1

PRELIMINARY CHAPTER the initiative of private parties but to

the officials and agents of the law.
 What is criminal procedure? Resort is made to secret inquiry to
discover the culprit, and violence and
Criminal procedure is the method prescribed torture are often employed to extract
by law for the apprehension and prosecution confessions. The judge is not limited
of persons accused of any criminal offense to the evidence brought before him
and for their punishment, in case of but could proceed with his own inquiry
conviction. which was not confrontative.
2. Accusatorial – The accusation is
 What is criminal procedure concerned exercised by every citizen or by a
with? member of the group to which the
injured party belongs. As the action is
Criminal procedure is concerned with the a combat between the parties, the
procedural steps through which the criminal supposed offender has the right to be
case passes, commencing with the initial confronted by his accuser. The battle
investigation of a crime and concluding with in the form of a public trial is judged
the unconditional release of the offender. It by a magistrate who renders a verdict.
is a generic term used to describe the The essence of the accusatorial
network of laws and rules which govern the system is the right to be
procedural administration of criminal justice. presumed innocent. To defeat this
presumption, the prosecution must
What are the sources of criminal establish proof of guilt beyond
procedure? reasonable doubt (moral certainty).
3. Mixed – This is a combination of the
1. Spanish Law of Criminal Procedure inquisitorial and accusatorial systems.
2. General Order No. 58, dated April 23 The examination of defendants and
1900 other persons before the filing of the
3. Amendatory acts passed by the complaint or information is
Philippine Commission inquisitorial.
4. The various quasi acts, the Philippine
Bill of 1902, the Jones Law of 1916, The judicial set-up in the Philippines is
the Tydings-McDuffie Law, and the accusatorial or adversary in nature.
Constitution of the Philippines It contemplates two contending parties
5. The Rule of Court of 1940, and the before the court, which hears them
1964, 1985, and 1988 Rules on impartially and renders judgment only
Criminal Procedure after trial.
6. Various Republic Acts (RA 240,
Judiciary Act, RA 8249 creating the  Distinguish between criminal law and
Sandiganbayan, Speedy Trial Act) criminal procedure.
7. Presidential Decrees
8. 1987 Constitution, particularly Art. III Criminal law is substantive; it defines crimes,
Bill of Rights treats of their nature, and provides for their
9. Civil Code (Art. 32, 33, 34) punishment. Criminal procedure, on the
10.Certain judicial decisions other hand, is remedial or procedural; it
11.RA 8393 The Speedy Trial Act provides for the method by which a person
12.Circulars accused of a crime is arrested, tried and
13.The Revised Rules on Criminal punished. Criminal law declares what acts
Procedure (Dec 1, 2000) are punishable, while criminal procedure
provides how the act is to be punished.
 What are the three systems of
criminal procedure?
 How are the rules of criminal
1. Inquisitorial – the detection and procedure construed?
prosecution of offenders are not left to
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The rules of criminal procedure shall be  What is jurisdiction over the subject
liberally construed in favor of the accused matter?
and strictly against the state to even the
odds in favor of the accused against whom It is the power to hear and determine cases
the entire machinery of the state is of the general class to which the proceedings
mobilized. in question belong and is conferred by the
sovereign authority which organizes the
 What is jurisdiction? court and defines its powers.

Jurisdiction (in general) is the power or  Which law determines the jurisdiction
authority given by the law to a court or of the court – the law in force at the
tribunal to hear and determine certain time of the commission of the offense
controversies. It is the power of courts to or the one in force as of the time when
hear and determine a controversy involving the action is filed?
rights which are demandable and
enforceable. Jurisdiction is determined by the law as of
the time when the action is filed, not when
 Distinguish jurisdiction from venue. the offense was committed. The exception
to this rule is where jurisdiction is dependent
Venue is defined as the particular country or on the nature of the position of the accused
geographical area in which a court with at the time of the commission of the offense.
jurisdiction may hear and determine a case. In this case, jurisdiction is determined by the
It means the place of trial. On the other law in force at the time of the commission of
hand, jurisdiction is the power of the court to the offense.
decide the case on the merits. Venue is thus
procedural, while jurisdiction is substantive.  What is adherence of jurisdiction?
In civil cases, venue may be waived or
stipulated by the parties. On the other hand, The principle of Adherence of Jurisdiction
jurisdiction is granted by law or the means that once jurisdiction is vested in the
Constitution and cannot be waived or court, it is retained up to the end of the
stipulated. litigation. It remains with the court until the
case is finally terminated. The exception to
 What is criminal jurisdiction? this is where:

Criminal jurisdiction is the authority to hear a subsequent statute changing the

and try a particular offense and impose the jurisdiction of a court is given retroactive
punishment for it. effect, it can divest a court of jurisdiction
over cases already pending before it before
 What are the elements of jurisdiction the effectivity of the statute.
in criminal cases?
 A was charged with an offense whose
1. The nature of the offense and/or the penalty was below 6 years. The case
penalty attached thereto was filed with the MTC. After trial, the
2. The fact that the offense has been MTC convicted him of an offense with a
committed within the territorial higher penalty. A questioned the
jurisdiction of the court. conviction, claiming that the MTC had
no jurisdiction over the offense since
 What are the requisites for a valid the penalty prescribed for it was higher
exercise of criminal jurisdiction? than 6 years. Is A correct?

1. Jurisdiction over the person A is wrong. Jurisdiction over the subject

2. Jurisdiction over the territory matter is determined by the authority of the
3. Jurisdiction over the subject matter court to impose the penalty imposable given
the allegation in the information. It is not
determined by the penalty that may be
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meted out to the offender after trial but to of those falling under the jurisdiction
the extent of the penalty which the law of the Sandiganbayan.
imposes for the crime charged in the 2. Other laws which specifically lodge
complaint. jurisdiction in the RTC:

