BAR Q&A

CRIMINAL PROCEDURE
Suggested Answers
X was arrested, in flagrante, for robbing a bank.
After an investigation, he was brought before
the Office of the Prosecutor for inquest, but
unfortunately no inquest prosecutor was
available. May the bank directly file the
complaint with the proper court? If in the
affirmative, what document should be filed?
(2012 BAR QUESTION)
YES, the bank may directly file the complaint
with the proper court.
In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the
offended party or a peace officer directly with
the proper court based on the affidavit of the
offended party or arresting officer or person
(Section 6, Rule 112 of the Revised Rules of
Criminal Procedure).
 McJolly is a troublemaker of sorts, always getting into brushes with
the law. In one incident, he drove his Humvee recklessly, hitting a
pedicab which sent its driver and passengers in different directions.
The pedicab driver died, while two (2) of the passenger suffered
slight physical injuries. Two (2) Informations were then filed against
McJolly. One, for Reckless Imprudence Resulting in Homicide and
Damage to Property, and two, for Reckless Imprudence Resulting in
Slight Physical Injures. The latter case was scheduled for
arraignment earlier, on which occasion McJolly immediately pleaded
guilty. He was meted out the penalty of public censure. A month
later, the case for reckless imprudence resulting on homicide was
also set for arraignment. Instead of pleading, McJolly interposed the
defense of double jeopardy. Resolve.
(2014 BAR QUESTION)
 McJolly correctly interposed the defense of
double jeopardy. Reckless imprudence under
Article 365 is a quasi-offense by itself and not
merely a means to commit other crimes, such
that conviction or acquittal of such quasi-
offense already bars subsequent prosecution
for the same quasi-offense, regardless of its
various resulting acts (Ivler v. Hon, Modesto-San
Pedro, G.R. No. 172716, November 17, 2010).
 Yvonne, a young and lonely OFW, had an intimate
relationship abroad with a friend, Percy. Although Yvonne
comes home to Manila every six months, her foreign
posting still left her husband Dario lonely so that he also
engaged in his own extramarital activities. In one
particularly exhilarating session with his girlfriend, Dario
died. Within 180 days from Dario’s death, Yvonne gives
birth in Manila to a baby boy. Irate relatives of Dario
contemplate criminally charging Yvonne for adultery and
they hire your law firm to handle the case.
Is the contemplated criminal action a viable option to
bring? (2013 BAR QUESTION)
 NO. Section 5 of Rule 110 provides that the
crimes of adultery and concubinage shall not be
prosecuted except upon complaint by the
offended spouse. Since the offended party is
already dead, then the criminal action for
adultery as contemplated by offended party’s
relatives is no longer viable.
 While in his Nissan Patrol and hurrying home to Quezon City
from his work in Makati, Gary figured in a vehicular mishap
along that portion of EDSA within the City of Mandaluyong. He
was bumped from behind by a Ford Expedition SUV driven by
Horace who was observed using his cellular phone at the time
of the collision. Both vehicles - more than 5 years old – no
longer carried insurance other than the compulsory third party
liability insurance. Gary suffered physical injuries while his
Nissan Patrol sustained damage in excess of Php500,000.
A) As counsel for Gary, describe the process you need to
undertake starting from the point of the incident if Gary would
proceed criminally against Horace, and identify the court with
jurisdiction over the case. (2013 BAR QUESTION)
First, I will get Gary medically examined to ascertain
the gravity and extent of the injuries he sustained
from the accident. Second, I will secure a police
report relative to the mishap. Third, I will ask him to
execute his Sinumpaang Salaysay. Thereafter, I will
use his Sinumpaang Salaysay or prepare a
complaint affidavit and file the same in the Office of
the City Prosecutor and later on to the appropriate
MTC of Mandaluyong City for the crime of Reckless
Imprudence resulting to physical injuries and
damage to property (Sec. 1 and 15, Rule 110).
 Leave of court is required to amend a complaint or
information before arraignment if the amendment _____.
(2013 BAR QUESTION)
A) upgrades the nature of the offense from a lower to a
higher offense and excludes any of the accused
B) upgrades the nature of the offense from a lower to a
higher offense and adds another accused
C) downgrades the nature of the offense from a higher to
a lower offense or excludes any accused
D) downgrades the nature of the offense from a higher to
a lower offense and adds another accused
E) All the above choices are inaccurate.
(C) downgrades the nature of the offense from a
higher to a lower offense or excludes any
accused
 Pedrito and Tomas, Mayor and Treasurer, respectively, of the
Municipality of San Miguel, Leyte, are charged before the
Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019
(Anti- Graft and Corrupt Practices Act). The information alleges,
among others, that the two conspired in the purchase of several
units of computer through personal canvass instead of a public
bidding, causing undue injury to the municipality.
Before arraignment, the accused moved for reinvestigation of the
charge, which the court granted. After reinvestigation, the Office of
the Special Prosecutor filed an amended information duly signed
and approved by the Special Prosecutor, alleging the same delictual
facts, but with an additional allegation that the accused gave
unwarranted benefits to SB Enterprises owned by Samuel. Samuel
was also indicted under the amended information. Before Samuel
was arraigned, he moved to quash the amended information on the
ground that the officer who filed the same had no authority to do so.
Resolve the motion to quash with reasons. (2009 Bar Question)
 The motion to quash filed by Samuel should be granted.
There is no showing that the special prosecutor was duly authorized or
deputized to prosecute Samuel. Under R.A. No. 6770, also known as the
Ombudsman Act of 1989, the Special Prosecutor has the power and
authority, under the supervision and control of the Ombudsman, to conduct
preliminary investigation and prosecute criminal cases before the
Sandiganbayan and perform such other duties assigned to him by the
Ombudsman (Calingin v. Desierto, 529 SCRA 720 [2007])
Absent a clear delegation of authority from the Ombudsman to the Special
Prosecutor to file the information, the latter would have no authority to file
the same. The Special Prosecutor cannot be considered an alter ego of the
Ombudsman as the doctrine of qualified political agency does not apply to
the Office of the Ombudsman. In fact, the powers of the Office of the Special
Prosecutor under the law may be exercised only under the supervision and
control and upon the authority of the Ombudsman (Perez v. Sandiganbayan,
503 SCRA 252[2006]).
 The Ombudsman found probable cause to charge with
plunder the provincial governor, vice governor, treasurer,
budget officer, and accountant. An Information for plunder
was filed with the Sandiganbayan against the provincial
officials except for the treasurer who was granted
immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately,
the governor filed with the Sandiganbayan a petition for
certiorari against the Ombudsman claiming there was
grave abuse of discretion in excluding the treasurer from
the Information. (2015 BAR QUESTION)
A) Was the remedy taken by the governor correct?
 NO, the remedy taken by the Governor is not
correct. The petition for certiorari is a remedy
that is only available when there is no plain,
speedy and adequate remedy under the
ordinary course of law; hence, the Governor
should have filed a Motion for Reconsideration.
Besides, there is no showing that the
Ombudsman committed grave abuse of
discretion in granting immunity to the treasurer
who agreed to cooperate in the prosecution of
the case.
 The Ombudsman found probable cause to charge with
plunder the provincial governor, vice governor, treasurer,
budget officer, and accountant. An Information for plunder
was filed with the Sandiganbayan against the provincial
officials except for the treasurer who was granted
immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately,
the governor filed with the Sandiganbayan a petition for
certiorari against the Ombudsman claiming there was
grave abuse of discretion in excluding the treasurer from
the Information. (2015 BAR QUESTION)
B) Will the writ of mandamus lie to compel the
Ombudsman to include the treasurer in the Information?
