CRIMINAL PROCEDURE

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CRIMINAL PROCEDURE
VII. CRIMINAL
PROCEDURE
A. General Concepts
1. Criminal Jurisdiction; Concept and
Requisites for Exercise
Criminal Jurisdiction
The authority to hear and try a particular
offense and impose the punishment for it
[People v. Mariano, G.R. No. L-40527 (1976)].
Requisites for a Court to Exercise
Jurisdiction:
a. Subject Matter Jurisdiction: The offense
is one it is authorized by law to take
cognizance of.
b. Territorial Jurisdiction: The offense has
been committed within its territorial
jurisdiction.
c. Jurisdiction over the Person: The person
charged must have been brought before it
for trial, forcibly by arrest or upon his
voluntary submission to the court.
All three requisites must concur before a court
can acquire jurisdiction [Antiporda v.
Garchitorena, G.R. No. 133289 (1999), citing
Arula v. Espino, G.R. No. L-28949 (1969)].
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5. Where acts of the officer are without or in
excess of authority
6. When the prosecution is under an invalid
law, ordinance or regulation
7. When double jeopardy is clearly apparent
8. When the court has no jurisdiction over the
offense
9. When it is a case of persecution rather than
prosecution
10. Where the charges are manifestly false and
motivated by vengeance
11. Where there is no prima facie case and a
motion to quash on that ground has been
denied
12. Where preliminary injunction has been
issued by the SC to prevent the threatened
unlawful arrest of petitioners [Brocka v.
Enrile, G.R. No. 69863-65 (1990)]
13. To prevent the use of the strong arm of the
law in an oppressive and vindictive manner
[Hernandez v. Albano, G.R. No. L-19272
(1967)]
B. Prosecution of Offenses (Rule
110)
1. How Criminal Actions are
Instituted
The institution of a criminal action generally
depends upon whether the offense is one
which requires a preliminary investigation (PI)
or not:

2. When Injunction May be Filed

Offenses
Other Offenses
Requiring PI
General Rule: Criminal prosecution may NOT
be blocked by court prohibition or injunction
[Brocka v. Enrile, G.R. No. 69863-65 (1990)] Nature of Offenses
for the reason that public interest requires that
criminal acts be immediately investigated and Those where the Offenses where the
prosecuted for the protection of society penalty prescribed penalty prescribed by
[Domingo v. Sandiganbayan, G.R. No. 109376 by law is at least 4 law is less than 4
(2000)] years, 2 months years, 2 months, and
and 1 day [Sec. 1, 1 day
Exceptions: Rule 112, as
1. To afford adequate protection to the amended by A.M.
constitutional rights of the accused No. 05-8-26-SC]
2. For the orderly administration of justice
3. To avoid oppression or multiplicity of suits How Instituted
4. Where there is a prejudicial question which
is sub judice
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parties actually reside in the same city or
Offenses
Other Offenses municipality.
Requiring PI

By filing the a. Filed directly Exceptions, when [PGP-ODP]:

complaint with with the MTCs and 1. There is no Private offended party [Sec.
the appropriate MCTCs; or 408(d), LGC]
officer for PI [Sec. b. Filed with the office 2. One party is the Government or any
1(a), Rule 110] of the prosecutor subdivision thereof [Sec. 408(a), LGC];
[Sec. 1(b), Rule 3. One party is a Public officer or employee,
110] and the dispute relates to the performance
c. In Manila and of his Official functions [Sec. 408(b), LGC];
other chartered 4. Parties actually reside in Different cities or
cities, the complaint municipalities, EXCEPT where such
shall be filed with the barangays adjoin each other AND the
office of the parties agree to amicable settlement by an
prosecutor unless appropriate lupon [Sec. 408(f), LGC];
otherwise provided in 5. Accused is under Police custody or
their charters [Sec. detention
1(b), Rule 110]
2. Who May File (Crimes That Cannot
be Prosecuted De Officio)
Effect of Institution
The institution of a criminal action shall
General Rule: Complaint or Information may
interrupt the running of the prescription period
only be filed or dismissed if there is prior written
of the offense charged UNLESS otherwise
authority or approval of the provincial or city
provided in special laws [Sec. 1, Rule 110].
prosecutor or chief state prosecutor or the
Ombudsman or his deputy [Sec. 4, Rule 112,
Falling under the Authority of the Lupon
as amended by A.M. 05-8-26-SC] .
While the dispute is under mediation,
conciliation or arbitration, the prescriptive
Note: Secs. 3 and 4, Rule 110 discuss who
periods shall be interrupted upon the filing of
should subscribe (not file) the complaint or
the complaint with the Punong Barangay
information.
[Sec. 410, LGC].
Exceptions: Crimes that cannot be
Limitation: Interruption shall not exceed 60
prosecuted de oficio [ACSAAD]:
days from filing of complaint with the punong
1. Adultery
barangay [Sec. 410(c), LGC].
2. Concubinage
3. Seduction
The prescriptive periods shall resume upon
4. Abduction
receipt by the complainant:
5. Acts of Lasciviousness
1. of the complaint or
6. Defamation
2. the certificate of repudiation or
3. of the certification to file action issued by the
Rationale
Lupon or Pangkat Secretary
This was imposed out of consideration for the
aggrieved party who might prefer to suffer the
Criminal Cases Required to be Filed with
outrage in silence rather than go through with
Lupon
the scandal of a public trial [People v.
Offenses punishable by imprisonment not
Yparraguirre, G.R. No. 124391 (2000)].
exceeding one (1) year or a fine not exceeding
P5,000 [Sec. 408(c), LGC] and where the

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Seduction, Abduction, Acts of Defamation, which
Lasciviousness consists of imputation
Adultery and Concubinage
of any of the foregoing
offenses
Who Can File
Offended party, it includes:
a. Minors, even independently of those in
item b, except if incompetent or incapable
b. Parents, grandparents, guardian – right to
file shall be exclusive of all other persons
Offended Spouse and shall be exercised successively in this Offended Party
order
c. State – Only if the offended party dies or
becomes incapacitated before she can file
the complaint, and she has no known
parents, grandparents or guardian
Requirements
a. Must include both guilty
parties, if both alive
b. Must not have consented
to the offense or pardoned
The offender must not have been pardoned
the offenders None
by any of a and b in the preceding column
c. Marital relationship must
still be subsisting [Pilapil v.
Ibay-Somera, G.R. No.
80116, (1989)].

1. EVENTS THAT MAY OCCUR AFTER
THE FILING OF THE CASE
a. Death of Offended Party
Death after filing the complaint would not
deprive the court of jurisdiction. The death of
the offended party in private crimes is essential
solely for the initiation of the action. [People v.
Diego, G.R. No. 1626 (1937)].
It is not one of the causes for extinguishment of
criminal liability enumerated in Art. 89 of the
Revised Penal Code.
liability with regard to the interest of the injured
party is extinguished by his express waiver
[Art. 23, RPC]. If there is more than one
accused, the pardon must be extended to all
offenders.
Exception: Seduction, abduction and acts of
lasciviousness shall not be prosecuted if the
offender has been expressly pardoned by the
offended party or her parents, grandparents or
guardian [Art. 344, RPC] [Sec. 5, Rule 110]
When should pardon be done

b. Desistance by Offended Party General Rule: Pardon must be made before

Desistance does not bar the People of the
Philippines from prosecuting the criminal
action, but it operates as a waiver of the right
to pursue civil indemnity [People v. Amaca,
G.R. No. 110129 (1995)].
c. Pardon by Offended Party
General Rule: A pardon by the offended party
does not extinguish criminal action but civil
the filing of the criminal complaint in court
[People v. Bonaagua, G.R. No. 18897 (2011)]
Exception: In rape, marriage between the
offender and the offended party would be
effective as pardon even when the offender
has already commenced serving his sentence
[People v. de Guzman, [G.R. No. 185843
(2010)]

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Pardon Distinguished from Consent and accessories after the fact of the above-
Pardon Consent mentioned crimes [Art. 344, RPC].

Definition Exceptions:
1. Marriage was invalid or contracted in bad
Refers to past acts Refers to future acts
faith to escape criminal liability [People v.
In order to absolve the In order to absolve the Santiago, G.R. No. L-27972 (1927)]
accused from liability, accused from liability, 2. In multiple rape, insofar as the other
it must be extended to it is sufficient even if accused in the other acts of rape
both offenders granted only to the respectively committed by them are
offending spouse concerned [People v. Bernardo (38 O.G.
3479)]
When Given
Given after the Given before the 3. When Criminal Actions are Enjoined
commission of the commission of the
crime but before the crime See When Injunction May Be Issued To
institution of the Restrain Criminal Prosecution, supra.
criminal action
Remedies if the prosecutor refuses to file
In Adultery and Concubinage an information:
May be done Can only be done a. Action for mandamus to compel the
expressly or impliedly expressly prosecutor to charge the accused, in case
of grave abuse of discretion
There is implied b. Lodge a complaint before the court having
pardon when the jurisdiction over the offense;
offended party c. Take up the matter with the Department of
continued to live with Justice under the appropriate administrative
his spouse even after procedure;
the commission of the d. Institute an administrative charge against
offense. There is no the erring prosecutor; and
implied pardon when e. File criminal action against the prosecutor
the wife continues for negligence to prosecute or tolerance of
living in the conjugal the crime [Art 208, RPC] with the
home after her arrest corresponding civil action for damages for
only in order to take failure to render service by a public officer
care of their children [Art 27, NCC]
[Ligtas v. CA, G.R.
No. L-47498 (1987)]. 4. Control of Prosecution
In Seduction, Abduction and Acts of
General Rule: All criminal actions commenced
Lasciviousness
by a complaint or information shall be
Must be expressly Offended party cannot prosecuted under the direction and control
made consent to the crime of the prosecutor.

d. Subsequent Marriage Exception: A private prosecutor may be

authorized in writing by the Chief of the
Prosecution office or the Regional State
General Rule: In cases of seduction,
Prosecutor to prosecute the case subject to the
abduction, acts of lasciviousness and rape,
approval of the court [Sec. 5, Rule 110, as
the marriage of the offender with the offended
amended by A.M. No. 02-2-07-SC (2002)].
party shall extinguish the criminal action or
remit the penalty already imposed upon him,
together with the co-principals, accomplices,
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Conditions for a Private Prosecutor to Exceptions:
Prosecute a Criminal Action: a. When there is denial of due process of law
a. The public prosecutor has heavy work to the prosecution and the State or its
schedule or there is no public prosecutor agents refuse to act on the case to the
assigned in the province or the city prejudice of the State and the private
b. The private prosecutor is authorized in offended party [Cariño v. De Castro, G.R.
writing by the Chief of the Prosecutor office No. 176084 (2008)]; and
or the Regional State Prosecutor b. When the private offended party questions
c. The authority of the private prosecutor was the civil aspect of a decision of a lower court
approved by the Court [Heirs of Delgado v. Gonzalez, G.R. No.
d. The private prosecutor shall continue to 184337 (2009)]
prosecute the case up to the end of the trial
unless the authority is revoked or otherwise Cases Elevated to the Sandiganbayan and
withdrawn. [Sec. 5, Rule 110, A.M. No. 02- the Supreme Court
2-07-SC (2002)] The Office of the Ombudsman, through the
e. In case of withdrawal or revocation of Special Prosecutor, shall represent the People
authority, the same must be approved by of the Philippines, except in cases filed
the court [DOJ Memorandum Circular No. pursuant to EO Nos. 1,2, 14, 14-A as these are
25 (2002)] under the PCGG [Sec. 4, P.D. 1606, as
f. The prosecution of the civil liability has not amended by R.A. 10660].
been reserved or waived.
Extent of Prosecutor’s Control
Rule in Cases Filed before MTCs/MCTCs
Prior to Filing After Filing
When the prosecutor assigned thereto or to the
case is not available, the following may a. Matters which The following matters
prosecute the case: are within the are already within the
a. Offended party control of the control of the court and
b. Any peace officer; or prosecutor no longer within the
c. Public officer charged with the enforcement b. What case to file discretion of the
of the law violated may prosecute the case. c. Whom to prosecutor:
prosecute a. Suspension of
This authority shall cease upon actual d. Manner of arraignment [Sec
intervention of the prosecutor or upon elevation prosecution 1, Rule 116]
of the case to the RTC [OCA Circular No. 39- e. Right to withdraw b. Granting a
02, stating in toto Sec. 5, Rule 110, as information reinvestigation
amended by A.M. No. 02-2-07-SC] before [Levista v.
arraignment even Alameda, G.R. No.
Cases in the Court of Appeals and the without notice 182677 (2010)]
Supreme Court and hearing c. Dismissal of the
[Crespo v. Mogul, case [Crespo v.
General Rule: Only the Solicitor General may G.R. No. L-53373 Mogul, G.R. No. L-
bring or defend actions in behalf of the (1987)] 53373 (1987)]
Republic of the Philippines, or represent the d. Downgrading of
People of the Philippines or State in criminal the offense or
proceedings before the SC and the CA [Cariño dropping of
v. De Castro, G.R. No. 176084 (2008)] Appeals accused before
or petitions for certiorari filed by the private plea [Sec. 14(b),
offended parties, without the consent or Rule 110]
conformity of the OSG, will be dismissed for
lack of legal standing or personality [Austria v. Once a complaint or information is filed in court,
AAA, G.R. No. 205275 (2022)]. any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests
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on the sound discretion of the court. A motion prosecutor or upon elevation of the case to the
to dismiss should be filed with the court, which RTC.
has the option to grant or deny it [Crespo v.
Mogul, G.R. No. L-53373 (1987)] 5. Sufficiency of Complaint or
Information
Limitations on the Court’s Control
a. The prosecution is entitled to notice of Note: The complaint contemplated under Sec.
hearing; 3 differs from the complaint filed in the
b. The court must suspend arraignment, upon prosecutor’s office for purposes of preliminary
motion by the proper party, when a petition investigation.
for review of the resolution of the prosecutor
is pending at either the DOJ, or the OP;
Complaint Information
provided, that the period of suspension shall
not exceed 60 days counted from the filing Definition
of the petition with the reviewing office [Sec.
11(c), Rule 116]; Sworn written statement Accusation in writing,
c. The court must make its own independent charging a person with an charging a person
evaluation or assessment of the merits of offense, subscribed by with an offense,
the case (e.g. on a motion to dismiss the offended party, any subscribed by the
[should be to quash]). Otherwise, there will peace officer or other prosecutor and filed
be a violation of private complainant’s right public officer charged with with the court [Sec.
to due process and erroneous exercise of the enforcement of the 4, Rule 110]
judicial discretion [Martinez v. CA, [G.R. No. law violated [Sec. 3, Rule
L-112387 (1994)]. 110]

Who Subscribes
Effect of Lack of Presence of the Fiscal
Although the private prosecutor had previously Subscribed by: Subscribed by the
been authorized to present the evidence for the a. offended party; prosecutor
prosecution, the absence of the City Fiscal at b. any peace officer; or
the hearing means that the prosecution of the c. other officer charged *Indispensable
case was NOT under the control of the City with the enforcement requirement.
Fiscal; thus, it follows that the evidence of the law violated.
presented by the private prosecutor at said
hearing could not be considered as Where Filed
evidence for the plaintiff [People v. Beriales,
G.R. No. L-39962 (1976)]. May be filed in court or the Filed with the court
prosecutor’s office [Sec.
1, Rule 110]
However, if prosecutor does appear however
intermittently during trial, then the evidence Oath Requirement
presented by the private prosecutor may be
considered [Bravo v. CA, G.R. No. L-48772, Must be “sworn,” hence Requires no oath
(1992)]. under oath
*Fiscal filing the
Note: OCA Circular No. 39-02 [stating in toto information is acting
Sec. 5, Rule 110, as amended by A.M. No. 02- under the oath of his
2-07-SC]: However, in MTCs or MCTCs when office
the prosecutor assigned thereto or to the
case is not available, the offended party,
any peace officer, or public officer charged
with the enforcement of the law violated CONTENT REQUIRED FOR VALIDITY OF
may prosecute the case. This authority shall AN INFORMATION
cease upon actual intervention of the