 If during the proceedings, the court a. Law on written defamation or

finds that it has no jurisdiction, how libel
should it proceed? b. Decree on Intellectual Property
c. Dangerous Drugs Cases except
Where the court has no jurisdiction, lower where the offenders are under
courts should simply dismiss the case. On 16 and there are Juvenile and
the other hand, the Supreme Court and the Domestic Relations Courts in
Court of Appeals may refer the case to the the province
court of proper jurisdiction.
3. Appellate jurisdiction over all cases
 What is the jurisdiction of Municipal decided by MTCs in their respective
Trial Courts in criminal cases? territorial jurisdiction.
4. In areas where there are no family
1. Exclusive original jurisdiction over all courts, the cases falling under the
violations of city or municipal jurisdiction of family courts shall be
ordinances committed within their adjudicated by the RTC
respective territorial jurisdiction;
2. Exclusive original jurisdiction over all  What is the meaning of the term
offenses punishable with “regular courts”?
imprisonment not exceeding 6
years regardless of the fine and other Regular courts refer to civil courts as
accessory penalties and civil liability opposed to military courts or courts martial.
3. Offenses involving damage to Military courts have no jurisdiction over
property through criminal civilians.
negligence
4. Where the only penalty provided by  Which court has jurisdiction over a
law is a fine: exclusive original complex crime?
jurisdiction over offenses punishable
with a fine not exceeding P4,000 Jurisdiction over the whole complex crime is
5. Election offenses: Failure to register lodged with the trial court having jurisdiction
or failure to vote to impose the maximum and more serious
6. Special Jurisdiction to hear and decide penalty on an offense forming part of the
petitions for a writ of habeas corpus complex crime.
or application for bail in the province
or city where the RTC judge is  What is territorial jurisdiction?
absent
7. BP 22 (?) The requirement of territorial jurisdiction
means that a criminal action should be filed
 What is the jurisdiction of Regional in the place where the crime was committed,
Trial Courts in criminal cases? except in those cases provided by Article 2 of
the Revised Penal Code.
1. Exclusive original jurisdiction in all
criminal cases not within the exclusive  How is jurisdiction over the person of
jurisdiction of any court, tribunal or the accused acquired?
body, except those falling under the
exclusive and concurrent jurisdiction Jurisdiction over the person of the accused is
of the Sandiganbayan.  All criminal acquired upon his arrest or upon his
cases where the penalty is higher than voluntary appearance or submission to the
6 years, including government-related court.
cases wherein the accused is not one
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 Can jurisdiction over the person of purpose of conducting the requisite
the accused be waived? preliminary investigation.
(b) For all other offenses, by filing the
Yes, unlike jurisdiction over the offense complaint or information directly with the
which is conferred by law or the Constitution, MTC or the complaint with the office of the
jurisdiction over the person of the accused prosecutor.
may be waived. For example, any objection
to the procedure leading to the arrest must  What is the effect of the institution of
be opportunely raised before the accused the criminal action on the period of
enters his plea, or it is deemed waived. prescription of the offense?

 X was charged in court with an The institution of the criminal action shall
offense. X filed a motion to quash on interrupt the running of the period of
the ground that the court had no prescription of the offense unless otherwise
jurisdiction over his person because the provided in special laws. The rule does not
arrest was illegal and because the apply to violations of municipal ordinances
information was incomplete. Can X and special laws. The prescriptive periods
invoke lack of jurisdiction of the court for violations of special laws are interrupted
over his person? only by the institution of judicial proceedings
for their investigation and punishment, while
No, X cannot invoke the lack of jurisdiction of violations of municipal ordinances prescribe
the court. One who desires to object to the after two months.
jurisdiction of the court over his person must
appear in court for that purpose only, and if  Distinguish “institution” from
he raises other questions, he waives the “commencement” of an action.
objection.
For offenses which require a preliminary
 Is the presence of the accused investigation, the criminal action is instituted
necessary in order for the court to act by filing the complaint for preliminary
on a motion? investigation. The criminal action is
commenced when the complaint or
It is not necessary for the court to first information is filed in court.
acquire jurisdiction over the person of the
accused to dismiss a case or grant other  Can the offended party go directly to
relief. The outright dismissal of the case court to file a criminal action?
even before the court acquires jurisdiction
over the person of the accused is allowed, No. Before a complaint is filed in court, there
except in applications for bail, in which case, should have been a confrontation between
the presence of the accused is mandatory. 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.

RULE 110 PROSECUTION OF OFFENSES  Are there exceptions when the

parties may go directly to court?
 How are criminal actions instituted?
1. Where the accused is under detention
Criminal actions shall be instituted as 2. Where a person has otherwise been
follows: deprived of personal liberty calling for
habeas corpus proceedings
(a) For offenses where a preliminary 3. Where actions are coupled with
investigation is required, by filing the provisional remedies
complaint with the proper officer for the
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4. Where the action may be barred by decision, to inform the accused of the nature
the statute of limitations and cause of the accusation to allow him to
present his defense, and so that nobody will
 When are amicable settlements not forget the charge, given the fallibility of
allowed? human memory.

1. Where one party is the government  What is a complaint?

2. Where one party is a public officer or
employee and the dispute relates to A complaint is a sworn written statement
the performance of his official charging a person with an offense,
functions subscribed by the offended party, any peace
3. Offenses punishable by imprisonment officer, or other public officer charged with
exceeding 1 year or a fine exceeding the enforcement of the law violated.
P5,000
4. Where there is no private offended  Who may file a complaint?
party
5. Where the dispute involves real The complaint may be filed by the offended
properties located in different cities or party, any peace officer, or other public
municipalities officer charged with the enforcement of the
6. Disputes involving parties who reside law violated.
in different barangays, cities, or
municipalities  Who is the “offended party”?
7. Other cases which the President may
determine in the interest of justice or The offended party is the person actually
upon the recommendation of the injured or whose feeling is offended. He is
Secretary of Justice. the one to whom the offender is also civilly
liable under Article 100 of the RPC.
 What is the form required for the
complaint or information?  If the offended party dies before he is
able to file a complaint, can his heirs
The complaint or information shall be in file it in his behalf?
writing, in the name of the People of the
Philippines and against all persons who No. The right to file a criminal action is
appear to be responsible for the offense personal and abates upon the death of the
involved. offended party. It is not transmissible to the
heirs.
 Why should a complaint or  Can you file a criminal complaint
information be in the name of the against a juridical person?
People of the Philippines?
No, a criminal action cannot lie against a
Criminal actions must be commenced in the juridical person. It the corporation violates
name of the People because just as a crime the law, the officer, through whom the
is an outrage against the peace and security corporation acts, answers criminally for his
of the people at large, so must its vindication acts.
be in the name of the People. However, it
the action is instituted in the name of the  May criminal prosecutions be
offended party or of a particular city, the enjoined?
defect is merely of form and may be cured at
any state of the trial. No. Public interest requires that criminal
acts must be immediately investigated and
 Why should the complaint or prosecuted for the protection of society.
information be in writing?
 What are the exceptions to the rule
The complaint or information should be in that criminal prosecutions may not be
writing so that the court has a basis for its enjoined?
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1. To afford adequate protection to  What is an information?

constitutional rights of the accused
2. When necessary for the orderly An information is an accusation in writing
administration of justice or to avoid charging a person with an offense,
oppression or multiplicity of actions subscribed by the prosecutor and filed with
3. Where there is a prejudicial question the court.
which is subjudice
4. When the acts of the officer are  What is the difference between a
without or in excess of authority complaint and an information?
5. Where the prosecution is under an
invalid law, ordinance, or regulation COMPLAINT INFORMATION
6. When double jeopardy is clearly May be signed by the Always signed by
apparent offended party, any prosecuting officer
7. Where the court had no jurisdiction peace officer, or other
over the offense public officer charged
8. Where it is a case of persecution with the enforcement
of the law violated
rather than prosecution
Sworn to by the Need not be under oath
9. Where the charges are manifestly person signing it since the prosecuting
false and motivated by the lust for officer filing it is already
vengeance acting under his oath of
10.When there is clearly no prima facie office
case against the accused and a May be filed either Always filed with the
motion to quash on that ground has with the office of the court
been denied prosecutor or with the
11.Preliminary injunction has been issued court
by the Supreme Court to prevent the
threatened unlawful arrest of  Who must prosecute criminal actions?
petitioners.
The general rule is that all criminal actions
 If the complaint is not sworn to by commenced by the filing of a complaint or
the offended party, is it void? information shall be prosecuted under the
direction and control of the prosecutor.
No. A complaint presented by a private However, in the Municipal Trial Courts and
person when not sworn to by him is not Municipal Circuit Trial Courts, if the
necessarily void. The want of an oath is a prosecutor is not available, the offended
mere defect of form which does not affect party, any peace officer, or other officer
the substantial rights of the defendant on the charged with the enforcement of the law
merits. violated may prosecute. This authority
ceases upon actual intervention by a
 When is a complaint required? prosecutor or upon elevation of the case to
the RTC.
A sworn written complaint is required if the
offense is one which cannot be prosecuted  Can a prosecutor be compelled to file
de officio, or is private in nature a particular complaint or information?
(adultery, concubinage, abduction,
seduction, acts of lasciviousness, defamation No. A prosecutor is under no compulsion to
consisting in the imputation of any of the file a particular criminal information where
above offenses), or where it pertains to those he is not convinced that he has evidence to
cases which need to be endorsed by support the allegations thereof. The exercise
specific public authorities (Anti-Dummy of such judgment and discretion may
Board with respect to the Anti-Dummy Law, generally not be compelled by mandamus,
National Water and Air Pollution Control except if the prosecutor shows evident bias
Commission with respect to the Anti-Pollution in filing the information and refuses to
Law). include a co-accused without justification.
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But before filing for mandamus to compel a
fiscal to include another co-accused in the No, he cannot refuse to prosecute. He is
information, the party must first avail himself obliged by law to proceed and prosecute the
of other remedies such as the filing of a criminal action. He cannot impose his
motion for inclusion. opinion on the court.