 NO. Mandamus will not lie to compel the Ombudsman to
include the treasurer in the Information. In matters involving
the exercise of judgment and discretion, mandamus may only
be resorted to in order to compel respondent tribunal,
corporation, board, officer or person to take action, but it
cannot be used to direct the manner or the particular way
discretion is to be exercised, or to compel the retraction or
reversal of an action already taken in the exercise of
judgment or discretion (Ampatuan, Jr. v. Secretary De Lima,
G.R. No. 197291, April 3, 2013).
Evidently, the Ombudsman’s act of granting the treasurer
immunity from prosecution under such terms and conditions
as it may deter mine (Section 17, R.A. 6770) is a discretionary
duty that may not be compelled by the extraordinary writ of
mandamus.
 The Ombudsman found probable cause to charge with
plunder the provincial governor, vice governor, treasurer,
budget officer, and accountant. An Information for plunder
was filed with the Sandiganbayan against the provincial
officials except for the treasurer who was granted
immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately,
the governor filed with the Sandiganbayan a petition for
certiorari against the Ombudsman claiming there was
grave abuse of discretion in excluding the treasurer from
the Information. (2015 BAR QUESTION)
C) Can the Special Prosecutor move for the discharge of
the budget officer to corroborate the testimony of the
treasurer in the course of presenting its evidence?
 NO. The special Prosecutor cannot move for the discharge of the budget officer
to become a State witness since his testimony is only corroborative to the
testimony of the treasurer. Under Section 17, Rule 119, the Court upon motion
of the prosecution before resting its case, may direct one or more of the
accused to be discharged with their consent so that they may be witnesses for
the State, provided the following requisites are satisfied: (a) there is absolute
necessity for the testimony of the accused whose discharge is requested; (b)
there is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused; (c) the testimony of
said accused can be substantially corroborated in its material points; (d) said
accused does not appear to be the most guilty; and (e) said accused has not at
any time been convicted of any offense involving moral turpitude. Absolute
necessity exists for the testimony of an accused sought to be discharged when
he or she alone has knowledge of the crime. In more concrete terms, necessity
is not present when the testimony would simply corroborate or otherwise
strengthen the prosecution’s evidence. The requirement of absolute necessity
for the testimony of a state witness depends on the circumstances of each case
regardless of the number of the participating conspirators (Manuel J. Jimenez,
Jr., v. People of the Philippines, G.R. No. 209195, September 17, 2014).
 The Ombudsman, after conducting the requisite preliminary
investigation, found probable cause to charge Gov. Matigas in
conspiracy with Carpintero, a private individual, for violating
Section 3(e) of Republic Act (RA) No. 3019 (Anti- Graft and
Corrupt Practices Act, as amended). Before the information
could be filed with the Sandiganbayan, Gov. Matigas was
killed in an ambush. This, notwithstanding, an information
was filed against Gov. Matigas and Carpintero.
At the Sandiganbayan, Carpintero through counsel, filed a
Motion to Quash the information, on the ground of lack of
jurisdiction of the Sandiganbayan, arguing that with the death
of Gov. Matigas, there is no public officer charged in the
information.
Is the Motion to Quash legally tenable? (2014 BAR QUESTION)
 NO. The Motion to Quash is not legally tenable.
While it is true that by reason of the death of Gov. Matigas, there is no
longer any public officer with whom he can be charged for violation of R.A.
3019, it does not mean, however, that the allegation of conspiracy
between them can no longer be proved or that their alleged conspiracy is
already expunged. The only thing extinguished by the death of Gov.
Matigas is his criminal liability. His death did not extinguish the crime nor
did it remove the basis of the charge of conspiracy between him and
Carpintero. The requirement before a private person may be indicated for
violation of Section 3(g) of R.A. 3019, among others, is that such private
person must be alleged to have acted in conspiracy with a public officer.
The law, however, does not require that such person must, in all
instances, be indicated together with the public officer. Indeed, it is not
necessary to join all alleged co-conspirators in an indictment for
conspiracy (People of the Philippines v. Henry T. Go, G.R. No. 168539,
March 25, 2014).
 Solomon and Faith got married in 2005. In 2010, Solomon
contracted a second marriage with Hope. When Faith found out
about the second marriage of Solomon and Hope, she filed a
criminal case for bigamy before the Regional Trial Court (RTC) of
Manila sometime in 2011. Meanwhile, Solomon filed a petition for
declaration of nullity of his first marriage with Faith in 2012, while
the case for bigamy before the RTC of Manila is ongoing.
Subsequently, Solomon filed a motion to suspend the proceedings in
the bigamy case on the ground of prejudicial question. He asserts
that the proceedings in the criminal case should be suspended
because if his first marriage with Faith will be declared null and void,
it will have the effect of exculpating him from the crime of bigamy.
Decide. (2014 BAR QUESTION)
 The motion filed by Solomon should be DENIED. The elements of
prejudicial question are: (1) the previously instituted civil action involves
an issue similar or intimately related to the issue determines the
subsequent criminal action; and (2) the resolution of such issue
determines whether or not the criminal action may proceed. In order for a
prejudicial question to exist, the civil action must precede the filing of the
criminal action (Dreamwork Construction, Inc. v. Janiola, G.R. No.
184861, June 30, 2009).
Since the criminal case for bigamy was filed ahead of the civil action for
declaration of nullity of marriage, there is no prejudicial question. At any
rate, the outcome of the civil case for annulment has no bearing upon the
determination of the guilt or innocence of the accused in the criminal
case for bigamy because the accused has already committed the crime of
bigamy when he contracted the second marriage without the first
marriage having being declared null and void. Otherwise stated, he who
contracts marriage during the subsistence of a previously contracted
marriage runs the risk of being prosecuted for bigamy.
 Name two instances where the trial
court can hold the accused civilly liable
even if he is acquitted.
(2010 BAR QUESTION)
 The Instances where the civil, liability is not
extinguished despite acquittal of the accused where:
1) The acquittal is based on reasonable doubt;
2) Where the court expressly declares that the
liability of the accused is not criminal but only civil in
nature; and
3) Where the civil liability is not derived from or
based on the criminal act of which the accused is
acquitted
(Remedios Nota Sapiera v. Court of Appeals,
September 14, 1999).
 While window-shopping at the mall on August 4, 2008,
Dante lost his organizer including his credit card and billing
statement. Two days later, upon reporting the matter to the
credit card company, he learned that a one-way airplane
ticket was purchased online using his credit card for a flight
to Milan in mid-August 2008. Upon extensive inquiry with
the airline company, Dante discovered that the plane ticket
was under the name of one Dina Meril. Dante approaches
you for legal advice.
What is the proper procedure to prevent Dina from leaving
the Philippines? (2010 BAR QUESTION)
 1. The filing of an appropriate criminal action
cognizable by the RTC against Dina and the filing in
said criminal action a Motion for the issuance of a
Hold Departure Order;
2. Thereafter, a written request with the
Commissioner of the Bureau of Immigration for a
Watch List Order pending the issuance of the Hold
Departure Order should be filed;
3. Then, the airline company should be requested to
cancel the ticket issued to Dina.
 A criminal information is filed in court
charging Anselmo with homicide. Anselmo
files a motion to quash the information on
the ground that no preliminary investigation
was conducted. Will the motion be granted?
Why or why not? (2009 BAR QUESTION)
 NO, the motion to quash will not be granted.
The lack of preliminary investigation is not a ground
for a motion to quash under the Rules of Criminal
Procedure. Preliminary investigation is only a
statutory right and can be waived. The accused
should instead file a motion for reinvestigation within
five (5) days after he learns of the filing in Court of
the case against him (Sec. 6, Rule 112, as
amended).
