made in (negligence), such as
compromise reckless imprudence;
Q: The defendants argued that Xavierville Estate negotiations 2. In criminal cases
Inc. (XEI) had allowed them to pay the balance of admissible. allowed by law to be
the purchase of a subdivision lot in 120 monthly compromised such
installments. The defendants introduced three XPN: Evidence as:
contracts to sell in which XEI granted two lot otherwise a. Sec. 7(c), National
buyers a 120-month term of payment and a discoverable or Internal Revenue
third one a 180-month term. May these three offered for another Code – The CIR
contracts to sell prove a habit or custom on the purpose, such as has the power to
part of XEI to grant 120-month terms of proving bias or compromise
payments to it buyers? prejudice of a minor criminal
witness, negativing a violations as may
A: NO. Under Sec. 35, Rule 130, evidence that one contention of undue be determined by
did or did not do a certain thing at one time is not delay, or proving an the Secretary of
admissible to prove that he did or did not do the effort to obstruct a Finance;
same or a similar thing at another time; but it may criminal b. Sec. 408, Local
be received to prove usage, habit or custom. investigation or Government Code
prosecution. – Allowed in
Courts must contend with the caveat that before (Sec. 28, Rule 130, minor offenses
they admit evidence of usage, habit or pattern or ROC, as amended) whose penalties
conduct, the offering party must establish the do not exceed one
degree of specificity and frequency of uniform year;
response that ensures more than a mere tendency

642
 Evidence

c. Art. 266-C, filing of the criminal case against Lloydie for

Revised Penal serious physical injuries through reckless
Code – In cases of imprudence, Lloydie’s insurance carrier offered
marital rape, to pay for the injuries and damages suffered by
where Bea. The offer was rejected because Bea
subsequent considered the amount offered as inadequate.
forgiveness by
the wife a. Is the offer by Lloydie to pay the
extinguishes the hospitalization expenses of Bea admissible
criminal action or in evidence?
penalty. (Suarez
and De la Banda, b. Is the offer by Lloydie’s insurance carrier to
2006) pay for the injuries and damages of Bea
admissible in evidence? (1997 BAR)
NOTE: No compromise is valid in the following
cases: A:
a. NO. It is not admissible in evidence to prove his
1. Civil status of persons; guilt in both the civil and criminal cases. (Sec.
2. Validity of a marriage or legal separation; 28, Rule 130, ROC, as amended)
3. Any ground for legal separation;
4. Future support; b. NO. It is irrelevant. The obligation of the
5. Jurisdiction of courts; insurance company is based on the contract of
6. Future legitime; insurance and is not admissible in evidence
7. Habeas corpus; and against the accused because it was not offered
8. Election cases (Herrera, 1999) by the accused but by the insurance company
which is not his agent.
Q: What is the underlying reason for the
adoption of the rule against the admission of an Admissibility of Plea or Offer (2008 BAR)
offer of compromise in civil cases? (1997 BAR)
OFFER OR PLEA ADMISSIBILITY
A: It is for the reason that parties are encouraged to Plea of guilty later Not admissible in
enter into compromises. Courts should endeavor to withdrawn by the evidence against the
persuade the litigants in a civil case to agree upon accused accused who made the
some fair compromise. (Art. 2029, NCC) During pre- plea
trial, courts should direct the parties to consider the Offer by the accused to Not admissible in
possibility of an amicable settlement. (Sec. 2(a), Rule plead guilty to a lesser evidence against the
18, ROC, as amended) offense but unaccepted accused who made the
by prosecution offer
Q: Berting was accused of having raped Lisa. Offer to pay or Not admissible in
Rule on the admissibility of an offer of Berting to payment of medical, evidence as proof of
marry Lisa. (1998 BAR) hospital or other civil or criminal
expenses occasioned liability for the injury.
A: Berting’s offer to marry Lisa is admissible in by injury (Good (Suarez and De la
evidence as an implied admission of guilt because Samaritan Rule) Banda, Evidence: A
rape cases are not allowed to be compromised. (Sec. Lawyer’s Companion,
28, Rule 130 ROC, as amended) 2006 ed.)
Statement made in the Not admissible against
Q: Lloydie, while driving his car, ran over Bea. course of plea the accused who made
Lloydie visited Bea at the hospital and offered to bargaining with the the statement (Sec. 28,
pay for her hospitalization expenses. After the

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prosecution, which Rule 130, ROC, as
does not result in a amended)
plea of guilty or which
results in a plea of
guilty later withdrawn
Good Samaritan Rule
An offer to pay or the payment of medical, hospital
and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and criminal
liability for the injury.
RATIO: Humanitarian acts or charitable responses
should be encouraged and rewarded instead of
being discouraged or penalized. (Regalado, 2008)
Unaccepted offer
An offer in writing to pay a particular sum of money
or to deliver a written instrument or specific
personal property is, if rejected without valid cause,
equivalent to the actual production and tender of
the money, instrument, or property. (Sec. 36, Rule
130, ROC, as amended)
5. TESTIMONIAL KNOWLEDGE
A witness can testify only to those facts which he or
she knows of his or her personal knowledge; that is,
which are derived from his or her own perception.
(Sec. 23, Rule 130, ROC)
The personal knowledge of a witness is a
substantive prerequisite for accepting testimonial
evidence that establishes the truth of a disputed
fact. A witness bereft of personal knowledge of the
disputed fact cannot be called upon for that purpose
because her testimony derives its value not from the
credit accorded to her as a witness presently
testifying but from the veracity and competency of
the extra judicial source of her information. (People
of the Philippines v. Estibal, G.R. No. 208749, 26 Nov.
2014)
644
6. HEARSAY AND EXCEPTIONS TO THE
HEARSAY RULE
Meaning of Hearsay
Hearsay is a statement other than one made by the
declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted
therein. (Sec. 37, Rule 130, ROC, as amended)
The hearsay statement may be:
1. An oral or written assertion; or
2. A non-verbal conduct of a person if it is
intended by him or her as an assertion. (ibid)
Q: In a police lineup, victim from behind a one-
way mirror points to the accused as the one who
assaulted him. The victim dies before trial.
During the trial, the police officer conducting the
lineup is asked who the victim pointed to as the
culprit. May the defense object and if so, on what
grounds?
A: YES, the defense may object on the ground of
hearsay. An out-of-court statement includes not
only oral or written assertions but also non-verbal
conduct intended as an assertion. The victim’s act of
pointing out a person in the lineup is a nonverbal
assertion. It is as if the victim was saying, “He’s the
one who assaulted me.” The proponent may try to t
the identification under the excited-utterance
exception. (Riguera, 2020)
When a Statement is NOT Considered as Hearsay
A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross-
examination concerning the statement, and the
statement is:
a. Prior inconsistent statement under oath -
Inconsistent with the declarant’s testimony,
and was given under oath subject to the penalty
of perjury at a trial, hearing, or other
proceeding, or in a deposition;
b. Prior consistent statement - Consistent with
the declarant’s testimony and is offered to rebut
an express or implied charge against the
 Evidence
declarant of recent fabrication or improper
influence or motive; or
c. Prior statement of identification - One of
identification of a person made after perceiving
him or her. (Par. 2, Sec. 37, Rule 130, ROC, as
amended)
NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not,
unless offered for a purpose other than proving the
truth of the matter asserted. (Feria v. CA, G.R. No.
122954, 15 Feb. 2000)
Medical certificates cannot be admitted in the
absence of the testimony of the physician who
examined the complaint for alleged torture wounds.
Affidavits are inadmissible unless the affiants
themselves are placed in the witness stand to testify
therefrom.
Q: UCPB General Insurance Co., Inc. issued
Comprehensive Car Insurance Policy to Rommel
Lojo. On December 09, 2005, at around 3:30
p.m., the insured vehicle was bumped at the rear
portion by Pascual Liner, Inc.'s bus driven by
Leopoldo Cadavido. As a result of the impact, the
insured vehicle was pushed forward, causing it
to hit another vehicle, an aluminum van driven
by Nilo Nuñez. The vehicular accident was
investigated by the Traffic Management and
Security Department of the PNCC Skyway
Corporation, for which Solomon Tatlonghari
prepared a Traffic Accident Sketch. Thereafter,
the matter was endorsed to the PNP, for which
PO3 Joselito Quila prepared a Traffic Accident
Report. Lojo filed a claim with UCPB under his
insurance policy, which was approved by UCPB.
Thereafter, UCPB filed a Complaint for sum of
money for P350,000.00 before the RTC, which
was subsequently transferred to MeTC, against
Pascual Liner and Cadavido alleging that as a
result of Lojo's receipt of the insurance
indemnity it paid arising from the damage
caused on the insured vehicle, it was subrogated
to the rights of Lojo. Pascual Liner filed its
Answer (with Affirmative Defense), denying
allegations. It asserted that the Traffic Accident
Report and the Traffic Accident Sketch were not
645
categorical in proving its negligence or that of its
employee; rather, these only proved that the
driver of the insured vehicle was at fault. Is
Hearsay Rule under the Amended Rules of
Evidence applicable?
A: NO. At the time when UCPB filed its complaint
before the MeTC on December 21, 2009, the
prevailing Rules on Evidence was the Rules adopted
on March 14, 1989, under which Sec. 36, Rule 130,
governed the appreciation of hearsay evidence. The
principle of retroactivity of procedural rules cannot
be applied. The Traffic Accident Report serves as the
anchor by which liability for negligence is claimed
by UCPB. To adopt the amended Rules would affect
the manner by which the Traffic Accident Report
was appreciated, which could be used as basis for
re-examination to determine its admissibility in
evidence. This will result into a violation of due
process, which will ultimately cause injustice on the
part of the respondent who relied on the Rules then
existing. As such, we shall continue to be guided by
the superseded provisions of the Rules of Court.
(UCPB General Insurance, Co. v Pascual Liner, Inc.,
G.R. 242328, 26 Apr. 2021)
Statements made through an Interpreter
GR: Statements made through an interpreter are
considered hearsay if a witness is offered to testify
to the statements of another person, spoken in a
language not understood by him, but translated for
him by an interpreter, such witness is not qualified,
because he does not speak from personal
knowledge. All that he can know as to the testimony
is from the interpretation thereof which is in fact
given by another person.
XPNs: In cases where the interpreter had been
selected:
1. By common consent of the parties endeavoring
to converse; or
2. By a party against whom the statements of the
interpreter where offered in evidence
(Principal-Agent Rule).
UNIVERSITY OF SANTO TOMAS
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 Remedial Law

Reasons for Exclusion of Hearsay Evidence The witness purports

to give the facts
a. The lack of opportunity on the part of the party The witness purports directly upon his own
against which it is offered to cross-examine to give an account of credit (though it may
the declarant, that is, the person who made the what another has told appear later that he
statement. him and this is offered was speaking only on
b. The statement or declaration under oath. to evidence the truth of the faith of report from
c. The court does not have the opportunity to the other’s report. others. (Rules
observe the demeanor of the declarant. Committee Notes, citing
(Riguera, 2020) McCormick)
Has no formal
In criminal cases, its admission would be a violation Subject to certain exceptions. (Rules
of the constitutional provision that the accused shall exceptions. Committee Notes, citing
enjoy the right of being confronted with the Lempert & Saltzbur)
witnesses testifying against him and to cross-
examine them. Moreover, the court is without Q: Romeo is sued for damages for injuries
opportunity to test the credibility of hearsay suffered by the plaintiff in a vehicular accident.
statements by observing the demeanor of the Julieta, a witness in court, testifies that Romeo
person who made them. (People v. Pruna, G.R. No. told her that he heard Antonio, a witness to the
138471, 10 Oct. 2002) accident, gives an excited account of the
accident immediately after its occurrence. Is
Evidence not based on personal knowledge Julieta’s testimony admissible against Romeo
(Lack of first-hand knowledge rule) vs. Hearsay over proper and timely objection? Why? (2002
Evidence BAR)

A witness can testify only to those facts which he or A: NO, because the testimony is hearsay. In her
she knows of his or her personal knowledge; that is, testimony, Julieta purports to give an account of
which are derived from his or her own perception. what Romeo had told her. In effect, she is testifying
(Sec. 22, Rule 130, ROC, as amended) to nothing more than her statement, and not the
truth of the facts asserted therein.
If it can be shown from the surrounding
circumstances that a hearsay declarant lacked Exceptions to the Hearsay Rule (1999 BAR)
firsthand knowledge of the subject of his
declaration, evidence of that declaration will 1. Dying declaration (Sec. 38, Rule 130, ROC, as
ordinarily be excluded even if it would otherwise amended);
come within some exception to the hearsay rule. 2. Statement of decedent or person of unsound
(Rules Committee Notes, citing Lempert & Saltzbur) mind (Sec. 39, Rule 130, ROC, as amended)
3. Declaration against interest (Sec. 40, Rule 130,
LACK OF FIRST- ROC, as amended);
HEARSAY RULE HAND KNOWLEDGE 4. Act or declaration about pedigree (Sec. 41, Rule
RULE 130, ROC, as amended);
A statement other than 5. Family reputation or tradition regarding
one made by the pedigree (Sec. 42, Rule 130, ROC, as amended);
Consists of testimony
declarant while 6. Common reputation (Sec. 43, Rule 130, ROC, as
that is not based on
testifying at a trial or amended);
personal knowledge of
hearing, offered to 7. Part of res gestae (Sec. 44, Rule 130, ROC, as
the person testifying.
prove the truth of the amended);
facts asserted therein. 8. Records of regularly conducted business
activity (Sec. 45, Rule 130, ROC, as amended);

646
 Evidence
9. Entries in official records (Sec. 46, Rule 130,
ROC, as amended);
10. Commercial lists and the like (Sec. 47, Rule 130,
ROC, as amended);
11. Learned treatises. (Sec. 48, Rule 130, ROC, as
amended);
12. Testimony or deposition at a former proceeding
(Sec. 49, Rule 130, ROC, as amended); and
13. Residual exception (Sec. 50, Rule 130, ROC, as
amended)
NOTE: The exceptions are hearsay but they are
deemed admissible by reason of necessity and
trustworthiness (Riano, 2019).
Reason for Admissibility
They are admissible by reason of relevancy,
necessity and trustworthiness. (Estrada v. Desierto,
supra)
DYING DECLARATION
(Sec. 38, Rule 130)
The declaration of a dying person, made under the
consciousness of an impending death, may be
received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding
circumstances of such death. (Sec. 38, Rule 130, ROC,
as amended) (1991, 1992, 1993, 1996, 1998,
1999, 2007, 2010, 2017 BAR)
These are ante mortem statements made by a
person after the mortal wound has been inflicted
under the belief that the death is certain, stating the
fact concerning the cause of and the circumstances
surrounding the attack. (Herrera, 1999)
NOTE: Where the elements of both a dying
declaration and a statement as part of the res gestae
are present, the statement may be admitted as a
dying declaration and at the same time as part of res
gestae. (People v. Gado, G.R. No. 129556, 11 Nov.
1998)
647
Requisites for the admissibility of a dying
declaration
1. The declaration concerns the cause and the
surrounding circumstances of the declarant’s
death;
2. It is made when death appears to be imminent
and the declarant is under consciousness of an
impending death;
3. The declarant would have been competent to
testify had he or she survived; and
4. The dying declaration is offered in a case in
which the subject inquiry involves the
declarant’s death. (People of the Philippines v.
Gatarin, G.R. No. 198022, 7 Apr. 2014)
NOTE: In order to make a dying declaration
admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the
belief in impending death and not the rapid
succession of death in point of fact that renders a
dying declaration admissible. (People of the
Philippines v. Quiasayas, G.R. No. 198022, 7 Apr.
2014)
Test to determine the Application of the Rule on
Dying Declaration
Whether the declarant has abandoned all hopes of
survival and looked on death as certainly
impending. (Ibid.)
Time Interval
GR: The intervening time from the making of a dying
declaration up to the time of death is immaterial in
its admissibility, as long as it was made under the
consciousness of impending death.
XPNs:
1. If there is retraction made by the declarant
before he died; or
2. His declaration is ambiguous as to whether he
believed that his death was imminent when he
made such declaration. (Regalado, 2008)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
It is of no moment that the victim died seven days
from the stabbing incident and after receiving
adequate care and treatment, because the apparent
proximate cause of his death was a consequence of
the stabbing. (People of the Philippines v. Rarugal,
G.R. No. 188603, 16 Jan. 2013)
Factors in Determining whether the Declarant is
Conscious of his Impending Death
1. The words or statements of the declarant on the
same occasion;
2. His conduct at the time the declaration was
made; and
3. The serious nature of his wounds as would
necessarily engender a belief on his part that he
would not survive therefrom. (Regalado, 2008)
NOTE: The dying declaration of the deceased is not
admissible as an ante-mortem declaration when the
deceased was in doubt as to whether he would die
or not. It may, however, be admitted as part of res
gestae when it is made immediate after a startling
occurrence. (People of the Philippines v. Laquinon,
G.R. No. L-45470, 28 Feb. 1985)
Q: Sam was charged with robbery and homicide.
Kitchie, the victim, suffered several stab
wounds. It appears that 11 hours after the crime,
while Kitchie was being brought to the hospital
in a jeep, with his brother and a policeman as
companions, Kitchie was asked certain
questions which she answered, pointing to Sam
as her assailant. Her answers were put down in
writing, but since she was in a critical condition,
her brother and the policeman signed the
statement. Is the statement admissible as a
dying declaration? Explain. (1999 BAR)
A: YES. The statement is admissible as a dying
declaration if the victim subsequently died and her
answers were made under the consciousness of an
impending death. The fact that she did not sign the
statement pointing to the accused as her assailant
because she was in a critical condition does not
affect its admissibility as a dying declaration.
(People v. Viovicente, G.R. No. 118707, 02 Feb. 1998)
NOTE: A dying declaration may be oral or written. If
oral, the witness who heard it may testify thereto
648
without the necessity of reproducing the word of
the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used
as a memorandum by the witness who took it down.
(People v. Boller, G.R. Nos. 144222-24, 03 Apr. 2002)
Q: Zapanta, while watching television, heard 4
successive gunshots. When Zapanta looked
through the open door, he saw 2 men armed
with .38 caliber revolvers standing a meter away
from Borre. He saw Palanas deliver the fourth
shot but he could not identify the other shooter.
On the way to the hospital, Borre told Zapanta
that it was "Abe", "Aspog" or "Abe Palanas", his
neighbor, who shot him. This statement was
repeated to Borre’s wife, Resurreccion, who
followed him at the hospital. For his part,
Palanas interposed the defense of denial and
alibi. He claimed that on the day before the
incident, he was in Parañaque City attending to
the needs of his sick father. On the next day, he
went to Tondo, Manila for a baptism and stayed
there from morning until 9:00 p.m., after which
he returned to his father in Parañaque City. He
maintained that he was not aware of the death of
Borre until he was informed by a neighbor that
Resurreccion was accusing him of killing her
husband.
Can Borre’s statements on his way to the
hospital be considered a dying declaration and
part of the res gestae?
A: YES. Borre’s statements constitute a dying
declaration as they pertained to the cause and
circumstances of his death. Moreover, taking into
consideration the number and severity of his
wounds, it may be reasonably presumed that he
uttered the same under a fixed belief that his own
death was already imminent.
In the same vein, Borre’s statements may likewise
be deemed to form part of the res gestae as they
refer to a startling occurrence, i.e., him being shot.
While on his way to the hospital, Borre had no time
to contrive the identification of his assailants, thus,
his utterance was made in spontaneity and only in
reaction to the startling occurrence. (People v.
Palanas, G.R. No. 214453, 17 June 2015)
 Evidence
Assailing a Dying Declaration
The declaration may be attacked in the same
manner as one would do a testimony in open court.
The declarant himself may be impeached through
the normal methods provided for under the rules. A
dying declaration, as an exception to the hearsay
rule, is not meant to confer competency on an
otherwise incompetent witness.
STATEMENT OF DECEDENT OR A PERSON OF
UNSOUND MIND
(Sec. 39, Rule 130)
Requisites:
1. There is an action against an executor or
administrator or another representative of a
deceased person, or against a person of
unsound mind;
2. The action is upon a claim or demand against
the estate of such deceased person or against
such person of unsound mind;
3. A party or assignor of a party or a person in
whose behalf a case is prosecuted testifies on a
matter of fact occurring before the death of the
deceased person or before the person became
of unsound mind.;
4. There was a statement made by the deceased or
the person of unsound mind;
5. Such statement was made upon the personal
knowledge of the deceased or the person of
unsound mind at a time when:
a. the matter had been recently perceived by
him or her; and
b. while his or her recollection was clear.
If all the requisites are met the statement of the
decedent or the person of unsound mind may be
received in evidence as an exception to the hearsay
rule.
NOTE: Such statement, however, is INADMISSIBLE
if made under circumstances indicating its lack of
trustworthiness.
649
DECLARATION AGAINST INTEREST
(Sec. 40, Rule 130)
The declaration made by a person deceased or
unable to testify against the interest of the
declarant, if the fact asserted in the declaration was
at the time it was made so far contrary to the
declarant’s own interest that a reasonable person in
his or her position would not have made the
declaration unless he or she believed it to be true
may be received in evidence against himself or
herself or his or her successors in interest and
against third persons.
A statement tending to expose the declarant to
criminal liability and offered t exculpate the accused
is not admissible unless corroborating
circumstances clearly indicate the trustworthiness
of the statement. (Sec. 40, Rule 130, ROC, as
amended)
NOTE: A statement against interest tending to
expose the declarant to criminal liability and offered
to exculpate the accused (which is presumably
different from the declarant) is not admissible
unless corroborating circumstances clearly indicate
trustworthiness of the statement.
These are ante litem motam statements made by a
person who is neither a party nor in privity with a
party to the suit. Such are considered secondary
evidence and admissible only when the declarant is
already dead or unavailable to testify as a witness
and may be admitted against himself or successors-
in-interest and against third persons.
Reason for the admissibility of declaration
against interest
1. Necessity - as such declaration, act, or omission
is frequently the only mode of proof available;
and
2. Trustworthiness - presumed that men will
neither falsify nor commit mistakes when such
falsehood or mistake would be prejudicial to
their own pecuniary interest, and because of the
fact that any fraudulent motive for making the
statement may be shown.
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

Requisites of Declaration against Interest identified in legal

interest with such
1. The declarant is dead or unable to testify; party.
2. The declaration relates to a fact against the Must be against the Need not be against the
interest of the declarant; declarant’s interest. admitter’s interest.
3. At the time he made said declaration, he was
Secondary evidence is
aware that the same was contrary to his Primary evidence is
admissible only when
interest; and admissible whether
the declarant is already
4. The declarant had no motive to falsify and the declarant is
dead or unavailable to
believed such declaration to be true. available as a witness.
testify as a witness.
Q: Alejandro Cuenca was charged with the crime Hearsay, but
admissible as an Not hearsay, thus
of kidnapping Hector Ocampo. One of the
testimonies presented by the prosecution was exception to the admissible.
that of Maribelle Magdayao, who testified that hearsay rule.
Hector confided to her that he and Alejandro’s Must have been made May be made at any
wife Rubi were having an affair. Undoubtedly, ante litem motam, i.e., time, before or during
his wife’s infidelity was ample reason for before the controversy the trial.
Alejandro to contemplate revenge. The declarant must be No requirement that
Consequently, the trial court convicted dead or unable to the admitter is dead or
Alejandro based on the testimonies of the testify. unable to testify.
witnesses. Was the testimony of Maribelle Admissible against the
Admissible only
admissible as evidence? declarant and third
against the admitter.
persons.
A: YES. Hector’s revelation to Maribelle regarding
his illicit relationship with Alejandro’s wife is ACT OR DECLARATION ABOUT PEDIGREE
admissible in evidence, pursuant to Section 38, Rule (Sec. 41, Rule 130)
130. With the deletion of the phrase “pecuniary or
moral interest” from the present provision, it is safe The act or declaration of a person deceased or
to assume that “declaration against interest” has unable to testify, in respect to the pedigree of
been expanded to include all kinds of interest, that another person related to him or her by birth,
is, pecuniary, proprietary, moral or even penal. adoption or marriage, or in the absence thereof,
Hector having been missing since his abduction, with whose family he or she was so intimately
cannot be called upon to testify. His confession to associated as to be likely to have accurate
Maribelle, definitely a declaration against his own information concerning his or her pedigree, may be
interest, since his affair with Rubi was a crime, is received in evidence where it occurred before the
admissible in evidence because no sane person will controversy, and the relationship between the two
be presumed to tell a falsehood to his own persons is shown by evidence other than such act or
detriment. (People v. Bernal, G.R. No. 113685, 19 June declaration. The word “pedigree” includes
1997) relationship, family genealogy, birth, marriage,
death, the dates when and the places where these
Declaration against Interest vs. Admission facts occurred, and the names of the relatives. It
against Interest embraces also facts of family history intimately
connected with pedigree. (Sec. 4, Rule 130, ROC, as
DECLARATION ADMISSION AGAINST amended)
AGAINST INTEREST INTEREST
Made by a party to a
Made by a non-party. litigation or by one in
privity with or

650
 Evidence

Pedigree 5. The relationship between the declarant and the

person whose pedigree is in question must be
It includes: shown by evidence other than such act or
declaration. (Tecson v. COMELEC, G.R. No.
1. Relationship; 161434, 03 Mar. 2004)
2. Family genealogy;
3. Birth; NOTE: Such declarations are natural expressions of
4. Marriage; persons who must know the truth. Although
5. Death; hearsay, it is best that the nature of the case admits
6. The dates when and the places where the facts and because greater evil might arise from the
occurred; rejection of such proof than from its admission.
7. Names of the relatives; and
8. Facts of family history intimately connected FAMILY REPUTATION OR TRADITION
with pedigree. (Ibid.) REGARDING PEDIGREE
(Sec. 42, Rule 130)
NOTE: The relationship between the declarant and
the person subject of the inquiry must be legitimate The declarant is the witness himself and a member
unless the issue is the legitimacy itself. of the family. The witness is the one to whom the
fact relates, it is not necessary for him to establish
There is no provision as to the extent of degree of by independent evidence his relationship to the
relationship. family.

Rationale for Admissibility The reputation or tradition existing in a family

1. Necessity- since the facts about pedigree are
usually those which occurred many years
before the trial and known only to a few
persons; and
2. Trustworthiness- since these are matters
which members of a family are presumed to be
interested in ascertaining the truth.
Requisites for the Admissibility of Acts or
Declarations about Pedigree
1. The declarant is dead or unable to testify;
2. The pedigree should be in issue;
previous to the controversy in respect to the
pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also
a member of the family, either by consanguinity,
affinity or adoption. Entries in family bibles or other
family books or charts, engraving on rings, family
portraits and the like, may be received as evidence
of pedigree. (Sec 42, Rule 130, ROC, as amended)
Reason for Admissibility
These are admissible by reason of necessity since
tradition is often the sole method by which proof of
matters of pedigree can be obtained.
Requisites for the Admissibility of Family
Reputation or Tradition Regarding Pedigree

3. The declarant must be a relative of the person
whose pedigree is in question, either by birth or
marriage or adoption (Sec. 4, Rule 130, ROC, as
amended) or in the absence thereof, by person
whose family he or she was so intimately
associated as to be likely to have accurate
information concerning his or her pedigree;
4. The declaration must be made ante litem
motam or before the controversy occurred; and
1. There is controversy in respect to the pedigree
of any member of the family;
2. The reputation or tradition of the pedigree of
the person concerned existed previous to the
controversy;
3. The statement is about the reputation or
tradition of the family in respect to the pedigree
of any member of the family; and
4. The witness testifying to the reputation or
tradition regarding pedigree of the person

651 UNIVERSITY OF SANTO TOMAS

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concerned must be a member of the family of
said person either by consanguinity, affinity or
adoption.
How to establish Family Reputation or Tradition
with respect to One’s Pedigree
to events of general history important to the
community, or respecting marriage or moral
character, may be given in evidence. Monuments
and inscriptions in public places may be received as
evidence of common reputation. (Sec 43, Rule 130,
ROC, as amended)

1. Through testimony in open court of a witness It is the definite opinion of the community in which
who must be a member of the family either by the fact to be proved is known or exists. It means the
consanguinity, affinity, or adoption; or general or substantially undivided reputation, as
distinguished from a partial or qualified one,
2. Through entries in: although it need not be unanimous. (Regalado,
2008)
a. Family bible;
b. Family books or charts; NOTE: As a general rule, the reputation of a person
c. Engravings on rings; or should be that existing in the place of his residence;
d. Family portraits and the like. it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
Act or Declaration about Pedigree (Sec. 41, Rule reputation is what he is supposed to be in what
130) vs. Family Reputation regarding Pedigree people say he is. (Lim v. CA, G.R. No. 91114, 25 Sept.
Sec. 42, Rule 130) 1992)

ACT OR FAMILY Reasons for Admissibility

DECLARATION REPUTATION OR
ABOUT PEDIGREE TRADITION 1. Necessity arising from the inherent difficulty of
REGARDING obtaining any other evidence than that in the
PEDIGREE nature of common reputation; and
Witness need not be a Witness is a member of
member of the family. the family. 2. Trustworthiness of the evidence arising from:
Relation of the The witness is the one
declarant and the to whom the fact a. The supposition that the public is
person subject of the relates, it is not conversant with the subject to be proved
inquiry must be necessary for him to because of their general interest therein;
established by establish by and
independent evidence. independent evidence
his relationship to the b. The fact that the falsity or error of such
family. (Francisco, evidence could be exposed or corrected by
1992) other testimony since the public are
Testimony is about Testimony is about interested in the same. (Francisco, 1992)
what the declarant has family reputation or
said concerning the tradition covering Matters that may be Established by Common
pedigree of the family. matters of pedigree. Reputation

COMMON REPUTATION 1. Matters of public and general interest more

(Sec. 43, Rule 130) than 30 years old;
2. Matters respecting marriage or moral character
Common reputation existing previous to the and related facts; and
controversy, as to boundaries of or customs 3. Individual moral character.
affecting lands in the community and reputation as

652
 Evidence
NOTE: Marriage, if not proven through an act or
declaration about pedigree may be proven through
common reputation. (Trinidad v. CA, G.R. 118904, 20
Apr. 1998)
Q: In an attempt to discredit and impeach a
prosecution witness in a homicide case, the
defense counsel called to the stand a person who
had been the boyhood friend and next-door
neighbor of the said witness for 30 years. One
question that the defense counsel asked of the
impeaching witness was: "Can you tell this
Honorable Court about the general reputation of
the prosecution witness in your community for
aggressiveness and violent tendencies?" As the
trial prosecutor, would you interpose your
objection to the question of the defense counsel?
Explain your answer.
A: YES. Under the Rules, an adverse party’s witness
may be properly impeached by reputation evidence
provided that it is to the effect that the witness’
general reputation for honesty, truth, or integrity
was bad. The reputation must only be on character
for truthfulness or untruthfulness. (Cordial v.
People, G.R. No. L-75880, 25 Sept. 1992)
Difference between Matters of Public Interest
and Matters of General Interest
Matters of public interest involve those which are
common to all citizen of the state or to the entire
people.
Matters of general interest involve those which
are common only to a single community or to a
considerable number of persons forming part of the
community.
PART OF THE RES GESTAE
(Sec. 44, Rule 130)
Res Gestae (2005, 2007, 2014 BAR)
It is a Latin phrase which literally means “things
done.”
Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto, under the stress of excitement
653
caused by the occurrence with respect to the
circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements
accompanying an equivocal act material to the
issue, and giving it a legal significance may be
received as part of the res gestae.
As an exception to the hearsay rule, it refers to those
exclamations and statements by either the
participants, victims, or spectators to a crime
immediately before, during or immediately after the
commission of the crime, when the circumstances
are such that the statements were made as
spontaneous reactions or utterances inspired by the
excitement of the occasion, and there was no
opportunity for the declarant to deliberate and
fabricate a false statement. (Capila v. People, G.R. No.
146161, 17 July 2006)
Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and
serve to illustrate its character and are so
spontaneous and contemporaneous with the main
act as to exclude the idea of deliberation and
fabrication. (People of the Philippines v. Quiasayas,
G.R. No. 198022, 07 Apr. 2014)
Test of Admissibility
The test is whether the act, declaration, exclamation
is so intimately interwoven or connected with the
principal fact or even that it characterizes as to be
regarded as a part of the transaction itself, and also
whether it clearly negates any premeditation or
purpose to manufacture testimony. (Ibid.)
Q: 4 separate Information for Rape and 1
Information for Attempted Rape were filed in
the RTC against XXX. In her direct testimony,
AAA testified that the accused is her father. At
the hearing on January 20, 2003, Public
Prosecutor Marites Macarubbo informed the
court that AAA died. The prosecution adduced
evidence of res gestae through the testimonies
of its witnesses, EEE and Gelmie Calug. EEE
testified that at noontime on April 16, 2001, AAA
arrived at her house. She noticed that AAA was
sad and crying. Upon her inquiry, AAA told her
that she was raped by her father on April 8, and
3 times hours ago on April 15, 2001. While
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Gelmie Calug testified that on April 18, 2001,
AAA reported for work for the first time as a
house helper in the house of Pedro de los Santos.
He noticed that AAA was sad and lonely, and
often saw her crying. She confided to him her
problems and revealed to him that she was
raped by her own father on April 8 and 15 2001.
Were the testimonies of Calug and EEE
pertaining to the statements of AAA considered
part of the res gestae and thus produce a
conviction?
A: YES. It is well entrenched that a witness may only
testify on facts derived from his own perception and
not on what he has merely learned or heard from
others. Hence, as a general rule, hearsay evidence is
inadmissible in courts of law. As an exception,
however, Sec. 42 of Rule 130 allows the admission
of hearsay evidence as part of the res gestae.
In determining the admissibility of evidence as part
of the res gestae, the test is whether the act or
declaration was made as a spontaneous reaction
and is so intimately interwoven or connected with
the principal fact or event that it characterizes as to
be regarded as a part of the transaction itself and
whether it negates any premeditation or purpose to
manufacture testimony.
EEE’s testimony places AAA’s utterances only
several hours from the time the disputed incidents
took place on April 15, 2001. Meanwhile, with
respect to Calug’s testimony, which consisted of
statements given by AAA on April 18, 2001, or 3
days after April 15, 2001, incidents, the Court finds
that the RTC and CA incorrectly considered the
same as part of the res gestae. In this light, the Court
finds that the utterances made to Calug are far too
removed from the event described as to form part of
the res gestae. The clear and straightforward
testimony of EEE, together with the medico-legal
findings consistent with the facts described,
produces a conviction beyond reasonable doubt
that XXX is guilty for the repeated defilement of his
own daughter, AAA. (People v. XXX, G.R. No. 205888,
2 Aug. 2018, J. Caguioa)
654
Reason for admissibility
The reason for the rule is human experience. It has
been shown that under certain external
circumstances of physical or mental shock, the state
of nervous excitement which occurs in a spectator
may produce a spontaneous and sincere response to
the actual sensations and perceptions produced by
the external shock.
The spontaneity of the declaration is such that the
declaration itself may be regarded as the event
speaking through the declarant rather than the
declarant speaking for himself.
Requisites for the admissibility of res gestae
1. That the principal act, the res gestae, be a
startling occurrence;
2. The statements were made before the declarant
had the time to contrive or devise a falsehood;
and
3. That the statements must concern the
occurrence in questions and its immediate
attending circumstances. (People of the
Philippines v. Estibal, G.R. No. 208749, 26 Nov.
2014)
Factors to determine spontaneity of declaration
1. The time that has lapsed between the
occurrence of the act or transaction and the
making of the statement;
2. The place where the statement is made;
3. The condition of the declarant when the
utterance is given;
4. The presence or absence of intervening events
between the occurrence and the statement
relative; and
5. The nature and the circumstances of the
statement itself. (Francisco, 1992)
Q: Edgardo Lupac was convicted of the crime of
rape. One of the evidence adduced was AAA’s
spontaneous, unhesitating and immediate
denunciation of the rape to her Tita Terry and
 Evidence

her mother (hindot and inano ako ni Kuya Ega May precede, or Confined to matters
being the term she used). Is the statement made accompany or follow occurring after the
by AAA part of the res gestae under Section 42, the principal act. homicidal act.
Rule 130 of the Rules of Court?
Justification is the Justification is the
A: YES. AAA’s denunciation was part of the res spontaneity of the trustworthiness, being
gestae. AAA went to Tita Terry’s house immediately statement. given by the person
after fleeing from Lupac and spontaneously, who was aware of his
unhesitatingly and immediately declared to Tita impending death.
Terry that Lupac had sexually abused her. Such
manner of denunciation of him as her rapist was Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr.,
confirmed by Tita Terry’s testimony about AAA’s Jerry Ramentos, and Ricky Villarico were
panic-stricken demeanor that rendered it difficult to convicted of the crime of murder for the killing
quickly comprehend what the victim was then of Haide Cagatan. One of the pieces of evidence
saying. Of course, AAA’s use of the words “hindot adduced was a statement of Haide to his mother
and inano ako ni Kuya Ega” said enough about her saying that Berting shot him in the immediate
being raped. (People v. Lupac, G.R. No. 182230, 19 aftermath of the shooting where he was the
Sept. 2012) victim. Is the statement made by Haide
admissible?
Verbal Acts
A: YES. Haide’s statement was part of the res gestae
1. The principal act to be characterized must be and was admissible. The requisites concurred
equivocal; herein. Firstly, the principal act of shooting Haide
2. The equivocal act must be material to the issue; was a startling occurrence. Secondly, his statement
3. The statement must accompany the equivocal to his mother about being shot by the group of
act; and Berting was made before Haide had time to contrive
4. The statement gives a legal significance to the or to devise considering that it was uttered
equivocal act. immediately after the shooting. And, thirdly, the
statement directly concerned the startling
NOTE: The reason for the admissibility of verbal occurrence itself and its attending circumstance:
acts is that the motive, character and object of an act that is, the identities of the assailants. (People v.
are frequently indicated by what was said by the Villarico, et. al., G.R. No. 158362, 04 Apr. 2011)
person engaged in the act.
Q: While passing by a dark uninhabited part of
Part of Res Gestae vs. Dying Declaration their barangay, PO2 Asintado observed
shadows and heard screams from a distance.
PART OF RES GESTAE DYING PO2 Asintado hid himself behind the bushes and
DECLARATION saw a man beating a woman whom he
It is the event itself A sense of impending recognized as his neighbour, Kulasa. When
which speaks. death takes the place of Kulasa was already in agony the man stabbed
an oath and the law her and she fell on the ground. The man
regards the declarant hurriedly left thereafter. PO2 Asintado
as testifying. immediately went to Kulasa’s rescue. Kulasa
May be made by the Can be made by the who was then in a state of hysteria, kept
killer after or during victim only. mentioning to PO2 Asintado “Si Rene, gusto
the killing or that of a akong patayin! Sinaksak niya ako!” When PO2
third person. Asintado was about to carry her, Kulasa refused
and said “Kaya ko. Mababaw lang to. Habulin mo
si Rene.” The following day, Rene learned of

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Kulasa’s death and, bothered by his conscience,
surrendered to the authorities with his counsel.
As his surrender was broadcasted all over
media, Rene opted to release his statement to
the press which goes:
“I believe that I am entitled to the
presumption of innocence until my guilt
is proven beyond reasonable doubt.
Although I admit that I performed acts
that may take one’s life away, I hope and
pray that justice will be served in the
right way. God bless us all.
(Sgd.)
Rene”
The trial court convicted Rene of homicide on
the basis of PO2 Asintado’s testimony, Kulasa’s
statements, and Rene’s statement to the press.
On appeal, Rene raises the following error:
The trial court erred in giving weight to PO2
Asintado’s testimony, as the latter did not have
personal knowledge of the facts in issue, and
violated Rene’s right to due process when it
considered Kulasa’s statements despite lack of
opportunity for her cross-examination. Resolve.
(2014 BAR)
A: The trial court did not err in giving weight to PO2
Asintado’s testimony. While a witness can only
testify as to those facts which he has personal
knowledge, the Rules provide that a statement
made under the influence of a startling event
witnessed by the person who made the declaration
before he had time to think and make up a story, or
to concoct or contrive a falsehood, or to fabricate an
account, and without any undue influence in
obtaining it, aside from referring to the event in
question or its immediate attending circumstances,
is an exception being part of res gestae. (Belbis, Jr., v.
People, G.R. No. 181052, 14 Nov. 2012)
In the case, the statements made by PO2 Asintado
constitutes part of res gestae since the same were
made without any opportunity to fabricate and
while a startling occurrence was actually taking
place. In addition, the statement of PO2 Asintado
may fall within the purview of the doctrine of
independent relevant statement, where only the
656
fact that such statements were made is relevant, and
the truth and falsity thereof is immaterial. (People v.
Malibiran, G.R. No. 178301, 24 Apr. 2009) On the
other hand, Kulasa’s statements are also admissible
as part of res gestae since the same were made
under the influence of a startling event and without
any opportunity to concoct or devise a falsehood.
RECORDS OF REGULARLY CONDUCTED
BUSINESS ACTIVITY
(Sec. 45, Rule 130)
A memorandum, report, record or data compilation
of acts, events conditions, opinions or diagnoses
made by writing, typing, electronic, optical or other
similar means at or near the time of or from
transmission or supply of information by a person
with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
was the regular practice to make the memorandum,
report, record, or data compilation by electronic,
optical or similar means, all of which are shown by
the testimony of the custodian or other qualified
witnesses is excepted from the rule in hearsay
evidence. (Sec. 45, Rule 130, ROC, as amended)
NOTE: Reliability is furnished by the fact that
regularly kept records typically have a high degree
of accuracy. The law does not fix any precise
moment when the entries should be made. It is
sufficient if the entry was made within a reasonable
period of time so that it may appear to have taken
place while the memory of the facts was
unimpaired.
Availability or Unavailability of the Entrant
A significant change or innovation under Sec. 45 is
that the availability or unavailability of the entrant
is no longer material. Under the old rule on business
entries, it was required that the entrant be dead or
unavailable to testify. (Riguera, 2020)
Requisites for the admission of a business
record as an exception to the hearsay rule
Requisites for the Admission of a Business
Record as an Exception to the Hearsay Rule
1. There is a memorandum, report or data
compilation of acts, events, conditions,
 Evidence

opinions, made by writing, typing, electronic, Reason for admissibility

optical or other similar means;
2. The memorandum etc. is made at or near the
time of the act, event, etc.;
3. The memorandum etc., is made by, or from
transmission or supply of information by, a
person with knowledge of the act, event, etc.;
1. Necessity – due to the impossibility of requiring
the official’s attendance as a witness to testify to
the innumerable transactions occurring in the
course of his duty; and
2. Trustworthiness – there is a presumption of
regularity in the performance of official duty.

