Criminal Procedure

By:
Atty. Edwin C. Dumalogdog
Q. What is criminal procedure?
A.Criminal procedure is the method prescribed by
law for the apprehension and prosecution of
persons accused of any criminal offense and for
their punishment, in case of conviction.
Q. What is criminal procedure concerned with? 
A. Criminal procedure is concerned with the
procedural steps through which the criminal case
passes, commencing with the initial investigation
of a crime and concluding with the unconditional
release of the offender. It is a generic term used
to describe the network of laws and rules
which govern the procedural administration of
criminal justice.
Criminal Jurisdiction – power of the State to try and
punish a person for a violation of its penal laws.

REQUISITES FOR A VALID EXERCISE OF CRIMINAL

JURISDICTION:
• 1. The offense, by virtue of the imposable penalty OR
its nature, is one which the court is by law authorized
to take cognizance of, (jurisdiction over the SUBJECT
MATTER).
• 2. The offense must have been committed within its
territorial jurisdiction, (jurisdiction over the
TERRITORY).
• 3. The person charged with the offense must have
been brought to its presence for trial, forcibly by
warrant of arrest or upon his voluntary submission to
the court, (jurisdiction over the PERSON OF THE
ACCUSED).
JURISDICTION OVER THE JURISDICTION OVER THE
SUBJECT MATTER PERSON OF THE ACCUSED

Derived from the law. It can May be acquired by consent of

never be acquired solely by the accused or by waiver of
consent of the accused. objections

Objection that the court has no If he fails to make his objection

jurisdiction of the subject in time, he will be deemed to
matter may be made at any have waived it.
stage of the proceeding, and
the right to make such
objection is never waived.
 DETERMINATION OF CRIMINAL
JURISDICTION
1. Determined by the allegations in the complaint
or information not by the results of proof or by
the trial court’s appreciation of the evidence
presented.
2. Determined by the law in force at the time of
the institution of the criminal action. ONCE
VESTED, IT CANNOT BE WITHDRAWN BY:
1. subsequent valid amendment of the information; or
2. a subsequent statutory amendment of the rules of
jurisdiction, UNLESS the amendatory law provides
otherwise.
Q. Distinguish between criminal law and criminal
procedure.
A. Criminal law is substantive; it defines crimes, treats of
their nature, and provides for their
punishment. Criminal procedure, on the other hand, is
remedial or procedural; it provides for the method by
which a person accused of a crime is arrested, tried
and punished. Criminal law declares what acts are
punishable, while criminal procedure provides how the
act is to be punished.
Q. How are the rules of criminal procedure construed? 
A. The rules of criminal procedure shall be liberally
construed in favor of the accused and strictly against
the state to even the odds in favor of the accused
against whom the entire machinery of the state
is mobilized.
Q. What is jurisdiction?
A. Jurisdiction (in general) is the power or authority given by the
law to a court or tribunal to hear and determine certain
controversies. It is the power of courts to hear and determine
a controversy involving rights which are demandable and
enforceable. 
Q. Distinguish jurisdiction from venue.
A. Venue is defined as the particular country or geographical
area in which a court with jurisdiction may hear and
determine a case. It means the place of trial. On the other
hand, jurisdiction is the power of the court to decide the case
on the merits. Venue is thus procedural, while jurisdiction is
substantive. In civil cases, venue may be waived or stipulated
by the parties. On the other hand, jurisdiction is granted by
law or the Constitution and cannot be waived or stipulated.
 Jurisdiction
Katarungang Barangay
of Courts
Cases not subject to Amicable Settlement:
Where one of the party is the government or subdivision or instrumentality
thereof;
1. Where one party is a public officer or employee, and the dispute
relates to the performance of his official function;
2. Offenses punishable by imprisonment exceeding one year of a fine
exceeding P5000;
3. Offenses where there is no private offended party;
4. Those involving parties who reside in Barangay of different cities or
municipalities unless their barangay are adjoining;
5. Those involving real properties located in different cities or
municipalities;
6. The accused is under detention;
Municipal Trial Court
A. Summary rules:
1. Traffic Violations
2. Violations of Rental Laws
3. Violations of City and Municipal ordinance
4. All other violations where the penalty does not exceed 6 months
imprisonment and/or a 1,000 fine.
B. Exclusive Original jurisdiction:
1. All violations of the city and municipal ordinances committed within
their respective jurisdictions.
2. All offenses punishable with imprisonment not exceeding 6 years
regardless of the amount of the fine or civil liability or the damage to
property through criminal negligence;
3. All offenses punishable by not more than 6 years imprisonment which
are committed by government officials and employees in relation to
their office. The salary grade of the accused should be below “27”.
Regional Trial Court
A. Exclusive Original Jurisdiction over:
1. All criminal cases that are not within the exclusive jurisdiction of
any court, tribunal or body, involving offenses punishable by
imprisonment exceeding 6 years.
B. Exclusive Appellate Jurisdiction
– 1. All cases decided by MTC’s in RTCs’ respective
jurisdiction.
Sandiganbayan
A. Exclusive original jurisdiction
1. All offenses committed by government officers and
employees in relation to their office, where one or
more accused occupy position whose salary grade is
“27” or higher.
B. Exclusive Appellate jurisdiction
1. Final judgements, resolution or order of RTCs in
cases involving government officers and employees in
relation to their office, where all of the accused occupy
positions whose salary grade is lower than grade “27”
Court of Appeals
1. Ordinary appeals from RTCs, except in cases
exclusively appealable to the Supreme Court
2. Petition for review from RTCs in cases appealed
thereto from lower court. 2. Criminal cases in which
the penalty imposed is death, reclusion perpetua
and life imprisonment on questions of law and facts.
Supreme Court
1. Petition for review on certiorari from the Court
of Appeals, Sandiganbayan and RTCs on pure
questions of law only;
Q. Which law determines the jurisdiction of
the court – the law in force at the time of the
commission of the offense or the one in force
as of the time when the action is filed?
A. Jurisdiction is determined by the law as of
the time when the action is filed, not when
the offense was committed. The exception to
this rule is where jurisdiction is dependent
on the nature of the position of the accused
at the time of the commission of the offense.
In this case, jurisdiction is determined by the
law in force at the time of the commission of
the offense.
Q. What is the meaning of the term “regular
courts”? 
A. Regular courts refer to civil courts as
opposed to military courts or courts
martial. Military courts have no jurisdiction
over civilians. 
Q. Which court has jurisdiction over a complex
crime? 
A. Jurisdiction over the whole complex crime
is lodged with the trial court having
jurisdiction to impose the maximum and
more serious penalty on an offense forming
part of the complex crime.
Q. What is territorial jurisdiction?
A.The requirement of territorial jurisdiction
means that a criminal action should be filed in
the place where the crime was committed,
except in those cases provided by Article 2 of
the Revised Penal Code.
Q. How is jurisdiction over the person of the
accused acquired?
A. Jurisdiction over the person of the accused is
acquired upon his arrest or upon his voluntary
appearance or submission to the court.
Q. Can jurisdiction over the person of
the accused be waived? 
A.Yes, unlike jurisdiction over the offense
which is conferred by law or the
Constitution, jurisdiction over the person of
the accused maybe waived. For example, any
objection to the procedure leading to the
arrest must be opportunely raised before the
accused enters his plea, or it is deemed
waived.
 RULE 110
PROSECUTION OF OFFENSES
Section 1. Institution of criminal actions.  
• For offenses where a preliminary investigation is
required - by filing the complaint with the proper
officer for the purpose of conducting the
requisite preliminary investigation.
• Preliminary investigation is REQUIRED for
offenses where the penalty prescribed by law is
at least 4 years, 2 months and 1day without
regard to fine (Rule 112, Sec. 1 Par.2).
• For all other offenses - by filing the complaint or
information directly with the Municipal Trial
Courts and Municipal Circuit Trial Courts, or the
complaint with the office of the prosecutor
- DOES NOT APPLY to offenses which are subject to summary
procedure.

Effect of institution of the criminal action:

- It interrupts the running of the period of prescription of
the offense charged unless otherwise provided by special
laws. 
Remedies of the offended party if the prosecutor refuses to
file an information:
1. file an action for mandamus, in case of grave abuse of
discretion;
2. lodge a new complaint before the court having jurisdiction
over the offense;
3. take up the matter with the Secretary of Justice in
accordance with the Rev. Administrative Code;
4. institute an administrative charges against the erring
prosecutor; and
5. file criminal action against the prosecutor with the
corresponding civil action for damages.
 May Injunction Issue to Restrain
•
Criminal Prosecution?
GENERAL RULE: Criminal prosecutions may NOT be restrained or stayed
by injunction, preliminary or final. The reason being, public interest
requires that criminal acts be immediately investigated and prosecuted for
the protection of the society (Domingo vs. Sandiganbayan, 322 SCRA 655).
EXCEPTIONS:
1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question which is subjudice;
4. When the acts of the officer are without or in excess of authority;
5. When the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. When the court had no jurisdiction over the offense;
8. When it is a case of persecution rather than prosecution;
9. When the charges are manifestly false and motivated by lust for
vengeance; and
10.When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied.
Q. What is the effect of the institution of the criminal action
on the period of prescription of the offense?
A. The institution of the criminal action shall interrupt the
running of the period of prescription of the offense unless
otherwise provided in special laws. The rule does not
apply to violations of municipal ordinances and special
laws. The prescriptive periods for violations of special
laws are interrupted only by the institution of judicial
proceedings for their investigation and punishment, while
violations of municipal ordinances prescribe after two
months.
Q. Distinguish “institution” from “commencement” of an
action. 
A. For offenses which require a preliminary investigation,
the criminal action is instituted by filing the complaint for
preliminary investigation. The criminal action is
commenced when the complaint or information is filed in
court.
Q. Can the offended party go directly to court to file a
criminal action? 
A. No. Before a complaint is filed in court, there should
have been a confrontation between the parties before
the Lupon chairman. The Lupon secretary must certify
that no conciliation or settlement was reached, attested
to by the Lupon chairman. The complaint may also be
filed if the settlement is repudiated by the parties.
Q. Are there exceptions when the parties may go directly to
court?

A. 1.Where the accused is under detention. 

2.Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings. 
3.Where actions are coupled with provisional remedies. 
4.Where the action may be barred by the statute of
limitations.
Section 2. Form of the complaint or information.
FORM:
1. In writing;
2. In the name of the People of the Philippines; and
3. Against all persons who appear to be responsible
for the offense involved.
Section 3. Complaint defined.
A Complaint is:
1. a sworn written statement;
2. charging a person with an offense;
3. subscribed by the offended party, any peace
officer or other public officer charged with the
enforcement of the law violated
Q. What is the form required for the complaint or
information?

A. The complaint or information shall be in writing, in

the name of the People of the Philippines and against
all persons who appear to be responsible for the
offense involved. 
Q. Why should a complaint or information be in the
name of the People of the Philippines?
 
A. Criminal actions must be commenced in the name of
the People because just as a crime is an outrage
against the peace and security of the people at large,
so must its vindication be in the name of the
People. However, it the action is instituted in the
name of the offended party or of a particular city, the
defect is merely of form and may be cured at any
state of the trial.
WHO CAN FILE A COMPLAINT
1. Offended party
2. Any peace officer
3. Other public officer charged with the enforcement of the
law violated
ex. Internal Revenue Officer for violation of the NIRC,
custom agents with respect to violations of the Tariff and
Customs Code
Section 4. Information defined. 
An Information is:
1. an accusation in writing;
2. charging a person with an offense;
3. subscribed by the prosecutor and filed with the court. 
REQUISITES OF AN INFORMATION
1. it must be in writing;
2. it must charge a person with an offense;
3. it must be subscribed by the fiscal; and
4. it must be filed in court.
Complaint Information
Subscribed by the Subscribed by the fiscal
offended party, any peace (indispensable
officer or other officer requirement)
charged with the
enforcement of the law
violated

it may be filed either in it is filed with the court

court or in the
prosecutor’s office

must be made under oath need not be under oath

Prosecution in the RTC are always
commenced by information, EXCEPT:
1. in certain crimes against chastity
(concubinage, adultery, seduction,
abduction, acts of lasciviousness);
and
2. defamations imputing any of the
aforesaid offenses wherein a sworn
written complaint is required in
accordance with section 5 of this
Rule.
Section 5. Who must prosecute criminal actions.
FULL DISCRETION AND CONTROL OF THE PROSECUTOR
• All criminal actions commenced by a complaint or information shall
be prosecuted under the direction and control of the prosecutor.
 
A PRIVATE PROSECUTOR may be authorized to prosecute a criminal
action subject to the following conditions:
1. the public prosecutor has a HEAVY WORK SCHEDULE, or there is no
public prosecutor assigned in the province or city;
2. the private prosecutor is authorized IN WRITING by the Regional
State Prosecutor (RSP), Provincial or City Prosecutor;
3. the authority of the private prosecutor must be APPROVED BY THE
COURT;
4. the private prosecutor shall continue to prosecute the case until
the end of the trial unless the authority is withdrawn or otherwise
revoked by the RSP, Provincial or City Prosecutor; and
5. In case of the withdrawal or revocation of the authority of the
private prosecutor, the same must be approved by court.
6. (Memo Circ. No. 25, April 26, 2002, Regarding Amendment to Sec.
5, Rule 110)
• In appeals before the CA and the SC, it is only
the SOLICITOR GENERAL that is authorized to
bring and defend actions in behalf of the People
of the Philippines (People vs. Nano, 205 SCRA
155).
 
• In all cases elevated to the Sandiganbayan and
from the Sandiganbayan to the SC, the Office of
the Ombudsman, through its Special Prosecutor
shall represent the People of the Philippines,
EXCEPT in cases filed pursuant to E.O. Nos. 1, 2,
14 and 14-A, issued in 1986 (Sec. 4, RA 8249).
PROSECUTION OF CRIMES AGAINST CHASTITY 
WHO MAY PROSECUTE
1. Concubinage and adultery – only by the offended spouse who
should have the status, capacity, and legal representation at the
time of filing of the complaint, regardless of age;
2. Seduction, Abduction and Acts of Lasciviousness – prosecuted
exclusively and successively by the following persons in this order:
a) by the offended woman
b) by the parents, grandparents or legal/judicial guardians in that
successive order
c) by the State in the exercise of the right of parens patriae, when the
offended party dies or becomes incapacitated before she could file
the complaint and she has no known parents, grandparents or
guardian.
3. A defamation imputing to a person any of the foregoing crimes of
concubinage, adultery, seduction, abduction, rape or acts of
lasciviousness can be prosecuted only by the party or parties
defamed (Article 360, last par., Revised Penal Code). 
* If the offended party is of legal age AND does not suffer from
physical or mental disability, she alone can file the complaint to the
exclusion of all others.
WHO CAN GIVE PARDON
1. Concubinage and adultery - only the offended
spouse, not otherwise incapacitated, can validly
extend the pardon or consent contemplated therein.
2. Seduction, abduction, and acts of lasciviousness –
a) the offended minor, if with sufficient discretion, can
validly pardon the accused by herself if she has no
parents or where the accused is her own father and her
mother is dead;
b) the parents, grandparents or guardian of the offended
minor, in that order, CANNOT extend a valid pardon in
said crimes WITHOUT the conformity of the offended
party, even if the latter is a minor;
c) if the offended woman is of age and not otherwise
incapacitated, only she can extend a valid pardon.
Q. Who is the “offended party”? 
A. The offended party is the person actually injured or whose feeling
is offended. He is the one to whom the offender is also civilly liable
under Article 100 of the RPC. The offended party who intervenes in
a criminal action is the person who is entitled to civil indemnity in
a civil action arising out of the criminal act for which the accused is
charged.
Q. If the offended party dies before he is able to file a complaint, can
his heirs file it in his behalf?
A. No. The right to file a criminal action is personal and abates upon
the death of the offended party. It is not transmissible to the heirs.

Q. Can the father file a complaint on behalf of his daughter for

concubinage?
A. No. The rule allowing the parents, grandparents, and guardians to
file a complaint on behalf of the minor applies only to the offenses
of seduction, abduction, and acts of lasciviousness. A complaint
for adultery or concubinage may be filed only by the offended
spouse.
Q. If the offended party in abduction, seduction,
and acts of lasciviousness is of age, can her
parents file the complaint for her? 
A. No. If the offended party is already of age, she
has the exclusive right to file the complaint
unless she becomes incapacitated. The parents,
grandparents, and guardian only have exclusive,
successive authority to file the case if the
offended party is still a minor.
Q. If the offended party dies during the pendency
of the case, is the criminal liability of the
accused extinguished?
A.No.  
Q. X filed a sworn complaint for acts of lasciviousness before
the prosecutor. Before the prosecutor could file the case in
court, X died. Can the prosecutor still file the information in
court? 
A. Yes. The desire of X to file the case is evident by her filing of
her sworn complaint with the prosecutor.
Q. An information for robbery with rape was filed against X. X
moved to dismiss the information on the ground that there
was no complaint filed by the offended party. Should the
case be dismissed?
A. No. In robbery with rape, the complaint of the offended
party is not necessary since the offense of robbery is not a
private offense. The prosecution can be commenced without
the complaint of the offended party.
• The pardon refers to pardon BEFORE filing of the criminal
complaint in court. Pardon effected after the filing of the complaint
in court does NOT prohibit the continuance of the prosecution of
the offense EXCEPT in case of marriage between the offender and
the offended party. 
PARDON vs. CONSENT
• CONSENT refers to future acts, while PARDON refers to past acts
of adultery. The importance of this distinction is that consent, in
order to absolve the accused from liability, is sufficient even if
granted only to the offending spouse, whereas pardon must be
extended to both offenders
• The SUBSEQUENT MARRIAGE between the offended party and the
accused extinguishes the criminal liability of the latter, together
with that of the co-principals, accomplices and accessories.
EXCEPT:
a) where the marriage was invalid or contracted in bad faith in order
to escape criminal liability,
b) in “private libel”
c) in multiple rape, insofar as the other accused in the other acts of
rape respectively committed by them are concerned.
•  The ACQUITTAL OR DEATH of one of the
accused in the crime of adultery does not bar
the prosecution of the other accused (People
vs. Topiño, et al., 35 Phil. 901). HOWEVER, the
death of the offended spouse before the filing
of the complaint for adultery bars further
prosecution, BUT if the offended spouse died
after the filing of the corresponding
complaint, his death will NOT prevent the
proceeding from continuing to its ultimate
conclusion.
•  DESISTANCE of complainant does not bar
criminal prosecution but it operates as waiver
of the right to pursue civil indemnity.
Section 6. Sufficiency of complaint or information.

 CONTENTS OF A VALID COMPLAINT OR INFORMATION

1. Name of the accused, including any appellation or nickname
*An error in the name of the accused is not reversible as long
as his identity is sufficiently established and this defect is curable at
any stage of the proceedings as the insertion of the real name of
the accused is merely a matter of form.
2. The designation of the offense
3. The acts or omissions complained of as constituting the offense
4. The name of the offended party
5. The approximate time of the commission of the offense
6. The place wherein the offense was committed

PURPOSE OF THE RULE

• 1. To inform the accused of the nature and cause of accusation

against him.
• 2. To notify the defendant of the criminal acts imputed to him so
that he can duly prepare his defense.
Substantial defect in the information cannot be cured by
evidence that would jeopardize the accused’s right to be
informed of the true nature of the offense he is being
charged with
Section 7. Name of the accused. 
PURPOSE:
• The manifest intent of the provision is to MAKE A SPECIFIC
IDENTIFICATION OF THE PERSON to whom the commission
of an offense is being imputed. 
Section 8. Designation of the offense. 
The information or complaint must state or designate the
following whenever possible:
1. The designation of the offense given by the statute.
2. The statement of the acts or omissions constituting the
offense, in ordinary, concise and particular words.
3. The SPECIFIC QUALIFYING AND AGGRAVATING
circumstances must be stated in ordinary and concise
language.
Q. In what case can an accused NOT be convicted of a crime different
from that designated in the complaint or information even if the
recitals allege the commission of the crime?
A. If it involves: 
1. a change of the theory of the trial
2. requires of the defendant a different defense
3. surprises the accused in any way
Q. X was accused of illegal possession of firearms, but the information
did not allege that X did not have any license to possess the
firearm. Is the information valid? 
A. No. The absence of the license is an essential element of the
offense. Therefore, it should be alleged in the complaint or
information.
Q. X was charged with illegal possession of opium. X contends that the
information was invalid for failure to allege that he did not have
a prescription from a physician. Is X correct? 
A. No. The absence of the prescription is not an essential element of
the offense and is only a matter of defense. It need not be alleged in
the information.
The QUALIFYING AND AGGRAVATING CIRCUMSTANCES
cannot be appreciated even if proved UNLESS alleged
in the information.  
• In case of allegation of aggravating circumstance of
HABITUAL DELINQUENCY, it should not be generally
averred. The information must specify the requisite
data regarding:
1. the commission of the crimes;
2. the last conviction or release;
3. the other previous conviction or release of the
accused.
• ALLEGATIONS PREVAIL OVER DESIGNATION OF THE
OFFENSE IN THE INFORMATION
• It is not the designation of the offense in the complaint
or information that is controlling (People vs. Samillano,
56 SCRA 573); the facts alleged therein and not its title
determine the nature of the crime (People vs.
Magdowa, 73 Phil. 512).
• The accused may be convicted of a crime more serious
than that named in the title or preliminary part if such
crime is covered by the facts alleged in the body of the
information and its commission is established by
evidence (Buhat vs. Court of Appeals, 265 SCRA 701). 
• Limitation on the rule that an accused may be
convicted of a crime which is more serious than that
named in the title so long as the facts alleged the
more serious offense:
An accused could not be convicted under one act when
he is charged with a violation of another if the change
from one statute to the other involves:
1. a change in the theory of the trial;
2. requires of the defendant a different defense; or
3. surprises the accused in any way (U.S. vs. Panlilio, 28
Phil. 603)
Section 9. Cause of the accusation.  
PURPOSE:
1. to enable the court to pronounce proper judgment;
2. to furnish the accused with such a description of the charge as to
enable him to make a defense;
3. as a protection against further prosecution for the same cause.

RULE ON NEGATIVE AVERMENTS

• GENERAL RULE: Where the statute penalizes generally the acts
therein defined and is intended to apply to all persons
indiscriminately, the information is sufficient even if does not allege
that the accused falls within the excepted situation, for then the
complete definition of the offense is entirely separable from the
exceptions and can be made without reference to the latter. In this
case, the exception is a matter of defense which the accused has to
prove.
• EXCEPTION: Where the statute alleged to have been violated
applies only to a specific class of persons and to special conditions,
the information must allege facts establishing that the accused falls
within the specific class affected and not those affected from the
coverage of law. Where negative averment is an essential element
of the crime, it must be proved.
Section 10. Place of commission of the offense 

PURPOSE:
To show territorial jurisdiction.
Section 11. Date of commission of the offense
GENERAL RULE:
• It is NOT required that the complaint or
information state with particularity the PLACE
where the crime was committed and the DATE of
the commission of the crime.
EXCEPTION:
• If the PLACE/DATE of the commission of the
offense constitutes an essential element of the
offense.
Q. What are the offenses in which the particular place where
the offense was committed is essential? 
A. 1.Violation of domicile 
2.Penalty on the keeper, watchman, visitor of opium den 
3.Trespass to dwelling
4.Violation of election law (prohibiting the carrying of a
deadly weapon within a 30-meter radius of
polling places)
  5. Interruption of religious worship
6. Robbery in an inhabited place
7. Other form of trespass
Q. What are the offenses in which the time of the
commission of the offense is essential?
1.Infanticide
2.Violation of Sunday Statutes (Election Law)
3.Abortion
4. Physical injuries (Art. 263, 264, 265 and 266 of the RPC)
Q.Where should a criminal action be instituted? 
A. In the court of the municipality or territory where the
9ih
offense was committed or where any of its essential
ingredients occurred(Exception: Sandiganbayan
cases).
B. If committed in a train, aircraft, or other public or
private vehicle: in the court of any municipality or
territory where the vehicle passed during its trip,
including the place of departure or arrival.
C. If committed on board a vessel in the course of its
voyage: in the court of the first port of entry or of any
municipality or territory where the vessel passed
during the voyage, subject to the generally accepted
principles of international law.
D.Crimes committed outside the Phil but punishable
under Article 2 of the RPC: any court where the action
is first filed. 
Section 12. Name of the offended party
• GENERAL RULE: The offended party must be designated by name,
nickname, any other appellation or by fictitious name.
• EXCEPTION: In CRIMES AGAINST PROPERTY, the description of the
property must supplement the allegation that the owner is
unknown. 
Section 13. Duplicity of offense. 
• There is duplicity when the complaint or information charges 2 or
more DISTINCT or DIFFERENT offenses.
GENERAL RULE:
A complaint or information must charge only one offense.
EXCEPTIONS:
• Complex crimes
• Special Complex crimes
• Continuous crimes or delicto continuado
• Crimes of which another offense is an ingredient. 
*Should there be duplicity of offense in the information, the
accused must move for the quashal of the same BEFORE
arraignment, otherwise, he is deemed to have waived the
objection and maybe found guilty of as many offenses as those
charged and proved during the trial.
Q. In what case is the name of the offended
party dispensable?
 A. In offenses against property, the name of
the offended party may be dispensed with as
long as the object taken or destroyed is
particularly described to property identify the
offense
Q. What is a change of venue? When it is allowed?
A.The Supreme Court has the power to order the
change of venue or place of trial to avoid
miscarriage of justice. The transfer to place
where the prosecution witnesses' can fell free
to reveal what they know are justified.
Notwithstanding, a change of place of trial in
criminal cases should be not be granted for
whimsical or flimsy reason.
Q What is the effect of the failure of the accused to
object to a duplicitous information?
A.If the accused fails to object before arraignment,
the right is deemed waived, and he may be
convicted of as many offenses as there are
charged. 
Q. X fired his gun once, but the bullet killed two
persons. He was charged with two counts
of homicide in one information. Can he be
convicted under that information? 
A.Yes. It falls under the exception to the rule. This
is a compound crime in which one act results in
two or more grave or less grave felonies. The
law provides only one penalty for the two
offenses.
Q. X was charged with both robbery and estafa in
one information. Can he be convicted of both offenses? 
A. It depends. If he objects to the duplicitous information before
arraignment, he cannot be convicted under the information. But
if he fails to object before arraignment, he can be convicted of
as many offenses as there are in the information.
Q. What is the PRINCIPLE OF ABSORPTION? 
A. In cases of rebellion, other crimes committed in the course of
the crime are deemed absorbed in the crime of rebellion either
as a means necessary for its commission or as an unintended
effect of rebellion. They cannot be charged as separate offenses
in themselves. The exception is when the common crimes are
committed without any political motivation. In such a case, they
will not be absorbed by rebellion. 
Q. If homicide or murder is committed with the use of an unlicensed
firearm, how many offenses are there? 
A. There is only one offense – murder or homicide aggravated by the
use of unlicensed firearm. This is by special provision of RA 8294.
(Dissenting opinion of J. Sabio – How can you complex when one is an
RPC offense/malum in se and the other is a violation of aspecial
law/malum prohibitum?) 
Q. X was speeding on a highway when his car collided with another
car. The other car was totally wrecked and the driver of the other car
suffered serious physical injuries. How many informations or
complaints should be filed against X? 
A. Only one information should be filed for serious physical injuries and
damage to property through reckless imprudence. The information
against X cannot be split into two because there was only one
negligent act resulting in serious physical injuries and damage to
property.
 Q. Same case, but the injuries suffered by the driver were only slight
physical injuries. How many information's should be filed?
 A. Two Informations – one for the slight physical injuries and the other
for damage to property. Light felonies cannot be complexed.
Section. 14. Amendment or substitution.
KINDS OF AMENDMENT
1. BEFORE THE PLEA – covers both substantial and
formal amendment, WITHOUT leave of court.
2. AFTER THE PLEA – covers only formal
amendment provided:
A. leave of court is obtained
B. such amendment is not prejudicial to the
rights of the accused.
EXCEPT when a FACT SUPERVENES which
changes the nature of the crime charged in the
information or upgrades it to a higher crime, in
which case, there is a need for another
arraignment of the accused under the amended
information. 
The following are formal amendments:
a) New allegation that relates to the range of the penalty
that the court might impose in the event of conviction;
b) An amendment which does not change another
offense different or distinct from the charges in the
original;
c) Additional allegations which do not alter the
prosecution’s theory of the case so as to cause
surprise to the accused and effect the form of defense
he has or will assume.
d) Amendments which does not adversely affects any
substantial rights of the accused.