 On his way to the PNP Academy in Silang, Cavite on board a public
transport bus as a passenger, Police Inspector Masigasig of the
Valenzuela Police witnessed an on-going armed robbery while the
bus was traversing Makati. His alertness and training enabled him to
foil the robbery and to subdue the malefactor. He disarmed the felon
and while frisking him, discovered another handgun tucked in his
waist. He seized both handguns and the malefactor was later
charged with the separate crimes of robbery and illegal possession
of firearm.
A) Where should Police Inspector Masigasig bring the felon for
criminal processing? To Silang, Cavite where he is bound; to Makati
where the bus actually was when the felonies took place; or back to
Valenzuela where he is stationed? Which court has jurisdiction over
the criminal cases? (2013 BAR QUESTION)
 Police Inspector Masigasig should bring the felon to the
nearest police station or jail in Makati City where the bus
actually was when the felonies took place.
Moreover, where an offense is committed in a public vehicle
while in the course of its trip, the criminal action shall be
instituted and tried in the court of any Municipality or
territory where such vehicle passed during its trip, including
the place of its departure and arrival (Sec. 15[b], Rule 110).
Consequently, the criminal case for robbery and illegal
possession of firearms can be filed in Regional Trial Court of
Makati City or on any of the places of departure or arrival of
the bus.
 On his way to the PNP Academy in Silang, Cavite on
board a public transport bus as a passenger, Police
Inspector Masigasig of the Valenzuela Police witnessed
an on-going armed robbery while the bus was traversing
Makati. His alertness and training enabled him to foil
the robbery and to subdue the malefactor. He disarmed
the felon and while frisking him, discovered another
handgun tucked in his waist. He seized both handguns
and the malefactor was later charged with the separate
crimes of robbery and illegal possession of firearm.
B) May the charges of robbery and illegal possession of
firearm be filed directly by the investigating prosecutor
with the appropriate court without a preliminary
investigation? (2013 BAR QUESTION)
YES. Since the offender was arrested in flagrante delicto without
a warrant of arrest, an inquest proceeding should be conducted
and thereafter a case may be filed in court even without the
requisite preliminary investigation.
Under Section 7, Rule 112, when a person is lawfully arrested
without a warrant involving an offense which requires
preliminary investigation, the complaint or information may be
filed by a prosecutor without the need of such investigation
provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or
a peace officer directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or person.
You are the defense counsel of Angela Bituin who has been charged
under RA 3019 (Anti-Graft and Corrupt Practices Act) before the
Sandiganbayan. While Angela has posted bail, she has yet to be
arraigned. Angela revealed to you that she has not been investigated
for any offense and that it was only when police officers showed up
at her residence with a warrant of arrest that she learned of the
pending case against her. She wonders why she has been charged
before the Sandiganbayan when she is not in government service.
A) What "before-trial" remedy would you invoke in Angela’s behalf to
address the fact that she had not been investigated at all, and how
would you avail of this remedy? (2013 BAR Question)
 I will file a motion for the conduct of preliminary investigation or
reinvestigation and the quashal or recall of the warrant of arrest in the
Court where the case is pending with an additional prayer to suspend the
arraignment.
Under Section 6, Rule 112 of the Rules of Court, after filing of the
complaint or information in court without a preliminary investigation, the
accused may within five days from the time he learns of its filing ask for a
preliminary investigation with the same right to adduce evidence in his
defense.
Moreover, Section 26, Rule 114 of the Rules of Criminal Procedure
provides that an application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea. The court shall resolve the
matter as early as practicable as but not later than the start of the trial of
the case.
You are the defense counsel of Angela Bituin who has been charged
under RA 3019 (Anti-Graft and Corrupt Practices Act) before the
Sandiganbayan. While Angela has posted bail, she has yet to be
arraigned. Angela revealed to you that she has not been investigated
for any offense and that it was only when police officers showed up
at her residence with a warrant of arrest that she learned of the
pending case against her. She wonders why she has been charged
before the Sandiganbayan when she is not in government service.
B) What "during-trial" remedy can you use to allow an early
evaluation of the prosecution evidence without the need of
presenting defense evidence; when and how can you avail of this
remedy? (2013 BAR Question)
I will file first a motion for leave of court to file a demurrer within five
(5) days from the time the prosecution rested its case. If the same is
granted, then I will now file a demurrer to evidence within ten (10)
days (Sec. 23, Rule 119).
This remedy would allow the evaluation of the sufficiency of
prosecution’s evidence without the need of presenting defense
evidence. It may be done through the court’s initiative or upon
motion of the accused and after the prosecution rested its case
(Sec. 23, Rule 119).
The mutilated cadaver of a woman was discovered near a creek. Due
to witnesses attesting that he was the last person seen with the
woman when she was still alive, Carlito was arrested within five
hours after the discovery of the cadaver and brought to the police
station. The crime laboratory determined that the woman had been
raped. While in police custody, Carlito broke down in the presence of
an assisting counsel and orally confessed to the investigator that he
had raped and killed the woman, detailing the acts he had
performed up to his dumping of the body near the creek. He was
genuinely remorseful. During the trial, the State presented the
investigator to testify on the oral confession of Carlito. Is the oral
confession admissible as evidence, of guilt? (2008 BAR QUESTION)
 No, the oral confession is not admissible as evidence of
guilt of Carlito because he was already under arrest and in
police custody when he made the extrajudicial confession
and the mandates of Rep. Act No. 7438, particularly
Sections 2, par. (d), have not been complied with. Non-
compliance with said par. (d) of the law expressly renders
the extrajudicial confession inadmissible as evidence in
any proceeding.
He was not informed of his right to be warned and he was
not informed of the Miranda right particularly the right to
remain silent. Additionally, it does not appear that counsel
present was his counsel of choice.
 When does a public prosecutor conduct an
inquest instead of a preliminary investigation?
(2017 BAR QUESTION)
 Under the Rules of Criminal Procedure, the public prosecutor
conducts an inquest instead of a preliminary investigation when a
person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation. [S6 R112]
 As Cicero was walking down a dark alley one midnight, he
saw an "owner-type jeepney" approaching him. Sensing that
the occupants of the vehicle were up to no good, he darted
into a corner and ran. The occupants of the vehicle -
elements from the Western Police District - gave chase and
apprehended him.
The police apprehended Cicero, frisked him and found a
sachet of 0.09 gram of shabu tucked in his waist and a
Swiss knife in his secret pocket, and detained him
thereafter. Is the arrest and body-search legal? (2010 BAR
QUESTION)
 NO. The arrest and the body-search were not legal.
In this case, Cicero did not run because the occupants of the vehicle
identified themselves as police officers. He darted into the corner
and ran upon the belief that the Occupants of the vehicle were up to
no good. Cicero's act of running does not show any reasonable
ground to believe that a crime has been committed or is about to be
committed for the police officers to apprehend him and conduct
body search. Hence, the arrest was illegal as it does not fall under
any of the circumstances for a valid warrantless arrest provided in
Sec. 5 of Rule 113 of the Rules of Criminal Procedure.
 X was arrested for the alleged murder of a 6-year Old lad. He was
read his Miranda rights immediately upon being apprehended.
In the course of his detention, X was subjected to three hours of non-
stop interrogation. He remained quiet until, on the 3rd hour, he
answered "yes" to the question of whether "he prayed for forgiveness
for shooting down the boy." The trial court interpreting X's answer as
an admission of guilt, convicted him.
On appeal, X's counsel faulted the trial court in its interpretation of
his client's answer, arguing that X invoked his Miranda rights when
he remained quiet for the first two hours of questioning. Rule on the
assignment of error. (2010 BAR QUESTION)
 The assignment of error invoked by X's counsel is
impressed with merit since there has been no
express waiver of X's Miranda rights. In order to have
a valid waiver of the Miranda rights, the same must
be in writing and made in the presence of his
counsel.