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A complaint or information is sufficient if it
states the [ADA-ODP]:
a. Name and surname of the Accused; or
any appellation or nickname by which he is
known or had been known
• When an offense is committed by more
than one person, all of them shall be
included in the complaint or information
[Sec. 6, Rule 110]
b. Designation of the offense given by the
statute
c. Acts or Omissions complained of as
constituting the offense
d. Name of the Offended party
e. Approximate Date of the commission of
the offense, and
f. Place where the offense was committed
FORM REQUIRED FOR VALIDITY
a. In writing
b. In the name of the People of the Philippines
c. Against all persons responsible for the
offense involved [Sec. 2, Rule 110]
Test for Sufficiency of the Information
Whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty of the
offense charged [Lazarte v. Sandiganbayan,
G.R. No. 180122 (2009)].
General Rule: A defective information cannot
support a judgment of conviction.
Exception: Where the defect in the information
was cured by evidence during the trial and no
objection appears to have been raised
[Abunado v. People, G.R. No. 159218 (2004)].
Waiver of Objection to Sufficiency
General Rule: An accused is deemed to have
waived his right to assail sufficiency of the
information when he voluntarily entered a plea
during arraignment and participated in the trial
[Frias v. People, G.R. No. 171437 (2007)].
Objections relating to the form of the complaint
or information cannot be made for the first time
on appeal. The accused should move for a bill
of particulars or for quashal of information
before arraignment, otherwise he is deemed to
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have waived his objections to such a defect
[People v. Teodoro, G.R. No. 172372 (2009)]
Exception: When the defect consists in the
lack of authority of the prosecutor who filed the
information, as such defect would be
jurisdictional. [Sec. 9, Rule 117]
a. Name of the Accused
The complaint or information must state the
name and surname of the accused or any
appellation or nickname by which he has been
or is known.
If his name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such name shall be
inserted in the complaint or information and
record. [Sec. 7, Rule 110]
John Doe Informations
When the information does not sufficiently
describe the accused and all are described as
“John Does,” the arrest warrants against them
are void. [Pangandaman v. Casar, G.R. No. L-
71782 (1988)]
Mistake in the Name of the Accused
Mistake does not necessarily amount to a
mistake in the identity of the accused
especially when sufficient evidence is adduced
to show that the accused is pointed to as one
of the perpetrators of the crime. [People v.
Amodia, G.R. No. 173791 (2009)]
b. Designation of Offense
The designation of the offense given by the
statute must be stated in the complaint or
information with the averment of acts or
omissions constituting the offense and the
attendant qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section
or subsection of the statute punishing it. [Sec.
8, Rule 110]
CRIMINAL PROCEDURE
Enough to Describe with Sufficient
Particularity
Specific acts of accused do not have to be
described in detail in the information, as it is
enough that the offense be described with
sufficient particularity to make sure the
accused fully understands what he is being
charged with [Guy v. People, G.R. No. 166794-
96 (2009)].
Note: An accused cannot be tried/convicted
for estafa involving unfaithfulness/abuse of
confidence if the information does not allege
the fiduciary relationship between parties or
the transfer of juridical possession of property
to accused. The mere allegation in the
Information that accused is a subject to a motion to quash under
"secretary/collector" of the complainant does
not create the relationship of confidence and
intimacy required in qualified theft; abuse of
confidence for qualified theft must be grave
[Homol v. People, G.R. No. 191039, (2022)].
Allegations in the complaint prevail:
• Over the designation of the offense: The
facts, acts or omissions alleged and not its
title, determine the nature of the crime. The
designation is only the prosecutor’s
conclusion [People v. Magdowa, G.R. No.
48457 (1941)]
• Over reference to the section or
subsection of the statute punishing the
crime: What is controlling and determines
the nature and character of the crime
charged are the facts alleged in the
information. [Batulanon v. People, G.R. No.
139857 (2006)]
Conviction of a More Serious Crime than
Alleged
General Rule: Accused may be convicted of a
crime more serious than that named in the title
if such crime is covered by the facts alleged in
the body of the information and its commission
is established by evidence [Buhat v. CA, G.R.
No. 119601 (1996)].
Exception: Cannot be convicted under one act
when he is charged with the violation of another
if the change:
• Involves change in the theory of the trial
• Requires a different defense
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• Surprises the accused in any way [US v.
Panlilio, G.R. No. L-9876 (1914)]
Effect of Failure to Question Defect
Failure to question the defect or the
insufficiency of information filed against him
before he enters his plea or goes to trial
constitutes waiver of the constitutional right to
be informed of the nature and cause of charges
filed. [People v. Solar, G.R. No. 225595
(2019)].
1. Any Information which alleges that a
qualifying or aggravating circumstance
is present, must state the ultimate facts
relative to such circumstance.
Otherwise, the Information may be
Section 3 (e) (i.e., that it does not conform
substantially to the prescribed form), Rule
117 of the Revised Rules of Criminal
Procedure, or a motion for a bill of
particulars under the parameters set by
said Rules.
Failure of the accused to avail any of the
said remedies constitutes a waiver of his
right to question the defective statement
of the aggravating or qualifying
circumstance in the Information, and
consequently, the same may be
appreciated against him if proven during
trial.
Alternatively, prosecutors may sufficiently
aver the ultimate facts relative to a
qualifying or aggravating circumstance by
referencing the pertinent portions of the
resolution finding probable cause against
the accused, which resolution should be
attached to the Information in accordance
with the second guideline below.
2. Prosecutors must ensure compliance with
Section 8 (a), Rule 112 of the Revised Rules
on Criminal Procedure that mandates the
attachment to the Information the resolution
finding probable cause against the accused.
Trial courts must ensure that the accused is
furnished a copy of this Decision prior to the
arraignment.
3. Cases which have attained finality prior to
the promulgation of this Decision will remain
final by virtue of the principle of
conclusiveness of judgment.
CRIMINAL PROCEDURE
4. For cases which are still pending before the
trial court, the prosecution, when still able,
may file a motion to amend the Information
pursuant to the prevailing Rules in order to
properly allege the aggravating or qualifying
circumstance pursuant to this Decision.
5. For cases in which a judgment or decision
has already been rendered by the trial court
and is still pending appeal, the case shall be
judged by the appellate court depending on
whether the accused has already waived his
right to question the defective statement of
the aggravating or qualifying circumstance
in the Information, (i.e., whether he
previously filed either a motion to quash
under Section 3 (e), Rule 117, or a motion
for a bill of particulars) pursuant to this
Decision.
An information which lacks certain essential
allegations may still sustain a conviction when
an accused fails to object against its
insufficiency, and the deficiency is cured by
competent evidence [supra].
c. Cause of the Accusation
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated:
a. In ordinary and concise language; and
b. Not necessarily in the language used in the
statute; but
c. In terms sufficient to enable a person of
common understanding to know what
offense is being charged, as well as its
qualifying and aggravating circumstances
[Sec. 9, Rule 110]
Purposes of Requiring Allegation of Every
Element:
1. To enable the court to pronounce proper
judgment
2. To furnish the accused with information as
to enable him to make a defense
3. As a protection against further prosecution
for the same cause
Failure to allege:
• Any of the elements of the offense:
Accused cannot be convicted of the offense
charged, even if the missing elements have
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been proven during trial. Even a plea of
guilty will not cure such defect, nor justify
conviction.
• Qualifying and aggravating
circumstances: They are not considered
even if proven during trial [Viray v. People,
G.R. No. 205180 (2013)]
o If aggravating circumstances were not
alleged, they can still be the basis for
awarding exemplary damages under Art.
2229 (by way of example or correction
for public good) [People v. Dalisay, G.R.
No. 188106 (2009)]
Note: The failure to allege such cannot be
cured by an amendment of the information
after the accused entered his plea [People v.
Antonio, G.R. No. 142727 (2002)].
Rule on Negative Averments
General Rule: Whenever an accused claims to
be within the statutory exception, it is more
logical and convenient that he should aver and
prove the fact than that the prosecutor should
anticipate such defense, and deny it [Cabrera
v. Marcelo, G.R. Nos. 157419-20 (2004)]
Exception: Where the exemptions are so
incorporated in the language defining the crime
that the ingredients of the offense cannot be
accurately and clearly set forth if the exemption
were omitted, the indictment, to be sufficient,
must show that the person charged does not
fall within the exemptions [People v. San Juan,
G.R. No. L-22944 (1968)]
When habitual delinquency is alleged
The information must specify:
a. Date of the commission of the previous
crimes
b. The date of last conviction or release
[People v. Venus, G.R. No. 45141 (1936)]
Where complex crime is charged
Allegations do not necessarily have to charge
a complex crime as defined by law. It is
sufficient that the information contains
allegations which show that one offense was a
necessary means to commit the other [People
v. Alagao, G.R. No. L-20721 (1966)]
CRIMINAL PROCEDURE
Duplicity of the Offense
Duplicity of the offense is the joinder of two or
more separate and distinct offenses in one and
the same information or complaint [Loney v.
People, G.R. No. 152644 (2006)]
General Rule: A complaint or information must
charge only one offense.
Exception: Multiple offenses may be charged
when the law prescribes a single punishment
for various offenses [Sec. 13, Rule 110]:
a. Complex crimes - e.g., Acts committed in
furtherance of rebellion are crimes in
themselves but absorbed in the single crime
of rebellion [Enrile v. Salazar, G.R. No.
92163 (1990)]
Note: No more complexing of quasi-
offenses under Art. 365, RPC. [Ivler v. San-
Pedro, G.R. No. 172716 (2010)]
b. Special complex crimes
c. Continuous crimes (Requisites:)
1. Plurality of acts performed separately
during a period of time
2. Unity of penal provisions violated
3. Unity of criminal intent [People v.
Ledesma, G.R. No. L-41522 (1976)]
d. Crimes susceptible of being committed in
various modes
1. The allegations in the information would
be regarded as a description of only one
offense and information is not rendered
defective [Jurado v. Suy Yan, G.R. No.
L-20714 (1971)]
e. Crimes of which another offense is an
ingredient
f. When a single act violates different statutes
[Loney v. People, G.R. No. 152644 (2006)]
Remedy to Duplicity of Offense
Accused must move for the quashal of the
information before arraignment. [Sec. 1 and 3,
Rule 117]
Failure to File Motion to Quash
Accused is deemed to have waived the
objection and may be convicted of as many
offenses are charged and proved. [Sec. 3, Rule
120]
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d. Name of the Offended Party
The complaint or information must state the
name and surname of the person against
whom or against whose property the offense
was committed, or any appellation or nickname
by which such person has been or is known. If
there is no better way of identifying him, he
must be described under a fictitious name.
a. In crimes against property, if the name of
the offended party is unknown, the property
must be described with such particularity as
to properly identify the offense charged
b. If the true name of the person against whom
or against whose property the offense was
committed is thereafter disclosed or
ascertained, the court must cause such true
name to be inserted in the complaint or
information and the record
c. If the offended party is a juridical person, it
is sufficient to state its name, or any name
or designation by which it is known or may
be identified, without need of averring that it
is a juridical person. [Sec. 12, Rule 110]
e. Date of Commission
General Rule: It is not necessary to state the
precise date the offense was committed. The
offense may be alleged to have been
committed on a date as near as possible to
the actual date of the commission.
Exception: When it is an essential element of
the offense (e.g., abortion, bigamy) [Sec. 11,
Rule 110]
Variance in alleged date from proven in trial
General rule: Allegation in an information of a
date different from the one established during
trial is not fatal to the prosecution. It is just
deemed supplanted by evidence presented
during trial or may even be corrected by a
formal amendment of the information.
Exception: Fatal when discrepancy is so great
that it induces the perception that the
information and the evidence are no longer
pertaining to one and the same offense. The
defective allegation in the information is struck
down for violating the right of the accused to be
informed [People v. Delfin, G.R. No. 201572
CRIMINAL PROCEDURE REMEDIAL LAW
(2014)] While failure of an information to Formal Substantial
specify the exact date/time of the alleged rape Amendment Amendment
is not ipso facto defective, an information that
alleges that the rape occurred sometime and which, therefore [Teehankee v.
between a span of years (1995-1999 in this adds nothing Madayag, G.R. No.
case) is subject to quashal. [People v. XXX, essential for 103102 (1992)]
G.R. No. 231386, (2022)]. conviction for the
crime charged
f. Place of Commission [Gabionza v. CA,
G.R. No. 140311
General Rule: The complaint or information is (2001)]
sufficient if it can be understood from its When Amendment Should be Made
allegations that the offense was committed or
some of its essential ingredients occurred at Before Plea or Arraignment
some place within the jurisdiction of the court.
General Rule: Any formal or substantial
Exception: If the particular place where it was amendment, made before the accused
committed constitutes an essential element of enters his plea may be done without leave of
the offense charged or is necessary for its court [Sec. 14, Rule 110]
identification [Sec. 10, Rule 110].
Exception: If the amendment downgrades
the nature of the offense charged in, or
6. Amendment or Substitution of excludes any accused from, the
Complaint or Information complaint/information, it can be made only
a. Upon motion of the prosecutor
Amendment b. With notice to the offended party and
A change in either the form or substance of the c. With leave of court
same offense in the Information. It is not a new
charge; it just supersedes the original After plea and during trial
Information but relates back to the date at Amendment as to General Rule:
which the original information was filed form can only be a. Amendment as to
[Teehankee Jr. v. Madayag, G.R. No. 103102 made under two substance at this
(1992)] conditions: stage of the case is
a. With leave of proscribed [People
Not all defects in an information may be cured court; and v. Zulueta, G.R. No.
by an amendment. An Information which is void b. It does not cause L-4017 (1951)]
ab initio cannot be amended to obviate a prejudice to the since it violates the
ground for quashal. An amendment which rights of the right to be informed
operates to vest jurisdiction is impermissible accused [Sec 14, of the nature and
[Leviste v. Alameda G.R. No. 182677 (2010)] Rule 110] cause of the
accusation during
Kinds of Amendment his plea [Buhat v.
Formal Substantial People, G.R. No.
Amendment Amendment 119601 (1996)]
b. It violates the rule on
Definition double jeopardy.

This merely states This consists of the Exception:

with additional recital of facts Amendment may be
precision something constituting the offense allowed if it is beneficial
which is already charged and to the accused, [People
contained in the determinative of the v. Janairo, G.R. No.
original information, jurisdiction of the court 129254 (2007)]
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Test Whether an Amendment is Formal
Whether or not a defense under the original
information would be equally available after the
amendment and whether or not any evidence
the accused might have would be equally
applicable in one form as in the other [People
v. Degamo, G.R. No. 121211 (2003), citing
Teehankee v. Madayag, G.R. No. 103102
(1992)].
SUBSTITUTION OF INFORMATION
When it becomes manifest at any time before
judgment that a mistake has been made in
charging the proper offense and the accused
cannot be convicted of the offense charged or
any other offense necessarily included therein,
the accused shall not be discharged if there
REMEDIAL LAW
appears good cause to detain him. In such
case, the court shall commit the accused to
answer for the proper offense and dismiss the
original case upon the filing of the proper
information. [Sec. 19, Rule 119, ROC].
Limitations of Substitution
a. At any time before judgment [Sec. 14, Rule
110]
b. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein [Sec. 19, Rule
119]
c. The accused would not be placed in double
jeopardy [Sec. 14, Rule 110]

Amendment and Substitution Distinguished

Amendment Substitution

The same attempted, frustrated,

Applicability Involves different offense
necessarily includes or included offense

Scope Formal or substantial changes Substantial changes

Amendment before plea has been

Necessity of
entered Can be effected without leave of Must be with leave of court
leave of court
court

Necessity of
When amendment is Only as to form, no Another PI is entailed and accused
new PI and
need for another PI and retaking of plea has to plead anew
plea

The amended information refers to the

Involves a different offense which
same offense charged in the original
Offense does not include those provided in the
information or to an offense which is
involved original charge; cannot invoke double
included in the original charge; can
jeopardy
invoke double jeopardy

Cannot be invoked. Substitution

Double Can be invoked only if the new presupposes that the new information
jeopardy as information is a substantial amendment involves a different offense which
Defense and it was done after the plea does not include or is not included in
the original charge.
[Teehankee Jr. v. Madayag, G.R. No. 103102, (1992)]

Variance between Allegation and Proof

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Variance Consequence Variance Consequence

When the offense The accused will be INCLUDED/INCLUDE [Sec. 14, Rule 110]
proved is LESS than convicted of the S the offense charged
the offense charged offense proved
[Sec. 4, Rule 120]
7. Venue of Criminal Actions
When the offense The accused will be
proved is GREATER convicted of the General Rule: Venue is criminal cases is
than the offense offense charged jurisdictional. In all criminal prosecutions, the
charged [Sec. 4, Rule 120] action must be instituted and tried in the courts
of the municipality or territory where:
When the offense The case should be a. The offense was committed, or
proved is dismissed and a new b. Any of its essential ingredients occurred
DIFFERENT and Information should be [Sec. 15(a), Rule 110].
NOT NECESSARILY filed, charging the
proper offense.

Exceptions to Venue of Criminal Actions:

Crime Venue

Felonies under Art. 2, RPC Proper court where criminal action was first filed [Sec. 15, Rule 110]

Those committed on a In the court of any municipality or territory where such train, aircraft,
railroad train, aircraft, or any or other vehicle passed during its trip, including place of departure
other public or private and arrival [Sec. 15, Rule 110]
vehicle in the court of its trip

Those committed on board a In the proper court of the first port of entry or of any municipality or
vessel in the course of its territory through which such vessel passed during its voyage, subject
voyage to the generally accepted principles of international law [Sec. 15,
Rule 110]

Piracy, which has no May be instituted anywhere [People v. Lol-lo and Saraw, G.R. No.
territorial limits 17958 (1922)]

Libel If one of the offended parties is a private individual:

a. Where the libelous article is printed and first published, or
b. Where said individual actually resides

If one of the offended parties is a public official:

a. Where the official holds office at the time of the commission of the
offense
1. If the office is in Manila, then CFI Manila
2. If the office is any other city or province, then file where he
holds office
b. Where the libelous article is printed and first published

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Crime Venue

Note: If the defamatory statement is alleged to have been made

through radio or TV broadcasts, the private offended may file the
criminal or civil action in the RTC of the province or city of:
a. Where the radio or television station where the broadcast of the
libelous statement originated
b. Where said individual resided at the time the radio or televised
broadcast was made [Tieng v. Palacio-Alaras, G.R. No. 164845
(2021)].

Note: The same measure cannot be reasonably expected when it

pertains to defamatory material appearing on a website on the
internet as there would be no way of determining the situs of its
printing and first publication. Chaos would ensue in situations
where the website's author or writer, a blogger or anyone who
posts messages therein could be sued for libel anywhere in the
Philippines that the private complainant may have allegedly
accessed the offending website [Bonifacio v. RTC of Makati, G.R.
No. 184800, (2010)]

Cases filed under B.P. 22 May be filed in the place where the check was dishonored or issued.
In the case of a cross-check, in the place of the depositary or
collecting bank [People v. Grospe, G.R. No. L-74053-54, (1988)]

Illegal recruitment cases The victim has the option to file the case in his place of residence or
(R.A. 8042 or Migrant in the place where the crime was committed [Sto Tomas v. Salac
Workers Act) G.R. No. 152642 (2012)]

Violations of RA 10175 RTCs have jurisdiction over any violation of the provisions of the Act,
(Cybercrime Prevention Act including any violation committed by a Filipino national regardless of
of 2012) the place of commission [Sec. 21]

In exceptional SC has the power to order a change of venue or place of trial to avoid
circumstances to ensure a miscarriage of justice [Sec. 5(4), Art. VII, Constitution]
fair trial and impartial inquiry

Transitory or continuing The courts of the territories where the essential ingredients of the
offenses crime took place have concurrent jurisdiction. The first court taking
cognizance of the case will exclude the others [People v. Grospe,
G.R. No. L-74053 (1988)]

False testimony and perjury When the crime is committed through false testimony under oath in
a proceeding that is neither criminal nor civil, venue is at the place
where the testimony under oath is given.

If the false statement is in the Certification Against Forum

Shopping, the venue is the place of execution.

If the false statement is in a verified pleading, the venue is the place

where pleading was submitted.

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Crime Venue

If the false statement is in an affidavit, generally the venue is the

place of execution.

If the affidavit were executed for purpose of giving testimony (such

as judicial affidavit), place where testimony under oath is given.

If in lieu of or as supplement to the actual testimony made in a

proceeding that is neither criminal nor civil, a written sworn statement
is submitted, venue may either be at the place where the sworn
statement is submitted or where the oath was taken as the taking of
the oath and the submission are both material ingredients of the
crime committed.

In all cases, determination of venue shall be based on the acts

alleged in the Information to be constitutive of the crime committed.
[Union Bank v. People, G.R. No. 192565 (2012)]

Perjury charges may lie in the place where the false statement is
made, under Sec. 10(a), Rule 110 in relation to Villanueva v.
Secretary of Justice. [Sy Tiong Shiou v. Sy Chim, G.R. No. 174168
(2009)]

8. Intervention of Offended Party 3. Already instituted such action

[Rodriguez v. Ponferrada, G.R. No.
General Rule: An offended party has the right 155531-34 (2005)]
to intervene in the prosecution of a crime,
where the civil action for recovery of civil B. Prosecution of Civil Action
liability is instituted in the criminal action [Sec.
16, Rule 110]
(Rule 111)

Note: Regardless of the intervention, the 1. Rule on Implied Institution of

prosecution of the case is still subject to the
control of the prosecutor [Ricarze v. People,
G.R. No. 160451 (2007)]
Exceptions:
a. Where, from the nature of the crime and the
law defining and punishing it, no civil
liability arises in favor of a private
offended party (e.g. treason, rebellion,
espionage and contempt) [Rodriguez v.
Ponferrada, G.R. No. 155531-34 (2005)]
b. Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
1. Waived the same or
2. Expressly reserved his right to institute
a separate civil action or
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Civil Action with Criminal Action
General Rule: The civil action for the recovery
of civil liability arising from the offense charged
is deemed instituted with the criminal
action. [Sec. 3, Rule 111]
Exception: When the offended party:
a. Waives the civil action
b. Reserves the right to institute it separately
before the prosecution presents its
evidence
c. Institutes the civil action prior to the
criminal action; [Sec. 1, Rule 111]
d. All civil actions based on Articles 32, 33,
34 and 2176 of the Civil Code are NOT
"deemed instituted," and may be filed
separately and prosecuted
CRIMINAL PROCEDURE
independently even without any
reservation in the criminal action
[Casupanan v. Laroya, G.R. No. 145391,
(2002)]
Civil Liability of Employer in a Criminal
Action
At most, the employer can only be held
subsidiarily liable for the delict committed by
his employee. [Art. 102, 103, RPC] The
employer cannot be held vicariously liable,
under Art. 2180, in the criminal action.
[Maniago v. CA, G.R. No. 101809 (1996)]
2. When Civil Action May
Proceed Independently
a. Independent Civil Actions
Independent civil actions those that are
separate and distinct from and shall proceed
independently of the criminal action. Only a
preponderance of evidence shall be required in
such cases: [Sec. 3, Rule 111]
a. When the accused in a criminal prosecution
is acquitted on the ground that his guilt has
not been proved beyond reasonable doubt,
a civil action for damages for the same act
or omission may be instituted [Art 29, NCC]
b. Cases involving violation of constitutional
rights, defamation, fraud, physical injuries,
refusal or failure to render aid or protection
by the members of the police or the
prosecuting attorney, quasi-delict) [Sec. 3,
Rule 111] [Art. 32, 33, 34, 35 and 2176,
NCC]
Prohibition on Double Recovery
In no case may the offended party recover
damages TWICE for the same act or omission
charged in the criminal action. [Sec. 3, Rule
111]
Note: The judgment of the court must state the
civil liability or damages to be recovered by the
offended party from the accused, if any,
EXCEPT, when enforcement of civil liability by
a separate civil action has been reserved or
waived [Sec. 2, Rule 120, ROC].
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b. Reservation of Right to File Civil
Action
When Reservation Shall be Made
1. Before the prosecution starts to present its
evidence, and
2. Under circumstances affording the offended
party a reasonable opportunity to make
such reservation. [Sec. 1(2), Rule 111]
Note: Failure of the court to adjudge as to civil
liability amounts to the reservation of the right
to a separate civil action.
Effect of Reservation of Right
The prescriptive period of the civil action that
was reserved shall be tolled. [Sec. 2, Rule 111]
When Reservation to File Separately Not
Allowed
1. B.P. 22 cases [Sec. 1(b), Rule 111]
Note: Nothing in this rule prohibits the
reservation of a separate civil action against
the juridical person on whose behalf the check
was issued. What the rules prohibit is the
reservation of a separate civil action against
the natural person violation B.P. Blg. 22,
including such corporate officer who had
signed the bounced check. [Gosiaco v. Ching,
G.R. No. 173807 (2009)]
While the issuance of a bouncing check may
result in two separate and distinct crimes of
estafa and violation of BP 22, in prosecutions
for estafa, the offended party may reserve the
right to file a separate civil action, but this is
prohibited in claims arising from BP 22. [Heirs
of Simon v. Chan, G.R. No. 157547 (2011)]
2. Cases cognizable by the Sandiganbayan
[Sec. 4, P.D. 1606, as amended by R.A.
10660]
3. Tax cases [Sec. 7(b)(1), RA 9282]
Note: In such cases, only the civil liability
arising from the crime charged (cause of action
arising from the delict) is deemed instituted.
[Sarmiento v. CA, G.R. No. 122502 (2002)]
CRIMINAL PROCEDURE
c. Separate Action Filed by the
Accused
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action [Sec. 1, Rule
111].
3. When Separate Civil Action is
Suspended
When the Civil Action is Filed before the
Criminal Action
General Rule: If the civil action is instituted
before the institution of the criminal action,
such pending civil action, in whatever stage it
may be found, shall be suspended until final
judgment of the criminal action has been
rendered. [Sec. 1, Rule 111]
Exceptions:
a. In cases of independent civil actions
b. In cases where the civil action presents a
prejudicial question
c. Where the civil action is not one intended to
enforce the civil liability arising from the
offense
Note: Rules preclude a motu proprio
suspension by the judge of the civil action; it
must be by petition of the defendant [Yap v.
Paras, G.R. No. 101236 (1992)]
Consolidation of Civil with Criminal Action
Before judgment on the merits is rendered in
the civil action, such may be consolidated with
the criminal action in the court trying the
criminal action, upon motion of the offended
party. The evidence already adduced in the
civil action will be automatically reproduced in
the criminal action [Sec. 2, Rule 111].
Note: There can also be no motu proprio
consolidation. It must be upon motion of the
offended party.
When Criminal Action Filed before
After the criminal action has been commenced,
the separate civil action arising therefrom
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cannot be instituted until final judgment has
been entered in the criminal action [Sec. 1,
Rule 111].
4. Effect of Death of the Accused
or Convicted On Civil Action
Before Arraignment
The criminal case shall be dismissed
without prejudice to any civil action that the
offended party may file against the estate of
the deceased [Sec. 4, Rule 111]
After Arraignment and during Pendency
of the Criminal Action
The civil liability is extinguished. But,
a. An independent civil action enforcing
liabilities under Art. 32, 33, 34, 35 and 2176
may be continued against the estate or legal
representative of the accused, after proper
substitution.
b. If the civil action has been reserved and
subsequently filed, the civil action shall
proceed after substitution of parties. [Sec. 4,
Rule 111].
During Appeal
Civil and criminal liabilities are extinguished
[People v. Alison, G.R. No. L-30612 (1983)]
Note: Only civil liability ex delicto is
extinguished. A separate civil action may be
instituted based on other sources of civil
liability [People v. Culas, G.R. No. 211166
(2017)].
After Judgment
The civil liability is not extinguished. Claims
shall be filed against the estate of the
accused under Rule 86 of the ROC [Sec. 5,
Rule 86].
CRIMINAL PROCEDURE
5. Prejudicial Question
Definition
One which arises in a case, where the
resolution of which is a logical antecedent of
the issue involved therein and the
cognizance of which pertains to another
tribunal [People v. Consing, G.R. No.
148193 (2003)].
There is a prejudicial question only when the
matter that has to be priorly decided by
another authority is one where the
cognizance of which pertains to that
authority and should not, under the
circumstances, be passed upon by the court
trying the criminal case [Rojas v. People,
G.R. No. L-22237 (1974)].
It is a question based on a fact distinct and
separate from the crime but so intimately
connected with it that it determines the
guilt or innocence of the accused [Ras v.
Rasul, G.R. No. L-50411 (1980)].
Elements
a. The previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the subsequent
criminal action.
b. The resolution of such issue determines
whether or not the criminal action may
proceed. [Sec. 7, Rule 111]
Effect
Suspension of the criminal action [Sec. 6,
Rule 111]
It does not prescribe the dismissal of the
criminal action [Yap v. Paras, G.R. No.
101236, (1992)]
Where Filed
A petition for suspension of criminal
action based upon the pendency of a
prejudicial question in a civil action is filed
in either:
a. Office of the prosecutor (in the PI stage);
b. Court conducting the PI; or
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c. Court where criminal action has been filed
for trial, at any time before the prosecution
rests. [Sec. 6, Rule 111]
Rationale
To avoid two conflicting decisions in the civil
case and in the criminal case [Sy Thiong
Shiou v. Sy Chim, G.R. No. 174168 (2009)].
Example
The nullity and forgery of the prior deed of
sale is based on the very same facts which
would be necessarily determinative of the
accused’s guilt or innocence in the case for
estafa. If the first alleged sale is void or
fictitious, then there would have been no
double sale and the accused would be
declared innocent [Ras v. Rasul, G.R. No.
50411 (1980)]
Prejudicial question where administrative
and criminal cases, but no civil case,
involved
In San Miguel Properties, Inc. v. Perez [G.R.
No. 166836 (2013)] the SC held that the
administrative case before the HLURB case
raises a prejudicial question that sufficed to
suspend the criminal proceedings since the
action before the HLURB was “civil in nature”
and could not be instituted elsewhere except in
the HLURB whose jurisdiction over the action
was exclusive and original.
6. Rule on Filing Fees in Civil
Action Deemed Instituted With
the Criminal Action
General Rule:
a. Actual Damages - no filing fees required
b. Moral, exemplary, nominal, temperate
damages:
1. If amount is specified in the
complaint/information - the
corresponding filing fees shall be paid by
the offended party upon the filing thereof
in court.
2. If amount is not specified in the
complaint/information, the filing fees
shall constitute a first lien on the
 CRIMINAL PROCEDURE
judgment awarding such damages [Sec.
1, Rule 111]
Exceptions:
a. Violations for B.P.22
1. The offended party shall pay in full the
filing fees based on the amount of the
check involved, which shall be
considered as the actual damages
claimed.
2. Where the complaint or information also
seeks to recover liquidated, moral,
nominal, temperate or exemplary
damages, the offended party shall pay
additional filing fees based on the
amounts alleged therein.
3. If the amounts are not so alleged but any
of these damages are subsequently
awarded by the court, the filing fees
based on the amount awarded shall
constitute a first lien on the judgment.
[Sec. 1, Rule 111]
b. Estafa – offended party shall pay in full the
filing fees based on the amount involved
[See Sec. 20, Rule 141]
REMEDIAL LAW
2. This is a substantive Drilon, G.R. No.
right. To deny the 96080 (1991)].
accused’s claim to a PI
would be to deprive him
of the full measure of his
right to due process
[Duterte v.
Sandiganbayan, G.R.
No. 130191 (1998)].
Who Determines Probable Cause
This is an executive function that the courts
cannot interfere with in the absence of grave
abuse of discretion. [Salapuddin v. Court of
Appeals, G.R. No. 184681 (2013)]. A
prosecutor cannot then be compelled by
mandamus to file a case against an alleged
criminal, except when such prosecutor acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction [Hegerty v. CA,
409 SCRA 285 (2003)].
Statutory Basis of the Right to
Preliminary Investigation