4. The memorandum, etc. is kept in the regular Requisites for the Admissibility of Entries in
course or conduct of a business activity; Official Records (K-P-O)

5. It was the regular practice of the business 1. Entrant had personal Knowledge of the facts
activity to make the memorandum, report, stated by him or such facts were acquired by
record or data compilation by writing, typing, him from reports made by persons under a legal
electronic, optical or similar means; duty to submit the same.

6. All of the foregoing conditions are shown by the 2. Entries were made by a Public officer in the
testimony of the custodian or other qualified performance of his duties or by a person in the
witnesses. (Riguera, 2020) performance of a duty especially enjoined by
law; and
Q: Are business records prima facie evidence of
the facts stated therein? 3. Entries must have been made in Official
records. (Ibid.)
A: No longer under the ROC, as amended. (Riguera,
2020) Entries in Official Record vs. Entries in the
Course of Business
ENTRIES IN OFFICIAL RECORDS
(Sec. 46, Rule 130) ENTRIES IN ENTRIES IN THE
OFFICIAL RECORD COURSE OF BUSINESS
Entries in official records made in the performance The entrant, if a private It is sufficient that the
of his or her duty by a public officer of the individual, must have entrant made the
Philippines, or by a person in the performance of a acted pursuant to a entries pursuant to a
duty specially enjoined by law, are prima facie specific legal duty duty be it legal,
evidence of the facts therein stated. (Sec. 46, Rule specially enjoined by contractual, moral or
130, ROC, as amended) law. religious.
Entrant need not be Entrant must be dead
Official record dead or unable to or unable to testify.
testify.
The original document that is legally recognized and Need not be Needs authentication.
thus ensuring the quality of a fact when it is authenticated.
established. It may be a:
Q: Should entries in the police blotter be given
1. Register; probative value?
2. Cash book; or
3. An official return or certificate (Regalado, 2008) A: NO, as they are not conclusive evidence of the
truth of the contents but merely of the fact that they

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 Remedial Law
were recorded. (People v. Cabrera, Jr., G.R. No.
138266, 30 Apr. 2003)
COMMERCIAL LISTS AND THE LIKE
(Sec. 47, Rule 130)
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons engaged
in that occupation and is generally used and relied
upon by them therein. (Sec. 47, Rule 130, ROC, as
amended)
Reason for Admissibility of Commercial Lists
1. Necessity - because of the usual inaccessibility
of the persons responsible for the compilation
of matters contained in such lists, it would
cause the court inconvenience if it would issue
summons to these numerous individuals; and
2. Trustworthiness - persons responsible for
such lists have no motive to deceive and they
further realize that unless the list, register or
periodical or other published compilation are
prepared with care and accuracy, their work
will have no commercial or probative value.
Requisites for the Admissibility of Commercial
Lists and the like
1. Statements of matters of interest to persons
engaged in an occupation;
2. Statements must be contained in a list, register,
periodical, or other published compilation;
3. Compilation is published for use by persons
engaged in that occupation; and
4. Such is generally relied upon by them.
Q: In a compulsory arbitration case between
Mercalco and its union, may the Secretary of
Labor take into account a newspaper report
citing an All Asia Capital finance analyst’s
estimate o Meralco’s 1996 net operating income
at P5.6 billion and upon which the union relied
upon in order to support its position on the wage
issue?
658
A: NO. Under Sec. 47, Rule 130, statement of matters
contained in a periodical may be admitted only “if
that compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein.” The cited report
is a mere newspaper account and not even a
commercial list. At most, it is but an analysis or
opinion which carries no persuasive weight as no
sufficient figures to support it were presented.
Neither did anybody testify to its accuracy. It cannot
be said that businessmen generally rely on news
items such as this in their occupation. Besides, no
evidence was presented that the publication was
regularly prepared by a person in touch with the
market and that it is generally regarded as
trustworthy or reliable. Absent extrinsic proof of
the accuracy, these reports are not admissible.
(Riguera, 2020, citing Manila Electric Co. v.
Quisumbing, G.R. No. 127598, 22 Feb. 2000)
Examples of Commercial Lists
1. Trade journals reporting current prices and
other market data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title
examining institutions or individuals; or
4. Business directories, animal pedigree registers,
and the like. (Francisco, 1992)
LEARNED TREATISES
(Sec. 48, Rule 130)
A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his or her profession or calling as
expert in the subject. (Sec. 48, Rule 130, ROC, as
amended)
Reason for Admissibility
The learned writers have no motive to misrepresent
due to the awareness that his work will be carefully
scrutinized by the learned members of the
profession and that he shall be subject to criticisms
and be ultimately rejected as an authority on the
 Evidence
subject matter if his conclusions are found to be
invalid.
Requisites for the Admissibility of Learned
Treatises
1. When the court can take judicial notice of them;
or
2. When an expert witness testifies that the author
of such is recognized as expert in that
profession. (Sec. 48, Rule 130, ROC, as amended)
TESTIMONY OR DEPOSITION AT A FORMER
PROCEEDING
(Sec. 49, Rule 130)
The testimony or deposition of a witness deceased
or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
evidence against the adverse party who had the
opportunity to cross examine him or her. (Sec. 49,
Rule 130, ROC, as amended)
Requisites for the Rule on Former Testimony to
Apply
1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
3. The former case involved the same subject as
that in the present case, although on different
causes of action;
NOTE: Section 47 (now Sec. 49), Rule 130
requires that the issues involved in both cases
must, at least, be substantially the same;
otherwise, there is no basis in saying that the
former statement was - or would have been -
sufficiently tested by cross-examination or by
an opportunity to do so. The requirement of
similarity though does not mean that all the
issues in the two proceedings should be the
same. Although some issues may not be the
659
same in the two actions, the admissibility of a
former testimony on an issue which is similar in
both actions cannot be questioned.
These considerations, among others, make
Section 47, Rule 130 a distinct rule on evidence
and therefore should not be confused with the
general provisions on deposition under Rule 23
of the Rules of Court. In other words, even if the
petitioner complies with Rule 23 of the Rules of
Court on the use of depositions, the observance
of Section 47, Rule 130 of the Rules of Court
cannot simply be avoided or
disregarded. (Republic v. Sandiganbayan, G.R.
No. 152375, 13 Dec. 2011)
4. The issue testified to by the witness in the
former trial is the same issue involved in the
present case; and
5. The adverse party had an opportunity to cross-
examine the witness in the former case.
(Ambray v. Tsuorous, G.R. No. 209264, 05 July
2016)
Reason for Admissibility
The reasons for the admissibility of testimony taken
at a former trial or proceeding are the necessity for
the testimony and its trustworthiness. However,
before the former testimony can be introduced in
evidence, the proponent must first lay the proper
predicate therefor, i.e., the party must establish the
basis for the admission of testimony in the realm of
admissible evidence. (Ibid.)
Grounds which make a Witness Unable to
Testify in a Subsequent Case
1. Death;
2. Insanity or mental incapacity or the former
witness’ loss of memory through old age or
disease;
3. Physical disability by reason of sickness or
advanced age;
4. The fact that the witness has been kept away by
contrivance of the opposite party; or
5. The fact that after diligent search the former
witness cannot be found. (Francisco, 1992)
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 Remedial Law
Proof of Former Testimony
1. If reduced to writing, such writing is the
primary evidence thereof and should be used;
or
2. The stenographic notes or a copy thereof.
NOTE: The judge’s notes are not evidence of what
the witness said, and, as a rule, they can be used only
to refresh the memory of a witness.
RESIDUAL EXCEPTION
(Sec. 50, Rule 130)
A statement not specifically covered by any of the
exceptions, having circumstantial guarantees of
trustworthiness, is admissible provided the
conditions under Sec. 50, Rule 130 are present.
Requisites for Admissibility
1. The statement, having equivalent
circumstantial guarantees of trustworthiness,
must not be covered by any of the foregoing
exceptions;
2. The statement is offered as evidence of a
material fact;
3. The statement is more probative on the point
for which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and
4. The general purposes of these rules and the
interests of justice will be best served by
admission of the statement of evidence. (Sec. 50,
Rule 130, ROC, as amended)
NOTE: A statement may not be admitted under this
exception unless the proponent makes known to the
adverse party, sufficiently in advance of the hearing,
or by the pre-trial stage in the case of a trial of the
main case, to provide the adverse party with a fair
opportunity to meet it, the proponent’s intention to
offer the statement and the particulars of it,
including the name and address of the declarant.
(Ibid.)
660
Independently Relevant Statements
These are statements which are relevant
independently of whether they are true or not. They
are neither hearsay nor an exception to the hearsay
rule as the purpose thereof is not to prove the truth
of the declaration or document. (Estrada v. Desierto,
supra) It merely proves the fact that a statement
was made and not the truth of the fact asserted in
the statement. (1999, 2005, 2009, 2010 BAR)
An out-of-court statement which is relevant not for
the truth off a matter asserted therein, but for
something else, e.g., state of mind, intent, belief, the
mere fact of utterance, or legal effect. It is a
statement relevant for something else than its truth.
Not being hearsay, independently relevant evidence
is admissible. (Riguera, 2020)
Classification of Independently Relevant
Statements
1. Those statements which are the very facts in
issue; and
2. Those statements which are circumstantial
evidence of the fact in issue. It includes the
following:
a. Statements of a person showing his state of
mind, that is, his mental condition,
knowledge, belief, intention, ill-will and
other emotions;
b. Statements of a person which show his
physical condition, as illness and the like;
c. Statements of a person from which an
inference may be made as to the state of
mind of another, i.e., the knowledge, belief,
motive, good or bad faith, etc. of the latter
d. Statements which may identify the date,
place and person in question; and
e. Statements showing the lack of credibility
of a witness.
 Evidence
Q: Annie overheard Billy call Rocky a thief. In an
action for defamation filed by Rocky against
Billy, is the testimony of Annie offered to prove
the fact of utterance i.e., that Billy called Rocky a
thief, admissible in evidence? Explain. (1999
BAR)
A: YES. The testimony of Annie is admissible in
evidence as an independently relevant statement. It
is offered in evidence only to prove the tenor
thereof, not to prove the truth of the facts asserted
therein. Independently relevant statements include
statements which are on the very facts in issue or
those which are circumstantial evidence thereof.
The hearsay rule does not apply. (People v. Gaddi,
G.R. No. 74065, 27 Feb. 1989)
Q: A foreign dog trained to sniff dangerous drugs
from packages, was hired by FDP Corporation, a
door-to-door forwarder company, to sniff
packages in their depot at the international
airport. In one of the routinary inspections of
packages waiting to be sent to the USA, the dog
sat beside one of the packages, a signal that the
package contained dangerous drugs.
Thereafter, the guards opened the package and
found 2 kilograms of cocaine. During the trial,
the prosecution, through the trainer who was
present during the incident and an expert in this
kind of field, testified that the dog was highly
trained to sniff packages to determine if the
contents were dangerous drugs and the sniffing
technique of their highly trained dogs was
accepted worldwide and had been successful in
dangerous drugs operations. The prosecution
moved to admit this evidence to justify the
opening of the package. The accused objected on
the grounds that: (i) the guards had no personal
knowledge of the contents of the package before
it was opened; (ii) the testimony of the trainer of
the dog is hearsay; and (iii) the accused could
not cross-examine the dog. Decide. (2014 BAR)
A: The objections of the accused should be
overruled. Evidence is admissible when it is
relevant to the issue and is not excluded by the law
or the rules. (Section 3, Rule 128, ROC, as amended)
Under Section 22, Rules 130 of the Rules of Court, a
witness can testify only to those which he knows of
661
his personal knowledge and derived from his own
perception.
The contention that the guards had no personal
knowledge of the contents of the package before it
was opened is without merit. The guards can testify
as to the facts surrounding the opening of the
package since they have personal knowledge of the
circumstances thereof, being physically present at
the time of its discovery.
On the other hand, the testimony of the trainer of
the dog is not hearsay on the basis of the following
grounds:
a. He has personal knowledge of the facts in issue,
having witnessed the same;
b. Hearsay merely contemplates an out-of-court
declaration of a person which is being offered to
prove the truthfulness and veracity of the facts
asserted therein;
c. He is an expert witness; hence, his testimony
may constitute an exception to the hearsay rule;
d. The accused has the opportunity to cross-
examine him; and
e. Testimony of a witness as to statements made
by nonhuman declarants does not violate the
rule against hearsay.
The law permits the so-called “non-human
evidence” on the ground that machines and animals,
unlike humans, lack a conscious motivation to tell
falsehoods, and because the workings of machines
can be explained by human witnesses who are then
subject to cross-examination by opposing counsel.
(City of Webster Groves v. Quick. 323 S.W. 2d 386)
Conversely, the accused may not argue that he
cannot cross examine the dog as the Constitutional
right to confrontation refers only to witnesses. As
alluded, the human witnesses who have explained
the workings of the non-human evidence is the one
that should be cross-examined. There is no doubt
that the evidence of the prosecution is admissible
for being relevant and competent.
Q: In Estrada v. Desierto, supra., at issue was
whether President Estrada resigned from his
position. Submitted to prove Estrada’s intent to
resign was the Angara Diary in which Executive
UNIVERSITY OF SANTO TOMAS
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Secretary Edgardo Angara recorded Estrada’s NOTE: Opinion testimony involving questions of
statements in which he said, “Pagod na pagod na law or the ultimate fact in issue is not admissible.
ako. Ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. I just want Evidence not based on personal knowledge vs.
to clear my name, then I will go.” Angara himself Opinion evidence (2002, 2004 BAR)
did not testify in court. Estrada’s lawyers argued
that these statements were hearsay. Were they? EVIDENCE NOT OPINION EVIDENCE
BASED ON PERSONAL
A: NO. The statements are independently relevant, KNOWLEDGE
that is, relevant independently of whether they are Consists of testimony Expert evidence based
true or not. Independently relevant statements are that is not based on on the personal
of two classes: (1) those statements which are the personal knowledge of knowledge, skill,
very facts in issue, and (2) those statements which the person testifying. experience or training
are circumstantial evidence of the acts in issue. of the person testifying
and evidence of an
The second includes statements of a person ordinary witness on
showing his state of mind (i.e., his mental condition, limited matters.
knowledge, belief, intention, ill will, and other
emotions) and statements of a person from which Opinion of Expert Witness
an inference may be made as to the state of mind of
another. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
The Angara Diary contains statements of Estrada which he shown to possess may be received in
which reflect his state of mind and are evidence. (Sec. 52, Rule 130, ROC, as amended)
circumstantial evidence of his intent to resign. It
also contains statements which one can reasonably NOTE: The use of the word “may”, signifies that the
infer Estrada’s intent to resign. Such statements are use of opinion of expert witness is permissive and
independently relevant and are excluded from the not mandatory on the part of the courts. It only
hearsay. (Riguera, 2020) assists the court in the determination of the issue
before it, and is for the court to adopt or not to adopt
7. OPINION RULE depending on its appreciation of the attendant facts
and the applicable law. (Tabao v. People, G.R. No.
Opinion 187246, 20 July 2011)

A person’s thought belief, or inference, especially a Expert Witness

witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves. (Black’s
Law Dictionary, 2004)
GR: The opinion of a witness is not admissible. (Sec.
51, Rule 130, ROC, as amended) A witness testifies
only with respect to facts personally observed by
him and it is for the court to draw conclusions from
the facts testified to. (2011 BAR)
XPNs:
1. Opinion of expert witness; and
2. Opinion of ordinary witnesses.
He is one who belongs to the profession or calling to
which the subject matter of the inquiry relates and
who possesses special knowledge on questions on
which he proposes special knowledge to express an
opinion. (Regalado, 2008)
Before one may be allowed to testify as an expert
witness, his qualification must first be established
by the party presenting him. (People vs. Fundano,
G.R. No. 124737, 26 June 1998)
NOTE: Expert testimony is not admissible as to a
matter not in issue.

662
 Evidence
NOTE: Expert witness is not necessary when the
doctrine of res ipsa loquitur is applicable. (Rosit v.
Davao Doctor’s Hopital, G.R. No. 210445, 05 Dec.
2015)
Degree of Skill or Knowledge
There is no definite standard in determining the
degree of skill or knowledge that a witness must
possess in order to testify as an expert as long as the
following are present:
1. Training and education;
2. Particularity, first-hand familiarity with the
facts of the case; and
3. Presentation of authorities or standards upon
which his opinion is based. (People v. Abriol, G.R.
No. 123137, 17 Oct. 2001)
NOTE: An expert witness may base his opinion
either on the first-hand knowledge of the facts or on
the basis of hypothetical questions where the facts
are presented to him hypothetically and on the
assumption that they are true, formulates his
opinion on such hypothesis.
The probative force of the testimony of an expert
does not lie in a mere statement of his theory or
opinion, but rather in the aid that he can render to
the courts in showing the facts which serve as a
basis for his criterion and the reasons upon which
the logic of his conclusion is founded. (Dizon v.
Tuazon, G.R. No. 172167, 09 July 2008)
NOTE: The competence of an expert witness is a
matter for the trial court to decide upon in the
exercise of its discretion. The test of qualification is
necessarily a relative one, depending upon the
subject matter of the investigation, and the fitness of
the expert witness. In our jurisdiction, the criterion
remains to be the expert witness’ special
knowledge, experience, and practical training that
qualify him or her to explain highly technical
medical matters to the court. (Casumpang v. Cortejo,
G.R. Nos. 171127, 171217, 171228, 11 Mar. 2015)
Weight to be given Opinion of Expert Witness
In any case where the opinion of an expert witness
is received in evidence, the court has a wide latitude
663
of discretion in determining the weight to be given
to such opinion, and for that purpose may consider
the following:
1. Whether the opinion is based upon sufficient
facts or data;
2. Whether it is the product of reliable principles
and methods;
3. Whether the witness has applied the principles
and methods reliably to the facts of the case;
and
4. Such other factors as the court may deem
helpful to make such determination. (Sec. 5,
Rule 133, ROC, as amended)
Discretion of the Court in Giving Weight to the
Testimony
Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they
may choose upon such testimonies in accordance
with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within
the province of the trial court to decide, considering
the ability and character of the witness, his actions
upon the witness stand, the weight and process of
the reasoning by which he has supported his
opinion, his possible bias in favor of the side for
whom he testifies, the fact that he is a paid witness,
the relative opportunities for study and observation
of the matters about which he testifies, and any
other matters which deserve to illuminate his
statements.
The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view
of all the facts and circumstances in the case and
when common knowledge utterly fails, the expert
opinion may be given controlling effect. The
problem of the credibility of the expert witness and
the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon
is not reviewable in the absence of abuse of
discretion. (Tabao v. People, G.R. No. 187246, 20 July
2011)
NOTE: The testimony of a qualified medical doctor
cannot be excluded simply because he is not a
specialist. The matter of training and specialization
of the witness goes to the weight rather than
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 Remedial Law
admissibility. (Casumpang v. Cortejo, G.R. Nos.
171127, 171217, 171228, 11 Mar. 2015)
Test in Determining the Need to Resort to Expert
Evidence
Whether the opinion called for will aid the court in
resolving an issue.
Handwriting Expert
The opinion of handwriting experts is not
necessarily binding upon the court, the expert’s
function being to place before the court data upon
which the court can form its own opinion. This
principle holds true especially when the question
involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing ones.
A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an independent examination of
the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.
(Gepulle-Garpo v. Spouses Garabato, G.R. No. 200013,
14 Jan. 2015)
Q: In a case where the issue involves forgery, two
expert witnesses were presented by the
plaintiff, the NBI official and a handwriting
expert from the PNP. The NBI official testified
that the signatures in the deed of sale and the
other sample signatures are the same. However,
the PNP handwriting expert declared that the
person who signed are not the same person. The
lower court gave credit and based the ruling on
the testimony of the PNP handwriting expert on
the fact that the said witness has better
credentials than the NBI witness. Is the ruling
valid, because of the fact that the court based the
ruling on the credentials?
A: NO. While credentials of an expert witness play a
factor in the evidentiary and persuasive weight of
his testimony, the same cannot be the sole factor in
determining its value. The judge must conduct his
own independent examination of the signatures
under scrutiny. (Tamani, et al. v. Salvador and Bravo,
G.R. No. 171497, 04 Apr. 2011)
664
Opinion of Ordinary Witness
That which is given by a witness who is of ordinary
capacity and who has by opportunity acquired a
particular knowledge which is outside the limits of
common observation and which may be of value in
elucidating a matter under consideration.
The opinion of a witness for which proper basis is
given, may be received in evidence regarding:
1. The identity of a person about whom he or
she has adequate knowledge;
2. A handwriting with which he or she has
sufficient familiarity;
3. The mental sanity of a person with whom
he or she is sufficiently acquainted (People
v. Castillo, G.R. No. 1865333, 09 Aug. 2010);
NOTE: Where the sanity of a person is at
issue, expert opinion is not necessary, the
observation of the trial judge coupled with
evidence establishing the person’s state of
mental sanity will suffice. (Hernandez v. San
Juan-Santos, G.R. No. 166470 & 169217, 07
Aug. 2009)
4. The witness’ impressions of the emotion,
behavior, condition or appearance of a
person. (Sec. 53, Rule 130, ROC, as amended)
(2005 BAR)
8. CHARACTER EVIDENCE
Character
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of one’s distinguishing
attributes. (Black’s Law Dictionary, 2004)
Admissibility of Character Evidence
GR: Evidence of a person’s character or a trait of
character is INADMISSIBLE for the purpose of
proving action in conformity therewith on a
particular occasion, except as provided in the rules.
NOTE: The reason for this is that the evidence of a
person’s character does not prove that such person
 Evidence
acted in conformity with such character or trait in a
particular occasion.
XPNs:
CRIMINAL CASES
AS TO THE ACCUSED
The character of the offended party may be
proved if it tends to establish in any reasonable
degree the probability or improbability of the
offense charged.
The accused may prove his or her good moral
character pertinent to the moral trait involved in
the offense charged.
AS TO THE PROSECUTION
They may not prove the bad moral character of
the accused which is pertinent to the moral trait
involved in the offense charged, unless in rebuttal
when the accused opens the issue by introducing
evidence of his good moral character.
AS TO THE OFFENDED PARTY
His good or bad moral character may be proved
as long as it tends to establish in any reasonable
degree the probability or improbability of the
offense charged. (2002, 2010 BAR)
NOTE: In criminal cases, character evidence is
inadmissible under the following situations:
1. In rebuttal, proof of the bad character of the
victim is not admissible if the crime was
committed through treachery and
premeditation; and
2. In rape cases, the evidence of complainant’s
past sexual conduct, or reputation or opinion
thereof shall not be admitted unless and only to
the extent that the court finds that such
evidence is material and relevant to the case.
(Sec. 6, R.A. No. 8505)
Q: Dave is on trial for sexual assault of Delly, a
law student who sidelines as a call center agent.
Dave offers the testimony of Danny, who says
that Dave is known in the community as a decent
and discerning person. The prosecution
presents a rebuttal witness, Dovie, who testifies
that, if Dave was reputed to be a good person,
that reputation was a misperception because
665
Dave had been previously convicted of
homicide.
Is Dovie's testimony admissible as to the
character of Dave? (2018 BAR)
A: NO. Dovie’s testimony on Dave’s previous
conviction for homicide as evidence of his bad
character does not refer to a moral trait involved in
the offense charged which is sexual assault.
Civil Cases
Evidence of the moral character of a party in a civil
case is admissible only when pertinent to the issue
of character involved in the case. (Sec. 54[b], Rule
130, ROC, as amended) (Sec. 54(b), Rule 130, ROC, as
amended)
Proof of bad character
1. Cross-examination; or
2. Independent evidence of bad character.
NOTE: It is permitted only when pertinent to the
issue of character involved in the case like in a civil
action for damages emanating from the offense of
libel, slander, or seduction. (Peralta, 2020)
Personal opinion as to the moral character of the
accused and the specific conduct of the part
exhibiting character is excluded as evidence.
However, reputation in the community is
admissible.
Q: Don was prosecuted for homicide for
allegedly beating up Vilma to death with an iron
pipe. May the prosecution introduce evidence
that Vilma had a good reputation for
peacefulness and non-violence? Why? (2002
BAR)
A: NO. The prosecution may introduce evidence of
the good or even bad moral character of the victim
if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
In this case, the evidence is not relevant.
UNIVERSITY OF SANTO TOMAS
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 Remedial Law

Criminal and Civil Cases evidence by the the prima facie

amount of evidence evidence against him.
Evidence of the good character of a witness is not required by law, which (Bautista v. Sarmiento,
admissible until such character has been is preponderance of G.R. No. L-45137, 23
impeached. evidence in civil cases. Sept. 1985)
(Supreme Transliner,
In all cases in which evidence of character or a trait Inc. v. CA, G.R. No.
of character of a person is admissible, proof may be 125356, 21 Nov. 2001)
made by testimony as to reputation or by testimony Never shifts. (Sec. 1,
in the form of an opinion. On cross examination, Rule 131, ROC, as
inquiry is allowable into relevant specific instances amended) May shift from one
of conduct. party to the other in
It remains throughout the course of the
In cases in which character or a trait of a character the entire case exactly proceedings,
of a person is an essential element of a charge, claim where the pleadings depending on the
or defense, proof may also be made of specific originally placed it or exigencies of the case.
instances of that person’s conduct. (Sec. 54[c], Rule with the party upon (Sec. 1, Rule 131, ROC,
130, ROC, as amended) (Sec. 54(c), Rule 130, ROC, as whim it is imposed. as amended)
amended) (Republic v. Mupas, G.R.
No. 181892, 08 Sept.
2015)
F. BURDEN OF PROOF AND PRESUMPTIONS Generally determined
(RULE 131) by the developments of
the trial, or by the
provisions of
Generally determined
Burden of Proof vs. Burden of Evidence substantive law or
by the pleadings filed
procedural rules which
by the party.
may relieve the party
BURDEN OF
BURDEN OF PROOF from presenting
EVIDENCE
evidence of the facts
It is the duty of a party It is the duty of a party
alleged.
to present evidence on to present evidence
the facts necessary to sufficient to establish
Test for Determining where the Burden of Proof
establish his or her or rebut a fact in issue
Lies
claim or defense by the to establish prima facie
amount of evidence case. (Sec. 1, Rule 131,
Ask which party to an action or suit will fail if he
required by law. (Sec. 1, ROC, as amended)
offers no evidence competent to show the facts
Rule 131, ROC, as
averred as the basis for the relief he seeks to obtain.
amended) Burden of evidence is
Burden of proof or that logical necessity
Q: In a collection case, who has the burden of proof?
“onus probandi” which rests upon a
traditionally refers to party at any particular
A: The party who alleges a fact has the burden of
the obligation of a time during the trial to
proving it. In the course of trial in a civil case, once
party to the litigation create a prima facie
plaintiff makes out a prima facie case in his favor,
to persuade the court case in his favor or to
the duty or the burden of evidence shifts to
that he is entitled to overthrow one created
defendant to controvert plaintiff’s prima facie case,
relief. against him.
otherwise, a verdict must be returned in favor of
Duty of a party to Duty of the party to go
plaintiff. Hence, the plaintiff must establish the
present evidence to forward with the
failure to pay on the part of the defendant, the latter,
establish his claim or evidence to overthrow

666
 Evidence

on the other hand, has to prove their defense that establish a fact in issue. One need not introduce
the obligation was extinguished. evidence to prove the fact for a presumption is
prima facie proof of the fact presumed. (Diesel
In this case, BPI, as plaintiff, had to prove that Construction, Inc v. UPSI Property Holdings, Inc., G.R.
spouses De Leon failed to pay their obligations No. 154937, 24 Mar. 2008)
under the promissory note. The spouses, on the
other hand, had to prove their defense that the Presumption of Law vs. Presumption of Fact
obligation was extinguished by the loss of the
mortgaged vehicle, which was insured. The mere PRESUMPTION OF PRESUMPTION OF
loss of the mortgaged vehicle does not automatically LAW FACT
relieve the spouses De Leon of their obligation. As (PRAESUMPTIONES (PRAESUMPTIONES
provided in the Promissory Note with Chattel JURIS) HOMINIS)
Mortgage, the mortgagor must notify and submit It is a deduction which
proof of loss to the mortgagee. (De Leon v. BPI, G.R. It is a deduction which reason draws from
No. 184565, 20 Nov. 2013) the law expressly the facts proved
directs to be made from without an express
Presumptions particular facts. direction from law to
that effect.
Presumptions are inferences of the existence or A certain inference must
Discretion is vested in
non-existence of a fact which courts are permitted be made whenever the
the tribunal as to
to draw from the proof of other facts. (In the matter facts appear which
drawing the
of the Intestate Estates of Delgado and Rustia, G.R. furnish the basis of the
inference.
No. 175733, 27 Jan. 2006) inference.
Derived wholly and
NOTE: A presumption shifts the burden of going directly from the
forward with the evidence. It imposes on the party Reduced to fixed rules circumstances of the
against whom it is directed the burden of going and forms a part of the particular case by
forward with evidence to meet or rebut the system of jurisprudence means of the common
presumption. (Bautista, 2004) experience of
mankind
In a sense, a presumption is an inference which is Need not be pleaded or
mandatory unless rebutted. proved if the facts on
Has to be pleaded and
which they are based
Presumption vs. Inference proved
are duly averred and
established
PRESUMPTION INFERENCE
It is mandated by law It is a factual conclusion Kinds of Presumptions of Law
and establishes a that can rationally be
legal relation drawn from other facts. 1. Conclusive presumptions (presumptions juris et
between or among (Riano, 2019) de jure); and
the facts. 2. Disputable presumptions (presumptions juris
It is a deduction It is a permissive tantum). (Regalado, 2008)
directed by law. deduction. (Francisco,
1996) Conclusive Presumption

Effect of Presumption A presumption which is irrebuttable and any

evidence tending to rebut the presumption is not
A party in whose favor the legal presumption exists admissible. This presumption is in reality a rule of
may rely on and invoke such legal presumption to substantive law. (Riano, 2019)