The uncounseled extrajudicial confession of X being
without a valid waiver of his Miranda rights, is
inadmissible, as well as any information derived
therefrom.
An information for murder was filed against Rapido. The RTC judge, after
personally evaluating the prosecutor's resolution, documents and parties'
affidavits submitted by the prosecutor, found probable cause and issued a
warrant of arrest. Rapido's lawyer examined the rollo of the case and
found that it only contained the copy of the information, the submissions
of the prosecutor and a copy of the warrant of arrest. Immediately,
Rapido's counsel filed a motion to quash the arrest warrant for being void,
citing as grounds:
A) The judge before issuing the warrant did not personally conduct a searching
examination of the prosecution witnesses in violation of his client's constitutionally-
mandated rights;
B) There was no prior order finding probable cause before the judge issued the
arrest warrant.
May the warrant of arrest be quashed on the grounds cited by Rapido's
counsel? State your reason for each ground. (2015 BAR QUESTION)
NO, the warrant of arrest may not be quashed based on the grounds cited
by Rapido’s counsel. In the issuance of a warrant of arrest, the mandate
of the Constitution is for the judge to personally determine the existence
of probable cause. The words “personal determination,” was interpreted
by the Supreme Court in Soliven v. Makasiar, (G.R. No. 82585, November
14, 1988, 167 SCRA 393, 406), as the exclusive and personal
responsibility of the issuing judge to satisfy himself, as to the existence of
probable cause. What the law requires as personal determination on the
part of a judge is that he should not rely solely on the report of the
investigating prosecutor. Thus, personal examination of the complainant
and his witnesses is, thus, not mandatory and indispensable in the
determination of probable cause for the issuance of a warrant of arrest
(People v. Joseph “Jojo” Grey, G.R. No. 10109, July 26, 2010). At any rate,
there is no law or rule that requires the Judge to issue a prior Order
finding probable cause before the issuance of a warrant of arrest.
 Hercules was walking near a police station when a
police officer signaled for him to approach. As soon
as Hercules came near, the police officer frisked him
but the latter found no contraband. The police officer
told Hercules to get inside the police station. Inside
the police station, Hercules asked the police officer,
"Sir, may problema po ba?" Instead of replying, the
police officer locked up Hercules inside the police
station jail. (2015 BAR QUESTION)
A) What is the remedy available to Hercules to secure
his immediate release from detention?
 The remedy available to Hercules is to file a petition
for habeas corpus questioning the illegality of his
warrantless arrest. The writ of habeas corpus shall
extend to all cases of illegal confinement or detention
by which any person is deprived of his liberty (Section
1, Rule 102, Rules of Court).
Hercules may also apply for bail. Under Section 17
(c), Rule 114 of the Rules of Court, 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.
 Under Section 5, Rule 113 a warrantless arrest is allowed when an
offense has just been committed and the peace officer has probable
cause to believe, based on his personal knowledge of facts or
circumstances, that the person to be arrested has committed it. A
policeman approaches you for advice and asks you how he will
execute a warrantless arrest against a murderer who escaped after
killing a person. The policeman arrived two (2) hours after the killing
and a certain Max was allegedly the killer per information given by a
witness. He asks you to clarify the following: (2016 BAR QUESTION)
A) How long after the commission of the crime can he still execute
the warrantless arrest?
 In executing a warrantless arrest under Section 5, Rule 113, the Supreme Court held
that the requirement that an offense has just been committed means that there must
be a large measure of immediacy between the time the offense was committed and the
time of the arrest (Joey M. Pestilos v. Moreno Generoso, G.R. No. 182601, November
10, 2014). If there was an appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be secured. In any case, personal
knowledge by the arresting officer is an indispensable requirement to the validity of a
valid warrantless arrest. The exact period varies on a case to case basis.
In People v. Gerente (G.R. Nos. 95847-48, March 10, 1993), the Supreme Court ruled
that a warrantless arrest was validly executed upon therein accused three (3) hours
after the commission of the crime.
In People v. Tonog, Jr. (G.R. No. 94533. February 4, 1992), the Supreme Court likewise
upheld the valid warrantless arrest which was executed on the same day as the
commission of the crime.
However, in People v. Del Rosario (G.R. No. 127755. April 14, 1999, 365 Phil. 292), the
Supreme Court held that the warrantless arrest effected a day after the commission of
the crime is invalid. In Go v. Court of Appeals (G.R. No. 101837, February 11, 1992),
Supreme Court also declared invalid a warrantless arrest effected 6 days after the
commission of the crime.
 Under Section 5, Rule 113 a warrantless arrest is allowed when an
offense has just been committed and the peace officer has probable
cause to believe, based on his personal knowledge of facts or
circumstances, that the person to be arrested has committed it. A
policeman approaches you for advice and asks you how he will
execute a warrantless arrest against a murderer who escaped after
killing a person. The policeman arrived two (2) hours after the killing
and a certain Max was allegedly the killer per information given by a
witness. He asks you to clarify the following: (2016 BAR QUESTION)
B) What does "personal knowledge of the facts and circumstances
that the person to be arrested committed it" mean?
The phrase “personal knowledge of the facts and circumstances that
the person to be arrested committed it” means that matters in
relation to the supposed commission of the crime were within the
actual perception, personal evaluation or observation of the police
officer at the scene of the crime. Thus, even though the police officer
has not seen someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation of the
circumstances at the scene of the crime, he could determine the
existence of probable cause that the person sought to be arrested
has committed the crime; however, the determination of probable
cause and the gathering of facts or circumstances should be made
immediately after the commission of the crime in order to comply
with the element of immediacy.
Give at least two instances when a peace officer or a
private person may make a valid warrantless arrest.
(2017 Bar Question)
Under Section 5, Rule 113 of the Rules of Court, a peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
 A was charged with a non-bailable offense. At the
time when the warrant of arrest was issued, he was
confined in the hospital and could not obtain a valid
clearance to leave the hospital. He filed a petition for
bail saying therein that he be considered as having
placed himself under the jurisdiction of the court.
May the court entertain his petition? Why or why not?
(2012 BAR QUESTION)
 NO, the court may not entertain his petition as he has not yet been
placed under arrest. A must be “literally” placed under the custody
of the law before his petition for bail could be entertained by the
court (Miranda vs. Tuliao, G.R. No. 158763, March 31, 2006)
or
YES, a person is deemed to be under the custody of the law either
when he has been arrested or has surrendered himself to the
jurisdiction of the court. the accused who is confined in a hospital
may be deemed to be in the custody of the law if he clearly
communicates his submission to the court while he is confined in
the hospital. (Paderanga vs. Court of Appeals, G.R. No. No. 115407,
August 28, 1995).
 A was charged with murder in the lower court. His Petition for Bail
was denied after a summary hearing on the ground that the
prosecution had established a strong evidence of guilt. No Motion for
Reconsideration was filed from the denial of the Petition for Bail.
During the reception of the evidence of the accused, the accused
reiterated his petition for bail on the ground that the witnesses so far
presented by the accused had shown that no qualifying aggravating
circumstance attended the killing. The court denied the petition on
the grounds that it had already ruled that: (i) the evidence of guilt is
strong; (ii) the resolution for the Petition for Bail is solely based on
the evidence presented by the prosecution; and (iii) no Motion for
Reconsideration was filed from the denial of the Petition for Bail.
(2014 BAR QUESTION)
A) If you are the Judge, how will you resolve the incident?
 If I were the Judge, I would grant the second Petition for Bail. Under
Section 7, Rule 114, Rules of Court, no person charged with a capital
offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution. In this
case, the evidence of guilt for the crime of murder is not strong, as
shown by the prosecution’s failure to prove the circumstance that will
qualify the crime to, and consequently convict the accused of,
murder. Accordingly, the accused should be allowed to post bail
because the evidence of his guilt is not strong (Sec. 13, Art. III, 1987
Constitution). Besides, it is settled that an Order granting bail is
merely interlocutory which cannot attain finality (Pobre v. People, G.