Q.Can the court order the dismissal of the original

complaint before a new one is filed in substitution? 
A. No. The court will not order the dismissal until the
new information is filed.
An amendment is only in form where it neither affects nor
alters the nature of the offense charged OR where the
charge does not deprive the accused of a fair opportunity
to present his defense OR where it does not involve a
change in the basic theory of the prosecution.

Substitution – If it appears at anytime before judgment that a

mistake has been made in charging the proper offense, THE
COURT SHALL DISMISS THE ORIGINAL COMPLAINT OR
INFORMATION UPON THE FILING OF A NEW ONE
CHARGING THE PROPER OFFENSE, provided the accused
shall not be placed in double jeopardy.

Limitation to the rule on substitution:

1. No judgment has yet been rendered.
2. The accused cannot be convicted of the offense charged or
of any other offense necessarily included therein.
3. The accused would not be placed in double jeopardy.
Amendment Substitution

changes Amendment
May involve either formal or substantial Involves substantial change from the
original charge
Amendment before the plea has been Substitution of information must be with
entered can be effected without leave of leave of court as the original information
court. has to be dismissed
Amendment is only as to form, there is no Another preliminary investigation is
need for another preliminary entailed and the accused has to plead
investigation and the retaking of the plea anew to the new information
of the accused.
 An amended information refers to the Requires or presupposes that the new
same offense charged in the original information involves a different offense
information or to an offense which which does not include or is not
necessarily includes or is necessarily necessarily included in the original
included in the original charge, hence charge, hence the accused cannot claim
substantial amendments to the double jeopardy.
information after the plea has been taken
cannot be made over the objection of the
accused, for if the original information
would be withdrawn, the accused could
invoke double jeopardy.
VARIANCE BETWEEN INDICTMENT AND PROOF
(Situations Contemplated)
1. When the offense proved is less serious than, and is
necessarily included in, the offense charged, in which
case the defendant shall be convicted of the offense
proved.
2. When the offense proved is more serious than and
includes the offense charged, in which case the
defendant shall be convicted of the offense charged.
3. When the offense proved is neither included in, nor
does it include, the offense charged and is different
therefrom, in which case the court should dismiss the
action and order the filing of a new information
charging the proper offense.
• The third situation set forth above is substitution of
information under Section 14, Rule 110.
Section 15. Place where action is to be instituted. 
PURPOSE:
• The purpose being not to compel the defendant to move
to, and appear in a different court from that of the territory
where the crime was committed, as it would cause him
great inconvenience in looking for his witnesses and other
evidence in another place (Beltran vs. Ramos, 96 Phil. 149).

VENUE IS JURISDICTIONAL
• Venue is jurisdictional as the court has no jurisdiction to
try an offense committed outside its territorial
jurisdiction. It cannot be waived, or changed by agreement
of the parties, or by the consent of the defendant.
• GENERAL RULE: Subject to existing laws, in all criminal
prosecutions, the action must be instituted and tried in
the courts of the municipality or territory where the
offense was committed or any of its essential ingredients
occurred.
Q.What is a continuing or transitory offense?
Transitory offenses are crimes where some acts
material and essential to the crimes and requisite to
their commission occur in one municipality or
territory and some in another. Continuing offenses
are consummated in one place, yet by the nature of
the offense, the violation of the law is deemed
continuing. Examples are ESTAFA, ABDUCTION,
MALVERSATION, LIBEL, KIDNAPPING, VIOLATION OF
BP22.
Q. How do you determine jurisdiction over a continuing
crime? 
A. The courts of the territories where the essential
ingredients of the crime took place have
CONCURRENT JURISDICTION. But the court which first
acquires jurisdiction excludes the other courts.
 
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the Revised Penal Code-Shall be cognizable by the
proper court where the criminal action was first filed. 
2. Complex Crimes- Where the crime charged is a complex crime, the RTC of any
province in which any one of the essential elements of such complex crime
had been committed has jurisdiction to take cognizance of the offense.
3. Continuing Offense - is one where the elements of which occur in several
places, (unlike a LOCAL OFFENSE - one which is fully consummated in one
place)
The venue is in the place where one of its essential elements was
consummated.
4. Piracy – The venue of piracy, unlike all other crimes, has NO territorial limits.
5. Libel – The action may be instituted at the election of the offended or suing
party in the province or city:
A. where the libelous article is printed and first published;
B. if one of the offended parties is a private individual, where said private
individual actually resides at the time of the commission of the offense;
C. if the offended party is a public official, where the latter holds office at the
time of the commission of the offense.
6. In exceptional circumstances – to ensure a fair trial and impartial inquiry. The
SC shall have the power to order a change of venue or place of trial to avoid
miscarriage of justice (Section 5[4], Article VIII, 1987 Constitution).
Section 16. Intervention of the offended party in
criminal action.
GENERAL RULE: Offended party has the right to
intervene by counsel in the prosecution of the
criminal action, where the civil action for
recovery of civil liability is instituted in the
criminal action pursuant to Rule 111. 
EXCEPTIONS:
1. Where from the nature of the crime and the law
defining and punishing it, NO civil liability arises
in favor of the offended party; and
2. Where the offended party has waived his right to
civil indemnity OR has expressly reserved his
right to institute a civil action OR has already
instituted said action.
Q. Can the offended party intervene in the prosecution of the criminal
action? 
A. Yes, except if he has waived, has reserved his right, or has already
instituted the criminal action. The reason for this rule is because of
Article 100 of the RPC which provides that every person criminally liable
shall also be civilly liable and also because there are certain offenses
which cannot be prosecuted except upon complaint of the offended
party.
*In a criminal case in which the offended party is the State, the interest of the
private complainant or offended party is limited to the civil liability arising
therefrom.
The offended party may NOT intervene in the prosecution of the offense in
the following cases:
1. Where he has WAIVED the civil action for recovery of civil liability arising
from the criminal act.
2. Where he has RESERVED his right to institute the civil action separately
from the criminal action;
3. Where he has ALREADY INSTITUTED THE CIVIL ACTION PRIOR to the
criminal action;
4. Where from the nature of the offense, or where the law defining the
offense CHARGES DOES NOT PROVIDE FOR AN INDEMNITY;
5. Where the offense does NOT INVOLVE A PRIVATE PARTY, it being the
sole concern of the State.
Q. Do the offended parties have the right to
move for the dismissal of a case?
A.NO. The right belongs only to the government
prosecutor who is the representative of
the plaintiff.
 
Q. Can the offended party file a CIVIL ACTION
FOR CERTIORARI in his own name if the
RTC dismisses an information?
A.Yes. In case of grave abuse of discretion
amounting to lack of jurisdiction, the petition
may be filed by the offended party because the
offended party has an interest in the civil aspect
of the case.
 RULE 111
PROSECUTION OF CIVIL ACTIONS
Section 1. Institution of criminal and civil actions.  
GENERAL RULE:
When a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense
shall be deemed instituted with the criminal action.
EXCEPTIONS:
1. when the offended party WAIVES the civil action
2. when the offended party RESERVES his right to
institute a separate civil action
3. when offended party INSTITUTES A CIVIL ACTION
PRIOR to the criminal action.
Q. WHEN RESERVATION SHALL BE MADE?
1. BEFORE the prosecution starts to present its evidence
and
2. under circumstances affording the offended party to a
reasonable opportunity to make such reservation. 
Q. What is the reason for the rule requiring
reservation? 
A. The reason is to PREVENT DOUBLE RECOVERY
FROM THE SAME ACT OR OMISSION.
•  ONLY the civil liability arising from the crime
charged as a felony is now deemed instituted. Civil
liability arising from other sources of obligations are no
longer deemed instituted like those under Article 32,
33, 34 and 2176 of the Civil Code which can be
prosecuted even without reservation.
•  In BP 22 cases, no reservation to file the civil
action separately shall be allowed.
Q. What is the dual concept of civil liability?
A. This means that civil liability may arise from crimes or from quasi-
delicts. Thus, a negligent act causing damage may produce two
kinds of civil liability – one arising from crime and another from
quasi-delict. The only limitation is that the offended party may not
recover twice from the same act.
Q. What are the differences between a crime and a quasi-delict?
A. 1.Crimes affect public interest, while quasi-delicts are only of
private concern
2.The RPC punishes or corrects the criminal act, while the Civil Code
merely repairs the damage by means of indemnification 
3.Crimes are punished only if there is a law providing for their
punishment, while quasi-delicts include all acts where fault or
negligence intervenes. Therefore, quasi-delict is broader in scope.
Q. What constitutes civil liability? 
A. According to Article 104 of the RPC, it constitutes restitution,
reparation, and indemnification for consequential damages. 
Q. What is the basis for the broader concept of civil liability? 
A. The broader concept of civil liability means that every person
criminally liable is also civilly liable (Art.100 RPC). This is because in
a criminal offense, there are two offended parties – the state and
the private offended party.
Q. If the complaint does not contain an allegation of damages, is the
offender still liable for them?
A. Yes because every person criminally liable is also civilly liable. This is
subject to the exception when the offended party has waived or has
reserved the right to institute the civil action separately.
RULES ON FILING FEES OF CIVIL ACTION DEEMED INSTITUTED WITH THE
CRIMINAL ACTION
1. NO filing fees are required for amounts of ACTUAL DAMAGES, EXCEPT
with respect to criminal actions for violation of BP 22, in which case, the
offended party shall pay in full the filing fees based on the face value of
the check as the actual damages;
2. Damages other than ACTUAL (moral, exemplary and other damages) IF
SPECIFIED In the complaint or information, the corresponding filing fees
shall be paid, otherwise the court will not acquire jurisdiction over such
damages;
3. Where moral, exemplary and other damages are NOT specified in the
complaint or information, the grant and amount thereof are left to the
sound discretion of the trial court, the corresponding filing fees need not
be paid and shall simply constitute a first lien on the judgment.  
•  COUNTERCLAIMS, CROSS-CLAIMS, THIRD PARTY COMPLAINTS are no
longer allowed in a criminal proceeding. Any claim which could have
been the subject thereof may be litigated in a separate civil action.
Q.In a BP 22 case, can the offended party make a
reservation of the civil action?
A. No. The criminal action shall be deemed to include
the civil action, and the offended party is not allowed
to make the reservation. The actual damages and the
filing fees shall be equivalent to the value of the
check.
Q.Are the independent civil actions also deemed
suspended with the filing of the criminal action? 
A. No. Only the civil action arising from the crime under
Article 100 is suspended. The independent civil
actions are not suspended and may continue even if
the criminal action has been instituted. However, the
offended party MAY NOT RECOVER TWICE from
the same act. He should only get the BIGGER AWARD.
Q. What is the legal principle that a person who is
criminally liable is civilly liable.
A. 1. As an OFFENSE AGAINST THE STATE because of the
disturbance of the social order; and
2. As an OFFENSE AGAINST THE PRIVATE PERSON
injured by the crime unless it involves the crime of
treason, rebellion, espionage, contempt and other
wherein no civil liability arises on the part of the
offender either because there are no damages to be
compensated or there is no private person injured in
the crime.
Q. What are the two injury cause by the offense?
A. 1. The SOCIAL INJURY produced by the criminal act
which is sought to be repaired through the imposition
of the corresponding penalty.
2. The PERSONAL INJURY caused by the victim of the
crime, which injury is sought to be compensated
through indemnity, which is civil in nature.
Section 2. When separate civil action is suspended. 

GR: PRIMACY OF CRIMINAL ACTION OVER CIVIL ACTION

1. After the filing of the criminal action, the civil action which has
been reserved CANNOT be instituted UNTIL FINAL JUDGMENT
HAS BEEN RENDERED IN THE CRIMINAL ACTION.
2. If the civil action is instituted BEFORE the filing of the criminal
action and the criminal action is subsequently commenced, the
pending civil action shall be suspended until final judgment in the
criminal action has been rendered.

EXCEPTIONS:
1. In cases of independent CIVIL ACTIONS BASED UPON ARTS. 32, 33,
34 AND 2176 OF THE CIVIL CODE;
2. In cases where the civil action presents a PREJUDICIAL QUESTION;
3. In cases where the CIVIL ACTION IS CONSOLIDATED WITH THE
CRIMINAL ACTION; and
4. Where the CIVIL ACTION IS NOT ONE INTENDED TO ENFORCE THE
CIVIL LIABILITY ARISING FROM THE OFFENSE.
ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE
FILING OF THE CIVIL CASE WHERE:
1. the ACQUITTAL IS BASED ON REASONABLE DOUBT, if
the civil case has been reserved
2. the DECISION CONTAINS A DECLARATION THAT THE
LIABILITY OF THE ACCUSED IS NOT CRIMINAL BUT
ONLY CIVIL IN NAture and
3. THE CIVIL LIABILITY IS NOT DERIVED FROM OR BASED
ON THE CRIMINAL ACT OF WHICH THE ACCUSED IS
ACQUITTED (Sapiera vs. Court of Appeals, 314 SCRA
370).

•  Extinction of the penal action does not carry with

it the extinction of the civil action, UNLESS the
extinction proceeds from a declaration in a final
judgment that the fact from which the civil liability
might arise did not exist.
 Q. Can you compel a judge by mandamus to award
civil damages?
A. YES, because every person criminally liable is also
civilly liable and also because even if the accused is
acquitted, there are cases when he is still civilly liable.
Q.What is the reason for allowing the civil liability to
subsist in spite of the acquittal of the accused? 
A. This is because the parties in the criminal and civil
action are different – in the criminal action, the
party is the state, while in the civil action, the party is
the private offended party. Also, the two actions
required different quantum of evidence. The criminal
action requires proof of guilt beyond reasonable
doubt, while the civil action requires mere
preponderance of evidence.
Section 3. When civil action may proceed independently.

•  The institution of an independent civil action against

the offender under Articles 32, 33, 34 and 2176 of the Civil
Code may proceed independently of the criminal case and
at the same time without suspension of either proceeding.

•  Recovery of civil liability under Articles 32, 33, 34 and

2176 of the Civil Code arising from the same act or
omission may be prosecuted separately even without a
reservation. The reservation and waiver herein refers only
to the civil action for the recovery of civil liability arising
from the offense charged (DMPI Employees Credit Coop vs.
Velez, G.R. No. 129282, Nov. 29, 2001).
PURPOSE
• To prevent the offended party from recovering damages
twice for the same act or omission.
Q. When the defendant is absolved of civil
liability in a civil action, can a criminal action still
be filed against him? 
A.Yes. While every person criminally liable is also
civilly liable, the converse is not true. Therefore,
even if the defendant is absolved of civil liability
in a civil action, a criminal action can still be
filed against him. Besides, the state is a party in
a criminal action, while only the private
offended party is a party in the civil
action. Moreover, the quantum of evidence in
the civil action is only preponderance of
evidence, while that required in the criminal
action is proof beyond reasonable doubt.
4. Effect of death on civil actions.

1. AFTER arraignment and during the pendency of the

criminal action - extinguishes the civil liability arising
from the delict. 
2. BEFORE arraignment - the case shall be DISMISSED
without prejudice to any civil action the offended
party may file AGAINST THE ESTATE of the deceased.
•  However, the independent civil action instituted
under Section 3 of this Rule or which thereafter is
instituted to enforce liability arising from other sources
of obligation may be continued against the estate or
legal representative of the accused after proper
substitution or against said estate, as the case may be.
Section 7. Elements of prejudicial question.
• Prejudicial Question - that which arises in a case, the resolution of
which is the logical antecedent of the issue involved therein, and
the cognizance of which pertains to another tribunal. It must be
determinative of the case before the court but the jurisdiction to try
and resolve the question must be lodged in another court or
tribunal.  
• Rationale: to avoid two conflicting decisions. 
ELEMENTS OF A PREJUDICIAL QUESTION
1. The civil action must be instituted prior to the criminal action.
2. The civil action involves an issue similar or intimately related to the
issue raised in the criminal action.
3. The resolution of such issue determines whether or not the
criminal action may proceed. 
WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF
PREJUDICIAL QUESTION
1. Office of the prosecutor; or
2. court conducting the preliminary investigation; or
3. court where the criminal action has been filed for trial at any time
before the prosecution rests.
Q.When is an action for annulment of marriage
prejudicial to a bigamy case? 
A.An action for annulment of marriage is prejudicial
to a bigamy case only if the accused in the bigamy
charge is also the one asking for annulment of the
second (bigamous) marriage based on vitiation of
consent. This is because in such a case, if the court
declares that the party’s consent was indeed
vitiated and annuls the marriage, then it would also
mean that the party did not willingly commit the
crime of bigamy. It would thus be determinative of
the guilt or innocence of the accused. 
 RULE 112
PRELIMINARY INVESTIGATION
Section 1. Preliminary Investigation defined; when required.
• Preliminary Investigation - is an inquiry or proceeding to
determine whether there exists sufficient ground to
engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty
thereof, and should be held for trial. (Sec. 1, Rule 112)
 
• Preliminary Investigation is required to be conducted
BEFORE the filing of a complaint or information for an
offense where the penalty prescribed by law is at least 4
years, 2 months and 1 day without regard to the fine.
• There is NO right of preliminary investigation under
Section 7, Rule 112 when a person is LAWFULLY arrested
unless there is a waiver of the provisions of Article 125 of
the Revised Penal Code.
HOWEVER, the accused can ask for Preliminary
Investigation in the following cases:
1. if a person is arrested, he can ask for preliminary
investigation BEFORE the filing of the
complaint/information BUT he must sign a waiver in
accordance with Article 125, RPC.
2. AFTER the filing of the information/complaint, the
accused may, within 5 days from the time he learns
of its filing ask for preliminary investigation. 
PURPOSES:
1. to determine whether a crime has been committed
and whether there is probable cause to believe that
the accused is guilty thereof;
2. to preserve evidence and keep the witnesses within
the control of the State;
3. to determine the amount of bail, if the offense is
bailable .
Q. What is the purpose of a preliminary investigation? 
1. To determine if there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial. 
2. To protect the accused from the inconvenience, expense, and burden of
defending himself in a formal trial unless the reasonable probability of
his guilt shall have been first ascertained in a fairly summary proceeding
by a competent officer. 
3. To secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, expenses and anxiety of a public trial.
4. To protect the state from having to conduct useless and expensive trials.
Q. What is the scope of preliminary investigation? 
A. Preliminary investigation is merely INQUISITORIAL and it is often the
only means of discovering whether the offense has been committed and
the persons responsible for it to enable the fiscal to prepare his
complaint or information. It is NOT A TRIAL ON THE MERITS and has no
purpose but to determine whether there is probable cause to believe
that an offense has been committed and that the accused is probably
guilty of it. IT DOES NOT PLACE THE ACCUSED IN JEOPARDY.
PRELIMINARY INVESTIGATION: PERSONAL STATUTORY
RIGHT
• The right to preliminary investigation is a personal right
covered by statute and may be waived expressly or by
implication.
• Absence of preliminary investigation does not affect
the jurisdiction of the court or invalidate the
information if no objection was raised by the accused.

REMEDIES OF THE ACCUSED IF THERE WAS NO

PRELIMINARY INVESTIGATION
1. Refuse to enter a plea upon arraignment and object to
further proceedings upon such ground
2. Insist on a preliminary investigation
3. File a certiorari, if refused
4. Raise lack of preliminary investigation as error on
appeal
5. File for prohibition
Q. Is the right to a preliminary investigation a fundamental right?
A. No, it is a statutory right and may be waived expressly or by silence. It is also
not an element of due process, unless it is expressly granted by law. 
Q. Can an accused demand the right to confront and cross-examine his witnesses
during the preliminary investigation? 
A. No. The preliminary investigation is not part of the trial. It is summary and
inquisitorial in nature, and its function is NOT to determine the guilt of the
accused but merely to determine the existence of probable cause. 
Q. Is the lack of a preliminary investigation a ground for dismissing a complaint? 
A. No. The absence of a preliminary investigation does not affect the jurisdiction
of the court but merely the regularity of the proceedings. The court cannot
dismiss the complaint on this ground, and IT SHOULD INSTEAD CONDUCT THE
INVESTIGATION OR ORDER THE FISCAL OR LOWER COURT TO DO IT.
Q. What is the effect of the absence of a certification that a preliminary
investigation was conducted?
A. IT IS OF NO CONSEQUENCE. What is important is that there was actually an
investigation, that the accused was informed thereof and was allowed to
present controverting evidence.
 
Q. When should the right to preliminary investigation be invoked?
A. The accused should invoke it BEFORE PLEA, or else, it is deemed
WAIVED.
Q. What if the court denies the invocation of the right to a
preliminary investigation, what is the remedy of the accused?
A. He must immediately APPEAL IT TO THE APPELLATE COURT. He
cannot later raise the issue for the first time on appeal.
 Q. If the complaint or information is amended, should a new
preliminary investigation be conducted?
 A.No. 
Q. If the complaint or information is substituted, should a new
preliminary investigation be conducted? 
A. Yes.
Q. Who may conduct a preliminary investigation?
1) Provincial or city prosecutors and their assistants 
2) National and Regional State Presecutors
3) Comelec with respect to election offenses
4) Ombudsman with respect to Sandiganbayan offenses
and other offenses committed by public officers
5) PCGG with respect to ill-gotten wealth cases
Q. Can RTC judges conduct a preliminary investigation? 
A. No. Although this should not be confused with the authority of
the RTC to conduct an examination for the purpose of
determining probable cause when issuing a warrant of arrest.
Q. Can MeTC’s, MTCC’s, MTCs and MCTCs conduct Preliminary
Investigation?
A. They NO longer authorized to conduct Preliminary Investigation.
• As preliminary investigation is NOT a part of the trial, the
dismissal of the case by the investigator will not
constitute double jeopardy and will not bar the filing of
another complaint for the same offense, but if re-filed, the
accused is entitled to another preliminary investigation
(U.S. vs. Marfori, 35 Phil. 666).

Section 2. Officers authorized to conduct preliminary

investigation.

PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY

INVESTIGATION:
1. Provincial or city fiscal and their assistants
2. National and regional state prosecutors
3. Such other officers as may be authorized by law such as:
the COMELEC, Ombudsman and PCGG 
Section 3. Procedure
Filing of the complaint accompanied by the affidavits and supporting documents

Within 10 days after the filing, the investigating officer shall either dismissed or issue
a subpoena

If subpoena is issued, respondents shall submit counter-affidavits and supporting

documents within 10 days from receipt thereof

Hearing (optional) it shall be held within 10 days from receipt of the counter–affidavit
or from the expiration of the period of their submission

Resolution of the investigating prosecutor

If respondent cannot be subpoenaed, or if subpoenaed
but does not submit his counter-affidavit within 10
days, investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

RIGHTS OF RESPONDENT IN A PRELIMINARY

INVESTIGATION
1. to submit counter-affidavits
2. to examine evidence submitted by the complainant
3. to be present in the clarificatory hearing.
The Rules do not require the presence of the
respondent in the Preliminary Investigation, what is
required is that he be given the opportunity to
controvert the evidence of the complainant by
submitting counter-affidavits. 
Q. Is a preliminary investigation a judicial proceeding?
A. Yes because there is an opportunity to be heard and the production
and weighing of evidence upon which a decision is rendered. Since it
is a judicial proceeding, the requirement of due process in judicial
proceedings is also required in preliminary investigations.
Q. What is the difference between criminal investigation and
preliminary investigation? 
A. Criminal investigation is a fact-finding investigation carried out by
law-enforcement officers for the purpose of determining whether
they should file a complaint for preliminary
investigation. Preliminary investigation is conducted for the purpose
of determining if there is probable cause to hold a person for trial. 
Q. What is probable cause? 
A. Probable cause is the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted. 
Q. Is the presence of counsel in the preliminary investigation
mandatory? 
A. No. Preliminary investigation is a summary proceeding and is merely
inquisitorial in nature. The accused cannot yet invoke the full
exercise of his rights.
Q. How does the investigating prosecutor resolve the findings after preliminary
investigation? 
1.If he finds probable cause to hold the respondent for trial, he shall prepare the
resolution and certify under oath in the information that:
a. he or an authorized officer has personally examined the complainant and
his witnesses;
b. that there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof;
c. that the accused was informed of the complaint and of the evidence against
him; 
d. that he was given an opportunity to submit controverting evidence.
2. If he finds NO probable cause, he shall RECOMMEND THE DISMISSAL OF THE
COMPLAINT.
3. Within 5 days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor of chief state prosecutor of the
Ombudsman. They shall act on the resolution within 10 days from receipt and
shall immediately inform the parties of such action.
 
4. No complaint of information may be filed or dismissed by an
investigating prosecutor without the prior written authority or approval
of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman.

5.If the investigating prosecutor recommends the dismissal of the

complaint, but his recommendation is disapproved by the provincial or
city prosecutor or chief state prosecutor or Ombudsman on the ground
that probable cause exists, the latter may either:
a. by himself, file the information; or 
b. direct another assistant prosecutor to file the information without
need for a new preliminary investigation.
 
6.The Secretary of Justice may, UPON PETITION BY A PROPER PARTY OR BY
ITSELF, REVERSE OR MODIFY THE RESOLUTION OF THE PROVINCIAL OR
CITY PROSECUTOR, THE CHIEF STATE PROSECUTOR, OR THE
OMBUDSMAN. In such a case, he shall direct the prosecutor concerned
to either file the information without need for a new preliminary
investigation or to dismiss or move for its dismissal if already filed in
court.
 
Q. What should the Secretary of Justice do if an
information that has already been filed in court is
appealed to him? 
A. He should, as far as practicable, REFRAIN FROM
ENTERTAINING THE APPEAL. The matter should be left to
the determination of the Court. 
Q. If the Secretary of Justice gives due course to the appeal,
what should the trial judge do? 
A. He should SUSPEND proceedings and defer arraignment
pending the resolution of the appeal. 
Q. Is the determination of probable cause a judicial or
executive function? 
A. It depends. If it is made in a preliminary investigation for
the purpose of determining whether there is reasonable
ground to believe that the accused has committed the
offense and should be held for trial, it is an executive
function. If it is made for the issuance of a warrant of
arrest by a judge, it is a judicial function.
Q. What are the remedies of a party against whom a warrant
of arrest has been issued?
A. 1.post bail 
• 2.ask for reinvestigation 
• 3.petition for review
• 4.motion to quash the information 
• 5.if denied, appeal the judgment after trial(no certiorari)
Q. What is the difference between preliminary investigation
conducted by the prosecutor and one conducted by
the judge?
A. The prosecutor is NOT bound by the designation of the
offense in the complaint. After preliminary investigation, he
may file any case as warranted by the facts. The judge
cannot change the charge in the complaint but must make a
finding on whether or not the crime charged has been
committed.
Q. What is a warrant of arrest? 
A. A warrant of arrest is a legal process issued by competent
authority, directing the arrest of a person or persons upon
grounds stated therein.
Section 6. When warrant of arrest may issue
Probable Cause - presupposes a reasonable ground for belief in the
existence of facts warranting the proceedings complained of;
-an apparent state of facts found to exist upon reasonable inquiry
which would induce a reasonably intelligent and prudent man to
believe that the accused person had committed the crime
charged. 
• If the judge finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused had already been
arrested and hold him for trial. If the judge is satisfied that there
is no necessity for placing the accused under custody, he may issue
summons instead of warrant of arrest.
The RTC judge need NOT personally examine the complaint and
witnesses in the determination of probable cause for the
issuance of the warrant of arrest.
He is only required to:
Personally evaluate the report and the supporting documents
submitted during the preliminary investigation by the fiscal; and
on the basis thereof he may:
a) Dismiss;
b) Issue warrant; or
c) Require further affidavits.
• REMEDY: The provincial fiscal, if he believes that the
accused should be immediately placed in custody, may
file the corresponding information so that the RTC may
issue the necessary warrant of arrest (Samulde vs.
Salvani, Jr., G.R. No. 78606, Sept. 26, 1988).
• While the judge may rely on the fiscal’s certification
thereof, the same is NOT conclusive on him as the
issuance of said warrant calls for the exercise of
judicial discretion and, for that purpose, the judge
may:
1. require the submission of affidavits of witnesses to
aid him in arriving at the proper conclusion, OR
2. he may require the fiscal to conduct further
preliminary investigation or reinvestigation.
Q. When may a warrant of arrest be issued? 
A. By the RTC:
1. Within 10 days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor
and its supporting evidence.
2. He may immediately dismiss the case if the evidence fails to
establish probable cause.
3. If he finds probable cause, he shall issue a warrant of arrest
or a commitment order if the accused has already been arrested
by virtue of a warrant issued by the MTC judge who conducted
the preliminary investigation or if he was arrested by virtue of a
lawful arrest without warrant.
4. In case of doubt on the existence of probable cause, the judge
may order the prosecutor to present additional evidence within 5
days from notice and the issue must be resolved within 30
days from the filing of the complaint or information. 
B. By the MTC:
1. If the preliminary investigation was conducted by a prosecutor,
same procedure as above 
INSTANCES WHEN WARRANT OF ARREST NOT NECESSARY
1. if the accused is already under detention;
2. if the complaint or information was filed after the accused
was lawfully arrested without warrant;
3. if the offense is punishable by fine only. 
Section 7. When accused lawfully arrested without warrant.
TWO SITUATIONS CONTEMPLATED UNDER THIS RULE:
1. When a person is lawfully arrested without a warrant for
an offense requiring a preliminary investigation (sec. 1,
Rule 112) and no complaint or information has yet been
filed, he may ask for a preliminary investigation by signing
a waiver of the provisions of Art. 125 of the RPC in the
presence of his counsel.
2. When the complaint or information was filed without
preliminary investigation, the accused may, within 5 days
from the time he learns of the filing of the information,
ask for a preliminary investigation with the same right to
adduce evidence in his favor in the manner prescribed in
this Rule.
The 5-day period is MANDATORY, failure to file the motion
zxzm43
within the said period amounts to waiver of the right to
ask for preliminary investigation.  
• Where the information was amended without a new
preliminary investigation having been conducted, the 5-
day period is computed from the time the accused learns
of the filing of said amended information.
• Where the trial court has granted a MOTION FOR
REINVESTIGATION, it must hold in abeyance the
arraignment and trial of the accused until the prosecutor
shall have conducted and made a report on the result of
such reinvestigation.
• The right to bail pending Preliminary Investigation under
Section 7, Rule 112, a person lawfully arrested may post
bail before the filing of the information or even after its
filing without waiving his right to preliminary investigation,
provided that he asks for a preliminary investigation by the
proper officer within the period fixed in the said rule
(People vs. Court of Appeals, May 29, 1995).
Q. Are “John Doe” warrants valid? 
A. Generally, John Doe warrants are void because they violate the
constitutional provision that requires that warrants of arrest should
particularly describe the person or persons to be arrested. But if there is
sufficient description to identify the person to be arrested, then the warrant
is valid. 
Q. What are the principles governing the finding of probable cause for the
issuance of a warrant of arrest?
A. 1. There is a distinction between the objective of determining probable
cause by the prosecutor and by the judge. The prosecutor determines it for
the purpose of filing a complaint or information, while the judge determines
it for the purpose of issuing a warrant of arrest – whether there is a
necessity of placing him under immediate custody in order not to frustrate
the ends of justice. 
2. Since their objectives are different, the judge should not rely solely on the
report of the prosecutor in finding probable cause to justify the issuance of a
warrant of arrest. The judge must decide independently and must have
supporting evidence other than the prosecutor’s bare report.
3.It is not required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge. He
must have sufficient supporting documents upon which to make
his independent judgment.
Q. How should the complaint or information be filed when the
accused is lawfully arrested without warrant? 
A. The complaint or information may be filed
by a prosecutor without need for a preliminary investigation
provided an inquest proceeding has been conducted in
accordance with existing rules. IN THE ABSENCE OF AN
INQUEST PROSECUTOR, the OFFENDED PARTY or ANY PEACE
OFFICER may file the complaint directly in court on the basis
of the affidavit of the offended party or peace officer. 
Q. What is an inquest? 
A. An inquest is an informal and summary investigation
conducted by a public prosecutor in a criminal case involving
persons arrested and detained without the benefit of a
warrant of arrest issued by the court for the purpose of
determining whether said persons should remain under
custody and correspondingly charged in court. 
Q. What are the guidelines to safeguard the rights of an accused who has
been arrested without a warrant? 
1.The arresting officer must bring the arrestee before the inquest fiscal to
determine whether the person should remain in custody and charged in
court or if he should be released for lack of evidence or for further
investigation. 
2.The custodial investigation report shall be reduced to writing, and
it should be read and adequately explained to the arrestee by his counsel
in the language or dialect known to him.
Q. What does Inquest Contemplates/PRE-requisites?
A. 1. lawful warrantless arrest;
2. offense is punished by at least 4 yrs and. 2 months and 1 day without
regards to fine and is cognizable by the MeTC, MCTC, MTCC and MTC;
3. offense punishable by more than 6 years, without regard to fine and
cognizable by the RTC;
4. A proceeding without Preliminary Investigation;
5. person arrested is in detained or taken under custody
Q. Can a person arrested W/o warrant and undergoes Inquest Proceedings
still asked for a Preliminary Investigation?
A. Yes, he may do so within 5 days from the date of filing the Information,
can ask for Preliminary Investigation, PROVIDED, he signs a waiver of Art.
125 of the RPC in the PRESENCE OF HIS COUNSEL. However, AFTER the 5
days period he can no longer invoke that right.
Section 8. Records  
• Records of the preliminary investigation shall NOT automatically
form part of the records of the case. Courts are not compelled to
take judicial notice thereof. It must be introduced as an evidence. 
Section 9. Cases not requiring a preliminary investigation nor covered
by the Rule on Summary Procedure.
PROCEDURE TO BE FOLLOWED IN CASES WHICH DO NOT REQUIRED
PRELIMINARY INVESTIGATION 
1. Evaluate the evidence presented
2. Conduct searching questions or answers
3. Require the submission of additional evidence
•  For cases under the Revised Rules on Summary Procedure, no
warrant shall be issued except where the accused fails to appear
after being summoned.
• If the complaint is filed with the prosecutor involving an offense
punishable by imprisonment of less than 4 years, 2 months and 1
day, the procedure in Rule 112, Section 3 (a) shall be observed.
• If the complaint is filed with the MTC, the same procedure under
Rule 112, Section 3 (a) shall be observed.
Q. What is the procedure in cases not requiring a preliminary investigation?
A. 1.If filed with the prosecutor, the prosecutor shall act on the complaint
based on the affidavits and other supporting documents submitted by the
complainant within 10 days from its filing. 
2.If filed with the MTC: 
a) If within 10 days from the filing of the complaint or information, the
judge finds no probable cause after personally examining the evidence in
writing and under oath of the complainant and his witnesses in the form of
searching questions and answers, he shall dismiss the complaint or
information.  
b) He may require the submission or additional evidence, within 10 days from
notice. 
c) If he finds probable cause, he shall issue a warrant of arrest or a commitment
order and hold him for trial. If he thinks that there is no necessity for placing
the accused under custody, he may issue summons instead.
Q. What is the certification required in the Investigating Prosecutor?
A. If the investigating prosecutor finds sufficient grounds to hold respondent for
trial (or prima facie case or probable cause to filing of information in court),
he shall prepare the resolution and corresponding information with his
certification. The certification by the fiscal gives rise to the presumption that a
P.I was duly performed.
Q. What is a clarificatory questioning?
A.Is a hearing conducted by the Investigating officer, if
there are facts and issued that needs to be clarified?
Q. Is clarificatory hearing mandatory?
A.No, the questioning is DISCRETIONARY on the part
of the investigating officer.
Q. Can the parties cross-examinations to each other?
A. No, both parties have the right to be present but
without the right to cross-examine each other. The
parties may, however submit questions to the
investigating officer which the latter may propound
to the parties or witnesses concerned.
 RULE 113
ARREST
Section 1. Definition of arrest. 
Arrest – 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). 
Modes of Arrest
1. arrest by virtue of a warrant
2. arrest without a warrant under exceptional circumstances as may
be provided by statute (Sec. 5, Rule 113).  
ESSENTIAL REQUISITES OF A VALID WARRANT OF ARREST
1. It must be issued upon probable cause which must be determined
personally by a judge after examination under oath or affirmation of
the complainant and the witnesses he may produce
2. The warrant must particularly describe the person to be seized
3. A warrant of arrest has NO EXPIRY DATE. It remains valid until
arrest is effected or warrant is lifted.
Q. What is arrest? 
A. Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission
of an offense. 
Q.How is an arrest made? 
A. Arrest is made by an actual restraint of the person to
be arrested or by his submission to the custody of the
person making the arrest. 
Q.What does it mean when jurisprudence says that the
officer, in making the arrest, must “stand his
ground”? 
A. It means that the officer may use such force as
is reasonably necessary to effect the arrest.
Q.What is the duty of the arresting officer who arrests a
person? 
A. He must deliver the person immediately to the
nearest jail or police station.
Q. Is custody of the law and Jurisdiction over the person of the
accused the same?
A. No, Custody of the law is accomplished either by arrest or
voluntary surrender; while jurisdiction over the person of the
accused is acquired upon his arrest or voluntary appearance. One
can be under the custody of the law but not yet subject to the
jurisdiction of the court over his person, such as when a person
arrested by virtue of a warrant file a motion to quash the warrant.
On the other hand one can be subject to the jurisdiction of the
court over his person and yet not in the custody of the law such as
when an accused escapes custody after his trial commence.
Q. Within what period must a warrant of arrest be served? 
A. There is no time period. A warrant of arrest is valid until the arrest
is effected or until it is lifted. The head of the office to whom the
warrant was delivered must cause it to be executed within 10
days from its receipt, and the officer to whom it is assigned for
execution must make a report to the judge who issued it within 10
days from the expiration of the period. If he fails to execute it, he
should state the reasons therefor.
REMEDY FOR WARRANTS IMPROPERLY ISSUED
1. Where a warrant of arrest was improperly issued, the proper remedy is
a petition to quash it, NOT a petition for habeas corpus, since the court in
the latter case may only order his release but not enjoin the further
prosecution or the preliminary examination of the accused (Alimpoos vs.
Court of Appeals, 106 SCRA 159). 
2. Posting of bail does not bar one from questioning illegal arrest (Section
26, Rule 114, Rules of Court).
Section 2. Arrest; how made. 

MODES OF EFFECTING ARREST

1. By an ACTUAL RESTRAINT of the person to be arrested.
2. By HIS SUBMISSION TO THE CUSTODY OF THE PERSON MAKING THE
ARrest.
Upon arrest, the following may be confiscated from the person arrested:
1. Objects subject of the offense or used or intended to be used in the
commission of the crime;
2. Objects which are the fruits of the crime;
3. Those which might be used by the arrested person to commit violence or
to escape;
4. Dangerous weapons and those which may be used as evidence in the
case.
Section 5. Arrest without warrant; when lawful 

LAWFUL WARRANTLESS ARREST

1. When, IN HIS PRESENCE, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense (in flagrante
delicto arrests);
2. When an offense has in fact just been committed, and he has probable
cause to believe based on PERSONAL KNOWLEDGE of fact and
circumstance that the person to be arrested has committed it; (Doctrine of
Hot Pursuit)
3. When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
4. Where a person who has been lawfully arrested escapes or is rescued
(Sec. 13, Rule 113);
5. By the bondsman for the purpose of surrendering the accused (Sec. 23,
Rule 114); and
6. Where the accused attempts to leave the country without permission of
the court (Sec. 23, Rule 114).
• If the arrest was effected without warrant, the arresting officer must
comply with the provisions of Art. 125 of the RPC, otherwise, he may be
held criminally liable for arbitrary detention under Article 124 of the RPC.
Q. Is the word in “ in his presence” means that the officer
need to actually saw the incident?
A. No, This means that the officer sees the offense although
at a distance or hears the disturbance created thereby
and proceeds at once to the scene thereof. Ex. While on
patrol, officer heard burst of gunfire and proceed to
investigate the matter.
Q. What is the extent of a legitimate warrantless arrest?
A. The arresting officer in a legitimate warrantless arrest
cloaks him the authority to validly search and seize from
the offender:
1. dangerous weapons; and
2. those that maybe used as proof in the commission of
an offense.
Q. What do you mean by the “ personal knowledge of facts”
in arrest without a warrant?
A. Personal knowledge of facts in arrest without a warrant
must be based upon probable cause, which means actual
belief or reasonable ground of suspicion. Ex. In a buy bust
operation.
Q. Is raw intelligence information or reliable information sufficient
ground of warrantless arrest?
A. It has been held that “reliable information” alone, absent of any
overt act indicative of a felonious enterprise in the presence and
within the purview of the arresting officer is NOT sufficient to
constitute probable cause that would justify as in flagrante delicto
arrest.
Q. Who may make/effect/execute arrest?
A.
1. Police officer (in both warrantless and arrest with a warrant)
2. Private Citizen (only warrantless arrest or citizen’s arrest)
3. Members of investigation staff of the NBI (under RA 157, as
amended)
4. Sheriff or deputy sheriff (may arrest a witness who failed to attend
and obey a subpoena despite proof of service thereof; (Sec.11,
Rule 23)
5. Provincial and City Probation Officer (may arrest probationer
under his care; Sec. 24. PD 986, as amended)
6. Commission of Land Transportation and his deputies (are
authorized to make arrest for violation of Land Transportation and
Traffic Code insofar as motor vehicles is concerned; RA 4136, as
amended)
Q. Who can issue a warrant of arrest?
A. Only judges may issue warrant of arrest. The exceptions is in case of
deportation of illegal and undesirable alien, whom the President or the
Commission of Immigration may order arrested following a final order
of deportation for the purpose of deportation.
Q. Who are persons exempt from arrest?
A. 1. Senators and Congressman in all offenses punishable by not more
than 6 years imprisonment shall be privelege from arrest while Congress
is n session.
2. Heads of State, Foreign Sovereign, Ambassadors, public ministers.
Q. A police officer was chasing a person who had just committed an
offense. The person went inside a house, so the police
officer followed. Inside the house, the police officer saw drugs lying
around. Can he confiscate the drugs? Can he use them as evidence?
A. Yes. The plain view doctrine is applicable in this case because there was
a prior valid intrusion, the police officer inadvertently discovered the
evidence, he had a right to be there, and the evidence was immediately
apparent.
Q. What if the officer merely peeks through the window of the house and
sees the drugs – can he confiscate them? Can he use them as evidence?
A. He can confiscate them, without prejudice to his liability for violation of
domicile. He cannot use them as evidence because the seizure cannot
be justified under the plain view doctrine, THERE BEING NO
PREVIOUS VALID INTRUSION.
RULES ON ILLEGALITY OF ARREST
1. An accused who enters his plea of NOT guilty and
participates in the trial waives the illegality of the arrest.
Objection to the ILLEGALITY MUST BE RAISED BEFORE
ARRAIGNMENT, otherwise it is deemed waived, as the
accused, in this case, has voluntarily submitted himself to
the jurisdiction of the court.
2. Illegality of warrantless arrest maybe CURED BY FILING OF
AN INFORMATION IN COURT AND THE SUBSEQUENT
ISSUANCE BY THE JUDGE OF A WARRANT OF ARREST.
3. Once a person has been duly charged in court, he may no
longer question his detention by petition for habeas
corpus, HIS REMEDY IS TO QUASH THE INFORMATION
AND/OR THE WARRANT OF ARREST.
Section 6. Time of making arrest.
• Unlike a search warrant which must be served only in
daytime, an arrest may be made on any day and at any
time of the day or night, even on a Sunday. This is justified
by the necessity of preserving the public peace.
Q. What is the duty of the arresting officer at the time of the arrest?
A. To inform him of the reason of his arrest, if any. He shall be
informed of his constitutional rights to remain silent and to
counsel, and that any statement he might make could be used
against him. He also have the right to communicate with his
lawyer, a relative or anyone he choose by the most expedient
means (by telephone as by letter or by messenger). It shall be the
duty of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the
presence of counsel engage by the person arrested, by any person
on his behalf, or appointed by the court. Any waiver of this right
shall not be valid unless made with the assistance of counsel. Any
evidence obtained in violation of the procedure laid down,
whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
Q. Is there any criminal liability for violation of the rights of accused
during custodial investigation?
A. Yes, under R.A. 7438 which took effect on July 7, 1992. For failure
to inform the accused of his Miranda rights and provide for
competent and independent counsel the penalty is Fine of 6000
and imprisonment of 8 to 10 years or both. For obstruction,
prevention and prohibition of the rights of visitation and private
conference a fine of P4000 and imprisonment of 4 yrs to 6 yrs.
Section 7. Method of arrest of officer by virtue of
warrant.
• Under this rule, an arrest may be made even if
the police officer is not in possession of the
warrant of arrest (Mallari vs. Court of Appeals,
265 SCRA 456). Exhibition of the warrant prior to
the arrest is not necessary. However, if after the
arrest, the person arrested so requires, the
warrant shall be shown to him as soon as
practicable.
Section 8. Method of arrest by officer without
warrant.
Section 9. Method of arrest by private person 
Citizen’s arrest - arrest effected by a private person.
Q. What is the Custodial Investigation?
A. Custodial Investigation means the
questioning initiated by law enforcement
officers after the person has been taken
into custody or otherwise deprived of his
freedom of action in any significant way.
This includes practice of issuing INVITATION
to a person who is investigated in
connection of an offense he is suspected to
have committed.
 Method of arrest
The officer shall inform the person to be
Sec.7 arrested the cause of the arrest and the
fact that the warrant has been issued for
his arrest.
 
Note: The officer need not have the
warrant in his possession at the time of
the arrest BUT must show the same after
the arrest, if the person arrested so
requires.
Sec. 8 The officer shall inform the person to be
arrested of his authority and the cause
of the arrest w/out a warrant
Sec. 9 The private person shall inform the
person to be arrested of the intention
to arrest him and the cause of the arrest.
 