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Classes of Conclusive Presumptions
a. Estoppel in pais (Equitable Estoppel) –
Whenever a party has, by his or her own
declaration, act or omission, intentionally and
deliberately led another to believe a particular
thing to be true, and to act upon such belief, he
cannot, in any litigation arising out of such
declaration, act or omission, be permitted to
falsify it (Sec. 2(a), Rule 131, ROC, as amended);
and
b. Estoppel by deed – A party to a property deed
is precluded from asserting, as against another
party to the deed, any right or title in derogation
of the deed, or from denying the truth of any
material fact asserted in the deed
E.g. The tenant is not permitted to deny the title
of his or her landlord at the time of the
commencement of the relation of landlord and
tenant between them (Sec. 2[b], Rule 131, ROC,
as amended) (Sec. 2(b), Rule 131, ROC, as
amended)
NOTE: Estoppel may attach even though the
landlord does not have title at the commencement
of the relations. It may inure in favor of the
successor. (Golden Horizon Realty Corporation vs. St
Chuan, G.R. No. 145416, 21 Sept. 2001)
The rule on estoppel against tenants is subject to a
qualification. It does not apply if:
1. The landlord’s title has expired;
2. It has been conveyed to another; or
3. It has been defeated by a title paramount,
subsequent to the commencement of lessor-
lessee relationship.
In other words, if there was a change in the nature
of the title of the landlord during the subsistence of
the lease, then the presumption does not apply.
Otherwise, if the nature of the landlord’s title
remains as it was during the commencement of the
relation of landlord and tenant, then estoppel lies
against the tenant. (Santos v. NSO, G.R. No. 171129,
06 Apr. 2011)
668
Distinguish Estoppel from Waiver
A waiver is a voluntary and intentional
abandonment or relinquishment of a known right. It
must be supported by an agreement founded upon
a valid consideration.
An equitable estoppel may arise however, in the
absence of any intention on the part of the person
estopped to relinquish or change any existing right,
and it need not be supported by any consideration,
agreement, or legal obligation. (Francisco, 1996)
Disputable Presumption
This refers to a presumption which is satisfactory if
uncontradicted but may be contradicted and
overcome by other evidence. (Sec. 3, Rule 131, ROC,
as amended)
Disputable Presumptions under Section 3, Rule
131
1. A person is innocent of a crime or wrong;
NOTE: It applies to both civil and criminal
cases. Presumption of innocence of the accused
accompanies him until the rendition of
judgment and disappears after conviction, such
that upon appeal, the appellate court will then
presume the guilt of the accused. The
prosecution’s case must rise and fall on its own
merits and cannot draw strength from the
weakness of the defense. (People v. Mingming,
G.R. No. 174195, 10 Dec. 2008)
2. Unlawful act is done with an unlawful intent;
3. Person intends the ordinary consequences of
his or her voluntary act;
4. Person takes ordinary care of his concerns;
GR: All people are sane and normal and moved
by substantially the same motives. When of age
and sane, they must take care of themselves.
Courts operate not because one person has
been defeated or overcome by another but
because that person has been defeated or
overcome illegally. There must be a violation of
the law. (Vales v. Villa, G.R. No. 10028, 16 Dec.
 Evidence
1916)
XPN: When one of the parties is unable to read
or if the contract is in a language not
understood by him, and mistake or fraud is
alleged, the person enforcing the contract must
show that the terms thereof have been fully
explained to the former. (Art. 1332, NCC)
5. Evidence willfully suppressed would be
adverse if produced;
Requisites:
a. The evidence is material;
b. The party had the reasonable opportunity
to produce it; and
c. The evidence is available only to the said
party.
The presumption will NOT be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.
NOTE: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor
has the discretion/prerogative to determine the
witnesses he is going to present. (People v.
Jalbuena, G.R. No. 171163, 04 July 2007)
6. Money paid by one to another was due to the
latter;
7. Thing delivered by one to another belonged to
the latter;
8. Obligation delivered up to the debtor has been
paid;
9. Prior rents or installments had been paid when
a receipt for the later ones is produced;
10. A person found in possession of a thing taken in
the doing of a recent wrongful act is the taker
and doer of the whole act; otherwise, that things
669
which a person possesses or exercises acts of
ownership over, are owned by him or her;
NOTE: In order to raise the presumption, the
following must be proved:
a. That a crime was committed;
b. That it was committed recently;
c. That the stolen property was found in the
possession of the defendant; and
d. That the defendant is unable to explain his
possession satisfactorily. (U.S. v. Espia 16,
G.R. No. L-5813, 27 Aug. 1910)
11. A person in possession of an order on himself or
herself for the payment of the money, or the
delivery of anything, has paid the money or
delivered the thing accordingly;
12. Person acting in public office was regularly
appointed or elected to it;
Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases
where it might be collaterally in issue.
However, the presumption of a regular
appointment does not apply to a public officer
seeking to recover salary attached to the office,
or the benefits of a pension system.
13. Official duty has been regularly performed;
NOTE: All things are presumed to have been
done regularly and with due formality until the
contrary is proved. This presumption extends
to persons who have been appointed pursuant
to a local or special statute to act in quasi-public
or quasi-official capacities and to professionals
like lawyers and surgeons.
GR: Presumption applies to both civil as well as
criminal cases.
XPNs:
a. Petition for writ of amparo – presumption
may not be invoked by the respondent
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 Remedial Law
public officer or employee (Rule on the Writ
of Amparo, A.M. No. 17-9-12-SC);
b. The presumption does not apply during in-
custody investigation (People v. Camat, G.R.
No. 112262, 2 Apr. 1996); or
c. When the official conduct in question is
irregular on its face. (People v. Obmiranis,
GR. No. 181492, 16 Dec. 2008)
24. Presumption of Death;
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
NOTE: Lawful exercise of jurisdiction is
presumed unless the record itself shows that
jurisdiction has not been acquired or the record
itself shows the absence of jurisdiction.
15. All the matters within an issue raised in a case
were laid before the court and passed upon by
it;
16. All matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
17. Private transactions have been fair and regular;
18. Ordinary course of business has been followed;
19. There was a sufficient consideration for a
contract;
20. Negotiable instrument was given or indorsed
for a sufficient consideration;
21. An indorsement of negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
NOTE: Except where an endorsement bears
date after the maturity of the instrument, every
negotiation is deemed prima facie to have been
effected before the instrument was overdue.
(Sec. 45, Act. No. 2031)
22. A writing is truly dated;
23. Letter duly directed and mailed was received in
the regular course of the mail;
NOTE: For this presumption to arise, it must be
proved that the letter was properly addressed
670
with postage pre-paid and that it was actually
mailed.
Bare denial of receipt of a mail cannot prevail
over the certification of the postmaster, whose
official duty is to send notices of registered mail.
(Duarte v. Duran, G.R. No. 173038, 14 Sept. 2011)
a. Absence of 7 years – It being unknown
whether, the absentee still lives, he or she
shall be presumed dead for all purposes,
except for those of succession;
b. Absence of 10 years – The absentee shall be
considered dead for the purpose of opening
his succession only after an absence of 10
years; and if he or she disappeared after the
age of 75, absence of only 5 years is
sufficient;
c. The following shall be considered dead for
all purposes including the division of estate
among the heirs:
1. Person on board a vessel lost during a
sea voyage, or an aircraft which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aircraft;
2. Member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years;
3. Person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years;
4. If a married person has been absent for
4 consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead; 2 years in case of disappearance
where there is danger of death under
the circumstances hereinabove
provided. Before marrying again, the
spouse present must institute a
summary proceeding as provided in
the Family Code and in the rules for
declaration of presumptive death of
the absentee, without prejudice to the
 Evidence
effect of re-appearance of the absent
spouse.
25. Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the law
or fact;
26. Things have happened according to the
ordinary course of nature and ordinary habits
of life;
27. Persons acting as co-partners have entered into
a contract of co-partnership;
28. A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
29. Property acquired by a man and a woman who
are capacitated to marry each other and who
live exclusively with each other as husband and
wife without the benefit of marriage or under
void marriage, has been obtained by their joint
efforts, work or industry;
30. In cases of cohabitation by a man and a woman
who are not capacitated to marry each other
and who have acquired properly through their
actual joint contribution of money, property or
industry, such contributions and their
corresponding shares including joint deposits
of money and evidences of credit are equal;
31. If the marriage is terminated and the mother
contracted another marriage within 300 days
after such termination of the former marriage,
these rules shall govern in the absence of proof
to the contrary;
a. A child born before 180 days after the
solemnization of the subsequent
marriage is considered to have been
conceived during the former marriage,
provided it be born within 300 days after
the termination of former marriage;
b. A child born after 180 days following the
celebration of the subsequent marriage is
considered to have been conceived
during such marriage, even though it be
born within the 300 days after the
671
termination of the former marriage.
32. A thing once proved to exist continues as long
as is usual with things of that nature;
33. The law has been obeyed;
34. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published;
35. A printed or published book, purporting to
contain reports of cases adjudged in tribunals of
the country where the book is published,
contains correct reports of such cases;
36. A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
such person or his successor in interest;
37. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the following
rules:
a. If both were under the age of 15 years, the
older is deemed to have been survived;
b. If both were above the age of sixty, the
younger is deemed to have survived;
c. If one is under 15 and the other above 60,
the former is deemed to have survived;
d. If both be over 15 and under 60, and the sex
be different, the male is deemed to have
survived; if the sex be the same, the older;
e. If one be under 15 or over 60, and the other
between those ages, the latter is deemed to
have survived.
38. If there is a doubt, as between two or more
persons who are called to succeed each other,
as to which of them died first, whoever alleges
the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be
considered to have died at the same time. (Sec.
3, Rule 131, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
Q: Anastacia, who was then an 84-year old,
illiterate, rheumatic and bedridden mother,
agreed to the offer of petitioner to undertake the
subdivision of her land in consideration for one
lot in the subdivision and a first preference to
buy any portion that might be for sale; but
taking advantage of the ignorance of
respondents' family, petitioner managed to
have the DOS executed and misled Feliciana and
Donata into believing that the document was the
instrument of subdivision.
By the DOS, which was executed and notarized
on November 18, 1992, Anastacia, with her
husband's consent, purportedly sold her
paraphernal property – a lot located at Barrio
Gaboc, Tagbilaran City to spouses Sepe for
P15,000.00. Anastacia executed a notarized
Notice of Adverse Claim, wherein she claimed
that "the second duplicate copy of the TCT was
lost and was found in the possession of one
Generoso Sepe without the knowledge and
consent of the owner" and the "parcel of land
was never sold nor encumbered to anybody
else."
Respondents, save Dominga, executed the COS
for a consideration of P40,000.00, wherein they
confirmed absolutely and irrevocably the sale of
the subject lot situated at Barrio Gaboc (now
Cabawan District) made and executed by their
parents, Anastacia and Fabian, in favor of
spouses Sepe, and warranted to defend their
rights and peaceful possession of the subject lot.
Anastacia executed a notarized Notice of
Withdrawal of Adverse Claim, wherein she
alleged that she was made to sign an Adverse
Claim by Dominga and Donata; she did not
understand its contents; and she remembered
that she had already sold the same land to
Spouses Sepe.
Respondents, represented by Maria, filed a case
(Civil Case No. 6703) for nullification of the sale
and the TCT issued to petitioner. The counsel of
the petitioner filed a demurrer to evidence. The
RTC issued an Order granting the demurrer to
evidence and dismissing the case. However, the
CA reversed the RTC ruling. Is the CA correct?
672
A: NO. Documents consisting of entries in public
records made in the performance of a duty by a
public officer are prima facie evidence of the facts
stated therein; and all other public documents are
evidence, even against a third person, of the fact
which gave rise to their execution and of the date of
the latter. Being a public document, the evidence to
be presented to contradict the facts stated in the
DOS, which include the payment of the
consideration, must be more than merely
preponderant. Given the foregoing, the Court is not
persuaded by the CA's postulation that the oral
refutation by respondents Feliciana and Maria of
the consideration stated in the DOS has reached the
threshold of the required quantum of proof of clear
and convincing evidence. Their mere oral
declaration that no consideration was paid to their
mother Anastacia is simply not enough given the
presence of the following notarized and public
documents in petitioner's favor. Given the failure of
respondents to adduce clear and convincing
evidence to support their cause and overcome the
presumptions granted by law in favor of the public
documents above-enumerated, the RTC did not err
in granting petitioner's demurrer to evidence.
(Generoso Sepe v. Heirs of Anastacia* Kilang, G.R. No.
199766, 10 Apr. 2019, J. Caguioa)
Q: Lolita and Jasminia were close friends. They
bought the subject lot in Bacoor, Cavite, and a
few years later, they constructed a residential
house on the subject lot. Although Lolita has no
receipts, she shared in the cost of the
construction of the house from her income in the
catering business and selling of various
products. Jasminia executed a Deed of Absolute
Sale (DAS) in favor of Lolita. Jasminia died.
Jasminia died. Lolita mortgaged the subject
property two months after to Elizabeth. Spouses
Palugod, Jasminia's parents, filed a complaint
for the Declaration of Nullity of the DAS and the
REM over the subject property arguing that
Jasminia was living with Lolita, a lesbian., who
took advantage of Jasminia, and caused the
latter to sign a DAS in her favour without
consideration. The RTC and the CA ruled that the
DAS is void for being simulated because Lolita
cannot present receipts to prove her payment of
the consideration. Are the RTC and the CA
correct?
 Evidence

A: NO. The Deed of Absolute Sale (DAS) is itself the

proof that the sale of the property is supported by G. PRESENTATION OF EVIDENCE
sufficient consideration. This is anchored on the (RULE 132)
disputable presumption of consideration inherent
in every contract under Article 1354 of the Civil
Code, which has been reiterated under Section 3,
1. EXAMINATION OF WITNESSES
Rule 131 of the Rules of Court. While petitioner
Lolita could not present receipts to show her
GR: The examination of witnesses presented in a
payments to the late Jasminia, her sworn testimony
trial or hearing shall be done in open court, and
which in certain portions were corroborated by
under oath or affirmation. Unless the witness is
pertinent documents, remains more credible than
incapacitated to speak, or the question calls for a
that of respondent Natividad. Indeed, the lack of
different mode of answer, the answers of the
receipts may be explained by the "close friendship"
witness shall be given orally. (Sec. 1, Rule 132, ROC,
between petitioner Lolita and Jasminia. (Mendoza v.
as amended)
Spouses Palugod, G.R. No. 220517, 20 June 2018, J.
Caguioa)
RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the
Presumptions in Civil Actions and Proceedings
witness and allows the adverse party to cross-
examine the witness. (Riano, 2019)
In all civil actions and proceedings not otherwise
provided for by law or these Rules, a presumption
XPNs: The testimony of the witness may not be
imposes on the party against whom it is directed the
given in open court in the following cases:
burden of going forward with evidence to rebut or
meet the presumption.
1. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and 24
Inconsistent Presumptions
(Regalado, 2008);

If the presumptions are inconsistent, the

2. In criminal cases, by depositions or conditional
presumption that is founded upon weightier
examinations, pursuant to Secs. 12-15, Rule
considerations of policy shall apply. If
119, and Sec. 1, Rule 123, or by the records of
considerations of policy are of equal weight, neither
the preliminary investigation, under the
presumption applies. (Sec. 5, Rule 131, ROC, as
circumstances of Sec. 1(f) of Rule 115
amended)
(Regalado, 2008);

Presumption Against an Accused in Criminal

3.
Case
If a presumed fact that establishes guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the presumed
4.
fact follows from the basic fact follows from the
basic fact beyond reasonable doubt. (Sec. 6, Rule
131, ROC, as amended)
In criminal cases covered by the Rule on
Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies of
the witnesses who executed the same (Riano,
2019);
In civil cases covered by the Rules on Summary
Procedure, the parties are merely required to
submit the affidavits of their witnesses and
other pieces of evidence on the factual issues,
together with their position papers, setting
forth the law and the facts relied upon (Riano,
2019);

673 UNIVERSITY OF SANTO TOMAS

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 Remedial Law

5. Under the Judicial Affidavit Rule, the judicial
affidavit shall take the place of direct
testimonies of witnesses (Sec. 2, Judicial
Affidavit Rule);
6. Matters regarding the admissibility and
evidentiary weight of electronic documents
may be proved by affidavits subject to cross by
the adverse party (Sec. 1, Rule 9, Rules on
Electronic Evidence);
7. If the witness is incapacitated to speak; and
8. The question calls for a different mode of
answer.
Waiver of the Right to have the Witness Sworn
The right may be waived. If a party admits proof to
be taken in a case without an oath, after the
testimony has been acted upon by the court, and
made the basis of a judgment, such party can no
longer object to the admissibility of the testimony.
He will be deemed to have waived the objection.
(People v. Bisda, G.R. No. 140895, 17 July 2003)
Matters to be Recorded During Trial
The entire proceedings of a trial or hearing,
including:

Oath vs. Affirmation 1. Questions propounded to a witness and his

answers thereto; and
OATH AFFIRMATION 2. The statements made by the judge or any of the
It is an outward pledge An affirmation is a parties, counsel, or witnesses with reference to
made under an substitute for an oath the case. (Sec. 2, Rule 132, ROC, as amended)
immediate sense of and is solemn and
responsibility to God or formal declaration NOTE: These shall be recorded by means of
a solemn appeal to the that the witness will shorthand or stenotype or by other means of
Supreme Being in tell the truth. recording found suitable by the court. (Ibid.)
attestation of the truth
of some statement. Exclusion and Separation of Witnesses

NOTE: The object of the The court, motu proprio or upon motion, shall order
rule is to affect the witnesses excluded so that they cannot hear the
conscience of the testimony of other witnesses. This rule does not
witness to compel him authorize the exclusion of:
to speak the truth, and
to lay him open to 1. A party who is a natural person;
punishment for perjury 2. A duly designated representative of a juridical
if he testifies falsely. entity which is not a party to the case;
3. A person whose presence is essential to the
NOTE: The option to take either an oath or presentation of the party’s cause; or
affirmation is given to the witness and not to the 4. A person authorized by a statute to be present.
court. (Riano, 2019)
The court may also cause witnesses to be kept
In order that one may be competent as a witness, it separate and to be prevented from conversing with
is not necessary that he has a definite knowledge of one another, directly through intermediaries, until
the difference between his duty to tell the truth after all shall have been examined. (Sec. 15, Rule 132, ROC,
being sworn and before, or that he is able to state it, as amended)
but it is necessary that he be conscious that there is
a difference. (People v. Bisda, G.R. No. 140895, 17 July XPNs:
2003) 1. An accused in a criminal case as it is his
constitutional right to be present at all stages of
the proceedings;

674
 Evidence

2. Parties to the litigation will generally not be
excluded, their presence usually being
necessary to a proper management of the case;
3. Party in interest though not a party to the
record and an agent of such party, if the
presence of such agent is necessary;
4. Officers and complaining witnesses are
customarily excepted from the rule unless the
circumstances warrant otherwise; and
otherwise provided by law (right against self-
incrimination);
NOTE: This refers to immunity statutes
wherein the witness is granted immunity from
criminal prosecution for offenses admitted in
his testimony, e.g., under Sec. 8, R.A. 1379, the
law providing for the forfeiture of unlawfully
acquired property; and under P.D. 749, in
prosecutions for bribery and graft. (Regalado,
2008)

5. Expert witnesses are not excluded until 5. Not to give an answer, which will tend to
production of evidence bearing upon the degrade his or her Reputation, unless it be to
question or subject as to which they have been the very fact at issue or to a fact from which the
called or unless liable to be influenced by the fact in issue would be presumed. But a witness
testimony of the other witnesses. (Herrera, must answer to the fact of his or her previous
1999) final conviction for an offense. (Sec. 3, Rule 132,
ROC, as amended)
Recantation of a Witness
Classifications of Immunity Statutes
Courts must not automatically exclude the original
statement based solely on the recantation. It should TRANSACTIONAL
USE IMMUNITY
determine which statement should be given IMMUNITY
credence through a comparison of the original and Prohibits the use of the Grants immunity to the
the new statements, applying the general rules of witness' compelled witness from
evidence. (PLDT v. Bolso, G.R. No. 159701, 17 Aug. testimony and its fruits prosecution for an
2007) in any manner in offense to which his
connection with the compelled testimony
Rights of a witness (P-D-E-A-R) criminal prosecution of relates.
the witness.
1. To be Protected from irrelevant, improper, or It is immunity from
insulting questions, and from harsh or insulting It is immunity from use prosecution by reason
demeanor; of any statement given or on the basis of the
by the witness. testimony.
NOTE: The trial court’s duty is to protect every By the grant of use- Transactional
witness against oppressive behavior of an and-derivative-use immunity is broader in
examiner and this is especially true where the immunity, a witness is the scope of its
witness is of advanced age. (Lee v. CA, G.R. No. only assured that his or protection. By its grant,
177861, 13 July 2010) her particular a witness can no longer
testimony and be prosecuted for any
2. Not to be Detained longer than the interests of evidence derived from offense whatsoever
justice require; it will not be used arising out of the act or
against him or her in transaction to which
3. Not to be Examined except only as to matters subsequent the testimony relates.
pertinent to the issue; prosecution.

4. Not to give an Answer which will tend to subject

him or her to a penalty for an offense unless

675 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
Obligation of a Witness in Open Court
GR: A witness must answer questions, although his
or her answer may tend to establish a claim against
him or her. (Sec. 3, Rule 132, ROC, as amended)
Refusal to answer as a witness constitutes direct
contempt. (Sec. 1, Rule 71, ROC, as amended)
XPNs: A witness may validly refuse to answer on the
basis of the following:
1. Right against self-incrimination – If his
answer will tend to subject him to punishment
for an offense; or
NOTE: The constitutional assurance of the right
against self-incrimination is a prohibition
against the use of physical or moral compulsion
to extort communications from the accused. It
is simply a prohibition against legal process to
extract from the accused’s own lips, against his
will, admission of his guilt. (Ong v.
Sandiganbayan & Office of the Ombudsman, G.R.
No. 126858, 16 Sept. 2005) Hence, a purely
mechanical act required to be done or produced
from the accused is not covered by the right
against self-incrimination. (Beltran vs Samson,
G.R. No. 32025, 23 Sept. 1929)
The privilege against self-incrimination must be
invoked at the proper time, and the proper time
to invoke it is when a question calling for an
incriminating answer is propounded. Also, a
person who has been summoned to testify
cannot decline to appear, nor can he decline to
be sworn as a witness and no claim of privilege
can be made until a question calling for an
incriminating answer is asked. (Gonzales vs.
Secretary of Labor, G.R. No. L-6409, 05 Feb.
1954).
2. Right against self-degradation – If his answer
will have a direct tendency to degrade his
character.
XPNs to the XPN: A witness may not invoke the
right against self-degradation if:
676
1. Such question is directed to the very fact at
issue or to a fact from which the fact at issue
would be presumed; or
2. If it refers to his previous final conviction for an
offense. (Regalado, 2008)
NOTE: A witness invited by the Senate who refused
to testify and arrested for contempt, cannot invoke
the right against self-incrimination in a petition for
certiorari and prohibition. The said right may be
invoked only when the incriminating question is
being asked, since he has no way of knowing in
advance the nature or effect of the questions to be
asked of him. That this right may possibly be
violated or abused is no ground for denying the
Senate Committees their power of inquiry. (In Re:
Sabio, G.R. Nos. 174340, 174318 & 174177, 17 Oct.
2006)
Prohibition on Narrative Form Testimony
A witness’ testimony should be elicited by way of
questions and answers. (Secs. 1 and 2, Rule 132, ROC,
as amended) Thus, if the witness does a narration
instead of answering the question, the answer may
be stricken out upon objection. (Sec. 39, Rule 132,
ROC, as amended) The reason is that if a witness
testifies in narrative form, the adverse party is
deprived of the opportunity to object to the
testimony beforehand. (Riguera, 2020)
XPN; The court may allow a child witness to testify
in a narrative form. (Sec. 19, Rule on Examination of
Child Witness)
Refusal of a Witness to take the Witness Stand
GR: A witness may not refuse to take the witness
stand.
XPNs:
1. An accused in a criminal case; or
2. A party who is not an accused in a criminal case
is allowed not to take the witness stand – in
administrative cases/proceedings that partook
of the nature of a criminal proceeding or
analogous to a criminal proceeding. As long as
the suit is criminal in nature, the party thereto
can altogether decline to take the witness stand.
It is not the character of the suit involved but
 Evidence
the nature of the proceedings that controls.
(Rosete, et. al. v. Lim, et. al., G.R. No. 136051, 08
June 2006)
Right against Self-incrimination NOT available
under the Witness Protection Program
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
refuse to testify or give evidence or produce books,
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
has been admitted into the Program on the ground
of the constitutional right against self-incrimination
but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty
or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books,
documents, records and writings produced. (Sec. 14,
R.A. No. 6981)
Persons Eligible to the Witness Protection,
Security and Benefit Program
Any person who has witnessed or has knowledge or
information on the commission of a crime and has
testified or is testifying or about to testify before any
judicial or quasi-judicial body, or before any
investigating authority may be admitted provided
that:
a. The offense in which his testimony will be used
is a grave felony as defined under the Revised
Penal Code, or its equivalent under special laws;
b. His testimony can be substantially
corroborated in its material points;
c. He or any member of his family within the
second civil degree of consanguinity or affinity
is subjected to threats to life or bodily injury or
there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent
him from testifying, or to testify falsely, or
evasively, because or on account of his
testimony; and
d. He is not a law enforcement officer, even if he
would be testifying against the other law
enforcement officers. In such a case, only the
immediate members of his family may avail
677
themselves of the protection provided for
under the Act. (Sec. 3, R.A. No. 6981)
Q: As counsel of an accused charged with
homicide, you are convinced that he can be
utilized as a state witness. What procedure will
you take? (2006 BAR)
A: As counsel of an accused charged with homicide,
I would ask the prosecutor to recommend that the
accused be made a state witness. It is the prosecutor
who must recommend and move for the acceptance
of the accused as a state witness. The accused may
also apply under the Witness Protection Program.
State Witness may be Liable for Contempt or
Criminal Prosecution
If he fails or refuses to testify or to continue to testify
without just cause when lawfully obliged to do so or
if he testifies falsely or evasively, he shall be liable
to prosecution for perjury. If a State witness fails or
refuses to testify, or testifies falsely or evasively, or
violates any condition accompanying such
immunity without just cause, as determined in a
hearing by the proper court, his immunity shall be
removed and he shall be subject to contempt or
criminal prosecution. Moreover, the enjoyment of
all rights and benefits under R.A. 6981 shall be
deemed terminated. The witness may, however,
purge himself of the contumacious acts by testifying
at any appropriate stage of the proceedings. (Sec. 13,
R.A. No. 6981)
Order and Purpose of each stage of the
examination of an Individual Witness
1. Direct examination – To elicit facts about the
client’s cause of action or defense. (Riano, 2019)
2. Cross examination
a. To bring out facts favorable to counsel’s
client not established by the direct
testimony; and
b. To enable counsel to impeach or to impair
the credibility of the witness. (Ibid.)
3. Re-direct examination
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
a. To afford opportunity to the witness to
explain or supplement his answers given
during the cross-examination; and
b. To rehabilitate a witness whose credibility
has been damaged. (Ibid.)
4. Re-cross examination
a. To overcome the proponent’s attempt to
rehabilitate the witness; and
b. To rebut damaging evidence brought out
during redirect examination.
Order of Examination
The order in which an individiual witness may be
examined iis as follows;
1. Direct examination by the proponent.;
2. Cross-examination by the opponent.;
3. Re-direct examination by the propnent.; and
4. Re-cross examination b the opponent. (Sec. 4,
Rule 132, ROC, as amended)
Direct Examination
The examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the
issue. (Sec. 5, Rule 132, ROC, as amended)
In light of the Judicial Affidavit Rule, most direct
examinations are now in the form of a judicial
affidavit. (Riguera, 2020)
Q: Tony states on direct examination that he
once knew the facts being asked but he cannot
recall them now. When handed a written record
of the facts, he testifies that the facts are
correctly stated, but that he has never seen the
writing before. Is the writing admissible as past
recollection recorded? Explain. (1996 BAR)
A: NO. For the written record to be admissible as
past recollection recorded, it must have been
written or recorded by Tony or under his direction
at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was
fresh in his memory and he knew that the same was
correctly written or recorded. (Sec. 16, Rule 132,
ROC, as amended) But in this case, Tony has never
seen the writing before.
678
Cross Examination
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse
party on any relevant matter, with sufficient
fullness and freedom to test his or her accuracy and
truthfulness and freedom from interest or bias, or
the reverse, and to elicit all important facts bearing
upon the issue. (Sec 6, Rule 132, ROC, as amended)
Scope of a Cross Examination
1. American rule - restricts cross-examination to
facts and circumstances which are connected
with the matters that have been stated in the
direct examination of the witness.
2. English rule – where a witness is called to
testify to a particular fact, he becomes a witness
for all purposes and may be fully cross-
examined upon all matters material to the issue,
the examination not being confined to the
matters inquired about in the direct
examination.
NOTE: Both rules are followed under Philippine
jurisdiction. In general, the English Rule is being
followed, which allows the cross-examination
to elicit all important facts bearing upon the
issue (Sec. 6, Rule 132, ROC, as amended) but this
does not mean that a party, by doing so, is
making the witness his own in accordance with
Sec. 5 of Rule 132. Conversely, the American
Rule is being followed as to the accused or a
hostile witness, who may only be cross-
examined on matters covered by direct
examination. (Herrera, 1999)
Doctrine of Incomplete Testimony
GR: When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record. (Bachrach Motor Co., Inc. v. CIR, G.R.
No. L-26136, 30 Oct. 1978)
XPN: Where the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
 Evidence
produced despite a warrant of his arrest, the
striking out is not warranted. (People v. Gorospe, G.R.
No. 51513, 15 May 1984)
Effect of Death or Absence of a Witness after the
Direct Examination by the Proponent
1. If the witness was not cross-examined because
of causes attributable to the cross-examining
party and the witness had always made himself
available for cross-examination, the direct
testimony of the witness shall remain on record
and cannot be stricken off because the cross-
examiner is deemed to have waived his right to
cross-examine. (Dela Paz v. IAC, G.R. No. 71537,
17 Sept. 1987)
2. If the witness was partially cross-examined but
died before the completion of his cross-
examination, his testimony on direct may be
stricken out but only with respect to the
testimony not covered by the cross-
examination. (People v. Señeris, G.R. No. L-48883,
06 Aug. 1980)
3. The absence of a witness is not sufficient to
warrant the striking out of his testimony for
failure to appear for further cross-examination
where the witness has already been sufficiently
cross-examined, and the matter on which cross-
examination is sought is not in controversy.
(Ibid.)
GR: The party who offered the testimony of a
witness is bound by such testimony.
XPNs:
1. In the case of a hostile witness;
2. Where the witness is the adverse party or the
representative of a juridical person which is the
adverse party; and
3. When the witness is not voluntarily offered but
is required by law to be presented by the
proponent, as in the case of subscribing
witnesses to a will. (Regalado, 2008)
Re-Direct Examination
After the cross-examination of the witness has been
concluded, he or she may be re-examined by the
679
party calling him or her, to explain or supplement
his or he answers given during the cross-
examination. (Sec. 7, Rule 132, ROC, as amended)
Q: On re-direct examination, may questions on
matters not dealt with during the cross-
examination be allowed?
A: YES. Questions on matters not dealt with during
the cross-examination, may be allowed by the court
in its discretion.
Re-Cross Examination
Upon the conclusion of the re-direct examination,
the adverse party may re-cross examine the witness
on matters stated in his or her re-direct
examination, and also on such other matters as may
be allowed by the court in its discretion. (Sec. 8, Rule
132, ROC, as amended)
Recalling the Witness
GR: After the examination of a witness by both sides
has been concluded, the witness cannot be recalled
without leave of court. Recalling a witness is a
matter of judicial discretion and it shall be guided by
the interests of justice. (Sec. 9, Rule 132, ROC, as
amended)
XPNs:
1. The examination has not been concluded; or
2. If the recall of the witness was expressly
reserved by a party with the approval of the
court. In these two cases the recall of a witness
is a matter of right. (Regalado, 2008)
NOTE: Something more than the bare assertion of
the need to propound additional questions is
essential before the court's discretion may
rightfully be exercised to grant or deny recall. There
must be a satisfactory showing of some concrete,
substantial ground for the recall. For instance, that
particularly identified material points were not
covered in the cross-examination, or that
particularly described vital documents were not
presented to the witness whose recall is prayed for,
or that the cross-examination was conducted in so
inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
would be no foundation for a trial court to authorize
the recall of any witness. (People v. Rivera, G.R. No.
98376, 16 Aug. 1991)
LEADING AND MISLEADING QUESTIONS
Leading question
It is one which suggests to the witness the answer
which the examining party desires. A leading
question is generally not allowed. (Sec. 10, Rule 132,
ROC, as amended)
The test whether a question is leading or not is the
suggestiveness of the conduct.
When a leading question is allowed (C-U-P-D-A-
J)
A leading question is allowed:
1. On Cross-examination;
2. Of an Unwilling witness or hostile witness;
3. On Preliminary matters;
4. When there is Difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
NOTE: A witness may be considered as
unwilling or hostile only if so declared by the
court upon adequate showing of his or her
adverse interest, unjustified reluctance to
testify or his or her having misled the party into
calling him or her to the witness stand. (Sec. 13,
Rule 132, ROC, as amended)
5. Of a witness who is an Adverse party or an
officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party; (Sec. 10,
Rule 132, ROC, as amended);
6. A child of tender years may be asked leading
questions; (Sec. 10(c), Rule on Examination of a
Child Witness, A.M. No. 004-07-SC)
7. In all stages of examination of a child if the same
will further the interests of justice. (Sec. 20, Rule
680
on Examination of a Child Witness, A.M. No. 004-
07-SC)
Misleading Question
A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary
to that which he or she has previously stated. It is
NOT allowed. (Sec. 10, Rule 132, ROC, as amended)
Impeachment of witness
It is a technique employed usually as part of cross-
examination to discredit a witness by attacking his
credibility. (Riano, 2019)
Ways of Impeaching an Adverse Party’s Witness
1. By contradictory evidence;
2. By evidence that his or her general reputation
for truth, honesty or integrity is bad; or
3. By evidence that he or she has made at other
times statements inconsistent with his or her
present testimony. (Sec. 11, Rule 132, ROC, as
amended)
NOTE: An adverse party’s witness may not be
impeached by evidence of particular wrongful
acts, except that it may be shown by the
examination of the witness, or record of the
judgment, that he or she has been convicted of
an offense. (Ibid.)
The other modes of impeaching a witness are:
1. By involving him during cross-examination in
contradiction;
2. By showing the impossibility or improbability
of his testimony;
3. By proving action or conduct of the witness
inconsistent with his testimony; and
4. By showing bias, interest or hostile feeling
against the adverse party. (Herrera, 1999)
Impeachment by Evidence of Conviction of
Crime
GR: For the purpose of impeaching a witness,
evidence that he or she has been convicted by final
judgment of a crime shall be admitted if:
 Evidence
1. The crime was punishable by a penalty in excess
of one (1) year; or
2. The crime involved moral turpitude, regardless
of the penalty.
XPN: Evidence of a conviction is not admissible if
the conviction has been the subject of an amnesty or
annulment of the conviction. (Sec. 12, Rule 132, ROC,
as amended)
Impeachment of a Witness by Evidence of
Particular Wrongful Acts
GR: A witness may NOT be impeached by evidence
of particular wrongful acts.
XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he or
she has been convicted of an offense. (Sec. 11, Rule
132, ROC, as amended)
Impeachment by a Party of his of his or her Own
Witness
GR: The party presenting the witness is not allowed
to impeach the credibility of such witness.
XPN: The witness is an:
1. Unwilling or hostile;
NOTE: A witness may be considered as
unwilling or hostile only if so declared by the
court upon showing adequate showing of his or
adverse interest, unjustified reluctance to
testify, or his or her having misled the party into
calling him or her to the witness stand.
2. Adverse party; or
3. Officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party. (Sec. 13,
Rule 132, ROC, as amended)
NOTE: In these instances, such witnesses may be
impeached by the party presenting him or her in all
respects as if he had been called by the adverse
party, except by evidence of his or her bad
character. (Ibid.)
681
Impeachment of the Adverse Party as a Witness
That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by the former’s testimony. The fact remains
that it was at his instance that his adversary was put
on the witness stand. He is not bound only in the
sense that he may contradict him by introducing
other evidence to prove a statement of facts
contrary to what the witness testifies. (Gaw v. Chua,
G.R. No. 160855, 16 Apr. 2008)
Unlike an ordinary witness, the calling party may
impeach an adverse witness in all respects as if he
had been called by the adverse party, except by
evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness,
although the calling party does not vouch for the
witness’ veracity, he is nonetheless bound by his
testimony if it is not contradicted or remains
unrebutted. (Ibid.)
How the Witness is Impeached by Evidence of
Inconsistent Statements (Laying the Predicate)
It is the duty of a party trying to impugn the
testimony of a witness by means of prior or
subsequent inconsistent statements, whether oral
or in writing, to give the witness a chance to
reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by
him that he should be deemed impeached. (People v.
Sambahon, G.R. No. 182789, 03 Aug. 2010)
Laying the Predicate in Impeaching a Witness by
Evidence of Prior Inconsistent Statements
1. The prior inconsistent statements must be
related to him or her, with the circumstances of
the times and places and the persons present;
2. The witness must be asked whether he or she
made such statements, and if so, be allowed to
explain them; and
3. If the statements be in writing it must be shown
to the witness before any question is put to him
or her concerning them. (Sec. 14, Rule 132, ROC,
as amended) (1996 BAR)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

NOTE: Contradicting testimony given subsequently PRIOR

CONTRADICTORY
does not necessarily discredit the previous INCONSISTENT
EVIDENCE
testimony if the contradiction is satisfactorily STATEMENTS
explained. There is no rule which states that a Refer to statements,
Refers to other
previous testimony is presumed to be false merely oral or documentary,
testimony of the same
because a witness now says that the same is not made by the witness
witness, or other
true. A testimony solemnly given in court should not sought to be
evidence presented by
be lightly set aside. Before this can be done both the impeached on
him in the same case,
previous testimony and the subsequent ne should occasions other than
but not the testimony
be carefully scrutinized – in other words, all the the trial in which he is
of another witness.
expedients devised by man to determine the testifying.
credibility of witnesses should be utilized to
determine which of the two contradicting Evidence of the Good Character of a Witness
testimonies represents the truth. (OCA v. Morante,
A.M. No. P-02-1555, 16 Apr. 2004) GR: Evidence of the good character of a witness is
not admissible for the purpose of proving action in
As between statements made during the conformity therewith on a particular occasion. (Sec.
preliminary investigation of the case and the 54, Rule 130, ROC, as amended)
testimony of a witness in open court, the latter
deserves more credence. Preliminary investigations XPNs:
are commonly fairly summary or truncated in 1. In Criminal cases:
nature, being designed simply for the
determination, not of guilt beyond reasonable a. The character of the offended party may be
doubt, but of probable cause prior to the filing of an proved if it tends to establish in any
information in court. (People v. Buduhan, G.R. No. reasonable degree the probability or
178196, 06 Aug. 2008) improbability of the offense charged.