This is NOT a constitutional right; rather, the

D. Preliminary Investigation right thereto is of statutory character and
(Rule 112) may be invoked only when specifically
created by statute. It is not a fundamental
1. Nature of Right right and may be waived expressly or by
silence [Marinas v. Siochi, G.R. Nos. L-
Definition 25707 (1981)].
An inquiry or proceeding to determine
whether there is sufficient ground to Waiver of Right
engender a well-founded belief that a crime The right to PI is a personal right which the
has been committed and the respondent is accused may waive either expressly or by
probably guilty thereof, and should be held implication but at all times must be
for trial [Sec. 1, Rule 112, as amended by unequivocal. The waiver, whether express or
A.M. No. 05-8-26-SC]. implied, must be in a clear and unequivocal
manner [Larranaga v. CA. G.R. No. 130644
What it is What it is not (1998)].

1. Merely inquisitorial, and Not a trial of the Mere failure of a defendant and/or his counsel
it is often the only case on the to appear during PI cannot be construed as a
means of discovering merits” and does waiver [Larranaga v. CA, G.R. No. 130644
the persons who may not place the (1998)].
reasonably be charged persons against
with a crime, to enable whom it is taken When the accused waives his right to PI, the
the prosecutor to in jeopardy fiscal may forthwith file the corresponding
prepare his complaint or [Paderanga v. information with the proper court [People v.
information. Perez, G.R. No. L-15231 (1960)].

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An application for or admission to bail shall not
bar the accused from assailing the regularity or
questioning the absence of a PI of the charge
against him provided that he raises the
challenge before entering his plea [Sec. 26,
Rule 114]
When Right Deemed Waived [W-FI-ANG]
a. Express Waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)]
b. Failure to Invoke it during arraignment
[People v. De Asis, G.R. No. 105581
(1993)]; and
c. Consenting to be Arraigned and entering a
plea of Not Guilty without invoking the right
to PI [People v. Bulosan, G.R. No. L-58404
(1988)]
The right cannot be raised for the first time on
appeal [Pilapil v. Sandiganbayan, G.R. No.
101978 (1993)].
When Right Not Deemed Waived
a. Failure to appear before the prosecutor
during the clarificatory hearing or when
summoned, when the right was invoked at
the start of the proceeding [Larranaga v.
CA, G.R. No. 130644 (1998)]; or
b. When the accused filed an application for
bail and was arraigned over his objection
and the accused demanded that PI be
conducted [Go v. CA, G.R. No. 101837
(1992)]
2. Purposes of Preliminary
Investigation
The following are the specific purposes of
preliminary investigation [IPA]:
a. To Inquire concerning the commission of a
crime and the connection of the accused
with it. This is so that:
1. the accused may be informed of the
nature and character of the crime
charged against him, and,
2. if there is probable cause for believing
him guilty, that the State may take the
necessary steps to bring him to trial;
b. To Preserve the evidence and keep the
witnesses within the control of the State;
and
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c. To determine the Amount of bail, if the
offense is bailable. [Callo-Claridad v.
Esteban, G.R. No. 191567 (2013)]
3. Who May Conduct
Determination of Existence of
Probable Cause
Probable Cause
Probable cause pertains to facts and
circumstances sufficient to support a well-
founded belief that a crime has been
committed and the accused is probably guilty
thereof. [Shu v. Dee, G.R. No. 182573 (2014)]
Quantum of Evidence
The quantum of evidence now required in PI is
such evidence sufficient to “engender a well-
founded belief” as to the fact of the commission
of a crime and the respondent's probable guilt
thereof. A PI is not the occasion for the full and
exhaustive display of the parties’ evidence.
[Estrada v. Ombudsman, G.R. No. 212140
(2015)]
Prosecutors must ensure the existence of a
prima facie case and a reasonable certainty of
conviction based on available documents,
witness/es, real evidence and the like. Prima
facie evidence is such status of evidence
which on its own and if left uncontroverted, is
sufficient to establish all the elements of a
crime [Sec. 2, DOJ Circular No. 20, 31 March
2023].
Hearsay evidence is admissible during PI [De
Lima v. Guerrero, G.R. No. 229781 (2017),
citing Estrada v. Ombudsman, G.R. No.
212140 (2015)]
Who May Conduct Preliminary
Investigation
As Provided by As Provided by Law
the Rules of
Court
a. Provincial/city a. COMELEC: over all
prosecutors and election offenses
their assistants punishable under the
Omnibus Election
Code. [Sec. 2(6), Art.
CRIMINAL PROCEDURE REMEDIAL LAW

As Provided by As Provided by Law Executive Judicial

the Rules of Determinatio Determinatio
Court n n

b. National and IX-C, Constitution; Sec. Made by Prosecutor Judge

regional state 265, BP881 (Omnibus whom
prosecutors Election Code), as
c. Other officers amended by Sec. 43, Determination Determination
as may be RA 9369] of PC to hold a of PC for the
authorized by law b. Ombudsman over person for trial arrest of the
[Sec. 2, Rule 112, cases public officers [Sec. 1, Rule accused
Purpose
as amended by and employees [Sec. 112, as [Baltazar v.
A.M. No. 05-8-26- 15[1], RA 6770 amended by People, G.R.
SC] (Ombudsman Act of A.M. No. 05-8- No. 174016
1989)] 26-SC] (2008)]
c. Presidential
Commission on Good Sufficient Set of facts
Governance with ground to and
assistance of the OSG: engender a circumstances
over cases investigated well-founded which would
by it) [EO14, (1986)] belief that a lead a
crime has reasonably
been discreet and
Executive vs. Judicial Determination of committed, prudent man to
Probable Cause and that the believe that
Executive Judicial respondent is the offense
Determinatio Determinatio probably charged in
n n guilty thereof the
and should Information
Standard
Ascertains To ascertain be held for or any
whether a whether a trial [Sec. 1, offense
criminal case warrant of Rule 112, as included
must be filed arrest should amended by therein has
in court. The be issued A.M. No. 05-8- been
public against the 26-SC] committed by
prosecutor is accused [Sec. the person
given a broad 2, Art. III, sought to be
discretion to Constitution] arrested
determine [Baltazar v.
whether People, G.R.
Nature probable No. 174016
cause exists (2008)]
and to charge
those whom Determination of Probable Cause Made by
he believes to the Ombudsman
have The Ombudsman is authorized to conduct PI
committed the and to prosecute all criminal cases involving
crime. [People public officers and employees, not only those
v. Borje, Jr., within the jurisdiction of the Sandiganbayan,
G.R. No. but also those within the jurisdiction of regular
170046 courts as well [Uy v. Sandiganbayan, G.R. No.
(2014)] 105965-70 (2001)]
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 CRIMINAL PROCEDURE
A person under PI by the Ombudsman is
entitled to file a motion for reconsideration of
the adverse resolution, under Sec. 7 of the
Rules of Procedure of the Ombudsman. To
deny the accused of his right to file a motion for
reconsideration would also deprive him of his
right to a full preliminary investigation [Sales v.
Sandiganbayan, G.R. No. 143802 (2001)]
Procedure for Preliminary Investigation
Filing of the complaint, which
a. Shall state the address of the
respondent
b. Shall be accompanied by the
affidavits of the complainant and his
witnesses, and other supporting documents
to establish probable cause. The affidavits
shall be subscribed and sworn to before any
prosecutor or government official authorized
to administer oath or if absent or unavailable,
before a notary public, each of whom must
certify that he personally examined the
affiants and that he is satisfied that they
voluntarily executed and understood their
affidavits.
c. Shall be in such number of copies as
there are respondents, plus 2 copies for the
official file [Sec. 3(a), Rule 112, as amended
by A.M. No. 05-8-26-SC]
↓ other documents or from the expiration of the
Action of the investigating officer
a. Within 10 days after the filing of the
complaint, the investigating officer shall
either:
1. Dismiss the complaint, if he finds no ground
to continue the investigation; or
2. Issue a subpoena to the respondent,
attaching the complaint and supporting
affidavits and documents [Sec. 3(b), Rule
112, as amended by A.M. No. 05-8-26-SC].
Respondent has the right to examine the
evidence submitted by complainant which he
may not have furnished and to copy
evidence at his expense [Sec. 3(b), Rule
112, as amended by A.M. No. 05-8-26-SC].
↓ Procedure of the Office of the Ombudsman
Respondent’s counter-affidavit
It must be made within ten (10) days from
receipt of subpoena with the complaint and
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must comply with the same requirements as
a complaint. Respondent is not allowed to
file a motion to dismiss in lieu of counter-
affidavit [Sec. 3(c), Rule 112, as amended by
A.M. No. 05-8-26-SC].
If the respondent cannot be subpoenaed, or
if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the
investigating officer shall resolve the
complaint based on the evidence presented
by the complainant [Sec. 3(d), Rule 112, as
amended by A.M. No. 05-8-26-SC] This
situation would have the effect of an ex-parte
investigation [Riano 210, 2016 Ed.].
↓
Clarificatory hearing
The investigating officer may set a hearing if
there are facts and issues to be clarified from
a party or a witness. The parties can be
present at the hearing but without the right to
examine or cross-examine. They may,
however, submit to the investigating officer
questions which may be asked to the party
or witness concerned [Sec. 3(e), Rule 112,
as amended by A.M. No. 05-8-26-SC].
The hearing shall be held within 10 days from
submission of the counter-affidavits and
period for their submission. It shall be
terminated within five (5) days [Sec. 3(e),
Rule 112, as amended by A.M. No. 05-8-26-
SC].
↓
Determination
Within ten (10) days after the investigation,
the investigating officer shall determine
whether or not there is sufficient ground to
hold the respondent for trial [Sec. 3(f), Rule
112, as amended by A.M. No. 05-8-26-SC].
Note: Not receiving a copy of affidavits of a co-
respondent does not deny a respondent his
right to due process, since the Rules of
only require that a respondent be furnished a
copy of the complainant’s affidavit and other
supporting documents. In addition, the the
constitutional right of an accused to confront
CRIMINAL PROCEDURE
the witnesses against him does not apply to
preliminary investigation. [Estrada v.
Ombudsman, G.R. No. 212140-41 (2015)]
4. Resolution of the
Investigating Prosecutor
Updated rules as of 13 Feb 2023:
No case shall be filed with the First Level
Courts if there is no reasonable certainty of
conviction for the same. (Sec. 9, DOJ Circular
No. 16, 20 Feb 2023)
There is reasonable certainty of conviction
when a prima facie case exists based on the
evidence-at-hand including
but not limited to witnesses, documentary
evidence, real evidence, and the like, and such
evidence, on its own and if left uncontroverted
by accused, shall be sufficient to establish all
the elements of the crime or offense charged,
and consequently warrant
a conviction beyond reasonable doubt. (Sec. 2,
DOJ Circular No. 16, 20 Feb 2023)
Updated rules as of 31 March 2023:
Prosecutors must ensure the existence of a
prima facie case and a reasonable certainty of
conviction based on available documents,
witness/es, real evidence and the like. Prima
facie evidence is such status of evidence which
on its own and if left uncontroverted, is
sufficient to establish all the elements of a
crime.
(Sec. 2, DOJ Circular No. 20, 31 March 2023)
Appeal to Secretary of Justice
The resolution of the Chief State Prosecutor,
Regional State Prosecutor and Provincial/City
Prosecutors may be appealed before the
Secretary of Justice within 15 days from receipt
of the resolution, or of the denial of the motion
for reconsideration/reinvestigation. This is
done through a verified petition for review
[Secs. 2-4, DOJ Circular No. 70 (2000)].
Unless the Secretary of Justice directs
otherwise, the appeal shall not hold the filing of
the corresponding information in court on the
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basis of the finding of probable cause in the
appealed resolution [Sec. 9, supra]
The appellant and trial prosecutor shall see to
it that, pending resolution of the appeal, the
proceedings in court are held in abeyance
[supra].
General Rule: All petitions for review of
resolutions of Provincial/City Prosecutors in
cases cognizable by the MTC, MeTC, MCTC
shall be filed with the Regional State
Prosecutor.
Affirmed in Porto v. GITT, G.R. No. 257446, 12
October 2022. No further appeals to OSJ from
RSP.
Exception: Cases in NCR. [DOJ Department
Circular No. 70-A (2000)]
The Secretary of Justice may review
resolutions of the Regional State Prosecutors
in appealed cases [supra].
5. Review
A reading of the foregoing provisions [of DOJ
Circular No. 70 and 70-A) shows that the
prevailing appeals process in the NPS with
regard to complaints subject of preliminary
investigation would depend on two factors,
namely: where the complaint was filed, i.e.,
whether in the NCR or in the provinces; and
which court has original jurisdiction over the
case, i.e., whether or not it is cognizable by the
MTCs/MeTCs/MCTCs. Thus, the rule shall be
as follows:
(a) If the complaint is filed outside the NCR and
is cognizable by the MTCs/MeTCs/MCTCs, the
ruling of the OPP may be appealable by way of
petition for review before the ORSP, which
ruling shall be with finality;
(b) If the complaint is filed outside the NCR and
is not cognizable by the MTCs/MeTCs/MCTCs,
the ruling of the OPP may be appealable by
way of petition for review before SOJ, which
ruling shall be with finality;
(c) If the complaint is filed within the NCR and
is cognizable by the MTCs/MeTCs/MCTCs, the
ruling of the OCP may be appealable by way of
CRIMINAL PROCEDURE
petition for review before the Prosecutor
General, whose ruling shall be with finality;
(d) If the complaint is filed within the NCR and
is not cognizable by the MTCs/MeTCs/MCTCs,
the ruling of the OCP may be appealable by
way of petition for review before the SOJ,
whose ruling shall be with finality;
(e) Provided, that in instances covered by (a)
and (c), the SOJ may, pursuant to his power of
control and supervision over the entire National
Prosecution Service, review, modify, or reverse
the ruling of the ORSP or the Prosecutor
General, as the case may be. [Cariaga v.
Sapigao, G.R. No. 223844, 28 June 2017]
Remedies to Review the Resolution of the
Investigation Officer
1. Filing an appeal with the investigating
officer.
Note: The appeal does not prevent the filing of
the corresponding information in court based
on the finding of probable cause in the
appealed resolution, unless the Secretary of
Justice directs otherwise, but the appellant and
the prosecutor shall see to it that, pending
resolution of the appeal, the proceedings in
court are held in abeyance [Section 9, DOJ
Circular No. 70 (2000)].
2. Petition for review to the SOJ, who may
review the resolutions of his subordinates in
criminal cases despite the information being
filed in court [Community Rural Bank of
Guimba v. Talavera, A.M. No. RTJ-05-1909
(2005); See DOJ Circular No. 70-A. Except in
NCR, no appeal to SOJ but to RSP instead;
decision of RSP is final.]
Note: The party filing a petition for review is
allowed to file a motion for the suspension of
the arraignment [Sec. 11(c), Rule 116].
3. If the SOJ decision is adverse to the
appealing party, such decision is 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. Sec. of Justice, G.R. No.
147932 (2006)].
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Note: Under Memorandum Circular No. 58
(2003), no appeals from or petitions for review
of decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations shall be
entertained by the Office of the President,
except those involving offenses punishable by
reclusion perpetua to death [Angeles v. Gaite,
G.R. No. 176596 (2011)].
4. The resolution of the Secretary of Justice
may also be reviewed by the Court of Appeals
through a petition for certiorari under Rule 65
of the Rules of Court, solely on the ground that
the SOJ committed grave abuse of discretion
amounting to lack of jurisdiction [Argovan v.
San Miguel Corporation, G.R. No. 188767
(2013)].
5. In criminal cases, the ruling of the
Ombudsman shall be elevated to the Supreme
Court by way of Rule 65, solely under the
ground of grave abuse of discretion [Villanueva
v. Ople, G.R. No. 165125 (2005)].
E. Arrest (Rule 113)
1. How Arrest is Made
Definition
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense [Sec. 1, Rule 113]
How Made
a. by actual restraint of a person to be arrested;
b. by his submission to the custody of the
person making the arrest [Sec. 2(1), Rule 113]
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required. It is
enough that there be an intent on the part of
one of the parties to arrest the other and an
intent on the part of the other to submit, under
the belief and impression that submission is
necessary [Sanchez v. Demetriou, G.R. No.
111771 (1993)]
No violence or unnecessary force shall be used
in making an arrest [Sec. 2(2), Rule 113]
An arrest may be made on any day and at any
time of the day or night [Sec. 6, Rule 113]
CRIMINAL PROCEDURE
2. Arrest without Warrant; When
Lawful
General Rule: 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 v. Ramos, G.R. No.
81567 (1991)]
a. Rights of Persons Arrested,
Detained or Under Custodial
Investigation
a. Any person arrested, detained or under
custodial investigation shall at all times be
assisted by counsel.
b. Any public officer or employee, or anyone
acting under his order or his place, who
arrests, detains or investigates any person
for the commission of an offense shall
inform the latter, in a language known to and
understood by him, of his rights to remain
silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation. If
such person cannot afford the services of
his own counsel, he must be provided with
a competent and independent counsel by
the investigating officer.
c. The custodial investigation report shall be
reduced to writing by the investigating
officer, provided that before such report is
signed, or thumbmarked if the person
arrested or detained does not know how to
read and write, it shall be read and
adequately explained to him by his counsel
or by the assisting counsel provided by the
investigating officer in the language or
dialect known to such arrested or detained
person, otherwise, such investigation report
shall be null and void and of no effect
whatsoever.
d. 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 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
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supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such
extrajudicial confession shall be
inadmissible as evidence in any
proceeding.
e. Any waiver by a person arrested or detained
under the provisions of Article 125 of the
Revised Penal Code, or under custodial
investigation, shall be in writing and signed
by such person in the presence of his
counsel; otherwise the waiver shall be null
and void and of no effect.
f. Any person arrested or detained or under
custodial investigation shall be allowed
visits by or conferences with any member of
his immediate family, or any medical doctor
or priest or religious minister chosen by him
or by any member of his immediate family
or by his counsel, or by any national non-
governmental organization duly accredited
by the Commission on Human Rights or by
any international non-governmental
organization duly accredited by the Office of
the President. The person's "immediate
family" shall include his or her spouse,
fiancé or fiancée, parent or child, brother or
sister, grandparent or grandchild, uncle or
aunt, nephew or niece, and guardian or
ward [RA 7438].
b. DOJ Circular 61
When a person is lawfully arrested without a
warrant involving an offense which requires a
preliminary investigation, the complaint or
information may be filed by a prosecutor
without need of such investigation provided an
inquest has been conducted in accordance
with existing rules. In the absence or
unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or
by a peace officer directly with the proper court
on the basis of the affidavit of the offended
party or arresting officer or person.
Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation in accordance with this Rule, but
he must sign a waiver of the provisions of
Article 125 of the RPC, as amended, in the
presence of his counsel. Notwithstanding the
CRIMINAL PROCEDURE
waiver, he may apply for bail and the
investigation must be terminated within 15
days from its inception.
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
investigation with the same right to adduce
evidence in his defense as provided in this Rule
[Sec. 6, DOJ Circular 61].
Exceptions:
a. In flagrante delicto [Sec. 5(a), Rule 113]
b. Hot pursuit arrest [Sec. 5(b), Rule 113]
c. Arrest of escaped prisoner [Sec. 5(c), Rule
113]
d. Other lawful warrantless arrests
1. If a person lawfully arrested escapes or
is rescued, any person may immediately
pursue or retake him without a warrant at
any time and in any place within the
Philippines [Sec. 13, Rule 113]
2. For the purpose of surrendering the
accused, the bondsmen may arrest him
or, upon written authority endorsed on a
certified copy of the undertaking, cause
him to be arrested by a police officer or
any other person of suitable age and
discretion [Sec. 23, Rule 114]
3. An accused released on bail may be re-
arrested without the necessity of a
warrant if he attempts to depart from the
Philippines without permission of the
court where the case is pending [Sec. 23,
Rule 114]
Note: A legitimate warrantless arrest
necessarily includes the authority to validly
search and seize from the offender (1)
dangerous weapons, and (2) those that may be
used as proof of the commission of an offense
[People v. Montilla, G.R. No. 123872, (1998)]
Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall be
forthwith delivered to the nearest police station
or jail and shall be proceeded against in
accordance with Sec. 7 of Rule 112 [Sec. 5,
2nd par., Rule 113]
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General Rule: PI is required to be conducted
before a complaint/information is filed for an
offense where the penalty prescribed by law is
at least 4 years, 2 months and 1 day, without
regard to the fine [Sec. 1, Rule 112, as
amended by A.M. No. 05-8-26-SC]
Exception: When a person is lawfully arrested
without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.
3. Requisites of a Valid Warrant of
Arrest
Essential Requisites
The warrant must:
a. Be issued upon probable cause determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce; and
b. Particularly describe the person to be
arrested
[Sec. 2, Art. III, Const.]
When Issued
A judge issues a warrant of arrest upon the
filing of the information by the public prosecutor
and after personal evaluation by the judge of
the prosecutor’s resolution and supporting
evidence [Sec. 5(a), Rule 112, as amended by
A.M. No. 05-8-26-SC]
The judge does not have to personally examine
the complainant and his witnesses.
Established doctrine provides that it is
sufficient for the fiscal to provide supporting
documents regarding the existence of probable
cause:
a. If the judge finds probable cause, he shall
issue a warrant of arrest, or
b. If he finds no probable cause, he may
disregard the fiscal’s report and require the
submission of supporting affidavits of
witnesses [People v. Gray, G.R. No. 180109
(2010); AAA v. Carbonell, G.R. No. 171465
(2007)]
When Warrant of Arrest is Not Necessary
A warrant of arrest shall not issue
CRIMINAL PROCEDURE REMEDIAL LAW
a. If the accused is already under detention the accused under custody, he may issue
pursuant to a warrant issued by the summons instead of a warrant of arrest [Sec.
municipal trial court in accordance with Sec. 8(b), Rule 112, as amended by A.M. No. 05-8-
5(b) of Rule 112; or 26-SC]
b. If the complaint or information
1. was filed pursuant to Sec. 6 of Rule 112 4. Determination of Probable Cause
or
for Issuance of Warrant of Arrest
2. is for an offense penalized by fine only
[Sec. 5(c), Rule 112, as amended by
Probable cause, in connection with the
A.M. No. 05-8-26-SC]
issuance of a warrant of arrest, assumes the
existence of facts and circumstances that
Note: If complaint or information is filed with the
would lead a reasonably discreet and prudent
MTC judge, and the judge finds probable
man to believe that a crime has been
cause, he shall issue a warrant of arrest, or a
committed and that it was likely committed by
commitment order if the accused had already
the person sought to be arrested [People v.
been arrested. However, if the judge is
Tan, G.R. No. 182310 (2009)] [See D.3, supra]
satisfied that there is no necessity for placing