Note: Private person must deliver the
arrested person to the nearest police
station or jail, otherwise, he may be held
criminally liable for illegal detention.
Exception to the rule on
giving information
1. when the person to be arrested
flees;
2. when he forcibly resists before the
officer has an opportunity to inform
him; and
 
3. when the giving of such information
will imperil the arrest.
when the person to be arrested is
engaged in the commission of an offense
or is pursued immediately its
commission;
when he has escaped, flees, or forcibly
resists before the officer has an
opportunity to so inform him; and
when the giving of such information will
imperil the arrest.
1. when the person to be arrested is
engaged in the commission of an offense
or is pursued immediately its
commission;
2. when he has escaped, flees, or forcibly
resists before the officer has an
opportunity to so inform him; and
3. when the giving of such information
will imperil the arrest.
 Method of arrest with a warrant of
arrest:
1. cause of his arrest;
2. fact that a warrant has been issued for his arrest.
3. shall show the warrant of arrest when the person
arrested so requires;
4. may summon assistance of other person make arrest;
5. may break into any building or enclosure to effect arrest;
6. may break out therefrom;
7. shall deliver the person arrested to the nearest police
station or jail;
8. shall inform the person arrested of his constitutional
rights.
 Method of arrest without a warrant:
1. Shall inform the person to be arrested of the
2. authority of his arrest;
3. cause of his arrest.
4. may summon assistance of other person make arrest;
5. may break into any building or enclosure to effect arrest;
6. may break out therefrom;
7. shall deliver the person arrested to the nearest police
station or jail;
8. shall inform the person arrested of his constitutional
rights.
 Method of warrantless arrest by a
private person:
1. Shall inform the person arrested of his:
a. Intention to arrest him; and
b. Cause of arrest
2. Cannot summon assistance of other person to
make arrest;
3. Cannot break into any building or enclosure to
effect arrest; and
4. Shall deliver the person arrested to the nearest
police station or jail.
Section 10. Officer may summon assistance. 
• Only an officer making the arrest is governed by the
rule. It does not cover a private individual making an
arrest. 
Section 11. Right of officer to break into building or
enclosure.
Requisites before an officer can break into a building or
enclosure to make an arrest:
1. That the person to be arrested is or is reasonably
believed to be in said building;
2. That he has announced his authority and purpose for
entering therein;
3. That he has requested and been denied admittance. 
• Generally, a lawful arrest may be made anywhere,
even on private property or in a house. This rule is
applicable both where the arrest is under a warrant,
and where there is valid warrantless arrest.
Section 12. Right to break out of the building or
enclosure to effect release.
• A private person making an arrest CANNOT break in or
out of a building or enclosure because only officers are
allowed by law to do so. 
Section 13. Arrest after escape or rescue. 
• Where 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 country. The pursuit must be immediate.
Section 14. Right of Attorney or relative to visit person
arrested.
• RA 7438 defined certain rights of persons arrested,
detained, or under custodial investigation, with the
penalties for violations thereof.
 RULE 114
BAIL
Bail defined.
  of a person in custody of the law,
Bail -- the security given for the release
furnished by him or a bondsman, conditioned upon his appearance
before any court as required under the conditions specified by the rule
(Sec. 1, Rule 114). 
•  A person is in the custody of law when he has been either arrested or
otherwise deprived of his freedom or when he has voluntarily submitted
himself to the jurisdiction of the court by surrendering to the proper
authorities.
• ALL PERSONS, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law (Section 13, Article III, 1987
Constitution).
Forms of bail:
1. corporate surety 2. property bond
3. cash deposit 4. Recognizance
Q. What is recognizance?
A. Recognizance is an obligation of record, entered into
before a court or magistrate duly authorized to take it, with the
condition to do some particular act, the most usual condition in
criminal cases being the appearance of the accused for trial.

B  ailbond
An obligation under seal
given by the accused with
one or more sureties, and
made payable to the
proper officer with the
condition to be void upon
performance by the
accused of such acts as he
may legally be required to
perform.
Recognizance
an obligation of record,
entered into before some
court or magistrate duly
authorized to take it, with
the condition to do some
particular act;
Prosecution witnesses may also be required to post bail to ensure
their appearance at the trial of the case where:
1. there is a substitution of information (Sec. 4, Rule110), and
2. where the court believes that a material witness may not appear at
the trial (Sec. 14, Rule 119).
Section 2. Conditions of the bail; requirements.
CONDITIONS OF BAIL:
1. The undertaking shall be effective upon approval, and, unless
cancelled, shall remain in force at all stages of the case UNTIL
PROMULGATION OF THE JUDGMENT OF THE RTC, irrespective of
whether the case was originally filed in or appealed to it;
2. The accused shall appear before the proper courts whenever so
required by the court or these Rules;
3. The FAILURE OF THE ACCUSED TO APPEAR AT THE TRIAL
WITHOUT JUSTIFICATION DESPITE DUE NOTICE SHALL BE DEEMED
A WAIVER OF HIS RIGHT TO BE PRESENT THEREAT. In such case,
the trial may proceed in absentia;
4. The bondsman shall surrender the accused to court for execution
of the final judgment.
*additional conditions can be imposed. 
A detention prisoner who escaped waives his right to cross-examination
(Jimenez v. Nazareno).
• By filing a fake bail bond, an appellant is deemed to have escaped from
confinement during the pendency of his appeal and in the normal course
of things, his appeal should be dismissed.
• NO RELEASE OR TRANSFER EXCEPT ON COURT ORDER OR BAIL.
• No person under detention by legal process shall be released or
transferred except upon order of the court or when he is admitted to bail
(Sec. 3). 
Section 4. Bail, a matter of right; exception. 
When a matter of right:
1. before or after conviction in the lower courts; AND
2. before conviction by the RTC, EXCEPT when the imposable penalty is
death, reclusion perpetua or life imprisonment and evidence of guilt is
strong.
In instances where bail is a matter of right and the bail to be granted is
based on the recommendation of the prosecution as stated in the
information or complaint, a HEARING IS NOT NECESSARY.  
But where, however, there is a reduction of bail as recommended or
after conviction by the RTC of an offense NOT punishable by death,
reclusion perpetua, or life imprisonment wherein the grant of bail is
discretionary, there must be a hearing before a bail is granted in order to
afford the prosecution the chance to oppose it (Bangayan vs. Butacan,
345 SCRA 301).
Q. When is bail a matter of right and when is it a matter of
discretion? 
A. In the MTC, it is a matter of right before or after conviction,
regardless of the offense. In the RTC, it is a matter of right before
conviction, EXCEPT for offenses punishable by death, reclusion
perpetua, or life sentence and the evidence of guilt is strong, in
which case it is discretionary. 
B. After conviction in the RTC, bail is a matter of discretion
regardless of the offense. The application for bail may be filed and
acted upon by the trial court as long as the original record of the
case has not been transmitted to the appellate court. However, if
the decision of the trial court changed the nature of the offense
from non-bailable to bailable, the application should be
addressed and resolved by the appellate court.
Q. What are non-bailable offenses?
A. 1. capital offense or offense punishable by death penalty, when
evidence of guilt is strong.
2. offense punishable by reclusion perpetua or life imprisonment,
when evidence of guilt is strong.
• The prosecution cannot adduce evidence for the
denial of bail where it is a matter of right.
However, where the grant of bail is
discretionary, the prosecution may show proof
to deny the bail. 
• An extraditee is not entitled to bail. The
Constitutional provision on Bail as well as Sec. 4
of Rule 114 applies only when a person has been
arrested and detained for violation of Philippine
Criminal laws. It does not apply to extradition
proceedings because extradition courts do not
render judgments of conviction or acquittal
(Govt. of US vs. Judge Purganan, Sept. 24, 2002).
Section 5. Bail, when discretionary. –
RULES ON AVAILABILITY OF BAIL
1. Regardless of stage of the criminal prosecution, no bail shall be allowed if the
accused is charged with a capital offense or an offense punishable by reclusion
perpetua AND the evidence of guilt is strong (Sec. 7);
2. Before and after conviction by the MTC, Municipal Trial Court or MCTC, bail is a
matter of right (Sec.4).
3. Before conviction by the RTC whether in the exercise of its original or appellate
jurisdiction, bail is a matter of right. (Sec.4)
4. Upon conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment, admission to bail is discretionary (Sec. 5);
5. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not
more than 20 years is imposed, and not one of the circumstances below is present
and proved, bail is a matter of discretion (Sec.5)
A. Recidivism, quasi-recidivism or habitual delinquency or commission of crime
aggravated by the circumstances of reiteration.
B. Previous escape from legal confinement, evasion of sentence or violation of the
conditions of bail without valid justification.
C. Commission of the offense while on probation, parole or under conditional
pardon
D. Circumstance of the accused or his case indicates the probability of flight if
released on bail
E. Undue risk of commission of another crime by the accused during pendency of
appeal.
6. After conviction by the RTC imposing a penalty of imprisonment
exceeding 6 years but not more than 20 years and any of the
circumstance enumerated above and other similar circumstance is
present and proved, no bail shall be granted (Sec.5);
7. After judgment has become final unless accused applied for
probation before commencing to serve sentence of penalty and
offense within purview of probation law (Sec. 24). 
Section 6. Capital Offense, defined. 
Capital Offense – is an offense which, under the law existing at the
time of its commission AND at the time of the application to be
admitted to bail, may be punished with death. 
• If the law at the time of commission does not impose the death
penalty, the subsequent amendment of the law increasing the
penalty cannot apply to the case, otherwise it would be ex post
facto, and penalties are determined by the law at the time of the
commission of the offense.
• If the law at the time of the application for bail has amended the
prior law which imposed the death penalty by reducing such
penalty, such favorable law generally has a retroactive effect.
Q. When can the prosecution move for the cancellation or
denial of bail of the accused? 
A. If the penalty imposed by the trial court is imprisonment
greater than 6 years, the prosecution may move
for denial or cancellation of the bail of the accused, with
notice to the accused, upon showing of the following
circumstances: 
1. That he is a recidivist, quasi-recidivist, habitual
delinquent, or committed the offense with
the aggravating circumstance of reiteracion.
2. The he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail
without valid justification.
3. That he committed the offense while on probation, parole
or conditional pardon
4. That the circumstances of his case indicate the probability
of flight if released on bail; or
5. That there is undue risk that he may commit another
crime during the pendency of the appeal.
Section 7. Capital Offense not bailable. 
Capital offense or those punishable by reclusion perpetua, life
imprisonment or death are NOT BAILABLE when evidence of guilt is
strong.
EXCEPTION: If the accused charged with a capital offense is a minor. 

Section 8. Burden of proof in bail application. 

• The hearing should be SUMMARY or otherwise in the discretion of

the court but the right of the prosecution to control the quantum
of evidence and the order of presentation of witnesses must be
equated with the purpose of the hearing – to determine the
bailability of the accused.
• The burden of proving that the evidence of guilt is strong lies
within the fence of the prosecution. (Comia vs. Antona, 337 SCRA
656) 
• Evidence of guilt is strong when proof is evident or the
presumption of guilt is strong. The test is NOT whether the
evidence establishes guilt beyond reasonable doubt but rather
whether it shows  evident guilt or a great presumption of guilt.
Q. If there is a likelihood that the accused would jump bail, what
should the court do? 
A.
1.Increase the amount of bail 
2.Require periodic reports of the accused to court 
3.Warn him that the trial may proceed in absentia 
Q. What is a capital offense? 
A. A capital offense is an offense which, under the law existing at the
time of its commission and of the application for admission to
bail, may be punished with death. 
Q. What are the duties of the trial judge in case an application for
bail is filed?
A. 1.Notify the prosecutor of the hearing or require him to submit his
recommendation.
2. Conduct a hearing.
3. Decide whether the evidence of guilt 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 bailbond. If evidence of guilt is strong, the
petition should be denied. 
Section 9. Amount of bail; guidelines.
FACTORS TO BE CONSIDERED IN FIXING THE REASONABLE AMOUNT OF
BAIL (NOT EXCLUSIVE)
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of evidence against the accused;
7. Probability of the accused appearing at the trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from justice when arrested; and
10.Pendency of other cases when the accused is on bail
Bail must not be in a prohibitory amount. Excessive bail is not to be required
for the purpose of preventing the accused from being admitted to bail. 
Section 11. Property, how posted. 
• Property Bond – is an undertaking constituted as a LIEN on the real
property given as security for the amount of the bail (sec11); 
• It is required that the annotation of a lien on the land records of the
property posted as bail, otherwise the property bail bond shall be
cancelled.
Q. Where should bail be filed? 
A. It may be filed with the court where the case is PENDING. In the
absence of the judge thereof, bail may be filed with any RTC or
MTC judge in the province, city, or municipality. If the accused is
arrested in a province, city, or municipality other than where the
case is pending, bail may also be filed with and RTC of said
place, or if no judge is available, with any MTC judge therein. But
where bail is a matter of discretion or where the accused seeks to
be released on recognizance, BAIL MAY ONLY BE FILED IN THE
COURT WHERE THE CASE IS PENDING. Any person in custody who
is not yet charged may apply for bail with any court in the
province, city or municipality where he is held.
Q. What is the remedy of the accused if he is denied bail? 
A. He should file a special civil action in the CA, not the SC within 60
days.
Q. Does an application for bail bar the accused from questioning the
validity or his arrest, the validity of the warrant, or the manner of
conducting the preliminary investigation? 
A. No, provided that he raises these questions BEFORE PLEA.
 
Section 12. Qualifications of sureties in property bond.
• Philippine residency is required of a property bondsman. The
reason for this is that bondsmen in criminal cases, residing outside
of the Philippines, are not within the reach of the processes of its
courts (Villaseñor vs. Abano, 21 SCRA 312). 
Section 13. Justification of sureties.
• The purpose of the rule requiring the affidavit of qualification by
the surety before the judge, is to enable the latter to determine
whether or not the surety possesses the qualification to act as
such, especially his financial worth.
• The justification being under oath, any falsity introduced thereto by
the surety upon a matter of significance would render him liable for
perjury.
Section 14. Deposit of cash as bail 
EFFECT OF DEPOSITING CASH AS BAIL:
Accused shall be discharged from custody as it is considered as bail.
Section 15. Recognizance
• Recognizance - an obligation of record, entered into before some
court or officer authorized to take it with a condition to do some
particular act and the accused is often allowed to obligate himself
to answer the charge.
Section 16. Bail when not required; reduced
bail on recognizance.
• Instances wherein the accused may be
released on recognizance, without putting bail
or on reduced bail:

CAN BE RELEASED WITHOUT BAIL
ON REDUCED BAIL OR ON HIS OWN
RECOGNIZANCE
UNDER THE REVISED RULES ON
SUMMARY PROCEDURE
1. Offense charged is violation of an ordinance, light felony
or a criminal offense, the imposable penalty wherefore
does not exceed 6 months of imprisonment and/or fine
of P 2,000 under R.A.6036
2. Where the accused has applied for probation and
before the same has been resolved but no bail was filed
or the accused is incapable of filing one, in which case
he may be released on recognizance
3. In case of a youthful offender held for physical or
mental examination, trial or appeal, if unable to furnish
bail and under the circumstances under PD 603, as
amended
A person in custody for a period equal to or more
than the minimum of the principal penalty prescribed
for the offense charged, without application of the
indeterminate sentence law or any modifying
circumstance shall be released on reduced bail or on
his own recognizance
General Rule: no bail
Exception:
1. When a warrant of arrest is issued for failure to appear
when required by the court
2. When the accused
- is a recidivist;
- is a fugitive from justice;
- is charged with physical injuries
- does not reside in the place where the violation of the law or
ordinance is committed; or
-has not reside in the place where the violation of the law or
ordinance is committed; or has no known residence
Section 17. Bail, where filed.

1. May be filed with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with another branch of the same court within
the province or city.
2. Whenever the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance,
3. the application therefore may be filed only in the particular court where the case
is pending, whether for preliminary investigation, trial or appeal.
4. Any person in custody who is not yet charged in court may apply for bail with any
court in the province, city or municipality where he is held. 

Section 18. Notice of application to prosecutor.

• Such notice is necessary because the burden of proving that the evidence of guilt
is strong is on the prosecution and that the discretion of the court in admitting the
accused to bail can only be exercised after the fiscal has been heard regarding the
nature of the evidence in his possession. (People vs. Raba, 130 Phil. 384) 

Section 19. Release on bail.

• Once the accused has been admitted to bail, his entitled to immediate release
from custody. An officer who fails or refuses to release him from detention
notwithstanding the approval by the proper court of his bailbond, may be held
liable under Article 126 of the Revised Penal Code for delaying release.
Section 20. Increase or reduction of bail. 
• The guidelines provided for in Section 9, Rule 114, in fixing the amount of
bail are also applicable in reducing or increasing the bail previously fixed.
• Where the offense is bailable as a matter of right, the mere probability
that the accused will escape, or even if he had previously escaped while
under detention, does not deprive him of his right to bail. The remedy is
to increase the amount of the bail, provided such amount would not be
excessive. (Sy Guan vs. Amparo, 79 Phil. 670) 

Section 21. Forfeiture of bail.

Within 30 days from the failure of the accused to appear in person as
required, the bondsmen must:
1. PRODUCE the body of their principal or give the reason for his non-
production; AND
2. EXPLAIN why the accused did not appear before the court when first
required to do so. 
• The 30-day period granted to the bondsmen to comply with the two
requisites for the lifting of the order of forfeiture cannot be shortened by
the court but may be extended for good cause shown.
ORDER OF FORFEITURE VS. ORDER OF CONFISCATION
• an ORDER OF FORFEITURE is conditional and interlocutory, there being
something more to be done such as the production of the accused within
30 days as provided by the rules an order of forfeiture is not appealable
• an ORDER OF CONFISCATION is not independent of the order of the order
of forfeiture. It is a judgment ultimately determining the liability of the
surety thereunder, and therefore final and execution may issue at once. 
Section 22. Cancellation of bailbond. 
INSTANCES WHEN BAIL BOND CAN BE CANCELLED
1. upon application by the bondsman with notice to the fiscal and upon
surrender of the accused; and
2. upon proof that the accused died.
• The bail bond is automatically cancelled upon the acquittal of the accused
or dismissal of the case or execution of the final order of conviction,
without prejudice to any liability on the bond incurred prior to their
discharge.
METHODS BY WHICH SURETIES MAY RELIEVE THEMSELVES FROM
RESPONSIBILITIES
1. Arrest the principal and deliver him to the proper authorities;
2. They may cause his arrest to be made by any police officer or other person
of suitable age or discretion; or
3. By endorsing the authority to arrest upon a certified copy of the
undertaking and delivering it to such officer or person
Section 23. Arrest of accused out on bail. 
• An accused released on bail may be re-arrested without a warrant if he
attempts to depart from the Philippines without prior permission of the
court where the case is pending.

 Section 24. No bail after final judgment; exception. 

GENERAL RULE: The finality of the judgment terminates the criminal
proceeding. Bail becomes of no avail. The judgment contemplated is a
judgment of conviction. The judgment is final if the accused does not
appeal the conviction. 
• No bail shall be granted after judgment, if the case has become final even
if continued confinement of the accused would be detrimental or
dangerous to his health. The remedy would be to submit him to medical
treatment or hospitalization. 
EXCEPTION: If the accused applies for PROBATION he may be allowed
temporary liberty under his existing bail bond, or if no bail was filed, or
is incapable of filing one, he may be released on recognizance to the
custody of a responsible member of the community
• The application for PROBATION MUST BE FILED WITHIN THE PERIOD OF
PERFECTING AN APPEAL. Such filing operates as a waiver of the right to
appeal. The accused in the meantime, is entitled to be released on bail or
recognizance. (Sec. 4, PD 968, as amended)
Section 25. Court supervision of detainees. 
• The employment of physical, psychological or degrading
punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law (Section 19(2), Article III, 1987
Constitution).

Section 26. Bail not a bar to objection on illegal arrest, lack of or

irregular preliminary investigation. 

AN APPLICATION FOR OR ADMISSION TO BAIL SHALL NOT BAR THE

ACCUSED
1. from challenging the validity of his arrest OR
2. legality of the warrant issued therefore, OR
3. from assailing the regularity or questioning the absence of
preliminary investigation of the charge against him, PROVIDED, he
raises them before entering his plea.
 RULE 115
RIGHTS OF THE ACCUSED
This rule enumerates the rights of a person accused of an offense,
which are both constitutional as well as statutory, save the right to
appeal, which is purely statutory in character. 
SECTION 1. RIGHTS OF THE ACCUSED AT THE TRIAL. 
A. TO BE PRESUMED INNOCENT
• In all criminal prosecutions, the accused is presumed innocent until
the contrary is proved beyond reasonable doubt.
• Reasonable Doubt is that doubt engendered by an investigation of
the whole proof and an inability, after such investigation, to let
the mind rest easy upon the certainty of guilt. Absolute certainty
of guilt is not demanded by the law to convict of any criminal
charge but moral certainty is required, and this certainty is
required as to every proposition of proof requisite to constitute
the offense. 
•  EQUIPOISE RULE – where the evidence of the parties in a
criminal case are evenly balanced, the constitutional presumption
of innocence should tilt in favor of the accused and must be
acquitted.
Q. What are the two aspects of the right to due process?
A. 1.Substantive due process – this refers to the intrinsic validity of
the law 
2.Procedural due process– one that hears before it condemns,
proceeds upon inquiry, and renders judgment only after trial and
based on the evidence presented therein.
Q. Is it necessary to have trial-type proceedings in order to satisfy the
requirement of due process? 
A. No. There is no need for trial-type proceedings in order to
satisfy due process. What is important is that there was an
opportunity to be heard. Notice and hearing are the minimum
requirements of due process. 
Q. In general, what are the requirements of procedural due process? 
A. 1.There must be an impartial and competent court with judicial
power to hear and determine the matter before it;
• 2.Jurisdiction must be lawfully acquired over the person of the
defendant or over the property subject of the proceeding; 
• 3.The defendant must be given an opportunity to be heard; 
• 4.Judgment must be rendered upon lawful hearing.
Q. In criminal cases, what are the requirements of procedural due process?
A. The requirements in criminal cases are more stringent. They are: 
1.The accused must have been heard by a court of competent jurisdiction; 
2.He must have been proceeded against under orderly processes of the law;
3.He may be punished only after inquiry and investigation; 
4.There must be notice to the accused;
5.The accused must be given an opportunity to be heard;
6.Judgment must be rendered within the authority of a constitutional law.
Q. What is the meaning of the right of presumption of innocence? 
A. The right means that the presumption must be overcome by evidence of
guilt beyond reasonable doubt. Guilt beyond reasonable doubt means
that there is moral certainty as to the guilt of the accused. Conviction
should be based on the strength of the prosecution and not on the
weakness of the defense. The significance of this is that accusation is not
synonymous with guilt. 
Q. What are the exceptions to the constitutional presumption of innocence?
A. 1.Presumptions – If there is a reasonable connection between the fact
presumed and the fact ultimately proven from such fact Examples:
a. When an accountable public officer fails to account for funds
or property that should be in his custody, he is presumed to be guilty
of malversation;
b. Persons in possession of recently stolen goods are presumed guilty
of the offense in connection with the goods.
2.Self-Defense – One who invokes self-defense is presumed guilty. The
burden of proving the elements of self-defense(unlawful aggression,
reasonable necessity of the means used to prevent or repel it; lack of
sufficient provocation on the part of the one defending himself) BELONGS
TO THE ACCUSED.
Q. What is a “reverse trial”? 
A. Usually, the prosecution presents its evidence to establish the guilt of
the accused first. But a reverse trial happens if the accused admits the
killing but claims self-defense. He must first establish the elements of
self-defense in order to overturn the presumption that he was guilty of
the offense.
B. TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE
ACCUSATION AGAINST HIM.
• An accused cannot be convicted of an offense unless it is clearly
charged in the complaint or information. To convict him of an
offense other than that charged in the complaint or information
would be a violation of this constitutional right (People vs. Ortega,
276 SCRA 166).
• When a person is charged in a complaint with a crime and the
evidence does not show that he is guilty thereof, but does show
that he is guilty of some other crime or a lesser offense, the court
may sentence him for the lesser offense, PROVIDED the lesser
offense is a cognate offense and is included in the complaint with
the court.
 
C. BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY
STAGE OF THE PROCEEDING 
• THE PRESENCE OF THE ACCUSED IS REQUIRED ONLY
1. During arraignment (Sec. 1b, rule 116)
2. Promulgation of judgment EXCEPT when the conviction is for a
light offense, in which case, it may be pronounced in the presence
of his counsel or a representative
3. When ordered by the court for purposes of identification
• Not applicable in SC and CA - The law securing to an accused person the
right to be present at every stage of the proceedings has no application to
the proceedings before the Court of Appeals and the Supreme Court nor
to the entry and promulgation of their judgments The defendant need not
be present in court during the hearing of the appeal. (Sec. 9 Rule 124) 
• Accused may waive his right to be present during the trial. HOWEVER, his
presence may be compelled when he is to be identified. (Aquino, Jr. vs.
Military Commission, 63 SCRA 546) 
EFFECTS OF WAIVER OF THE RIGHT TO APPEAR BY THE ACCUSED
1. waiver of the right to present evidence;
2. prosecution can present evidence if accused fails to appear;
3. the court can decide without accused’s evidence.
TRIAL IN ABSENTIA
• It is important to state that the provision of the Constitution authorizing
the trial in absentia of the accused in case of his non-appearance AFTER
ARRAIGNMENT despite due notice simply means that he thereby waives
his right to meet the witnesses face to face among others. 
• Such waiver of a right of the accused does not mean a release of the
accused from his obligation under the bond to appear in court whenever
so required. The accused may waive his right but not his duty or
obligation to the court. 
REQUIREMENTS FOR TRIAL IN ABSENTIA
1. accused has been arraigned
2. he has been duly notified of the trial
3. his failure to appear is unjustified 
• An escapee who has been duly tried in absentia waives his right to
present evidence on his own behalf and to confront and cross-examine
witnesses who testified against him. (Gimenez vs. Nazareno, 160 SCRA
1)
Q. Can the right to be present at the trial be waived? 
A. Yes, except in the following situations, where the presence of the
accused at the trial is required:
1.Arraignment; 
2.During promulgation of judgment, except if it is for a light offense;
3.When the presence of the accused at the trial is necessary
for purposes of identification, UNLESS he admits beforehand that the
is the same person charged.
 D. RIGHT TO COUNSEL
• The right covers the period beginning from custodial
investigation, well into the rendition of the judgment and
even on appeal. (People vs. Serzo, Jr., 274 SCRA 553).
• If during the investigation the assisting lawyer left, or
come and go, the statement signed by the accused is still
inadmissible because the lawyer should assist his client
from the time the confessant answers the first question
asked by the investigating officer until the signing of the
extrajudicial confession. (People vs. Morial, 363 SCRA 96) 
•  The right to counsel and the right to remain silent do
not cease even after a criminal complaint/information has
already been filed against the accused, AS LONG AS he is
still in custody. 
• The duty of the court to appoint a counsel de oficio when
the accused has no legal counsel of choice and desires to
employ the services of one is MANDATORY ONLY AT THE
TIME OF ARRAIGNMENT. (Sec. 6 Rule 116) 
E. TO TESTIFY AS WITNESS IN HIS OWN BEHALF
• A denial of the defendant’s right to testify in his
behalf would constitute an unjustifiable violation of
his constitutional right. (People vs. Santiago, 46 Phil.
734).
• If the accused testifies, he may be cross-examined
but ONLY on matters covered by his direct
examination, unlike an ordinary witness who can be
cross-examined as to any matter stated in the direct
examination or connected therewith (Section 6, Rule
132). His failure to testify is not taken against him
but failure to produce evidence in his behalf is
considered against him (U.S. vs. Bay, 97 Phil. 495).
Q. Is there a difference between the right to counsel during
custodial investigation and the right to counsel during the
trial?
  Yes. In custodial investigation, the right to counsel can
only be waived in writing AND with the assistance of
counsel. The counsel required in custodial investigation
is competent and independent counsel, preferably of his
own (the suspect’s) choice. During the trial, the right
to counsel means the right to effective counsel. The
requirement is stricter during custodial investigation
because a trial is done in public, while custodial
investigation is not. THE DANGER THAT CONFESSIONS
WILL BE EXTRACTED AGAINST THE WILL OF THE
DEFENDANT DURING CUSTODIAL INVESTIGATION DOES
NOT REALLY EXIST DURING TRIAL. During trial the purpose
of counsel is not so much to protect him from being
forced to confess but to defend the accused. 
Q. Why is the right to counsel afforded during trial? 
A. The right to counsel is embraced in the right to be heard.
Q.When should the right to counsel be invoked? 
A.The right to counsel may be invoked at any stage of the
proceedings, even on appeal. However, it can also be
waived. The accused is deemed to have waived his right to
counsel when he voluntarily submits himself to the
jurisdiction of the Court and proceeds with his defense. But
in US v. Escalante and People v. Nang Kay (p. 532 of Herrera
Textbook), the Court held that the defendant cannot raise
the question of his right to have an attorney for the first
time on appeal. If the question is not raised in the trial
court, the prosecution may go to trial. The question will not
be considered in the appellate court for the first time when
the accused fails to raise it in the lower court.
 