Inapplicability of the Rule
If the prior inconsistent statement appears in a
deposition of the adverse party, and not a mere
witness, that adverse party who testifies may be
impeached without laying the predicate, as such
prior statements are in the nature of admissions of
said adverse party. (Regalado, 2008)
b. The accused may prove his or her good
moral character, pertinent to the moral trait
involved in the offense charged. However,
the prosecution may not prove his or her
bad moral character unless on rebuttal.
(Sec. 54, Rule 130, ROC, as amended)
2. In Civil cases:

The reasons for laying the predicate are:
1. To avoid unfair surprise to the adversary;
2. To save time, as an admission by the witness
may make the extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance
to explain the discrepancy. (Herrera, 1999)
Evidence of the moral character of a party in a
civil case is admissible only when pertinent to
the issue of character involved in the case. (Sec.
54, Rule 130, ROC, as amended)
3. In Criminal and Civil cases
Evidence of the good moral character of a
witness is not admissible until such character
has been impeached. (Sec. 54, Rule 130, ROC, as
amended)

682
 Evidence

NOTE: in all cases in which evidence of character or immediately correctly stated

a trait of character of a person is admissible, proof thereafter; or the transaction
may be made by testimony as to reputation or by when made.
testimony in the form of an opinion. b. At any other
time when
In cases in which character or a trait of character of the fact was
a person is an essential element of a charge, claim or fresh in his
defense, proof may also be made of specific memory and
instances of that person’s conduct. (Sec. 54, Rule 130, he knew that
ROC, as amended) the same was
correctly
When the Witness may Refer to Memorandum recorded.
Entitled to greater Entitled to lesser
A witness may be allowed to refresh his or her weight. weight.
memory respecting a fact by anything written or Evidence is the writing
Evidence is the
recorded by himself or herself, or under his or her or record (the
testimony.
direction, at the time when the fact occurred, or memorandum).
immediately thereafter, or at any other time when Rule of evidence
the fact was fresh in his or her memory and he or affected is competency Rule of evidence
she knew that the same was correctly written or of witness, affected is the best
recorded. (Sec. 16, Rule 132, ROC, as amended) examination of witness evidence rule.
(laying the predicate).
NOTE: The writing or record must be produced and The witness simply
may be inspected by the adverse party, who may, if testifies that he knows
he or she chooses, cross-examine the witness upon that the memorandum Witness must swear
it and may read it in evidence. (Ibid.) is correctly written by that the writing
him or under his correctly states the
NOTE: A witness may also testify from such a direction. There is no transaction. (Regalado,
writing or record, though he or she retains no need to swear that the 2008)
recollection of the particular facts, if he or she is able writing correctly states
to swear that the writing or recording correctly the transaction.
stated the transaction when made. Such evidence
must be received with caution. (Ibid.) Right of the adverse party when a writing is
shown to a witness
PRESENT PAST RECOLLECTION
RECOLLECTION RECORDED Whenever a writing or record is shown to a witness,
REVIVED it must be produced and may be inspected by the
Applies if the witness Applies where the adverse party, who may, if he or she chooses, cross-
remembers the facts witness does not recall examine the witness upon it and may read it in
regarding his entries. the facts involved. evidence. (Sec. 18, Rule 132, ROC, as amended)
Requisites: Requisites:
1. Memorandum has 1. Witness retains no
been written by recollection of the
him or under his particular facts;
direction; and and

2. Written by him: 2. But he is able to

a. When the fact swear that the
occurred or record or writing

683 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Remedial Law
RULE ON EXAMINATION OF CHILD WITNESS
(A.M. No. 004-07-SC)
The rule shall govern the examination of child
witnesses in all criminal and non-criminal
proceedings of children who are: (V-A-W)
1. Victims;
2. Accused; and
3. Witnesses to a crime.
Child witness
1. Any person who at the time of giving testimony
is below the age of 18 years old; or
2. A person over 18 years of age, if he/she is
found by the court as unable to fully take care
of himself or protect himself from abuse,
neglect, cruelty, exploitation or discrimination
because of physical or mental disability or
condition. (Sec. 4(a), A.M. No. 004-07-SC)
Presumption of Competency
GR: Every child is presumed qualified to be a
witness. The burden of proof to rebut such
presumption lies in the party challenging his
competence.
XPN: When the court finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish from
falsehood, or appreciate the duty to tell the truth in
court, the judge shall conduct a competency
examination of a child. (Sec. 6, A.M. No. 004-07-SC)
Examination of a Child Witness
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer,
the answers of the witness shall be given orally. (Sec.
8, A.M. No. 004-07-SC)
Videotaped Deposition
The prosecutor, counsel, or guardian ad litem may
apply for an order that a deposition be taken of the
684
testimony of the child and that it be recorded and
preserved on videotape. If the court finds that the
child will not be able to testify in open court at trial,
it shall issue an order that the deposition of the child
be taken and preserved by videotape. (Sec. 27, A.M.
No. 004-07-SC)
Live-link TV Testimony
The court may order by an application may be made
by the prosecutor, counsel or guardian ad litem for
the testimony of the child to be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
or the prosecutor as the case may be. (Sec. 25, A.M.
No. 004-07-SC; Riano, 2019)
Upon an application made by the prosecutor,
counsel or guardian ad litem, the court may order
for the testimony of the child to be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
or the prosecutor as the case may be. (Sec. 25, A.M.
No. 004-07-SC)
The kind of trauma contemplated is trauma that
would impair the completeness or truthfulness of
the testimony of the child.
Hearsay Exception in Child Abuse Cases
A statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted
in evidence in any criminal or non-criminal
proceeding. In ruling on the admissibility of such
hearsay statement, the court shall consider the time,
content and circumstances thereof which provide
sufficient indicia of reliability. It shall consider the
following factors:
a. Whether there is a motive to lie;
b. The general character of the declarant child;
c. Whether more than one person heard the
statement;
d. Whether the statement was spontaneous;
 Evidence
e. The timing of the statement and the
relationship between the declarant child and
witness;
f. Cross-examination could not show the lack of
knowledge of the declarant child;
g. The possibility of faulty recollection of the
declarant child is remote; and
h. The circumstances surrounding the statement
are such that there is no reason to suppose the
declarant child misrepresented the
involvement of the accused. (Sec. 28, A.M. No.
004-07-SC)
Sexual Abuse Shield Rule
GR: The following evidence is not admissible in any
criminal proceeding involving alleged child sexual
abuse:
a. Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
b. Evidence offered to prove the sexual
predisposition of the alleged victim.
XPN: Evidence of specific instances of sexual
behavior by the alleged victim to prove that a
person other than the accused was the source of
semen, injury, or other physical evidence shall be
admissible. (Sec. 30, A.M. No. 004-07-SC)
Protective Order
Any videotape or audiotape of a child that is part of
the court record shall be under a protective order
that provides as follows:
1. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian
ad litem.
2. No tape, or any portion thereof, shall be
divulged by any member of the court staff, the
prosecuting attorney, the defense counsel, the
guardian ad litem, agents of investigating law
enforcement agencies, and other persons as
determined by the court to any other person,
except as necessary for the trial.
3. No person shall be granted access to the tape,
its transcription or any part thereof unless he
685
signs a written affirmation that he has received
and read a copy of the protective order; that he
submits to the jurisdiction of the court with
respect to the protective order; and that in case
of violation thereof, he will be subject to the
contempt power of the court.
4. Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear the
following cautionary notice:
"This object or document and the contents
thereof are subject to a protective order issued
by the court in (case title), (case number). They
shall not be examined, inspected, read, viewed,
or copied by any person, or disclosed to any
person, except as provided in the protective
order. No additional copies of the tape or any
of its portion shall be made, given, sold, or
shown to any person without prior court
order. Any person violating such protective
order is subject to the contempt power of the
court and other penalties prescribed by law."
5. No tape shall be given, loaned, sold, or shown
to any person except as ordered by the court.
6. Within thirty (30) days from receipt, all copies
of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
unless the period is extended by the court on
motion of a party.
7. This protective order shall remain in full force
and effect until further order of the court. (Sec.
31, A.M. No. 004-07-SC)
Q: AA, a twelve-year-old girl, while walking
alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where
he raped her. The Information for rape filed
against BB states: “On or about October 30,
2015, in the City of S.P. and within the
jurisdiction of this Honorable Court, the
accused, a minor, 15 years old with lewd design
and by means of force, violence, and
intimidation, did then and there, willfully,
unlawfully and feloniously had sexual
intercourse with AA, a minor, 12 years old,
against the latter’s will and consent.”
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

At the trial, the prosecutor called to the witness
stand AA as his first witness and manifested that
he be allowed to ask leading questions in
conducting his direct examination pursuant to
the Rule on the Examination of a Child Witness.
BB’s counsel objected on the ground that the
prosecutor has not conducted a competency
examination on the witness, a requirement
before the rule cited can be applied in the case.
Is BB’s counsel correct? (2015 BAR)
A: NO. BB’s counsel is not correct. Every child is
presumed qualified to be a witness. (Sec. 6, A.M. No.
004-07-SC) To rebut the presumption of
competence enjoyed by a child, the burden of proof
lies on the party challenging his competence. Here,
AA, a 12-year old child witness who is presumed to
be competent, may be asked leading questions by
the prosecutor in conducting his direct examination
pursuant to the RECW and the Revised Rules on
Criminal Procedure. (People v. Santos, G.R. No.
171452, 17 Oct. 2008) In order to obviate the
counsel’s argument on the competency of AA as
prosecution witness, the judge motu proprio
conducted his voir dire examination of AA.
2. AUTHENTICATION AND PROOF OF
DOCUMENTS
is not included in this enumeration. Such
recording does not make the private writing
itself a public document so as to make it
admissible without authentication, e.g., birth
certificate recorded in the NSO is a public
record, but it is still a private document.
(Peralta & Peralta, 2020)
3. The writing is a notarial document
acknowledged, proved or certified (Sec. 30, Rule
132, ROC, as amended);
4. The genuineness and authenticity of an
actionable document have not been specifically
denied under oath by an adverse party (Sec 8,
Rule 8, ROC, as amended);
5. When such genuineness and due execution are
immaterial to the issue;
6. The genuineness and authenticity of the
document have been admitted (Sec 4, Rule 129,
ROC, as amended); and
7. The document is not being offered as genuine.
(Sec. 20, Rule 132, ROC, as amended)
Classes of Documents

Meaning of Authentication For purposes of their presentation in evidence,

documents are either public or private. (Sec. 19, Rule
It is the process of proving the due execution and 132, ROC, as amended)
genuineness of a document.
Public document vs. Private document
NOTE: Not only objects but also documents
introduced in evidence need to be authenticated. It PUBLIC DOCUMENT PRIVATE DOCUMENT
is a preliminary step in showing the admissibility of What comprises it
an evidence. (Riano, 2019) 1. The written official
acts, or records of
When Authentication is NOT Required the official acts of
the sovereign
1. The writing is an ancient document (Sec. 21, authority, official
All other writings are
Rule 132, ROC, as amended); bodies and
private. (Sec. 19, Rule
tribunals, and
132, ROC, as amended)
2. The writing is a public document or record (Sec. public officers,
19, Rule 132, ROC, as amended); whether of the
Philippines, or of a
NOTE: A private document required by law to foreign country;
be recorded, while it is transformed into a
public document by the “public record” thereof,

686
 Evidence

2. Documents NOTE: Church registries of births, marriages and

acknowledged deaths are no longer public writings nor are they
before a notary kept by duly authorized public officials. They are
public except last private writings and their authenticity must
wills and therefore be proved, as are all other private writings
testaments; in accordance with the rules. (Llemos v. Llemos, G.R.
No. 150162, 26 Jan. 2007)
3. Documents that
are considered How to Prove the Due Execution and
public documents Authenticity of a Private Document
under treaties and
conventions which Before any private document offered as authentic is
are in force received in evidence, its due execution and
between the authenticity must be proved by any of the following
Philippines and the means:
country of source;
and 1. By anyone who saw the document executed or
written;
4. Public records, 2. By evidence of the genuineness of the signature
kept in the or handwriting of the maker; or
Philippines, of 3. By other evidence showing its due execution
private documents and authenticity,
required by law to
be entered therein. Any other private document need only be identified
(Sec. 19, Rule 132, as that which it is claimed to be. (Sec. 20, Rule 132,
ROC, as amended) ROC, as amended)
As to authenticity and admissibility as
evidence Related jurisprudence
Admissible as evidence Before any private
without need of further document offered as In addition to the modes of authenticating a private
proof of its authentic is received in document under Sec. 20, Rule 132 of the ROC, as
genuineness and due evidence, its due amended, American jurisprudence also recognizes
execution execution and the doctrine of self-authentication – where the
authenticity must first facts in writing could only have been known by the
be proved. writer; and the rule of authentication by the adverse
As to persons bound party – where the reply of the adverse party refers
Evidence even against Binds only the parties to and affirms the sending to him and his receipt of
third persons, of the who executed them or the letter in question, a copy of which the proponent
fact which gave rise to their privies, insofar as is offering as evidence. (Regalado, 2008)
its due execution and due execution and date
to the date of the latter of the document are When Evidence of Authenticity of a Private
concerned Writing is NOT Required
As to validity of certain transactions
Certain transactions 1. When the private document is more than thirty
must be contained in a (30) years old (ancient document/authentic
public document; document rule) (Sec. 21, Rule 132, ROC, as
otherwise, they will amended);
not be given any
validity.

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2. When the genuineness and authenticity of an
actionable document have not been specifically
denied under oath by the adverse party;
3. When the genuineness and authenticity of the
document have been admitted; and
4. When the document is not offered as authentic
as implied. (Patula v. People, G.R. No. 164457, 11
Apr. 2012)
Requisites of Ancient Document/Authentic
Document Rule (2011 BAR)
1. That the private document be more than 30
years old;
2. That it be produced from a custody in which it
would naturally be found if genuine; and
NOTE: Ancient documents are considered from
proper custody if they come from a place from
which they might reasonably be expected to be
found. Custody is proper if it is proved to have
had a legitimate origin or if the circumstances
of the particular case are such as to render such
an origin probable. If a document is found
where it would not properly and natural be, its
absence from the proper place must be
satisfactorily accounted for.
The requirement of proper custody was met
when the ancient document in question was
presented in court by the proper custodian
thereof who is an heir or the person who would
naturally keep it. (Cerado-Siga v. Cerado, Jr., G.R.
No. 185374, 11 Mar. 2015)
3. That it is unblemished by any alteration or
circumstances of suspicion. (Sec. 21, Rule 132,
ROC, as amended)
NOTE: This rule applies only if there are no other
witnesses to determine authenticity.
688
Genuineness of Handwriting
Handwriting may be proved by:
1. A witness who actually saw the person writing
the instrument;
2. A person who is familiar or has acquired
knowledge of the handwriting of such person,
his opinion as to the handwriting being an
exception to the opinion rule;
3. A comparison by the court of the questioned
handwriting from the admitted genuine
specimens thereof; or
4. An expert witness. (Secs. 20 & 22, Rule 132; Sec.
52, Rule 130, ROC, as amended)
NOTE: The law makes no preference, much less
distinction among and between the different means
stated above in proving the handwriting of a person.
Courts are not bound to give probative value or
evidentiary value to the opinions of handwriting
experts, as resort to handwriting experts is not
mandatory. (Heirs of Salud v. Rural Bank of Salinas,
G.R. No. 202756, 06 Apr. 2016)
Comparison as a Mode of Authentication
Use of comparison technique to establish
authenticity actually involves two (2) levels of
authentication, i.e., authentication of the specimen
and authentication of the offered exhibit. In order to
establish the requisite connective relevance, the
item or document in question must be compared
with an item the authenticity of which has been
demonstrated. Authenticity of the specimen, then, is
a logical prerequisite to the procedure. (Peralta &
Peralta, 2020)
The testimony of a handwriting expert is not
indispensable to the examination or the comparison
of handwritings in cases of forgery. The judge must
conduct an examination of the questioned signature
in order to arrive at a reasonable conclusion as to its
authenticity. The opinions of handwriting experts
are not binding upon courts, especially when the
question involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing ones.
 Evidence
(Pontaoe v. Pontaoe, G.R. Nos. 159585 & 165318, 22
Apr. 2008)
It is also hornbook doctrine that the opinions of
handwriting experts, even those from the NBI and
the PC, are not binding upon courts. This principle
holds true especially when the question involved is
mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
specimens of the questioned signatures with those
of the currently existing ones. (Multi-International
Business Data System, Inc. v. Martinez, G.R. No.
175378, 11 Nov. 2015)
Handwriting experts are usually helpful in the
examination of forged documents because of the
technical procedure involved in analyzing them. But
resort to these experts is not mandatory or
indispensable to the examination or the comparison
of handwriting. A finding of forgery does not depend
entirely on the testimonies of handwriting experts,
because the judge must conduct an independent
examination of the questioned signature in order to
arrive at a reasonable conclusion as to its
authenticity. (Ibid.)
Public Documents as Evidence
When a public officer in the performance of his or
her duty makes an entry in the public record, the
document of such entry is deemed prima facie
evidence of the facts stated in the entry. (Sec. 24, Rule
132, ROC, as amended) Its probative value may
either be substantiated or nullified by other
competent evidence.
NOTE: Public or official records of entries made in
excess of official duty are not admissible in
evidence. As to matters which the officer is not
bound to record, his certificate, being extrajudicial,
is merely the statement of a private person.
Related Jurisprudence
The CENRO and Regional Technical Director, FMS-
DENR, certifications do not fall within the class of
public documents contemplated in the first
sentence of Section 23 of Rule 132. The
certifications do not reflect entries in public records
made in the performance of a duty by a public
689
officer, such as entries made by the Civil Registrar in
the books of registries, or by a ship captain in the
ship’s logbook. The certifications are conclusions
unsupported by adequate proof, and thus have no
probative value. Certainly, the certifications cannot
be considered prima facie evidence of the facts
stated therein. (Republic v. T.A.N. Properties Inc., G.R.
No. 154953, 26 June 2008)
Q: G&S Transportation submits that the USAID
Certification being a private document cannot
be admitted as evidence since it is inadmissible
and was not properly authenticated nor
identified in court by the signatory thereof. The
opposing party contends that the USAID
Certification is a public document and was
properly admitted in evidence, because Jose
Marcial’s widow, witness Ruby Bueno Ochoa,
was able to competently testify as to the
authenticity and due execution of the said
Certification and that the signatory Jonas Cruz
personally issued and handed the same to her.
The court ruled that the USAID Certification is a
public document. Is the court’s ruling correct?
A: YES. The USAID Certification is a public
document, hence, does not require authentication.
Sec. 19 (a), Rule 132 of the Rules of Court provides
that public documents are the written official acts,
or records of the official acts of the sovereign
authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign
country.
Here, USAID is an official government agency of a
foreign country, the United States. The authenticity
and due execution of said Certification are already
presumed. The USAID Certification could very well
be used as basis for the award for loss of income to
the heirs. (Heirs of Jose Marcial Ochoa v. G & S
Transport Corporation, G.R. No. 170071, 16 July
2012)
Q: Sharwin purchased a townhouse from Riel. A
notarized Deed of Absolute Sale was executed by
Riel in favor of Sharwin. The same was also
notarized and the purchase price was paid in
full. However, it was later found that all of the
documents that were in Sharwin's possession
were falsified. A case was then filed by Sharwin
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against Riel which was dismissed by the RTC for
lack of merit. On appeal, the CA held that since a
notarized document enjoys the presumption of
regularity, and only clear, strong, and
convincing evidence can rebut such
presumption, the evidence presented by Riel
was not enough to refute the notarized Deed of
Absolute Sale. The Motion for Reconsideration
filed by Riel was also denied by the CA. Thus, a
petition was filed before the SC questioning the
CA's decision.
Is the CA correct in upholding the sale on the
basis of the presumption of regularity of the
supposedly notarized Deed of Absolute Sale?
A: NO. In Suntay v. Court of Appeals, the Court held
though the notarization of the deed of sale in
question vests in its favor the presumption of
regularity, it is not the intention nor the function of
the notary public to validate and make binding an
instrument never, in the first place, intended to have
any binding legal effect upon the parties thereto.
The intention of the parties still and always is the
primary consideration in determining the true
nature of a contract.
Notarization per se is not a guarantee of the validity
of the contents of a document. The presumption of
regularity of notarized documents cannot be made
to apply and may be overthrown by highly
questionable circumstances, as may be pointed out
by the trial court. (Dizon v. Matti, Jr. G.R. No. 215614,
27 Mar. 2019, J. Caguioa)
Proof of Official Record
Official records are written official acts, or records
of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, e.g., a
written foreign law. Official records may be
evidenced by:
1. If it is within the Philippines:
a. An official publication thereof; or
b. By a copy attested by the officer having the
legal custody of the record, or by his
deputy. (Sec. 24, Rule 132, ROC, as amended)
690
2. If the office in which the record is kept is in a
foreign country,
a. An official publication thereof; or
b. By a copy attested by the officer having the
legal custody of the record, or by his deputy
AND a certificate that such officer has the
custody. (Apostille Certificate or its
equivalent) (Sec. 24, Rule 132, ROC, as
amended)
NOTE: If the office in which the record is
kept is in a foreign country, which is a
contracting party to a treaty or convention
to which the Philippines is also a party, or
considered a public document under such
treaty or convention pursuant to paragraph
(c) of Section 19, the certificate or its
equivalent shall be in the form prescribed
by such treaty or convention subject to
reciprocity granted to public documents
originating from the Philippines.
For documents originating from a foreign
country which is not a contracting party to
a treaty or convention, the certificate may
be made by a secretary of the embassy or
legation, consul general, consul, vice-
consul, or consular agent or by any officer
in the foreign service of the Philippines
stationed in the foreign country in which
the record is kept, and authenticated by the
seal of his or her office. (Sec. 24, Rule 132,
ROC, as amended)
A document that is accompanied by a
certificate or its equivalent may be
presented in evidence without further
proof, the certificate or its equivalent being
prima facie evidence of the due execution
and genuineness of the document involved.
The certificate shall not be required when
or convention between a foreign country
and the Philippines has abolished the
requirement or has exempted the
document itself from this formality.
NOTE: Upon failure to comply with the above-
mentioned requirements, courts will apply the
doctrine of processual presumption.
 Evidence
Q: Ellen Harper and her son, Jonathan Harper
filed a case for damages against Shangri-La
Hotel and Resort, Inc. for the death of Christian
Harper. To prove heirship of the plaintiffs-
appellees, they presented several documents
(Birth Certificates, Marriage Certificate, and
Certificate from the Oslo Probate Court) which
were all kept in Norway. The documents had
been authenticated by the Royal Norwegian
Ministry of Foreign Affairs and bore the official
seal of the Ministry and signature of one Tanja
Sorlie. The documents were also accompanied
by an Authentication by the Consul, Embassy of
the Republic of the Philippines in Stockholm,
Sweden to the effect that, Tanja Sorlie was duly
authorized to legalize official documents for the
Ministry. Shangri-La Hotel however, questioned
their filiation with the deceased assailing that
the documents presented were incompetent for
failing to comply with the requirement of
authentication. Is the contention correct?
A: NO. Although the documents were not attested
by the officer having the legal custody of the record
or by his deputy in the manner required in Section
25 of Rule 132, and said documents did not comply
with the requirement under Section 24 of Rule 132
to the effect that if the record was not kept in the
Philippines a certificate of the person having
custody must accompany the copy of the document
that was duly attested stating that such person had
custody of the documents, the deviation was not
enough reason to reject the utility of the documents
for the purposes they were intended to serve.
That rules of procedure may be mandatory in form
and application does not forbid a showing of
substantial compliance under justifiable
circumstances, because substantial compliance
does not equate to a disregard of basic rules. For
sure, substantial compliance and strict adherence
are not always incompatible and do not always clash
in discord. (Makati Shangri-La Hotel and Resort, Inc.
v. Harper, G.R. No. 189998, 29 Aug. 2012)
Special power of attorney executed abroad
(2011 BAR)
A special power of attorney (SPA) executed before a
city judge-public notary in a foreign country,
691
without the certification or authentication required
under Section 25, Rule 132 of the Rules of Court, is
not admissible in evidence in Philippine courts. The
failure to have the SPA authenticated is a question
of jurisdiction. (Riano, 2019 citing Lopez v. CA, G.R.
No. 77008, 29 Dec. 1987)
Irremovability of Public Records
GR: Any public record must not be removed from
the office in which it is kept.
XPN: Upon order of a court where the inspection of
the record is essential to the just determination of a
pending case. (Sec. 26, Rule 132, ROC, as amended)
REASON: They have a common repository, from
where they ought not to be removed. Besides, these
records by being daily removed would be in great
danger of being lost.
RATIONALE: They have a common repository, from
where they ought not to be removed. Besides, these
records, by being daily removed, would be in great
danger of being lost.
Attestation of a Copy
The attestation must state, in substance:
1. That the copy is a correct copy of the original, or
a specific part thereof, as the case may be; and
2. It must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
(Sec. 25, Rule 132, ROC, as amended)
Proof of Public Record of a Private Document
1. By the original record; or
2. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
(Sec. 27, Rule 132, ROC, as amended)
Proof of Lack of Record
Proof of lack of record of a document consists of
written statement signed by an officer having
custody of an official record or by his deputy. The
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written statement must contain the following
matters:
1. There has been a diligent search of the record;
and
2. That despite the diligent search, no record of
entry of a specified tenor is found to exist in the
records of his office.
NOTE: The written statement must be accompanied
by a certificate that such officer has the custody of
official records. (Sec. 28, Rule 132, ROC, as amended)
The certification to be issued by the Local Civil
Registrar must categorically state that the
document does not exist in his or her office or the
particular entry could not be found in the register
despite diligent search. (Sevilla v. Cardenas, G.R. No.
167684, 31 July 2006)
Impeachment of a Judicial Record (2009 BAR)
Any judicial record may be impeached by: (W-C-F)
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties (e.g., legal
separation, annulment cases); or
3. Fraud in the party offering the record, in
respect to the proceedings. (Sec. 29, Rule 132,
ROC, as amended)
NOTE: Fraud refers to extrinsic fraud, which is a
ground for annulment of judgment.
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution presented
in evidence a certification of the PNP Firearms
and Explosives Office attesting that the accused
had no license to carry any firearm. The
certifying officer, however, was not presented as
a witness. Is the certification of the PNP Firearm
and Explosives Office without the certifying
officer testifying on it admissible in evidence
against Lino? (2003 BAR)
A: YES. Section 28, Rule 130 provides that “a written
statement signed by an officer having the custody of
an official record or by his deputy that after diligent
search, no record or entry of a specified tenor is
692
found to exist in the records of his office,
accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
contain no such record or entry.”
The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding
that the certifying officer was not presented as a
witness for the prosecution, the certification he
made is admissible in evidence against Lino. (Sec.
28, Rule 130; Mallari v. Court of Appeals, G.R. No.
110569, 09 Dec. 1996)
Proof of Notarial Documents
Documents acknowledged before a notary public is
considered a public document and enjoy the
presumption of regularity. A notarized document is
entitled to full faith and credit upon its face.
The document may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
(Sec. 30, Rule 132, ROC, as amended)
Evidentiary Weight of a Notarial Document
A notarial document celebrated with all the legal
requisites under a notarial certificate is evidence of
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove his
claim with clear and convincing evidence.
Q: Etom, Jr. filed a case for illegal dismissal and
money claims against his employer Aroma
Lodging House. The Labor Arbiter and NLRC
found him to have been legally dismissed but
ordered the employer to pay punitive damages,
salary differential, holiday pay and 13th month
pay. CA reversed the ruling stating that for
having executed an earlier notarized affidavit
stating that he received wages above the
required minimum salary, Etom, Jr. could not
subsequently claim that he was underpaid by his
employer. Is the presumption of regularity of
notarized documents disputable?
A: YES. While a notarized document is presumed to
be regular, such presumption is not absolute and
 Evidence
may be overcome by clear and convincing evidence
to the contrary. The fact that a document is
notarized is not a guarantee of the validity of its
contents. Here, Etom, Jr. is an unlettered employee
who may not have understood the full import of his
statements in the affidavit. Notably, he, along with a
co-worker did not state the specific amount of what
they referred as salary above the minimum required
by law. The employer’s mere reliance on the
foregoing affidavit is misplaced because the
requirement of established jurisprudence is for the
employer to prove payment, and not merely deny
the employee’s accusation of nonpayment on the
basis of the latter’s own declaration. (Etom Jr. v.
Aroma Lodging House, G.R. No. 192955. 09 Nov.
2015)
Alterations in a Document
A party producing a document as genuine which has
been altered and appears to have been altered after
its execution must account for the alteration. He or
she may show that the alteration: (A-C-I-D)
1. Was made by Another, without his
concurrence;
2. Was made with the Consent of the parties
affected by it;
3. Was otherwise properly or innocently made;
or
4. Did not change the meaning or language of the
instrument.
NOTE: Failure to do at least one of the above will
make the document inadmissible in evidence. (Sec.
31, Rule 132, ROC, as amended)
Documentary Evidence in an Unofficial
Language
Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino. (Sec. 33,
Rule 132, ROC, as amended)
The requirement that documents written in an
unofficial language must be accompanied with a
translation in English or Filipino as a prerequisite
for its admission in evidence must be insisted upon
by the parties at the trial to enable the court, where
693
a translation has been impugned as incorrect, to
decide the issue. Where such document, not so
accompanied with a translation in English or
Filipino, is offered in evidence and not objected to,
either by the parties or the court, it must be
presumed that the language in which the document
is written is understood by all, and the document is
admissible in evidence. (Heirs of Doronio v. Heirs of
Doronio, G.R. No. 169454, 27 Dec. 2007)
3. OFFER AND OBJECTION
GR: The court shall consider only the evidence which
has been formally offered. The purpose for which the
evidence is offered must be specified. (Sec. 34, Rule
132, ROC, as amended) (2007 BAR)
XPNs:
1. Marked exhibits not formally offered may be
admitted provided it complies with the
following requisites:
a. Must be duly identified by testimony duly
recorded; and
b. Must have been incorporated in the records
of the case; (Ramos v. Dizon, G.R. No.
137247, 06 Aug. 2006)
2. Under the Rule on Summary Procedure, where
no full-blown trial is held in the interest of
speedy administration of justice;
3. In summary judgments under Rule 35 where
the judge based his decisions on the pleadings,
depositions, admissions, affidavits and
documents filed with the court;
4. Documents whose contents are taken judicial
notice of by the court;
5. Documents whose contents are judicially
admitted;
6. Object evidence which could not be formally
offered because they have disappeared or have
become lost after they have been marked,
identified and testified on and described in the
record and became the subject of cross-
examination of the witness who testified on
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them during the trial; (Tabuena v. CA, G.R. No.
85423, 06 May 1991) or
7. Documents and affidavits used in deciding
quasi-judicial or administrative cases.
(Bantolino v. Coca-Cola Bottlers Inc., G.R. No.
153660, 10 June 2003)
Purposes of Offer of Evidence
1. To notify the party of possible objection, and for
the offeror to make necessary correction at the
trial level to meet the objection;
2. To allow the trial judge to rule properly; and
3. To lay basis for appeal so that the appellate
court can decide intelligently. (Regalado, 2008)
NOTE: A formal offer is necessary, since judges are
required to base their findings of fact and their
judgment solely and strictly upon the evidence
offered by the parties at the trial. (Aludos v. Suerte,
G.R. No. 165285, 18 June 2012)
To allow parties to attach any documents to their
pleadings and then expect the court to consider it as
evidence, even without formal offer and admission,
may draw unwarranted consequences. Opposing
parties will be deprived of their chance to examine
the document and to object to its admissibility. On
the other hand, the appellate court will have
difficulty reviewing the documents not previously
scrutinized by the court below. (Candido v. Court of
Appeals, G.R. No. 107493, 01 Feb. 1996)
NOTE: An offer of evidence is important because the
court shall consider no evidence which has not been
formally offered. (Riguera, 2020)
Reasons for Stating Purposes of Offer of
Evidence
1. For the court to determine whether that piece
of evidence should be admitted/considered or
not; and
2. For the adverse party to interpose the proper
objection.
NOTE: It is basic in the law of evidence that the
court shall consider evidence solely for the purpose
694
for which it was offered. (Ragudo v. Fabella Estate
Tenants Assoc. Inc., G.R. No. 146823, 09 Aug. 2005)
Identification of a Documentary Evidence vs.
Formal Offer as an Exhibit
IDENTIFICATION OF A
FORMAL OFFER AS
DOCUMENTARY
AN EXHIBIT
EVIDENCE
Done only when the
Done in the course of the
party rests its case.
trial and accompanied
(Dizon v. Court of Tax
by the marking of the
Appeals, G.R. No.
evidence as an exhibit.
140944, 30 Apr. 2008)
Q: Gizel filed a complaint for recovery of
possession and damages against Fara. In the
course of the trial, Gizel marked his evidence but
his counsel failed to file a formal offer of
evidence. Fara then presented in evidence tax
declarations in the name of his father to
establish that his father is a co-owner of the
property. The court ruled in favor of Fara, saying
that Gizel failed to prove sole ownership of the
property in the face of Fara’s evidence. Was the
court correct? Explain briefly. (2007 BAR)
A: YES. The court shall consider no evidence which
has not been formally offered. The trial court
rendered judgment considering only the evidence
offered by Fara. The offer is necessary because it is
the duty of the judge to rest his findings of fact and
his judgment only and strictly upon the evidence
offered by the parties at the trial. (People v. Pecardal,
G.R. No. 71381, 24 Nov. 1986)
Q: Aiza and Matet were charged with murder.
Upon application of the prosecution, Matet was
discharged from the Information to be utilized
as a State witness. The prosecutor presented
Matet as witness but forgot to state the purpose
of his testimony much less offer it in evidence.
Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot
the victim.
The testimony of Matet was the only material
evidence establishing the guilt of Aiza. Matet
was thoroughly cross-examined by the defense
 Evidence

counsel. After the prosecution rested its case, documentary or object

the defense filed a motion for demurrer to evidence for marking
evidence based on the following grounds: and identification
during trial is not the
a. The testimony of Matet should be excluded offer contemplated in
because its purpose was not initially stated the rules. (Riano, 2019)
and it was not formally offered in evidence;
and NOTE: All evidence must be made orally. (Sec. 35,
b. Matet's testimony is not admissible against Rule 132, ROC, as amended)
Aiza pursuant to the rule on "res inter alios
acta." (2003 Bar) Stages in the Presentation of Documentary
Evidence
Rule on the motion for demurrer to evidence on
the above grounds.

A:
1. The demurrer to evidence should be denied
because the defense counsel did not object to
her testimony despite the fact that the
prosecutor forgot to state its purpose and offer
it in evidence. Moreover, the defense counsel
thoroughly cross-examined Matet and thus
waived the objection.

2. The res inter alios acta rule does not apply

because Matet testified in open court and was
subjected to cross-examination.

When to Make an Offer

TESTIMONIAL DOCUMENTARY AND

EVIDENCE OBJECT EVIDENCE
The offer of the The offer of
testimony of a witness documentary and
in evidence must be object evidence shall
made at the time the be made after the
witness is called to presentation of a
testify. (Sec. 35, Rule party’s testimonial
132, ROC, as amended) evidence. (Sec. 35, Rule
(2009 BAR) 132, ROC, as amended)
The evidence is only
offered once, after all
Every time a new the testimonial Ways of Impeaching the Evidence of the
witness is called to evidence are offered
Proponent
testify, there must be and prior to the resting
an offer of evidence. of the case for a party.
1. By objection to offer of evidence (Sec. 36, Rule
132, ROC, as amended); or
NOTE: The 2. By motion to strike out answer. (Sec. 39, Rule
presentation of a
132, ROC, as amended)

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Purposes of Objections
1. To keep out inadmissible evidence that would
cause harm to a client’s cause;
2. To protect the record, i.e., to present the issue of
inadmissibility of the offered evidence in a way
that if the trial court rules erroneously, the
error can be relied upon as a ground for a future
appeal;
3. To protect a witness from being embarrassed
on the stand or from being harassed by the
adverse counsel;
4. To expose the adversary’s unfair tactics like his
consistently asking obviously leading
questions;
5. To give the trial court an opportunity to correct
its own errors and at the same time warn the
court that a ruling adverse to the objector may
supply a reason to invoke a higher court’s
appellate jurisdiction; and
6. To avoid a waiver of the inadmissibility of
otherwise inadmissible evidence. (Riano, 2019)
Time when Objection Should be Made
Objection to evidence offered orally must be made
immediately after the offer is made.
1. Objection to the testimony of a witness for
lack of a formal offer – as soon as the witness
begins to testify.
2. Objection to a question propounded in the
course of the oral examination of a witness -
as soon as the grounds shall become reasonably
apparent. (Sec. 36, Rule 132, ROC, as amended)
NOTE: As a rule, failure to specify the grounds for
the objection is in effect a waiver of the objection,
except where the evidence could not have been
legally admitted for any purpose whatsoever.
(People v. Singh, 45 Phil. 676)
The objection must be specific enough to adequately
inform the court the rule of evidence or of
696
substantive law that authorizes the exclusion of
evidence. (Riano, 2019)
Contemporaneous Objection Rule
It requires that a specific and timely objection be
made to the admission of evidence. Objections to the
admission of evidence must be made seasonably, at
the time it is introduced or offered, otherwise they
are deemed waived, and will not be entertained for
the first time on appeal. (People v. Bañares, G.R. No.
68298, 25 Nov. 1986)
Kinds of objections
1. Irrelevant– The evidence being presented is
not relevant to the issue (e.g., when the
prosecution offers as evidence the alleged offer
of an insurance company to pay for the damages
suffered by the victim in a homicide case);
2. Incompetent – The evidence is excluded by law
or rules (Sec. 3, Rule 128, ROC, as amended) (e.g.,
evidence obtained in violation of the
Constitutional prohibition against
unreasonable searches and seizures);
3. Specific objections– e.g., parol evidence and
best evidence rule;
4. General objections– e.g., continuing objections
(Sec. 37, Rule 132, ROC, as amended)
a. objection to a question propounded in the
course of the oral examination of the
witness; and
b. objection to an offer of evidence in writing;
5. Formal– One directed against the alleged defect
in the formulation of the question (e.g.,
ambiguous questions, leading and misleading
questions, repetitious questions, multiple
questions, argumentative questions) (Riano,
2019); and
6. Substantive– One made and directed against
the very nature of evidence (e.g., parol, not the
best evidence hearsay, privileged
communication, not authenticated, opinion, res
inter alios acta). (Ibid.)
 Evidence
NOTE: Objections to admissibility of evidence
cannot be raised for the first time on appeal. When
a party desires the court to reject the evidence
offered, he must so state in the form of objection.
Without objection, he cannot raise the question for
the first time on appeal. (People v. Salak, G.R. No.
181249, 14 Mar. 2011)
Rules on Continuing Objections
GR: When it becomes reasonably apparent in the
course of the examination that the questions asked
are of the same class as those to which objection has
been made (whether sustained or overruled), it
shall not be necessary to repeat the objection, it
being sufficient for the adverse party to record his
continuing objection to such class of questions. (Sec.
37, Rule 132, ROC, as amended)
XPNs:
1. Where the question has not been answered, it is
necessary to repeat the objection when the
evidence is again offered or the question is
again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question,
objection must be repeated when the same
question is again asked during the introduction
of actual evidence;
4. Objection to evidence was sustained but
reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevancy be shown by further
evidence and the condition is not fulfilled, the
objection formerly interposed must be
repeated or a motion to strike out the evidence
must be made; and
6. Where the court reserves the ruling on
objection, the objecting party must request a
ruling or repeat the objection.
Ruling
The ruling on the objection must be given
immediately after the objection is made, unless the
697
court desires to take a reasonable time to inform
itself on the question presented; but the ruling shall
always be made during the trial and at such time as
will give the party against whom it is made an
opportunity to meet the situation presented by the
ruling. (Sec. 38, Rule 132, ROC, as amended)
However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or
some of the must specify the ground or grounds
relied upon. (Ibid.)
NOTE: The rulings of the trial court during the
course of the trial are interlocutory in nature and
may not be the subject of separate appeals or review
on certiorari but are assigned as errors and
reviewed on appeal properly taken from the
decision rendered by the trial court. (Gatdula v.
People, G.R. No. 140688, 26 Jan. 2001)
Q: Counsel Oliva objected to a question posed by
opposing Counsel Diesta on the grounds that it
was hearsay and it assumed a fact not yet
established. The judge banged his gavel and
ruled by saying “Objection Sustained”. Can
Counsel Diesta ask for a reconsideration of the
ruling? (2012 BAR)
A: YES, Counsel Diesta may ask the Judge to specify
the ground/s relied upon for sustaining the
objection and thereafter move its reconsideration
thereof. (Sec. 38, Rule 132, ROC, as amended)
Modes of excluding inadmissible evidence
1. Objection – when the evidence is offered;
NOTE: Objections may be waived because the
right to object is merely a privilege which the
party may waive. (People v. Martin, G.R. No.
172069, 30 Jan. 2008) However, such waiver
only extends to the admissibility of the
evidence. It does not involve an admission that
the evidence possesses the weight attributed to
it by the offering party. (Riano, 2019)
2. Motion to strike out or expunge:
a. When the witness answers prematurely
before there is reasonable opportunity for
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F A C U LT Y O F C I V I L L A W
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the adverse party to object, and such
objection is found to be meritorious;
b. When a question is not objectionable but
the answer is not responsive;
NOTE: This rule is in preparation in the filing of an
appeal. Moreover, the rule is that the offeror must
preserve such excluded evidence on his record and
stating the purpose of such preservation, e.g.,
knowing that it is relevant and must be admitted.

c. When a witness testifies without a question Purposes of Tender of Excluded Evidence

being posed or testifies beyond limits set by
the court; a. To allow the court to know the nature of the
testimony or the documentary evidence and
d. When the witness does a narration instead convince the trial judge to permit the evidence
of answering the question; or testimony; and

e. When the answers are incompetent, b. To create and preserve a record for appeal,
irrelevant, or improper (Sec. 39, Rule 132, should the judge be not persuaded to reverse
ROC, as amended); his earlier ruling. (Riano, 2019)

f. When the witness becomes unavailable for Even assuming that the trial court erroneously
cross-examination through no fault of the rejected the introduction as evidence of the CA
cross-examining party; Decision, petitioner is not left without legal
recourse. Petitioner could have availed of the
g. When the testimony was allowed remedy provided in Section 40, Rule 132 where he
conditionally and the condition for its could have included the same in his offer of
admissibility was not fulfilled (Riano, exhibits. If an exhibit sought to be presented in
2019); evidence is rejected, the party producing it should
ask the courts permission to have the exhibit
h. When a witness has volunteered attached to the record. (Catacutan v. People, G.R. No.
statements in such a way that the party has 175991, 31 Aug. 2011)
not been able to object thereto; or
Offer of Proof vs. Offer of Evidence
i. Uncompleted testimonies where there is no
opportunity for the other party to cross- OFFER OF PROOF /
examination. (Ibid.) TENDER OF OFFER OF EVIDENCE
EXCLUDED EVIDENCE
NOTE: A direct testimony given and allowed Refers to testimonial,
without a prior formal offer may not be expunged The process by which a documentary or object
from the record. When such testimony is allowed proponent of an evidence that are
without any objection from the adverse party, the excluded evidence presented or offered in
latter is estopped from questioning the non- tenders the same. court by a party so that
compliance with the requirement. Only resorted to if the court can consider
admission is refused by his evidence when it
Tender of Excluded Evidence (2017 BAR) the court for purposes comes to the
of review on appeal. preparation of the
When an attorney is not allowed by the court to decision.
present testimony which he thinks is competent,
material and necessary to prove his case, he must How tender of excluded evidence is made
make an offer of proof. This is the method properly
preserving the record to the end that the question 1. As to documentary or object evidence: It may
may be saved for purposes of review. (Caraig, 2004) have the same attached to or made part of the

698
 Evidence

record. (Sec. 40, Rule 132, ROC, as amended) English Exchequer Rule vs. Harmless Error Rule
(1991, 1996 Bar)
ENGLISH HARMLESS ERROR
NOTE: The party should ask that evidence ruled EXCHEQUER RULE RULE
out at the trial be attached to the record of case It provides that a trial The appellate court
in order that same may be considered on court's error as to the will disregard an error
appeal. (Bañez v. CA, G.R. No. L-30351, 11 Sept. admission of evidence committed by the trial
1974) was presumed to have court in the admission
caused prejudice and of evidence unless in
2. As to oral evidence: It may state for the record therefore, almost its opinion, some
the name and other personal circumstances of automatically required substantial wrong or
the witness and the substance of the proposed new trial. miscarriage of justice
testimony. (Sec. 40, Rule 132, ROC, as amended) has been occasioned.