In Flagrante Delicto
Hot Pursuit Arrest Arrest of Escaped Prisoner
Arrest

A peace officer or a A peace officer or a A peace officer or a private

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

Escapee may be immediately

pursued or re-arrested without
a warrant at any time and in
any place within the
Philippines [Sec. 13, Rule
113]

[OA-PVAO] C-PK] N/A

1. The person to be 1. An offense has just been
arrested must execute an Committed.
•
Overt Act indicating that There must be a large
he has just committed, is measure of immediacy
Requisites actually committing, or is between the time the
attempting to commit a offense was committed
crime, and and the time of the arrest.
2. Such overt act is done in If there was an
the Presence or within appreciable lapse of time
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CRIMINAL PROCEDURE REMEDIAL LAW

In Flagrante Delicto
Hot Pursuit Arrest Arrest of Escaped Prisoner
Arrest

the View of the Arresting between the arrest and

Officer [Zalameda v. the commission of the
People, G.R. No. 183656 crime, a warrant of arrest
(2009); People v. Laguio, must be secured [People
G.R. No. 128587 (2007)]. v. del Rosario, G.R. No.
127755 (1999); People v.
“In his presence” Agojo , G.R. No. 181318
means: (2009)]; and
1. He sees the offense, The person making the
even though at a arrest has probable
distance, or cause to believe, based
2. He hears the on Personal Knowledge
disturbances created by of facts and
the offense and proceeds circumstances, that the
at once to the scene person to be arrested has
[People v. Evaristo, G.R. committed it.
No. 93828 (1992)]

“Reliable information” Personal knowledge Rationale

alone, absent any overt
act indicative of a
felonious enterprise in
the presence and within
the view of the arresting
officers, are not sufficient
to constitute probable
cause that would justify
Notes
an in flagrante delicto
arrest [People v. Molina,
G.R. No. 133917 (2001)]
does not require actual At the time of arrest, the
presence at the scene escapee is in continuous
while a crime was being commission of a crime (i.e.,
committed; it is enough evasion of service of
that evidence of the sentence). [Parulan v.
recent commission of the Director of Prisons, G.R. No.
crime is patent and the L-28519 (1968)]
police officer has
probable cause to believe
based on personal
knowledge of facts or
circumstances, that the
person to be arrested has
recently committed the
crime [Pestilos v.
Generoso, G.R. No.
182601 (2014)]

F. Bail (Rule 114)

Purposes
a. To relieve an accused from
1. Nature
imprisonment until his conviction and yet
secure his appearance at the trial [People v.
Definition Hon. Donato, G.R. No. 79269 (2011) & Enrile
Bail is the security given for the release of a v. Sandiganbayan, G.R. No. 213847 (2016)]
person in custody of the law, furnished by him b. To honor the presumption of innocence
or a bondsman, to guarantee his appearance until his guilt is proven beyond reasonable
before any court as required under the doubt [Sec. 14, Art. III, Constitution]; and
conditions hereinafter specified [Sec. 1, Rule c. To enable him to prepare his defense
114] without being subject to punishment prior to
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CRIMINAL PROCEDURE
conviction [Cortes v. Judge Catral, A.M. No.
RTJ-97-1387 (1997)]
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 [Serapio v. Sandiganbayan,
G.R. No. 148468 (2003)]
Requirement of Custody
General rule: Custody of the law is required
before the court can act on an application for
bail [Miranda v. Tuliao, G.R. No. 158763
(2006)]
Exceptions: Custody is not required in cases
of witnesses posting bail:
a. When bail is required to guarantee the
appearance of a material witness [Sec. 14,
Rule 119];
b. When bail is required to guarantee the
appearance of a prosecution witness in cases
where there is substitution of the information
[Sec. 14, Rule 110]
Forms of Bail
1. Corporate surety
2. Property bond
3. Cash deposit
4. Recognizance
Recognizance is a mode of securing the
release of any person in custody or detention
for the commission of an offense who is unable
to post bail due to abject poverty. The court
where the case of such person has been filed
shall allow the release of the accused on
recognizance as provided herein, to the
custody of a qualified member of the barangay,
city or municipality where the accused resides.
[Sec. 3, R.A. 10389, or the Recognizance Act
of 2012]
RA 10389 guarantees the right of one deemed
as an indigent to be released on recognizance
except for those charged with crimes
punishable by death, reclusion perpetua, or life
imprisonment.
Recognizance has increased in significance
because of DOJ Circular No. 11 (February 20,
2023), which provides that all prosecutors in
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the Department shall henceforth consider the
financial capacity of the accused when
recommending the amount of bail in criminal
informations for filing in court, in accordance
with the following guidelines and shall faithfully
comply with RA 10389 or the Recognizance
Act of 2012 whenever applicable.
2. When a Matter of Right; Exceptions
Bail as a Matter of Right
1. Before or after conviction, but pending
appeal, by the first-level courts;
2. Before conviction by RTC of an offense not
punishable by death, reclusion perpetua, or
life imprisonment [Sec. 4, Rule 114]
Bail as a Matter of Right. — All children in
conflict with the law shall be admitted to bail as
a matter of right before final conviction of an
offense not punishable by reclusion perpetua
or life imprisonment [Rule on Juveniles in
Conflict with the Law, Sec. 27, A.M. No. 02-1-
18-SC (2009)]
When Bail Not a Matter of Right. — No child
charged with an offense punishable by
reclusion perpetua or life imprisonment shall be
admitted to bail when evidence of guilt is
strong. In this case, the court shall commit the
child to a youth detention home or youth
rehabilitation center, or in the absence thereof,
to the care of a provincial, city or municipal jail
as provided for in Section 27 of this Rule, which
shall be responsible for the appearance of the
child in court whenever required.||| (Rule on
Juveniles in Conflict with the Law, Sec. 28,
A.M. No. 02-1-18-SC, (2009)]
Exceptions
1. The primary purpose of granting bail was to
ensure that the petitioner would appear
during trial and submit themselves to the
jurisdiction of the proper court without
denying them of their pre-trial liberty [Enrile
v. Sandiganbayan, G.R. No. 213847 (2016)]
2. It is not necessary to wait for the trial to finish
before consideration of application for bail
can be had, because there may be
circumstances decisive of the issue of bail
— whose existence is either admitted by the
Prosecution, or is properly the subject of
CRIMINAL PROCEDURE
judicial notice, which the courts can already
consider in resolving the application for bail
without awaiting the trial to finish.
In the case at hand, factors such as Enrile’s
health, advanced age, social standing,
length of public service were considered
[Enrile v. Sandiganbayan, G.R. No. 213847
(2015)]
3. As a rule, all persons charged with a criminal
offense have the right to bail. However,
persons charged with an offense
punishable by reclusion perpetua cannot
avail of this right if the evidence of guilt is
strong [Recto v. People (J. Caguioa), G.R.
No. 236461, 5 December 2018]
Bail on Offenses Where Minors are
Accused
For purposes of recommending the amount of
bail, the privileged mitigating circumstance of
minority shall be considered. [Sec. 34, R.A
9344]
Where a child is detained, the court shall order
a. the release of the minor on recognizance to
his/her parents and other suitable person;
b. the release of the child in conflict with the
law on bail; or
c. the transfer of the minor to a youth detention
home/youth rehabilitation center
Exception: When the offense involved is a
capital offense, admission to bail may only be
denied when evidence of guilt is strong. [Sec.
5, Rule 114]
Capital Offense
A capital offense is an offense which under the
law existing at the time of commission and of
the application for admission to bail is
punishable by death [Sec. 6, Rule 114]
The capital nature of the offense is determined
by the penalty prescribed by law and not the
one actually imposed [Riano, 335, 2016 Ed.,
citing Bravo v. De Borja, G.R. No. L-65228
(1985)]
Note: R.A. 9346 (An Act Prohibiting the
Imposition of Death Penalty in the Philippines)
enacted on June 24, 2006 (which repealed
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R.A. 8177 and R.A. 7659) prohibited the
imposition of the death penalty.
Extradition Proceedings
General Rule: Right to bail is available only in
criminal proceedings and does not apply to
extradition proceedings because extradition
courts do not render judgments of conviction or
acquittal [Gov. of USA v. Purganan and
Jimenez, G.R. No. 148571 (2002)]
Exception: Only upon clear and convincing
evidence:
a. That once granted, the applicant will not be
flight risk or will not pose danger to the
community; and
b. That there exists special humanitarian and
compelling circumstances [Gov. of USA v.
Purganan and Jimenez, G.R. No. 148571
(2002)]
Exception to the Exception: When the
accused is a minor, he is entitled to bail
regardless of whether the evidence of guilt is
strong
Note: Bail is a matter of discretion in extradition
proceedings [Govt. of HK Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
When Not Available
Right to bail is not available:
a. After a judgment of conviction has become
final; if he applied for probation before
finality, he may be allowed temporary liberty
under his bail;
b. After the accused has commenced to serve
his sentence [Sec. 24, Rule 114]
c. To military personnel accused under
general courts martial [Comendador v. de
Villa, G.R. No. 93177 (1991)]
3. When a Matter of Discretion
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is
discretionary. [Sec. 5, Rule 114]
The application for bail may be filed in and
acted upon by the RTC despite the filing of
CRIMINAL PROCEDURE
notice of appeal, provided that it has not
transmitted the original record to the appellate
court. [Sec. 5, Rule 114]
If the RTC decision changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved only by the appellate court. [Sec. 5,
Rule 114]
If the conviction by the trial court is for a capital
offense, the accused convicted of a capital
offense is no longer entitled to bail, and can
only be released when the conviction is
reversed by the appellate court. [Sec. 13,
Article III, Const.]
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be
cancelled upon showing by the prosecution,
with notice to the accused, of any of the
following [Sec. 5, Rule 114]:
a. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused
b. The accused previously escaped from legal
confinement, evaded sentence or violated
bail conditions without valid justification
c. Commission of offense while under
probation, parole or conditional pardon
REMEDIAL LAW
d. Probability of flight;
e. Undue risk of the commission of another
crime during the pendency of the appeal
[Sec. 5, Rule 114]
Upon conviction of the RTC, the bail posted
earlier as a matter of right loses its force and
the accused must file a new and separate
petition for bail.
In deportation proceedings, bail is
discretionary upon the Commissioner of
Immigration and Deportation [Harvey v.
Defensor-Santiago, G.R. No. 82544 (1990)]
Note: In Enrile v. People [G.R. No. 213847
(2015)], the Court ruled that an accused should
be granted bail if it is shown that: (1) the
detainee will not be a flight risk or a danger to
the community; and (2) there exist special,
humanitarian, and compelling circumstances.
The SC further explained that bail for the
provisional liberty of the accused, regardless of
the crime charged should be allowed
independently of the merits charged, provided
his continued incarceration is injurious to his
health and endanger his life.

COURT Before After Conviction Where to File

Conviction Pending Action

MTC (before the

records are
MTC Right Right
elevated; else,
RTC)

Discretionary if the penalty imposed by

RTC (before the
the trial court does not exceed 6 years.
records are
However, if the penalty imposed
Non- elevated; except if
Right exceeds 6 years or if the prosecution
capital offense is
proves that the circumstances
downgraded, then
RTC enumerated in Sec. 5, Rule 114 exist,
CA
bail will be denied or cancelled.