 To whom should you appeal the  What is the distinction between the
decision of the prosecutor? control by the prosecution and the
control by the court?
The decision of the prosecutor may be
modified by the Secretary of Justice or in Before a case is filed in court, the
special cases by the President of the prosecution has control over the following:
Philippines.
1. What case to file
 Is the prosecutor required to be 2. Whom to prosecute
physically present in the trial of a 3. The manner of prosecution
criminal case? 4. The right to withdraw the case before
arraignment even without notice and
According to People v. Beriales (1976 hearing.
case), he should be present. If he is not
physically present, it cannot be said that the
prosecution was under his direction and After a case is filed in court, the court has
control. control over the following:

But in People v. Malinao and Bravo v. CA, 1. The suspension of arraignment

it was held that the proceedings are valid 2. Reinvestigation
even without the physical presence of the 3. Prosecution by the prosecutor
Fiscal who left the prosecution to the private 4. Dismissal
prosecutor under his supervision and control. 5. Downgrading of the offense or
dropping of the accused even before
 After the case is filed in court, to plea
whom should a motion to dismiss be
addressed?

Once the information is filed in court, the

court acquires jurisdiction. Whatever
disposition the prosecutor may feel should
be proper in the case thereafter should be
addressed for the consideration of the court,  What are the limitations on the
subject only to the limitation that the court control by the Court?
should not impair the substantial rights of
the accused or the right of the people to due (SINNATRa)
process.
1. Prosecution is entitled to Notice of
 Where should a motion for hearing
reinvestigation be filed? 2. The Court must Await the result of a
petition for review
After a complaint or information has already 3. The prosecution’s stand to maintain
been filed in court, a motion for prosecution should be Respected by
reinvestigation should be addressed to the the court
trial judge and to him alone. 4. The ultimate Test of the court’s
independence is where the prosecutor
 If, after he has filed the case, the files a motion to dismiss or withdraw
prosecutor thinks that a prima facie the information
case exists, can he refuse to prosecute?
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5. The Court has authority to review the it is the law which confers jurisdiction upon
Secretary’s recommendation and the courts.
reject if it there is grave abuse of
discretion.  Can the father file a complaint on
6. To reject or grant a motion to dismiss, behalf of his daughter for concubinage?
the court must make its own
Independent assessment of the No. The rule allowing the parents,
evidence. grandparents, and guardians to file a
7. Judgment is void if there is No complaint on behalf of the minor applies only
independent assessment and finding to the offenses of seduction, abduction, and
of grave abuse of discretion. acts of lasciviousness. A complaint for
adultery or concubinage may be filed only by
 What are the crimes that must be the offended spouse.
prosecuted upon complaint of the
offended party?  If the offended party in abduction,
seduction, and acts of lasciviousness is
1. Adultery and concubinage of age, can her parents file the
2. Seduction, abduction, acts of complaint for her?
lasciviousness
3. Defamation which consists in the No. If the offended party is already of age,
imputation of an offense mentioned she has the exclusive right to file the
above complaint unless she becomes incapacitated.
 What is a private crime? The parents, grandparents, and guardian
only have exclusive, successive authority to
Private offenses are those which cannot be file the case if the offended party is still a
prosecuted except upon complaint filed by minor.
the aggrieved party. Strictly speaking, there
is no such thing as a private offense since all  If the offended party dies during the
offenses are an outrage against the State. pendency of the case, is the criminal
They are denominated as private offenses liability of the accused extinguished?
only to give deference to the offended party
who may prefer not to file the case instead of No.
going through the scandal of a public trial.
 X filed a sworn complaint for acts of
 After a complaint for a private crime lasciviousness before the prosecutor.
has been filed in court, what is the Before the prosecutor could file the
effect of pardon by the offended party? case in court, X died. Can the
prosecutor still file the information in
The pardon by the offended party will not court?
have any effect on the prosecution of the
offense. Once a complaint has been filed in Yes. The desire of X to file the case is
court, jurisdiction over the offense will be evident by her filing of her sworn complaint
acquired and will continue to be exercised by with the prosecutor.
the court until termination of the case.
 An information for robbery with rape
 What is the meaning of the statement was filed against X. X moved to dismiss
that compliance with the rule is the information on the ground that
jurisdictional? there was no complaint filed by the
offended party. Should the case be
This means that the complaint filed by the dismissed?
offended party is what starts the
prosecution, without which the courts cannot No. In robbery with rape, the complaint of
exercise their jurisdiction. Compliance with the offended party is not necessary since the
the rule does not confer jurisdiction because offense of robbery is not a private offense.
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The prosecution can be commenced without No. The two crimes have elements that are
the complaint of the offended party. different from each other. To convict X of
theft under an information that alleges
 When is a complaint or information estafa would violate his right to be informed
deemed sufficient? of the nature and cause of the accusation
against him.
A complaint or information is sufficient if it
states:  X was charged with rape committed
through force and intimidation. Can he
1. the name of the accused be convicted of rape where the woman
2. the designation of the offense given is deprived of reason or is otherwise
by the statute unconscious?
3. the acts or omissions complained of as
constituting the offense No. Where the law distinguishes between
4. the name of the offended party two cases of violation of its provision, the
5. the approximate date of the complaint or information must specify under
commission of the offense which of the two cases the defendant is
6. the place of the commission of the being charged.
offense
 In what case can an accused not be
 When is the error in the name of the convicted of a crime different from that
accused not fatal to an information? designated in the complaint or
information even if the recitals allege
Error in the name of the accused will not the commission of the crime?
nullify the information if it contains sufficient
description of the person of the accused. If it involves:

 When should the error in the name or 1. a change of the theory of the trial
identity be raised by the accused? 2. requires of the defendant a different
defense
The error should be raised before 3. surprises the accused in any way
arraignment, or else it is deemed waived.
 X was accused of illegal possession of
 X was charged with homicide. Can he firearms, but the information did not
be possibly be convicted of murder? allege that X did not have any license to
Yes. If the recitals in the complaint or possess the firearm. Is the information
information of the acts and omissions valid?
constituting the offense actually allege
murder, X can be convicted of murder. This No. The absence of the license is an
is because it is the recital of facts and not essential element of the offense. Therefore,
the designation of the offense that is it should be alleged in the complaint or
controlling. information.