How offer of Evidence is Made NOTE: We follow the harmless error rule, for in
dealing with evidence improperly admitted in the
1. Before the court has ruled on the objection, in trial, courts examine its damaging quality and its
which case its function is to persuade the court impact to the substantive rights of the litigant. If the
to overrule the objection or deny the privilege impact is slight and insignificant, appellate courts
invoked; disregard the error as it will not overcome the
weight of the properly admitted evidence against
2. After the court has sustained the objection, in the prejudiced part. (People v. Teehankee Jr., G.R.
which case its function is to preserve for the Nos. 111206-08, 06 Oct. 1995)
appeal the evidence excluded by the privilege
invoked; or
H. JUDICIAL AFFIDAVIT RULE
3. Where the offer of proof includes the (A.M. No. 12-8-8-SC)
introduction of documents, or any of the
physical evidence, the same should be marked
for identification so that they may become part
Scope and Answer where Applicable
of the record. (Herrera, 1999)
This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence
When Offer of Proof is NOT Required
before:
1. When the question to which an objection has
1. The MeTC, MTC in Cities, MTC, and the MCTC,
been sustained clearly reveals on its face the
and the Shari‘a Circuit courts;
substance, purpose and relevancy of the
excluded evidence;
NOTE: It shall not apply to small claims cases
under A.M. No. 08-8-7-SC;
2. When the substance, purpose and relevancy of
the excluded evidence were made known to the
2. The RTC and the Shari‘a District Courts;
court either in the court proceedings and such
3. The Sandiganbayan, CTA, CA and the Shari‘a
parts appear on record; and
Appellate Courts;
4. The investigating officers and bodies
3. Where evidence is inadmissible when offered
authorized by the Supreme Court to receive
and excluded, but thereafter becomes
evidence, including the IBP; and
admissible, it must be re-offered, unless the
5. The special courts and quasi-judicial bodies,
court indicates that a second offer would be
whose rules of procedure are subject to
useless. (Herrera, 1999)
disapproval of the Supreme Court, insofar as

699 UNIVERSITY OF SANTO TOMAS

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their existing rules of procedure contravene
the provisions of this Rule. (Sec. 1, JAR)
NOTE: In civil cases (with the exception of small
claims), the application of the JAR is mandatory
regardless of the amount of money claimed.
Effect of the Judicial Affidavit Rule (JAR) in the
Philippine Judicial System
It signals a dramatic shift from a dominantly
adversarial system to a mix adversarial and
inquisitorial system. (Associate Justice Roberto
Abad, UST Law Review Chief Justice Andres Narvasa
Honorary Lecture, 15 Feb. 2013)
Purpose of JAR
To decongest the courts of cases and to reduce
delays in the disposition of cases.
Significance of the use of a Judicial Affidavit
The judicial affidavit shall take the place of direct
testimonies of witnesses.
Notable Changes by the JAR
1. Testimonies are now allowed to be taken and
kept in the dialect of the place provided they are
subsequently translated into English or
Filipino. These will be quoted in pleadings in
their original version with the English or
Filipino translation in parenthesis provided by
the party, subject to counter translation by
opposing side.
2. In civil actions, the judicial affidavit rule
requires the parties to lay their cards on the
table before pre-trial by submitting the judicial
affidavits and documents of the parties and
their witnesses and serving copies on the
adverse party at least 5 days before the pre-
trial. No further stipulations of facts are needed
at the pre-trial since, by comparing the judicial
affidavits of the opposing sides, the court will
already see what matters they agree and on
what matters they dispute.
700
3. The court will already take active part in
examining the witnesses. The judge will no
longer be limited to asking clarificatory
questions; he can also ask questions that will
determine the credibility of the witness,
ascertain the truth of his testimony and elicit
the answers that the judge needs for resolving
issues. (Associate Justice Roberto Abad, supra)
Submissions in lieu of Direct Testimony
The following are the requirements of the JAR
which the parties are bound to follow:
The parties shall file with the court and serve on the
adverse party, personally or by licensed courier
service, not later than 5 days before pre-trial or
preliminary conference or the scheduled hearing
with respect to motions and incidents, the
following:
1. The judicial affidavits of their witnesses, which
shall take the place of such witnesses' direct
testimonies; and
2. The parties' documentary or object evidence, if
any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so
on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant. (Sec. 2, JAR)
NOTE: Every pleading stating a party’s claims or
defenses shall state, among others the summary of
the witnesses’ intended testimonies, provided that
the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part
thereof. Only witnesses whose judicial affidavits are
attached to the pleading shall be presented by the
parties during trial. Except if a party presents
meritorious reasons as basis for the admission of
additional witnesses, no other witnesses or affidavit
shall be heard or admitted by the court. (Sec. 6, Rule
7, ROC, as amended)
Attachment of the Original Document as
Documentary Evidence
A party or a witness may keep the original
document or object evidence in his possession after
 Evidence
the same has been identified, marked as exhibit, and
authenticated, but he must warrant in his judicial
affidavit that the copy or reproduction attached to
such affidavit is a faithful copy or reproduction of
that original. In addition, the party or witness shall
bring the original document or object evidence for
comparison during the preliminary conference with
the attached copy, reproduction, or pictures, failing
which the latter shall not be admitted. (Ibid.)
Contents of a Judicial Affidavit (2016 BAR)
A judicial affidavit shall be prepared in a language
known to the witness and, if not in English or
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:
1. The name, age, residence or business address,
and occupation of the witness;
2. The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination is
being held;
3. A statement that the witness is answering the
questions asked of him, fully conscious that he
does so under oath, and that he may face
criminal liability for false testimony or perjury;
4. Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies;
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules of
Court;
5. The signature of the witness over his printed
name;
6. A jurat with the signature of the notary public
who administers the oath or an officer who is
701
authorized by law to administer the same. (Sec.
3, JAR); and
7. A sworn attestation by the lawyer who
conducted or supervised the examination of the
witness attesting to the following:
a. He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
b. Neither he nor any other person present or
assisting him coached the witness regarding
the latter's answers. (Sec. 4, JAR)
NOTE: A false attestation shall subject the lawyer to
disciplinary action, including disbarment. (Sec. 4(b)
JAR)
Effect of Non-compliance with the Content and
Attestation Requirements
The judicial affidavit shall not be admitted by the
court in evidence. (Sec. 10(c), JAR)
NOTE: The above provision, however, does not
absolutely bar the submission of a complaint
replacement judicial affidavit as long as the
replacement shall be submitted before the hearing
or trial and provided further that the following
requisites are met:
1. The submission shall be allowed only once;
2. The delay is for a valid cause;
3. The delay would not unduly prejudice the
opposing party; and
4. The public or private counsel responsible for
the preparation and submission of the affidavit
Subpoena
The requesting party may avail himself of the
issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court if the (a)
government official or employee, or the (b)
requested witness, who is neither the witness of the
adverse party nor a hostile witness:
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F A C U LT Y O F C I V I L L A W
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1. Unjustifiably declines to execute a judicial
affidavit; or
2. Refuses without just cause to make the relevant
books, documents, or other things under his
control available for copying, authentication,
and eventual production in court. (Sec. 5, JAR)
NOTE: Regardless of whether the requested
witness, who is the adverse party’s witness,
unjustifiably declines to execute a judicial affidavit
or refuses without just cause to present the
documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of
individuals expressly exempt from the provision’s
application. (Ng Meng Tamv. China Banking
Corporation, G.R. No. 214054, 05 Aug. 2015)
Submission by the Prosecution of the Judicial
Affidavit
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.
Trial
After submitting to the court and serving the
adverse party a copy of the judicial affidavits, trial
shall commence as follows:
1. The party presenting the judicial affidavit of his
witness in place of direct testimony shall state
the purpose of such testimony at the start of the
presentation of the witness (Sec. 6, JAR);
2. The adverse party may move to disqualify the
witness or to strike out his affidavit or any of the
answers found in it on ground of
inadmissibility;
NOTE: The court shall promptly rule on the
motion and, if granted, shall cause the marking
of any excluded answer by placing it in brackets
under the initials of an authorized court
702
personnel, without prejudice to the tender of
excluded evidence under Sec. 40, Rule 132.
3. The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and
on the exhibits attached to the same (Sec. 7,
JAR);
4. The party who presents the witness may
examine him on re-direct;
NOTE: In every case, the court shall take active
part in examining the witness to determine his
credibility as well as the truth of his testimony
and to elicit the answers that it needs for
resolving the issues.
5. Upon the termination of the testimony of his
last witness, a party shall immediately make an
oral offer of documentary evidence, piece by
piece, in their chronological order, stating the
purpose or purposes for which he offers the
particular exhibit (Sec. 8, JAR);
6. After each piece of exhibit is offered, the
adverse party shall state the legal ground for his
objection, if any, to its admission, and the court
shall immediately make its ruling respecting
that exhibit.
NOTE: Since the documentary or object exhibits
form part of the judicial affidavits that describe
and authenticate them, it is sufficient that such
exhibits are simply cited by their markings
during the offers, the objections, and the
rulings, dispensing with the description of each
exhibit.
Application to Criminal Actions
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
 Evidence
3. With respect to the civil aspect of the actions,
whatever the penalties involved are. (Sec. 9,
JAR)
Form of Testimony in Criminal Cases
(a) For First Level Courts
In all criminal cases, including those covered by the
Rule on Summary Procedure, the testimonies of
witnesses shall consist of the duly subscribed
written statements given to law enforcement or
peace officers or the affidavits or counter-affidavits
submitted before the investigating prosecutor if
such are not available, testimonies shall be in the
form of judicial affidavits, subject to additional
direct and cross—examination questions.
The trial prosecutor may dispense with the sworn
written statements submitted to the law
enforcement or peace officers and prepare the
judicial affidavits of the affiants or modify or revise
the said sworn statements before presenting it as
evidence.
(b) For Second Level Courts, Sandiganbayan and
Court of Tax Appeals
In criminal cases where the demeanor of the
witness is not essential in determining the
credibility of said witness, such as forensic chemists,
medico-legal officers, investigators, auditors,
accountants, engineers, custodians, expert
witnesses and other similar witnesses, who will
testify on the authenticity, due execution and the
contents of public documents and reports, and in
criminal cases that are transactional in character,
such as falsification, malversation, estafa, or other
crimes where the culpability or innocence of the
accused can be established through documents, the
testimonies of the witnesses shall be the duly
subscribed written statements given to law
enforcement or peace officers or the affidavits or
counter-affidavits submitted before the
investigating prosecutor, and if such are not
available, testimonies shall be in the form of judicial
affidavits, subject to additional direct and cross-
examination questions.
703
In all other cases where the culpability or the
innocence of the accused is based on the testimonies
of the alleged eyewitnesses, the testimonies of these
witnesses shall be in oral form. (Sec. 11, JAR)
Q: Can a party filing a criminal action cognizable
by the Regional Trial Court be mandated to
follow the JAR?
A: NO. The jurisdiction of the RTC in criminal cases
includes offenses where the imposable penalty
exceeds 6 years, thus, as a rule the JAR has no
application except when the accused agrees to its
use.
Q: Is it mandatory on the part of the accused to
submit a judicial affidavit?
A: NO. Since the accused is already aware of the
evidence of the prosecution, he has the option to
submit or not to submit his judicial affidavits. If the
accused desires to be heard, he may submit his
judicial affidavit as well as those of his witnesses
within ten days from receipt of the affidavits of the
prosecution with service upon the public and
private prosecutor. (Sec. 9(c), JAR)
Q: The JAR took effect last January 1, 2013, but
with some modification as to its applicability to
criminal cases. What are these modifications?
A: The JAR was modified only with respect to
actions filed by public prosecutors, subject to the
following conditions:
1. For the purpose of complying with the Judicial
Affidavit Rule, public prosecutors in the first and
second level courts shall use the sworn
statements that the complainant and his or her
witnesses submit during the initiation of the
criminal action before the office of the public
prosecutor or directly before the trial court;
2. Upon presenting the witness, the attending
public prosecutor shall require the witness to
affirm what the sworn statement contains and
may only ask the witness additional direct
examination questions that have not been
amply covered by the sworn statement; and
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F A C U LT Y O F C I V I L L A W
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3. This modified compliance does not apply to
criminal cases where the complainant is
represented by a duly empowered private
prosecutor. The private prosecutor shall be
charged in the applicable cases the duty to
prepare the required judicial affidavits of the
complainant and his or her witnesses and cause
the service of the copies of the same upon the
accused.
Effect of Non-Compliance
GR: A party who fails to submit the required
judicial affidavits and exhibits on time shall be
deemed to have waived their submission. (Sec. 10,
JAR)
XPN: The court may, however, allow only once the
late submission of the same provided, the delay is
for a valid reason, would not unduly prejudice the
opposing party, and the defaulting party pays a
more than
of the court. (Ibid.)
Appearance of the Witness at the Scheduled
Hearing
The submission of the judicial affidavit of the
witness does not exempt such witness from
appearing at the scheduled hearing. His appearance
is necessary as the adverse party has the right to
cross-examine him on his judicial affidavit and the
attached exhibits.
NOTE: The court shall not consider the affidavit of
any witness who does not appear in the scheduled
hearing of the case as required. As for the counsel,
his failure to appear without a valid cause despite
notice shall be deemed to have waived his client’s
right to confront by cross-examination, the
witnesses present.
Effect on the Rules of Court and Rules of
Procedure governing investigating officers and
bodies authorized by the Supreme Court to
receive evidence
They are repealed or modified insofar as they are
inconsistent with the provisions of the Judicial
Affidavit Rule. (Sec. 11, JAR)
704
As to Rules of Procedure governing Quasi-
judicial bodies which are Inconsistent with it
They are thereby disapproved. (Ibid.)
Q: Pedro was charged with theft for stealing
Juan's cellphone worth P20, 000.00. Prosecutor
Marilag at the pre-trial submitted the judicial
affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil liability.
She also submitted the judicial affidavit of
Mario, an eyewitness who narrated therein how
Pedro stole Juan's cellphone. At the trial, Pedro's
lawyer objected to the prosecution's use of
judicial affidavits of her witnesses considering
the imposable penalty on the offense with which
his client was charged. (2015 BAR)
a. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Mario?
A: YES, Pedro’s lawyer is correct in objecting to the
judicial affidavit of Mario. The Judicial Affidavit
Rules shall apply only to criminal actions where the
maximum of the imposable penalty does not exceed
six years. (Sec. 9(a)(1), A.M. No. 12-8-9-SC) Here, the
maximum imposable penalty for the crime of theft
prison mayor in its
minimum to medium periods, or six years and one
day to eight years and one day.
b. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Juan?
A: NO. Pedro’s lawyer is not correct in objecting to
the judicial affidavit of Juan because the Judicial
Affidavit Rules apply with respect to the civil aspect
of the actions, regardless of the penalties involved.
(Sec. 9, A.M. No. 12-8-8-SC) Here the judicial affidavit
of Juan was offered to prove the civil liability of
Pedro.
c. At the conclusion of the prosecution's
presentation of evidence, Prosecutor Marilag
orally offered the receipt attached to Juan's
judicial affidavit, which the court admitted over
the objection of Pedro's lawyer.
After Pedro's presentation of his evidence, the
court rendered judgment finding him guilty as
 Evidence
charged and holding him civilly liable for
motion for reconsideration of the decision
asserting that the court erred in awarding the
civil liability on the basis of Juan's judicial
affidavit, documentary evidence which
Prosecutor Marilag failed to orally offer. Is the
motion for reconsideration meritorious? (2015
Bar) (2015 BAR)
A: NO. The motion for reconsideration is not
meritorious. The judicial affidavit is not required to
be orally offered as separate documentary evidence,
because it is filed in lieu of the direct testimony of
the witness. It is offered, at the time the witness is
called to testify, and any objection to it should have
been made at the time the witness was presented.
(Secs. 6 and 8, A.M. No. 12-8-8-SC) Since the receipt
attached to the judicial affidavit was orally offered,
there was enough basis for the court to award civil
liability.
I. WEIGHT AND SUFFICIENCY OF EVIDENCE
(RULE 133)
Weight of Evidence
It is the probative value given by the court to
particular evidence admitted to prove a fact in issue.
Degree of Evidence Required to Disprove the
Prima Facie Case established by the Party
having the Burden of Proof
A prima facie case need not be countered by a
preponderance of evidence nor by evidence of
greater weight. Defendant's evidence which
equalizes the weight of plaintiff's evidence or puts
the case in equipoise is sufficient. As a result,
plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has
burden of proof, he or she cannot prevail. (People v.
Santiago, G.R. Nos. 137542-43, 20 Jan. 2004)
705
Guidelines in the Assessment of Credibility of a
Witness
1. A witness who testified in clear, positive and
convincing manner and remained consistent in
cross-examination is a credible witness; (People
v. Comanda, G.R. No. 175880, 06 July 2007) and
2. Findings of fact and assessment of credibility of
a witness are matters best left to the trial court
that had the front-line opportunity to
personally evaluate the demeanor, conduct, and
behavior of the witness while testifying. (Sps.
Paragas v. Heirs of Balacano, G.R. No. 168220, 31
Aug. 2005)
Q: Hesson was charged with Murder for the
death of Fernando. Sario was the lone witness
for the prosecution, and he testified that he saw
Junello hacked Fernando's body on the side
using a bolo. Fernando lost consciousness.
Hesson stabbed Fernando twice in the chest
using a knife. Hesson then sliced open
Fernando's chest and took out the latter's heart
using the same knife. Junello followed and took
out Fernando's liver using a bolo. Hesson and
Junello went at large, but Hesson was arrested
after a year. The RTC and the CA found Hesson
guilty of Murder. The accused argued that the
testimony of Sario, being uncorroborated, does
not sufficiently establish his guilt beyond
reasonable doubt. Is Hesson correct?
A: NO. Sario's testimony, although uncorroborated,
can be relied upon. The testimony of a lone
eyewitness, if found positive and credible by the
trial court, is sufficient to support a conviction
especially when the testimony bears the earmarks
of truth and sincerity and had been delivered
spontaneously, naturally and in a straightforward
manner. Witnesses are to be weighed, not
numbered. Evidence is assessed in terms of quality
and not quantity. Corroborative evidence is deemed
necessary only when there are reasons to warrant
the suspicion that the witness falsified the truth or
that his observation had been inaccurate. (People v.
Callao y Marcelino, G.R. No. 228945, 14 Mar. 2018, J.
Caguioa)
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Q: In an Information, Christopher Pacu-An identification was duly corroborated by Alvin's

(petitioner) and co-accused Peter Romer Abao testimony. (Pacu-An v. People of the Philippines, G.R.
were charged with homicide for the death of No. 237542, 16 June 2021)
Zaldy Milad. Petitioner voluntarily surrendered
to the police authorities. Petitioner and Rommel Hierarchy of quantum of evidence
entered a plea of not guilty. The RTC found
petitioner guilty beyond reasonable doubt of the
crime of homicide. The CA affirmed the Decision
of the RTC in convicting petitioner of the crime
of Homicide. Petitioner argues that the CA
gravely erred when it upheld his conviction
despite weak, inconsistent and unreliable
identification by the prosecution's witnesses. He
claims that the inconsistent statements given by
Alicia should not be considered as a mere
inconsistency that can be lightly overlooked. He
points to the inconsistency in Alicia's
Sinumpaang Salaysay taken during the night
Zaldy was stabbed where Alicia stated that a
witness informed her that petitioner was the
one who stabbed Zaldy. However, in her open
court examination, Alicia testified that she
herself saw petitioner stab Zaldy. Is the
petitioner guilty of the crime of homicide?

A: YES. The discrepancy in Alicia's statements in her

Sinumpaang Salaysay and her open court testimony
was explained by Alicia during her cross-
examination. The Supreme Court sustained the
finding of the CA that the discrepancy in Alicia's
statement in her Sinumpaang Salaysay did not
diminish the probative value of her open court
testimony in positively identifying petitioner as the
perpetrator of the crime of Homicide. In Madali v.
People, the Court held that slight inconsistencies in
the declarations of witnesses hardly weaken the
probative value of the witnesses' open court
testimony.
The CA was correct in sustaining the ruling of the
RTC regarding the probative value of Alicia's
testimony in positively identifying petitioner as the
perpetrator of the crime. The Court agrees that the
minor inconsistencies in Alicia's Sinumpaang
Salaysay were not sufficient to damage the essential
integrity of the prosecution's evidence in its
material whole. Alicia's positive identification
prevails over petitioner's defenses of denial and
alibi since the latter can be easily fabricated and is
essentially unreliable. Further, Alicia's positive
NOTE: Evidence, to be worthy of credit, must not
only proceed from a credible source but must also
be credible in itself. It must be natural, reasonable
and probable as to make it easy to believe. (People v.
Peruelo, G.R. No. 50631, 29 June 1981)
Proof beyond Reasonable Doubt
Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces
conviction in an unprejudiced mind. (Sec. 2, Rule
133, ROC, as amended)
Moral Certainty
That degree of certainty which will justify the trial
judge in grounding on it his verdict. It is a certainty
that convinces and directs the understanding and

706
 Evidence
satisfies the reason and judgment of those who are
bound to act conscientiously upon it.
Identity of the Accused must be Proved Beyond
Reasonable Doubt
When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily
follows. Conviction for a crime rests on the strength
of the prosecution’s evidence, never on the
weakness of that of the defense. (People v. Jalon, G.R.
No. 93729, 13 Nov. 1992)
NOTE: In every criminal prosecution, the
prosecution must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral
certainty as to the person of the offender.
(People v. Maguing, G.R. No. 144090, 26 June
2003
Q: Prosecution witnesses positively identified
Johnny as the assailant of Chris. Hence, he was
convicted of Homicide. However, he contends
that the State failed to present sufficient
evidence against him in court. He sufficed that
should the knife he held during a fight against
his longtime enemies, brothers Chris and
Michael, had been presented, it would show the
difference that Chris’ knife, although smaller
than Johnny’s, had more blood stains but which
size fits best on the mortal wound inflicted on
himself. It would thereby be ascertained that
Chris accidentally stabbed himself upon losing
his balance during such aggressive fight. Is
Johnny’s contention meritorious?
A: NO. The non-identification and non-presentation
of the weapon actually used in the killing did not
diminish the merit of the conviction on the ground
that other competent evidence and the testimonies
of witnesses had directly and positively identified
and incriminated Johnny as the assailant of Chris.
The presentation of the weapon is not a prerequisite
for conviction. Positive identification of the accused
is sufficient for the judgment of conviction despite
the non-presentation of the weapon used in the
707
commission of the offense. (Medina v. People, G.R.
No. 161308, 15 Jan. 2014)
Q: Tumbaga was watching a basketball game in
Barangay Matingain, together with his uncle.
When he was about to board his parked
motorcycle, he was shot twice at the back.
Tumbaga was able to survive. Aliling's alibi was
that he was in another Barangay for a miting de
avance. Aliling's defense witness, Bathan, also
testified that he was at the same basketball
court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
However, Bathan did not see accused Hilario
Aliling at the place when the shooting happened
and instead saw an unidentified man shot the
private complainant.
The RTC and the CA found Aliling guilty and held
that the positive allegations of the prosecution
witnesses prevailed over the denial and alibi of
the defense witnesses. Ailing argued that the
testimonial evidence of the prosecution cannot
be relied on as they were inconsistent and
incredible, especially against the eyewitness
account of Bathan. Are the RTC and CA correct?
A: NO. Positive testimony is generally given more
weight than the defenses of denial and alibi which
are held to be inherently weak defenses because
they can be easily fabricated. While, indeed, the
defense of denial or alibi can be easily fabricated,
the same can be said of untruthful accusations, in
that they can be as easily concocted.
Thus, if found credible, the defenses of denial and
alibi may be considered complete and legitimate
defenses. The burden of proof does not shift by the
mere invocation of said defenses; the presumption
of innocence remains in favor of the accused. In
alibi, the accused must prove not only that he was at
some other place at the time the crime was
committed, but that it was likewise physically
impossible for him to be at the scene of the crime at
the time thereof. In this case, the Court found that
Ailing's alibi was straightforward, credible, and
corroborated by an impartial witness. Bolstering
the alibi of Ailing is the eyewitness account of
Bathan who positively testified that he witnessed
the shooting incident and saw that the culprit was
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not Aliling. (Aliling v. People, G.R No. 230991, June 11,
2018, J. Caguioa)
Q: In 2005, Diosdado Sama y Hinupas, Demetrio
Masanglay y Aceveda and Bandy Masanglay y
Aceveda, residents of Barangay Baras, Baco,
Oriental Mindoro, cut with the use of
unregistered power chainsaw, a Dita tree. On
arraignment, all three (3) accused pleaded not
guilty. Thereafter, they filed a Motion to Quash
Information dated July 31, 2007, alleging among
others, that they are members of the Iraya-
Mangyan tribe, and as such, are governed by
Republic Act No. 8371, The Indigenous Peoples
Rights Act of 1997 (IPRA).
By Order dated August 23, 2007, the motion was
denied for being a mere scrap of paper. Trial
followed. On August 24, 2010, the trial court
convicted the accused. The trial court ruled that
a dita tree with an aggregate volume of 500
board feet can be classified as "timber" within
the purview of Section 68, now Section 771 of
P.D. No. 705, as amended. Thus, cutting the dita
tree without a corresponding permit from the
DENR or any competent authority violated the
law. The trial court further held that a violation
of Section 77 of P.D. No. 705 constituted malum
prohibitum, and for this reason, the commission
of the prohibited act is a crime in itself and
criminal intent does not have to be established.
The Court of Appeals affirmed.
Was his guilt proven beyond reasonable doubt?
A: NO. In practice, there is proof beyond a
reasonable doubt where the judge can conclude:
"All the above, as established during trial, lead to no
other conclusion than the commission of the crime
as prescribed in the law." The prosecution was not
able to prove the guilt of petitioners beyond
reasonable doubt. Section 77 of PD 705, as
amended, punishes, among others, "any person who
shall cut, gather, collect, removed timber or other
forest products from any forest land, or timber from
alienable or disposable public land, or from private
land, without any authority shall be punished with
the penalties imposed under Articles 309 and 310 of
the Revised Penal Code...."
708
There is, however, reasonable doubt that the dita
tree was cut and collected without any authority
granted by the State. It is a general principle in law
that in malum prohibitum case, good faith or motive
is not a defense because the law punishes the
prohibited act itself. The penal clause of Section 77
of PD 705, as amended punishes the cutting,
collecting, or removing of timber or other forest
products only when any of these acts is done
without lawful authority from the State. (Sama v.
People, G.R. No. 224469, 05 Jan. 2021)
Preponderance of Evidence
Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has
greater weight than that of the other. It means
evidence which is more convincing to the court as
worthy of belief than that which is offered in
opposition thereto. (Ava v. De Guzman, A.C. No. 7649,
14 Dec. 2011)
It is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to
be synonymous with the term “greater weight of the
evidence” or “greater weight of the credible
evidence.” It means probability of the truth,
evidence which is more convincing to the court as
worthy of belief than that which is offered in
opposition thereto. (Philippine Commercial
International Bank v. Balmaceda, G.R. No. 158143, 21
Sept. 2011)
NOTE: A judgment cannot be entered in the
plaintiff’s favor if his or her evidence still does not
suffice to sustain his cause of action.
Matters that the court may consider in
determining whether there is preponderance of
evidence
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they are testifying,
the nature of the facts to which they testify, the
probability or improbability of their testimony;
3. The witnesses’ interest or want of interest, and
their personal credibility so far as the same may
legitimately appear upon the trial; and
 Evidence
4. The number of witnesses, though the
preponderance is not necessarily with the
greater number. (Sec. 1, Rule 133, ROC, as
amended)
NOTE: To persuade by the preponderance of
evidence is not to take the evidence quantitatively
but qualitatively. (Riano, 2019)
Related jurisprudence
In civil cases, only a preponderance of evidence or
"greater weight of the evidence" is required. While
the charge invoices are not actionable documents
per se, they provide details on the alleged
transactions. These documents need not be
attached to or stated in the complaint as these are
evidentiary in nature. In fact, the cause of action is
not based on these documents but on the contract of
sale between the parties. Here, the delivery of the
supplies and materials was duly proved by the
charge invoices and purchase orders indicating that
Asian Construction indeed ordered supplies and
materials from Highett and that these were
delivered. (Asian Construction and Development
Corporation v. Mendoza, G.R. No. 176949, 27 June
2012)
Q: Cathay hired Uy as material handling officer
tasked with the sale of special assorted steel
bars known as retazos, authorized to accept
cash payments directly from customers to be
remitted immediately to Cathay's treasury
department. Sometime in March 2008, Cathay
discovered that cash proceeds from the sale of
retazos for the month of February 2008 covered
by several delivery receipts amounting to
P409,280.00 were not remitted to its treasury
department. Uy's signature was on the delivery
receipts. Cathay sent a demand letter for
payment of the amount covered by the
questionable transactions, but Uy failed to pay
or settle with Cathay. Cathay filed a Complaint
against Uy for Sum of Money and Damages.
Cathay presented the delivery receipts, also
known as "scrap miscellaneous sales (SMS),"
covering the five transactions when Uy allegedly
authorized the release of the retazos on a cash
transaction basis, as well as the corresponding
statements of account to prove that during such
709
transactions, Uy did not remit the payments to
Cathay's treasury department. Was Cathay able
to prove by preponderance of evidence its cause
of action against Uy?
A: YES. In civil cases, the party having the burden of
proof must establish its cause of action by a
preponderance of evidence, or that "evidence which
is of greater weight or is more convincing than that
which is in opposition to it." Preponderance of
evidence "does not mean absolute truth; rather, it
means that the testimony of one side is more
believable than that of the other side, and that the
probability of truth is on one side than on the other."
The guidelines in the determination of
preponderance of evidence are provided under
Section 1, Rule 133 of the Rules of Court:
SECTION 1. Preponderance of evidence,
how determined. — In civil cases, the
party having the burden of proof must
establish his [or her] case by a
preponderance of evidence. In
determining where the preponderance or
superior weight of evidence on the issues
involved lies, the court may consider all
the facts and circumstances of the case, the
witnesses' manner of testifying their
intelligence, their means and opportunity
of knowing the facts to which they are
testifying, the nature of the facts to which
they testify, the probability or
improbability of their testimony, their
interest or want of interest, and also their
personal credibility so far as the same
legitimately appear upon the trial. The
court may also consider the number of
witnesses, though the preponderance is
not necessarily with the greater number.
Thus, the determination of preponderance of
evidence depends greatly on the credibility of the
witnesses. Hence, in the evaluation of their
testimonies, the courts must be guided by the well-
settled doctrine that "[w]hen it comes to [the
witnesses'] credibility, the trial court's assessment
deserves great weight, and is even conclusive and
binding, unless the same is tainted with
arbitrariness or oversight of some fact or
circumstance of weight and influence." Here, Cathay
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was able to prove that Uy authorized on four
occasions the release of the retazos sold on a cash
transaction basis, for which he had the duty to
accept cash payment, but failed to remit the
payments to Cathay's treasury department. (Cathay
Pacific Steel Corporation v. Charlie Chua Uy, Jr., G.R.
No. 219317, 14 June 2021)
Substantial Evidence
Clear and Convincing Evidence
It is that degree of evidence that produces in the
mind of the trier of fact a firm belief or conviction as
to allegations sought to be established. It is
intermediate, being more than preponderance, but
not to the extent of such certainty as is required
beyond reasonable doubt as in criminal cases.
(Black’s Law Dictionary, 2004)

Substantial evidence applies to cases filed before Instances when Clear and Convincing Evidence
the administrative or quasi-judicial bodies and is Required
which requires that in order to establish a fact, the
evidence should constitute that amount of relevant 1. When proving forgery (Citibank, N.A. v.
evidence which a reasonable mind might accept as Sabeniano, G.R. No. 156132, 06 Feb. 2007);
adequate to justify a conclusion. (Sec. 6, Rule 133,
ROC). Substantial evidence is more than mere 2. When proving ownership over a land in
scintilla. annulment or reconveyance of title (Manotok
Realty, Inc. v. CLT Realty Development Corp., G.R.
The requirement is satisfied where there is No. 123346, 14 Dec. 2007);
reasonable ground to believe that the petitioner is
guilty of the act or omission complained of, even if 3. When invoking self-defense, the onus is on the
the evidence might not be overwhelming. (Office of accused-appellant to establish by clear and
the Deputy Ombudsman for Luzon v. Dionisio, G.R. No. convincing evidence his justification for the
220700, 10 July 2017) killing (People v. Tomolin, G.R. No. 126650, 28
July 1999);
NOTE: In a petition for a writ of amparo, the parties
shall establish their claims by substantial evidence. 4. When proving the allegation of frame-up and
(Sec 17, The Rule on the Writ of Amparo) extortion by police officers in most dangerous
drug cases (People v. Boco, G.R. No. 129676, 23
Preponderance of Evidence vs. Substantial June 1999);
Evidence (2003 BAR)
5. When proving physical impossibility for the
PREPONDERANCE OF SUBSTANTIAL accused to be at the crime scene when using
EVIDENCE EVIDENCE alibi as a defense (People v. Cacayan, G.R. No.
As to Nature or Definition 180499, July 9, 2008); (People v. Cacayan, G.R.
That amount of No. 180499, 09 July 2008);
The evidence as a relevant evidence
whole adduced by one which a reasonable 6. When using denial as a defense like in
side is superior to that might mind accept as prosecution for violation of the Dangerous
of the other. adequate to justify a Drugs Act (People v. Mustapa, G.R. No. 141244,
conclusion 19 Feb. 2001);
As to Applicability
Applicable in 7. To overcome the presumption of due execution
Applicable in civil of notarized instruments (Viaje v. Pamintel, G.R.
administrative cases or
cases No. 147792, 23 Jan. 2006)
quasi-judicial bodies

8. When proving bad faith to warrant an award of

moral damages (Resolution of the SC in Cual v.