Q. Is the duty of the court to appoint counsel-de-oficio mandatory at
all times? 
A. No. The duty to appoint counsel-do-officio is mandatory only up to
arraignment.
Q. Does the mistake of counsel bind the client?
A. As a rule, the mistake of counsel binds the client. Therefore, the
client cannot question a decision on the ground that counsel was
an idiot. However, an exception to this is if counsel misrepresents
himself as a lawyer, and he turns out to be a fake lawyer. In this
case, the accused is entitled to a new trial because his right to be
represented by a member of the bar was violated. He was thus
denied of his right to counsel and to due process.
 Q.Is the right to counsel absolute?
A. No. The right of choice must be reasonably exercised. THE
ACCUSED CANNOT INSIST ON COUNSEL THAT HE CANNOT
AFFORD, one who is not a member of the bar, or one who declines
for a valid reason, such as conflict of interest. Also, the right of the
accused to choose counsel is subject to the right of the state to
due process and to speedy and adequate justice.
 
Q. When can the accused defend himself in
person? 
A.The accused can defend himself in person only if
the court is convinced that he can properly
protect his rights even without the assistance of
counsel.
Q. What is the weight of the testimony of an
accused who testifies on his own behalf
but refuses to be cross-examined?
A. The testimony will not be given weight. IT WILL
NOT HAVE PROBATIVE VALUE because the
prosecution was not given a chance to test the
credibility of the testimony through cross-
examination.
F. RIGHT AGAINST SELF-INCRIMINATION
• The accused is protected under this rule from questions which tend to
incriminate him, that is, which may subject him to penal liability.
• The right may be waived by the failure of the accused to invoke the
privilege at the proper time, that is, AFTER the incriminating question
is asked and before his answer;
• The privilege of the accused to be exempt from testifying as a witness
involves a PROHIBITION AGAINST TESTIMONIAL COMPULSION ONLY
AND THE PRODUCTION BY THE ACCUSED OF INCRIMINATING
DOCUMENTS, AND ARTICLES DEMANDED FROM HIM. (U.S. vs. Tan
Teng, 23 Phil. 145) 
EXCEPTIONS: immunity statutes such as:
1. RA 1379 – Forfeiture of Illegally obtained wealth
2. RA 749 – Bribery and Graft cases
RIGHT OF THE ACCUSED AGAINST SELF-INCRIMINATION VS. RIGHT OF
THAT OF AN ORDINARY WITNESS
• The ordinary witness may be compelled to take the witness stand and
claim the privilege as each question requiring an incriminating answer is
shot at him, an ACCUSED MAY ALTOGETHER REFUSE TO TAKE THE
WITNESS STAND AND REFUSE TO ANSWER ANY AND ALL QUESTIONS.
G . RIGHT TO CONFRONT AND CROSS- EXAMINE THE
WITNESSES AGAINST HIM AT TRIAL 
• CONFRONTATION is the act of setting a witness face-to-face
with the accused so that the latter may make any objection
he has to the witness, and the witness may identify the
accused, and this must take place in the presence of the
court having jurisdiction to permit the privilege of cross-
examination.
• The main purpose of the right to confrontation is to secure
the opportunity of cross-examination and the secondary
purpose is to enable the judge to observe the demeanor of
witnesses.
• In any criminal proceeding, the defendant enjoys the right to
have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.
Q. What is the scope of the right against self-incrimination?
A. The right against self-incrimination covers testimonial
compulsion only and the compulsion to produce
incriminating documents, papers, and chattels. It does not
cover the compulsion to produce real or physical evidence
using the body of the accused.
 Q. Is there an exception to the right against self-
incrimination? 
A. The right cannot be invoked when the State has the right
to inspect documents under its police power, such as
DOCUMENTS OF CORPORATIONS. 
Q. What is the rationale for protecting the right against self-
incrimination? 
A. There are two reasons:
1.For humanitarian reasons: To prevent the State, with all its
coercive powers, from extracting testimony that may
convict the accused. 
2.For practical reasons: The accused is likely to commit
PERJURY if he were compelled to testify against himself
Q. Who may invoke the right against self-incrimination, and when can they
invoke the right? 
A. 1.An ORDINARY WITNESS may invoke the right, but he may only do so as
each incriminating question is asked. 
2.The ACCUSED HIMSELF may invoke the right, and unlike the ordinary
witness, he may altogether refuse to take the witness stand and refuse to
answer any and all questions. But, once the accused waives his right and
chooses to testify in his own behalf, he may be cross-examined on matters
covered in his direct examination. He cannot refuse to answer questions
during cross-examination by claiming that the answer that he will give
could incriminate him for the crime with which he was charged. However, if
the question during cross-examination relates to a crime different from that
with which he was charged, he can still invoke the right and refuse to answer. 
Q. Can the accused or witness invoke the right against self-incrimination if he is
asked about past criminality? 
A. It depends. If he can still be prosecuted for it, questions about past criminal
liability are still covered by the protection of the right against self-
incrimination. But if he cannot be prosecuted for it anymore, he cannot invoke
the right.
Q. What is the effect of the refusal of the accused to refuse to testify
in his behalf? 
A. As a general rule, the silence of the accused should not
prejudice him. However, in the following cases, an
unfavorable inference is drawn from the failure of the accused
to testify:
1.If the prosecution has already established a prima facie case,
the accused must present proof to overturn the evidence
of the prosecution. 
2.If the defense of the accused is alibi and he does not testify,
the inference is that the alibi is not believable. 
Q. What is the meaning of the right of confrontation?
A. It means that the accused can only be tried using those witnesses
that meet him face to face at the trial who give testimony in his
presence, with the opportunity to cross-examine them.
Q. What are the reasons for the right? 
A. 1.To allow the court to observe the demeanor of the witness while
testifying. 
2.To give the accused the opportunity to cross-examine the witness in
order to test their recollection and credibility.
Q. Can the right of confrontation be waived?
A. Yes, it can be waived either expressly or impliedly. It is waived impliedly
when an accused waives his right to be present at the trial. The right of
confrontation may also be waived by conduct amounting to a
renunciation of the right to cross-examine. When the party was given an
opportunity to confront and cross-examine an opposing witness but
failed to take advantage of it for reasons attributable to himself alone,
he is deemed to have waived the right.
Q. What happens to the testimony of a witness who dies or becomes
unavailable? 
A. It depends. If the other party had the opportunity to cross-examine the
witness before he died or became unavailable, the testimony may be
used as evidence. However, if the other party did not even have the
opportunity to cross-examine before the subsequent death or
unavailability of the witness, the testimony will have no probative
value. ( An opportunity to cross-examine is all that is necessary in order
to allow the use of the testimony of the witness. There need not be an
actual cross-examination, as long as there was an opportunity to do so.)
I. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
• The right to a speedy trial is intended to avoid oppression and to
prevent delay by imposing on the courts and on the prosecution an
obligation to proceed with reasonable dispatch.
• The courts, in determining whether the right of the accused to a speedy
trial has been denied, should consider such facts as the length of the
delay, the accused’s assertion or non-assertion of his right, and the
prejudice to the accused resulting from the delay.
• There is NO violation of the right where the delay is imputable to the
accused. (Solis vs. Agloro, 64 SCRA 370).
REMEDIES AVAILABLE TO THE ACCUSED WHEN HIS RIGHT TO A SPEEDY
TRIAL IS VIOLATED
1. He should ask for the trial of the case not for the dismissal;
2. Unreasonable delay of the trial of a criminal case as to make the
detention of defendant illegal gives ground for habeas corpus as
a remedy for obtaining release so as to avoid detention for a
reasonable period of time
3. Accused would be entitled to relief in a mandamus proceeding to
compel the dismissal of the information.
Q. How should the trial be conducted?
A. The trial should be speedy, public, and IMPARTIAL. 
Q. What is the meaning of the right to speedy trial? 
A. The right means that the trial should be conducted
according to the law of criminal procedure and the
rules and regulations, free from vexations,
capricious, and oppressive delays. 
Q. When should the arraignment and pre-trial be held? 
A. According to the Speedy Trial Act and Circular 38-98,
arraignment and pre-trial if the accused pleads
not guilty should be held within 30 days from the
date the court acquires jurisdiction of the person of
the accused. 
Q. Within how many days should the trial be
completed? 
A. In no case shall the ENTIRE PERIOD EXCEED 180 DAYS
FROM THE FIRST DAY OF TRIAL, except as otherwise
authorized by the Court Administrator.
Q.What is the remedy of an accused whose right to
speedy trial is violated? 
A. The accused has the following remedies:
1.File a motion to dismiss on the ground of violation of
his right to speedy trial. (For purposes of double
jeopardy, this has the same effect as an
acquittal.)This must be done prior to trial, or else, it
is deemed a waiver of the right to dismiss.
2.File for mandamus to compel a dismissal of the
information. 
3.If he is restrained of his liberty, file for habeas corpus.
4.Ask for the trial of the case.  
Q.What is the limitation on the right of an accused to a
speedy trial? 
A. The limitation is that the State should not be
deprived of its day in court. The right of the State/the
prosecution to due process should be respected.
Q. The prosecution and the complainant fail to attend the first
hearing. The court postpones the hearing to another date. Is
there a violation of the right to speedy trial? 
A. No. The right to speedy trial is violated when there are
UNJUSTIFIED POSTPONEMENTS OF THE TRIAL, and a long
period of time is allowed to elapse without the case being tried
for no justifiable reason. 
Q. What is the meaning of the right to a public trial? 
A. It means that ANYONE INTERESTED IN OBSERVING THE
MANNER THAT A JUDGE CONDUCTS THE PROCEEDINGS IN HIS
COURTROOM MAY DO SO
Q. Why should a trial be conducted in public?
A. The trial should be public in order TO PREVENT ABUSES THAT
MAY BE COMMITTED BY THE COURT TO THE PREJUDICE OF THE
DEFENDANT. Moreover, the accused is entitled to the moral
support of his friends and relatives
Q.Is there an exception to the requirement of publicity? 
A. Yes. The court may bar the public in certain cases,
such as when the evidence to be presented may be
offensive to decency or public morals, or in rape
cases, where the purpose of some persons in
attending is merely to ogle at the parties. 
Q.Is it okay to hold the trial in the chambers of the
judge? 
A. Yes. There is no violation of the right to a public trial,
since the public is not excluded from attending the
trial. 
Q.In so-called trials by publicity, when can the publicity
be considered prejudicial to the accused? 
A. To warrant a finding of prejudicial publicity, there
must be allegations and proof that the judges have
been unduly influenced, not simply that they might
be, by the barrage of publicity.
Q.Is the right to appeal a fundamental right?
A. No. The right to appeal is a statutory right, except in
the case of the minimum appellate jurisdiction of the
Supreme Court granted by the Constitution. Anyone
who seeks to exercise the right to appeal must
comply with the requirements of the rules. 
Q.Can the right to appeal be waived? 
A. Yes, it can be waived expressly or impliedly.
 
Q. What is the effect of the flight of the accused on his
right to appeal?
A. When the accused flees after the case has been
submitted to the court for decision, he will be
deemed to have waived his right to appeal from the
judgment rendered against him.
 THE SPEEDY TRIAL ACT OF 1998
(RA 8493) 
DUTY OF THE COURT AFTER ARRAIGNMENT OF AN ACCUSED
Court SHALL order a pre-trial conference to consider the following:
1. plea bargaining;
2. stipulation of facts;
3. marking for identification of evidence of parties;
4. waiver of objections to admissibility of evidence; and
5. such other matter as will promote a fair and expeditious trial;

TIME LIMIT FOR THE TRIAL OF CRIMINAL CASES: SHALL NOT EXCEED 180 days from
the first day of trial, HOWEVER, this rule is NOT ABSOLUTE, for the law provides
for the following EXCEPTIONS:
1. those governed by the Rules on Summary Procedure; or
2. where the penalty prescribed by law DOES NOT EXCEED 6 months imprisonment or a fine of
P1,000 or both;
3. those authorized by the Chief Justice of the SC; 

PERIOD FOR ARRAIGNMENT OF THE ACCUSED

• Within 30 days from the filing of the information, or from the date the accused
appealed before the justice/judge/court in which the charge is pending, whichever
date last occurs. 
WHEN SHALL TRIAL COMMENCE AFTER ARRAIGNMENT
1. Within 30 days from arraignment, HOWEVER, it may be extended BUT only:
2. for 180 days for the first 12 calendar month period from the effectivity of the law;
3. 120 days for the second 12 month period; and
4. 80 days for the third 12 month period.
 RULE 116
ARRAIGNMENT AND PLEA
Section 1. Arraignment and plea; how made.
Arraignment – the formal mode of implementing the constitutional right of
the accused to be informed of the nature of the accusation against him.
WHERE AND HOW MADE:
1. Before the court where the complaint or information has been filed or
assigned for trial;
2. in open court, by the judge or clerk by furnishing the accused a copy of
the complaint or information with the list of the witnesses, reading it in a
language or dialect known to him and asking him of his plea;
RULES:
1. Trial in absentia is allowed only AFTER arraignment;
2. Judgment is generally void if the accused has not been arraigned;
3. There can be no arraignment in absentia (accused must personally enter
his plea);
4. if the accused went to trial without arraignment, but his counsel had the
opportunity to cross-examine the witness of the prosecution and after
the prosecution he was arraigned the defect was cured;
• If an information is amended MATERIALLY, arraignment on the
amended information is MANDATORY, except if the amendment is
only as to form; 
• Plea – the matter which the accused, on his arraignment, alleges in
answer to the charge against him. 
PERIOD TO PLEA
• When the accused is under preventive detention: his case shall be
raffled and its records transmitted to the judge to whom the case
was raffled within 3 days from the filing of the information or
complaint and the accused arraigned within 10 days from the date
of the raffle. The pre-trial conference of his case shall be held
within 10 days after arraignment. 
• When the accused is NOT under preventive detention: unless a
shorter period is provided by special law or Supreme Court circular,
the arraignment shall be held within 30 days from the date the
court acquires jurisdiction over the person of the accused. The
time of the pendency of a motion to quash, or for bill of particulars,
or other causes justifying suspension of the arraignment, shall be
excluded in computing the period.
WHEN SHOULD A PLEA OF NOT GUILTY BE ENTERED
1. when the accused so pleaded
2. when he refuses to plead
3. where in admitting the act charged, he sets up matters of defense
or with lawful justification
4. when he enters a conditional plea of guilt
5. where, after a plea of guilt, he introduces evidence of self-defense
or other exculpatory circumstances
6. when the plea is indefinite or ambiguous
An unconditional plea of guilt admits of the crime and all the
attendant circumstances alleged in the information including the
allegations of conspiracy and warrants of judgment of conviction
WITHOUT NEED OF FURTHER EVIDENCE EXCEPT: (CAI DN)
1. Where the plea of guilty was COMPELLED BY VIOLENCE OR
INTIMIDATION.
2. When the accused did not fully understand the meaning and
consequences of his plea.
3. Where the information is insufficient to sustain conviction of the
offense charged.
4. Where the information does not charge an offense, any conviction
thereunder being void.
5. Where the court has no jurisdiction.
Q. Where should the accused be arraigned? 
A. The accused must be arraigned before the court where the complaint was
filed or assigned for trial. 
Q. How is arraignment made? 
A. Arraignment is made:
1.in open court
2.by the judge or clerk
3.by furnishing the accused with a copy of the complaint or information.
4.reading it in the language or dialect known to him, and
5.asking him whether he pleads guilty or not guilty.
Q. Can there be an arraignment without the presence of the accused? 
A. No. The ACCUSED MUST BE PRESENT AT THE ARRAIGNMENT AND
MUST PERSONALLY ENTER HIS PLEA.
Q. What is the effect of the refusal of the accused to enter a plea?
A. If the accused refuses to plead or makes a conditional plea, A PLEA OF NOT
GUILTY SHALL BE ENTERED FOR HIM. 
Q. X is charged with homicide. He pleads guilty but presents evidence to
establish self-defense. What should the court do? 
A. The court should withdraw the plea and enter a plea of not guilty.
 
Q. Can the lawyer of the accused enter a plea for him? 
A. No. The accused must personally enter his plea. 
Q. What is the importance of arraignment?
A. Arraignment is the means for bringing the accused into
court and informing him of the nature and cause of the
accusation against him. During arraignment, he is made
fully aware of possible loss of freedom or life. He is
informed why the prosecuting arm of the State is
mobilized against him. It is necessary in order to fix the
identity of the accused, to inform him of the charge, and
to give him an opportunity to plead. 
Q. During the arraignment, is the judge duty-bound to point
out that an information is duplicitous? 
A. No. The judge has no obligation to point out the
duplicitousness or any other defect in an information
during arraignment. The obligation to move to quash a
defective information belongs to the accused, whose
failure to do so constitutes a waiver of the right to object.
Q. X was tried for murder without having been arraigned. At the trial, X’s
counsel presented witnesses and cross-examined the prosecution
witnesses. It was only after the case was submitted for decision that X
was arraigned. X was convicted. Can X invoke the failure of the court
to arraign him before trial as a ground for questioning the conviction? 
A. No. The failure of the court to arraign X before trial was conducted did
not prejudice the rights of X since he was able to present evidence and
cross-examine the witnesses of the prosecution. The error was cured by
the subsequent arraignment. 
Q. Is the accused presumed to have been arraigned in the absence of proof
to the contrary? 
A. Yes. In view of the presumption of regularity in the performance of
official duties, it can be presumed that a person accused of a crime was
arraigned, in the absence of proof to the contrary. However, the
presumption of regularity is not applied when the penalty imposed is
death. When the life of a person is at stake, the court cannot presume
that there was an arraignment; it has to be sure that there was one.
 

 
Q. Is the accused entitled to know in advance the names of all
of the prosecution witnesses? 
A. No. The success of the prosecution might be endangered if this right
were granted to the accused. The witnesses might be subjected to
pressure or coercion. The right time for the accused to know their
identities is when they take the witness stand.
Q. Can the prosecution call witnesses that are not listed in the information? 
A. YES. The prosecution may call at the trial witnesses other than
those named in the complaint or information. 
Q. X was charged with homicide. He entered a plea of guilty. He was later
allowed to testify in order to prove the mitigating circumstance
of incomplete self-defense. At the trial, he presented evidence
to prove that he acted incomplete self-defense. The court acquitted
him. Later, X was again charged with physical injuries. X invoked
double jeopardy. Can X be prosecuted again for physical injuries? 
A. Yes. There was no double jeopardy. In order for double jeopardy to
attach, there must have been a valid plea to the first offense. In this case,
the presentation by X of evidence to prove complete self-defense had
the effect of vacating his plea of guilt. When the plea of guilt was
vacated, the court should have ordered him to plead again, or at least
should have directed that a new plea of not guilty be entered for
him. Because the court did not do this, at the time of the acquittal, there
was actually no standing plea for X. Since there was no valid plea, there
can be no double jeopardy.
SECTION 2. PLEA OF GUILTY TO A LESSER OFFENSE.
• An accused may enter a plea of guilty to a lesser offense
a
PROVIDED that there is consent of the offended party and the
prosecutor to the plea of guilty to a lesser offense which is
necessarily included in the offense charged. 
• After arraignment but BEFORE trial, the accused may still be
allowed to plead guilty to a lesser offense after withdrawing his
plea of not guilty. In this plea of guilty to a lesser offense, no
amendment of the complaint or information is necessary.
• If the accused entered a plea to a lesser offense WITHOUT the
consent of the offended party and the prosecutor AND he was
convicted, his subsequent conviction of the crime charged would
NOT place him in Double Jeopardy. 
SECTION 3. PLEA OF GUILTY TO CAPITAL OFFENSE; RECEPTION OF
EVIDENCE. 
When the accused pleads guilty to a capital offense, the court
shall:
1. conduct a SEARCHING INQUIRY into the voluntariness and full
comprehension of the consequences of his plea;
2. require the PROSECUTION TO PROVE HIS GUILT AND THE PRECISE
DEGREE OF HIS CULPABILITY;
3. ask the accused if he desires to present evidence in his behalf and
allow him to do so if he desires.
Q. Can a person who pleaded guilty still be acquitted?
A. Yes. WHEN AN ACCUSED PLEADS GUILTY, IT DOES NOT NECESSARILY
FOLLOW THAT HE WILL BE CONVICTED. ADDITIONAL EVIDENCE
INDEPENDENT OF THE GUILTY PLEA MAY BE CONSIDERED BY THE JUDGE
TO ENSURE THAT THE PLEA OF GUILT WAS INTELLIGENTLY MADE. The
totality of evidence should determine whether the accused should be
convicted or acquitted.
Q. When can the accused plead guilty to a lesser offense? 
A. At arraignment, the accused may plead guilty to a lesser offense which
is necessarily included in the offense charged, provided that the
offended party and the prosecutor give their consent. After arraignment
BUT BEFORE TRIAL, the accused may still be allowed to plead guilty to a
lesser offense, after he withdraws his plea of not guilty. In such a case,
the complaint or information need not be amended. When the penalty
imposable for the offense is at least 6 years and 1 day or a fine
exceeding P12,000, the prosecutor must first submit his
recommendation to the City or Provincial Prosecutor or to the Chief
State Prosecutor for approval. If the recommendation is approved, the
trial prosecutor may then consent to the plea of guilty to a lesser
offense. 
Q. Does a plea of guilty mean an admission even of the aggravating
circumstances?
A. YES. A plea of guilty results in the admission of all the material facts in the
complaint or information, including the aggravating
circumstances. Because of this, the court should only accept
a clear, definite, and unconditional plea of guilty.
Q. When can the plea of guilty be considered a mitigating circumstance? 
A. It is mitigating IF MADE BEFORE THE PROSECUTION STARTS TO PRESENT
EVIDENCE.
Q. What is the meaning of the duty of the judge to conduct a “searching
inquiry”? 
A. In all cases, the judge must convince himself: (1) that the accused is
entering the plea of guilty voluntarily and intelligently; and (2)that he is
truly guilty and that there exists a rational basis for a finding of
guilt based on his testimony. In addition, the judge must inform the
accused of the exact length of imprisonment and the certainty that he will
serve it at the national penitentiary or a penal colony. The judge must
dispel any false notion that the accused may have that he will get off
lightly because of his plea of guilt.
Q. Is it mandatory for the prosecution to present proof of aggravating
circumstances? 
A. Yes. It is mandatory in order to establish the precise degree of
culpability and the imposable penalty. Otherwise, there is an
improvident plea of guilty. 
Q. Can a court validly convict an accused based on an improvident plea of
guilty?
A. Yes. If there is adequate evidence of the guilt of the accused
independent of the improvident plea of guilty, the court may still
convict the accused. The conviction will be set aside only if the plea of
guilt is the sole basis of the judgment.
Q. What should the court do when the accused pleads guilty to a non-
capital offense? 
A. The court may receive evidence from the parties to determine the
penalty to be imposed. Unlike in a plea of guilty to a capital offense, the
reception of evidence in this case is not mandatory. It is merely
discretionary on the court.
Q. When can the validity of a plea of guilty be attacked? 
A. Generally, a plea of guilty cannot be attacked if it is made voluntarily
and intelligently. It can only be attacked if it was induced by threats,
misrepresentation, or bribes. When the consensual character of the plea
is called into question or when it is shown that the defendant was not
fully apprised of its consequences, the plea can be challenged.
To constitute searching inquiry, the questioning must focus on:
1. the voluntariness of the plea; and
2. Whether the accused understood fully the consequence of his plea. 
Section 5. Withdrawal of improvident plea of guilty.
 