 X was charged with estafa, but the  X was charged with illegal possession
recital of facts actually alleges theft. of opium. X contends that the
Can X be convicted of theft? information was invalid for failure to
allege that he did not have a
Yes, because it is the recital, not the prescription from a physician. Is X
designation of the offense that is controlling. correct?

 X was charged with estafa, and the No. The absence of the prescription is not an
recital of facts allege estafa. Can X be essential element of the offense and is only a
convicted of theft? matter of defense. It need not be alleged in
the information.
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 What are the offenses in which the  X fired his gun once, but the bullet
particular place where the offense was killed two persons. He was charged
committed is essential? with two counts of homicide in one
information. Can he be convicted under
1. Violation of domicile that information?
2. Penalty on the keeper, watchman,
visitor of opium den Yes. It falls under the exception to the rule.
3. Trespass to dwelling This is a compound crime in which one act
4. Violation of election law (prohibiting results in two or more grave or less grave
the carrying of a deadly weapon within felonies. The law provides only one penalty
a 30-meter radius of polling places) for the two offenses.

 What are the offenses in which the  X was charged with both robbery and
time of the commission of the offense is estafa in one information. Can he be
essential? convicted of both offenses?

1. Infanticide It depends. If he objects to the duplicitous

2. Violation of Sunday Statutes (Election information before arraignment, he cannot
Law) be convicted under the information. But if
3. Abortion he fails to object before arraignment, he can
be convicted of as many offenses as there
 In what case is the name of the are in the information.
offended party dispensable?

In offenses against property, the name of the

offended party may be dispensed with as
long as the object taken or destroyed is  What is the principle of absorption?
particularly described to property identify the
offense. In cases of rebellion, other crimes committed
in the course of the crime are deemed
 In what cases is the name of the absorbed in the crime of rebellion either as a
offended party indispensable? means necessary for its commission or as an
unintended effect of rebellion. They cannot
Slander, robbery with violence or be charged as separate offenses in
intimidation. themselves. The exception is when the
common crimes are committed without any
 What is the rule on duplicity of political motivation. In such a case, they will
offenses? not be absorbed by rebellion.

A complaint or information must charge only  If homicide or murder is committed

one offense, except when the law provides with the use of an unlicensed firearm,
only one punishment for various offenses how many offenses are there?
(compound and complex crimes under Art.
48 of the RPC and special complex crimes). There is only one offense – murder or
homicide aggravated by the use of
 What is the effect of the failure of the unlicensed firearm. This is by special
accused to object to a duplicitous provision of RA 8294. (Dissenting opinion of
information? J. Sabio – How can you complex when one is
an RPC offense/malum in se and the other is
If the accused fails to object before a violation of a special law/malum
arraignment, the right is deemed waived, prohibitum?)
and he may be convicted of as many
offenses as there are charged.  X was speeding on a highway when
his car collided with another car. The
other car was totally wrecked and the
 11
driver of the other car suffered serious charging the proper offense, and the accused
physical injuries. How many cannot be convicted of the offense charged
informations or complaints should be or of any other offense necessarily included
filed against X? therein, provided that he will not be placed
in double jeopardy.
Only one information should be filed for
serious physical injuries and damage to  What are the distinctions between
property through reckless imprudence. The amendment and substitution?
information against X cannot be split into
two because there was only one negligent 1. Amendment may involve either formal
act resulting in serious physical injuries and or substantial changes, while
damage to property. substitution necessarily involves a
substantial change.
 Same case, but the injuries suffered 2. Amendment before plea can be
by the driver were only slight physical effected without leave of court, but
injuries. How many informations should substitution is always done with leave
be filed? of court since it involves the dismissal
of the original complaint.
Two informations – one for the slight physical 3. Where the amendment is only as to
injuries and the other for damage to form, there is no need for a new
property. Light felonies cannot be preliminary investigation or plea; in
complexed. substitution, another preliminary
investigation and plea is required.
 When can a complaint or information 4. An amended information refers to the
be amended? same offense charged or to one which
necessarily includes or is necessarily
BEFORE PLEA, a complaint or information can included in the original charge, hence
be amended in form or in substance without substantial amendments after plea
leave of court, except if the amendment will cannot be made over the objection of
downgrade the offense or drop an accused the accused. Substitution requires
from the complaint or information. In such a that the new information is for a
case, the following requisites must be different offense which does not
observed: include or is not necessarily included
in the original charge.
1. must be made upon motion of the
prosecutor  When are the rights of the accused
2. with notice to the offended party prejudiced by an amendment?
3. with leave of court
4. the court must state its reason in 1. When a defense which he had under
resolving the motion the original information would no
5. copies of the resolution should be longer be available
furnished all parties, expecially the 2. When any evidence which he had
offended party under the original information would
no longer be available
AFTER PLEA, only formal amendments may 3. When any evidence which he had
be made only with leave of court and when it under the original information would
can be done without causing prejudice to the not longer be applicable to the
rights of the accused. amended information

 When can a complaint or information  What are substantial amendments?

be substituted?
After plea, substantial amendments are
A complaint or information may be prohibited. These are amendments involving
substituted if at any time before judgment, it the recital of facts constituting the offense
appears that a mistake has been made in
 12
and determinative of the jurisdiction of the
court. All other matters are merely of form.  Where should a criminal action be
instituted?
 Is an additional allegation of habitual
delinquency and recidivism a a. In the court of the municipality or territory
substantial amendment? where the offense was committed or where
any of its essential ingredients occurred
No. These allegations only relate to the (Exception: Sandiganbayan cases)
range of the imposable penalty but not the
nature of the offense. b. If committed in a train, aircraft, or other
public or private vehicle: in the court of any
 Is an additional allegation of municipality or territory where the vehicle
conspiracy a substantial amendment? passed during its trip, including the place of
departure or arrival
Yes because it changes the theory of the
defense. It makes the accused liable not c. If committed on board a vessel in the
only for his own acts but also for those of his course of its voyage: in the court of the first
co-conspirators. (Old J. Sabio answer) port of entry or of any municipality or
territory where the vessel passed during the
The new answer is: No, it is not a substantial voyage, subject to the generally accepted
amendment in the following example: X is principles of international law
charged with murder as principal. Later, the
complaint is amended to include two other d. Crimes committed outside the Phil but
persons who allegedly conspired with X. Can punishable under Article 2 of the RPC: any
X invoke double jeopardy on the ground that court where the action is first filed.
the amendment is substantial?  No. The
amendment is merely a formal amendment  What is a continuing or transitory
because it does not prejudice the rights of X, offense?
who was charged as a principal to begin
with. Transitory offenses are crimes where some
acts material and essential to the crimes and
 Is a change in the items stolen by the requisite to their commission occur in one
accused a substantial amendment? municipality or territory and some in
another. Continuing offenses are
Yes because it affects the essence of the consummated in one place, yet by the
imputed crime and would deprive the nature of the offense, the violation of the law
accused of the opportunity to meet all the is deemed continuing. Examples are estafa,
allegations in preparation of his defense. abduction, malversation, libel, kidnapping,
violation of BP22.
 Is a change in the nature of the
offense due to supervening event a  How do you determine jurisdiction
substantial amendment? over a continuing crime?