710
 Evidence
Leonis Navigation, G.R. No. 167775, 10 Oct.
2005);
9. When proving that the police officers did not
properly perform their duty or that they were
inspired by an improper motive (People v.
Concepcion, G.R. No. 178876, 27 June 2008); or
10. When a person seeks confirmation of an
imperfect or incomplete title to a piece of land
on the basis of possession by himself and his
predecessors-in-interest, he must prove with
clear and convincing evidence compliance with
the requirements of the applicable law
(Republic v. Imperial Credit Corp., G.R. No.
173088, 25 June 2008; Riano, 2009); and
11. In granting or denying bail in extradition
proceedings. (Government of Hongkong Special
Administrative Region v. Olalia, G.R. No. 153675,
19 Apr. 2007)
NOTE: The list is NOT exclusive.
Q: Loraine filed a complaint before the Civil
Service Commission Regional Office No. VIII
(CSCRO VIII) against several employees of the
Professional Regulation Commission (PRC)
Tacloban Office, including Ayesha, for conflict of
interest, grave abuse of authority, dishonesty
and violation of graft and corrupt practices and
the Anti-Red Tape Act. PREMPC, a cooperative
formed by some of the employees of the PRC,
operates inside the premises of PRC Tacloban
Office. It provides photocopying services and
sells mailing envelopes, mail stamps and
documentary stamps to PRC clients. On several
instances, the above-mentioned employees left
their posts during office hours, took PRC forms
(renewal, application for examination and oath
forms), documentary stamps, and window
envelopes with mailing stamps from PRC office
and sent them to PREMPC to be sold to the
latter's customers. CSCRO VIII issued a Formal
Charge against Ayesha and Cedie finding a prima
facie case for the administrative offense of Grave
Misconduct. CA directed Ayesha to submit
documents/pleadings that were not included in
her petition for review. But due to her failure to
do so, the CA dismissed the petition for review
711
without ruling on its merits. CA ruled that
Ayesha failed to comply with its Resolution
which required hereto submit the lacking
Exhibits "6" and "9" in her petition, within the
period required by law. Was it proper to dismiss
the petition for review based on procedural
grounds?
A: NO. Cases shall be determined on the merits, after
full opportunity to all parties for ventilation of their
causes and defenses, rather than on technicality or
some procedural imperfections. The CSC's decisions
were anchored principally on the sole testimony of
Loraine that Ayesha took PRC forms (renewal,
application and oath forms) from her and sent them
to PREMPC to be sold. There was no evidence
presented to show that Ayesha actually delivered
the forms to PREMPC. Likewise, there was no
evidence to support the allegation that the forms
were sold by Ayesha or PREMPC. In this case, CSC
has relied solely on the evidence presented by
Loraine without taking into account the
countervailing evidence established by Ayesha.
(Sonia Mahinay v CA & Alma Genotiva, G.R. 230355,
18 Mar. 2021)
Trial Court’s Findings as to the Credibility of
Witnesses, Not Disturbed on Appeal
The trial court’s findings of fact will not be disturbed
on appeal, unless there is a clear showing that it
plainly overlooked matters of substance which, if
considered, might affect the results of the review.
The credibility of witnesses is best determined by
the trial judge, who has the direct opportunity to
observe and evaluate their demeanor on the
witness stand. (People v. Pacuancuan, G.R. No.
144589, 16 June 2003)
Uncorroborated Testimony of an Accused who
turned into a State Witness Sufficient to Convict
his Co-accused
It may suffice to convict his co-accused if it is given
in a straightforward manner and is full of details
which by their nature could not have been the result
of deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may
ultimately decide the case of the prosecution and
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the fate of the accused. (People v. Sunga, G.R. No.
126029, 27 Mar. 2003)
Sufficiency of Evidence
In determining the sufficiency of evidence, what
matters is not the number of witnesses but the
credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible. (Ceniza-Manantan v. People, G.R. No.
156248, 28 Aug. 2007)
Partial Credibility of a Witness
The testimony of a witness may be believed in part
and disbelieved in another part, depending on the
probabilities and improbabilities of the case.
(People v. Tan, G.R. No. 176526, 08 Aug. 2007)
NOTE: If the testimony of the witness on a material
issue is willfully false and given with an intention to
deceive, the court may disregard all the witness’
testimony under the Falsus in uno, falsus in omnibus
rule. (Riano, 2019) This is not a mandatory rule of
evidence but is applied by the courts in its
discretion. The court may accept and reject portions
of the witness’ testimony depending on the inherent
credibility thereof. (Regalado, 2008)
Falsus in uno, falsus in omnibus (in relation to
Credibility of Witness)
Literally, falsus in uno, falsus in omnibus means
“false in one thing, false in everything.”
If the testimony of a witness on a material issue is
willfully false and given with an intention to deceive,
the jury may disregard all the witness’ testimonies.
(Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820,
823)
The principle of falsus in uno, falsus in omnibus is not
strictly applied in this jurisdiction. It deals only with
the weight of the evidence and is not a positive rule
of law. Modern trend in jurisprudence favors more
flexibility when the testimony of a witness may be
partly believed and partly disbelieved depending on
the corroborative evidence presented at the trial.
712
(People v. Negrosa, G.R. Nos. 142856-57, 25 Aug.
2003)
When the Maxim Falsus in uno, falsus in omnibus
applies
1. That the false testimony is as to one or more
material points; and
2. That there should be conscious and deliberate
intention to falsify a material point. (People v.
Pacapac, G.R. No. 90623, 07 Sept. 1995)
Extrajudicial Confession is NOT Sufficient
Ground for Conviction
An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3,
Rule 133, ROC, as amended)
When Circumstantial Evidence is Sufficient for
Conviction (2017 BAR)
1. There are more than one circumstances;
2. The facts from which the inferences are derived
are proven; and
3. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. (Sec. 4, Rule 133, ROC, as
amended)
NOTE: Inferences cannot be based on other
inferences. (Sec. 4, Rule 133, ROC, as amended)
The corollary rule is that the circumstances proven
must constitute an unbroken chain which leads to
one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty
person. (Trinidad v. People, G.R. No. 192241, 13 June
2012)
Q: A criminal complaint for simple arson was
filed against Allysa and she was convicted.
Allysa then appealed. She argued that none of
the prosecution’s witnesses had positively
identified her as the person who burned the
nipa hut. CA affirmed the Decision of the RTC in
toto. Allysa moved for reconsideration but it was
denied. Thus, Allysa filed a Petition for Review
on Certiorari arguing that the CA erred in
 Evidence
upholding her conviction based on
circumstantial evidence, which, being merely
based on conjecture, falls short of proving her
guilt beyond reasonable doubt. No direct
evidence was presented to prove that she
actually set fire to Marie’s nipa hut. Moreover,
there were two (2) incidents that occurred,
which should be taken and analyzed separately.
Is Allysa guilty of simple arson?
A: YES. The identity of the perpetrator of a crime
and a finding of guilt may rest solely on the strength
of circumstantial evidence. The commission of a
crime, the identity of the perpetrator, and the
finding of guilt may all be established by
circumstantial evidence. The circumstances must be
considered as a whole and should create an
unbroken chain leading to the conclusion that the
accused authored the crime. The proven
circumstances must be "consistent with each other,
consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the
hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt." In this case,
no one saw petitioner actually set fire to the nipa
hut. Nevertheless, the prosecution has established
multiple circumstances, which, after being
considered in their entirety, support the conclusion
that petitioner is guilty beyond reasonable doubt of
simple arson. (Marlon Bacerra vs. People of the
Philippines, G.R. No. 204544, 03 July 2017)
Q: BBB testified that: she was a classmate in
Kindergarten, friend and neighbor of the victim,
five-year-old AAA, who was fondly called Angel;
she knows that Angel is now dead; the last time
she saw Angel was when she and Angel played
with mud forming it into objects, underneath
their house in Samar at noontime after class;
thereafter, they went to pick santol; they also
went biking; then they went to pathway going to
Angel's house; Angel went to a place where there
was a gemelina plant with Totoy [the nickname
of Cabornay); she knows Totoy who is from
Barangay Atigawan because he was often seen in
the house of Nay Goring, the grandmother of
Angel; their house and the house of Nay Goring
are just near without any house in between; she
kept on looking at them (Totoy and Angel)
headed to the direction of Brgy. Nabong, until
713
they disappeared from her view; she tried to
pull Angel away from Totoy, but Angel was
heavy; she ran because she was afraid, she might
be made to go with them; she went home, played
some more and ate lunch; and, next time she saw
Angel, Angel was already inside their house,
dead. BBB's testimony is corroborated by
Abonger, her father. Further, the prosecutions
presented other witnesses. RTC convicted
Carbonay of rape with homicide, but CA
convicted him only of attempted rape and
homicide. Despite lack of direct evidence, may
Carbonay be convicted?
A: YES. While it is a long-standing rule that medical
finding is not an element of rape and cannot
establish the one responsible for the same,
jurisprudence dictates that in the absence of a direct
evidence, it is corroborative of strong
circumstantial evidence that the victim was raped.
CA finds that Carbonay is guilty of attempted rape
with homicide, because the doctor did not declare
that there was the slightest penetration of the
victim's vagina and the whitish discharge found by
the doctor on the victim's vaginal canal was not
tested for chemical analysis. The medical
examination on the samples taken from the vagina
is not indispensable to an inference leading to rape.
However, based on the hematoma on the left
inguinal area, as well as on the perineal area of the
victim's vagina, the position of the victim when she
sustained the hematoma and the removed
underwear one (1) meter away from the victim, we
are convinced that, at the very least, there was an
attempt to rape the victim. Dr. Solis testified that the
perpetrator could have been trying his best to rape
the victim.
No other evidence indicates that Carbonay
succeeded in having a carnal knowledge of the
victim. (People of the Philippines v Carbonay, G.R.
250649, 24 Mar. 2021)
Weight to be given Opinion of Expert Witness,
How Determined
The court has wide latitude of discretion in
determining the weight to be given to such opinion,
and for that purpose may consider the following:
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a. Whether the opinion is based on sufficient facts
or data;
b. Whether it is the product of reliable principles
and methods;
c. Whether the witness has applied the principles
and methods to the reliability of the facts of the
case; and
d. Such other factors as the court may deem
helpful to make such determination. (Sec. 5,
Rule 133, ROC, as amended)
Q: At 3:30 o'clock in the morning of June 21,
1997, Atilano Andong (Andong) was sleeping at
home with his common-law wife Marilou
Gamboa (Gamboa) and their child. Suddenly,
Quijano started banging on their door and
shouting Andong's name. When Andong rose
from the bed, he was surprised to see Quijano
standing 60 centimeters away from him,
beaming a flashlight at him. Then, Quijano
suddenly shot Andong on his right shoulder.
Gamboa pleaded for Quijano to stop.
Andong's neighbors Chona Baguio (Baguio) and
Rosemarie Barrellano (Barrellano) heard a
gunshot. They went outside of their house and
saw Quijano holding a handgun. Thereafter,
they saw Andong blood-stained and with a
wound on his right shoulder.
Andong was rushed to the hospital where he
underwent an operation. He was treated by Dr.
Prudencio Manubag (Dr. Manubag) and was
confined for more than two weeks.
Is Quijano guilty of frustrated murder?
A: NO. Quijano is not guilty of frustrated murder, but
rather of attempted murder. In Serrano v. People,
the Court cautioned that the accused may not be
convicted of frustrated homicide in the absence of
clear evidence establishing that the injury would
have been fatal if not medically attended to. When
nothing in the evidence shows that the wound
would be fatal without medical intervention, the
character of the wound enters the realm of doubt;
under this situation, the doubt created by the lack of
evidence should be resolved in favor of the
petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide. petitioner.
714
Thus, the crime committed should be attempted, not
frustrated, homicide. The victim's attending
physician did not testify on the gravity of the wound
inflicted on the victim.
The evidence fails to prove with moral certainty that
Andong would have died from the gunshot wound
without timely medical intervention. Unfortunately,
the prosecution failed to present Dr. Manubag, the
physician who treated Andong and administered
the alleged life-saving procedure. The Medical
Certificate alone, without the testimony of Dr.
Manubag is inadequate proof of the nature and
extent of Andong's injury. This lacuna may not be
filled with the testimony of the expert witness Dr.
Paradela.
While it is true that the prosecution and the defense
stipulated on the qualification of Dr. Paradela, this
stipulation does not in any way mean that the Court
must accord probative value and weight to his
testimony. The stipulation solely pertained to the
physician's qualification was an expert witness
being a medical doctor." It did not dispense with the
prosecution's burden to prove the elements of the
offense.
Dr. Paradela's statement was so curt and wanting in
essential details that he failed to furnish sufficient
facts and data relevant to the charge. Moreover, the
fact that the RTC and the CA gave probative value to
Dr. Paradela's expert opinion does not in any way
bind this Court to blindly adopt the same finding,
especially in light of facts warranting a different
conclusion. (Quijano v. People, G.R. No. 202151, 10
Feb. 2021)
Alibi
It is a defense where an accused claims that he was
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused
may avail because of the facility with which it can be
fabricated, just like a mere denial. (People v.
Esperanza, G.R. Nos. 139217-24, 27 June 2003) When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.
 Evidence
NOTE: A categorical and positive identification of an
accused, without any showing of ill-motive on the
part of the eyewitness testifying on the matter,
prevails over an alibi. (People v. Gingos and Margote,
G.R. No. 176632, 11 Sept. 2007)
For the defense of alibi to prosper, the accused must
show that:
1. He or she was somewhere else; and
2. It was physically impossible for him to be at the
scene of the crime at the time of its commission
(People v. Gerones, et al., G.R. No. L-6595, 29 Oct.
1954)
Alibi may serve as basis for acquittal if it can really
be shown by clear and convincing evidence that it
was indeed physically impossible for the accused to
be at the scene of the crime at the time of
commission. (People v. Cacayan, G.R. No. 180499, 09
July 2008)
For the defense of alibi to prosper, the requirements
of time and place must be strictly met. (Ibanez v.
People, G.R. No. 190798, 27 Jan. 2016)
Out-of-Court Identification
It is a means of identifying a suspect of a crime and
is done thru:
1. Show-ups: where the suspect alone is brought
face-to-face with the witness for identification;
NOTE: Eyewitness identification is often
decisive of the conviction or acquittal of an
accused. Identification of an accused through
mug shots is one of the established procedures
in pinning down criminals. However, to avoid
charges of impermissible suggestion, there
should be nothing in the photograph that would
focus attention on a single person. (People v.
Villena, G.R. No. 140066, 14 Oct. 2002)
2. Mug shots: where photographs are shown to
the witness to identify the suspect; or
3. Line-ups: where a witness identifies the
suspect from a group of persons lined up for the
715
purpose. (People v. Claudio Teehankee, Jr., G.R.
Nos. 111206-08, 06 Oct. 1995)
NOTE: A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of offenders or confirm
their identification by a witness to the crime.
Police officers are not obliged to assemble a
police line-up as a condition sine qua non to
prove the identity of an offender. If, on the basis
of the evidence on hand, police officers are
certain of the identity of the offender, they need
not require any police line-up anymore.
(Tapdasan, Jr. v. People, G.R. No. 141344, 21 Nov.
2002)
Q: Tumbaga was watching a basketball game in
Barangay Matingain, together with his uncle.
When he was about to board his parked
motorcycle, he was shot twice at the back.
Tumbaga was able to survive. Aliling's alibi was
that he was in another Barangay for a miting de
avance. Aliling's defense witness, Bathan, also
testified that he was at the same basketball
court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
However, Bathan did not see accused Hilario
Aliling at the place when the shooting happened
and instead saw an unidentified man shot the
private complainant. The RTC and the CA found
Aliling guilty and held that the positive
allegations of the prosecution witnesses
prevailed over the denial and alibi of the
defense witnesses. Aliling argued that the
testimonial evidence of the prosecution cannot
be relied on as they were inconsistent and
incredible, especially against the eyewitness
account of Bathan. Are the RTC and CA correct?
A: NO. Positive testimony is generally given more
weight than the defenses of denial and alibi which
are held to be inherently weak defenses because
they can be easily fabricated. While, indeed, the
defense of denial or alibi can be easily fabricated,
the same can be said of untruthful accusations, in
that they can be as easily concocted. Thus, if found
credible, the defenses of denial and alibi may be
considered complete and legitimate defenses. The
burden of proof does not shift by the mere
invocation of said defenses; the presumption of
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innocence remains in favor of the accused. In alibi,
the accused must prove not only that he was at some
other place at the time the crime was committed,
but that it was likewise physically impossible for
him to be at the scene of the crime at the time
thereof.
In this case, the Court found that Aliling's alibi was
straightforward, credible, and corroborated by an
impartial witness. Bolstering the alibi of Aliling is
the eyewitness account of Bathan who positively
testified that he witnessed the shooting incident and
saw that the culprit was not Aliling. (Aliling v. People,
G.R. No. 230991, 11 June 2018, J. Caguioa)
Admissibility of Out-of-Court Identification
It is admissible and reliable when it satisfies the
“totality of circumstances” test. Under the “totality
of circumstances” test, the following factors are
considered:
1. Witness’ opportunity to view the criminal at the
time of the crime;
2. Witness’ degree of attention at that time;
3. Accuracy of any prior description given by the
witness;
4. Level of certainty demonstrated by the witness
at the identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification procedure.
(People v. Claudio Teehankee, Jr., G.R. Nos.
111206-08, 06 Oct. 1995)
Frame-up
Allegations of frame-up by police officers are
common and standard defenses in most dangerous
drugs cases. For this claim to prosper, the defense
must adduce clear and convincing evidence to
overcome presumption that government officials
have performed their duties in a regular and proper
manner. Thus, in the absence of proof of motive to
falsely impute such a serious crime against the
accused, the presumption of regularity in the
performance of official duty shall prevail. (People v.
Almodiel, G.R. No. 200951, 05 Sept. 2012)
716
Corpus Delicti
It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body of
the deceased or to the ashes of a burned building.
The corpus delicti may be proven by the credible
testimony of a sole witness, not necessarily by
physical evidence. (Rimorin v. People, G.R. No.
146481, 30 Apr. 2003)
Elements of Corpus Delicti
1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act.
(People v. Corpuz, G.R. No. 148919, 17 Dec. 2002)
NOTE: The identity of the accused is not a necessary
element of the corpus delicti.
Plea of Guilty in Open Court Sufficient without
Proof of Corpus Delicti
A plea of guilty at the arraignment in open court,
which is a confession of guilt by the defendant, is
sufficient to support a conviction without necessity
of proof aliunde of corpus delicti. In contrast, an
extrajudicial confession made by defendant does
not warrant a conviction unless corroborated by
independent evidence of corpus delicti. (Francisco,
1996)
Q: Jose Mariposa was charged with violation of
Sec. 4, Art. 2 of the Dangerous Drugs Act of 1972.
He was apprehended thru a buy-bust operation.
During trial the prosecution failed to produce
the marijuana sticks that Mariposa sold during
the entrapment operation. Is there a need to
produce the marijuana sticks to convict the
accused?
A: YES. The elements necessary for a charge of
illegal sale of marijuana are: (1) the identity of the
buyer and the seller, the object, and consideration;
and (2) the delivery of the thing sold and the
payment therefore. It is indispensable that the
identity of the marijuana which constitutes the
corpus delicti must be established before the court.
During the trial, the sticks of marijuana were never
presented as evidence to prove that appellant
 Evidence
indeed sold the same during the entrapment
operation. It is indispensable in every prosecution
for illegal sale of marijuana, a prohibited drug, is the
submission of proof that the sale for the illicit drug
took place between the poseur-buyer and the seller
thereof, and the presentation further of the
marijuana, the corpus delicti, as evidence in court.
(People v. Rigodon, G.R. No. 111888, 08 Nov. 1994)
Res ipsa loquitur
It literally means the “thing speaks for itself”. This
doctrine provides that the fact of the occurrence of
an injury, taken with the surrounding
circumstances. Where the thing which caused the
injury complained of is shown to be under the
management of the defendant or his servants and
the accident is such as in ordinary course of things
does not happen if those who have its management
or control use proper care, it affords reasonable
evidence, in the absence of participation by the
defendant, that the accident arose from or was
caused by the defendant's want of care. (Ramos v.
CA, G.R. No. 124354, 29 Dec. 1999)
Application of the Doctrine DOES NOT Dispense
with the Requirement of Proof of Negligence
It is considered merely as evidentiary or in the
nature of procedural rule. It is simply in the process
of such proof, permitting the plaintiff to present
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of
negligence and thereby place on the defendant the
burden of going forward with the proof to the
contrary. (Ramos, et al. v. CA, G.R. No. 124354, 29 Dec.
1999)
J. RULES ON ELECTRONIC EVIDENCE
(A.M. No. 01-7-01-SC)
Electronic Document (2012 BAR)
i. Information or the representation of
information, data, figures, symbols or other
modes of written expression, described or
however represented, by which a right is
717
established, or an obligation extinguished, or by
which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored
processed, retrieved or produced
electronically; and
ii. It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document. (Sec. 1(h),
Rule 2, A.M. No. 01-07-01-SC)
For the document to be deemed electronic, it is
important that it be received, recorded, transmitted,
stored, processed, retrieved, or produced
electronically. The Rule does not absolutely require
that that the electronic document be initially
generated or produced electronically. (Riano, 2019)
Electronic Data Message
Information generated, sent, received, or stored by
electronic, optical or similar means. (Sec. 1(f), Rule
2, A.M. No. 01-07-01-SC)
Electronic Documents as Functional Equivalent
of Paper-based Documents
Whenever a rule of evidence refers to the term of
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document. (Sec. 1, Rule 3, A.M. No. 01-07-01-SC)
Admissibility
1. It must comply with the rules on admissibility
prescribed by the Rules of Court and related
laws; and
2. If must be authenticated in the manner
prescribed by these Rules.
Privileged Communication
The confidential character of a privileged
communication is not denied solely on the ground
that it is in the form of an electronic document.
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Electronic Data Message vs. Electronic What differentiates an electronic document from a
Document paper-based document is the manner by which the
information is processed. By no stretch of the
ELECTRONIC DATA ELECTRONIC imagination can a person’s signature affixed
MESSAGE DOCUMENT manually be considered as information
As to Definition electronically received, recorded, transmitted,
Information or the stored, processed, retrieved or produced. Hence, the
representation of argument that since the paper printouts were
information, data, produced through an electronic process, then these
figures, symbols or photocopies are electronic documents as defined in
other modes of written the Rules on Electronic Evidence is obviously an
expression, described erroneous, if not preposterous, interpretation of the
or however law. (NPC v. Codilla, G.R. No. 170491, 04 Apr. 2007)
represented, by which
Information generated, a right is established or Original of an electronic document
sent, received or stored an obligation
by electronic, optical or extinguished, or by An electronic document shall be regarded as the
similar means. which a fact may be equivalent of an original document under the Best
proved and affirmed, Evidence Rule if it is a printout or output readable
which is received, by sight or other means, shown to reflect the data
recorded, transmitted, accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC)
stored, processed,
retrieved or produced Copies as Equivalents of the Originals
electronically.
It includes digitally GR: Copies or duplicates shall be regarded as the
signed documents. equivalent of the original when:

While "data message" has reference to information
electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or
extinguish an obligation, unlike an electronic
document. Evident from the law, however, is the
legislative intent to give the two terms the same
construction. (MCC Industrial Sales Corporation v.
Ssangyong Corporation, G.R. No. 170633, 17 Oct.
2007)
Related Jurisprudence
The terms "electronic data message" and "electronic
document," as defined under the Electronic
Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission
cannot be considered as electronic evidence. It is
not the functional equivalent of an original under
the Best Evidence Rule and is not admissible
as electronic evidence. (Torres v. PAGCOR, G.R. No.
193531, 14 Dec. 2011)
1. A document is in two or more copies executed
at or about the same time with identical
contents; or
2. It is a counterpart produced by the same
impression as the original, or from the same
matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by
other equivalent techniques which are
accurately reproduces the original. (Sec. 2, Rule
4, A.M. No.01-07-01-SC)
XPNs:
1. A genuine question is raised as to the
authenticity of the original; or
2. In the circumstances, it would be unjust or
inequitable to admit a copy in lieu of the
original. (Sec. 2, Rule 4, A.M. No.01-07-01-SC)
In Maliksi v. COMELEC (G.R. No. 203302, 11 Apr.
2013), the Supreme Court ruled that the picture
images of the ballots are electronic documents that
are regarded as the equivalents of the original
official ballots themselves. Citing Vinzons-Chato v.

718
 Evidence
House of Representatives Electoral Tribunal, the
Court held that "the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise
‘official ballots’ that faithfully capture in electronic
form the votes cast by the voter, as defined by
Section 2(3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper
ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral
protest."
That the two documents—the official ballot and its
picture image—are considered "original
documents" simply means that both of them are
given equal probative weight. In short, when either
is presented as evidence, one is not considered as
weightier than the other.
Burden of Proving Authenticity
The person offering the document has the burden to
prove its authenticity. (Sec. 1, Rule 5, A.M. No.01-07-
01-SC)
Evidentiary Weight of Electronic Documents;
Factors for Assessing Evidentiary Weight
1. The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests and
checks for accuracy and reliability of the
electronic data message or document, in the
light of all the circumstances as well as any
relevant agreement;
2. The reliability of the manner in which its
originator was identified;
3. The integrity of the information and
communication system in which it is recorded
or stored, including but not limited to the
hardware and computer programs or software
used as well as programming errors;
4. The familiarity of the witness or the person who
made the entry with the communication and
information system;
719
5. The nature and quality of the information which
went into the communication and information
system upon which the electronic data message
or electronic document was based; or
6. Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data
message. (Sec. 1, Rule 7, A.M. No.01-07-01-SC)
Affidavit of Evidence
All matters relating to the admissibility and
evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct
personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively
show the competence of the affiant to testify on the
matters contained therein. (Sec. 1, Rule 9, A.M.
No.01-07-01-SC)
NOTE: Cross-examination of the deponent is
allowed as a matter of right by the adverse party.
(Sec. 2, Rule 9, A.M. No.01-07-01-SC)
Inapplicability of the Hearsay Rule
A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of or from transmission or supply
of information by a person with knowledge thereof,
and kept in the regular course or conduct of a
business activity, and such was the regular practice
to make the memorandum, report, record, or data
compilation by electronic, optical or similar means,
all of which are shown by the testimony of the
custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence. (Sec. 1, Rule 8,
A.M. No.01-07-01-SC)
NOTE; The presumption provided for in Sec. 1, Rule
8 may be overcome by evidence of the
untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage. (Sec. 2, Rule 8, A.M. No.01-
07-01-SC)
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Manner of Authentication of Electronic
Documents
1. By evidence that it had been digitally signed by
the person purported to have signed the same;
2. By evidence that other appropriate security
procedures or devices as may be authorized by
the Supreme Court or by law for authentication
of electronic documents were applied to the
document; or
3. By other evidence showing its integrity and
reliability to the satisfaction of the judge. (Sec.
2, Rule 5, A.M. No.01-07-01-SC)
NOTE: The above-mentioned requirements will
only apply when the document is a private
document and the same is offered as an authentic
document. (Riano, 2019)
Manner of Authentication of Electronic
Signatures
1. By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as
establishing the genuineness of the electronic
signature. (Sec. 2, Rule 6, A.M. No.01-07-01-SC)
Audio, Video, and Similar Evidence
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the court
and shall be identified, explained or authenticated
by the person who made the recording or by some
other person competent to testify on its accuracy.
(Sec. 1, Rule 11, A.M. No.01-07-01-SC)
Ephemeral Electronic Communication
Telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and
other electronic forms of communication the
evidence of which is not recorded or retained. (Sec.
1(k), Rule 2, A.M. No.01-07-01-SC)
Under Section 2, Rule 11 of the Rules on Electronic
Evidence, ephemeral electronic communications
720
shall be proven by the testimony of a person who
was a party to the same or who has personal
knowledge thereof. In this case, complainant who
was the recipient of said messages and therefore
had personal knowledge thereof testified on their
contents and import. Respondent herself admitted
that the cellphone number reflected in
complainant’s cellphone from which the messages
originated was hers.
Moreover, any doubt respondent may have had as
to the admissibility of the text messages had been
laid to rest when she and her counsel signed and
attested to the veracity of the text messages
between her and complainant. There is no doubt as
to the probative value of the text messages as
evidence in determining the guilt or lack thereof of
respondent. (Nuez v. Cruz-Apao, A.M. No. CA-05-18-
P, 12 Apr. 2005)
By analogy, a deleted Facebook post may be
admitted as an ephemeral electronic
communication subject to the exclusionary rule of
whether it was illegally obtained or not.
Q: Is the printout of a photograph from your
mobile phone showing a fly in the soup you
ordered admissible evidence in an action for
damages against the restaurant owner? Explain
briefly. (BAR 20-21)
A: YES. The printout of a photograph from a mobile
phone is admissible in evidence. Under the Rules on
Evidence, if a document or data is stored in a
computer or similar device, any printout therefrom
is an original and thus admissible in evidence. (Sec.
4(a), Rules 130, ROC, as Amended)
Here, the mobile phone is a device which is similar
to a computer. A photograph is considered as a
document under the Rules on Evidence. (Sec. 2, Rule
130, ROC, as amended)
Hence, the printout of the photograph is an original
and thus admissible in evidence.
Q: Moises Oracion, Jr. and Emily L. Oracion
applied for and were granted by petitioner
credit card accommodations with the issuance
of a Bankard PESO Mastercard Platinum.
Thereafter, respondents, on various dates, used
 Evidence
the credit card in purchasing different products
but failed to pay. In its complaint against the
respondents, petitioner attached "duplicate
original" copies of the Statements of Account
from 17 April 2011 to 15 December 2011 and
the Credit History Inquiry. Despite the receipt of
the SOAs, respondents failed and refused to
comply. Consequently, petitioner sent a written
demand letter to respondents but despite
receipt, respondents refused to pay. Hence,
petitioner filed a Complaint for Sum of Money
before the MeTC. The MeTC dismissed the
complaint and noted that the signatures in the
documents attached in the complaint are mere
photocopies and stamp marks. The MeTC
rationalized that under the Best Evidence Rule,
the court shall not receive any evidence that is
merely substitutionary, such as stamp mark.
The RTC held that it is up to petitioner to prove
that the attachments in support of the complaint
are originals and not merely substitutionary in
nature. In its petition for review before the
Supreme Court, petitioner raises for the first
time on appeal the Rules on Electronic Evidence
arguing that since electronic documents, when
directly printed out are considered original
reproductions, they are admissible under the
Best Evidence Rule.
Did the lower courts err in dismissing the
complaint?
A: NO. Procedurally, petitioner cannot adopt a new
theory in its appeal before the Court and abandon
its theory in its appeal before the RTC. Pursuant to
Sec. 15, Rule 44 of the Rules, petitioner may include
in his assignment of errors any question of law or
fact that has been raised in the court below and is
within the issues framed by the parties. Before the
RTC, petitioner did not raise the Rules on Electronic
Evidence to justify that the so-called "duplicate
original copies" of the SOAs and Credit History
Inquiry are electronic documents. Rather, it insisted
that they were duplicate original copies, being
computer-generated reports, and not mere
photocopies or substitutionary evidence, as found
by the MeTC.
As observed by the RTC, the attachments to the said
Manifestation "are merely photocopies of the
721
annexes attached to the complaint, but with a mere
addition of stamp marks bearing the same
inscription as the first stamp marks" that were
placed in the annexes to the complaint. Because
petitioner has not raised the electronic document
argument before the RTC, it may no longer be raised
nor ruled upon on appeal. Also, estoppel bars a
party from raising issues, which have not been
raised in the proceedings before the lower courts,
for the first time on appeal. Clearly, petitioner, by its
acts and representations, is now estopped to claim
that the annexes to its complaint are not duplicate
original copies but electronic documents. It is too
late in the day for petitioner to switch theories.
Even assuming that the Court brushes aside the
above-noted procedural obstacle, the Court cannot
just concede that the pieces of documentary
evidence in question are indeed electronic
documents. For the Court to consider an electronic
document as evidence, it must pass the test of
admissibility. According to Sec. 2, Rule 3 of the Rules
on Electronic Evidence, "an electronic document is
admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court
and related laws and is authenticated in the manner
prescribed by these Rules." Rule 5 of the Rules on
Electronic Evidence lays down the authentication
process of electronic documents. Sec. 1 of Rule 5
imposes upon the party seeking to introduce an
electronic document in any legal proceeding the
burden of proving its authenticity in the manner
provided therein. Sec. 2 of Rule 5 sets forth the
required proof of authentication.
Petitioner could not have complied with the Rules
on Electronic Evidence because it failed to
authenticate the supposed electronic documents
through the required affidavit of evidence. As
earlier pointed out, what petitioner had in mind at
the inception was to have the annexes admitted as
duplicate originals as the term is understood in
relation to paper-based documents. Thus, the
annexes or attachments to the complaint of
petitioner are inadmissible as electronic
documents, and they cannot be given any probative
value.
In the absence of such authentication through the
affidavit of the custodian or other qualified person,
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law

the said annexes or attachments cannot be admitted

and appreciated as business records and excepted
from the rule on hearsay evidence. Consequently,
the annexes to the complaint fall within the Rule on
Hearsay Evidence and are to be excluded pursuant
to Section 36, Rule 130 of the Rules of Court. (RCBC
Bankard Services Corp. v. G.R. No. 223274. 19 June
2019, J. Caguioa)

722
 Appeals; General Principles
PART 2
APPELLATE PRACTICE, PROCEDURE IN THE
COURT OF APPEALS, COURT OF TAX APPEALS,
AND SUPREME COURT
I. APPEALS; GENERAL PRINCIPLES
A. NATURE OF THE RIGHT TO APPEAL
Appeal is the elevation by an aggrieved party of any
decision, order or award of a lower body to a higher
body, by means of a document which includes the
assignment of errors, memorandum of arguments in
support thereof, and the reliefs prayed for.
(Technogas Philippines Manufacturing Corporation
v. Clave, 08635-SP, 31 May 1979)
Constitutional Right to Appeal
It is not a constitutional or a natural right. (Canton v.
City of Cebu, G.R. No. 152898 12 Feb. 2007)
The right to appeal is not part of due process but a
mere statutory privilege that has to be exercised
only in the manner and in accordance with the
provisions of law. (Stolt-Nielsen v. NLRC, G.R. No.
147623, 13 Dec. 2005)
Basic Guidelines Regarding Appeal
1. GR: No trial de novo (starting from the
beginning) shall be made. The appellate courts
must decide the case on the basis of the record.
XPNs:
a. When the proceedings were not duly
recorded as when there was absence of a
qualified stenographer (Sec. 22(d), BP 129;
Rule 21(d), Interim Rule);
723
b. Instances when the CA may act as a trial
court.
2. No new parties;
3. No change of theory (Naval v. CA, G.R. No.
167412, 22 Feb. 2006);
4. No new matters (Ondap v. Aubga, G.R. No. L-
24392, 28 Feb. 1979);
5. The amendment of pleadings allowed to
conform to the evidence submitted before the
trial court (Dayao v. Shel, G.R. No. L-32475, 30
Apr. 1980);
6. The liability of solidarity defendant who did not
appeal is not affected by appeal of solidarity
debtor (Mun. of Orion v. Concha, G.R. No. 26671,
17 Sept. 1927);
7. Appeal by guarantor does not inure to the
principal (Luzon Metal v. Manila Underwriter,
G.R. No. L-27863, 29 Aug. 1969);
8. In ejectment cases, the RTC cannot award to the
appellant on his counterclaim more than the
amount of damages beyond the jurisdiction of
the MTC (Agustin v. Bataclan, 135 SCRA 342);
9. The appellate court cannot dismiss the
appealed case for failure to prosecute because
the case must be decided on the basis of the
record. (Rule 21, Interim Rules)
NOTE: Appeal is a speedy remedy, as an adverse
party can file its appeal from a final decision or
order immediately after receiving it. A party, who is
alleging that an appeal will not promptly relieve it
of the injurious effects of the judgment, should
establish facts to show how the appeal is not speedy
or adequate. (V.C Ponce Company Inc. v. Municipality
of Paranaque, G.R. No. 178431, 12 Nov. 2012)
B. JUDGEMENT AND FINAL ORDERS
SUBJECT TO APPEAL
An appeal may be taken only from judgments or
final orders that completely dispose of the case, or
of a particular matter therein when declared by the
Rules of Court to be appealable. (Sec.1, Rule 41, ROC,
as amended)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Remedial Law
Judgment
The conclusion of the law upon the matters
contained in the record, or the application of the law
to the pleadings and to the facts, as found by the
court or admitted by the parties or deemed to exist
upon default in a course of judicial proceedings.
(Gotamco v. Chan Seng, G.R. No. 22737, 28 Nov. 1924)
Final Order
One that puts an end to the particular matter
resolved, leaving thereafter no substantial
proceedings to be had in connection therewith,
except its execution. (Bairan v. Tan Siu Lay, G.R. No.
L-19460, 28 Dec. 1966)
Interlocutory Order
It is an order which does not dispose the case but
leave something to be done by the trial court on the
merits of the case.
C. MATTERS NOT APPEALABLE;
AVAILABLE REMEDIES
1. Order denying a petition for relief or any similar
motion seeking relief from judgment;
2. Interlocutory order;
3. Order disallowing or dismissing an appeal;
4. Order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
5. Order of execution;
6. Judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
7. Order dismissing an action without prejudice
(Sec. 1, Rule 41, ROC, as amended); and
8. A judgment based on compromise.
NOTE: An order denying a motion for new trial or a
motion for reconsideration is no longer appealable
as it is no longer part of the enumeration as of 27
724
December 2007, per A.M. No. 07-7-12-SC. (Riano,
2019)
Remedy against Judgment and Orders which are
not Appealable
In those instances where the judgment or final
order is not appealable, the aggrieved party may file
the appropriate special civil action under Rule 65.
(Sec. 1, Rule 41, ROC, as amended)
The most potent remedy against those judgments
and orders from which appeal cannot be taken is to
allege and prove that the same were issued without
jurisdiction, with grave abuse of discretion or in
excess of jurisdiction, all amounting to lack of
jurisdiction.
D. DOCTRINE OF FINALITY/IMMUABILITY OF
JUDGEMENT; EXCEPTIONS
GR: The doctrine of finality of judgment or
immutability of judgment provides that a decision
that has acquired finality becomes immutable and
unalterable, and may no longer be modified in any
respect, even if the modification is meant to correct
erroneous conclusions of fact and law, and whether
it be made by the court that rendered it or by the
Highest Court of the land. Any act which violates this
principle must immediately be struck down.
(Spouses Valarao v. MSC and Company, G.R. No.
185331, 08 June 2016)
XPNs: This doctrine admits certain exceptions,
these are:
1. Correction of clerical errors;
2. The so-called nunc protunc entries which cause
no prejudice to any party;
3. Void judgments; and
4. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable. (Gadrinab v. Salamanca,
G.R. No. 194560, 11 June 2014)
Q: In a Complaint for Compulsory Recognition
and Enforcement of Successional Rights" filed by
 Appeals; General Principles

Antonia Aruego, the Regional Trial Court

declared Antonia as an illegitimate daughter of
the deceased Aruego Sr. hence entitled to a
share in the latter’s estate. Among others, the
RTC rendered a Decision on June 15, 1992,
declaring what constitutes the estate of
deceased and affirmed the status of Antonia
Aruego as an illegitimate daughter of the
deceased hence the latter is entitled to one-half
of the share of the deceased’s legitimate
children. A Writ of Execution was issued by the
RTC. Petitioners filed a Motion for Partial
Reconsideration but they did not raise therein
the supposed error of the court in declaring the
properties enumerated in the dispositive
portion of the Decision as comprising the estate
of Aruego. Antonia filed a Motion for Partition
alleging the RTC Decision became final and
executory in view of the denial of the notice of
appeal filed by petitioners and the dismissal of
their Petition for Prohibition and Certiorari by
the CA and the subsequent denial of their appeal
to the Supreme Court. Can the Court review and
modify the RTC Decision?