Discretionary,
Capital when evidence of Cannot be granted bail N/A
guilt is not strong
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4. Hearing of Application for
Bail in Capital Offenses
In general
At the hearing of an application for bail filed by
a person in custody for the commission of an
offense punishable by reclusion perpetua or life
imprisonment, the prosecution has the
burden of showing that evidence of guilt is
strong [Sec. 8, Rule 114].
Evidence of guilt in the Constitution and the
Rules refers to a finding of innocence or
culpability, regardless of the modifying
circumstances [Bravo v. De Borja, G.R. No. L-
65228 (1985)].
Duties of judge hearing the petition for bail
when capital offenses are involved
1. In all cases whether bail is a matter of right
or discretion, notify the prosecutor of the
hearing of the application for bail or require him
to submit his recommendation [Sec. 18, Rule
114]
2. Where bail is a matter of discretion, conduct
a hearing of the application for bail regardless
of whether or not the prosecution refuses to
present evidence to show that the guilt of the
accused is strong for the purpose of enabling
the court to exercise its sound discretion [Sec.
7-8, Rule 114]
3. Decide whether the guilt of the accused is
strong based on the summary of evidence of
the prosecution
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of
the bail bond [Sec. 19, Rule 114]. Otherwise,
the petition should be denied [Gacal v. Infante,
A.M. No. RTJ-04-1845 (2011)].
Note: Evidence presented during the bail
hearing are 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].
Note: If an accused charged with murder and
previously denied bail is able to establish
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during trial (such as, through a demurrer to
evidence) that the evidence of the prosecution
is sufficient to convict him only for a non-capital
offense (such as homicide), then it is the duty
of the trial court to fix bail. [Recto v. People,
G.R. No. 236461, December 5, 2008]
G. Arraignment and Plea (Rule
116)
Arraignment
It is the stage where issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void [People
v. Albert, G.R. No. 114001 (1995)].
The accused must be informed of:
1. The reason for the indictment
2. The specific charges the accused is bound
to face
3. The corresponding penalty for the charges
Rationale
Its importance is based on the constitutional
right of the accused to be informed. It is at this
stage that the accused, for the first time, is
given the opportunity to know the precise
charge that confronts him [Kummer v. People,
G.R. No. 174461 (2013)]
Plea
Pertains to the matter which the accused, on
his arraignment, alleges in answer to the
charge against him.
1. Searching Inquiry
(See People v. Pagal, G.R. No. 241257,
September 29, 2020)
A searching inquiry means more than
informing cursorily the accused that he faces a
jail term but so also, the exact length of
imprisonment under the law and the certainty
that he will serve time at the national
penitentiary or a penal colony [People v. Bello,
G.R. No. 130411-14 (1999)]
The procedure in Sec. 3, Rule 116, when the
accused pleads guilty to a capital offense,
CRIMINAL PROCEDURE
is mandatory. [Riano 407, 2016 Ed., citing
People v. Oden, G.R. No. 155511-22 (2004)]
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
A plea of guilty to a capital offense can be held
null and void where the trial court
has inadequately discharged the duty of
conducting the prescribed "searching inquiry”
[People v. Durango, G.R. Nos. 135438-39
(2000)]
Rationale
This is to enjoin courts to proceed with more
care where the possible punishment is in its
severest form and to avoid improvident pleas
of guilt [People v. Samontanez, G.R. No.
134530 (2000)]
Guidelines for Conducting a Search Inquiry
a. Ascertain from the accused himself:
1. How he was brought into the custody of
the law
2. Whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations, and
3. Under what conditions he was detained
and interrogated during the
investigations.
b. Ask the defense counsel a series of
questions as to whether he had conferred
with, and completely explained to, the
accused the meaning and consequences of
a plea of guilty.
c. Elicit information about the personality
profile of the accused (age, socio-economic
status, and educational background) which
may serve as a trustworthy index of his
capacity to give a free and informed plea of
guilty.
d. Inform the accused the exact length of
imprisonment or nature of the penalty under
the law and the certainty that he will serve
such sentence.
e. Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime which is the basis
of his indictment.
f. All questions posed to the accused should
be in a language known and understood by
the latter.
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g. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty.
The accused must be required to narrate
the tragedy or reenact the crime or furnish
its missing details [People v. Pastor, G.R.
No. 140208 (2002)]
2. Improvident Plea
An improvident plea is one without proper
information as to all the circumstances
affecting it; based upon a mistaken assumption
or misleading information/advice [Black’s Law
Dictionary]
Effect of an Improvident Plea
General Rule: Plea of guilty should not be
accepted should not be held to be sufficient to
sustain a conviction in the following cases:
1. If the accused does not clearly and fully
understand the nature of the offense
charged
2. If he is not advised as to the meaning and
effect of the technical language often used
in formal complaints and information in
qualifying the acts constituting the offense,
or
3. If he does not clearly understand the
consequences by way of a heavy and even
a capital penalty flowing from his admission
of his guilt of the crime [People v. De
Ocampo Gonzaga, G.R. No. L-48373
(1984)]
Exception: If the accused appears guilty
beyond reasonable doubt from the evidence
adduced by the prosecution and defense
When Improvident Plea May be Withdrawn
At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty [Sec. 5,
Rule 116]
The withdrawal of a plea of guilty is not a matter
of right of the accused but of sound discretion
of the trial court [People v. Lambino, G.R. No.
L-10875 (1958)]
The reason for this is that trial has already
begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste.
CRIMINAL PROCEDURE
Moreover, at this point, there is a presumption
that the plea was made voluntarily.
H. Motion to Quash (Rule 117)
1. Grounds
In general
a. Facts charged do not constitute an offense;
b. Court trying the case has no jurisdiction
over the offense charged;
c. Court trying the case has no jurisdiction
over the person of the accused;
d. officer who filed the information had no
authority to do so;
e. The information does not conform
substantially to the prescribed form; (e.g. if
there is no certification)
f. More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
g. Criminal action or liability has been
extinguished;
h. Averments which, if true, would constitute a
legal excuse or justification;
i. Accused has been previously convicted or
acquitted of the offense charged, or the
case against him was dismissed or
otherwise terminated without his express
consent.
[Sec. 3, Rule 117]
The following grounds are exclusive. [Galzote
v. People, G.R. No. 164682 (2011)]
Note: While possibly an obiter dictum, the
Court in an en banc decision has held that “the
accused may move to quash an information on
constitutional grounds, based on the theory
that there can be no crime if there is no law,
the law being invalid (nullum crimen sine lege)"
[Fuentes v. Senate, G.R. No. 208162 (2020)].
Waiver of Grounds
General Rule: Failure of the accused to assert
any ground on a MTQ before he pleads, either
because he did not file MTQ or failed to allege
said ground in the MTQ shall be deemed a
waiver of any objections
Exceptions [OJ-AL-CJA]:
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a. Facts charged do not constitute an Offense
b. Court trying the case has no Jurisdiction
over the offense charged
c. Criminal Action or Liability has been
Extinguished
d. Accused has been previously Convicted, or
in Jeopardy of being convicted, or Acquitted
of the offense charged [Sec. 9, Rule 117]
e. Officer who filed information had no
authority to do so [Quisay v. People, G.R.
No. 216920 (2016)]
Note: In cases covered by the Rules on
Summary Procedure, MTQ is allowed only if
made on the grounds of lack of jurisdiction over
the subject matter or failure to comply with
barangay conciliation proceedings [Sec. 19,
Rules on Summary Procedure]
a. Facts charged do not constitute an
offense
Where it is clear that the information does not
really charge an offense, the case against
the accused must be dropped immediately
[Dela Chica v. Sandiganbayan, G.R. No.
144823 (2003)]
The prosecution shall be given by the court an
opportunity to correct the defect by
amendment. The motion shall be granted if the
prosecution fails to make the amendment, or
the complaint or information still suffers from
the same defect despite the amendment. [Sec.
4, Rule 117]
b. Court has no jurisdiction over the
offense charged
In a criminal prosecution, the place where the
offense was committed not only
determines venue, but is an essential element
of jurisdiction [Sec. 15, Rule 110; Lopez v. City
Judge, G.R. No. L-25795 (1966)]
In private crimes, the complaint of the
offended
party is necessary to confer authority to the
court [Donio-Teves v. Vamenta Jr., G.R. No. L-
38308 (1984)]
CRIMINAL PROCEDURE
c. Court has no jurisdiction over the
person of the accused
When the accused files a MTQ based on this
ground, he must do so only on this ground. If
he raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou, G.R. No. L-
11171-77 (1993)]
d. Officer who filed the information
had no authority to do so
Authority to file and prosecute criminal cases
is vested in:
1. Prosecutor
1. There is no need for the prosecutor to
secure a prior written authority or
approval of the provincial or city
prosecutor or chief state prosecutor or
the Ombudsman or his deputy in order to
conduct PI of an offense and file an
Information. [Gomez v. People, G.R. No.
216824 (2020)]
2. The lack of prior written authority or
approval of the handling prosecutor:
• does not affect the acquisition
jurisdiction by the trial court
• does not affect the trial court’s
jurisdiction over the accused or the
subject matter of the case
• is a defect that may be waived by the
accused. [Gomez v. People, G.R. No.
216824 (2020)]
2. Any peace officer, or public officer charged
with the enforcement of the law, in Municipal
Trial Courts or Municipal Circuit Trial Courts
when the prosecutor assigned thereto or to
the case is not available [Sec. 5, Rule 110]
3. Commission on Elections regarding
violations of election laws [Sec. 2(6), Art. IX-
C, Constitution]
4. By the graft investigating officer for any
information filed in the Sandiganbayan, with
prior approval of the Ombudsman
5. By duly deputized prosecutors and legal
officers of the COMELEC for election
offenses [Sec. 265, Art. XXII, Omnibus
Election Code]
A procedural infirmity regarding legal
representation is only a defect which shouldn't
result in the quashing of an Information. Also,
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the trial courts do not have the power to quash
an Information without a motion by the
Accused. [Gomez v. People, G.R. No. 216824
(2020)]
e. Complaint or information does not
conform substantially to the
prescribed form
The formal and substantial requirements are
provided for in Secs. 6-12, Rule 110.
General Rule: Lack of substantial compliance
renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may
be cured by amendment [Sec. 4, Rule 117]
Vague or broad allegations are generally not
grounds for a MTQ. The correct remedy is to
file for a bill of particulars [Sec. 9, Rule 116;
Enrile v. People, G.R. No. 213455 (2015)]
The accused may, before arraignment, move
for a bill of particulars to enable him properly to
plead and prepare for trial. The motion shall
specify the alleged defects of the complaint or
information and the details desired [Sec. 9,
Rule 116]
f. More than one offense is charged
General Rule: A complaint or information must
charge only one offense [Sec. 13, Rule 110]
Exceptions:
1. When the law prescribes a single
punishment for various offenses [Sec. 13,
Rule 110]
2. Complex and compound crimes, except
where one offense was committed to
conceal another
3. An offense incidental to the gravamen of the
offense charged
4. A specific crime set forth in various counts,
each of which may constitute a distinct
offense
5. If the accused fails to object; the court may
convict as many as are charged and proved
and impose on him the penalty for each
(Rule 120, Section 3) [People v. Villamor,
G.R. No. 124441 (1998)]
CRIMINAL PROCEDURE REMEDIAL LAW
g. Criminal action or liability has been the accused in double jeopardy, except in the
extinguished following cases:
a. Insufficiency of the prosecution’s evidence
When criminal liability is extinguished: b. Denial of the right to a speedy trial [Almario
1. Death of the accused, but liability for v. CA, G.R. No. 127772 (2001)]
pecuniary penalties is extinguished only if
death occurs before final judgment; When dismissal constitutes acquittal
2. Service of sentence, which must be by Dismissal constitutes acquittal when it is
virtue of a final judgment and in the form granted:
prescribed by law; 1. Upon demurrer to evidence; [Riano 439,
3. Amnesty; 2016 Ed., citing People v. Tan, G.R. No.
4. Absolute pardon; 167526 (2010)]
5. Prescription of the crime; 2. Due to violation of right to speedy trial (even
6. Prescription of the penalty; if dismissal was upon motion of the accused
7. Pardon in private offenses or with his express consent) [Riano 439-
[Art. 89, RPC] 440, 2016 Ed., citing Andres v. Cacdac,
G.R. No. L-45650 (1982)]
h. Contains averments that if true
would constitute a legal excuse or Dismissal Acquittal
justification
Basis for Does not Always based
Examples:
action decide the on the merits.
1. Justifying circumstances [Art. 11, RPC]
case on the
2. Exempting circumstances [Art. 12, RPC]
merits. Defendant’s
3. Absolutory causes
guilt was not
Does not proven beyond
i. Accused has been previously determine reasonable
convicted or acquitted of the offense innocence doubt
charged, or the case against him was or guilt
dismissed or otherwise terminated
without his consent Does Double Double
double jeopardy will jeopardy
1. Double jeopardy jeopardy not always always
attach? attach attaches
See Double Jeopardy below.
See Provisional Dismissal below.
2. Dismissal without express consent
2. Double Jeopardy
This refers only to dismissal or termination
of the case. It does not Refer to Part the Double jeopardy presupposes that a first
conviction or acquittal [People v. Labatete, jeopardy has already attached prior to the
G.R. No. L-12917 (1960)] second and that the first has been terminated
because he has already been: (1) convicted;
If consent is not express, dismissal will be (2) acquitted; or (3) the case against him
regarded as final (i.e., with prejudice to refilling) terminated or dismissed without his express
[Caes v. IAC, G.R. Nos. 74989-90 (1989)] consent.
The right against double jeopardy prohibits the
The dismissal of a criminal case resulting in prosecution for a crime of which he has been
acquittal made with the express consent of the previously convicted or acquitted [Caes v. IAC,
accused or upon his own motion will not place G.R. No. 74989-90 (1989)]

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CRIMINAL PROCEDURE
Purpose of the Rule against Double
Jeopardy
It guarantees that the state shall not be
permitted to make repeated attempts to convict
an individual for an alleged offense, thereby
subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity.
Primarily, it prevents the State from:
1. Suing criminal processes as instrument to
harass the accused and wear him out by the
multitude of cases
2. Successively retrying the defendant in the
hope of securing a conviction
3. Successively retrying the defendant in the
hope of securing a greater penalty
RULE OF DOUBLE JEOPARDY
Requisites to Successfully Invoke Double
Jeopardy
a. A first jeopardy must have attached;
b. The first jeopardy must have been validly
terminated; and
c. The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or is
an attempt to commit the same or a
frustration thereof
[People v. Espinosa, G.R. Nos. 153714-20
(2003)]
Requisites for First Jeopardy to Attach
a. Valid indictment
b. Before a competent court;
c. Arraignment
d. A valid plea entered, and
e. The accused has been convicted or
acquitted, or the case dismissed or
otherwise validly terminated without his
express consent
[People v. Honrales, G.R. No. 182651 (2010)]
KINDS OF DOUBLE JEOPARDY
Double Jeopardy for the Same Offense
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However, a dictated, coerced, and scripted
verdict of acquittal is a void judgment. It neither
binds nor bars anyone [Galman v.
Sandiganbayan, G.R. No. 72670 (1986)]
Effect
The conviction or acquittal of the accused or
the dismissal of the case shall be a bar to
another prosecution
a. for the offense charged, or
b. for any attempt to commit the same or
frustration thereof, or
c. for any offense which necessarily includes
or is necessarily included in the offense
charged in the former complaint or
information
[Sec. 7, Rule 117]
Double jeopardy does not apply to these
cases:
1. Administrative Cases
• The dismissal of the criminal case does
not result in the dismissal of the
administrative case because there exists
a difference between the 2 remedies
2. When the same criminal act gives rise to
two or more separate and distinct offenses
3. Preliminary investigation (PI)
• A PI is merely inquisitorial. It is executive
in character and is not part of the trial;
hence, a PI is not a trial to which double
jeopardy attaches.
4. When the first offense was committed under
the RPC and the second was committed
under a special penal law
5. When two offenses are punished by two
separate penal laws
6. the mere filing of two informations charging
the same offense when there is not yet a
conviction, acquittal, or termination without
consent of any of the two cases [People v.
Pineda, G.R. L-44205 (1993)
Double Jeopardy When an
Act Punished by a Law and
an Ordinance
CRIMINAL PROCEDURE REMEDIAL LAW

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

a. The graver offense developed due to

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

Whether or not evidence that proves one likewise

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

3. Provisional Dismissal offenses punishable by imprisonment of

Provisional Dismissal
Provisional dismissal is dismissal without
prejudice to its being refiled or revived [Los
Baños v. Pedro, G.R. No. 173588 (2009)]
Cases are provisionally dismissed where there
has already been arraigned and the accused
consented to a provisional dismissal.
Requisites for a Provisional Dismissal
1. There must be express consent of the
accused; and
2. There must be notice to the offended party
[Sec. 8, Rule 117]
more than 6 years
[Sec. 8, Rule 117]
Note: The periods are reckoned from the date
or the order of dismissal
Exception to the Periods: The State may
revive beyond the periods provided there is a
justifiable necessity for the delay.
The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
the accused. [People v. Lacson, G.R. No.
149453 (2003)]

Time-Bar Rule What to File

Dismissal becomes permanent: Motion for permanent dismissal [Prof. Sanidad]
a. One year after issuance of the order
without the case having been revived for The following are conditions sine qua non for
offenses punishable the application of the time-bar rule
1. by imprisonment not exceeding 6 years, a. The prosecution, with the express
or conformity of the accused, or the accused
2. by fine of any amount, or moves for the provisional (sin perjucio)
3. by both dismissal of the case; or both the
b. Two years after issuance of the order prosecution and the accused move for a
without the case having been revived for
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CRIMINAL PROCEDURE
provisional dismissal of the case [Sec. 8,
Rule 117]
b. The offended party is notified of the motion
for the provisional dismissal of the case
c. The court issues an order granting the
motion and dismissing the case
provisionally
d. The public prosecutor is served with a copy
of the order of provisional dismissal of the
case
[People v. Lacson, G.R. No. 149453 (2003)]
A case may be revived by
a. Refiling of the information
b. Filing of a new information for the same
offense or one necessarily included in the
original offense charged
Requirement of Preliminary Investigation
upon Revival of Case
General Rule: Upon revival of the case, there
is no need for a new PI
Exceptions:
a. If the original witnesses have recanted their
testimonials or have died
b. If the accused is charged under a new
criminal complaint for the same offense
c. If the original charge is upgraded
d. If the criminal liability is upgraded from
accessory to principal
Procedure for Revival of Provisionally
Dismissed Cases [Revised Guidelines for
Continuous Trial of Criminal Cases, A.M.
No.15-06-10-SC]
Revival of provisionally dismissed cases shall
conform to the requisites and the periods
provided for under Sec. 8, Rule 117.
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.
H. Pre-Trial (Rule 118)
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Its main objective is to achieve an expeditious
resolution of the case. This proceeding is
mandatory in criminal cases and is conducted
before trial. [Sec. 1, Rule 118]
1. Pre-Trial Agreement
Requirements
a. Reduced in writing;
b. Signed by the accused and counsel;
c. With approval of court if agreements
cover matters in Sec. 1, Rule 118
[Sec. 2, Rule 118]
Effects:
1. Constitutional right to present evidence is
waived [Rivera v. People, G.R. No. 163996
(2005)]
2. If the requisites are not followed –
admissions shall be inadmissible as
evidence [Item I-B[8], A.M. No. 03-1-09-SC
(2004)]
All proceedings during pre-trial shall be:
1. Recorded
2. Transcripts prepared
3. Minutes signed by the parties and their
counsel
2. Non-Appearance During Pre-Trial
Who must be present during pre-trial
1. Counsel of accused
2. Prosecutor
Note: The accused is not required to attend
(unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to the
contents of such. The complainant is also not
required to appear during pre-trial. It is the
prosecutor who is required to appear at the pre-
trial [People v. Judge Tac-An, G.R. No. 148000
(2003)]
The court may impose proper sanctions or
penalties, if counsel for the accused or the
prosecutor to enforce the mandatory character
of the pre-trial in criminal cases:
a. Does not appear at the pre-trial conference;
and
CRIMINAL PROCEDURE
b. Does not offer an acceptable excuse for his
lack of cooperation [Sec. 3, Rule 118]
3. Pre-Trial Order
Pre-trial order shall:
a. Be issued by the trial judge;
b. Be issued within 10 days after the
termination of the pre-trial
c. Contain the following:
1. Actions taken
2. Facts stipulated
3. Evidence marked
4. Admissions made
5. Number of witnesses to be presented;
and
6. Schedule of trial
Effect
a. Binds the parties
b. Limits the trial to those matters not disposed
of; and
c. Controls the course of the action during trial,
unless modified by the court to prevent
manifest injustice
[Sec. 4, Rule 118]
The procedure is substantially the same in civil
cases, except that any modification of the pre-
trial order in civil cases must be made before
the trial. No such limitation is provided for in
criminal cases.
APPLICATION OF JUDICIAL AFFIDAVIT
RULE
a. The Judicial Affidavit Rule shall apply to all
criminal actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use of
judicial affidavits, irrespective of the
penalty involved; or
3. With respect to the civil aspect of the
actions, whatever the penalties involved
are.
b. The prosecution shall submit the judicial
affidavits of its witnesses not later than five
days before the pre-trial, serving copies of
the same upon the accused. The
complainant or public prosecutor shall
attach to the affidavits such documentary or
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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.
Note: Should they fail to submit them within
the time prescribed, they shall be deemed
to have waived their submission [Lim v.
Lim, G.R. No. 214163 (2019)].
c. If the accused desires to be heard on his
defense after receipt of the judicial affidavits
of the prosecution, he shall have the option
to submit his judicial affidavit as well as
those of his witnesses to the court within ten
days from receipt of such affidavits and
serve a copy of each on the public and
private prosecutor, including his
documentary and object evidence
previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct
testimonies of the accused and his
witnesses when they appear before the
court to testify.
[Sec. 9, AM 12-8-8-SC]
J. Trial (Rule 119)
1. Trial In Absentia
Requisites for Trial in Absentia [ANU]
a. Accused has been Arraigned
b. He was duly Notified of trial
c. His failure to appear is Unjustified
[Bernardo v. People, G.R. No. 166980 (2007)]
Purpose
This is to speed up disposition of cases.
[People v. Agbulo, G.R. No. 73875 (1993)]
2. Examination of Witness for the
Prosecution
(See People v. Sergio, G.R. No. 240053,
October 9, 2019)
The Supreme Court allowed the use of Rule 23
suppletorily in criminal cases. But this is only
applied because of the unusual circumstances
of the Mary Jane Veloso case. By denying the
prosecution's motion to take deposition by
written interrogatories, the appellate court in
CRIMINAL PROCEDURE
effect silenced Mary Jane and denied her and
the People of their right to due process by
presenting their case against the said accused.
By its belief that it was rendering justice to the
respondents, it totally forgot that it in effect
impaired the rights of Mary Jane as well as the
People. By not allowing Mary Jane to testify
through written interrogatories, the Court of
Appeals deprived her of the opportunity to
prove her innocence before the Indonesian
authorities and for the Philippine Government
the chance to comply with the conditions set for
the grant of reprieve to Mary Jane. Mary Jane
cannot even take a single step out of the prison
facility of her own volition without facing severe
consequences. Her imprisonment in Indonesia
and the conditions attached to her reprieve
denied her of any opportunity to decide for
herself to voluntarily appear and testify before
the trial court in Nueva Ecija where the cases
of the respondents were pending. [People v.
Sergio, G.R. No. 240053 (2019)]
3. Requisites for Discharge of
Accused to Become a State Witness
Requisites for Discharge to be Proper
[TRHS]
a. Two or more persons are jointly charged
with the commission of any offense.
b. The prosecution files the motion before
Resting its case
c. The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a Hearing in
support of the discharge
d. The court is Satisfied that the conditions
required by the Rules are present. [Sec. 17,
Rule 119]
Requisites as to the Testimony to be a State
Witness [ANCoMM]
a. Absolute necessity for the testimony of the
accused whose discharge is requested
o He alone has the knowledge of the crime,
and not when his testimony would simply
corroborate or strengthen the evidence in
the hands of the prosecution [Flores v.
Sandiganbayan, G.R. No. L-63677 (1983)];
b. There is No other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused
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c. The testimony can be substantially
Corroborated in its material points
d. The accused does not appear to be the
Most guilty
e. The accused has not, at any time, been
convicted of any offense involving Moral
turpitude [Sec. 17, Rule 119]
4. Effects of Discharge of Accused as
State Witness
Effects of Discharge as State Witness
a. Evidence adduced in support of the
discharge shall automatically form part of
the trial [Sec. 17, Rule 119]
o Note: If the motion to discharge is denied,
the sworn statement is inadmissible as
evidence.
b. Discharge operates as an acquittal and a
bar to further prosecution for the same
offense [Sec. 18, Rule 119]
Exception: When the accused fails or refuses
to testify against his co-accused
Notes:
• Any error in asking for and in granting the
discharge cannot deprive the one
discharged of the acquittal and the
constitutional guaranty against double
jeopardy [People v. Verceles, G.R. No.
130650 (2002)]
• Subsequent amendment of the information
does not affect discharge [People v. Taruc,
G.R. No. L-14010 (1962)]
5. Demurrer to Evidence
What is a Demurrer
A demurrer to evidence is a motion to dismiss
due to the insufficiency of the evidence
presented by the prosecution to overturn the
presumption of innocence in favor of the
accused. [Riano 490, 2016 Ed.]
Dismissal on the Grounds of Insufficiency
of Evidence
a. May be initiated by the court motu proprio,
after giving the prosecution the opportunity
to be heard; or
b. Upon demurrer to evidence filed by the
accused
CRIMINAL PROCEDURE
[Sec. 23, Rule 119]
How Demurrer to Evidence is Made
1. With Leave of Court:
o Oral Motion: After the prosecution has
rested its case, the court shall inquire
from the accused if he desires to move
for leave of court to file a demurrer to
evidence or proceed with the
presentation of his evidence. If the
accused orally moves for leave of court
to file a demurrer to evidence, the court
shall orally resolve the same [A.M No 15-
06-10-SC, III No 13 (d)]
o Written Motion: It must specifically state
its grounds. Filed within a non-extendible
period of 5 days after the prosecution
rests its case. Prosecution may then
oppose within a non-extendible period of
5 days from receipt. [Sec. 23, Rule 119]
o If leave of court is granted, the demurrer
must be filed within a non-extendible
period of 10 days from the date leave of
court is granted, and the corresponding
comment shall be filed within a non-
extendible period of 10 days from receipt
of demurrer to evidence. [A.M No. 15-06-
10-SC, III No. 13 (d)]
2. Without Leave of Court: If despite the
denial of the motion for leave, the accused
insists on filing the demurrer to evidence,
the previously scheduled dates for the
accused to present evidence shall be
cancelled. [A.M No. 15-06-10-SC, III No. 13
(d)]
Test of Sufficiency of Prosecution’s
Evidence:
The evidence of the prosecution must prove
beyond reasonable doubt the:
a. Commission of the crime; and
Right of the Accused to Present Evidence after Demurrer is Denied
Filed with Leave of Court
REMEDIAL LAW
b. Precise degree of participation of the
accused
[Singian, Jr.v. Sandiganbayan, G.R. Nos.
195011-19 (2013)]
Effect of Granting Demurrer
The court dismisses the action on the ground
of insufficiency of evidence [Sec. 23, Rule 119]
This amounts to acquittal of the accused
[People v. Sandiganbayan, G.R. No. 164577
(2010)]
Note: The order granting the demurrer is not
appealable but may be reviewed via certiorari
under Rule 65 [People v. Sandiganbayan, G.R.
No. 164577 (2010)]
Effect of Denial of Motion for Leave to File
Demurrer
a. Accused may choose between
1. Filing the demurrer even without leave,
or
2. Adducing evidence for his defense [Sec.
23, Rule 119]
b. Order denying the motion for leave or order
denying the demurrer itself, is not
reviewable by appeal or by certiorari before
judgment [Sec. 23, Rule 119];
Procedure if there are several accused
If there are 2 or more accused and only one
presents a demurrer without leave of court, the
court may defer resolution until a decision is
rendered on the other accused.
If it can be shown from the decision that the
resolution on the demurrer was rendered not
only on the basis of the prosecution’s evidence
but also on the evidence adduced by his co-
accused, then the demurrer is deemed
resolved.
Filed without Leave of Court