Plea of Guilty – an unconditional admission of guilt, freely, voluntarily and
made with full knowledge of the consequences and meaning of his act and
with a clear understanding of the precise nature of the crime charged in
the complaint or information;  
INSTANCES OF IMPROVIDENT PLEA
1. plea of guilty was compelled by violence or intimidation
2. the accused did not fully understand the meaning and consequences of his
plea
3. insufficient information to sustain conviction of the offense charged
4. information does not charge an offense, any conviction thereunder being
void
5. court has no jurisdiction 
 At any time before the 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. 
 The withdrawal of a plea of guilty is not a matter of right to the accused but
of sound discretion to the trial court. (People vs. Lambrino, 103 Phil. 504)
Q. Can an improvident plea of guilty be withdrawn as a matter of right? 
A. No. The withdrawal of the plea of guilty is not a matter of strict right to the
accused but is within the discretion of the court. The reason for this is that trial
has already commenced; withdrawal of the plea will change the theory of the
case and will put all of the past proceedings to waste. THEREFORE, IT MAY ONLY
BE WITHDRAWN WITH PERMISSION OF THE COURT. Moreover, there is a
presumption that the plea was made voluntarily. The court must decide whether
the consent of the accused was, in fact, vitiated when he entered his plea.
Q. X is charged with homicide. He pleads guilty, but tells the judge “hindi ko
sinasadya.” Is his plea valid? 
A. No. In order to be valid, the PLEA OF GUILTY MUST BE UNCONDITIONAL. In this
case, when X said “hindi ko sinasadya,” he made aqualified plea of guilty. This is
not a valid plea of guilty. A plea of not guilty should be entered instead.
Q, When a defendant appears without an attorney during arraignment, what
should the court do?
A. The court has a four-fold duty:
1. It must inform the defendant that he has a right to an attorney before
being arraigned;
2. After informing him, the court must ask the defendant if he desires to have the
aid of an attorney;
3. If he desires and is unable to employ an attorney, the court must assign
an attorney de oficio to defend him; 
4. If the accused desires to procure an attorney of his own, the court must
grant him a reasonable time therefor. 
SECTION 6. DUTY OF THE COURT TO INFORM ACCUSED OF HIS RIGHT
TO COUNSEL.

DUTIES OF THE COURT WHEN THE ACCUSED APPEARS BEFORE IT

WITHOUT COUNSEL
1. It must inform the defendant that it is his right to have an attorney
before being arraigned;
2. After giving him such information, the court must ask him if he
desires the aid of an attorney;
3. If he desires and is unable to employ one, the court must assign an
attorney de oficio to defend him; and
4. If the accused desires to procure an attorney of his own, the court
must grant him reasonable time therefor. 
SECTION 7. APPOINTMENT OF COUNSEL DE OFICIO. 
PURPOSE:
• To secure to the accused, who is unable to engage the services of
an attorney of his own choice, effective representation by making
it imperative on the part of the court to consider in the
appointment of counsel de oficio, the gravity of the offense and
the difficulty of the questions likely to arise in the case vis-à-vis
the ability and experience of the prospective appointee. 
Q. What is the reason for this four-fold duty? 
A. The right to be heard would be of little avail if it does not include
the right to be heard by counsel. 
Q. What is the effect of the failure of the court to comply with these
duties?
A. It is a violation of due process. 
Q. What is a counsel de oficio?
A. Counsel de oficio is counsel appointed by the court to represent
and defend the accused in case he cannot afford to employ one
himself.
 Q.Who can be appointed as counsel de oficio? 
A. The court, considering the gravity of the offense and the difficulty
of the questions that may arise shall appoint as counsel
de officio: members of the bar in good standing
1. such  
2. who by reason of their experience and ability, can competently
defend the accused. But, in localities where such members of the
bar are not available, the court may appoint any person who is:
A. a resident of the province
B. and of good repute for probity and ability to defend the
accused.
Q. What is the difference between the duty of the court to appoint
counsel de oficio during arraignment and during trial?
A. DURING ARRAIGNMENT, the court has the affirmative duty to
inform the accused of his right to counsel and to provide him with
one incase he cannot afford it. The court must act on its own
volition, unless the right is waived by the accused. On the other
hand, DURING TRIAL, it is the accused who must assert his right to
counsel. The court will not act unless the accused invokes his
rights.
Q. Can a non-lawyer represent the accused during arraignment?
A. No. During arraignment, it is the obligation of the court to ensure
that the accused is represented by a lawyer because it is the first
time when the accused is informed of the nature and cause of the
accusation against him. This is a task which only a lawyer can do.
But during trial, there is no such duty. The accused must ask for a
lawyer, or else, the right is deemed waived. He can even defend
himself personally.
Q. May an accused be validly represented by a non-lawyer at the
trial?
A. If the accused knowingly engaged the services of the non-lawyer,
he is bound by the non-lawyer’s actions. But if he did not know
that he was being represented by a non-lawyer, the judgment is
void because of the misrepresentation.
SECTION 8. TIME FOR COUNSEL DE OFICIO TO PREPARE FOR
ARRAIGNMENT. 
• As to what is reasonable time, it depends upon the circumstances
surrounding the case like the gravity of the offense, complexity of
the allegations in the complaint or information, whether a motion
to quash or a bill of particulars has to be filed, and other similar
considerations. 
Section 9. Bill of particulars. 
• Accused may, AT or BEFORE ARRAIGNMENT, move for a bill of
particulars to enable him properly to plead and to prepare for trial. 
• Just in civil cases, the bill of particulars here should be considered
an integral part of the complaint or information which it
supplements.
• The remedy against an indictment that fails to allege the time of
commission of the offense with sufficient definiteness is a motion
for a bill of particulars, not a motion to quash.
• The failure to ask for Bill of Particulars amounts to a waiver of such
right.
Q. What is a bill of particulars?
A. It is a more specific allegation. A defendant in a criminal case who
believes or feels that he is not sufficiently informed of the crime with
which he is charged and not in a position to defend himself properly and
adequately could move for a bill or particulars or specifications.
Q. What is the purpose of a bill of particulars?
A. It is to allow the accused to prepare for his defense. 
Q. When can the accused move for a bill of particulars? 
A. The accused must move for a bill of particulars before
arraignment. Otherwise, the right is deemed waived. 
Q. What should be contained in the motion for a bill or particulars?
A. It should specify the alleged defects of the complaint or information and
the details desired. 
Q. What is the right to modes of discovery? 
A. It is the right of the accused to move for the production or inspection or
material evidence in the possession of the prosecution. It authorizes the
defense to inspect, copy, or photograph any evidence of the prosecution
in its possession after obtaining permission of the court. 
Q. What is the purpose of this right? 
A. The purpose is to prevent surprise to the accused and the suppression or
alteration of evidence. 
Q. Is this right available during preliminary investigation? 
A. Yes, when indispensable to protect his constitutional right to life,
liberty, and property. (Webb v. de Leon).
Q. What are the grounds for suspending arraignment? 
1. If the accused appears to be suffering from an unsound mental
condition, which renders him unable to fully understand the
charge against him and to plead intelligently thereto. The court
should order his mental examination and his confinement,
if necessary.
2. If there exists a prejudicial question.
3. If a petition for review of the resolution of the prosecutor is
pending either at the DOJ or the Office of the President. However,
the period of suspension shall NOT EXCEED 60 DAYS counted from
the filing of the petition for review. 
Q. What is the test to determine whether the insanity of the accused
should warrant the suspension of the proceedings?
A. The test is whether the accused will have a fair trial with the
assistance of counsel, in spite of his insanity. Not every aberration
of the mind or exhibition of mental deficiency is sufficient to
justify suspension.
SECTION 10. PRODUCTION OR INSPECTION OF MATERIAL EVIDENCE
IN POSSESSION OF PROSECUTION.

Section 11. Suspension of arraignment  

GROUNDS FOR SUSPENSION
1. the accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand
the charge against him and to plead intelligently thereto;
2. there exists a valid prejudicial question; and
3. a petition for review of the resolution of the prosecutor is pending
at the Department of Justice or the Office of the President;
provided that the period of suspension shall not exceed 60 days
counted from the filing of the petition. 
 RULE 117
MOTION TO QUASH
Section 1. Time to move to quash. 
Motion to Quash - this presupposes that the accused hypothetically
admits the facts alleged, hence the court in resolving the motion
cannot consider facts contrary to those alleged in the information
or which do not appear on the face of the information, except
those admitted by the prosecution.
GENERAL RULE: The accused may move to quash the complaint or
information at any time BEFORE ENTERING HIS PLEA.
EXCEPTION - Instances where a motion to quash may be filed AFTER
plea:
1. failure to charge an offense
2. lack of jurisdiction over the offense charged
3. extinction of the offense or penalty
4. the defendant has been in former jeopardy
 Motion to Quash Demurrer to Evidence

1. filed BEFORE the defendant 1. filed AFTER the prosecution

enters his plea has rested its case

2. Does not go into the merits 2. based upon the inadequacy

of the case but is anchored on of the evidence adduced by
matters not directly related to the prosecution in support of
the question of guilt or the accusation
innocence of the accused

3. Governed by Rule 117 of the 3. governed by Rule 119 of the

Rules of Criminal Procedure Rules of Criminal Procedure
Q.When can the accused file a motion to quash?
A. At any time before entering his plea, the accused may
move to quash the complaint or information.
Q.What is the form required for a motion to quash?
A. 1.It must be in writing. 
• 2.It must be signed by the accused or his counsel. 
• 3.It must specify its factual and legal grounds. 
Q.Can the court dismiss the case based on grounds that
are not alleged in the motion to quash? 
A. As a general rule, NO. The court cannot consider any
ground other than those stated in the motion to
quash. The EXCEPTION is lack of jurisdiction over the
offense charged. If this is the ground for dismissing the
case, it need not be alleged in the motion to quash
since it goes into the very competence of the court to
pass upon the case.
Q. X filed a motion to quash an information on the ground that he
was in the US when the crime charged was committed.  Should
the motion be granted?
A. The motion should be denied. The accused is already making a
defense. MATTERS OF DEFENSE ARE GENERALLY NOT A GROUND FOR A
MOTION TO QUASH. They should be presented at the trial.
Q. What is meant by the statement that “a motion to quash hypothetically
admits allegations of fact in the information”? 
A. It means that the accused argues that assuming that the facts charged
are true, the information should still be dismissed based on the ground
invoked by the defendant. Therefore, since the defendant assumes that
the facts in the information are true, only these facts should be taken
into account when the court resolves the motion to quash. Other facts,
such as matters of defense, which are not in the information should not
be considered. Exceptions to this rule are when the grounds invoked to
quash the information are extinction of criminal liability, prescription,
and former jeopardy. In these cases, additional facts are allowed.
2. Form and contents.
FORM AND CONTENTS OF A MOTION TO QUASH
1. in writing
2. signed by the accused or his counsel
3. shall specify distinctly the factual and legal grounds therefor.
• The court shall consider no grounds other than those stated in the
motion, EXCEPT lack of jurisdiction over the offense charged and
when the information does not charge an offense.
• A motion to suspend the issuance of a warrant of arrest should be
considered as a motion to quash if the allegations therein are to the
effect that the facts charged in the information do not constitute an
offense.
RESOLUTION OF A MOTION TO QUASH
• A motion to quash must be resolved BEFORE trial and cannot defer
the hearing and determination of said motion until trial on the
merits as it would impair the right of the accused to speedy trial. 
• It may also be resolved at the preliminary investigation since the
investigating officer or judge has the power to either dismiss the
case or bind the accused over for trial by the proper court,
depending on its determination of lack or presence of probable
cause.
Section 3. Grounds.
1. That the facts charged do not constitute an offense;
2. That the court trying the case has no jurisdiction over the offense
charged;
3. That the court trying the case has no jurisdiction over the person of
the accused;
4. That the officer who filed the information had no authority to do so;
5. That it does not conform substantially to the prescribed form;
6. That more that one offense is charged except when a single
punishment for various offenses is prescribed by law;
7. That the criminal action or liability has been extinguished;
8. That it contains averments which, if true would constitute a legal
excuse or justification; and
9. That the 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.
Section 4. Amendment of complaint or information

• If an alleged defect in the complaint or information, which is the

basis of a motion to quash, CAN BE CURED BY AMENDMENT, the
court shall order the amendment instead of quashing the complaint
or information. If, after the amendment, the defect is still not cured,
the motion to quash should be granted.
Section 5. Effect of sustaining the motion to quash. 
EFFECTS IF COURT SUSTAINS THE MOTION TO QUASH
1. If the ground of the motion is either:
1. that the facts charged do not constitute an offense; or
2. that the officer who filed the information had no authority to do so, or
3. that it does not conform substantially to the prescribed form; or
4. that more than one offense is charged,
2. the COURT MAY ORDER THAT ANOTHER INFORMATION BE FILED OR AN AMENDMENT
THEREOF AS THE CASE MAY BE WITHIN A DEFINITE PERIOD. If such order is NOT MADE, or if
having been made, another information is NOT FILED within a time to be specified in the
order, or within such time as the court may allow, the accused, if in custody, shall be
discharged therefrom, unless he is also in custody on some other charge.
IF THE MOTION TO QUASH IS SUSTAINED UPON ANY OF THE FOLLOWING GROUNDS:
1. that a criminal action or liability has been extinguished;
2. that it contains averments which, if true, would constitute a legal excuse or
justification; or
3. that the accused has been previously convicted or acquitted of the offense charged,
THE COURT MUST STATE, IN ITS ORDER GRANTING THE MOTION, THE RELEASE OF THE
ACCUSED IF HE IS IN CUSTODY OR THE CANCELLATION OF HIS BOND IF HE IS ON
BAIL.
3. If the ground upon which the motion to quash was SUSTAINED IS THAT THE COURT HAS NO
JURISDICTION OVER THE OFFENSE, the better practice is for the court to remand or forward
the case to the proper court, not to quash the complaint or information.
•  The prosecution may elevate to the Higher Courts an order granting a motion to quash.
PROCEDURE IF MOTION TO QUASH IS DENIED
1. accused should plead;
2. accused should go to trial without prejudice to the special defenses
he invoked in the motion;
3. appeal from the judgment of conviction, if any, and interpose the
DENIAL OF THE MOTION AS AN ERROR. 
• An order denying a motion to quash is INTERLOCUTORY and NOT
APPEALABLE. Appeal in due time, as the proper remedy, implies a
previous conviction as a result of a trial on the merits of the case
and does not apply to an interlocutory order denying a motion to
quash. 
• The denial by the trial court of a motion to quash CANNOT be the
subject of a petition for certiorari, prohibition or mandamus in
another court of coordinate rank. 
Section 6. Order sustaining the motion to quash not a bar to another
prosecution.
• A motion SUSTAINING the motion to quash is NOT a bar to another
prosecution for the same offense UNLESS:
1. the motion was based on the ground that the criminal action or
liability has been extinguished, AND
2. that the accused has been previously convicted or in jeopardy of
being convicted or acquitted of the offense charged.
Section 7. Former conviction or acquittal; double jeopardy.
• Double Jeopardy means that when a person is charged with an offense
and the case is terminated either by acquittal or conviction or in any other
manner without the consent of the accused, the latter cannot again be
charged with the same or identical offense.
REQUISITES FOR DOUBLE JEOPARDY UNDER SECTION 7
It is necessary that in the first case that-
1. the complaint or information or other formal charge was sufficient in form
and substance to sustain a conviction;
2. the court had jurisdiction;
3. the accused had been arraigned and had pleaded; and
4. he was convicted or acquitted or the case was dismissed without his
express consent;
When all these circumstances are present, they constitute a BAR to a second
prosecution for –
1. the same offense, or
2. an attempt to commit the said offense, or 
3. a frustration of the said offense, or
4. any offense which necessarily includes or is necessarily included in the first
offense charged.
 The discharge of a defendant on a preliminary investigation is NOT such
an adjudication in his favor as will bar subsequent prosecution for the
offense. This is because, a preliminary investigation is not a trial and does
not have for its object that of determining definitely the guilt of the
accused. Further, the accused has not yet been arraigned.  
DISMISSAL vs. ACQUITTAL
1. Acquittal is always based on the MERITS, that is, the defendant is
acquitted because the evidence does not show defendant’s guilt
beyond reasonable doubt; but Dismissal does not decide the case
on the merits or that the defendant is not guilty. 
2. If an act is punished by a law and an ordinance, even if they are
considered as different offenses, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act.
3. If a single act is punished by two different provisions of law or
statutes, but each provision requires proof of an additional fact
which the other does not so require, neither conviction nor acquittal
in one will bar a prosecution for the other. (Perez vs. Court of
Appeals, 163 SCRA 236) 
TESTS FOR DETERMINING WHETHER THE TWO OFFENSES ARE
IDENTICAL:  
• SAME OFFENSE TEST - There is IDENTITY between two offenses not
only when the second offense is exactly the same as the first, but
ALSO when the second offense is an attempt to or frustration of,
OR is necessarily included in the offense charged in the first
information.
EXCEPTIONS TO THE IDENTITY RULE:
1. The GRAVER OFFENSE DEVELOPED DUE TO SUPERVENING FACTS
arising from the same act or omission constituting the former
charge.
2. The facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint
or information.
3. The plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party; except when
the offended party failed to appear during the arraignment. 

In any of these instances, such period of the sentence as may have

been served by the accused under the former conviction shall be
credited against and deducted from the sentence he has to serve
should he be convicted under the subsequent prosecution.

• SAME EVIDENCE TEST - whether the facts as alleged in the second

information, if proved, would have been sufficient to sustain the
former information, or from which the accused may have been
acquitted or convicted.
Section 8. Provisional dismissal.
• GENERAL RULE: Where the case was dismissed “provisionally” with the consent of
the accused, he CANNOT invoke double jeopardy in another prosecution therefor
OR where the case was reinstated on a motion for reconsideration by the
prosecution.
EXCEPTIONS: Where the dismissal was actually an acquittal based on:
1. lack or insufficiency of the evidence; or
2. denial of the right to speedy trial, hence, even if the accused gave his express
consent to such dismissal or moved for such dismissal, such consent would be
immaterial as such dismissal is actually an acquittal. 
REQUISITES
1. consent of the prosecutor
2. consent of the accused
3. notice to the offended party 
• If a case is provisionally dismissed with the consent of the prosecutor and the
offended party, the failure to reinstate it within the given period will make the
dismissal permanent.
PERIOD FOR REINSTATEMENT:
1. offenses punishable by imprisonment not exceeding 6 years = ONE YEAR
2. offenses punishable by imprisonment of more than 6 years = TWO YEARS
3. OTHERWISE THE DISMISSAL SHALL BE REMOVED FROM BEING PROVISIONAL
AND BECOMES PERMANENT.
SECTION 9. FAILURE TO MOVE TO QUASH OR
TO ALLEGE ANY GROUND THEREFOR.
• All grounds for a motion to quash are WAIVED
if NOT seasonably raised, EXCEPT:
1.when the information does not charge an
offense;
2.lack of jurisdiction of the court;
3.extinction of the offense or penalty; and
4.double jeopardy.
 RULE 118
PRE-TRIAL
Section 1. Pre-trial; mandatory in criminal cases.  
Pre-trial is MANDATORY in all criminal cases.  
• The court shall after arraignment and within 30 days from the time
the court acquires jurisdiction over the person of the accused,
unless a shorter period is provided for by special laws or circular of
the Supreme Court, order a pre-trial. 
MATTERS CONSIDERED IN PRE-TRIAL CONFERENCE
1. plea bargaining;
2. stipulation of facts;
3. marking for identification of evidence of the parties;
4. waiver of objections to admissibility of evidence;
5. modification of the order of trial if the accused admits the charge
but interposes a lawful defense;
6. such matters as will promote a fair and expeditious trial of the
criminal and civil aspects of the case. (Sections. 2 & 3, Circ. 38-98).
Plea bargaining – the process whereby the accused, the offended
party and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval. It usually involves
the defendant’s pleading guilty to a lesser offense or to only one or
some of the counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge.
Section 2. Pre-trial agreement.
REQUISITES BEFORE THE PRE-TRIAL AGREEMENT CAN BE USED AS
EVIDENCE:
1. they are reduced to writing
2. the pre-trial agreement is signed by the accused and his counsel.
3. The requirement in section 2 is intended to safeguard the right of
the accused against improvident or unauthorized agreements or
admissions which his counsel may have entered into, or which any
person may ascribe to the accused without his knowledge, as he
may have waived his presence at the pre-trial conference. 
4. The omission of the signature of the accused and his counsel, as
mandatorily required by the rules, renders the stipulation of facts
inadmissible in evidence.
Section 3. Non-appearance at pre-trial conference.
• The court may impose proper sanctions and penalties for non-
appearance at pre-trial conference by the counsel for the accused
or the prosecutor without acceptable excuse. 
• The sanctions or penalty may be in the form of reprimand, fine or
imprisonment. Inasmuch as this is similar to indirect contempt of
court, the penalty for indirect contempt may be imposed.
PURPOSE
1. To enforce the mandatory requirement of pre-trial in criminal cases. 
2. The accused is not the one compelled to appear, but only the
counsel for the accused or the prosecutor. The principal reason why
accused is not included in the mandatory appearance is the fear that
to include him is to violate his constitutional right to remain silent.
Section 4. Pre-trial order.  
• After the pre-trial, the court issues an order reciting actions taken,
facts stipulated and evidence marked, and thereafter the trial on
the merits will proceed on matters not disposed of during the pre-
trial.
• To prevent manifest injustice, however, the pre-trial order may be
modified by the court, upon its own initiative or at the instance of
any party.
 RULE 119
TRIAL
Section 1. Time to prepare for trial.
• Trial - the examination before a competent tribunal according to
the laws of the land, of the facts put in issue in a case for the
purpose of determining such issue. 
• The trial shall commence WITHIN 30 DAYS from receipt of the pre-
trial order.
Section 2. Continuous trial until terminated; postponements.  
CONTINUOUS TRIAL SYSTEM
• Trial once commenced shall continue from day to day as far as
practicable until terminated; but it may be postponed for a
reasonable period of time for good cause. 
LIMITATION OF THE TRIAL PERIOD
• It shall in NO CASE EXCEED 180 DAYS FROM THE FIRST DAY OF THE
TRIAL, EXCEPT AS OTHERWISE PROVIDED BY THE SUPREME
COURT.
Requisites before a trial can be put-off on account of the absence of a
witness:
1. that the witness is material and appears to the court to be so
2. that the party who applies has been guilty of no neglect
3. that the witnesses can be had at the time to which the trial is
deferred and incidentally that no similar evidence could be obtained
4. that an affidavit showing the existence of the above circumstances
must be filed.
Remedies of accused where a prosecuting officer without good cause
secures postponements of the trial of a defendant against his
protest beyond a reasonable period of time:
1. mandamus to compel a dismissal of the information
2. if he is restrained of his liberty, by habeas corpus to obtain his
freedom.
3. The SC adopted the continuous trial system as a mode of judicial
fact-finding and adjudication conducted with speed and dispatch so
that trials are held on the scheduled dates without postponement,
the factual issues for trial well-defined at pre-trial and the whole
proceedings terminated and ready for judgment within 90 days from
the date of initial hearing, unless for meritorious reasons an
extension is permitted.
The system requires that the Presiding Judge:
1. adhere faithfully to the session hours prescribed by laws;
2. maintain full control of the proceedings; and
3. effectively allocate and use time and court resources to avoid court delays.
• The non-appearance of the prosecution at the trial, despite due notice,
justified a provisional dismissal or an absolute dismissal depending upon
the circumstances.
 Section 4. Factors for granting continuance. 
• PURPOSE: To control the discretion of the judge in the grant of
continuance on his instance or on motion of any party litigant. 
Section 5. Time limit following an order for new trial.
• The trial shall commence within 30 days from the date the order for a
new trial becomes final.
Section. 7. Public Attorney’s duties where accused is imprisoned. 
• These public attorneys enter their appearance in behalf of the accused
upon his request or that of his relative or upon being appointed as
counsel de oficio by the court. 
Section 8. Sanctions. 
Kinds:
1. criminal
2. administrative
3. contempt of court
Section 11. Order of Trial
ORDER OF TRIAL:
1. The PROSECUTION SHALL PRESENT EVIDENCE TO PROVE THE CHARGE AND, IN
THE PROPER CASE, THE CIVIL LIABILITY
2. The ACCUSED MAY PRESENT EVIDENCE TO PROVE HIS DEFENSE AND DAMAGES,
IF ANY, ARISING FROM THE ISSUANCE OF A PROVISIONAL REMEDY IN THE
CASE.
3. The PROSECUTION AND THE DEFENSE MAY, IN THAT ORDER, PRESENT
REBUTTAL AND SUR-REBUTTAL EVIDENCE unless the court, in furtherance of
justice, permits them to present additional evidence bearing upon the main issue
4. Upon admission of the evidence of the parties, the CASE SHALL BE DEEMED
SUBMITTED FOR DECISION UNLESS THE COURT DIRECTS THEM TO ARGUE
ORALLY OR TO SUBMIT WRITTEN MEMORANDA.
5. WHEN THE ACCUSED ADMITS THE ACT OR OMISSION CHARGED IN THE
COMPLAINT OR INFORMATION BUT INTERPOSES A LAWFUL DEFENSE, THE
ORDER OF TRIAL MAY BE MODIFIED. 
GENERAL RULE:
• The order in the presentation of evidence must be followed. The accused may not be
required to present his evidence first before the prosecution adduces its own proof.
EXCEPTION:
• Where a reverse procedure was adopted without the objection of the defendant and
such procedure did not prejudice his substantial rights, the defect is not a reversible
error.
• A departure from the order of the trial is not reversible error as
where it was agreed upon or not seasonably objected to, but not
where the change in the order of the trial was timely objected by
the defense.
•  Where the order of the trial set forth under this section was not
followed by the court to the extent of denying the prosecution an
opportunity to present its evidence, the judgment is a nullity.
(People vs. Balisacan) 

SECTION 12. APPLICATION FOR EXAMINATION OF WITNESS FOR

ACCUSED BEFORE TRIAL.
• Accused may have his witness examined conditionally in his behalf
BEFORE trial upon motion with notice to all other parties.
The motion must state:
1. name and residence of witness
2. substance of testimony
3. witness is so SICK to afford reasonable ground to believe that he
will not be able to attend the trial OR RESIDES MORE THAT 100 KM
AND HAS NO MEANS TO ATTEND the same, or other similar
circumstances exist that would make him unavailable or prevent
him from attending trial.
SECTION 13. EXAMINATION OF DEFENSE WITNESS; HOW MADE.
• If the court is satisfied that the examination of witness is necessary as
provided in SECTION 4, order shall be made and a copy served on the
fiscal. 
• The examination shall be taken before any judge or if not practicable any
member of the Bar in good standing designated by the trial court, or by a
lower court designated by a court of superior jurisdiction which issue the
order 
SECTION 14. BAIL TO SECURE APPEARANCE OF MATERIAL WITNESS. 
• If the court is satisfied, upon proof or oath, that a material witness will not
testify when so required, it MAY ON MOTION OF EITHER PARTY ORDER
THE WITNESS TO POST BAIL IN SUCH SUM AS MAY BE DEEMED PROPER.
Should the witness refuse to post such bail as required, the court may
commit him to prison until he complies or is legally discharged after his
testimony has been taken.