A: NO. There is no ground to justify the modification

of the RTC Decision. When a final judgment is
executory, it becomes immutable and unalterable.
The only recognized exceptions to the general rule
on immutability of final judgments are the
correction of clerical errors, the so called nunc pro
tunc entries which cause no prejudice to any party,
void judgments, and whenever circumstances
transpire after the finality of the decision rendering
its execution unjust and inequitable. These
exceptions, however, are not present. What
petitioners seek is an order from the court to allow
them to present evidence with regard to the
properties comprising the estate of Aruego and the
heirs who are to share in the inheritance. The Court
cannot issue a writ of certiorari so as to allow the
petitioners to present evidence as the same should
have been raised by them during trial. (Torres, et al.
v. Aruego, G.R. No. 201271, 20 Sept. 2017)

725 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Post-Judgment Remedies Other Than Appeal

As to the Grounds
II. POST – JUDGEMENT REMEDIES Grounds for motion for
OTHER THAN APPEAL new trial:

a. Fraud, accident,
mistake or
A. PETITION FOR RELIEF FROM JUDGEMENT excusable
(RULE 38) negligence; (F-A-M-
E) and
b. Newly discovered
evidence. (Sec. 1) Grounds: (F-A-M-E)
Relief from Judgment or Final Orders and
Resolutions
Grounds for motion for 1. Fraud;
reconsideration: 2. Accident;
It is a legal remedy whereby a party seeks to set
3. Mistake; or
aside a judgment rendered against him by a court
1. The damages 4. Excusable
whenever he was unjustly deprived of a hearing or
awarded are negligence
was prevented from taking an appeal because of
excessive;
fraud, accident, mistake or excusable neglect. (Sec.
2. That the evidence is
1, Rule 38, ROC, as amended; Quelnan v. VHF
insufficient to justify
Philippines, G.R. No. 138500, 16 Sept. 2005)
the decision or final
order, or
It is an equitable remedy that is allowed only in
exceptional cases when there is no other available
That the decision or final
or adequate remedy. (Trust International Paper
order is contrary to law.
Corp. v. Pelaez, G.R. No. 164871, 22 Aug. 2006)
(Sec. 1)

Motion for New Trial/Reconsideration vs. As to the Period of Filing

Petition for Relief from judgment (1990 BAR)
Filed within 60 days
from knowledge of
Filed within the time to
MOTION FOR NEW PETITION FOR the judgment and
appeal.
TRIAL / RELIEF FROM within 6 months from
RECONSIDERATION JUDGMENT entry of judgment.
(Rule 37) (Rule 38)
As to the Nature of the Remedy
As to Availability
Legal Remedy Equitable Remedy
As to the Available Remedy after its denial
Available before Available after
judgment becomes final judgment has become The order of denial is
The order of denial is
and executory. final and executory. not appealable; the
not appealable. The
remedy is
remedy is to appeal
appropriate special
As to Applicability from the judgment or
civil action under
final order on the merits.
Rule 65.
Applies to judgments, As to the verification requirement
Applies to judgments or
final orders and other
final orders only. Motion need not be Petition must be
proceedings.
verified. verified.

726
 Remedial Law
NOTE: A party who has filed a timely motion for
new trial cannot file a petition for relief after the
former is denied. The two remedies are exclusive of
one another. (Sec. 9, Rule 38; (Francisco v. Puno, G.R.
No. L-55694, 23 Oct. 1981)
Who may avail
A petition for relief from judgment together with a
MNT and MR are remedies available only to parties
in the proceedings where the assailed judgment is
rendered. A person who was never a party to the
case, or even summoned to appear therein, cannot
avail of a petition for relief from judgment. (Alaban,
et. al. v. CA, G.R. No. 156201, 23 Sept. 2005)
Proceedings After an Answer is Filed
1. After the filing of the answer or the expiration
of the period therefor, the court shall hear the
petition and if after such hearing, it finds that
the allegations thereof are not true, the petition
shall be dismissed.
2. If the allegations are true, the court shall set
aside the judgment, final order or proceeding
complained of upon such terms as may be just.
Thereafter, the case shall stand as if such
judgment, final order or proceedings had never
been rendered, issued or taken. The court shall
then proceed to hear and determine the case as
if a timely motion for new trial or
reconsideration had been granted by it. (Sec. 6,
Rule 38, ROC, as amended)
NOTE: Failure to file an answer to the petition for
relief does not constitute default, even without such
answer, the court will still have to hear the petition
and determine its merits. (Regalado, 2010)
Preliminary Injunction available pending the
Resolution of the Petition for Relief
The court may grant such preliminary injunction as
may be necessary for the preservation of the rights
of the parties upon the filing of a bond in favor of the
adverse party. (Sec. 5, Rule 38, ROC, as amended)
NOTE: The bond is conditioned that if the petition is
dismissed or the petitioner fails on the trial of the
727
case upon its merits, he will pay the adverse party
all damages and costs that may be awarded to him
by reason of issuance of such injunction or the other
proceedings following the petition. (Ibid.)
Lien acquired over the property is NOT
discharged by a Subsequent Issuance of a Writ of
Preliminary Injunction
Where a writ of execution was already issued and
levy was made before the petition for relief was
filed, the lien that may have been acquired over the
property is not discharged by the subsequent
issuance of a writ of preliminary injunction.
Therefore, if the petition is denied, the court has the
power to reinstate the writ of execution. (Ayson v.
Ayson, G.R. No. L-10687, 24 May 1957)
Execution of the judgment may proceed even if
the Order denying the Petition for Relief is
pending appeal
Unless a writ of preliminary injunction has been
issued, execution of the judgment shall proceed
even if the order denying the petition for relief is
pending appeal. Said writ may be sought either in
the trial or appellate courts. (Service Specialists, Inc.
v. Sheriff of Manila, et. al., G.R. No. 74586, 17 Oct.
1986)
Order granting Petition for Relief is
Interlocutory and Non-appealable
An order granting petition for relief is interlocutory
and non-appealable. (Regalado, 2012)
Grounds for Availing of the Remedy
1. A judgment or final order is entered, or any
other proceeding is thereafter taken against a
party in any court through fraud, accident,
mistake, or excusable negligence (Sec. 1, Rule
38, ROC, as amended); or
2. The petitioner has been prevented from taking
an appeal by fraud, accident, mistake, or
excusable negligence. (Sec. 2, Rule 38, ROC, as
amended)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Post-Judgment Remedies Other Than Appeal
Fraud
Fraud as a ground for a petition for relief from
judgment pertains to extrinsic or collateral fraud.
(City of Dagupan v. Maramba, G.R. No. 174411, 02
July 2014)
NOTE: Where fraud is the ground, the fraud must be
extrinsic or collateral. The extrinsic or collateral
fraud that invalidates a final judgment must be such
that it prevented the unsuccessful party from fully
and fairly presenting his case or defense and the
losing party from having an adversarial trial of the
issue. There is extrinsic fraud when a party is
prevented from fully presenting his case to the court
as when the lawyer connives to defeat or corruptly
sells out his client’s interest. Extrinsic fraud can be
committed by a counsel against his client when the
latter is prevented from presenting his case to the
court. (Ibid.)
Mistake
Mistake as used in Rule 38 means mistake of fact
and not mistake of law. A wrong choice in legal
strategy or mode of procedure will not be
considered a mistake for purposes of granting a
petition for relief from judgment. Mistake as a
ground also "does not apply and was never intended
to apply to a judicial error which the court might
have committed in the trial since such error may be
corrected by means of an appeal."
Mistake can be of such nature as to cause substantial
injustice to one of the parties. It may be so palpable
that it borders on extrinsic fraud. (Ibid.)
Excusable negligence
Excusable negligence as a ground for a petition for
relief requires that the negligence be so gross "that
ordinary diligence and prudence could not have
guarded against it." This excusable negligence must
also be imputable to the party-litigant and not to his
or her counsel whose negligence binds his or her
client. The binding effect of counsel’s negligence
ensures against the resulting uncertainty and
tentativeness of proceedings if clients were allowed
to merely disown their counsels’ conduct. (Ibid.)
728
Nevertheless, the Supreme Court has relaxed this
rule on several occasions such as:
1. where the reckless or gross negligence of
counsel deprives the client of due process of
law;
2. when the rule’s application will result in
outright deprivation of the client’s liberty or
property; or
3. where the interests of justice so require."
Certainly, excusable negligence must be proven.
(Ibid.)
NOTE:
1. If the petition is filed because of the first
ground, the petition shall be filed in such court
and in the same case (not in another or higher
court). The petition shall pray that the
judgment, order or proceeding be set aside.
(Sec. 1, Rule 38, ROC, as amended)
2. If the petition is filed under the second ground,
the petition shall likewise be filed in such court
and in the same case (not in another or higher
court) but the prayer this time is that the appeal
be given due course. (Sec. 2, Rule 38, ROC, as
amended)
When to file Petition
1. Within 60 days after the petitioner acquired
knowledge of the order, judgment or
proceedings and not from the date he actually
read the same. (Perez v. Araneta, G.R. No. L-
11788, 16 May 1958)
2. Not more than 6 months from entry of such
judgment, order or other proceeding. (Sec. 3,
Rule 38, ROC, as amended)
NOTE: These two periods must concur and are also
not extendible and never interrupted. (Quijano v.
Tameta, G.R. No. L-16473, 20 Apr. 1961) These
periods cannot be subject to a condition or a
contingency as they are devised to meet a condition
or a contingency. (Vda. De Salvatierra v. Garlitos, 103
Phil. 157)
Q: May a defendant who has been declared in
default right away avail of a petition for relief
 Remedial Law

from the judgment subsequently rendered in NOTE: The order shall be served in such manner as
the case? (2007 BAR) the court may direct, together with copies of the
petition and the accompanying affidavits. (Ibid.)
A: NO. The remedy of petition for relief from
judgment is available only when the judgment or
order in question is already final and executory, i.e., B. ANNULEMENTS OF JUDGEMENT BY THE
no longer appealable. It is an equitable remedy COURT OF APPEALS
allowed only in exceptional cases from final (RULE 47)
judgments or orders where no other remedy is
available. (Palmares, et al. v. Jimenez, et al., G.R. No.
L-4513, 31 Jan. 1952) It will not be entertained when
Annulment of Judgment
the proper remedy is appeal or certiorari. (Fajardo
v. Bayona, et al., G.R. No. L-8314, 23 Mar. 1956)
It is a remedy in law independent of the case where
the judgment sought to be annulled was rendered.
Form and Contents of Petition for Relief

Like a petition for relief, an action for annulment of

1. The petition for relief must be verified;
a judgment is a recourse equitable in character,
2. It must be supported by affidavit showing
allowed only in exceptional cases where there is no
FAME relied upon; and
available adequate remedy. (Ramos v. Combong, G.R.
3. The affidavit of merit accompanying the
No. 144273, 20 Oct. 2005)
petition must also show facts constituting the
petitioner’s good or substantial cause of action
NOTE: A co-equal court cannot annul the final
or defense. (Sec. 3, Rule 38, ROC, as amended)
judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of
Affidavit of Merit
judgments of RTC. An action to annul a judgment or
final order of MTC shall be filed in the RTC having
It recites the nature and character of FAME on
jurisdiction in the former and it shall be treated as
which the motion is based. It serves as the
an ordinary civil action. (Secs. 1 and 10, Rule 47, ROC,
jurisdictional basis for the court to entertain a
as amended)
petition for relief. However, it is not a fatal defect to
warrant denial of the petition so long as the facts
Purpose
required to be set out also appear in the verified
petition.
To have the final and executory judgment set aside
so that there will be renewal of litigation.
NOTE: The absence of an affidavit of merit is a fatal
defect and warrants denial of the petition
Who may file
(Fernandez v. Tan Tiong Tick, G.R. No. L-15877, 28
Apr. 1961), unless the facts required to be set out in
An action for annulment can be filed by one who was
the affidavit of merits also appear in the verified
not a party to the action in which the assailed
petition. (Fabar, Inc. v. Rodelas, G.R. No. L-46394, 26
judgment was rendered. It is a remedy in law
Oct. 1977)
independent of the case where the judgment sought
to be annulled is promulgated. (Villanueva v. Nite,
Issuance by the Court of the Order to Answer
G.R. No. 148211, 25 July 2006)

When the petition is sufficient in form and

A person need not be a party to the judgment sought
substance to justify relief, the court in which it is
to be annulled. What is essential is that he can prove
filed, shall issue an order requiring the adverse
his allegation that the judgment was obtained by the
parties to answer the same within 15 days from the
use of fraud and collusion and he would be
receipt thereof. (Sec. 4, Rule 38, ROC, as amended)

729 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Post-Judgment Remedies Other Than Appeal

adversely affected thereby. (Islamic Da’wah Council Contents of the Petition

v. CA, G.R. No. 80892, 29 Sept. 1989)
1. Verified petition alleging:
When available
a. The facts and the law relied upon for
The remedy of annulment of judgment may be annulment; and
availed of when the ordinary remedies of new trial, b. As well as those supporting the petitioner’s
appeal, petition for relief or other appropriate good and substantial cause of action or
remedies are no longer available through no fault of defense, as the case may be;
the petitioner. (Sec. 1, Rule 47, ROC, as amended)
2. A certified true copy of the judgment or final
NOTE: If the petitioner fails to avail of those other order or resolution intended for the court and
remedies without sufficient justification, he cannot indicated as such by the petitioner;
resort to the action for annulment provided in the 3. Affidavits of witnesses or documents
Rules, otherwise he would benefit from his own supporting the cause of action or defense; and
inaction or negligence. (Regalado, 2012) 4. Sworn certification against forum shopping
(Sec. 4, Rule 47, ROC, as amended)
Where filed
NOTE: The procedure in ordinary civil cases shall be
JUDGMENTS OF RTC JUDGMENTS OF MTC observed. Should a trial be necessary, the reception
As to the Place of Filing of the evidence may be referred to a member of the
Filed with the CA Filed with the RTC court or a judge of the RTC. (Sec. 6, Rule 47, ROC, as
As to Basis amended)
Basis – It has exclusive Basis – RTC as a court
original jurisdiction of general jurisdiction Grounds for the Annulment of Judgment of the
over said action under under Sec. 19 (6), BP RTC (2008 BAR)
Rule 47. 129.
As to the Extent of Discretion of the Court 1. Lack of jurisdiction over the subject matter
CA may dismiss the RTC has no discretion and over the person – May be barred by
case outright; it has to dismiss the case estoppels by laches, which is that failure to do
the discretion on outright. It is required something which should be done or to claim or
whether or not to to consider it as an enforce a right at a proper time or a neglect to
entertain the petition. ordinary civil action. do something which one should do or to seek or
enforce a right at a proper time.
Annulment of Judgments of Quasi-judicial
bodies 2. Extrinsic Fraud

Annulment of judgment does not apply to
judgments rendered by quasi-judicial bodies. It
does not apply also to decisions or orders of the
Ombudsman in administrative cases whose
decisions or orders may be appealed to the CA
under Rule 43. (Macalalag v. Ombudsman, G.R. No.
147995, 05 Mar. 2004)
NOTE: Fraud is regarded as extrinsic where it
prevents a party from having a trial or from
presenting his entire case to the court, or where
it operates upon matters pertaining not to the
judgment itself but to the manner in which it is
procured. (Alaban, et al., v. CA, G.R. No. 156021,
23 Sept. 2005)

The silence of BP 129 on the jurisdiction of the CA to
annul judgments or final orders and resolutions of
quasi-judicial bodies like the DARAB indicates its
lack of such authority.
Extrinsic fraud, as a ground for the annulment
of a judgment, must emanate from an act of the
adverse party. It must be of such nature as to
have deprived the petitioner of its day in court.
The fraud is not extrinsic if the act was

730
 Remedial Law
committed by the petitioner's own counsel.
(Pinausukan Seafood House v. Far East Bank &
Trust Company, G.R. No. 159926, 20 Jan. 2014)
Extrinsic Fraud vs. Intrinsic Fraud
EXTRINSIC OR INTRINSIC
COLLATERAL FRAUD FRAUD
As to the party who commits the act and its
effects
Fraudulent act It refers to the acts of a
committed by the party at the trial that
prevailing party prevents a fair and just
outside of the trial of determination of the
the case, which case, and that could
prevented the defeated have been litigated and
party from having a determined at the trial
trial or from such as falsification,
presenting his case to false testimony.
the court, or is used to
procure the judgment It does not constitute a
without fair ground for new trial.
submission of the (Tarca v. Carretero, 99
controversy. (Magno v. Phil. 419)
CA, et al., G.R. No. L-
28486, 10 Sept. 1981)
3. Denial of due process. (Alaban, et al., v. CA, G.R.
No. 156021, 23 Sept. 2005)
While under Section 2, Rule 47 of the Rules of Court
a Petition for Annulment of Judgment may be based
only on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due
process as additional ground to annul a judgment.
(Intestate Estate of the Late Nimfa Sian v. PNB, G.R.
No. 168882, 31 Jan. 2007)
Q: Sps. Teano filed a petition with the Court of
Appeals denominated as ‘"Annulment of
Summary Judgment with Prayer for Preliminary
Mandatory Injunction and/or Temporary
Restraining Order”, four years after the release
of the summary judgment and the motion to
clarify of judgment from the RTC. The CA
dismissed the petition on the grounds of, among
others, that there is no allegation of whether the
grounds for the petition for annulment of
judgment is based on extrinsic fraud or lack of
731
jurisdiction as required under Sec. 2, Rule 47 of
the Rules of Court. Is the dismissal valid?
A: YES. Annulment of judgment is an exceptional
remedy in equity that may be availed of when
ordinary remedies are unavailable without fault on
the part of the petitioner. It must be based only on
the grounds of extrinsic fraud, and of lack of
jurisdiction. At the same time, it is required that it
must be commenced by a verified petition that
specifically alleges the facts and the law relied upon
for annulment. (Sps. Teaño v. Municipality of
Navotas, G.R. No. 205814, 15 Feb. 2016)
Petition to File Action
1. If based on extrinsic fraud, the action must be
filed within 4 years from its discovery.
2. If based on lack of jurisdiction, the action must
be brought before the action is barred by laches
or estoppels. (Sec. 3, Rule 47, ROC, as amended).
Estoppel vs. Laches
ESTOPPEL LACHES
As to the Nature
Failure to do Such inexcusable delay
something that should in the assertion of
be done, or failure to rights or a failure to
claim or enforce a right prosecute a claim,
at a proper time, or a within a reasonable
neglect to do and proper period,
something which one which warrants the
should do or enforce a presumption that the
right at a proper time. party has waived his
right. (Regalado, 2010)
Effects of Judgment of Annulment
1. If based on lack of jurisdiction - It shall have
the effect of setting aside the questioned
judgment or final order and rendering the same
null and void but the judgment of annulment is
without prejudice to the refilling of the original
action in the proper court. (Sec. 7, Rule 47, ROC,
as amended)
NOTE: The prescriptive period for the refiling
of the action shall be deemed suspended from
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Post-Judgment Remedies Other Than Appeal

the filing of such original action until the finality
of the judgment of annulment. But shall not
however, be suspended where the extrinsic
fraud is attributable to the plaintiff in the
original action. (Sec. 8, Rule 47, ROC, as
amended)
2. If based on extrinsic fraud - The court, upon
motion, may order the trial court to try the case
as if a motion for new trial was granted. (Sec. 9,
Rule 47, ROC, as amended)
Reliefs available in a Judgment of Annulment
The judgment of annulment may include the award
of damages and attorney’s fees. The court may also
issue orders of restitution or other reliefs as justice
and equity may warrant under the circumstances.
(Sec. 9, Rule 47, ROC, as amended)
C. COLLATERAL ATTACK ON JUDGEMENT;
WHEN PROPER

Remedy in case of Annulment on the ground of

Lack of Jurisdiction
It is made in another action to obtain a different
relief, an attack on the judgment is made as an
The aggrieved party may refile the action in the
incident in said action. This is proper only when the
proper court. Where however, the reason for such
judgment, on its face is null and void, as where it is
annulment was because of lack of jurisdiction over
patent that the court which rendered such judgment
the defendant, the action may be refiled in the same
has no jurisdiction. (Co v. CA, G.R. No. 93687, 06 May
original court provided it has jurisdiction over the
1991)
subject-matter and is the court of proper venue or
no issue on venue is raised. (Regalado, 2010)
Distinction between a Direct Attack and a
Collateral Attack
Effect of Annulment on the ground of Extrinsic
Fraud
DIRECT ATTACK COLLATERAL ATTACK
As to nature and object
Where the annulment was based on extrinsic fraud
Made through an
committed by the offending party, the court may, on
action or proceeding
motion order the trial court to try the case as if a
the main object of
timely motion for new trial had been granted
which is to annul, set
therein. (Sec. 7, Rule 47, ROC, as amended)
aside or enjoin the Made when, in another
enforcement of such action to obtain a
Prescriptive Period for Refiling of the Original
judgment if not yet different relief, an
Action deemed Suspended
carried into effect; or if attack on the judgment
the property has been is made as an incident
For purposes of computing the prescriptive period
disposed of, the in said action. (Ibid.)
within which the same original action may be refiled
aggrieved party may
as authorized by the Rules, the prescriptive period
sue for recovery. (Co v.
provided by law for such type of action must first be
CA, G.R. No. 93687, 06
considered. From that period shall be deducted the
May 1991)
length of time which transpired from the date when
the action was originally filed in the trial court up to
the finality of the judgment which eventually Q: Two years after receiving a copy of a decision
rendered by a Regional Trial Court, a party
annulled the questioned judgment of that trial court.
engaged a counsel and asked them to work on
The resulting balance of the prescriptive period may
then be availed of the by aggrieved party for the reopening the case. The party explained that it
took two years to find the best legal counsel
refilling of the same action. (Regalado, 2010)
available, and that counsel had to await two
years to pass the #BestBarEvecer 2020_21.

732
 Remedial Law
After perusing the judgement and case records,
the counsel filed before the Court of Appeals a
petition for annulment of judgement under Rule
47 of the Rules of Civil Procedure, asserting that
the trial judge improperly assessed the evidence
and misapplied a doctrine long adopted by the
Supreme Court.
Will the petition for annulment of judgement
prosper? Explain briefly. (BAR 20-21)
A: NO. The petition for annulment off judgment will
not prosper.
Under the Rules of Civil Procedure, an action for
annulment of judgment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction.
(Sec. 2, Rule 47, ROC, as amended)
Here, the grounds raised by the counsel in his
petition are the improper assessment of the
evidence and the misapplication of an abandoned
doctrine, which have nothing to do with extrinsic
fraud or lack of jurisdiction but are errors of
judgment which are proper subjects of an appeal.
Hence, the petition for annulment of judgment will
not prosper.
D. RULE 65 AS A REMEDY FROM JUDGEMENT
A petition for certiorari under Rule 65 is proper to
correct errors of jurisdiction committed by the
lower court or grave abuse of discretion which is
tantamount to lack of jurisdiction. This remedy can
be availed of when there is no appeal or any plain,
speedy, and adequate remedy in the ordinary
course of law. (Cunanan v. Court of Appeals, G.R. No.
205573, 17 Aug. 2016)
The petitioner must allege in his or her petition and
establish facts to show that any other existing
remedy is not speedy or adequate. Where the
existence of a remedy by appeal or some other plain,
speedy and adequate remedy precludes the
granting of the writ, a petitioner must allege facts
showing that any existing remedy is impossible or
unavailing. A petition for certiorari which does not
733
comply with the requirements of the Rules may be
dismissed. (Ibid)
Not a Remedy for Lost Appeal
In one case, the Court ruled that certiorari cannot be
allowed when a party to a case failed to appeal a
judgement despite the availability of that remedy.
(Indoyon v. Court of Appeals, G.R. No. 193706, 12 Mar.
2013)
Certiorari is not a substitute for a lost appeal. This is
due to the nature of a Rule 65 petition for certiorari
which lies only where there is “no appeal,” and “no
plain, speedy and adequate remedy in the ordinary
course of law.” The remedies of appeal and
certiorari are mutually exclusive and not alternative
or successive. (Nipon Paint Employees Union-Olalia
v. Court of Appeals, G.R. No. 159010, 19 Nov. 2004)
Dismissal With Prejudice
An order dismissing a judgment with prejudice
disallows and bars the refiling of the complaint.
Where the law permits, a dismissal with prejudice is
subject to the right of appeal. (Strongworld
Construction Corporation v. Hon. Perello, et al., G.R.
No. 148026, 27 July 2006)
Dismissal Without Prejudice
Does not disallow the refiling of the same action or
claim. An order dismissing an action without
prejudice is not subject to appeal but is reviewable
by a Rule 65 certiorari petition. (Pillars Property
Corporation, v. Century Communities Corporation,
G.R. No. 201021, 04 Mar. 2019)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure
III. APPEALS IN CIVIL PROCEDURE: MODES OF
APPEAL FROM JUDGEMENT OR FINAL ORDERS
OF VARIOUS COURTS/TRIBUNALS.
A. RULE 40 – APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL COURTS.
Procedure of Appeal from Decisions of the MTC
to the RTC (Rule 40)
Appeal the decision of the MTC by filing
notice of appeal within 15 days, or 30 days
where a record on appeal is required from
receipt of the judgment or final order.
Copies of the notice of appeal, and the
record on appeal where required, shall be
served on the adverse party.
The MTC clerk shall transmit the original
record or the record on appeal, together
with the transcripts and exhibits to the RTC
within 15 days from perfection of appeal.
Upon receipt of the complete record or the
record on appeal, the RTC clerk shall notify
the parties of such fact.
1. Within 15 days from notice of appeal –
appellant shall submit a memorandum to
the RTC. Failure of appellant to file a
memorandum shall be a ground for
dismissal of the appeal.
2. Within 15 days from receipt of appellant’s
memorandum – appellee may file his
memorandum.
Dismissal of Case Without Trial or Without
Jurisdiction
1. If the lower court dismissed the case without
trial on the merits, RTC may:
734
a. Affirm – In such case, it is a declaration of
the merits of the dismissal;
b. Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter –
The action of the RTC is a mere affirmation
of the dismissal. The RTC shall try the case
on the merits as if the case was originally
filed with it, if it has jurisdiction; or
c. Reverse – it shall remand the case for
further proceedings.
2. If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
case, and shall admit amended pleadings and
additional evidence. (Sec. 8, Rule 40, ROC, as
amended)
Duty of the Clerk of Court of RTC upon Receipt of
the Complete Record
The clerk of court of the RTC shall notify the parties
of such fact. (Sec. 7(a), Rule 40, ROC, as amended)
Duties of the Parties to whom Notice was given
by the Clerk of Court
1. Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed
to the lower court, a copy of which shall be
furnished by him to the adverse party;
NOTE: Failure of the appellant to file a
memorandum shall be a ground for dismissal of
the appeal
2. Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum. (Sec. 7(a), Rule 40, ROC, as
amended)
When case is Considered Submitted for Decision
Upon the filing of the memorandum of the appellee,
or the expiration of the period to do so, the case shall
be considered submitted for decision. The Regional
Trial Court shall decide the case on the basis of the
entire records of the proceedings had in the court of
 Remedial Law

origin and such memoranda as are filed. (Sec. 7(c), 2. A particular matter therein when declared by
Rule 40, ROC, as amended) the Rules to be appealable. (Sec. 1, Rule 41, ROC,
as amended)

B. RULE 41 – APPEAL FROM THE REGIONAL XPNs: No appeal may be taken from:
TRIAL COURT
1. An order denying a petition for relief or any
similar motion seeking relief from judgment;
2. An interlocutory order;
Three Modes of Appeal from the Decisions of the
3. An order disallowing or dismissing an appeal;
RTC (2002, 2005, 2006, 2009 BAR)
4. An order denying a motion to set aside a
judgment by consent, confession or
1. Rule 41: Ordinary appeal or appeal by writ of
compromise on the ground of fraud, mistake or
error – This presupposes that the RTC
duress, or any other ground vitiating consent;
rendered the judgment or final order in the civil
action or special proceeding in the exercise of
5. An order of execution;
its original jurisdiction and appeal is taken to
the CA on questions of fact or mixed questions
6. A judgment or final order for or against one or
of fact and law. The appeal is taken by notice of
more of several parties or in separate claims,
appeal or by record on appeal.
counterclaims, cross-claims, and third-party
complaints, while the main case is pending,
NOTE: An appeal on pure questions of law
unless the court allows an appeal therefrom;
cannot be taken to the CA and such improper
and
appeal will be dismissed pursuant to Sec. 2, Rule
50. (Regalado, 2012)
7. An order dismissing an action without
prejudice. (2004 BAR)
2. Rule 42: Petition for review – The questioned
judgment or final order was rendered by RTC in
NOTE: In any of the foregoing circumstances, the
the exercise of its appellate jurisdiction over a
aggrieved party may file an appropriate special civil
judgment or final order in a civil action or
action as provided under Rule 65. (Ibid.)
special proceeding originally commenced in
and decided by a lower court. The appeal is
Title of the case when Appealed to the CA under
taken by a petition for review filed with CA on
Rule 41
questions of facts, of law or on mixed questions
of fact and law. (1998, 1990, 2009 BAR)
In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
3. Rule 45: Petition for review on certiorari –
origin but the party appealing the case shall be
Taken to the SC only on questions of law from a
referred to as the appellant and the adverse party
judgment or final order rendered in a civil
appellee. (Sec. 1, Rule 44, ROC, as amended)
action or special proceeding by RTC in the
exercise of its original jurisdiction. The appeal
NOTE: It shall be the duty of the appellant to file
is taken by filing a petition for review on
with the court, within 45 days from receipt of the
certiorari with the SC. (Regalado, 2010)
notice of the clerk that all the evidence, oral and
documentary, are attached to the record, 7 copies of
Subject of an Appeal under Rule 41
his legibly typewritten, mimeographed or printed
brief, with proof of service of 2 copies thereof upon
GR: An appeal may be taken from:
the appellee. (Sec. 7, Rule 44, ROC, as amended)
1. A judgment or final order that completely
NOTE: Within 45 days from receipt of appellant’s
disposes of the case; or
brief, the appellee shall file with the court 7 copies

735 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure

of his legibly typewritten, mimeographed or printed As to their Contents

brief, with proof of service of 2 copies thereof upon Shorter, briefer, and
the appellant. (Sec. 8, Rule 44, ROC, as amended) with only one issue
Contents specified by involved. There is no
Purpose of an Appellant’s/Appellee’s Brief Rules (Secs. 14-15, Rule subject index or
44, ROC, as amended) assignment of errors,
To present to the court in a concise form the points facts and applicable
and question in controversy, and by fair argument laws.
on the facts and law of the case, to assist the court in
arriving at a just and proper conclusion/decision.
(De Liano, et al., v. CA, G.R. No. 142316, 22 Nov. 2001) C. RULE 42 – PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF
NOTE: Extensions of time for the filing of briefs will APPEALS
not be allowed except for good and sufficient cause
and only if the motion for extension is filed before
the expiration of the time sought to be extended.
Q: The RTC affirmed the appealed decision of the
(Sec. 12, Rule 44, ROC, as amended)
MTC. You are the counsel of the defeated party
and he tells you to appeal the RTC's decision.
A litigant’s failure to furnish his opponent with a
copy of his appeal brief does not suffice to warrant
a. What mode of appeal will you adopt?
dismissal of that appeal. (Trinidad Go, et al., v.
b. Within what time and in what court should
Vicente Velez Chaves, G.R. No. 182341, 23 Apr. 2010)
you file your appeal? (1998 BAR)
Brief vs. Memorandum
A:
a. The mode of appeal is by petition for review
BRIEF MEMORANDUM
under Rule 42 of the Rules of Court.
As to Applicability
b. The period of appeal is within 15 days from
Certiorari, prohibition, notice of the decision subject of the appeal or of
mandamus, quo the denial of a motion for new trial or
Ordinary appeals reconsideration filed in due time to the CA.
warranto and habeas
corpus cases
Filing an Appeal under Rule 42
As to Period of Filing
1. A party aggrieved by the decision of RTC in the
Filed within 45 days
exercise of its appellate jurisdiction, may file a
from receipt of notice
verified petition for review with the CA;
issued by the clerk of
court that all the Filed within 30 days
2. At the same time, paying to the clerk of said
evidence, oral and from receipt of the
court the corresponding docket and other
documentary, is already notice issued by the
lawful fees, depositing the amount of
attached to the record clerk of court that all the
Php500.00 for costs, and furnishing the RTC
with proof of service of evidence, oral and
and the adverse party with a copy of the
2 copies upon the documentary, are
petition;
appellant (or appellee); already attached to the
record. (Sec. 10, Rule 44,
3. The petition shall be filed and served within 15
The Appellant’s Reply ROC, as amended)
days from notice of the decision sought to be
Brief is filed within 20
reviewed or of the denial of petitioner’s MNT or
days from receipt of
MR filed in due time after judgment;
appellee’s brief.