Right to
May adduce evidence in his defense [Sec. Waives the right to present evidence
Present
23, Rule 119] [Sec. 23, Rule 119]
Evidence

Purpose is to determine whether or not the Submits the case for judgment on
Purpose demurrer was filed merely to stall the the basis of the evidence for the
proceedings prosecution

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Demurrer in a Civil Case v. Criminal Case
Civil Case Criminal Case

Failure of plaintiff to show that he is entitled Insufficiency of evidence

Premise
to relief

Leave of Requires no leave of court May be filed with or without leave of

Court court

Right to Denial of demurrer does not make the Accused may lose his right to
present defendant lose his right to present evidence present evidence if he filed the
evidence demurrer without leave of court

Grant of demurrer entitles plaintiff to appeal No appeal is allowed because the

and if dismissal is reversed, the defendant is grant is tantamount to acquittal
Appeal
deemed to have waived his right to present
evidence

Cannot be done by court motu proprio Court may on its own initiative
dismiss the action after giving
Motu proprio
prosecution an opportunity to be
heard

6. Revised Guidelines on Continuous 2. Motion for Preliminary Investigation: a.

Trial (A.M. No. 15-06-10-SC)
A. Applicability
Cases to which the guidelines apply
1. Newly filed criminal cases, including those
governed by Special Laws and Rules, in the
First and Second Level Courts, the
Sandiganbayan and the Court of Tax
Appeals as of Sept 1, 2017
2. Pending criminal cases with respect to the
remainder of the proceedings Note: These
guidelines are not applicable to cases
covered by the Rule on Summary
Procedure
Note: These guidelines are not applicable to
cases covered by the Rule on Summary
Procedure
B. Prohibited and Meritorious Motions
Prohibited Motions [JPreReQBAS]
The following motions are prohibited and shall
be denied outright before the scheduled
arraignment without need of comment and/or
opposition:
1. Motion for Judicial determination of
probable cause
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When it is filed beyond the 5-day
reglementary period in inquest proceedings
under Sec. 6, Rule 112 b. When required
under Sec. 8, Rule 112, or allowed in
inquest proceedings and the accused failed
to participate in the preliminary investigation
despite due notice
3. Motion for Reinvestigation of the prosecutor
recommending the filing of information once
the information has been filed before the
court:
1. If the motion is filed without prior leave of
court
2. When preliminary investigation is not
required under Sec. 8, Rule 112, and
3. When the regular preliminary
investigation is required and has been
actually conducted and the grounds
relied upon in the motion are not
meritorious, such as issues of credibility,
admissibility of evidence, innocence of
the accused, or lack of due process
when the accused was actually notified,
among others
4. Motion to Quash Information when the
ground is not one of those stated in Sec. 3,
Rule 117
CRIMINAL PROCEDURE
5. Motion for Bill of particulars that does not
conform to Sec. 9, Rule 116
6. Motion to suspend Arraignment based on
grounds not stated under Sec. 11, Rule 116
7. Petition to Suspend criminal action on the
ground of Prejudicial question, when no civil
case has been filed, pursuant to Sec. 7,
Rule 111
Meritorious Motions [WASSlapp]
Motions that allege plausible grounds
supported by relevant documents and/or
competent evidence, except those that are
already covered by the Revised Guidelines,
are meritorious motions, such as:
1. Motion to Withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review
2. Motion to Quash Warrant of Arrest
3. Motion to Quash Search Warrant under
Sec. 14 of Rule 121 or motion to suppress
evidence 4. Motion to dismiss on the ground
that criminal case is a Strategic Lawsuit
against Public Participation (SLAPP) under
Rule 6 of the Rules of Procedure for
Environmental Cases
K. Arraignment and Pre-Trial
Schedule of Arraignment and Pre-trial
• If accused is detained: within 10 calendar
days from receipt of case
• If accused is not detained: within 30
calendar days from acquiring jurisdiction
over the person
Notice of Arraignment and Pre-Trial
Notice shall be sent to the accused, his
counsel, private complainant or complaining
law enforcement agent, public prosecutor, and
witnesses whose names appear in the
information for purposes of plea bargaining,
arraignment and pre-trial. [A.M No 15-06-10-
SC, III No 8(b)]
Waiver of Reading of the Information
The court may allow a waiver of the reading of
the information if:
a. There are multiple cases,
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b. There is personal examination of the
accused by the court,
c. Full understanding and express consent of
the accused and his counsel,
d. Such consent is expressly stated in both the
minutes/certificate of arraignment and order
of arraignment,
e. The court shall explain the waiver to the
accused in a language/dialect known to him
and ensure his full understanding of the
consequences [A.M No 15-06-10-SC, III No
8(c)]
Plea Bargaining, Generally
If the accused desires to enter a plea of guilty
to a lesser offense, plea bargaining shall
immediately proceed, provided the private
offended party in private crimes, or the
arresting officer in victimless crimes, is present
to give his consent with the conformity of the
public prosecutor to the plea bargaining.
Thereafter, judgement shall be immediately
rendered in the same proceedings. [A.M No
15-06-10-SC, III No 8(d (i))]
Plea Bargaining in Drug Cases
a. Offers for plea bargaining must be initiated
in writing by way of a formal written motion
filed by the accused in court.
b. The lesser offense which the accused
proposes to plead guilty to must
necessarily be included in the offense
charged.
c. Upon receipt of the proposal for plea
bargaining that is compliant with the
provisions of the Plea Bargaining
Framework in Drugs Cases, the judge shall
order that a drug dependency assessment
be administered.
If the accused admits drug use or
denies it but is found positive after a
drug dependency test: Accused shall
undergo treatment and rehabilitation for a
period of not less than six (6) months,
credited to his/her penalty and the period
of his/her after-care and follow-up
program if the penalty is still unserved
If the accused is found negative for drug
use/dependency: Accused will be
released on time served, otherwise, he/she
will serve his/her sentence in jail minus the
counseling period at rehabilitation center.
CRIMINAL PROCEDURE
d. As a rule, plea bargaining requires the
mutual agreement of the parties and
remains subject to the approval of the
court. Regardless of the mutual agreement
of the parties, the acceptance of the offer
to plead guilty to a lesser offense is not
demandable by the accused as a matter of
right but is a matter addressed entirely to
the sound discretion of the court.
e. Though the prosecution and the defense
may agree to enter into a plea bargain, it
does not follow that the courts will
automatically approve the proposal.
Judges must still exercise sound
discretion in granting or denying plea
bargaining, taking into account the
relevant circumstances, including the
character of the accused.
f. The court shall not allow plea bargaining if
the objection to the plea bargaining is valid
and supported by evidence to the effect
that:
1. Offender is a recidivist, habitual
offender, known in the community as a
drug addict and a troublemaker, has
undergone rehabilitation but had a
relapse, or has been charged many
times; or
2. When the evidence of guilt is strong.
g. Plea bargaining in drugs cases shall not be
allowed when the proposed plea bargain
does not conform to the Court-issued Plea
Bargaining Framework in Drugs Cases.
h. Judges may overrule the objection of the
prosecution if it is based solely on the
ground that the accused's plea bargaining
proposal is inconsistent with the
acceptable plea bargain under any internal
rules or guidelines of the DOJ, though in
accordance with the plea bargaining
framework issued by the Court, if any.
i. If the prosecution objects to the accused's
plea bargaining proposal due to the
circumstances enumerated in item no. 5,
the trial court is mandated to hear the
prosecution's objection and rule on the
merits thereof. If the trial court finds the
objection meritorious, it shall order the
continuation of the criminal proceedings.
j. If an accused applies for probation in
offenses punishable under RA No. 9165,
other than for illegal drug trafficking or
pushing under Section 5 in relation to
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Section 24 thereof, then the law on
probation shall apply [People v. Montierro,
G.R. No. 254564 (2022)].
Where No Plea Bargaining or Plea of Guilty
Takes Place
If the accused does not enter a plea of guilty,
the court shall immediately proceed with the
arraignment and the pre-trial. [A.M No. 15-06-
10-SC, III No. 8(d (iii))]
Arraignment and Preliminary Conference of
Mediatable Cases Subject to the Rule on
Summary Procedure
The arraignment and preliminary conference
shall be held simultaneously and the court shall
take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
preliminary conference. [A.M No. 15-06-10-SC,
III No. 8(e)]
Absence of Parties in the Pre-Trial
The court shall proceed with the pre-trial
despite the absence of the accused and/or
private complainant, provided:
a. They were duly notified, and
b. The counsel for the accused and public
prosecutor are present. [A.M No. 15-06-10-
SC, III No 8(f (i))]
Stipulations
Proposals for stipulations shall be done with
the active participation of the court itself and
shall not be left alone to the counsels. [A.M No.
15-06-10-SC, III No 8(f (ii))]
Marking of Evidence
The documentary evidence of the prosecution
and the accused shall be marked. [A.M No. 15-
06-10-SC, III No. 8(f (iii))]
Pre-Trial Order
The Pre-trial Order shall immediately be served
upon the parties and counsel on the same day
after the termination of the pre-trial. [A.M No.
15-06-10-SC, III No. 8(f (iv))]
L. Trial and Memoranda
1. TRIAL
Examination of Witnesses
CRIMINAL PROCEDURE
The court shall encourage the accused and the
prosecution to avail of:
a. For the accused: Application for
examination of witness for the accused
before trial [Sec. 12 and 13, Rule 119]
b. For the prosecution: Conditional
Examination of Witness for the prosecution
[Sec. 15, Rule 119; A.M No. 15-06-10-SC,
III No. 13 (a)]
Absence of counsel de parte
In the absence of the counsel de parte, the
hearing shall proceed upon appointment by the
court of a counsel de officio. [A.M No. 15-06-
10- SC, III No. 13 (b)]
Oral Offer of Evidence
• How made: the offer of evidence, the
comment/objection thereto, and the court
ruling shall be made orally.
o If exhibits are attached to the record: In
making the offer, the counsel shall cite
the specific page number of the court
record where the exhibits being offered
are found. The court shall ensure that all
exhibits offered are submitted to it on the
same day of the offer.
o If the exhibits are not attached to the
record: the party making the offer must
submit the same during the offer of
evidence in open court.
• When made: on the same day after the
presentation of his last witness, the
opposing party is required to immediately
interpose his oral comment/objection
thereto. Thereafter, the court shall make a
ruling on the offer of evidence in open court
[A.M No. 15-06-10-SC, III No. 13 (c)]
Presentation of Rebuttal and Sur-Rebuttal
Evidence
If the court grants the motion to present rebuttal
evidence, the prosecution shall immediately
proceed with its presentation after the defense
has rested its case, and orally rest its case in
rebuttal after the presentation of its last rebuttal
witness. Thereafter, the accused shall
immediately present sur-rebuttal evidence, if
there is any, and orally rest the case after the
presentation of its last sur-rebuttal witness.
Thereafter, the court shall submit the case for
decision. [A.M No 15-06-10-SC, III No 13 (e)]
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One Day Examination of Witness Rule
The court shall strictly adhere to the rule that a
witness has to be fully examined in one day.
[A.M No 15-06-10-SC, III No 13 (f)]
2. MEMORANDA
Submission of Memoranda
• Submission of memoranda is discretionary
on the part of the court
• Format:
o Does not exceed 25 pages of Single
spaced
o Legal sized paper
o Size 14 font
• Period to submit shall be non-extendible
and shall not suspend the running of the
period of promulgation of the decision. With
or without memoranda, the promulgation
shall push through as scheduled. [A.M No
15-06-10-SC, III No 14]
M. Promulgation
Schedule of Promulgation
• Date of promulgation shall be announced in
open court and included in the order
submitting the case for decision
• Date shall not be more than 90 calendar
days from the date the case is submitted for
decision
o Exception: Case is covered by Special
Rules and other laws which provide for a
shorter period [A.M No 15-06-10-SC, III
No 16(a)]
Resolution of Motion for Reconsideration of
Judgment of Conviction or Motion for New
Trial
A motion for reconsideration of judgment of
conviction or motion for new trial filed within 15
days from promulgation shall be resolved
within a non-extendible period of 10 calendar
days from the submission of the comment of
the prosecution. With or without comment, the
court shall resolve the motion within the 10-day
period. [A.M No 15-06-10-SC, III No 16(b)]
N. Judgment (Rule 120)
Judgment is the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition on him of the
CRIMINAL PROCEDURE
proper penalty and civil liability, if any [Sec. 1,
Rule 120]
1. Requisites of a Judgment
Requisites
a. Written in the official language
• Note: If given verbally, it is incomplete
[People v. Catolico, G.R. No. L-31260
(1972)]
b. Personally and directly prepared by the
judge
c. Signed by the judge
d. Contains clearly and distinctly a statement
of the facts and the law upon which
judgment is based [Sec. 1, Rule 120]
There is sufficient compliance if the decision
summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.
Jurisdictional Requirements
a. Jurisdiction over the subject matter
b. Jurisdiction over the territory
c. Jurisdiction over the person of the accused
[Riano, 499, 2016 Ed., citing Cruz v. CA, G.R.
No. 123340 (2002) and Antiporda v.
Garchitorena, G.R. No. 133289 (1999)]
Judge who renders decision
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 the transcript. It does not violate
due process [People v. Badon, G.R. No.
126143 (1999)]
2. Contents of Judgment
Conviction
The judgment of conviction shall state:
[LQ-P-Pe-CD]
1. The Legal Qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances which attended its
commission
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2. The Participation of the accused in the
offense, whether as principal, accomplice or
accessory after the fact
3. The Penalty imposed upon the accused
4. The Civil liability or Damages caused by his
wrongful act/omission to be recovered from
the accused by the offended party, if there
is any, unless the enforcement of the civil
liability by a separate civil action has been
reserved/waived. [Sec. 2, Rule 120]
The penalty should not be imposed in the
alternative. There should be no doubt as to the
offense committed and the penalty for it.
Judgment for Two or More Offenses
Also known as duplicitous complaint or
information [Prof. Sanidad]
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 for each offense, setting out separately
the findings of fact and law in each offense
[Sec. 3, Rule 120]
Variance between Allegation and Proof
(Variance Doctrine)
General Rule: The defendant can be
convicted only of the crime with which he is
charged [Riano 504, 2016 Ed.]
However, 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 (2010)]
Exception: Accused shall be convicted if:
a. Offense proved which is included in the
offense charged (offense proved is lesser) –
some or all of the ingredients of the offense
charged constitutes the offense proved
Example: Murder includes homicide;
Serious physical injuries includes less
serious or slight physical injuries; Robbery
includes theft [Riano]
CRIMINAL PROCEDURE
b. Offense charged which is included in the
offense proved (offense charged is lesser) –
essential ingredients of the offense charged
constitute or form part of the ingredients of
the offense proven
Example: Less serious physical injuries are
included in serious physical injuries; Acts of
lasciviousness are included in rape; Theft is
included in robbery [Riano]
Where a complex crime is charged and the
evidence fails to support the charge as to
one of the component offenses, the
accused can be convicted of the one which
is proven [People v. Llaguno, G.R. No.
91262 (1998)]
Exception to the exception: Where there
are facts that supervened after the filing of
the information which change the nature of
the offense.
Acquittal
The judgment of acquittal shall state whether:
1. The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2. Merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission complained from which the
civil liability might arise did not exist.
[Sec. 2, Rule 120]
Effect of Acquittal on Civil Liability
General Rule: Acquittal based on failure to
prove guilt beyond reasonable doubt does not
extinguish the civil liability arising from his acts.
[Lontoc v. MD Transit, G.R. No. L-48949
(1988)]
Exception: Acquittal extinguishes civil liability
only when the judgment includes a declaration
that the facts from which the civil liability might
arise did not exist [Lontoc v. MD Transit, G.R.
No. L-48949 (1988)] Thus:
1. The court may nonetheless hold the
accused civilly liable in favor of the offended
party, or it may deny the award of civil
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damages expressly or impliedly by being
silent on the matter.
2. The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal, in his name and not in the name of
the People.
The Court is not precluded from expressing
disapproval of certain acts
General rule: The court has authority to
express disapproval of certain acts even if
judgment is for acquittal.
Exception: The court is not permitted to
censure the accused in a judgment for acquittal
– no matter how light, a censure is still a
punishment.
3. Promulgation of Judgment
1. IN GENERAL
Promulgation of judgment is an official
proclamation or announcement of the decision
of the court [Pascua v. Court of Appeals, G.R.
No. 140243 (2000), citing Jacinto, Sr. 521,
Commentaries and Jurisprudence on the
Revised Rules of Court [Criminal Procedure],
1994 Ed.]
Requisites
a. There must be a court legally organized or
constituted; and there must be a judge, or
judges, legally appointed or elected and
actually acting, either de jure or de facto
[Luna v. Rodriguez, G.R. No. 12647 (1917)]
b. Said judgment must be duly signed and
promulgated during the incumbency of the
judge who penned it [Payumo v.
Sandiganbayan, G.R. No. 151911 (2011)]
c. The judgment is promulgated by reading it
in the presence of the accused and any
judge of the court in which it was rendered
[Sec. 6, Rule 120]
Failure to Promulgate
Where there is no promulgation of judgment,
no right to appeal accrues. Merely reading the
dispositive portion of the decision is not
sufficient [Pascua v. CA, G.R. No. 140243
(2000)]
CRIMINAL PROCEDURE
Notice for Promulgation
The proper clerk of court shall give notice to the
accused personally or through his bondsman
or warden and counsel, requiring him to be
present at the promulgation of the decision. If
the accused was tried in absentia because he
jumped bail or escaped from prison, the notice
to him shall be served at his last known
address. [Sec. 6, Rule 120]
2. PROMULGATION IN CERTAIN
CIRCUMSTANCES
a. When the judge is absent or outside the
province or city, the judgment may be
promulgated by the clerk of court. [Sec. 6,
Rule 120]
General Rule: Presence of the accused is
mandatory in the promulgation of judgment
Exceptions: If the conviction is for a light
offense, the judgment may be pronounced
in the presence of the accused’s counsel or
representative. [Sec. 6, Rule 120]
b. If the accused is confined or detained in
another province or city, the judgment may
be promulgated by the executive judge of
the RTC having jurisdiction over the place of
confinement or detention upon request of
the court which rendered the judgment.
c. The court promulgating the judgment shall
have authority to accept the notice of appeal
and to approve the bail bond pending
appeal; provided, that if the decision of the
trial court convicting the accused changed
the nature of the offense from non-bailable
to bailable, the application for bail can only
be filed and resolved by the appellate court
[Sec. 6, Rule 120]
d. Promulgation when a judge is no longer a
judge – A judgment promulgated after the
judge who signed the decision has ceased
to hold office is not valid and binding. In like
manner, it cannot be promulgated after the
retirement of the judge. [Nazareno v. CA,
G.R. No. 111610 (2002)]
Effect of Failure of the Accused to Appear
at the Scheduled Date of Promulgation
Promulgation is made by recording the
judgment in the criminal docket and serving a
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copy at the accused’s last known address or
through counsel [Sec. 6, Rule 120]
If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the Rules against the judgment and the court
shall order his arrest. [Sec. 6, Rule 120].
However, within 15 days from promulgation of
judgment, he may surrender and file a motion
for leave of court to avail of these remedies. He
shall state the reasons for his absence. If he
proves his absence was for a justifiable cause,
he shall be allowed to avail of the remedies
within 15 days from notice [Sec. 6, Rule 120;
People v. De Grano, G.R. No. 167710 (2009)]
O. New Trial or Reconsideration
(Rule 121)
A. Grounds for New Trial
1. Errors of law or irregularities prejudicial to
the substantial rights of the accused have
been committed during the trial
General rule: Errors of the defense counsel
in the conduct of the trial is neither an error
of law nor an irregularity [Ceniza-Manantan
v. People, G.R. No. 156248 (2007)]
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction of
certain testimony which was not submitted
at the trial under improper or injudicious
advice of incompetent counsel of the
accused. [Aguilar v. Court of Appeals, G.R.
No. 114282 (1995)]
Irregularities must be with such seriousness
as to affect prejudicially the substantial
rights of the accused. [Sec. 2(a), Rule 121;
Tabobo v. People, G.R. No.220977 (2017)]
2. New and material evidence 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
CRIMINAL PROCEDURE
B. Grounds for Reconsideration
The court shall grant reconsideration on the
ground of errors of law or fact in the judgment,
which requires no further proceedings [Sec. 3,
Rule 121]
C. Requisites Before a New Trial
May be Granted on Ground of
Newly Discovered Evidence
The evidence
a. Was discovered after the trial
b. Could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence
c. Is material, not merely cumulative/
corroborative/impeaching; and
d. Is of such weight that it would probably
change the judgment if admitted
[Tadeja v. People, G.R. No. 145336 (2013)]
The accused has the burden of proving item (b)
above [US v. Torrente, G.R. No. 1001 (1922)]
The determinative test is the presence of due
or reasonable diligence to locate the thing to be
used as evidence in the trial [Briones v. People,
G.R. No. 156009 (2009)]
REMEDIAL LAW
Interest of Justice as Gauge for
Introduction of New Evidence
In People v. Almendras [G.R. No. 145915
(2003)], the court ruled that 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. In that
case, the relief of a new trial was granted to a
client who has suffered by reason of his/her
counsel’s gross mistake and negligence.
Form of motion for reconsideration & new
trial
a. Must be in writing
b. Must state the grounds on which it is based
c. If based on newly-discovered evidence,
motion must be supported by:
1. the affidavits of the witnesses by whom
such evidence is expected to be given, or
2. duly authenticated copies of documents
which are proposed to be introduced in
evidence
Notice of the motion shall be given to the
prosecutor [Sec. 4, Rule 120]

D. Effects of Granting a New Trial or Reconsideration

In general
a. The original judgment set aside or vacated; and
b. A new judgment is rendered accordingly [Sec. 6, Rule 121]

Other Effects of Granting New Trial or Reconsideration Depending on Ground

Ground Effect Action of the Court

All proceedings and evidence affected shall The court will allow
Errors of law or be set aside and taken anew. introduction of additional
irregularities If error or irregularity goes into the evidence in the interest of
committed during the jurisdiction, the entire proceeding is void and justice.
trial must be set aside.