No, it is merely a formal amendment. 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.

 Can the court order the dismissal of  What are the rules on venue in libel
the original complaint before a new one cases?
is filed in substitution?
a. The criminal action for libel may be filed in
No. The court will not order the dismissal the RTC of the province or the city where the
until the new information is filed. libelous article is printed and first published.
 13
b. If the offended party is a private charged under Article 100 of the RPC shall be
individual, the criminal action may also be deemed instituted with the criminal action.
filed in the RTC of the province where he
actually resided at the time of the  What are the exceptions?
commission of the offense.
c. If the offended party is a public officer The civil action is not deemed instituted in
whose office is in Manila at the time of the the following cases:
commission of the offense, the criminal
action may be filed in the RTC of Manila. 1. When the offended party has waived
d. If the offended party is a public officer the civil action
whose office is outside Manila, the action 2. When the offended party has reserved
may be filed in the RTC of the province or the right to institute it separately
city where he held office at the time of the 3. When the offended party has
commission of the offense. instituted the civil action prior to the
institution of the criminal action
 Can the offended party intervene in
the prosecution of the criminal action?  What is the civil action that is
deemed instituted with the criminal
Yes, except if he has waived, has reserved action?
his right, or has already instituted the
criminal action. The reason for this rule is Only the civil action for the recovery of civil
because of Article 100 of the RPC which liability arising from the offense under Article
provides that every person criminally liable 100 of the RPC, not the independent civil
shall also be civilly liable and also because actions under Article 32, 33, 34 and 2176 of
there are certain offenses which cannot be the Civil Code.
prosecuted except upon complaint of the
offended party.  What is the dual concept of civil
liability?
 Do the offended parties have the
right to move for the dismissal of a This means that civil liability may arise from
case? crimes or from quasi-delicts. Thus, a
negligent act causing damage may produce
No. The right belongs only to the two kinds of civil liability – one arising from
government prosecutor who is the crime and another from quasi-delict. The
representative of the plaintiff. only limitation is that the offended party may
not recover twice from the same act.
 Can the offended party file a civil
action for certiorari in his own name if  What are the differences between a
the RTC dismisses an information? crime and a quasi-delict?

Yes. In case of grave abuse of discretion 1. Crimes affect public interest, while
amounting to lack of jurisdiction, the petition quasi-delicts are only of private
may be filed by the offended party because concern
the offended party has an interest in the civil 2. The RPC punishes or corrects the
aspect of the case. criminal act, while the Civil Code
merely repairs the damage by means
RULE 111 PROSECUTION OF CIVIL of indemnification
ACTION 3. Crimes are punished only if there is a
law providing for their punishment,
 What is the general rule? while quasi-delicts include all acts
where fault or negligence intervenes.
The general rule is when a criminal action is Therefore, quasi-delict is broader in
instituted, the civil action for the recovery of scope.
the civil liability arising from the offense
 What constitutes civil liability?
 14

According to Article 104 of the RPC, it After the criminal action has been
constitutes restitution, reparation, and commenced, the separate civil action arising
indemnification for consequential damages. therefrom cannot be instituted until final
judgment has been entered in the criminal
 What is the basis for the broader action.
concept of civil liability?
The broader concept of civil liability means If the criminal action is filed after the civil
that every person criminally liable is also action was instituted, the civil action shall be
civilly liable. This is because in a criminal suspended in whatever stage it may be
offense, there are two offended parties – the found before judgment on the merits. The
state and the private offended party. suspension shall last until final judgment is
rendered in the criminal action.
 If the complaint does not contain an
allegation of damages, is the offender Nonetheless, the civil action may be
still liable for them? consolidated with the criminal action at any
time before judgment on the merits upon
Yes because every person criminally liable is motion of the offended party with the court
also civilly liable. This is subject to the trying the criminal action. The evidence
exception when the offended party has presented at the civil action shall be deemed
waived or has reserved the right to institute reproduced in the criminal action without
the civil action separately. prejudice to the right of the prosecution to
cross-examine the witness presented by the
 When should the reservation be offended party in the criminal case and of
made? the parties to present additional evidence.
The consolidated criminal actions shall be
The reservation should be made before the tried and decided jointly.
prosecution presents its evidence and under
circumstances affording the offended party a Exception: When there is a prejudicial
reasonable opportunity to make such question in a previously filed civil action, it
reservation. should be resolved first.

 What is the reason for the rule  Are the independent civil actions also
requiring reservation? deemed suspended with the filing of the
criminal action?
The reason is to prevent double recovery
from the same act or omission. No. Only the civil action arising from the
crime under Article 100 is suspended. The
 Can the accused file a counterclaim in independent civil actions are not suspended
the criminal case? and may continue even if the criminal action
has been instituted. However, the offended
No. party may not recover twice from the same
act. He should only get the bigger award.
 In a BP 22 case, can the offended
party make a reservation of the civil  What is the effect of an acquittal on
action? the civil action?

No. The criminal action shall be deemed to The general rule is the civil action is not
include the civil action, and the offended necessarily extinguished by the acquittal of
party is not allowed to make the reservation. the accused. Even if the accused is
The actual damages and the filing fees shall acquitted, the court can still award civil
be equivalent to the value of the check. liability in the following cases:

 When is the separate civil action 1. When the acquittal is based on

suspended? reasonable doubt
 15
2. When there is a declaration in the accused may also be substituted for the
decision that the liability of the deceased.
accused is only civil
3. When the civil liability is not derived If the accused dies before arraignment, the
from or based on the criminal act of case shall be dismissed, without prejudice to
which the accused is acquitted. any civil action that the offended party may
file against the estate of the deceased.
However, if the decision contains a finding
that the act from which the civil liability may  When the defendant is absolved of
arise does not exist, the civil liability is civil liability in a civil action, can a
extinguished. criminal action still be filed against
him?
 Can you compel a judge by
mandamus to award civil damages? Yes. While every person criminally liable is
also civilly liable, the converse is not true.
Yes because every person criminally liable is Therefore, even if the defendant is absolved
also civilly liable and also because even if of civil liability in a civil action, a criminal
the accused is acquitted, there are cases action can still be filed against him. Besides,
when he is still civilly liable. the state is a party in a criminal action, while
only the private offended party is a party in
 What is the reason for allowing the the civil action. Moreover, the quantum of
civil liability to subsist in spite of the evidence in the civil action is only
acquittal of the accused? preponderance of evidence, while that
required in the criminal action is proof
This is because the parties in the criminal beyond reasonable doubt.
and civil action are different – in the criminal
action, the party is the state, while in the  What is a prejudicial question?
civil action, the party is the private offended
party. Also, the two actions required A prejudicial question is one based on a fact
different quantum of evidence. The criminal separate and distinct from the crime but is
action requires proof of guilt beyond so intimately related to it that it determines
reasonable doubt, while the civil action the guilt or innocence of the accused.
requires mere preponderance of evidence.
 What are the elements of a
 What are the independent civil prejudicial question?
actions?
1. The previously filed civil action
The independent civil actions are those involves an issue which is similar or is
provided in Articles 32, 33, 34, and 2176 of intimately related with an issue raised
the Civil Code. They may proceed in the subsequent criminal action
independently of the criminal action and 2. The resolution of the issue will
shall require only a preponderance of determine whether or not the criminal
evidence. action may proceed.