736
 Remedial Law
4. Upon proper motion and the payment of the full
amount of the docket and other lawful fees and
the deposit for costs before the expiration of the
reglementary period, the CA may grant an
additional period of 15 days only within which
to file the petition for review;
5. No further extension shall be granted except for
the most compelling reason and in no case to
exceed 15 days. (Sec. 1, Rule 42, ROC, as
amended)
Contents of the Petition for Review
The petition shall be filed in 7 legible copies, with
the original copy intended for the court being
indicated as such by the petitioner, and shall:
1. State the full names of the parties to the case,
without impleading the lower courts or judges
thereof either as petitioners or respondents;
2. Indicate the specific material dates showing
that it was filed on time;
3. Set forth concisely a statement of the matters
involved, the issues raised, the specification of
errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the
reasons or arguments relied upon for the
allowance of the appeal;
4. Must be accompanied by clearly legible
duplicate originals or true copies of the
judgments or final orders of both lower courts,
certified correct by the clerk of court of the
Regional Trial Court, the requisite number of
plain copies thereof and of the pleadings and
other material portions of the record as would
support the allegations of the petition; and
5. There must be a certification against forum
shopping. (Sec. 2, Rule 42, ROC, as amended)
Effect of Failure to comply with the
Requirements
The failure of the petitioner to comply with any of
the foregoing requirements regarding the payment
of the docket and other lawful fees, the deposit for
737
costs, proof of service of the petition, and the
contents of and the documents which should
accompany the petition shall be sufficient ground
for the dismissal thereof. (Sec. 3, Rule 42, ROC, as
amended)
Petition for Review NOT a Matter of Right
It is not a matter of right but discretionary on the CA.
It may only be given due course if it shows on its face
that the lower court has committed an error of fact
and/or law that will warrant a reversal or
modification of the decision or judgment sought to
be reviewed or dismiss the petition if it finds that it
is:
1. Patently without merit;
2. Prosecuted manifestly for delay; or
3. The questions raised therein are too
unsubstantial to require consideration. (Sec. 4,
Rule 42, ROC, as amended)
Actions the CA may take in acting upon the
Petition
1. The respondent may be required to file a
comment on the petition, not a motion to
dismiss, within 10 days from notice; or
2. The petition may be dismissed if the CA finds
the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial
to require consideration. (Sec. 4, Rule 42, ROC, as
amended)
Contents of Comment on the Petition
1. State whether or not he accepts the statement
of matters involved in the petition;
2. Point out the insufficiencies or inaccuracies in
petitioner’s statement of facts and issues; and
3. State the reasons why the petition should be
denied or dismissed. (Sec. 5, Rule 42, ROC, as
amended)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure
Doctrine of Residual Jurisdiction applicable to
Appeals under Rule 42
However, such residual jurisdiction or power must
be exercised before the CA gives due course to the
petition. (Sec. 8, Rule 42, ROC, as amended)
Effect of an Appeal of the Judgment or Final
Order under Rule 42
Except in civil cases decided under the Rule on
Summary Procedure, the appeal, as a rule, shall stay
the judgment or final order; unless the CA, the law
or the rules shall provide otherwise.
Grounds for Dismissal of an Appeal by the CA
1. Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by the Rules;
2. Failure to file the notice of appeal or the record
on appeal within the period prescribed by the
Rules;
3. Failure of the appellant to pay the docket and
other lawful fees as provided in Section 5 Rule
40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44;
5. Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by the
Rules;
6. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
record as required in Sec.13, paragraphs (a),
(c), (d) and (f) of Rule 44;
7. Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
738
comply with orders, circulars, or directives of
the court without justifiable cause; and
9. The fact that the order or judgment appealed
from is not appealable. (Sec. 1, Rule 50, ROC, as
amended)
NOTE: The grounds are discretionary upon the
appellate court. The very wording of the rule uses
the word “may” instead of “shall.” This indicates that
it is only directory and not mandatory. (Mercury
Drug Corporation v. De Leon, G.R. No. 165622, 17 Oct.
2008)
When case Deemed Submitted for Decision
If the petition is given due course, the CA may set the
case for oral argument or require the parties to
submit memoranda within a period of 15 days from
notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself. (Sec. 9, Rule 42, ROC, as amended)
Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of Appeals,
the law, or these Rules shall provide otherwise. (Sec.
8(b), Rule 42, ROC, as amended)
Q: Can a case decided by the RTC in the exercise
of its appellate jurisdiction be appealed by way
of a petition for review on certiorari under Rule
45?
A: NO. Where a case is decided by the RTC in the
exercise of its appellate jurisdiction, regardless of
whether the appellant raises questions of fact, of
law or mixed questions of fact and law, the appeal
shall be brought to the CA by filing a petition for
review under Rule 42. (Quezon City v. ABS-CBN
Broadcasting Corporation, G.R. No. 166408, 06 Oct.
2008)
Appeals from Quasi-judicial bodies NOT
included under Rule 45
Under the present Rule 45, appeals may be brought
through a petition for review on certiorari but only
from judgments and final orders of the court
 Remedial Law

enumerated in Sec. 1 thereof. Appeals from
judgments and final orders of quasi-judicial
agencies are now required to be brought to the CA
on a verified petition for review, under the
requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a
uniform rule of appellate procedure for quasi-
judicial agencies. (Fabian v. Desierto, G.R. No.
129742, 16 Sept. 1998)
NOTE: The mode of appeal under Rule 45 shall be
applicable to both civil and criminal cases, except in
criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (Sec. 9, Rule
45, ROC, as amended)
D. RULE 43 – APPEALS FROM THE COURT OF
TAX APPEALS, CIVIL SERVICE COMMISSION,
AND QUASI -JUDICIAL AGENCIES.
Agencies enumerated under Rule 43 (2006,
2009 BAR) (C4LOSIN2G-VEB2-SPADE)
NOTE: The list of quasi-judicial agencies
enumerated under Rule 43 is NOT exclusive. The
following are quasi-judicial agencies the judgments
and final orders of which are also covered by Rule
43:
a. Professional Regulation Commission
(Cayao-Lasam v. Sps. Ramolete, G.R. No.
159132, 18 Dec. 2008);
b. Bureau of Immigration (Tze Sun Wong v.
Wong, G.R. No. 180364, 03 Dec. 2014); and
c. Bangko Sentral ng Pilipinas (Monetary
Board v. Philippine Veterans Bank, G.R. No.
18957, 21 Jan. 2015)
Where to Appeal from Judgments and Final
Orders of Quasi- judicial Bodies
Appeals from judgment and final orders of quasi-
judicial bodies or agencies enumerated in Rule 43
are now required to be brought to the CA under the
requirements and conditions set forth in Rule 43.
(Carpio v. Sulu Resource Dev. Corp., G.R. No. 148267,
08 Aug. 2002)

Issues Raised on Appeal

1. Civil Service Commission;
2. Central Board of Assessment Appeals;
The appeal under Rule 43 may raise issues involving
3. Securities and Exchange Commission;
questions of fact, of law or mixed questions of fact
4. Office of the President;
and law. (Sec. 3, Rule 43, ROC, as amended)
5. Land Registration Authority;
6. Social Security Commission;
NOTE: Rule 43 is not applicable where the petition
7. Civil Aeronautics Board;
alleges that the challenged resolution is patently
8. Bureau of Patents, Trademarks and Technology
illegal and was issued with grave abuse of discretion
Transfer;
and beyond respondent’s jurisdiction. The
9. National Electrification Administration;
appropriate remedy is Rule 65 on certiorari.
10. Energy Regulatory Board;
11. National Telecommunications Commission;
Filing an Appeal from a Decision of the CTA
12. Department of Agrarian Reform under RA
(2009 BAR)
6657;
13. Government Service Insurance System;
An appeal from a decision or resolution of the CTA
14. Employee Compensation Commission;
in Division on an MNT or MR shall be taken to the
15. Agricultural Inventions Board;
CTA En Banc by petition for review as provided in
16. Insurance Commission;
Rule 43 of the Rules of Court. (Sec. 4, Rule 8, A.M. No.
17. Philippine Atomic Energy Commission;
05-11-07-CTA)
18. Board of Investments;
19. Construction Industry Arbitration Commission;
NOTE: The petition for review of a decision or
and
resolution of the Court in Division must be preceded
20. Voluntary Arbitrators authorized by law. (Sec.
by the filing of a timely MR or new trial with the
1, Rule 43, ROC, as amended)
Division before appealing to CTA En Banc in its

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 Appeals in Civil Procedure

exercise of appellate jurisdiction. (Sec. 1, Rule 8, A.M.

No. 05-11-07-CTA) E. RULE 45 – APPEALS BY CERTIORARI TO THE
SUPREME COURT
Appeal to the SC by Petition for Review on
Certiorari (2006 BAR)
Review by SC on the findings of fact of the CA
A party adversely affected by a decision or ruling of
the CTA en banc may appeal therefrom by filing with
GR: CA’s findings of fact are final and conclusive and
the SC a verified petition for review on certiorari
cannot be reviewed on appeal to the SC. (Natividad
within 15 days from receipt of a copy of the decision
v. MTRCB, G.R. No. 161422, 13 Dec. 2007)
or resolution, as provided in Rule 45 of the Rules of
Court. If such party has filed a MR or for new trial,
XPNs:
the period herein fixed shall run from the party’s
1. The conclusion of the CA is grounded entirely
receipt of a copy of the resolution denying the
on speculations, surmises and conjectures;
motion for reconsideration or for new trial. (Sec. 1,
2. The inference made is manifestly mistaken,
Rule 16, A.M. No. 05-11-07-CTA)
absurd or impossible;
3. There is grave abuse of discretion;
Effect of Appeal
4. The judgment is based on misapprehension of
facts;
The MNT or MR filed before the Court shall be
5. The findings of facts are conflicting;
deemed abandoned if, during its pendency, the
6. The CA in making its findings went beyond the
movant shall appeal to the SC. (Sec. 1, Rule 8, A.M. No.
issues of the case and the same is contrary to
05-11-07-CTA)
the admissions of both appellant and appellee;
7. The findings are contrary to those of the trial
Q: Melissa filed with the BIR a complaint for
court;
refund of taxes paid, but it was not acted upon.
8. The findings of facts are conclusions without
So, she filed a similar complaint with the CTA
citation of specific evidence on which they are
and was raffled to one of its divisions. Melissa's
based;
complaint was dismissed. Thus, she filed with
9. The facts set forth in the petition as well as in
the CA a petition for certiorari under Rule 65.
the petitioner’s main and reply briefs are not
Does the CA have jurisdiction over Melissa's
disputed by the respondents;
petition? (2006 BAR)
10. The findings of fact of the CA are premised on
the supposed absence of evidence and
A: NO. A decision of a division of the CTA is
contradicted by the evidence on record; or
appealable within 15 days to the CTA en banc. On
11. Those filed under Writs of amparo, habeas data,
the other hand, a party adversely affected by a
or kalikasan.
decision or ruling of the CTA en banc may file with
the SC a verified petition for review on certiorari
Instances where the CA may act as a trial court
pursuant to Rule 45 of the Rules.
(2008 BAR)

NOTE: R.A. No. 9282 expanded the jurisdiction of

1.
the CTA and elevated the same to the level of a
collegiate court equivalent to the rank of the CA.
Hence, the CA no longer has jurisdiction to review
the decisions of the CTA en banc.
In annulment of judgment under Secs. 5 and 6,
Rule 47. Should the CA find prima facie merit in
the petition, the same shall be given due course
and summons shall be served on the
respondent, after which trial will follow, where
the procedure in ordinary civil cases shall be
observed;

740
 Remedial Law
2. When a motion for new trial is granted by the
CA, the procedure in the new trial shall be the
same as that granted by a RTC (Sec. 4, Rule 53,
ROC, as amended);
3. A petition for habeas corpus shall be set for
hearing (Sec. 12, Rule 102, ROC, as amended);
4. In petition for writs of amparo and habeas data,
a hearing can be conducted;
5. Under Sec. 12, Rule 124 of the Rules of Criminal
Procedure, the CA has the power to try cases
and conduct hearings, receive evidence and
perform any and all acts necessary to resolve
factual issues which fall within its original and
appellate jurisdiction;
6. The CA can grant a new trial based on the
ground of newly-discovered evidence (Sec. 14,
Rule 124, ROC, as amended);
7. The CA under Sec. 6, Rule 46, whenever
necessary to resolve factual issues, may conduct
hearing thereon or delegate the reception of the
evidence of such issues to any of its members or
to an appropriate agency or office; and
8. Human Security Act.
Appeal under Rule 45 NOT a Matter of Right
Appeal under Rule 45 is not a matter of right, but of
sound judicial discretion with the exception of cases
where the penalty of death, or reclusion perpetua
where the appeal is a matter of right leaving the
reviewing court without any discretion. (People v.
Flores, G.R. No. 170565, 31 Jan. 2006)
The following reasons may be considered in
allowing the petition:
1. When the court below has decided a question of
substance not yet determined by the SC;
2. When the court below decided a question of
substance in a way that is probably not in
accord with the law or with the applicable
decisions of the SC; or
741
3. When the court below has departed from the
accepted and usual course of judicial
proceedings or so far sanctioned such a
departure by a lower court, as to call for the
exercise of the power of supervision of the SC.
(Sec. 6, Rule 45, ROC, as amended)
Instances when an Appeal by Certiorari under
Rule 45 may apply
1. Appeal from a judgment or final order of the
RTC in cases where only questions of law are
raised or are involved and the case is one
decided by the said court in the exercise of its
original jurisdiction (Sec. 2(c), Rule 41, ROC, as
amended);
2. Appeal from the judgment, final order or
resolutions of the CA where the petition shall
raise only questions of law (Sec. 1, Rule 45, ROC,
as amended);
3. Appeal from the judgment, final order or
resolutions of the Sandiganbayan where the
petition shall raise only questions of law (Sec. 1,
Rule 45);
4. Appeals from the decision or ruling of the CTA
en banc (Sec. 11, R.A. No. 9282);
5. Appeals from a judgment or final order in a
petition for writ of amparo to the SC which may
raise questions of fact, questions of law or of
both fact and law (Sec. 19, AM No. 08-1-16-SC,
Rule on the writ of amparo, 24 Oct. 2007);
6. Appeal from judgment or final order in a
petition for the writ of habeas data. The appeal
may raise questions of fact or law or both (AM
No. 08-1-16-SC, Rule on the writ of Habeas data
(Sec. 19) 02 Feb. 2008);
7. Appeal from judgment or final order in a
petition for the writ of kalikasan where the
appeal may raise questions of fact or law or
both. (AM No. 09-6-8-SC, Rules of Procedure for
Environmental Cases, Part III, Rule 7)
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure

Only Questions of Law under Rule 45 Petition for Review on Certiorari under Rule 45
vs. Certiorari under Rule 65
The SC is not a trier of facts, and is not to review or
calibrate the evidence on record. Moreover, the SPECIAL CIVIL
PETITION FOR REVIEW
findings of facts of the trial court, as affirmed on ACTION FOR
ON CERTIORARI
appeal by the CA, are conclusive on the SC. (Boston CERTIORARI
(Rule 45)
Bank of the Philippines v. Manalo, G.R. No. 158149, 09 (Rule 65)
Feb. 2006) As to Nature
A special civil action
Question of Law vs. Question of Fact that is an original action
A mode of appeal which
(Rule 65) directed
seeks to review final
QUESTION OF LAW QUESTION OF FACT against an interlocutory
judgments and orders.
As the Subject Matter of Question order or matters where
(Sec. 2, Rule 41, ROC, as
The doubt or no appeal may be taken
amended)
controversy concerns from. (Sec. 1, Rule 41,
The doubt or
the correct ROC, as amended)
difference arises as to
application of law or As to Inclusion to the Appellate Process
the truth or falsehood
jurisprudence to a A continuation of the Not part of the
of facts; or
certain given set of appellate process over appellate process, it is
facts; or the original case. an independent action.
As to the Availability of Witness Examination As to the Questions Raised
When the query Raises questions of law Raises questions of
invites the calibration jurisdiction
of the whole evidence As to Time Period for Filing
When the issue does considering mainly: Filed not later than 60
not call for an days from notice of
Filed within 15 days
examination of the a. The credibility of judgment, order or
from notice of judgment,
probative value of the the witnesses; resolution sought to be
final order or resolution
evidence presented, b. The existence and assailed, or from notice
appealed from.
the truth or falsehood relevancy of specific of denial of an MR or
of facts being admitted. surrounding MNT.
(Irene Marcos-Araneta, circumstances, as well As to Staying of Judgement Appealed From
et al. v. CA, G.R. No. as their relation to Does not stay the
154096, 22 Aug. 2008) each other and to the judgment or order
whole; and Stays the judgment
subject of the petition,
c. The probability of sought to be appealed
unless enjoined or
the situation. restrained.
As to the Requirement of a Prior Motion for
NOTE: The petition for review on certiorari may Reconsideration
include an application for a writ of preliminary Requires, as a general
injunction or other provisional remedies and shall rule, a prior motion for
raise only questions of law which must be distinctly Does not require a prior reconsideration. (Bases
set forth. The petitioner may also seek the same motion for Conversion and
provisional remedies by verified motion filed in the reconsideration Development Authority
same action or proceeding at any time during its v. Uy, G.R. No. 144062, 02
pendency. (Sec. 1, Rule 45, ROC, as amended) Nov. 2006)
As to the Parties involved in the proceeding
The parties are the The tribunal, board, or
original parties with the officer exercising

742
 Remedial Law

appealing party as the judicial or quasi- Appeal from Judgment or Final Order of the
petitioner and the judicial functions is Sandiganbayan
adverse party as the impleaded as
respondent, without respondent. (Sec. 5 Rule 1. The appeal to the SC in criminal cases decided
impleading the lower 65, ROC, as amended) by the Sandiganbayan in the exercise of its
court or its judge. (Sec. original jurisdiction – by notice of appeal; and
4(a), Rule 45, ROC, as 2. The appeal to the SC in criminal cases decided
amended) by the Sandiganbayan in the exercise of its
As to the Court which have Jurisdiction. appellate jurisdiction – by petition for review on
Filed with the RTC (Sec. certiorari under rule 45. (Sec. 1(a), Rule XI, A.M.
21, B.P. 129); No. 13-7-05-SB, effective 16 Nov. 2018)
Filed with the SC. (Sec. 1, With the CA (Sec. 9, B.P.
Rule 45, ROC, as 129); or
amended) With the SC (Sec. 5(1), F. RULE 64 – REVIEW OF JUDGEMENTS OR
Article VIII, 1987 FINAL ORDERS OF THE COMMISSION ON AUDIT
Constitution) AND THE CMISSION OF ELECTION

Motu Proprio Denial of the Petition for Review

by the SC
1. The appeal is without merit;
2. Prosecuted manifestly for delay; or
3. That the questions raised therein are too
unsubstantial to require consideration. (Sec. 5,
Rule 45, ROC, as amended)
Availment of Both Remedies under Rule 45 and
65
GR: The remedy of appeal under Rule 45 and an
original action for certiorari under Rule 65 are
mutually exclusive and not alternative or
cumulative. Thus, a party should not join both
petitions in one pleading. (NAMAPRI – SPFL v. CA,
G.R. Nos. 148839-49, 02 Nov. 2006)
XPN: The SC may set aside technicality for
justifiable reasons as when the petition before the
Court is clearly meritorious and filed on time both
under Rules 45 and 65. In accordance with the
liberal spirit which pervades the Rules of Court and
in the interest of justice, the Court may treat the
petition as having been filed under Rule 45.
(International Corporate Bank, Inc. v. CA, G.R. No.
129910, 05 Sept. 2006)
A judgment, resolution or final order of the
COMELEC and the COA may be brought by the
aggrieved party to the SC on certiorari under Rule
65 by filing the petition within 30 days from notice
of the judgment or final order. (Sec. 2, Rule 64, ROC,
as amended)
On the other hand, judgments, final orders or
resolutions of the CSC may be taken to the CA under
Rule 43 of the Rules of Court. (Secs. 1 & 3 Rule 43,
ROC, as amended)
Jurisdiction of CA to Review the Decisions in
Criminal and Administrative Cases of the
Ombudsman
1. In administrative disciplinary cases, the rulings
of the Office of the Ombudsman are appealable
to the CA under Rule 43.
2. Where the findings of the Ombudsman on the
existence of probable cause in criminal cases is
tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction, the
aggrieved party may file a petition for certiorari
with the SC under Rule 65. (Enemecio v. Office of
the Ombudsman, G.R. No. 146731, 13 Jan. 2004)

3. In criminal cases, the ruling of the Ombudsman

shall be elevated to the SC by way of Rule 65.

743 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure
Review of Final Judgments or Final Orders of the
NLRC
The remedy is to promptly move for the
reconsideration of the decision and if denied, to
timely file a special civil action of certiorari under
Rule 65 within 60 days from notice of the decision.
In observance of the doctrine of hierarchy of courts,
the petition for certiorari should be filed in the CA.
(St. Martin Funeral Homes v. NLRC, G.R. No. 130866,
16 Sept. 1998)
NOTE: Those judgments and final orders or
resolutions of the Employees Compensation
Commission should be brought to the CA through a
petition for review under Rule 43.
Review of Judgments or Final Orders of Quasi-
Judicial Agencies
It is an organ of the government other than a court
and other than a legislature, which affects the rights
of private parties either through adjudication or
rulemaking.
Q: Eliza voluntarily offered for sale to the
government, under Comprehensive Agrarian
Reform Program, a parcel of land. Pursuant to
E.O. No. 405, Landbank made a valuation of the
land. Eliza, thereafter, rejected Landbank’s
valuation. Thus, the matter was endorsed to the
Office of the Provincial Agrarian Reform
Adjudicator (PARAD) and then was transferred
to the Office of Regional Agrarian Reform
Adjudicator (RARAD). The Regional Adjudicator
(RA) fixed the compensation. Not satisfied,
Landbank filed a petition for just compensation
before the RTC, acting as Special Agrarian Court
(SAC). Eliza filed a Motion for Execution of
Judgment before the Office of the RA. The RA
granted the motion for execution and issued an
order directing the issuance of a writ of
execution and an alias writ of execution since
the former was returned unsatisfied. Landbank
sought from the SAC the quashal of the writ
which the SAC denied. Hence, it filed before the
Department of Agrarian Reform Adjudication
Board (DARAB) a petition for certiorari. DARAB
granted. Does DARAB has jurisdiction in
granting the petition for certiorari?
744
A: NO. Jurisprudence has settled that DARAB
possesses no power to issue writs of certiorari.
Jurisdiction, or the legal power to hear and
determine a cause or causes of action, must exist as
a matter of law. It is settled that the authority to
issue writs of certiorari, prohibition, and mandamus
involves the exercise of original jurisdiction which
must be expressly conferred by the Constitution or
by law.
As an administrative agency exercising quasi-
judicial but not consummate judicial power, DARAB
is inherently incapable of issuing writs of certiorari.
This is not merely a matter of statutorily stipulated
competence but a question that hearkens to the
separation of government's tripartite powers:
executive, legislative, and judicial. DARAB's exercise
of the innately judicial certiorari power is an
executive encroachment into the judiciary. It
violates the separation of powers; it is
unconstitutional. With or without a law enabling it,
DARAB has no power to rule on jurisdictional
controversies via petitions for certiorari. DARAB's
self-serving grant to itself of the power to issue
writs of certiorari in the 1994 DARAB New Rules of
Procedure is itself a grave abuse of discretion
amounting to lack or excess of jurisdiction. It must
be annulled for running afoul of the Constitution.
(Heirs of Eliza Q. Zoleta v. Landbank of the
Philippines, G.R. No. 205128, 09 Aug. 2017)
Effect of Appeal on the Award, Judgment, Final
Order or Resolution
The appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed unless the
CA shall direct otherwise upon such terms as it may
deem just. (Sec. 12, Rule 43, ROC, as amended)
Remedy of a Party Aggrieved by the Decision of
a Quasi-judicial Agency
The aggrieved party must file a verified petition for
review under Rule 43 in 7 legible copies within 15
days from:
1. Notice of the award, judgment, final order or
resolution;
2. Date of publication, if publication is required by
law for its effectivity; or
 Remedial Law

3. Denial of petitioner’s MNT or MR. (Sec. 4, Rule As to the Effect of the Factual Findings
43, ROC, as amended) Factual findings are Factual findings are
not conclusive to the conclusive upon the CA
Contents of Comment to the Petition CA. if supported by
substantial evidence.
The comment shall:

1. Point out the insufficiencies or inaccuracies in G. DISMISSAL, REINSTATEMENT, AND

petitioner’s statement of facts and issues; and WITHDRAWAL OF APPEAL
2. State the reasons why the petition should be
denied or dismissed. (Sec. 9, Rule 43, ROC, as
amended)
Grounds for Dismissal of Appeal before the CA
NOTE: It shall be filed within 10 days from notice in
An appeal may be dismissed by the Court of Appeals,
7 legible copies and accompanied by clearly legible
on its own motion or on that of the appellee, on the
certified true copies of such material portions of the
following grounds:
record referred to therein together with other
supporting papers.
a. Failure of the record on appeal to show on its
face that the appeal was taken within the period
Extension of Time to file Petition for Review
fixed by these Rules;
b. Failure to file the notice of appeal or the record
Upon proper motion and the payment of the full
on appeal within the period prescribed by these
amount of the docket fee before the expiration of the
Rules;
reglementary period, the CA may grant additional
c. Failure of the appellant to pay the docket and
period of 15 days only within which to file a petition
other lawful fees as provided in Sec. 5, Rule 40
for review. No further extension shall be granted
and section 4 of Rule 41 (Bar Matter No. 803, 17
except for the most compelling reason and in no
Feb. 1998);
case to exceed 15 days. (Sec. 4, Rule 43, ROC, as
d. Unauthorized alterations, omissions or
amended)
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44;
Appeal from RTC as Appellate Court under Rule
e. Failure of the appellant to serve and file the
42 vs. Appeal from Quasi-judicial Agencies
required number of copies of his brief or
under Rule 43
memorandum within the time provided by
these Rules;
RTC AS APPELLATE APPEAL FROM
f. Absence of specific assignment of errors in the
COURT (Rule 42) QUASI-JUDICIAL
appellant's brief, or of page references to the
AGENCIES (Rule 43)
record as required in Sec. 13, paragraphs (a),
As to Effect
(c), (d) and (f) of Rule 44;
g. Failure of the appellant to take the necessary
GR: Decision is
steps for the correction or completion of the
immediately
record within the time limited by the court in its
executory. It is not
order;
stayed by an appeal.
Decision is stayed by h. Failure of the appellant to appear at the
an appeal. preliminary conference under Rule 48 or to
XPN: CA shall direct
comply with orders, circulars, or directives of
otherwise upon such
the court without justifiable cause; and
terms as it may deem
i. The fact that the order or judgment appealed
just.
from is not appealable. (Sec. 1, Rule 50, ROC, as
amended)

745 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Appeals in Civil Procedure
Dismissal of Improper Appeal to the Court of
Appeals
An appeal under Rule 41 taken from the RTC to the
CA raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the appellate
judgment of a RTC shall be dismissed.
An appeal erroneously taken to the CA shall not be
transferred to the appropriate court but shall be
dismissed outright. (Sec. 2, Rule 50, ROC, as
amended)
Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial
court, may motu proprio or on motion, dismiss the
appeal for having been taken out of time or for non-
payment of the docket and other lawful fees within
the reglementary period. (Sec. 13, Rule 41, ROC, as
amended)
Grounds for Dismissal of Appeal Before the SC
1. The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
2. Failure to take the appeal within the
reglementary period;
3. Lack of merit in the petition;
4. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
5. Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
6. Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
7. Error in the choice or mode of appeal; and
8. The fact that the case is not appealable to the
Supreme Court. (Sec. 5, Rule 56, ROC, as
amended)
Reinstatement of Appeal
The underlying consideration in this petition is that
the act of dismissing the notice of appeal, if done in
excess of the trial court's jurisdiction, amounts to an
746
undue denial of the petitioner's right to appeal. The
importance and real purpose of the remedy of
appeal has been emphasized in Castro v. Court of
Appeals where this Court ruled that an appeal is an
essential part of our judicial system and trial courts
are advised to proceed with caution so as not to
deprive a party of the right to appeal and instructed
that every party-litigant should be afforded the
amplest opportunity for the proper and just
disposition of his cause, freed from the constraints
of technicalities. (Lazaro vs. Court of Appeals, G.R. No.
137761, 06 Apr. 2000)
Payment of Appellate Docket Fees
It is an established rule is that the payment in full of
the docket fees within the prescribed period is
mandatory. Nevertheless, this rule must be
qualified, to wit:
1. The failure to pay appellate court docket fee
within the reglementary period allows only
discretionary dismissal, not automatic
dismissal, of the appeal; and
2. Such power should be used in the exercise of
the Courts' sound discretion ‘in accordance
with the tenets of justice and fair "play and with
great deal of circumspection considering all
attendant circumstances.
Admittedly, the SC has allowed the filing of an
appeal in some cases where a stringent application
of the rules would have denied it, only when to do
so would serve the demands of justice and in the
exercise of the SC’s equity jurisdiction. (Sps.
Buenaflor vs. Court of Appeals, G.R. No. 142021, 29
Nov. 2000)
Withdrawal of Appeal
An appeal may be withdrawn as of right at any time
before the filing of the appellee's brief. Thereafter,
the withdrawal may be allowed in the discretion of
the court. (Sec. 3, Rule 50, ROC, as amended)
Ordinary Appeal from the RTC to the CA
In either case, prior to the transmittal of the original
record or the record on appeal, the court may x x x
 Remedial Law

allow withdrawal of the appeal. (Sec. 9, Rule 41, ROC, error as it will not overcome the weight of the
as amended) properly admitted evidence against the prejudiced
party. (People v. Teehankee, Jr., G.R. No. 111206-08,
Petition for Review from the RTC to the CA 06 Oct. 1995)

However, before the Court of Appeals gives due

course to the petition, the Regional Trial Court may
x x x allow withdrawal of the appeal. (Sec. 8(a), Rule
42, ROC, as amended)

DUAL FUNCTION OF APPELLATE COURTS

Review for Correctness Function

This is the function of the appellate court to review

a case on appeal to assure that substantial justice
has been done and is concerned with the justice of
the particular case and with the doctrine of res
judicata.

Institutional Function

This is the function of the appellate court to

contribute to the progressive development of the
law for general application to the judicial system
and is concerned with the doctrine of stare decisis,
which refers to the precedential value which assists
in deciding future similar cases. (Bersamin, Appeal
and Review in the Philippines, 01 Jan. 2000)

The “Harmless Error Rule” in Appelate

Decisions

No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or
order or in anything done or omitted by the trial
court or by any of the parties is ground for granting
a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any
error or defect which does not affect the substantial
rights of the parties. (Sec. 6, Rule 51, ROC, as
amended)

In dealing with evidence improperly admitted in

trial, we examine its damaging quality and its
impact to the substantive rights of the litigant. If the
impact is slight and insignificant, we disregard the

747 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Appeals in Criminal Cases
IV. APPEALS IN CRIMINAL CASES: MODES OF
APPEAL FROM JUDGEMENTS OR FINAL ORDERS
OF VARIOUS COURTS/TRIBUNALS
A. RULE 112
Appeal
A proceeding for review by which the whole case is
transferred to the higher court for a final
determination. The right of appeal is a mere
statutory privilege. Only final judgments and orders
are appealable.
In all criminal prosecutions, the accused shall have
the right to appeal in the manner prescribed by law.
It is an essential part of our judicial system and trial
courts are advised to proceed with caution so as not
to deprive a party of the right to appeal and
instructed that every party-litigant should be
afforded the amplest opportunity for the proper and
just disposition of his cause, freed from the
constraints of technicalities. While this right is
statutory, once it is granted by law, however, its
suppression would be a violation of due process, a
right guaranteed by the Constitution. (Hilario v.
People, G.R. No. 161070, 14 Apr. 2008)
Period to Take an Appeal
It must be taken within 15 days from promulgation
of judgment or from notice of final order appealed
from. (Sec. 6, Rule 122, ROC, as amended)
Who may Appeal
Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy. (Sec. 1, Rule 122, ROC, as amended)
NOTE: The authority to represent the State in
appeals of criminal cases before the Court of
Appeals and the Supreme Court is solely vested in
the Solicitor General.
748
Effect of Appeal by the Accused
When the accused appeals his conviction, he waives
the protection on the prohibition against double
jeopardy and runs the risk of being sentenced to a
penalty higher than that imposed by the trial court.
(Philippine Rabbit Bus Lines, Inc. v. People, GR No.
147703 April 14, 2004) (Philippine Rabbit Bus Lines,
Inc. v. People, GR No. 147703 14 Apr. 2004)
Q: May the prosecution appeal a judgment of
acquittal?
A: GR: NO. The accused would be subjected to
double jeopardy.
XPNs:
1. If the dismissal is made upon motion or with the
express consent of the accused;
XPNs to the XPN:
a. Insufficiency of the prosecution
evidence; or
b. Violation of the accused’s right to speedy
trial.
2. If the dismissal is not an acquittal or based upon
consideration of the evidence on the merits;
3. If the question is purely legal so that should the
dismissal be found incorrect, the case shall be
remanded for further proceedings to determine
the guilt or innocence of the accused; and
4. If there is a showing of grave abuse of discretion
amounting to lack or excess of jurisdiction,
certiorari under Rule 65 may be available.
Modes of Appeal
Modes of appeal that may be taken from a judgment
convicting the accused are:
1. The accused may seek a review of said
judgment as regards both criminal and civil
actions; or
2. The private offended party may appeal only
with respect to the civil action either because
the lower court has refused or failed to award
damages or because the award made is
unsatisfactory to him.
 Remedial Law

Modes of review recognized by the Rules of Court:
1. Ordinary appeal;
2. Petition for review;
3. Petition for review on certiorari; and
4. Automatic appeal.
Effect of an Appeal
An appeal in a criminal case opens the whole case
for review and this includes the review of penalty,
indemnity, and the damages involved.
Consequently, on appeal, the appellate court may
increase the penalty and indemnity of damages
awarded by the trial court although the offended
party had not appealed from said award, and the
party who sought a review of the decision was the
accused.
Effect of Perfection of Appeal with regard to the
Jurisdiction of the Court
Once an appeal in a case, whether civil or criminal,
has been perfected, the court a quo loses jurisdiction
over the case both over the record and over the
subject of the case. (Director of Prisons v. Teodoro,
G.R. No. L-9043, 30 July 1955) Failure to serve a copy
to the prosecutor is not a defect which can nullify
the appeal or prejudice the unquestionable rights of
the accused.
Effects of Failure to Prosecute an Appeal
NOTE: Parole refers to the conditional release of an
offender from a correctional institution after he
serves the minimum term of his prison sentence.
Appeal from the Civil Aspect
1. The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from.
2. The appeal period accorded to the accused
should also be available to the offended party
who seeks redress of the civil aspect of the
decision. The period to appeal granted to the
offended party is the same as that granted to the
accused. (Riano, 2019)
Death of the Accused Pending Appeal
Upon the death of the accused pending appeal of his
conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand
as the accused; the civil action instituted therein for
the recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal
action. (People v. Paras, G.R. No. 192912, 03 Oct.
2014)
Factual Findings of the Trial Court
GR: The trial court’s factual findings are accorded
great respect and even conclusive effect if duly
supported by evidence.

1. Judgment of the court becomes final. XPNs: When facts or circumstances of weight and
2. Accused cannot be afforded the right to appeal substance have been:
unless: 1. Overlooked;
2. Misapprehended;
a. He voluntarily submits to the jurisdiction of 3. Misinterpreted; or
the court; or 4. The court gravely abused its discretion
b. He is otherwise arrested within 15 days
from notice of judgment against him. Where to Appeal

Appeal Not Mooted by Accused’s Release on Appeals shall be taken before the:
Parole
1. To the RTC, in cases decided by the MTC, MTCC,
Parole is not one of the modes of totally MeTC, or MCTC;
extinguishing criminal liability under Article 89 of 2. To the CA or to the SC in the proper cases
the RPC. provided by law, in cases decided by the RTC;
3. To the SC, in cases decided by the CA (Sec. 2,
Rule 122, ROC, as amended);

749 UNIVERSITY OF SANTO TOMAS

F A C U LT Y O F C I V I L L A W
 Appeals in Criminal Cases
4. To the SC, in cases decided by CTA En Banc (Sec.
1 Rule 116, ROC, as amended);
5. To the SC, in cases decided by Sandiganbayan.
(Sec. 1, Rule 45, ROC, as amended)
Service of Notice of Appeal
GR: Notice of appeal should be served upon the
adverse party or his counsel by personal service.
XPN: If personal service cannot be made, through:
a. Registered mail; or
b. By substituted service pursuant to Secs. 7 and
8 of Rule 13 (Sec. 4, Rule 122, ROC, as
amended)
c. By publication, made in a newspaper of
general circulation in the vicinity once a week
for a period not exceeding 30 days. (Pamaran,
2010)
NOTE: The appellee may waive his right to notice of
appeal. However, the appellate court may, in its
discretion, entertain an appeal notwithstanding
failure to give such notice if the interests of justice
so require. (Sec. 5, Rule 122, ROC, as amended)
Period to Withdraw an Appeal
1. An appellant may withdraw his appeal before
the record has been forwarded by the clerk of
court to the proper appellate court as provided
by Sec. 8, Rule 122, in which case the judgment
shall become final. (Sec. 12, Rule 122, ROC, as
amended)
2. The court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a
motion to that effect is filed before the rendition
of the judgment in the case on appeal. (Sec. 12,
Rule 122, ROC, as amended)
Probation
The court may, after it shall have convicted and
sentenced a defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for
such period and conditions it may deem best. No
application for probation shall be entertained or
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granted if the defendant has perfected an appeal
from the judgment of conviction. (Sec. 4, P.D. 968 as
amended) Therefore, that an appeal should not bar
the accused from applying for probation if the
appeal is taken solely to reduce the penalty (in order
to “qualify” for probation) is contrary to the clear
and express mandate of the law. (Boado, 2015)
NOTE: Appeal and probation are mutually exclusive
remedies. Implicit in an application for probation is
an admission of guilt. (Almero v. People, GR No.
188191, 12 Mar. 2014)
Stay of Execution
Upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be
stayed as to the appealing part. (Sec. 11(c), Rule 122,
ROC, as amended)
NOTE: The benefit of the stay of execution afforded
to a co-accused, who timely files an appeal, cannot
be extended to those who failed to file the same.
Thus, the period to appeal continued to run against
the accused who did not appeal even if his co-
accused appealed. (Riano, 2019)
Effect of Appeal by any of Several Accused
Appeal taken by any of the several accused shall
have the following effects:
1. It 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. Gandia, G.R. No. 175332, 06 Feb. 2008)
2. The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from; and
3. 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, ROC, as amended)
NOTE: In People v. Olivo (G.R. No. 177768, 27 July
2009), an accused has benefitted from the acquittal
of his co-accused despite the former’s failure to
appeal from the judgment.
 Remedial Law
Grounds for Dismissal of Appeal
1. Failure of the appellant to serve and file the
required number of copies of his brief of
memorandum within the time provided by
these Rules;
2. Appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal.
3. Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
4. Failure to file the notice of appeal or the record
on appeal within the period prescribed by these
Rules;
5. Failure of the appellant to pay the docket and
other lawful fees as provided in Sec. 5 of Rule 40
and Sec. 4 of Rule 41;
6. Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44;
7. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
record as required in Sec. 13, paragraphs (a),
(c), (d) and (f) of Rule 44; and
8. Failure of the appellant to take the necessary
steps for the correction or completion of the
B. HOW APPEALS ARE TAKEN
FROM DECISION OF
Appealed to the RTC
1. File a notice of appeal with the MTC;
MTC
2. Serve a copy of the notice to the adverse party.
Appealed to the CA
RTC
A. Exercising its original jurisdiction for offenses with
imposable penalties less than reclusion perpetua or life
imprisonment.
B. Exercising its appellate jurisdiction.
C. Where the imposable penalty is:
a. if imprisonment or reclusion perpetua; or
b. a lesser penalty for offenses committed on the same
occasion or which arose from the same occurrence that
gave rise to the offense punishable reclusion perpetua or
life imprisonment.
D. Where the imposable penalty is death.
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record within the time limited by the court in its
order.
Erroneous Mode of Appeal
In cases where 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 was rejected. The Supreme
Court 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. (People v. Resuello, G.R. No. L-30165, 23
Feb. 1971)
Rule if the Opinion of the Supreme Court en banc
is Equally Divided
When the SC 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, ROC, as amended)
HOW TAKEN
1. File a notice of appeal with the RTC;
2. Serve a copy of the notice to the adverse party.
File a petition for review under Rule 42.
1. File a notice of appeal with the RTC;
2. Serve a copy of the notice to the adverse party.
Automatic review to CA (Sec. 10, Sec. 122, ROC,
as amended).
UNIVERSITY OF SANTO TOMAS
F A C U LT Y O F C I V I L L A W
 Appeals in Criminal Cases

Appealed to the Supreme Court

All other appeals except:

a. Decision of RTC where the imposable penalty is life

imprisonment or reclusion perpetua or a lesser penalty
for offenses committed on the same occasion or which
arose from the same occurrence that gave rise to the
offense punishable by reclusion perpetua or life Petition for review on certiorari via Rule 45.
imprisonment; and

b. Decisions of RTC imposing the penalty of death.

NOTE: By virtue of RA 9346, the imposition of death

penalty is prohibited.
CA
Automatic review. (Sec. 13, Rule 124, ROC, as
a. When it finds that death penalty should be
amended)
imposed.
b. Where it imposes reclusion perpetua, life Notice of appeal. (Sec. 13, Rule 124, ROC, as
imprisonment or a lesser penalty. amended)
Sandiganbayan

(a) Exercising its appellate jurisdiction for offenses where File a notice of appeal.
the imposable penalty is reclusion perpetua or life
imprisonment.
(b) Exercising its original jurisdiction for offenses where File a notice of appeal.
the imposable penalty is reclusion perpetua and life (Sec. 13, Rule 124, ROC, as amended; Sec. 5, PD
imprisonment. 1606 as amended by RA 8249).
Cases not falling in paragraphs (a) and (b) above. Petition for review on certiorari via Rule 45.

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