R. No. 141805, July 8, 2015).
 A was charged with murder in the lower court. His Petition for Bail
was denied after a summary hearing on the ground that the
prosecution had established a strong evidence of guilt. No Motion for
Reconsideration was filed from the denial of the Petition for Bail.
During the reception of the evidence of the accused, the accused
reiterated his petition for bail on the ground that the witnesses so far
presented by the accused had shown that no qualifying aggravating
circumstance attended the killing. The court denied the petition on
the grounds that it had already ruled that: (i) the evidence of guilt is
strong; (ii) the resolution for the Petition for Bail is solely based on
the evidence presented by the prosecution; and (iii) no Motion for
Reconsideration was filed from the denial of the Petition for Bail.
(2014 BAR QUESTION)
B) Suppose the accused is convicted of the crime of homicide and
the accused filed a Notice of Appeal, is he entitled to bail?
YES. The accused is entitled to bail subject to the discretion
of the Court. Under Section 5, Rule 114, Rules of Court, the
appellate Court may allow him to post bail because the Trial
Court in convicting him, changed the nature of the offense
from non- bailable to bailable. Be that as it may, the denial
of bail pending appeal is a matter of wise discretion since
after conviction by the trial court, the presumption of
innocence terminates and, accordingly, the constitutional
right to bail ends. (Jose Antonio Leviste v. Court of Appeals,
G.R. No. 189122, March 17, 2010).
 A was charged before the Sandiganbayan with a crime of plunder, a non-
bailable offense, where the court had already issued a warrant for his
arrest. Without A being arrested, his lawyer filed a Motion to Quash Arrest
Warrant and to Fix Bail, arguing that the allegations in the information did
not charge the crime of plunder but a crime of malversation, a bailable
offense. The court denied the motion on the ground that it had not yet
acquire jurisdiction over the person of the accused and that the accused
should be under the custody of the court since the crime charged was
non-bailable. The accused’s lawyer counter- argued that the court can rule
on the motion even if the accused was at-large because it had jurisdiction
over the subject matter of the case. According to said lawyer, there was no
need for the accused to be under the custody of the court because what
was filed was a Motion to Quash Arrest and to Fix Bail not a Petition for
Bail. (2014 BAR QUESTION)
A) If you are the Sandiganbayan, how will you rule on the motion?
 I will grant the Motion to quash the warrant of arrest but I will deny the
Motion to fix bail. A motion to fix bail is essentially an application for bail
(People v. Bucalon, G.R. No. 176933, October 2, 2009). Relative thereto,
bail is the security for the release of the person in the custody of the law
(Sec. 1, Rule 114). The Rules use the word “custody” to signify that bail is
only available for someone who is under the custody of the law (Peter
Paul Dimatulac v. Hon. Sesinando Villon, G.R. No. 127107, October 12,
1998). Hence, A cannot seek any judicial relief if he does not submit his
person to the jurisdiction of the Sandiganbayan.
On the other hand, the Sandiganbayan may grant the Motion to quash the
warrant of arrest. It is well settled that adjudication of a motion to quash a
warrant of arrest requires neither jurisdiction over the person of the
accused nor custody of law over the body of the accused. Otherwise
stated, an accused can invoke the processes of the court even if he is not
in the custody of the law (Jose C. Miranda v. Virgilio M. Tuliao, G.R. No.
158763, March 31, 2006). Thus, Sandiganbayan may grant the Motion to
quash the warrant of arrest.
 A was charged before the Sandiganbayan with a crime of plunder, a non-
bailable offense, where the court had already issued a warrant for his
arrest. Without A being arrested, his lawyer filed a Motion to Quash Arrest
Warrant and to Fix Bail, arguing that the allegations in the information did
not charge the crime of plunder but a crime of malversation, a bailable
offense. The court denied the motion on the ground that it had not yet
acquire jurisdiction over the person of the accused and that the accused
should be under the custody of the court since the crime charged was
non-bailable. The accused’s lawyer counter- argued that the court can rule
on the motion even if the accused was at-large because it had jurisdiction
over the subject matter of the case. According to said lawyer, there was
no need for the accused to be under the custody of the court because
what was filed was a Motion to Quash Arrest and to Fix Bail not a Petition
for Bail. (2014 BAR QUESTION)
B) If the Sandiganbayan denies the motion, what judicial remedy should
the accused undertake?
 The accused may file a Motion for
Reconsideration. If the same is denied, the
accused may resort to a Petition for Certiorari
under Rule 65 directly to the Supreme Court.
 A was charged before the Sandiganbayan with a crime of plunder, a non-
bailable offense, where the court had already issued a warrant for his
arrest. Without A being arrested, his lawyer filed a Motion to Quash Arrest
Warrant and to Fix Bail, arguing that the allegations in the information did
not charge the crime of plunder but a crime of malversation, a bailable
offense. The court denied the motion on the ground that it had not yet
acquire jurisdiction over the person of the accused and that the accused
should be under the custody of the court since the crime charged was
non-bailable. The accused’s lawyer counter- argued that the court can rule
on the motion even if the accused was at-large because it had jurisdiction
over the subject matter of the case. According to said lawyer, there was no
need for the accused to be under the custody of the court because what
was filed was a Motion to Quash Arrest and to Fix Bail not a Petition for
Bail. (2014 BAR QUESTION)
B) If the Sandiganbayan denies the motion, what judicial remedy should
the accused undertake?
 The accused may file a Motion for
Reconsideration. If the same is denied, the
accused may resort to a Petition for Certiorari
under Rule 65 directly to the Supreme Court.
 An indigent mother seeks assistance for her 14-year
old son who has been arrested and detained for
malicious mischief. Would an application for bail be
the appropriate remedy or is there another remedy
available? Justify your chosen remedy and outline the
appropriate steps to take. (2013 BAR QUESTION)
 YES. An application for bail is an appropriate remedy
to secure provisional remedy of the 14-year old boy.
Under the Rules, bail is a matter of right before or
even after conviction before the MTC which has
jurisdiction over the crime of malicious mischief (Sec.
4, Rule 114). Consequently, bail can be posted as a
matter of right.
 Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed,
she called up the nearby police station. PO 1 Remus and P02 Romulus proceeded to
the condo unit identified by Paz. PO 1 Remus knocked at the door and when a man
opened the door, POI Remus and his companions introduced themselves as police
officers. The man readily identified himself as Oasis Jung and gestured to them to come
in. Inside, the police officers saw a young lady with her nose bleeding and face swollen.
Asked by P02 Romulus what happened, the lady responded that she was beaten up by
Oasis Jung. The police officers arrested Oasis Jung and brought him and the young lady
back to the police station. PO1 Remus took the young lady's statement who identified
herself as AA. She narrated that she is a sixteen-year-old high school student; that
previous to the incident, she had sexual intercourse with Oasis Jung at least five times
on different occasions and she was paid P5,000.00 each time and it was the first time
that Oasis Jung physically hurt her. P02 Romulus detained Oasis Jung at the station's
jail. After the inquest proceeding, the public prosecutor filed an information for Violation
of R.A. No. 9262 (Anti-VAWC Law) for physical violence and five separate Informations
for violation of R.A. No. 7610 (The Child Abuse Law). Oasis Jung's lawyer filed a motion
to be admitted to bail but the court issued an order that approval of his bail bond shall
be made only after his arraignment. (2015 BAR QUESTION)
A) Did the court properly impose that bail condition?