 What is the effect of the death of the  When is an action for annulment of
accused on the criminal and civil marriage prejudicial to a bigamy case?
actions?
An action for annulment of marriage is
If the accused dies after arraignment and prejudicial to a bigamy case only if the
during the pendency of the criminal action, accused in the bigamy charge is also the one
both the criminal and civil liability arising asking for annulment of the second
from the crime shall be extinguished. (bigamous) marriage based on vitiation of
However, the independent civil actions may consent. This is because in such a case, if
be filed against the estate of the accused the court declares that the party’s consent
after proper substitution, and the heirs of the was indeed vitiated and annuls the marriage,
 16
then it would also mean that the party did 4. To protect the state from having to
not willingly commit the crime of bigamy. It conduct useless and expensive trials.
would thus be determinative of the guilt or
innocence of the accused.  What is the scope of preliminary
investigation?
RULE 112 PRELIMINARY INVESTIGATION
Preliminary investigation is merely
 What is preliminary investigation? inquisitorial and it is often the only means of
discovering whether the offense has been
Preliminary investigation is an inquiry or committed and the persons responsible for it
proceeding to determine whether there is to enable the fiscal to prepare his complaint
sufficient ground to engender a well-founded or information. It is not a trial on the merits
belief that a crime has been committed and and has no purpose but to determine
the respondent is probably guilty thereof, whether there is probable cause to believe
and should be held for trial. that an offense has been committed and that
the accused is probably guilty of it. It does
 When is it required? not place the accused in jeopardy.

Before a complaint or information is filed,  Is the right to a preliminary

preliminary investigation is required for all investigation a fundamental right?
offenses punishable by imprisonment of at
least 4 years, 2 months, and 1 day, No, it is a statutory right and may be waived
regardless of the fine, except if the accused expressly or by silence. It is also not an
was arrested by virtue of a lawful arrest element of due process, unless it is expressly
without warrant. In such a case, the granted by law.
complaint or information may be filed
without a preliminary investigation unless  Can an accused demand the right to
the accused asks for a preliminary confront and cross-examine his
investigation and waives his rights under witnesses during the preliminary
Article 125 of the RPC. investigation?

 What is the purpose of a preliminary No. The preliminary investigation is not part
investigation? of the trial. It is summary and inquisitorial in
nature, and its function is not to determine
1. To determine if there is sufficient the guilt of the accused but merely to
ground to engender a well-founded determine the existence of probable cause.
belief that a crime has been
committed and the respondent is  Is the lack of a preliminary
probably guilty thereof, and should be investigation a ground for dismissing a
held for trial. complaint?
2. To protect the accused from the
inconvenience, expense, and burden No. The absence of a preliminary
of defending himself in a formal trial investigation does not affect the jurisdiction
unless the reasonable probability of of the court but merely the regularity of the
his guilt shall have been first proceedings. The court cannot dismiss the
ascertained in a fairly summary complaint on this ground, and it should
proceeding by a competent officer. instead conduct the investigation or order
the fiscal or lower court to do it.
3. To secure the innocent against hasty,
malicious and oppressive prosecution,  What is the effect of the absence of a
and to protect him from an open and certification that a preliminary
public accusation of a crime, from the investigation was conducted?
trouble, expenses and anxiety of a
public trial. It is of no consequence. What is important is
that there was actually an investigation, that
 17
the accused was informed thereof and was  What is the procedure in conducting a
allowed to present controverting evidence. preliminary investigation?

 When should the right to preliminary 1. The complaint shall state the address
investigation be invoked? of the respondent and shall be
accompanied by the affidavits of the
The accused should invoke it before plea, or complainants and his witnesses as
else, it is deemed waived. well as other documents to establish
probable cause. The affidavits must
 What if the court denies the be subscribed and sworn before the
invocation of the right to a preliminary prosecutor or government official
investigation, what is the remedy of the authorized to administer oath or
accused? notary public.
2. Within 10 days from the filing of the
He must immediately appeal it to the complaint, the investigating officer
appellate court. He cannot later raise the shall either:
issue for the first time on appeal.
a. dismiss it if he finds no ground
 If the complaint or information is to continue the investigation; or
amended, should a new preliminary b. issue a subpoena to the
investigation be conducted? respondent accompanied by the
complaint and affidavits.
No.  The respondent shall have
the right to examine the
 If the complaint or information is evidence, etc, etc.
substituted, should a new preliminary
investigation be conducted? 3. Within 10 days from receipt of the
subpoena, the respondent shall submit
Yes. his counter-affidavit, the affidavits of
his witnesses, and other documents in
 Who may conduct a preliminary his defense. Affidavits should also be
investigation? sworn and subscribed. The
respondent cannot file a motion to
1. Provincial or city prosecutors and their dismiss in lieu of a counter-affidavit.
assistants 4. If the respondent cannot be
2. Judges of the MTCs subpoenaed or if he fails to file his
3. National and Regional State counter-affidavit within 10 days, the
Presecutors investigating officer shall resolve the
4. Comelec with respect to election complaint based on the evidence
offenses submitted by the complainant.
5. Ombudsman with respect to 5. If there are facts and issued which
Sandiganbayan offenses and other need to be clarified, the investigating
offenses committed by public officers officer may set a hearing. The parties
6. PCGG with respect to ill-gotten wealth can be present, but they cannot cross-
cases examine. The hearing shall be held
within 10 days from the submission of
 Can RTC judges conduct a preliminary the counter-affidavits or from the
investigation? expiration of the period of their
submission. It shall be terminated
No. Although this should not be confused within 5 days.
with the authority of the RTC to conduct an 6. Within 10 days from the termination of
examination for the purpose of determining the investigation, the investigating
probable cause when issuing a warrant of officer shall determine whether or not
arrest. there is probable cause to hold the
respondent for trial.
 18
b. that there is reasonable ground
 Is a preliminary investigation a to believe that a crime has been
judicial proceeding? committed and that the
accused is probably guilty
Yes because there is an opportunity to be thereof;
heard and the production and weighing of c. that the accused was informed
evidence upon which a decision is rendered. of the complaint and of the
Since it is a judicial proceeding, the evidence against him;
requirement of due process in judicial d. that he was given an
proceedings is also required in preliminary opportunity to submit
investigations. controverting evidence.