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Evidence already adduced shall stand and
the newly-discovered and such other
Newly-discovered evidence shall be taken and considered
evidence together with the evidence already in the
record.
The court will allow
introduction of other such
evidence in the interest of
justice.

[Sec. 6, Rule 121]

of the law [Estarija v. People, G.R. No. 173990
Applying the Neypes Doctrine in Criminal (2009)].
Cases
The Neypes doctrine allows a fresh period of C. Where to Appeal
15 days within which to file the notice of appeal
For cases decided by Appeal to
in the RTC, counted from receipt of the order
denying a MNT or MR. Neypes v. CA [G.R. No. MTC/MeTC/MCTC Regional Trial Court
141534 (2005)] declared that: [Sec. 2(a), Rule
122]
“Henceforth, this ‘fresh period rule’ shall also
RTC Court of Appeals or
apply to Rule 40 governing appeals from the Supreme Court (in
Municipal Trial Courts to the Regional Trial
proper cases
Courts; Rule 42 on petitions for review from the provided by law)
Regional Trial Courts to the Court of Appeals;
[Sec. 2(a), Rule
Rule 43 on appeals from quasi-judicial 122]
agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme RTC or MTC/MeTC/ Sandiganbayan
Court.” MCTC (if it is [Sec. 4 (c) PD 1606
government duty- as amended by RA
The “fresh period rule” enunciated in Neypes related, i.e., filed under 8249]
also applies to criminal actions, particularly to E.O. 1, 2, 4 and 14-A)
Sec. 6 of Rule 122 [Yu v. Tatad, G.R. No. Court of Appeals Supreme Court
170979 (2011). [Sec. 2(a), Rule
122]
P. Appeal (Rule 122)
D. When to Appeal
A. Effect of an Appeal Within 15 days from:
a. promulgation of the judgment, or
An appeal in a criminal proceeding throws the b. notice of the final order appealed from
whole case open for review and it becomes the
duty of the appellate court to correct an error This period shall be suspended from the time a
as may be found in the appealed judgment motion for new trial or reconsideration is filed
WON it is made the subject of assignment of until notice of the order overruling the motion
errors [People v. Calayca, G.R. No. 121212 has been served upon the accused or his
(1999)]. counsel, at which time the balance of the period
begins to run.

Note: This rule has been modified by the

B. How Appeal Taken Neypes ruling, which allows for a fresh
period of 15 days within which to file the notice
The right to appeal is not a natural right nor a of appeal in the RTC, counted from receipt of
part of due process but merely a statutory the order denying a MNT or MR.
privilege and may be exercised only in the
manner and in accordance with the provisions E. Who May Appeal
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General Rule: Any party may appeal from a
judgment or final order [Sec. 1, Rule 122]
Exceptions:
a. A party may not appeal if the accused will
be placed in double jeopardy by such action
[Sec. 1, Rule 122]
b. If the judgment is for conviction and the
accused fails to appear during promulgation
without justifiable cause, he would lose the
remedy to appeal [Sec. 6, Rule 120]
F. Effect of Appeal by Any of
Several Accused
General Rule:
a. An appeal taken by one or more of
several accused shall not affect those who did
not appeal.
b. The appeal of the offended part from
the civil aspect shall not affect the criminal
aspect of the judgment or order appealed from
c. Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party [Sec. 11, Rule 122]
G. Grounds for Dismissal of
Appeal
When Appeal by the People Will Not Lie
The People/State cannot appeal when it will
put the accused in double jeopardy. The
constitutional mandate against double
jeopardy prohibits not only a subsequent
prosecution in a new and independent cause
but extends also to appeal in the same case by
the prosecution after jeopardy had attached
[Republic v. CA, G.R. No. L- 41115 (1982)]
Rationale
A verdict of that nature is immediately final and
to try on the merits, even in an appellate court,
places the accused in double jeopardy [Central
Bank v. CA, G.R. No. 41859 (1989)]
Dismissal of case upon filing of demurrer by
the accused was held to be final even though
based on erroneous interpretation of the law.
Hence, an appeal therefrom by the prosecution
would constitute double jeopardy [People v.
Sandiganbayan, G.R. No. 174504 (2011),
citing People v. Nieto, 103 Phil. 1133].

Effect of Appeal by Any of Several Accused
An appeal taken by one or more of several
accused shall not affect those who did not
appeal, except, insofar as the judgment of the
appellate court is favorable and applicable to
the latter. [People v. Valdez, G.R. No. 175602
(2013)]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable [People v. Duran, G.R. No. L-
13334 (1960)]

Decided by Appeal to Mode Period to File Appeal

MTC/MeTC/MCTC RTC [Sec. 3(a), (1) Filing of notice of Within 15 days from (a)
Rule 122] appeal with the court promulgation of the judgment,
which rendered the or (b) from notice of the final
RTC (original jurisdiction) Court of Appeals order appealed from, order appealed
[Sec. 3(a), Rule and (2) serving a copy From.
122] thereof to the adverse
party The period to appeal shall be
RTC (appellate Court of Appeals Petition for review suspended from the time a
jurisdiction) [Sec. 3(c), Rule (Rule 42) MNT or MR is filed until notice
122] of the order overruling the
motion has been served upon
RTC (where penalty Court of Appeals (1) Filing of notice of the accused or his counsel.
imposed is (a) reclusion [Sec. 3(c), Rule appeal with the court
perpetua, (b) life 122] which rendered the
[Sec. 6, Rule 122]
imprisonment, or (c) where a order appealed from,
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Decided by Appeal to Mode Period to File Appeal
lesser penalty is imposed but and (2) serving a copy
for offenses committed on the thereof to the adverse
same occasion or which party
arose out of the same
occurrence that gave rise to
the more serious offense
RTC (where penalty imposed Court of Appeals Automatic Review as Automatic Review; hence,
is death penalty) [Sec. 3(d), Rule provided in Sec. 10, no period to file appeal
122] Rule 122
Note: R.A. 9346 now
prohibits the imposition of the
death penalty
Court of Appeals (where Supreme Court Petition for review Within 15 days from notice of
penalty is not the Death [Sec. 3(e), Rule on Certiorari [Rule judgment/final order/denial of
Penalty, reclusion perpetua, 122] 45] motion for new trial or motion
or life imprisonment) for reconsideration.
Note: Should only
raise questions of law An extension of 30 days may
and should raise the be granted, subject to the
errors of the CA (not court’s discretion [Sec. 2, Rule
the RTC’s) [Batistis v. 45].
People, G.R. No.
181571 (2009)]
Court of Appeals (where Supreme Court Filing of Notice of Automatic review
penalty is the Death Penalty, [Sec. 13(c), Rule Appeal with the Court
reclusion perpetua, or life 122] of Appeals
imprisonment
All other appeals to Petition for review on
the SC certiorari [Rule 45]

Q. Search and Seizure (Rule
126)
A. Nature of Search Warrant
Nature
It is an order in writing; issued in the name of
the People of the Philippines; signed by a
judge; and directed to a peace officer,
commanding him to search for personal
property described in the warrant and bring it
before the court [Sec. 1, Rule 126]
A search warrant is not a criminal action nor
does it represent a commencement of a
criminal prosecution even if it is entitled like a
criminal action. It is not a proceeding against a
person but is solely for the discovery and to get
possession of personal property. [Worldwide
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Web Corporation v. People, G.R. No. 161106
(2014)]
Constitutional Safeguard
No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce,
and particularly describing the place to be
searched, and the things/persons to be seized
[Sec. 2, Art. III, Const.]
Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for
any purpose in any proceeding [Sec. 3(2), Art.
III, Const.]
As a rule, the Constitution mandates that a
search and seizure must be carried out through
or on the strength of a judicial warrant
CRIMINAL PROCEDURE REMEDIAL LAW
predicated upon the existence of probable a. Search incidental to a lawful arrest
cause. [Comerciante v. people, G.R. No. b. Consented search;
205926 (2015)] c. Search of moving vehicle
d. Checkpoints
Directed upon acts of the government, not e. Plain view
private persons f. Stop and frisk
The constitutional protection is directed against g. Customs search
the acts of the government and its agents, not h. Rule specific to Public Utility Searches [Yu
private persons [People v. Marti, G.R. No. v. Presiding Judge, G.R. No. 142848
81561 (1991)] (2006)]
i. Airport Searches [People v. O’Cochlain,
General Rule: Search of property is G.R. No. 229071 (2018)]
unreasonable unless it has been authorized by j. Other exceptions, such as exigent
a valid search warrant. circumstance

Exceptions:

Search warrant Warrant of arrest

Order in writing issued in the name
of the People of the Philippines,
Nature and signed by the judge and directed to
purpose the peace officer to search personal
property described therein and to
bring it to court [Sec. 1, Rule 126]
Order directed to the peace officer to
execute the warrant by taking the person
stated therein into custody that he may
be bound to answer for the commission
of the offense

The judge must personally examine
in the form of searching questions
and answers, under oath, the
complainant and witnesses he may
produce on facts personally known
Determination
to them and attach to the record
of Probable
their sworn statements, together
cause
with the affidavits submitted [Sec. 5,
Rule 126].
Sec. 2, Art. III of the Constitution does not
mandatorily require the judge to
personally examine the complainant and
her witnesses. Instead, he may opt to
personally evaluate the report and
supporting documents submitted by the
prosecutor or he may disregard the
prosecutor’s report and require the
submission of supporting affidavits of
witnesses [People v. Grey,, G.R. No.
180109 (2010), citing Soliven v.
Makasiar, G.R. No. L-82585 (1988)]

It must particularly describe the It must particularly describe the person to

place to be searched and the things be arrested [Sec. 2, Art. III, Const.]
Form to be seized [Sec. 2, Art. III,
CONST.], which may be anywhere
in the Philippines [Sec. 4, Rule 126].

The warrant must direct that it be No such limitation under Sec. 2, Art. III,
served in the day time, unless the Constitution and Rule 113.
affidavit asserts that the property is
When executed on the person or in the place
ordered to be searched, in which
case a direction may be inserted

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Search warrant Warrant of arrest

that it be served at any time of the

day or night [Sec. 9, Rule 126].

Valid for 10 days from its date [Sec.
10, Rule 126]
The lifetime of the search warrant
Validity
also ends when a return has already
been made [Mustang Lumber v. CA,
G.R. No. 104988 (1996)].
Does not expire
The 10-day period referred to in Sec. 4,
Rule 113 refers to the time within which
the head of the office to whom the
warrant of arrest was delivered for
execution shall cause the warrant to be
executed.

B. Application for Search two devices, or such number as may be

Warrant
General rule: It may be filed in any court within
whose territorial jurisdiction the crime was
committed. However, if the alleged act
constitutes a continuing or transitory crime, the
application may be with any court where any
element of the alleged offense was committed
[Sony Computer v. Evergreen, G.R. No.
161823 (2007)].
Exception: For compelling reasons, which
must be stated in the application, it may also be
filed:
a. If the place of the commission of the crime
is known, any court within the judicial region
where the crime was committed
b. Any court within the judicial region where
the warrant shall be enforced
However, if the criminal action has already
been filed, the application shall only be made
in the court where the criminal action is pending
[Sec. 2, Rule 126].
Rules on the Use of Body-Worn Cameras
Under A.M. No. 21-06-08-SC, the trial court
may, upon finding probable cause, issue an
arrest warrant with an order requiring the use
of at least one body-worn camera and one
alternative recording device, or a minimum of
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necessary to capture and record the relevant
incidents during its execution.
In order for the evidence seized by the use of
body-worn cameras to be admissible,
a. The person to be arrested must be notified
that they are being recorded
b. The officers shall ensure that they are worn
in a conspicuous location and in a manner
that maximizes their ability to capture a
recording
c. All recordings from the cameras or devices
shall be stored in an external media storage
device and simultaneously deposited in a
sealed package with the issuing court
Failure to observe the requirement of using
body-worn cameras or alternative recording
devices shall not render the arrest unlawful or
render the evidence obtained inadmissible.
Issuance and Form of Search Warrant
If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they
exist, he shall issue the warrant, which must be
substantially in the form prescribed the Rules
[Sec. 6, Rule 126]
Thus, the search warrant must be in writing and
contain
a. Name of person against whom it is directed
b. Offense for which it was issued
CRIMINAL PROCEDURE
c. The place to be searched, and
d. The description of the specific things to be
seized
e. A directive to law enforcement officers to
search and seize and for them to bring in
court the things seized
f. Signature of the judge issuing it
The absence of such requisites will cause the
search warrant’s downright nullification [Santos
v. Pryce Gases, Inc., G.R. No. 165122 (2007)]
C. Probable Cause for Issuance
of Search Warrant
Probable cause means the existence of such
facts and circumstances which would lead a
reasonably discreet and prudent man to
believe that an offense has been committed,
and that objects sought in connection with
the offense are in the place sought to be
searched [People v. Breis., G.R. No. 205823
(2015)]
This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay. The probable
cause must refer only to one specific offense
[Roan v. Gonzales, G.R. No. 71410 (1986)]
Note: Probable cause to arrest does not
necessarily involve a probable cause to search
and vice-versa.
D. Personal Examination by
Judge of the Applicant and
Witness
The Rules require the judge to comply with a
specific procedure in the conduct of the
examination of the complainant and the
witnesses he may produce
a. The examination must be personally
conducted by the judge;
b. The examination must be in the form of
searching questions and answers;
c. The complainant and the witnesses shall be
examined on those facts personally known
to them;
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d. The statements must be in writing and
under oath; and
e. The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to the
record.
[Sec. 5, Rule 126]
Searching Questions and Answers
Searching questions are such questions which
have the tendency to show the commission of
a crime and the perpetrator thereof [Luna v.
Plaza, G.R. No. 27511 (1968)]
In search cases, the application must be
supported by substantial evidence
a. That the items sought are in fact seizable by
virtue of being connected with criminal
activity; and
b. That the items will be found in the place to
be searched
[People v. Tuan, G.R. No. 176066 (2010)]
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR,
G.R. No. 129651 (2000)]
Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application [Yao v. People,
G.R. No. 168306 (2007)]
Examination under Oath
The judge must examine under oath or
affirmation the complainant and the witness he
may produce [Sec. 2, Art. III, Const.}
Oath includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
[Alvarez v. CFI, G.R. No. 45358 (1937)]
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
CRIMINAL PROCEDURE
complaint or his witnesses, and attach the
same to the record [Prudente v. Judge Dayrit,
G.R. No. 82870 (1989)]
E. Particularity of Place to Be
Searched and Things to Be
Seized
Warrant issued must particularly describe the
place to be searched and the things to be
seized [Sec. 2, Art. III, Const.].
Particularity of Place to be Searched
Description of the place to be searched is
sufficient if the officer with the search warrant
can, with reasonable efforts, ascertain and
identify the place intended [People v. Veloso,
G.R. No. L-23051 (1925)].
REMEDIAL LAW
gives the officer executing the warrant the
discretion over which items to take [Worldwide
Web Corporation v. People, G.R. No. 161106
(2014)]
Where the language used is too all-embracing
as to include all the paraphernalia of petitioner
in the operation of its business, the SW is
constitutionally objectionable [Columbia
Pictures v. Flores, G.R. No. 78631 (1993)].
Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather
In general, it is not required that a technical
description be given, for this would mean that
no search warrant could issue [People v.
Rubio, G.R. No. L-35500 (1932)].

The search warrant does not require the name
of the person who occupies the described
premises. The search warrant is issued for the
search of specifically described premises only
and not for the search of a person [Quelnan v.
People, G.R. No. 166061 (2007)].
The general description of the documents
listed in the search warrant does not render it
void if it is severable, and those items not
particularly described may be cut off without
destroying the whole [Uy v. BIR, G.R. No.
129651 (2000)].

F. Personal Property to be The rule does not require that the property to
be seized should be owned by the person
Seized against whom the search warrant is directed. It
is sufficient that the person against whom the
What May Be Seized warrant is directed has control of possession of
a. Personal property subject of the offense; the property sought to be seized [Burgos v.
b. Personal property stolen/embezzled and Chief of Staff, G.R. No. L-64261 (1984)].
other proceeds/fruits of the offense;
c. Personal property used or intended to be
used as the means of committing an offense
G. Exceptions to the Search
[Sec. 3, Rule 126] Warrant Requirement
a. Search Incidental to Lawful Arrest
The scope of the search warrant is limited to b. Consented Search
personal property. It does not issue for seizure c. Search of a Moving Vehicle
of immovable properties [see Sec. 3, Rule 126] d. Checkpoints; Body Checks in Airport
e. Plain View
General Rule: Things to be seized must be f. Stop and Frisk
described particularly. General search g. Enforcement of Customs Law
warrants are not allowed. [Sec. 2, Art. III, h. Other Exceptions
Const.] 1. Exigent and Emergency Circumstances
2. Buy-Bust Operation
A general warrant is defined as "a search or 3. Private Searches
arrest warrant that is not particular as to the 4. Search involving Public Utility Vehicles
person to be arrested or the property to be [Saluday v. People, G.R. No. 215305
seized." It is one that allows the "seizure of one (2018)].
thing under a warrant describing another" and
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CRIMINAL PROCEDURE
Note: Items (1) to (3), (5) to (7) and (8)(a) are below
enumerated in Veridiano v. People [G.R. No.
200370 (2017)] The other items are sanctioned
by the SC in other cases. See the discussion
Requisites
Even without a warrant, the person
arrested may be searched for:
a. Dangerous weapons
b. Anything which may have been used
in the commission of an offense, or
c. Anything which may constitute proof
in the commission of the offense
[Sec. 13, Rule 126]
The arrest must precede the search;
generally, the process cannot be
reversed. Nevertheless, a search
substantially contemporaneous with an
arrest can precede the arrest if the
police have probable cause to make the
Search
arrest at the outset of the search [Sy v.
Incidental to
People, G.R. No. 182178 (2011) citing
Lawful Arrest
People v. Racho (erroneously referred
to as Rancho), G.R. No. 186529 (2010)].
The rule assumes that the arrest is legal.
If the arrest is illegal, then the search is
illegal and as a result, the things seized
are inadmissible as evidence [People v.
Aruta, G.R. No. 120195 (1998)].
Where a search is first undertaken, and
an arrest was effected based on
evidence produced by such search, both
search and arrest are illegal [Lui v.
Matillano, G.R. No. 141176 (2004)].
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Notes
When an arrest is made, it is
reasonable for the arresting officer to
search the person arrested in order to
remove any weapon that the latter
might use in order to resist arrest or
effect his escape. Otherwise, the
officer’s safety might well be
endangered, and the arrest itself
frustrated.
In addition, it is entirely reasonable for
the arresting officer to search for and
seize any evidence on the arrestee’s
person in order to prevent its
concealment or destruction [People v.
Calantiao, G.R. No. 203984 (2014),
citing Valeroso v. CA, G.R. No.
164815 (2009)].
The warrantless search incident to a
lawful arrest cannot be made in a
place other than the place of arrest. If
search made at place of arrest yields
nothing, but a second search
conducted on suspect at the police
station yields evidence, the second
search is unlawful and unreasonable
[Vaporoso v. People, G.R. No.
238659 (2019)].
CRIMINAL PROCEDURE
Requisites
Jurisprudence requires that in case of
consented searches or waiver of the
constitutional guarantee against
obtrusive searches, it must first appear
that:
a. The right exists;
b. The person involved had knowledge,
either actual or constructive, of the
existence of such right; and
c. The said person had an actual
intention to relinquish the right.
[People v. Nuevas, G.R. No. 170233
(2007)]
Consent to a search is not to be lightly
inferred, but must be shown by clear and
convincing evidence. It is the State
which has the burden of proving, by
clear and positive testimony, that the
necessary consent was obtained and
that it was freely and voluntarily given
[Valdez v. People, G.R. No. 170180
(2007)]
When a vehicle is stopped and
subjected to an extensive search, such
a warrantless search should be
constitutionally permissible only if the
officers conducting the search have
reasonable or probable cause to
believe, before the search, that either:
a. the motorist is a law-offender; or
b. they will find the instrumentality or
Search of a
evidence pertaining to a crime in the
Moving
vehicle to be searched
Vehicle
[Caballes v. CA, G.R. No. 136292
Consented
(2002)].
Search
Officers are limited to routine checks
where the examination of the vehicle is
limited to visual inspection. For a
warrantless search in a moving vehicle,
it is the vehicle that is the target of the
search, and not the person. The clear
target of the search is the accused,
based on a description given, and not
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Notes
Relevant to the determination of
consent are the following
characteristics of the person giving
consent and the environment in which
consent is given:
a. The age of the defendant;
b. Whether he was in a public or
secluded location;
c. Whether he objected to the
search or passively looked on;
d. The education and intelligence of
the defendant;
e. The presence of coercive police
procedures;
f. The defendant's belief that no
incriminating evidence will be
found;
g. The nature of the police
questioning;
h. The environment in which the
questioning took place; and
i. The possibly vulnerable
subjective state of the person
consenting.
[Caballes v. CA, G.R. No. 136292
(2002)]
Peace officers may lawfully conduct
searches of moving vehicles without
need of a warrant as it is
impracticable to secure a judicial
warrant before searching a vehicle
since it can be quickly moved out of
the locality or jurisdiction in which the
warrant may be sought [People v.
Tuazon, G.R. No. 175783 (2007)].
However, these searches would be
limited to visual inspection and the
vehicles or their occupants cannot be
subjected to physical or body
searches, except where there is
probable cause to believe that the
occupant is a law offender or the
contents of the vehicles are
instruments or proceeds of some
criminal offense.
CRIMINAL PROCEDURE REMEDIAL LAW

Requisites Notes

the vehicle. Further, there is no probable

cause when the officers only acted on an
anonymous tip from an informant, as it
is hearsay. Instead of relying only on
the tip, officers should find reasonable
grounds to believe that the person who
was searched had committed or was
planning to commit a crime. The officer
must observe facts that would lead to a
reasonable degree of suspicion of a
person, and should not adopt the
suspicion initiated by another person.
This is manifested through overt acts
and circumstances personally observed
by the police which created further
suspicion. [People v. Sapla, G.R. No.
244045, (2020)]

Searches conducted in checkpoints are Routine inspections are not regarded

valid as long as they are warranted by
the exigencies of public order and
conducted in a way least intrusive to
motorists.
Although the general rule is that
motorists and their vehicles as well as
pedestrians passing through
checkpoints may only be subjected to a
routine inspection, vehicles may be
stopped and extensively searched when
there is probable cause which justifies a
reasonable belief of the men at the
Checkpoints; checkpoints that either the motorist is a
Body Checks law offender or the contents of the
in Airport vehicle are or have been instruments of
some offense [People v. Vinecario, G.R.
No. 141137 (2004)].
as violative of an individual’s right
against unreasonable search:
a. Where the officer merely draws
aside the curtain of a vacant
vehicle which is parked on the
public fair grounds
b. Officer simply looks into a vehicle
c. Officer flashes a light therein
without opening car’s doors
d. Occupants not subjected to a
physical search
e. Inspection is limited to visual
search or visual inspection, or
f. Routine check is conducted in a
fixed area
[Caballes v. CA, G.R. No. 136292
(2002)]

While the right of the people to be secure

in their persons, houses, papers, and
effects against unreasonable searches
and seizures is guaranteed by Section 2,
Article III of the 1987 Constitution,
a routine security check being
conducted in air and sea ports has been
a recognized exception [People v.
O’Cochlain, G.R. No. 229071 (2018)].