 NO. The court did not properly impose the bail condition. The Rules of
Criminal Procedure do not require the arraignment of the accused as a
prerequisite to the conduct of the bail hearing. A person is allowed to file
a petition for bail as soon as he is deprived of his liberty by virtue of his
arrest or voluntary surrender. An accused need not wait for his
arraignment before filing the petition for bail (Serapio v. Sandiganbayan,
G.R. No. 149116, January 28, 2003).
Moreover, the condition that the approval of bail bonds shall be made
only after arraignment would place the accused in a position where he
has to choose between: (1) filing a motion to quash (the Information) and
thus delay his release on bail because until his motion to quash can be
resolved, his arraignment cannot be held; and (2) foregoing the filing of a
motion to quash (the Information) so that he can be arraigned at once
and thereafter be released on bail (Lavides v. Court of Appeals, G.R. No.
129670, February 1, 2000).
 Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed,
she called up the nearby police station. PO 1 Remus and P02 Romulus proceeded to
the condo unit identified by Paz. PO 1 Remus knocked at the door and when a man
opened the door, POI Remus and his companions introduced themselves as police
officers. The man readily identified himself as Oasis Jung and gestured to them to come
in. Inside, the police officers saw a young lady with her nose bleeding and face swollen.
Asked by P02 Romulus what happened, the lady responded that she was beaten up by
Oasis Jung. The police officers arrested Oasis Jung and brought him and the young lady
back to the police station. PO1 Remus took the young lady's statement who identified
herself as AA. She narrated that she is a sixteen-year-old high school student; that
previous to the incident, she had sexual intercourse with Oasis Jung at least five times
on different occasions and she was paid P5,000.00 each time and it was the first time
that Oasis Jung physically hurt her. P02 Romulus detained Oasis Jung at the station's
jail. After the inquest proceeding, the public prosecutor filed an information for Violation
of R.A. No. 9262 (Anti-VAWC Law) for physical violence and five separate Informations
for violation of R.A. No. 7610 (The Child Abuse Law). Oasis Jung's lawyer filed a motion
to be admitted to bail but the court issued an order that approval of his bail bond shall
be made only after his arraignment. (2015 BAR QUESTION)
C) After his release from detention on bail, can Oasis Jung still question the validity of
his arrest?
 YES. Oasis Jung can still question the validity of his
arrest even after his release from detention on bail.
Under Section 26, Rule 114 of the Rules of Court, an
application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or
the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of
a preliminary investigation of the charge against him,
provided that he raises them before entering his
plea.
When is bail a matter of judicial discretion?
(2017 BAR QUESTION)
 Bail is a matter of judicial discretion:
1) Before conviction by the RTC of an offense
punishable by death, reclusion perpetua, or life
imprisonment.
2) After conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment.
 Juancho entered a plea of guilty when he was arraigned under an
information for homicide. To determine the penalty to be imposed,
the trial court allowed Juancho to present evidence proving any
mitigating circumstance in his favor. Juancho was able to establish
complete self-defense.
Convinced by the evidence adduced by Juancho, the trial court
rendered a verdict of acquittal. May the Prosecution assail the
acquittal without infringing the constitutional guarantee against
double jeopardy in favor of Juancho? Explain your answer. (2017 BAR
QUESTION)
 YES, the Prosecution may assail the acquittal without infringing upon the
constitutional guarantee against double jeopardy.
Under the Rules of Criminal Procedure, a requirement for a first jeopardy
to attach is that there must have been a valid plea by the accused. Said
rules also provide that when the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed withdrawn and a plea of
guilty shall be entered for him.
Here Juancho’s plea of guilty was deemed withdrawn when he presented
exculpatory evidence to the effect that he acted in self-defense. Hence, a
plea of guilty should have been entered for him by the court, which
however was not done.
Since there was no standing plea, a first jeopardy did not attach and thus
the Prosecution may assail the acquittal without infringing upon Juancho’s
right against double jeopardy. (People v. Balisacan, 31 August 1966)
Which of the following distinguishes a motion to quash from a
demurrer to evidence? (2013 BAR QUESTION)
A) A motion to quash a complaint or information is filed before the
prosecution rests its case.
B) A motion to quash may be filed with or without leave of court, at
the discretion of the accused.
C) When a motion to quash is granted, a dismissal of the case will
not necessarily follow.
D) The grounds for a motion to quash are also grounds for a
demurrer to evidence.
E) The above choices are all wrong.
 (C) When a motion to quash is granted, a
dismissal of the case will not necessarily follow.
 The information against Roger Alindogan for the crime of acts of
lasciviousness under Article 336 of the Revised Penal Code avers:
• "That on or about 10:30 o'clock in the evening of February 1, 2010
at Barangay Matalaba, Imus, Cavite and within the jurisdiction of
this Honorable Court, the above-named accused, with lewd and
unchaste design, through force and intimidation, did then and
there, wilfully, unlawfully and feloniously commit sexual abuse on
his daughter, Rose Domingo, a minor of 11 years old, either by
raping her or committing acts of lasciviousness on her, against her
will and consent to her damage and prejudice.
ACTS CONTRARY TO LAW."
The accused wants to have the case dismissed because he believes
that the charge is confusing and the information is defective. What
ground or grounds can he raise in moving for the quashal of the
information? Explain. (2016 Bar Question)
 The accused may move to quash the information based on any of the
following grounds: (a) That the facts charged do not constitute an offense;
(b) That it does not conform substantially to the prescribed form; and (c)
That more than one offense is charged except when a single punishment
for various offenses is prescribed by law (Section 3 Rule 117, Rules of
Criminal Procedure).
In People v. dela Cruz (G.R. Nos. 135554-56, June 21, 2002, 383 SCRA
410); the Supreme Court ruled that the phrase “either by raping her or
committing acts of lasciviousness” does not constitute an offense since it
does not cite which among the numerous sections or subsections of R.A.
No. 7610 has been violated by accused-appellant. Moreover, it does not
state the acts and omissions constituting the offense, or any special or
aggravating circumstances attending the same, as required under the
rules of criminal procedure. These are conclusions of law, and not facts.
Thus, the information violated accused’s constitutional right to be
informed of the nature and cause of the accusation against him and
therefore should be quashed on the ground that the information charges
acts that do not constitute an offense.
Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion that
he was keeping prohibited drugs in his clutch bag. When Boy Maton was searched
immediately after the arrest, the officer found and recovered 10 sachets of shabu
neatly tucked in the inner linings of the clutch bag. At the time of his arrest, Boy Maton
was watching a basketball game being played in the town plaza, and he was cheering
for his favorite team. He was subsequently charged with illegal possession of dangerous
drugs, and he entered a plea of not guilty when he was arraigned.
During the trial, Boy Maton moved for the dismissal of the information on the ground
that the facts revealed that he had been illegally arrested. He further moved for the
suppression of the evidence confiscated from him as being the consequence of the
illegal arrest, hence, the fruit of the poisonous tree.
The trial court, in denying the motions of Boy Maton, explained that at the time the
motions were filed Boy Maton had already waived the right to raise the issue of the
legality of the arrest. The trial court observed that, pursuant to the Rules of Court, Boy
Maton, as the accused, should have assailed the validity of the arrest before entering
his plea to the information. Hence, the trial court opined that any adverse consequence
of the alleged illegal arrest had also been equally waived.
Comment on the ruling of the trial court. (2017 BAR QUESTION)
 The ruling of the court denying the motion for dismissal of the information on
the ground of illegal arrest is proper.
Under the Rules of Criminal Procedure, the accused’s failure to file a motion to
quash before plea is a waiver of the objection to lack of personal jurisdiction or
of the objection to an illegal arrest. [S9 R117]
Here Boy Maton entered a plea without filing a motion to quash on the ground of
lack of personal jurisdiction. Hence he is deemed to have waived the ground of
illegal arrest which is subsumed under lack of personal jurisdiction.