 What is the difference between 2. If he finds no probable cause, he shall

criminal investigation and preliminary recommend the dismissal of the
investigation? complaint.
3. Within 5 days from his resolution, he
Criminal investigation is a fact-finding shall forward the record of the case to
investigation carried out by law-enforcement the provincial or city prosecutor of
officers for the purpose of determining chief state prosecutor of the
whether they should file a complaint for Ombudsman. They shall act on the
preliminary investigation. Preliminary resolution within 10 days from receipt
investigation is conducted for the purpose of and shall immediately inform the
determining if there is probable cause to parties of such action.
hold a person for trial. 4. No complaint of information may be
filed or dismissed by an investigating
 What is probable cause? prosecutor without the prior written
authority or approval of the provincial
Probable cause is the existence of such facts or city prosecutor or chief state
and circumstances as would excite the belief prosecutor or the Ombudsman.
in a reasonable mind, acting on the facts 5. If the investigating prosecutor
within the knowledge of the prosecutor, that recommends the dismissal of the
the person charged was guilty of the crime complaint, but his recommendation is
for which he was prosecuted. disapproved by the provincial or city
prosecutor or chief state prosecutor or
 Is the presence of counsel in the Ombudsman on the ground that
preliminary investigation mandatory? probable cause exists, the latter may
either:
No. Preliminary investigation is a summary
proceeding and is merely inquisitorial in a. by himself, file the information;
nature. The accused cannot yet invoke the or
full exercise of his rights. b. direct another assistant
prosecutor to file the
 How does the investigating information
prosecutor resolve the findings after
preliminary investigation? without need for a new preliminary
investigation.
1. If he finds probable cause to hold the 6. The Secretary of Justice may, upon
respondent for trial, he shall prepare petition by a proper party or by itself,
the resolution and certify under oath reverse or modify the resolution of the
in the information that: provincial or city prosecutor, the chief
state prosecutor, or the ombudsman.
a. he or an authorized officer has In such a case, he shall direct the
personally examined the prosecutor concerned to either file the
complainant and his witnesses; information without need for a new
preliminary investigation or to dismiss
 19
or move for its dismissal if already  Is the finding of a judge that probable
filed in court. cause exists for the purpose of issuing
 If there was no preliminary a warrant of arrest subject to judicial
investigation conducted, what is the review?
remedy of the accused?
No. It would be asking the court to examine
(RICA P) and assess such evidence as has been
submitted by the parties before trial and on
1. Refuse to enter plea the basis thereof, make a conclusion as
2. Insist on a preliminary investigation whether or not it suffices to establish the
3. File certiorari if refused guilt of the accused.
4. Raise it as an error on appeal
5. File a petition for prohibition  What is the remedy of the
complainant if the Secretary of Justice
 What should the Secretary of Justice does not allow the filing of a criminal
do if an information that has already complaint against the accused because
been filed in court is appealed to him? of insufficiency of evidence?

He should, as far as practicable, refrain from He can file a civil action for damages against
entertaining the appeal. The matter should the offender based on Article 35 of the Civil
be left to the determination of the Court. Code. This would require a mere
preponderance of evidence.
 If the Secretary of Justice gives due
course to the appeal, what should the  What are the remedies of a party
trial judge do? against whom a warrant of arrest has
been issued?
He should suspend proceedings and defer
arraignment pending the resolution of the 1. post bail
appeal. 2. ask for reinvestigation
3. petition for review
 Is the determination of probable 4. motion to quash the information
cause a judicial or executive function? 5. if denied, appeal the judgment after
trial
It depends. If it is made in a preliminary
investigation for the purpose of determining (no certiorari)
whether there is reasonable ground to
believe that the accused has committed the  What is the procedure in resolving a
offense and should be held for trial, it is an complaint when the preliminary
executive function. If it is made for the investigation is conducted by a judge?
issuance of a warrant of arrest by a judge, it
is a judicial function. 1. Within 10 days after the termination of
the preliminary investigation, the
 Can the accused file a motion to investigating judge shall transmit the
quash based on insufficiency of resolution of the case to the provincial
evidence? or city prosecutor, or to the
Ombudsman for appropriate action.
No. He cannot pre-empt trial by filing a 2. The resolution shall state the findings
motion to quash on the ground of of fact and law supporting his action
insufficiency of evidence. Whether the together with the record of the case
function of determining probable cause has which shall include:
been correctly discharged by the prosecutor
is a matter that the trial court itself does not a. the warrant if the arrest is by
and may not pass upon. virtue of a warrant
b. the affidavits, counter-affidavits,
and supporting evidence
 20
c. the undertaking or bail and the
order of release  What is a warrant of arrest?
d. the transcripts of the
proceedings A warrant of arrest is a legal process issued
e. the order of cancellation of the by competent authority, directing the arrest
bail bond if the resolution is for of a person or persons upon grounds stated
the dismissal of the complaint therein.

3. Within 30 days from the receipt of the  When may a warrant of arrest be
records, the provincial or city issued?
prosecutor or the Ombudsman shall
review the resolution of the judge. By the RTC

4. They shall act on the resolution, 1. Within 10 days from the filing of the
expressly and clearly stating the facts complaint or information, the judge
and the law on which it is based. shall personally evaluate the
5. The parties shall be furnished with resolution of the prosecutor and its
copies thereof. supporting evidence.
6. They shall order the release of an 2. He may immediately dismiss the case
accused who is detained if no probable if the evidence fails to establish
cause is found against him. probable cause.
3. If he finds probable cause, he shall
 What happens if the judge fails to issue a warrant of arrest or a
resolve the case within 10 days from commitment order if the accused has
the termination of the investigation? already been arrested by virtue of a
warrant issued by the MTC judge who
This constitutes dereliction of duty and is a conducted the preliminary
ground for dismissal of the judge. investigation or if he was arrested by
virtue of a lawful arrest without
 What is the difference between warrant.
preliminary investigation conducted by 4. In case of doubt on the existence of
the prosecutor and one conducted by probable cause, the judge may order
the judge? the prosecutor to present additional
evidence within 5 days from notice
The prosecutor is not bound by the and the issue must be resolved within
designation of the offense in the complaint. 30 days from the filing of the
After preliminary investigation, he may file complaint or information.
any case as warranted by the facts. The
judge cannot change the charge in the By the MTC
complaint but must make a finding on
whether or not the crime charged has been 1. If the preliminary investigation was
committed. conducted by a prosecutor, same
procedure as above
 If the investigating judge did not 2. If the preliminary investigation was
issue a warrant for the arrest of the conducted by the MTC judge and his
accused during the preliminary findings are affirmed by the
investigation, what is the remedy of the prosecutor, and the corresponding
prosecutor if he believes that the information is filed, he shall issue a
accused should be immediately placed warrant of arrest.
under custody? 3. However, without waiting for the
conclusion of the investigation, he
He should file the information in court, so may issue a warrant of arrest if he
that the RTC may issue the warrant of arrest. finds after:
He should not file for mandamus because
that could take two years to resolve.
 21
a. an examination in writing and under immediate custody in order not
under oath of the complainant to frustrate the ends of justice.
and his witnesses 2. Since their objectives are different, the
b. in the form of searching judge should not rely solely on the
questions and answers that report of the prosecutor in finding
probable cause exists AND that probable cause to justify the issuance
there is a necessity of placing of a warrant of arrest. The judge must
the accused under immediate decide independently and must have
custody in order not to frustrate supporting evidence other than the
the ends of justice. prosecutor’s bare report.
3. It is not required that the complete or
 What are the kinds of offenses that entire records of the case during the
may be filed with the MTC for preliminary investigation be submitted
preliminary investigation? to and examined by the judge. He
must have sufficient supporting
1. Those which are cognizable by the documents upon which to make his
RTC independent judgment.
2. Those cognizable by the MTC where
the penalty is at least 4 years, 2  How should the complaint or
months, and 1 day regardless of the information be filed when the accused
fine is lawfully arrested without warrant?