SECTION 15. EXAMINATION OF WITNESS FOR THE PROSECUTION. 

• The conditional examination of prosecution witnesses shall be conducted
before the judge or the court where the case is pending and in the
presence of the accused, unless he waived his right after reasonable
notice. The accused will have the right to cross-examine such prosecution
witness, hence such statements of the prosecution witnesses may
thereafter be admissible in behalf of or against the accused (Regalado, p.
460).
Section 16. Trial of several accused
 GENERAL RULE:
• When two or more persons are jointly charged with an offense, THEY SHALL BE
TRIED JOINTLY. This rule is so designed as to preclude a wasteful expenditure of
judicial resources and to promote an orderly and expeditious disposition of
criminal prosecutions.
EXCEPTION:
• The court, upon motion of the fiscal or of any of the defendants, may order a
separate trial for one or more accused. The granting of a separate trial when two
or more defendants are jointly charged with an offense is purely discretionary
with the trial court. 
• The MOTION FOR SEPARATE TRIAL MUST BE FILED BEFORE THE
COMMENCEMENT OF THE TRIAL and cannot be raised for the first time on
appeal. If a separate trial is granted, the testimony of one accused imputing the
crime to his co-accused is not admissible against the latter. In joint trial, it would
be admissible if the latter had the opportunity for cross-examination.
Section 17. Discharge of accused to be state witness. 
• Motion to discharge should be made by the prosecution BEFORE resting its case.
REQUISITES FOR DISCHARGE
1. absolute NECESSITY FOR THE TESTIMONY
2. NO OTHER DIRECT EVIDENCE AVAILABLE FOR THE PROSECUTION
3. TESTIMONY CAN BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL POInts
4. accused NOT THE MOST GUILTY
5. accused has NEVER BEEN CONVICTED OF AN OFFENSE INVOLVING MORAL TURPITUDE 
• ABSENCE OF ANY OF THE REQUISITES FOR THE DISCHARGE OF A PARTICEPS
CRIMINIS IS A GROUND FOR OBJECTION TO THE MOTION FOR HIS DISCHARGE,
BUT SUCH OBJECTION MUST BE RAISED BEFORE THE DISCHARGE IS ORDERED.
EFFECTS OF DISCHARGE
1. Evidence adduced in support of the discharge shall automatically form part of the trial;
2. If the court denies the motion to discharge the accused as state witness, HIS SWORN
STATEMENT SHALL BE INADMISSIBLE IN EVIDENCE;
3. Discharge of accused operates as an ACQUITTAL AND BAR TO FURTHER PROSECUTION
for the same offense.
EXCEPTIONS:
1. If the accused FAILS OR REFUSES TO TESTIFY against his co-accused in accordance with
his sworn statement constituting the basis of the discharge
2. FAILURE TO TESTIFY REFERS EXCLUSIVELY TO DEFENDANT’S WILL OR FAULT
3. Where an ACCUSED WHO TURNS STATE’S EVIDENCE ON A PROMISE OF IMMUNITY BUT
LATER RETRACTS AND FAILS TO KEEP HIS PART OF THE AGREEMENT, HIS CONFESSION
OF HIS PARTICIPATION IN THE COMMISSION OF THE CRIME IS ADMISSIBLE AS
EVIDENCE AGAINST HIM.
Section 19. When mistake has been made in charging the proper offense.
• When the offense proved is neither included in, nor does it include, the offense
charged and is different therefrom, the court should dismiss the action and order the
filing of a new information charging the proper offense.
• This rule is predicated on the fact that an accused person has the right to be informed
of the nature and cause of the accusation against him, and to convict him of an offense
different from that charged in the complaint or information would be an unauthorized
denial of that right. (U.S. vs. Campo, 23 Phil. 369)
SECTION 20. APPOINTMENT OF ACTING PROSECUTOR.
• See Section 5, Rule 110.
SECTION 21. EXCLUSION OF THE PUBLIC. 
GENERAL RULE:
• The accused has the right to a public trial and under ordinary
circumstances, the court may not close the door of the courtroom to the
general public.
EXCEPTION:
• Where the evidence to be produced during the trial is of such character as
to be offensive to decency or public morals, the court may motu propio
excludes the public from the courtroom.

SECTION 22. CONSOLIDATION OF TRIALS OF RELATED OFFENSES.

• This contemplates a situation where separate informations are filed:
1. for offenses founded on the same facts;
2. for offenses which form part of a series of offenses of similar character 

SECTION 23. DEMURRER TO EVIDENCE.  

After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence:
1. on its own initiative after giving the prosecution the opportunity to be heard;
or
2. upon demurrer to evidence filed by the accused with or without leave of
court.
3. The arrest rule allows the accused in a criminal case to present evidence even
after a motion to dismiss PROVIDED the demurrer was made with the express
consent of the court.
• The filing of the motion to dismiss WITHOUT leave of court
results in the submission of the case for decision on the
basis of the evidence on record and does not lie from
such order denying the motion to dismiss.
 
• IF SAID MOTION TO DISMISS IS SUSTAINED, such dismissal
being on the merits is EQUIVALENT TO AN ACQUITTAL,
hence the prosecution cannot appeal as it would place the
accused in double jeopardy.

• AN ORDER DENYING A DEMURRER TO EVIDENCE BEING

INTERLOCUTORY IS NOT APPEALABLE.

SECTION 24. REOPENING.

• At any time BEFORE finality of the judgment of conviction,
the judge may, motu propio or upon motion, with hearing
in either case, reopen the proceedings to avoid miscarriage
of justice. The proceedings shall be terminated within 30
days from the order granting it.
 RULE 120
JUDGMENT
SECTION 1. JUDGMENT; DEFINITION AND FORM. 
• Judgment - the adjudication by the court that the accused is guilty
or not guilty of the offense charged and the imposition of the
proper penalty and civil liability provided for by the law. 
• It is not necessary that the judge who tried the case be the same
judicial officer to decide it. It is sufficient if he be apprised of the
evidence already presented by a reading of the transcript of the
testimonies already introduced, in the same manner as appellate
courts review evidence on appeal.
Section 2. Contents of the judgment. 
Judgment must be :
1. in writing;
2. in the official language,
3. PERSONALLY AND DIRECTLY PREPARED AND SIGNED BY THE JUDGE,
4. with a CONCISE STATEMENT OF THE FACT AND THE LAW ON WHICH
IT IS BASED.
REMEDY IF JUDGMENT IS NOT PUT IN WRITING: file a petition for
MANDAMUS to compel the judge to put in writing the decision of
the court.
If the judgment is one of CONVICTION, judgment must state:
1. Legal ratification of the offense constituted by the admissions of the
accused and the aggravating and mitigating circumstances
attending its commission
2. PARTICIPATION OF THE ACCUSED, whether as principal, accomplice
or accessory
3. PENALTY IMPOSED upon the accused
4. Civil liability or damages caused by the wrongful act, unless
separate civil action has been reserved or waived
• If the judgment is one of ACQUITTAL, it must make a finding on the
civil liability of the accused, UNLESS there is clear showing that the
act from which the civil liability might arise did not exist.

• Reasonable doubt - state of the case which, after full consideration

of all evidence, leaves the mind of the judge in such a condition that
he cannot say that he feels an abiding conviction, to a moral
certainty, of the truth of the charge.
Acquittal – a finding of not guilty based on the merits,
that is, the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable
doubt, or a dismissal of the case after the prosecution
has rested its case upon motion of the accused on the
ground that the evidence fails to show beyond
reasonable doubt that the accused is guilty.
• It is well-settled that acquittal, in a criminal case is
immediately final and executory upon its
promulgation, and that accordingly, the State may not
seek its review without placing the accused in double
jeopardy. (Barbers vs. Laguio, Jr., 351 SCRA 606)
• An acquittal of an accused based on reasonable doubt
DOES NOT bar the offended party from filing a
separate civil action based on other sources of
obligation.
SECTION 3. JUDGMENT FOR TWO OR MORE OFFENSES.
• WHEN TWO OR MORE OFFENSES CHARGED IN THE COMPLAINT OR
INFORMATION, AND THE ACCUSED FAILS TO OBJECT TO IT BEFORE
TRIAL, THE COURT MAY CONVICT THE ACCUSED OF AS MANY
OFFENSES AS CHARGED AND PROVED.
• An accused can be convicted of an offense only when it is both
charged and proved. If it is not charged although proved, OR if it is
not proved although charged, the accused CANNOT be convicted
thereof.
• Variance between the allegation and the proof cannot justify a
conviction for either the offense charged or the offense proved
unless either is included in the other (Section 4). 
Section 5. When an offense includes or is included in another. 
GENERAL RULE: If what is proved by the prosecution evidence is an
offense which is included in the offense charged in the information,
the ACCUSED MAY VALIDLY BE CONVICTED OF THE OFFENSE
PROVED.
EXECEPTION: Where facts supervened after the filing of information
which change the nature of the offense.
• An offense charged necessarily includes another when some
essential elements or ingredients of the offense charged constitute
the offense proved, or when the essential elements or ingredients
of the offense charged constitute or form part of those constituting
Section 6. Promulgation of judgment.  
• Promulgation of judgment - official proclamation or
announcement of judgment. IT CONSISTS OF READING THE
JUDGMENT OR SENTENCE IN THE PRESENCE OF THE
ACCUSED AND ANY JUDGE OF THE COURT RENDERING THE
JUDGMENT. 
RULES ON THE VALIDITY OF PROMULGATION OF JUDGMENT:
1. The judgment must have been rendered and promulgated
during the incumbency of the judge who signed it.
2. The presence of counsel during the promulgation of judgment
is not necessary.
• Effect of Promulgation of Judgment in Absentia – he shall
lose all remedies available in these Rules against the
judgment and the court shall order his arrest.
Section 7. Modification of judgment. 
• Upon motion of the accused, a judgment of conviction may
be modified or set aside by the court BEFORE it has
become final or BEFORE an appeal has been perfected.
A judgment becomes final:
1. when the PERIOD FOR PERFECTING APPEAL AN APPEAL HAS
LAPSED;
2. when the sentence is PARTIALLY OR TOTALLY SATISFIED OR
Served;
3. when the accused EXPRESSLY WAIVES IN WRITING HIS RIGHT
TO APPEAL; and
4. when the ACCUSED APPLIES FOR PROBATION. 
A JUDGMENT OF ACQUITTAL BECOMES FINAL IMMEDIATELY
AFTER PROMULGATION AND CANNOT BE RECALLED FOR
CORRECTION OR AMENDMENT.
• The prosecutor cannot ask for the modification or setting
aside of a judgment of conviction because the rules clearly
provide that a judgment of conviction may be modified or
set aside by the court rendering upon motion of the
accused. 
• The trial court can validly amend the civil portion of its
decision within 15 days from promulgation thereof even
though the appeal had in the meantime already been
perfected by the accused from judgment of conviction.
 The trial court may lose jurisdiction over the judgment even
BEFORE the lapse of 15 days:
1. when the defendant voluntarily submits to the execution of
the judgment;
2. when the defendant perfects his appeal;
3. when the accused withdraws his appeal;
4. when the accused expressly waives in writing his right to
appeal;
5. when the accused files a petition for probation. 
SECTION 8. ENTRY OF JUDGMENT.
• The final judgment of the court is carried into effect by a
process called “mittimus”.
• Mittimus - A PROCESS ISSUED BY THE COURT AFTER
CONVICTION TO CARRY OUT THE FINAL JUDGMENT, SUCH
AS COMMANDING A PRISON WARDEN TO HOLD THE
ACCUSED IN ACCORDANCE WITH THE TERMS OF THE
JUDGMENT.
SECTION 9. EXISTING PROVISIONS GOVERNING SUSPENSION
OF SENTENCE, PROBATION AND PAROLE NOT AFFECTED
BY THIS RULE.
 RULE 121
NEW TRIAL OR RECONSIDERATION
SECTION 1. NEW TRIAL OR RECONSIDERATION.
• New trial - the rehearing of a case already decided but before the
judgment of conviction therein rendered has become final,
whereby ERRORS OF LAW OR IRREGULARITIES ARE EXPUNGED
FROM THE RECORD OR NEW EVIDENCE IS INTRODUCED, OR BOTH
STEPS ARE TAKEN. 
• A motion for new trial or reconsideration should be FILED WITH
THE TRIAL COURT WITHIN 15 DAYS FROM THE PROMULGATION
OF THE JUDGMENT and interrupts the period for perfecting an
appeal from the time of its filing until notice of the order overruling
the motion shall have been served upon the accused or his counsel.
• A motion for the reconsideration of the judgment may be filed in
order to correct errors of law or fact in the judgment. It does not
require any further proceeding.
A new trial be granted at any time before the judgment of conviction
becomes final:
1. on motion of the accused
2. on motion of the court but with the consent of the accused
• The award of new trial or taking of additional evidence
RESTS UPON THE SOUND DISCRETION OF THE COURT.
(People vs. Acosta, 98 Phil. 642)
• ONCE THE APPEAL IS PERFECTED, THE TRIAL COURT
STEPS OUT OF THE CASE AND THE APPELLATE COURT
STEPS IN. Should it come to pass then that during the
pendency of the appeal, new and material evidence,
for example, have been discovered, the accused may
file a motion for new trial with the appellate court.
Cases when the trial court lose jurisdiction over its
sentence even before the lapse of 15 days:
1. When the DEFENDANT VOLUNTARILY SUBMITS TO THE
EXECUTION OF THE SENTENCE.
2. When the DEFENDANT PERFECTS HIS APPEAL. The
moment the appeal is perfected the court a quo loses
jurisdiction over it, except for the purpose of correcting
clerical errors.
New Trial Reopening of the case
Filed after judgment is made by the court
rendered but before before the judgment is
the finality thereof rendered in the
exercise of sound
discretion
At the instance or with does not require the
the consent of the consent of the
accused accused; may be at the
instance of either party
who can thereafter
present additional
evidence
Section 2. Grounds for new trial. 

GROUNDS FOR A NEW TRIAL IN CRIMINAL CASES:

1. errors of law or irregularities committed during the trial prejudicial to the
substantial rights of the accused.
2. new and material evidence discovered. 

REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON THE GROUND OF

NEWLY DISCOVERED EVIDENCE:
1. that the evidence was discovered after trial;
2. that such evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence;
3. that it is material not merely cumulative, corroborative or impeaching; and
4. the evidence is of such a weight that it would probably change the judgment
if admitted.
• Mistakes or errors of counsel in the conduct of his case are not grounds
for new trial. This rule is the same whether the mistakes are the result of
ignorance, inexperience, or incompetence. (U.S. vs. Umali, 15 Phil. 37)
• If the incompetence, ignorance or inexperience of counsel is so great and
the error committed as a result thereof is so serious that the client, who
otherwise has a good cause, is prejudiced and denied his day in court, the
litigation may be reopened to give the client another chance to present
his case.
3. GROUNDS FOR RECONSIDERATION. 
Grounds of motion for reconsideration
1. errors of law;
2. errors of fact in the judgment, which require no further proceedings.
• The principle underlying this rule is to afford the trial court the
opportunity to correct its own mistakes and to avoid unnecessary appeals
from being taken. The grant by the court of reconsideration should
require no further proceedings, such as the taking of additional proof.
Section 4. Form of motion and notice to the prosecutor.
• Requisites for a motion for new trial or reconsideration: The motion for a
new trial or reconsideration shall be:
1. in writing
2. filed with the court
3. State grounds on which it is based
4. If the motion for new trial is based on a newly discovered evidence, it must
be supported by the affidavits of the witness by whom such evidence is
expected to be given, or duly authenticated copies of documents which it is
proposed to introduce in evidence.
5. Notice of the motion for new trial or reconsideration shall be given to the
fiscal.
• While the rule requires that an affidavit of merits be attached to support a
motion for new trial based on newly discovered evidence, yet the defect
of lack of it may be cured by testimony under oath of the defendant at
the hearing of the motion. (Paredes vs. Borja, 3 SCRA 495)
SECTION 5. HEARING ON MOTION. 
• Where a motion for new trial calls for resolution of any question of
fact, the court may hear evidence thereon by affidavits or
otherwise. 
PURPOSE
• To determine whether the new trial requested should be granted
or not. It is not the new trial proper where newly discovered
evidence, for example will be received by the court. (Pamaran, p.
608) 
Section 6. Effects of granting a new trial or reconsideration. 
EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION
1. when a new trial is granted on the ground of errors of law or
irregularities committed during the trial, all proceedings and
evidence not affected by the commission of such errors and
irregularities shall stand, BUT those affected thereby shall be set
aside and taken anew. The court may, in the interest of justice,
allow the introduction of additional evidence.
2. When a new trial is granted on the ground of newly discovered
evidence, the evidence already taken shall stand, and the newly
discovered and such other evidence as the court may, in the
interest of justice, allow to be introduced, shall be taken and
considered together with the evidence already in the record.
3. In all cases, when the court grants new trial or
reconsideration, the original judgment SHALL BE
SET ASIDE AND A NEW JUDGMENT RENDERED
ACCORDINGLY. 
• The effect of the granting of a new trial is not to
acquit the accused of the crime of which the
judgment finds him guilty, BUT PRECISELY TO SET
ASIDE SAID JUDGMENT SO THAT THE CASE MAY
BE TRIED DE NOVO AS IF NO TRIAL HAD BEEN
BEFORE.
• Unlike the rule in Civil Cases, the remedy of the
aggrieved party being appeal in due time, an
order granting a new trial rendered in Criminal
Cases is also interlocutory BUT is controllable by
certiorari or prohibition at the instance of the
prosecution.
 RULE 122
APPEAL
Section 1. Who may appeal.
 
• Any party may appeal from a judgment or final order, UNLESS the
accused will be placed in double jeopardy.
• Appeal - a PROCEEDING FOR REVIEW BY WHICH THE WHOLE CASE
IS TRANSFERRED TO THE HIGHER COURT FOR A FINAL
DETERMINATION
• Appeal is not an inherent right of convicted person. The right of
appeal is and always has been statutory.
• Only final judgments and orders are appealable.
EFFECT OF AN APPEAL
• An appeal in a criminal case OPENS THE WHOLE CASE FOR REVIEW
and this includes the review of the penalty, indemnity, and the
damages involved. Consequently, on appeal, the appellate court
may increase the penalty, indemnity, or the damages awarded by
the trial court, although the offended party had not appealed from
said award, and the party who sought a review of the decision was
the accused.
Final judgment Final order
a judgment which disposes of the whole
would become final if subject matter or
no appeal is taken. terminates a particular
issue leaving nothing to
be done but to enforce
by execution what has
been determined.
From a judgment convicting the accused, two appeals may
accordingly be taken:
1. The ACCUSED may seek a review of said judgment, as
regards both actions; or
2. The COMPLAINANT may appeal with respect only to the civil
action, either because the lower court has refused or failed to
award damages, or because the award made is unsatisfactory
to him.
GENERAL RULE: A PRIVATE PROSECUTOR IN A CRIMINAL
CASE HAS NO AUTHORITY TO ACT FOR THE PEOPLE OF
THE PHILIPPINES BEFORE A COURT ON APPEAL. It is the
government’s counsel, the Solicitor General, who appears
in criminal cases or their incidents before the Supreme
Court. At the very least, the Provincial Fiscal himself, with
the conformity of the Solicitor General.
EXCEPTION: The CIVIL AWARD IN A CRIMINAL CASE MAY BE
APPEALED BY THE PRIVATE PROSECUTOR ON BEHALF OF
THE OFFENDED PARTY OR HIS SUCCESSORS.
• Section 2. Where to appeal.
Section 3. How appeal taken.
• HOW APPEAL IS TAKEN
1. Appeal to the Regional Trial Court: by filing a notice of appeal with
the court that rendered the judgment or order appealed from and
serving a copy to the adverse party 
2. Appeal to the Court of Appeals from decision of the Regional Trial
Court in the exercise of its ORIGINAL JURISDICTION: by filing a
notice of appeal with the court which rendered the judgment or
order appealed from and serving a copy to the adverse party
3. Appeal to the Court of Appeals in cases decided by Regional Trial
Court in the exercise of its APPELLATE JURISDICTION: by petition for
review
4. Appeal to the Court of Appeals in cases where penalty imposed is
life imprisonment or where a lesser penalty is imposed but involving
offenses committed on the same occasion or arising out of the same
occurrence that gave rise to the more serious offense for which the
penalty of death or life imprisonment is imposed: by filing a notice
of appeal with the Court of Appeals.
5. DEATH PENALTY: AUTOMATIC REVIEW BY THE COURT OF APPEALS.
(A.M. No. 00-5-03-SC, October 15, 2004)
6. Other appeals to the Supreme Court: by petition for review on
certiorari.
Error of Judgment Error of Jurisdiction
the court may renders an order of
commit in the judgment void or
exercise of voidable
jurisdiction

reviewable by reviewable by
appeal certiorari
Modes of review
The Rules of Court recognize 4 modes by which the decision or final order of
the court may be reviewed by a higher tribunal, viz.:
1. ORDINARY APPEAL
2. PETITION FOR REVIEW
3. PETITION FOR REVIEW ON CERTIORARI
4. AUTOMATIC APPEAL
Section 4. Service of notice of appeal.
• PUBLICATION OF NOTICE OF APPEALIf copy of the notice of appeal cannot
be served on the adverse party or his counsel, it may be done by
publication. Service by publication is made in a newspaper of general
circulation in the vicinity once a week for a period not exceeding 30 days.

Section 5. Waiver of notice 

• The appellee may waive his right to a notice that an appeal has been
taken. HOWEVER, the appellate court may, in its discretion, entertain an
appeal notwithstanding failure to give such notice if the interests of justice
so require. (Llamas vs. Moscoso, 95 Phil. 735)

Section 6. When appeal to be taken.

• An appeal must be filed within 15 days counted from the promulgation or
notice of the judgment or order appealed from.The period for appeal is
interrupted from the time the motion for new trial is filed up to the
receipt by the accused of the notice of the order “overruling the motion”.
Section 8. Transmission of papers to appellate court upon
appeal.
• Within 5 days from the filing of the notice of appeal, the
clerk of the court with whom the notice of appeal was filed
must transmit to the clerk of court of the appellate court
the complete record of the case, together with said notice.

Section 10. Transmission of records in case of death penalty.

• In case of death penalty, the records shall be forwarded to
the Court of Appeals for automatic review and judgment,
within 20 days but not earlier than 15 days after the
promulgation of the the judgment or notice of denial of any
motion for new trial or reconsideration. The transcript shall
also be forwarded within 10 days after the filing thereof by
the stenographic reporter (A.M. No. 00-5-03-SC, Oct. 15,
2004).
Section 12. Withdrawal of appeal. 
• An appellant may withdraw his appeal BEFORE the record has been
forwarded by the clerk of court to the proper appellate court as provided
by Section 8, in which case the judgment shall become final.
• The court may also, in its discretion, allow the appellant to withdraw his
appeal, PROVIDED a motion to that effect is filed BEFORE the rendition of
the judgment in the case on appeal.
• Once appeal is withdrawn, the decision or judgment appealed from
becomes at once final and executory. (People vs. Dueño, 90 SCRA 23)

Section 13. Appointment of counsel de oficio for accused on appeal.