However, the ruling denying the motion to suppress evidence is not correct.
The Supreme Court has held that a waiver of an illegal, warrantless arrest does
not carry with it a waiver of the inadmissibility of evidence seized during an
illegal warrantless arrest. [People v. Racho, 3 Aug 2010]. A waiver of an illegal
arrest is not a waiver of an illegal search. [Villanueva v. People, 17 Nov 2014,
Sereno, C.J.] The Constitution provides that evidence seized in violation of the
right against illegal search is inadmissible in evidence.
Hence the evidence seized was by virtue of an illegal search since the arrest
was illegal. Hence such evidence may be suppressed.
 Bembol was charged with rape. Bembol’s father, Ramil,
approached Artemon, the victim’s father, during the
preliminary investigation and offered P1 Million to Artemon
to settle the case. Artemon refused the offer.
During the pre-trial, Bembol personally offered to settle the
case for P1 Million to the private prosecutor, who
immediately put the offer on record in the presence of the
trial judge.
Is Bembol’s offer a judicial admission of his guilt? (2008
BAR QUESTION)
 NO. The offer is not a judicial admission of guilt
because it has not been reduced in writing or signed
by the accused. The Rule on pre-trial in criminal
cases (Rule 118, Sec. 2, Rules of Court) requires that
all agreements or admissions made or entered
during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel,
otherwise, they cannot be used against the accused.
Maria was accused of libel. While Maria was on the witness stand, the
prosecution asked her to write her name and to sign on a piece of paper,
apparently to prove that she authored the libelous material. Maria
objected as writing and signing her name would violate her right against
self- incrimination. Was Maria’s objection proper? (2013 BAR Question)
A. No, she can be cross examined just like any other witness and her
sample signature may be taken to verify her alleged authorship of the
libelous statements.
B. No, her right against self-incrimination is waived as soon as she
became a witness.
C. No, this privilege may be invoked only by an ordinary witness and not
by the accused when she opts to take the witness stand.
D. The objection was improper under all of A, B, and C.
E. The objection was proper as the right to self-incrimination is a
fundamental right that affects liberty and is not waived simply
because the accused is on the witness stand.
(E) The objection was proper as the right to self-
incrimination is a fundamental right that affects
liberty and is not waived simply because the
accused is on the witness stand.
 At the Public Attorney's Office station in Taguig where you are
assigned, your work requires you to act as public defender at the
local Regional Trial Court and to handle cases involving indigents.
A) In one criminal action for qualified theft where you are the
defense attorney, you learned that the woman accused has been in
detention for six months, yet she has not been to a courtroom nor
seen a judge. What remedy would you undertake to address the
situation and what forum would you use to invoke this relief? (2013
BAR QUESTION)
 Section 1 (e), Rule 116 provides, 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 three
(3) days from the filing of the information or complaint. The accused
shall be arraigned within ten (10) days from the date of the raffle.
The pre-trial conference of his case shall be held within ten (10) days
after arraignment. If the accused is not under preventive detention,
the arraignment shall be held within thirty (30) days from the date
the court acquires jurisdiction over the person of the accused (Sec. 1
(g), Rule116).
Since the accused has not been brought for arraignment within the
limit required in the aforementioned Rule, the Information may be
dismissed upon motion of the accused invoking his right to speedy
trial (Sec. 9, Rule 119) or to a speedy disposition of cases (Sec. 16,
Art. III, 1987 Constitution).
 At the Public Attorney's Office station in Taguig where you
are assigned, your work requires you to act as public
defender at the local Regional Trial Court and to handle
cases involving indigents.
B) In another case, also for qualified theft, the detained
young domestic helper has been brought to court five times
in the last six months, but the prosecution has yet to
commence the presentation of its evidence. You find that
the reason for this is the continued absence of the
employer-complainant who is working overseas. What
remedy is appropriate and before which forum would you
invoke this relief? (2013 BAR QUESTION)
 I will file a motion to dismiss the information in the
court where the case is pending on the ground of
denial of the accused’s right to speedy trial (Sec. 9,
Rule 119; Tan v. People, G.R. No. 173637, April 21,
2009).
This remedy can be invoked, at any time, before trial
and if granted will result to an acquittal. Since the
accused has been brought to Court five times and in
each instance it was postponed, it is clear that her
right to a Speedy Trial has been violated.
Enumerate the requisites of a "trial in absentia”
and a “promulgation of judgment in absentia"
(2010 BAR QUESTION)
 The requisites of a valid trial in absentia are: (1) accused's
arraignment; (2) his due notification of the trial; and (3) his
unjustifiable failure to appear during trial (Bemardo v. People, G.R.
No. 166980, April 4, 2007).
The requisites for a valid promulgation of judgment are:
1) A valid notice of promulgation of judgment,
2) Said notice was duly furnished to the accused, personally or thru
counsel;
3) Accused failed to appear on the scheduled date of promulgation
of judgment despite due notice;
4) Such judgment be recorded in the criminal docket; and
5) Copy of said judgment had been duly served upon the accused or
his counsel
Jaime was convicted for murder by the Regional Trial Court of Davao
City in a decision promulgated on September 30, 2015. On October
5, 2015, Jaime filed a Motion for New Trial on the ground that errors
of law and irregularities prejudicial to his rights were committed
during his trial. On October 7, 2015, the private prosecutor, with the
conformity of the public prosecutor, filed an Opposition to Jaime's
motion. On October 9, 2015, the court granted Jaime's motion. On
October 12, 2015, the public prosecutor filed a motion for
reconsideration. The court issued an Order dated October 16, 2015
denying the public prosecutor's motion for reconsideration. The
public prosecutor received his copy of the order of denial on October
20, 2015 while the private prosecutor received his copy on October
26, 2015. (2015 BAR QUESTION)
A) What is the remedy available to the prosecution from the court's
order granting Jaime's motion for new trial?
 The remedy of the prosecution is to file a petition for
certiorari under Rule 65 of the Rules of Court, because the
denial of a motion for reconsideration is merely an
interlocutory order and there is no plain, speedy and
adequate remedy under the course of law. Be that as it may,
it may be argued that appeal is the appropriate remedy from
an order denying a motion for reconsideration of an order
granting a motion for new trial because an order denying a
motion for reconsideration was already removed in the
enumeration of matters that cannot be a subject of an
appeal under Section 1, Rule 41 of the Rules of Court.
Jaime was convicted for murder by the Regional Trial Court of Davao
City in a decision promulgated on September 30, 2015. On October
5, 2015, Jaime filed a Motion for New Trial on the ground that errors
of law and irregularities prejudicial to his rights were committed
during his trial. On October 7, 2015, the private prosecutor, with the
conformity of the public prosecutor, filed an Opposition to Jaime's
motion. On October 9, 2015, the court granted Jaime's motion. On
October 12, 2015, the public prosecutor filed a motion for
reconsideration. The court issued an Order dated October 16, 2015
denying the public prosecutor's motion for reconsideration. The
public prosecutor received his copy of the order of denial on October
20, 2015 while the private prosecutor received his copy on October
26, 2015. (2015 BAR QUESTION)
C) Who should pursue the remedy?