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CRIMINAL PROCEDURE
Requisites
a. Police must have prior justification to
a prior valid intrusion i.e., based on1.
the valid warrantless arrest in which
the police are legally present in the 2.
pursuit of their official duties
b. Evidence was inadvertently
discovered by the police who have a
right to be where they are
c. Evidence must be immediately and
apparently illegal (i.e., drug
paraphernalia)
Plain View d. Plain view justified mere seizure of
Situation evidence without further search
[People v. Martinez, G.R. No. 191366
(2010)]
Stop and frisk is a limited protective
search of outer clothing for weapons
[Malacat v. CA, G.R. No. 123595 (1997)]
Where a police officer observes unusual
conduct, which leads him reasonably to
conclude in the light of his experience
that criminal activity may be afoot, and
that a person with whom he is dealing
may be armed and presently dangerous,
he is entitled to conduct a stop and frisk
Stop and Frisk search.
Situation
Arresting officer should have personally
observed two or more suspicious
circumstances to warrant a stop and frisk
search [Manibog v. People, G.R. No.
211214 (2019)]
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Notes
Limitations
It may not be used to launch unbridled
searches and indiscriminate seizures
It does not extend to a general
exploratory search made solely to
find evidence of defendant’s guilt
[People v. Musa, G.R. No. 96177
(1993)]
Rationale
The doctrine is a recognition of the
fact that when the police come across
immediately recognizable
incriminating evidence not named in
the warrant, they should not be
required to close their eyes to it,
regardless of whether it is evidence of
the crime they are investigating or
evidence of some other crime. The
doctrine is also a recognition of the
fact that it would be needless
inconvenience to require the police to
obtain another warrant [US v. Gray,
484 F.2d 352 (6th Cir., 1978)]
Dual purpose of stop-and-frisk:
a. The general interest of
effective crime prevention and
detection and
b. 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 unexpectedly and
fatally be used against the police
officer.
[Malacat v. CA, G.R. No. 123595
(1997)]
Stop and Frisk v. Search Incidental
to Lawful Arrest
The latter happens when one is
caught in flagrante delicto, the former
is done in order to prevent a crime
from occurring [People v. Cogaed,
G.R. No. 200334 (2015)].
CRIMINAL PROCEDURE
Requisites
For the enforcement of customs duties
and tariff laws, the Collector of Customs
is authorized to effect searches and
seizure [General Travel Services v.
David, G.R. No. L-19259 (1966)]
The Customs Modernization and Tariff
Act (CMTA) authorizes customs officers
to:
a. Enter, pass through or search any
Enforcement land, enclosure, warehouse [Sec.
of Customs 219, CMTA]
Law b. Inspect/search/examine any vessel
or aircraft and any
trunk/package/box/envelope or any
person on board, or stop and
examine any vehicle/beast/person
suspected of holding/conveying any
dutiable/prohibited article introduced
into the Philippines contrary to law
[Sec. 221, CMTA].
Search Prior to entry
involving Passengers and their bags and
Public Utility luggages can be subjected to a routine
Vehicles inspection akin to airport and seaport
security protocol. In lieu of electronic
scanners, passengers can be required
instead to open their bags and luggages
for inspection made in the passenger's
presence. Passengers can also be
frisked.
Should the passenger object, he or she
can validly be refused entry into the
terminal.
While in transit
A bus can still be searched by
government agents or the security
personnel of the bus owner in the
following instances:
1. Upon receipt of information that a
passenger aboard carries
contraband or illegal articles; the bus
can be stopped en route to allow for
an inspection of the person and his
or her effects
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Notes
General Rule: The CMTA does not
require a warrant for such searches
Exception: In the search of a
dwelling house, a search warrant is
required [Sec. 220, CMTA]
Note: RTCs are devoid of any
competence to pass upon the validity
or regularity of seizure and forfeiture
proceedings conducted by the
Bureau of Customs and to enjoin or
otherwise interfere with these
proceedings. It is the Collector of
Customs, sitting in seizure and
forfeiture proceedings, who has
exclusive jurisdiction to hear and
determine all questions touching on
the seizure and forfeiture of dutiable
goods [Asian Terminals, Inc. v.
Bautista-Ricafort, G.R. No. 166901
(2006)].
In both situations the search must
also satisfy the following conditions to
qualify as a valid reasonable search:
1. As to the manner of the search, it
must be the least intrusive and
must uphold the dignity of the
person or persons being
searched, minimizing, if not
altogether eradicating, any cause
for public embarrassment,
humiliation or ridicule
2. Neither can the search result from
any discriminatory motive such as
insidious profiling, stereotyping
and other similar motives
The fundamental rights of
vulnerable identities, persons
with disabilities, children and
other similar groups should be
protected
3. As to the purpose of the search, it
must be confined to ensuring
public safety
4. As to the evidence seized from
the reasonable search, courts
CRIMINAL PROCEDURE REMEDIAL LAW

Requisites Notes

2. Whenever a bus picks passengers must be convinced that

en route, the prospective passenger precautionary measures were in
can be frisked and his or her bag or place to ensure that no evidence
luggage be subjected to the same was planted against the accused
routine inspection as though the
person boarded the bus at the [Saluday v. People, G.R. No. 215305
terminal (2018)]
3. A bus can be flagged down at
designated military or police
checkpoints where State agents can
board the vehicle for a routine
inspection of the passengers and
their bags or luggage

[Saluday v. People, G.R. No. 215305

(2018)]

Other Exceptions liability [People v. Chan Fook, G.R. No. L-

Exigent and Emergency Circumstances
In one case, there was a prevailing general
chaos and disorder because of an ongoing
coup, and the raid of the office/building was
precipitated by an intelligence report that said
office was being used as HQ by the RAM. The
raiding team had no opportunity to apply for
warrant as the court then was closed [People
v. de Gracia, G.R. Nos. 102009-10 (1994)].
I. Remedies From Unlawful
Search and Seizure
Who May Avail
Only the party whose rights have been
impaired thereby; the objection to an unlawful
search and seizure is purely personal and
cannot be availed of by third parties [Stonehill
v. Diokno, G.R. No. L-19550 (1967); Santos v.
Pryce Gases Inc., G.R. No. 165122 (2007)]
1. Employ Any Means to Prevent the
Search
Without a search warrant, the officer cannot
insist on entering a citizen’s premises. If he
does so, he becomes an ordinary intruder.
The person to be searched may resist the
search and employ any means necessary to
prevent it, without incurring any criminal
16968 (1921)].
2. File Criminal Action against Officer
A public officer/employee who procures a
search warrant without just cause is
criminally liable under Art. 129, RPC, on
search warrants maliciously obtained and
abuse in the service of those legally
obtained.
3. File a Motion to Quash the Illegal
Warrant
This remedy is employed if search is not yet
conducted.
Who May File
1. Person who will potentially be injured;
2. Person to be searched;
3. Owner of the property to be searched.
Where to File
1. Motions to quash a search warrant and/or to
suppress evidence obtained thereby may
be filed in and acted upon only by the court
where the action has been instituted.
2. If no criminal action has been instituted,
motion may be filed in and resolved by the
court that issued the warrant.
3. If such court failed to resolve the motion,
and a criminal case is subsequently filed in

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CRIMINAL PROCEDURE
another court, the motion shall be resolved
by the latter court. [Sec. 14, Rule 126]
Grounds
A motion to quash a search warrant may be
based on grounds extrinsic of the search
warrant, such as (1) the place searched or the
property seized are not those specified or
described in the search warrant; and (2) there
is no probable cause for the issuance of the
search warrant [Abuan v. People, G.R. No.
168773 (2006)].
Failure to file Motion to Quash
Where no MTQ the search warrant was filed in
or resolved by the issuing court, the interested
party may move in the court where the criminal
case is pending for the suppression as
evidence of the personal property seized under
the warrant if the same is offered therein for
said purpose. [Malaloan v. CA, G.R. No.
104879 (1994)].
4. File a Motion to Return Things
Seized
The venue where the motion will be filed
follows the same rules as in a motion to quash.
An accused may file a motion to suppress
evidence if he is not among the persons who
can file a motion to quash.
General Rule: Goods seized by virtue of an
illegal warrant must be returned.
Exception: The illegality of the search warrant
does not call for the return of the things seized,
the possession of which is prohibited by law
[Castro v. Pabalan, G.R. No. L-28642 (1976)].
5. Motion to Suppress Evidence
This refers to a motion to suppress as evidence
the objects illegally taken pursuant to the
exclusionary rule, which states that any
evidence obtained through unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding
Civil and Criminal Liability from
Unreasonable Search and Seizure
The following offenses may result from
unreasonable search and seizure
a. Violation of domicile [Art. 128, RPC]
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b. Search warrant maliciously obtained [Art.
129, RPC]
c. Searching domicile without witnesses [Art.
130, RPC]
d. Unjust interlocutory order [Art. 206, RPC]
The public officer or employee may be held
liable for:
a. Entering without authority; against the will;
refuses to leave
b. A search warrant procured without just
cause or if with just cause, exceeds his
authority or uses unnecessary severity of
force
c. Conducting the search without the required
witnesses.
The judge may be held liable for
a. Knowingly rendering an unjust interlocutory
order [Art. 206, RPC]
b. Inexcusable negligence or ignorance [Art.
205, RPC]
It may also result in civil liability for
a. Violation of rights and liberties [Art. 32(9),
CC]
b. Malicious prosecution and acts referred to
Art. 32 [Art. 2218, CC]
Malice or bad faith is not required.
Not only official actions, but all persons,
including those private parties/entities upon
whose initiative the unreasonable search was
conducted, are held liable for damages [MHP
Garments v. CA, G.R. No. 86720 (1994)].
Waiver of Immunity against Unreasonable
Search and Seizure
The constitutional immunity against
unreasonable searches and seizure is a
personal right that may be waived
expressly/impliedly only by the person whose
right is being invaded or one who is expressly
authorized to do so in his behalf [Pasion v.
Locsin, G.R. No. L-45950 (1938)].
Requisites
a. It must appear that the right exists
b. The person involved had knowledge (actual
or constructive) of the existence of such
right
CRIMINAL PROCEDURE
c. The person had an actual intention to
relinquish the right
[Pasion v. Locsin, G.R. No. L-45950 (1938)]
Warrants Relating to Bank Accounts
General Rule: Sec. 2 of R.A. No. 1405
otherwise known as the Bank Secrecy Act of
1995 provides that all deposits of whatever
nature with banks or banking institutions in the
Philippines including investments in bonds
issued by the Government of the Philippines,
its political subdivisions and its
instrumentalities, are hereby considered as of
an absolutely confidential nature.
Exception: Bank accounts may be examined,
inquired, or looked into:
1. Upon written permission of the depositor
2. In cases of impeachment
3. Upon order of a competent court in cases of
bribery or dereliction of duty of public
officials
4. In cases where the money deposited or
invested is the subject matter of the
littigation
5. As provided by subsequent legislation (i.e.
Anti-Money Laundering Act or AMLA)
Bank Inquiry Order as Search Warrant
A bank inquiry order is a provisional relief
available to the Anti-Money Laundering
Council in aid of its investigative powers. It
partakes of the character of a search warrant
[Subido Law O.ffices v. CA, G.R. No. 216914,
(2016)]
Investigations for Anti-Money Laundering
offenses, including the proceedings for the
issuance of bank inquiry order, are kept ex
parte in order not to frustrate the State’s effort
in building its case and eventually prosecuting
money laundering offenses.
The absence of notice to the owner of a bank
account that an ex parte application as well as
an order to inquire has been granted by the
Court of Appeals is not unreasonable nor
arbitrary. The lack of notice does not violate the
due process clause [Ibid.]
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R. Provisional Remedies in
Criminal Cases (Rule 127)
1. Nature
Provisional remedies in civil actions, insofar
as they are applicable, may be availed of in
connection with the civil action deemed
instituted with the criminal action [Sec. 1, Rule
127]
If the civil action is suspended on account of
filing of the criminal action, the court with which
the civil case is filed is not thereby deprived of
its authority to issue auxiliary writs that do not
go into the merits of the case [Ramcar, Inc v.
de Leon, G.R. No. L-1329 (1947)].
Provisional remedies are not available
when:
a. Offended party has waived the civil claim
b. Offended party has reserved the civil claim
c. Offended party has already instituted a
separate civil action
d. Criminal action carries with it no civil liability
Note: If civil action has been waived, reserved,
or instituted separately, the provisional remedy
applicable should be applied for in the separate
civil action instituted [Riano 571, 2011 Updated
Ed.]
2. Kinds of Provisional
Remedies
The accused may present evidence to prove
his defense and damages, if any, arising from
the issuance of a provisional remedy in the
case [Sec. 11(b), Rule 119].
a. Preliminary Attachment
When Proper
The offended party may have the property of
the accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused in the following
cases:
1. When the accused is about to abscond from
the Philippines
2. When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to the
CRIMINAL PROCEDURE
use of the accused who is a
public/corporate officer, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty
3. When the accused has concealed, removed
or disposed of his property, or is about to do
so
4. When the accused resides outside the
Philippines [Sec. 2, Rule 127]
Issuance and Implementation
The writ may be issued ex parte before
acquisition of jurisdiction over the accused
[Cuarter v. CA, G.R No. 102448 (1992))
However, it may be implemented only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties, G.R.
No. 140765 (2001)].
A public prosecutor has the authority to apply
for preliminary attachment to protect the
interest of the offended party, particularly
considering that the corresponding civil liability
of the culprits is to be determined therein, no
reservation having been made of the right to
enforce it in a separate civil action [Santos v.
Judge Flores, G.R. No. L-18251 & L-18252
(1962)] .
No notice to the adverse party or hearing on
the application is required before a writ of
preliminary attachment may issue as a hearing
would defeat the purpose of the provisional
remedy. The time which such hearing would
take could be enough to enable the defendant
to abscond or dispose of his property before a
writ of attachment may issue [Mindanao
Savings and Loan Assoc. v. CA, G.R. No.
84481 (1989)].
b. Injunction
General Rule: Criminal prosecution may not
be stayed or restrained by injunction,
preliminary or final.
Exceptions:
1. To afford adequate protection to the
constitutional rights of the accused
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2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions
3. When there is a pre-judicial question which
is sub judice
4. When the acts of the officer are without or
in excess of authority
5. Where the prosecution is under an invalid
law, ordinance or regulation
6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction over
the offense
8. Where it is a case of persecution rather
than prosecution
9. Where the charges are manifestly false and
motivated by the lust for vengeance
10. When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied, and
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]
3. Other Provisional Remedies
Protection Orders, RA 9262
Certain interim reliefs may be availed of under
R.A. 9262 even before or in the absence of a
decree of legal separation, annulment or
declaration of absolute nullity of marriage and
for the protection of women and their children
[2 Riano 114-115, 2016 Bantam Ed.].
Protection Order
A protection order is an order issued for the
purpose of preventing further acts of violence
against a woman or her child as specified in the
law and granting the necessary relief.
The protection orders under R.A. 9262 are of
three kinds, namely:
1. Temporary Protection Order - issued by
the court on the date of filing of the
application after ex parte determination that
such order should be issued. A court may
grant in a TPO any, some, or all of the reliefs
mentioned in the Act and shall be effective
for 30 days.
2. Permanent Protection Order - issued by
the court after notice and hearing. It shall be
effective until revoked by a court upon
CRIMINAL PROCEDURE
application of the person in whose favor the
order was issued. Regardless of the
conviction or acquittal of the respondent, the
Court must determine whether or not the
PPO shall become final. Even in a
dismissal, a PPO shall be granted as long
as there is no clear showing that the act
from which the order might arise did not
exist.
3. Barangay Protection Order - issued by the
Punong Barangay or any available
Barangay Kagawad ordering the
perpetrator to desist from committing acts
described in the law. When issued, they
shall be effective for 15 days.
S. The Rule on Cybercrime
Warrants (Section 2 of A.M. No.
17-11-03-SC only)
Venue of Criminal Actions
1. Violation of Section 4 (Cybercrime
offenses) and/or Section 5 (Other
offenses) of RA 10175 (Cybercrime
Prevention Act of 2012 hereinafter
“RA 10175”)
General Rule: The criminal action shall be filed
before the designated cybercrime court of the
province or city:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: The court where the criminal action
was first filed shall acquire jurisdiction to the
exclusion of other courts.
2. All other crimes committed using
Information and Communication
Technology (ICT)
General Rule: The criminal action shall be filed
before the regular or specialized courts as the
case maybe.
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Venue for Filing an Application
for Warrant
1. For violations of Section 4 and
Section 5 of RA 10175 (Cybercrime
Prevention Act of 2012)
General Rule: Application shall be filed before
the designated cybercrime courts of the
province or the city where:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: Cybercrime courts in Quezon City, City
of Manila, Makati City, Pasig City, Cebu City,
Iloilo City, Davao City, and Cagayan De Oro
City have the special authority to act on
applications and issue warrants which shall be
enforceable nationwide and outside the
Philippines.
2. For violations of all crimes defined,
and penalized by RPC and other
special laws if committed using
Information Communication
Technology (ICT) shall be filed with
the regular courts or other specialized
RTC in the places:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Incidents Related to the Warrant
When a Criminal Action is
Instituted
1. Once a criminal action is instituted, a motion
to quash and other incidents that relate to
the warrant shall be heard and resolved by
the court that subsequently acquired
jurisdiction over the criminal action
2. Prosecution has the duty to move for the
transmittal of the records as well as the
CRIMINAL PROCEDURE
transfer of the items’ custody to the latter
court following the procedures in Sec. 7.2
Examination of Applicant on
Record
Before a warrant is issued
1. Judge must personally examine the
applicant and the witnesses he may
produce:
a. in the form of searching questions and
answers,
b. in writing, and
c. under oath
2. Applicant and witnesses must be examined
by the judge on facts personally known to
them
3. Judge must attach to the record their
sworn statements together with their
judicial affidavits submitted
Effective Period of Warrants
General Rule: Not exceeding 10 days from its
issuance
Exception: The issuing court may, upon
motion, extend its effectivity based only on
justifiable reasons for a period not exceeding
10 from the expiration of the original period.
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Contempt
The responsible law enforcement authorities
shall be subject to action for contempt in case
of:
1. Failure to timely file the return for any of the
issued warrants under this Rule
2. Failure to duly turn-over to the court’s
custody any of the items disclosed
intercepted, searched, seized, and/or
examined
G. Obstruction of Justice for
Non-Compliance
1. Failure to comply with the provisions of
Chapter IV shall be punished as a violation
of PD No. 1829 or “Penalizing Obstruction
Of Apprehension And Prosecution Of
Criminal Offenders”
2. The criminal charge shall be filed before the
designated cybercrime court with
jurisdiction over the place where the non-
compliance was committed
H. Extraterritorial Service of
Warrants and Other Court
Processes
1. Available for persons or service providers
outside the Philippines
2. Must be coursed through the DOJ - Office of
Cybercrime
3. Must be In line with all relevant international
instruments and/or agreements