• The right to counsel de oficio does not cease upon the conviction of an
accused by a trial court but continues, even during appeal.
Duties of the clerk of the trial court to the appellant who is confined in prison
upon the presentation of notice of appeal:
1. he shall ascertain from the appellant, whether he desires the Court of
Appeals or the Supreme Court to appoint an attorney to defend him de
oficio;
2. he shall transmit with the record, upon a form to be prepared by the clerk of
the appellate court, a certificate of compliance with this duty of the
response of the appellant to his inquiry.
 RULE 123
PROCEDURE IN THE MUNICIPAL TRIAL COURTS
SECTION 1. UNIFORM PROCEDURE.
• Procedure to be observed in Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts: They shall observe the same procedure as
in the Regional Trial Courts EXCEPT:
1. where a particular provision expressly or impliedly
applies only to the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts or Regional Trial Courts
2. In criminal cases governed by the Rules on Summary
Procedure in Special Cases adopted on August 1, 1983
and revised on November 15, 1991.
 RULE 124
PROCEDURE IN THE COURT OF APPEALS
Section 2. Appointment of counsel de oficio for the accused.
REQUISITES BEFORE AN ACCUSED CAN BE GIVEN A COUNSEL DE
OFICIO ON APPEAL:
1. that he is confined in prison
2. without counsel de parte on appeal
3. signed the notice of appeal himself 
EXCEPTIONS: An accused-appellant not confined to prison can have a
counsel de oficio if requested by him in the appellate court within
10 days from receipt of the notice to file brief and the right thereto
is established by affidavit.
Section 3. When brief for the appellant to be filed. 
• 7 copies of the brief shall be filed within 30 days from receipt by the
appellant or his counsel of the notice from the clerk of court of the
Court of Appeals that the evidence, oral and documentary, is
already attached to the record.
BRIEF - LITERALLY MEANS A SHORT OR CONDENSED STATEMENT. THE PURPOSE OF
THE BRIEF IS TO PRESENT TO THE COURT IN CONCISE FORM THE POINTS AND
QUESTIONS IN CONTROVERSY, AND BY FAIR ARGUMENT ON THE FACTS AND
LAW OF THE CASE, TO ASSIST THE COURT IN ARRIVING AT A JUST AND PROPER
CONCLUSION. 
PURPOSE
• To present to the court in concise form the points and questions in controversy
and, by fair argument on the facts and law of the case, to assist the court in
arriving at a just and proper conclusion. 
SECTION 4. WHEN BRIEF FOR APPELLEE TO BE FILED; REPLY BRIEF OF THE
APPELLANT. 
• The appellee shall file 7 copies of the brief with the clerk of court within 30 days
from receipt of the brief of the appellant accompanied by proof of service of 2
copies thereof upon the appellant

SECTION 5. EXTENSION OF TIME FOR FILING BRIEFS.

 
• Not allowed EXCEPT FOR GOOD AND SUFFICIENT CAUSE AND ONLY IF THE
MOTION FOR EXTENSION IS FILED BEFORE THE EXPIRATION OF THE TIME
SOUGHT TO BE EXTENDED. 
Section 7. Contents of briefs. 
• Unlike the procedure in civil cases, it has been held that it is not essential for the
accused to make assignment of errors in his brief, as on appeal, the whole record
of the case is submitted to and reviewable by the appellate court. 
• Issues that were never raised in the proceedings before the trial court cannot be
considered and passed upon on appeal.
SECTION 8. DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO
PROSECUTE.
• GROUNDS FOR DISMISSAL OF APPEALS:
1. Failure on the part of the appellant to file brief within the reglementary
period, except when he is represented by a counsel de oficio;
2. Escape of the appellant from prison or confinement;
3. When the appellant jumps bail; and
4. Flight of the appellant to a foreign country during the pendency of the
appeal.
DISMISSAL OF APPEAL; NEED OF NOTICE TO APPELLANT
• The Court of Appeals may dismiss motu propio or on motion by appellee
an appeal for failure on the part of the appellant to file his brief on time,
BUT it must have a notice served upon the appellant of the action to be
taken by said court before dismissing motu propio the appeal. 
Effect of Escape of Accused; Abandonment of Appeals:
1. If the convict escapes from prison or confinement or refuses to surrender to
the proper authorities, jumps bail or flees to a foreign country he is deemed
to have abandoned his appeal AND the judgment of the court below
becomes final.
2. In that case, the accused cannot be afforded the right to appeal UNLESS (a)
he voluntarily submits to the jurisdiction of the court or (b) is otherwise
arrested within 15 days from notice of the judgment against him.
Section 9. Prompt disposition of cases.

• It is discretionary for the appellate court whether to order a hearing of

the case before it or decide the appeal solely on the evidence submitted
to the trial court. 
• If the Court of Appeals chose not to hear the case, the Justices composing
the division may just deliberate on the case, evaluate the recorded
evidence on hand and then decide it.

Section 10. Judgment not to be reversed or modified except for substantial

error.
GENERAL RULE:
• The findings of the judge who tried the case and heard the witnesses are
not disturbed on appeal.
EXCEPTION:
• When it is shown that the trial court has overlooked certain facts of
substance and value that, if considered, might affect the result of the
case. (People vs. Cabiling, 74 SCRA 285) 
• The reversal of judgments entered in the court below is prohibited,
EXCEPT for prejudicial error – that which tends to prejudice a substantial
right of a party to the proceedings.
Section 11. Scope of Judgment.
• The appeal confers upon the appellate court full jurisdiction and
renders it competent to examine the records, revise the judgment
appealed from, increase the penalty and cite the proper provision
of the law.
• An invocation of the constitutional immunity from double jeopardy
will not lie in case of appeal by the accused. The reason being that
when the accused appeals from the sentence of the trial court, he
waives the constitutional safeguard against double jeopardy and
throws the whole case open to the review of the appellate court. 
Section 12. Power to receive evidence.
PURPOSE
• To speed up the disposition of court cases.
Other powers of the Court of Appeals:
1. to try cases and conduct hearings;
2. receive evidence;
3. perform any and all acts necessary to resolve factual issues raised in
cases:
4. falling under its original and appellate jurisdiction;
5. including the power to grant and conduct new trials or further
proceedings.
Section 13. Quorum of the court; certification or appeal of case to the
SC.
a. Whenever the Court of Appeals finds that the penalty of death
should be imposed, the court shall render judgment bur REFRAIN
from making an entry of judgment and forthwith certify the case
and elevate its entire record to the SC for review.
b. In cases where the Court of Appeals imposes reclusion perpetua,
life imprisonment or a lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment may be appealed
to the SC by notice of appeal filed with the Court of Appeals. (A.M.
No. 00-5-03-SC, Oct. 15, 2004)
 
Section 14. Motion for new trial.
• Motion for new trial based on Newly Discovered Evidence may be
filed at any time AFTER the appeal from the lower court has been
perfected AND BEFORE the judgment of the appellate court
convicting the accused becomes final.
• Once an appeal is perfected, the trial court steps out and the
appellate court steps in. A motion for new trial must then be filed
with the appellate court, not with the court from whose judgment
the appeal is taken.
Section 16. Rehearing or reconsideration.

• A motion for reconsideration shall be filed within 15 days from

notice of the decision or final order of the Court of Appeals. 
• A re-hearing is NOT a matter of right but a privilege to be granted
or not, as the court sees fit, the matter being solely within its
discretion. 
• New questions CANNOT be presented for the first time on a motion
for rehearing, especially where they are inconsistent with positions
taken on the original hearing, or waived on the original submission
of the case. 
• A second motion for rehearing or reconsideration of a final
judgment or order is NOT allowed because if parties are allowed to
file as many motions for rehearing or reconsideration as their
discretion or caprice suits, the proceedings would become
undeterminable and unnecessarily voluminous.
• The MITTIMUS is the final process of carrying into effect the
decision of the appellate court and the transmittal thereof to the
court of origin is predicated upon the finality of the judgment. It
shall be stayed during the pendency of the motion for rehearing or
reconsideration.
• A motion for reconsideration of its judgment or final
resolution shall be resolved by the Court of Appeals
within 90 days from the time it is submitted for
resolution, and no 2nd motion for reconsideration for
the same party shall be entertained. 
• The only-one-motion-for-reconsideration rule does
not apply where the first motion for reconsideration
resulted in a reversal or substantial modification of
the original decision or final resolution. The party
adversely affected thereby may file a motion for
reconsideration.
Section 17. Judgment transmitted and filed in trial
court. 
• Transmittal of judgment to court a quo after the
judgment has been entered, a certified copy of the
entry should be transmitted to the clerk of the court
of origin.
• The copy of the entry serves as the formal notice to
the court from which the appeal was taken of the
disposition of the case in the appellate court, so that
the judgment may be executed and/or placed or noted
in the proper file. 
Sec. 18. Application of certain rules in civil to criminal
cases.
• The corresponding amendment was made pursuant to
the changes introduced under the 1997 Rules of
Procedure.
• RULE 47 (ANNULMENT OF JUDGMENTS OF FINAL
JUDGMENT AND RESOLUTIONS) DOES NOT APPLY TO
CRIMINAL CASES. THE APPROPRIATE REMEDY FOR
LACK OF JURISDICTION OR EXTRINSIC FRAUD IS
CERTIORARI (RULE 65) OR HABEAS CORPUS (RULE
102).
 RULE 125
PROCEDURE IN THE SUPREME COURT
SECTION 1. UNIFORM PROCEDURE.
The procedure in the Supreme Court in original, as well as in appealed cases,
is the same as in the Court of appeals, EXCEPT when otherwise provided
by the Constitution or the law.
A case may reach the Supreme Court in the following manner:
1. automatic review
2. ordinary appeal
3. petitioner for review on certiorari 
EFFECT OF DIRECT APPEAL TO THE SUPREME COURT ON QUESTION OF LAW
IN CRIMINAL CASES
• A direct appeal to the Supreme Court on questions of law – in criminal
cases in which the penalty imposed is not death or life imprisonment –
precludes a review of the facts.
• Cases involving both questions of law and fact come within the
jurisdiction of the Court of Appeals.
• Appeal to the SC is NOT A MATTER OF RIGHT, but a matter of sound
judicial discretion. The prescribed mode of appeal is by certiorari.
Section 2. Review of decisions of the Court of Appeals. 
GENERAL RULE: Findings of fact in the CA is conclusive upon the SC
EXCEPTIONS:
1. when the conclusion is a finding grounded entirely on speculation,
surmises or conjectures
2. when the inference made is manifestly absurd, mistaken or impossible
3. when there is grave abuse of discretion in the appreciation of facts
4. when the judgment is premised on a misapprehension of facts
5. when the findings of fact are conflicting
6. when the Court of Appeals in making its findings went beyond the issues of
the case and the same is contrary to the admissions of both appellant and
appellee
7. when certain material facts and circumstances had been overlooked
which, if taken into account would after the result as it would give rise to
reasonable doubt to acquit the accused.  
• Question of law - when the doubt or difference arises as to what the law is
on a certain state of facts. It must not involve an examination of the
probative value of the evidence presented by the litigants or any of them.  
• Question of fact - when the doubt or difference arises as to the truth or
the falsehood of alleged facts.
Section 3. Decision if opinion is equally divided. 
• The Supreme Court, the Constitution ordains, shall be
composed of a Chief Justice and 14 associate justices.
It mat sit en banc or in its discretion, in divisions of 3,
5, or 7 members (Section 4(1), Article VIII, 1987
Constitution). 
• A criminal case shall be reheard by the Supreme Court
when the Court en banc is equally divided in opinion or
the necessary majority cannot be had, if no decision is
reached the conviction of the lower court shall be
reversed and the accused acquitted. 
• According to the Constitution, only the Supreme Court
en banc may modify or reverse a doctrine or principle
of law or ruling laid down by the Court in a decision
rendered en banc or in division
 RULE 126
SEARCH AND SEIZURE
Section 1. Search warrant defined.
• Search Warrant – an order in writing issued in the name of
the People of the Philippines, signed by a judge and
directed to a peace officer commanding him to search for
personal property described therein and bring it before the
court. 
ELEMENTS OF SEARCH WARRANT:
1. order in writing
2. signed by the judge in the name of the People of the
Philippines
3. commanding a peace officer to search personal property
4. bring the property before the court
NATURE OF SEARCH WARRANTS
Search warrants are in the nature of criminal process and may be invoked
only in furtherance of public prosecutions. Search warrants have no
relation to civil process or trials and are not available to individuals in the
course of civil proceedings, nor for the maintenance of any mere private
right.
SEARCH vs. SEIZURE
• The term search as applied to searches and seizures is an examination of a
man’s house or other buildings or premises or of his person with a view to
the discovery of contraband or illicit or stolen property or some evidence
of guilt to be used in the prosecution of a criminal action for some offense
with which he is charged. 
• A seizure is the physical taking of a thing into custody. 
• General Warrant – a search warrant which vaguely describes and DOES
NOT particularize the personal properties to be seized without a definite
guideline to the searching team as to what items might be lawfully seized,
thus giving the officers of the law discretion regarding what articles they
should seize.
• A general warrant is NOT VALID as it infringes on the constitutional
mandate requiring particular description of the things to be seized.
Warrant of arrest
Order directed to the peace officer to
execute the warrant by taking the person
stated therein into custody that he may
be bound to answer for the commission
of the offense
Does not become stale
Search warrant
Order in writing in the name of the RP
signed by the judge and directed to the
peace officer to search personal property
described therein and to bring it to court.
(sec. 1
validity is for 10 days only (sec. 9)

May be served on any day and at any to be served only in daytime unless the
time of day or night. affidavit alleges that the property is on
(sec. 6, rule 113 the person or in the place to be searched.
(sec. 8)
upon probable cause to be determined
personally by the judge after examination
in writing and under oath in the form of
searching answers and questions.
Only issued if there is a necessity of sworn statements and affidavits of
placing accused under immediate custody complainant and witnesses must be
submitted to court
Test to determine Particularity
1. When the description therein as specific as the circumstances
will ordinarily allow
2. When the description express a conclusion of fact- not of law
which the warrant officer may be guided in making the search
and seizure.
3. When the things described are limited to those which bear
direct relation to the offense for which the warrant is being
issued. 
EXCEPTION:
AN APPLICATION FOR SEARCH WARRANT SHALL BE FILED
WITH THE FF:
1. any court within whose territorial jurisdiction a crime was
committed;
2. any court within the judicial region where the crime was
committed if the place of the commission of the crime is
known, or any court within the judicial region where the
warrant shall be enforced;
3. HOWEVER, if the criminal action has been filed, the
application shall only be made in the court where the criminal
action is pending.
SECTION 3. PERSONAL PROPERTY TO BE SEIZED. 
Kinds of property to be seized by virtue of a warrant:
1. subject of the offense;
2. proceeds or fruits of the offense;
3. the means used or intended to be used for committing an offense.
• The rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. 
In a search incidental to an arrest even WITHOUT a warrant the person arrested may be searched
for:
1. dangerous weapons, and
2. anything which may be used as proof of the commission of an offense. 

Section 4. Requisites for issuing Search warrant.  

REQUISITES:
1. must be issued upon probable cause;
2. probable cause must be determined by the issuing judge personally;
3. the judge must have personally examined, in the form of searching questions and answers, the applicant and his
witnesses and taken down their written depositions;
4. the search warrant must particularly describe or identify the property to be seized as far as the circumstances will
ordinarily allow;
5. the warrant issued must particularly describe the place to be searched and the persons or things to be seized;
6. it shall issue only for one specific purpose; and
7. it must not have been issued more than 10 days prior to the search made pursuant thereto.
A SEARCH WARRANT SHALL NOT ISSUE BUT UPON PROBABLE CAUSE
IN CONNECTION WITH ONE SPECIFIC OFFENSE.
 
PARTY WHO MAY QUESTION VALIDITY OF SEARCH AND SEIZURE:
• WELL SETTLED IS THE RULE THAT THE LEGALITY OF A SEIZURE CAN
BE CONTESTED ONLY BY THE PARTY WHOSE RIGHTS HAVE BEEN
IMPAIRED THEREBY, AND THAT THE OBJECTION TO AN UNLAWFUL
SEARCH AND SEIZURE IS PURELY PERSONAL AND CANNOT BE
AVAILED OF BY THIRD PARTIES. 
REMEDIES FROM AN UNLAWFUL SEARCH
1. a motion to quash the search warrant, and
2. a motion to suppress as evidence the objects illegally taken.
(EXCLUSIONARY RULE – any evidence obtained through
unreasonable searches and seizures shall be inadmissible for any
purpose in any proceeding)
3. Replevin, if the objects are legally possessed.
4. The remedies are alternative; if a motion to quash is denied, a
motion to suppress cannot be availed of subsequently.
5. Where the search warrant is a PATENT NULLITY, certiorari lies to
nullify the same.
• The illegality of the search warrant does not call for the return of
the things seized, the possession of which is prohibited by law.
HOWEVER, those personalities seized in violation of the
constitutional immunity whose possession is not of itself illegal or
unlawful ought to be returned to their rightful owner or possessor.
• Any evidence obtained in violation of the constitutional immunity
against unreasonable searches and seizures are inadmissible for
any purpose in any proceeding (Section 2, Article III, 1987
Constitution). 
• When may a search warrant be said to particularly describe the
thing to be seized:
1. the description therein is as specific as the circumstances will allow;
2. when it expresses a conclusion of fact by which the warrant may be
guided; or
3. when the things described are limited to those which bear a direct
relation to the offense for which the warrant is issued. 
• PROBABLE CAUSE - facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that the property
subject of an offense is in the place sought to be searched.
”MULTI FACTOR BALANCING TEST” in determining Probable Cause:
• One which requires the officer to weigh the manner and intensity of the interference on the right of the
people, the gravity of the crime committed, and the circumstances attending the incident.

SECTION 5. EXAMINATION OF COMPLAINANT; RECORD. 

Manner on how a judge should examine a witness to determine the existence of probable cause:
1. the judge must examine the witnesses personally
2. the examination must be under oath
3. the examination must be reduced to writing in the form of searching questions and answers
4. Such personal examination is necessary in order to enable the judge to determine the existence or non-
existence of a probable cause.

Section 6. Issuance and form or search warrant.

ISSUANCE OF SEARCH WARRANT
• The Constitution ordains that no warrant shall issue but upon probable cause supported by oath or
affirmation.
FORM OF SEARCH WARRANT
• The search warrant must be in writing and must contain such particulars as the name of the person
against whom it is directed, the offense for which it was issued, the place to be searched and the specific
things to be seized.
• An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial. The
examination or investigation, which must be under oath may not be in public. It may be even held in the
secrecy of the chambers. It must be under oath and must be in writing.
SECTION 8. SEARCH OF HOUSE, ROOM, OR PREMISES TO BE MADE IN PRESENCE OF
TWO WITNESSES.
 
• In order to insure that the execution of the warrant will be fair and reasonable,
and in order to insure that the officer conducting the search shall NOT exceed his
authority or use unnecessary severity in executing the search warrant, as well as
for the officer’s own protection against unjust accusations, it is required that the
search be conducted in the presence of the:
1. lawful occupant of the place to be searched,
2. or any member of his family,
3. or in their absence, in the presence of two witnesses of sufficient age and discretion
residing in the same locality.
• This requirement is mandatory.
 
SECTION 9. TIME OF MAKING SEARCH. 
GENERAL RULE:
• A search warrant must be served in the day time. 
EXCEPTION:
• A search warrant may be made at night when it is positively asserted in the
affidavit that the property is on the person or in the place ordered to be searched
(Alvares vs. CFI of Tayabas, 64 Phil. 33). The affidavit making such assertion must
itself be sufficient as to the fact so asserted, for if the same is based upon hearsay,
the general rule shall apply.
• A search warrant conducted at night without direction to that effect is an unlawful
search. The same rule applies where the warrant left blank the “time” for making
the search. 
• A public officer or employee who exceeds his authority or uses unnecessary severity
in executing the warrant is liable under Article 129 of the Revised Penal Code.

Section 10. Validity of search warrant. 

• 10 days from its date, thereafter, it shall be void. A search warrant can be used only
once, thereafter it becomes functus oficio.
 
• While, under section 10, a search warrant has a validity of 10 days, NEVERTHELESS,
it CANNOT be used every day of said period and once articles have already been
seized under said warrant, it CANNOT be used again for another search and seizure,
EXCEPT when the search conducted on one day was interrupted, in which case the
same may be continued under the same warrant the following day if not beyond 10
day period. (Uy Kheytin vs. Villareal, 42 Phil. 886)
 
Section 12. Delivery of [property and inventory thereof to court; return and
proceedings thereon. 
• The law imposes upon the person making the search the duty to issue a detailed
receipt for the property seized. Additionally, he is likewise required to make a return
of the warrant to the court which issued it, together with an inventory of the
property seized. 
Section 13. Search incident to lawful arrest. 
WHEN MAY THERE BE A SEARCH WITHOUT WARRANT
1. in times of war within the area of military operation;
2. as an incident of a lawful arrest, subject to the following requisites:
a) arrest must be lawful;
b) search and seizure must be contemporaneous with arrest;
c) search must be within permissible area; (i.e. “STOP AND FRISK” search which allows a
limited protective search of outer clothing for weapons)
3. when there are prohibited articles open to eye and hand; (PLAINVIEW DOCTRINE)
4. when there is consent, subject to the following conditions: (consented search)
a) there is a right;
b) there must be knowledge of the existence of such right;
c) there must be intention to waive;
5. when it is incident of inspection;
6. under the Tariff and Customs Code for purposes of enforcing customs and tariff
laws;
7. searches and seizures of vessels and aircraft; this extends to the warrantless
search of a motor vehicle for contraband;
• Search and seizure of vessels and aircraft may validly be made without a search
warrant because the vessel or aircraft can quickly move out of the jurisdiction
before such warrant could be secured. 
• The remedy for questioning the validity of a search warrant can only be sought in
the court that issued it, not in the sala of another judge of concurrent jurisdiction.
Except where there is already a case filed, the latter shall acquire jurisdiction to
the exclusion of other courts. 
Waiver of legality and admissibility
• Objection to the legality of the search warrant as to the admissibility of the
evidence obtained or deemed waived where no objection of the search warrant
was raised during the trial of the case nor to the admissibility of the evidence
obtained through said warrant.
SECTION 14. A MOTION TO QUASH A SEARCH WARRANT OR TO SUPPRESS
EVIDENCE; WHERE TO FILE.  
IN WHAT COURT MAY A MOTION TO QUASH BE FILED:
1. before the court that issued the warrant;
2. under the CRIMINAL CASE RULE, all the incidents arising from the Search Warrant
should be consolidated in the court where the criminal case is pending;
3. under the ALTERNATIVE REMEDY RULE, with the court which issued the search
warrant. In this motion, all grounds for objection existent or available and known
at the time MUST BE INVOKED, otherwise, they are deemed waived.
 
• The legality of the search warrant should be addressed to the court issuing the
search warrant and not to any other court to foster judicial stability (Pagkalinawan
vs. Gomez, 23 SCRA 1275).

• Filing of motion to quash is without prejudice to any proper recourse to the

appropriate higher court by the party aggrieved.
 Rule 127
PROVISIONAL REMEDIES IN CRIMINAL CASES
Section 1. Availability of provisional remedies. 
NATURE OF PROVISIONAL REMEDIES
1. Those to which parties litigant may resort for the preservation or
protection of their rights or interests and for no other purposes
during the pendency of the action.
2. They are applied to a pending litigation for the purpose of securing
the judgment or preserving the status quo, and in some cases after
judgment, for the purpose of preserving or disposing of the subject
matter.
• The requisites and procedure for availing of these provisional
remedies shall be the same as those for civil cases.
• The provisional remedies under this rule are proper only where the
civil action for the recovery of civil liability ex delicto has not been
expressly waived or the right to institute such civil action separately
is not reserved in those cases where reservation may be made.
•  Where the civil action arising from a criminal offense is suspended by the filing of
the criminal action, the court wherein said civil case is pending can issue the
aforesaid auxiliary writs since such orders do not involve a determination of the
merits of the case. (Babala vs. Abaño, 90 Phil. 827)

Kinds of provisional remedies

1. attachment
2. injunction
3. receivers
4. delivery of personal property
5. support pendente lite

Section 2. Attachment 
Who may apply for preliminary attachment
• The aggrieved party in whose behalf the civil aspect of the criminal action is
prosecuted may apply for the issuance of a writ of preliminary attachment, he
being the person primarily and directly interested thereby. The prosecutor in the
criminal action may make such an application in behalf of or for the protection of
the interest of the offended party. 
• It was held by the Supreme Court that the public prosecutor has the authority to
apply for preliminary attachment as may be necessary to protect the interest of
the offended party.
Notice to adverse party, not required
• 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 a hearing would take, could be enough to enable
the defendant to abscond or dispose of his property
before a writ of attachment issue and the only
requisites from the issuance of a writ of preliminary
attachment are the affidavit and bond of applicant.
(Mindanao Savings, etc. vs. Court of Appeals, 172 SCRA
480) 
may be availed of ONLY when the civil action arising from the
crime has not been expressly waived or not reserved and
only in the following cases:
1. when the accused is about to abscond from the Philippines;
2. when the criminal action is based on a claim for money or
property embezzled or fraudulently misapplied or converted
to the use of the accused who is a public officer or a corporate
officer or an attorney, broker, or agent or clerk in the course of
employment or by a person in a fiduciary capacity;
3. when the accused has concealed, removed or about to dispose
of his property;
4. when the accused resides abroad.