 The office of the Solicitor General should pursue the remedy. In
criminal proceedings on appeal in the Court of Appeals or in the
Supreme Court, the authority to represent the people is vested solely
in the Solicitor General. Under Presidential Decree No. 478, among
the specific powers and functions of the OSG is to “represent the
government in the Supreme Court and the Court of Appeals in all
criminal proceedings.” This provision has been carried over to the
Revised Administrative Code particularly in Book IV, Title III, Chapter
12 thereof. Without doubt, the OSG is the appellate counsel of the
People of the Philippines in all criminal cases (Cariño v. de Castro,
G.R. No. 176084, April 30, 2008)
A PDEA asset/informant tipped the PDEA Director Shabunot that a shabu laboratory was operating in a house at Sta. Cruz,
Laguna, rented by two (2) Chinese nationals, Ho Pia and Sio Pao. PDEA Director Shabunot wants to apply for a search warrant,
but he is worried that if he applies for a search warrant in any Laguna court, their plan might leak out. (2012 BAR QUESTION)
A) Where can he file an application for search warrant?
B) What documents should he prepare in his application for search warrant?
C) Describe the procedure that should be taken by the judge on the application.
D) Suppose the judge issues the search warrant worded in this way:
“PEOPLE OF THE PHILIPPINES Plaintiff -versus-
Ho Pia and Sio Pao, Accused.
Criminal Case No. 007 for Violation of R.A. 9165
x- - - - - - - - - - - - - - - - - - - - - -x
TO ANY PEACE OFFICER
Greetings:
It appearing to the satisfaction of the undersigned after examining under oath PDEA Director Shabunot that there is probable cause to believe
that violations of Section 18 and 16 of R.A. 9165 have been committed and that there are good and sufficient reasons to believe that Ho Pia
and Sio Pao have in their possession or control, in a two (2) door apartment with an iron gate located at Jupiter St., Sta. Cruz, Laguna,
undetermined amount of "shabu" and drug manufacturing implements and paraphernalia which should be seized and brought to the
undersigned,
You are hereby commanded to make an immediate search, at any time in the day or night, of the premises above described and forthwith
seize and take possession of the abovementioned personal property, and bring said property to the undersigned to be dealt with as the law
directs.
Witness my hand this 1st day of March, 2012.”
Cite/enumerate the defects, if any, of the search warrant.
E) Suppose the search warrant was served on March 15, 2012 and the search yielded the described contraband and a case
was filed against the accused in RTC, Sta. Cruz, Laguna and you are the lawyer of Sio Pao and Ho Pia, what will you do?
F) Suppose an unlicensed armalite was found in plain view by the searchers and the warrant was ordered quashed, should the
court order the return of the same to the Chinese nationals?
Explain your answer.
A) They may apply for the search warrant in any court within the judicial region where the
crime was committed. They may also apply for the search warrant before the Executive
Judge or Vice Executive Judge of the RTC of Manila or Quezon City.
B) They must prepare the application for search warrant and the affidavits of the complainant
and any witnesses.
C) The judge must personally examine the complainant and the witnesses, in the form of
searching questions and in writing under oath, on facts personally known to them. Their
sworn statements shall be attached to the record. And if the judge is satisfied of the
existence of probable cause, he may issue the search warrant.
D) (1) The search warrant failed to particularly describe the place to be searched and the
things to be seized (Rule 126, Sec.4, Rules of Court).
(2) The search warrant commanded the immediate search, at any time in the day or night.
The general rule is that a search warrant must be served in the day time (Rule 126, Sec.8,
Revised Rules on Criminal Procedure), or that portion of the twenty-four hours in which a
man’s person and countenance are distinguishable (17 C.J. 1134). By way of 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). There is no showing that the exception applies.
E) I would file a Motion to Quash the Search Warrant, on grounds that it was implemented
beyond 10 days or its period of validity. The Rules provide that a search warrant shall only
be valid for 10 days, and shall thereafter be void.
F) NO, the court should not return the unlicensed firearm because it is contraband.
 A search warrant was issued for the purpose of looking for
unlicensed firearms in the house of Ass-asin, a notorious gun for
hire. When the police served the warrant, they also sought the
assistance of barangay tanods who were assigned to look at other
portions of the premises around the house. In a nipa hut thirty (30)
meters away from the house of Ass-asin, a Barangay tanod came
upon a kilo of marijuana that was wrapped in newsprint. He took it
and this was later used by the authorities to charge Ass-asin with
illegal possession of marijuana. Ass-asin objected to the introduction
of such evidence claiming that it was illegally seized. Is the objection
of Ass-asin valid? (2014 BAR QUESTION)
 Ass-asin’s objection is valid. The search warrant directed for the
search of unlicensed firearms in Ass-asin’s house. The marijuana
having been found 30 meters away from the specified place in the
search warrant makes it illegally obtained for having been seized
without warrant.
Even if it were found within the place described in the search
warrant, it was still seized illegally, as it does not fall under any of the
exceptions to the prohibition against warrantless searches.
Jurisprudence provides that for an object to be validly seized under
the plain view doctrine, it must be immediately ascertainable that
the object is illegal. Having been wrapped in newsprint, the
marijuana could not have been immediately ascertainable as illegal.
Therefore, it cannot be considered validly seized in plain view.
Policemen brought Lorenzo to the Philippine General
Hospital (PGH) and requested one of its surgeons to
immediately perform surgery on him to retrieve a
packet of 10 grams of shabu which they alleged was
swallowed by Lorenzo. Suppose the PGH agreed to,
and did perform the surgery, is the package of shabu
admissible in evidence? Explain. (2010 BAR
QUESTION)
 YES, it is admissible in evidence because the
constitutional right against self- incrimination is
addressed only to extracting testimonial admission of
guilt from the suspect where otherwise no
incriminating evidence exists. In the past, the
Supreme Court has already declared many invasive
and involuntary procedures (i.e. examination of
women's genitalia, expulsion of morphine from one's
mouth, DNA testing) as constitutionally sound (See
Agustin v. Court of Appeals, G.R. No. 162571, June
15, 2005).
 The search warrant authorized the seizure of
“undetermined quantity of shabu.” During the service of the
search warrant, the raiding team also recovered a kilo of
dried marijuana leaves wrapped in newsprint. The accused
moved to suppress the marijuana leaves as evidence for
the violation of Section 11 of the Comprehensive Dangerous
Drugs Act of 2002 since they were not covered by the
search warrant. The State justified the seizure of the
marijuana leaves under the “plain view” doctrine. There was
no indication of whether the marijuana leaves were
discovered and seized before or after the seizure of the
shabu. If you are the judge, how would you rule on the
motion to suppress? (2008 BAR QUESTION)
 The motion to suppress evidence must be granted. The
search warrant violates the constitutional and statutory
requirement that it should particularly describe the person or
things to be seized (Sec. 2, Art. Ill, Constitution; Sec. 2, Rule
126, Revised Rules of Criminal Procedure). Further, there was
no showing that the marijuana was discovered or seized
before the shabu was seized; even if they were discovered or
seized before the shabu was
The plain view doctrine cannot be invoked. Jurisprudence
provides that to validly invoke the “plain view doctrine”, it
must be immediately ascertainable that the object is illegal.
Having been wrapped in newsprint, the marijuana could not
have been immediately ascertainable as illegal. Therefore, it
cannot be considered validly seized in plain view.
 In the course of serving a search warrant,
the police finds an unlicensed firearm. Can
the police take the firearm even if it is not
covered by the search warrant? If the
warrant is subsequently quashed, is the
police required to return the firearm?
Explain briefly. (2007 BAR QUESTION)
YES, the police may take with him the “unlicensed” firearm although
not covered by the search warrant. Possession of an “unlicensed
firearm” is a criminal offense and the police officer may seize an
article which is the “subject of an offense.” This is especially so
considering that the “unlicensed firearm” appears to be in “plain
view” of the police officer when he conducted the search.
Even if the warrant was subsequently quashed, the police is not
mandated to return the “unlicensed firearm.” The quashal of the
search warrant did not affect the validity of the seizure of the
“unlicensed firearm.” Moreover, returning the firearm to a person
who is not otherwise allowed by law to possess the same would be
tantamount to abetting a violation of the law.