 When is a warrant of arrest not The complaint or information may be filed by

necessary? a prosecutor without need for a preliminary
investigation provided an inquest proceeding
1. When the accused is already under has been conducted in accordance with
detention issued by the MTC existing rules. In the absence of an inquest
2. When the accused was arrested by prosecutor, the offended party or any peace
virtue of a lawful arrest without officer may file the complaint directly in
warrant court on the basis of the affidavit of the
3. When the penalty is a fine only offended party or peace officer.

 Are “John Doe” warrants valid?  What is the remedy of the person
arrested without warrant if he wants a
Generally, John Doe warrants are void preliminary investigation?
because they violate the constitutional
provision that requires that warrants of Before the complaint or information is filed,
arrest should particularly describe the person he may ask for one provided that he signs a
or persons to be arrested. But if there is waiver of his rights under Article 125 of the
sufficient description to identify the person RPC in the presence of counsel. He may still
to be arrested, then the warrant is valid. apply for bail in spite of the waiver. The
investigation must be terminated within 15
 What are the principles governing the days.
finding of probable cause for the
issuance of a warrant of arrest? After the complaint of information is filed but
before arraignment, the accused may, within
1. There is a distinction between the 5 days from the time he learns of his filing,
objective of determining probable ask for a preliminary investigation.
cause by the prosecutor and by the
judge. The prosecutor determines it  What is an inquest?
for the purpose of filing a complaint or
information, while the judge An inquest is an informal and summary
determines it for the purpose of investigation conducted by a public
issuing a warrant of arrest – whether prosecutor in a criminal case involving
there is a necessity of placing him persons arrested and detained without the
 22
benefit of a warrant of arrest issued by the the accused under custody, he
court for the purpose of determining whether may issue summons instead.
said persons should remain under custody
and correspondingly charged in court. RULE 113 ARREST

 What are the guidelines to safeguard  What is arrest?

the rights of an accused who has been
arrested without a warrant? Arrest is the taking of a person into custody
in order that he may be bound to answer for
1. The arresting officer must bring the the commission of an offense.
arrestee before the inquest fiscal to
determine whether the person should  How is an arrest made?
remain in custody and charged in
court or if he should be released for Arrest is made by an actual restraint of the
lack of evidence or for further person to be arrested or by his submission to
investigation. the custody of the person making the arrest.
2. The custodial investigation report shall
be reduced to writing, and it should be  What does it mean when
read and adequately explained to the jurisprudence says that the officer, in
arrestee by his counsel in the making the arrest, must “stand his
language or dialect known to him. ground”?

 What is the procedure in cases not It means that the officer may use such force
requiring a preliminary investigation? as is reasonably necessary to effect the
arrest.
1. If filed with the prosecutor, the
prosecutor shall act on the complaint  What is the duty of the arresting
based on the affidavits and other officer who arrests a person?
supporting documents submitted by
the complainant within 10 days from He must deliver the person immediately to
its filing. the nearest jail or police station.
2. If filed with the MTC:
 Within what period must a warrant of
a. If within 10 days from the filing arrest be served?
of the complaint or information,
the judge finds no probable There is no time period. A warrant of arrest
cause after personally is valid until the arrest is effected or until it is
examining the evidence in lifted. The head of the office to whom the
writing and under oath of the warrant was delivered must cause it to be
complainant and his witnesses executed within 10 days from its receipt, and
in the form of searching the officer to whom it is assigned for
questions and answers, he shall execution must make a report to the judge
dismiss the complaint or who issued it within 10 days from the
information. expiration of the period. If he fails to
b. He may require the submission execute it, he should state the reasons
or additional evidence, within therefor.
10 days from notice. If he still
finds no probable cause, he  When is an arrest without warrant
shall dismiss the case. lawful?
c. If he finds probable cause, he
shall issue a warrant of arrest or A peace officer or private person may arrest
a commitment order and hold without warrant:
him for trial. If he thinks that
there is no necessity for placing 1. When in his presence, the person to
be arrested has committed, is actually
 23
committing, or is about to commit an
offense; SECTION 14 BAIL
2. When an offense has just been
committed, and he has probable cause  What is bail?
based on personal knowledge of facts
and circumstances that the person to Bail is the security given for the release of a
be arrested has committed it; and person in custody of the law, furnished by
3. When the person to be arrested is a him or a bondsman, to guarantee his
prisoner who has escaped from a appearance before any court as required.
penal establishment or place where he
is serving final judgment or is  What are the forms of bail?
temporarily confined while his case is
pending or has escaped while being Bail may be in the form of:
transferred from one confinement to
another. 1. corporate surety
2. property bond
 A police officer was chasing a person 3. cash deposit
who had just committed an offense. 4. recognizance
The person went inside a house, so the
police officer followed. Inside the  What is recognizance?
house, the police officer saw drugs lying
around. Can he confiscate the drugs? Recognizance is an obligation of record,
Can he use them as evidence? entered into before a court or magistrate
duly authorized to take it, with the condition
Yes. The plain view doctrine is applicable in to do some particular act, the most usual
this case because there was a prior valid condition in criminal cases being the
intrusion, the police officer inadvertently appearance of the accused for trial.
discovered the evidence, he had a right to be
there, and the evidence was immediately  When is bail a matter of right and
apparent. when is it a matter of discretion?

 What if the officer merely peeks In the MTC, it is a matter of right before or
through the window of the house and after conviction, regardless of the offense.
sees the drugs – can he confiscate
them? Can he use them as evidence? In the RTC, it is a matter of right before
conviction, except for offenses punishable by
He can confiscate them, without prejudice to death, reclusion perpetua, or life sentence
his liability for violation of domicile. He and the evidence of guilt is strong, in which
cannot use them as evidence because the case it is discretionary. After conviction, bail
seizure cannot be justified under the plain is a matter of discretion regardless of the
view doctrine, there being no previous valid offense. The application for bail may be filed
intrusion. and acted upon by the trial court as long as
the original record of the case has not been
 When should an arrest be made? transmitted to the appellate court. However,
if the decision of the trial court changed the
It can be made on any day and at any time nature of the offense from non-bailable to
of the day and night. bailable, the application should be addressed
and resolved by the appellate court.
 Can an officer arrest a person against
whom a warrant has been issued even if  When can the prosecution move for
he does not have the warrant with him? the cancellation or denial of bail of the
accused?
Yes, but after the arrest, if the person
arrested requires, it must be shown to him as If the penalty imposed by the trial court is
soon as practicable. imprisonment greater than 6 years, the
 24
prosecution may move for denial or
cancellation of the bail of the accused, with  What is a capital offense?
notice to the accused, upon showing of the
following circumstances: A capital offense is an offense which, under
the law existing at the time of its commission
1. That he is a recidivist, quasi-recidivist, and of the application for admission to bail,
habitual delinquent, or committed the may be punished with death.
offense with the aggravating
circumstance of reiteracion.  What are the duties of the trial judge
2. The he has previously escaped from in case an application for bail is filed?
legal confinement, evaded sentence,
or violated the conditions of his bail 1. Notify the prosecutor of the hearing or
without valid justification. require him to submit his
3. That he committed the offense while recommendation
on probation, parole or conditional 2. Conduct a hearing
pardon 3. Decide whether the evidence of guilt
4. That the circumstances of his case is strong based on the summary of
indicate the probability of flight if evidence of the prosecution
released on bail; or 4. If the guilt of the accused is not
5. That there is undue risk that he may strong, discharge the accused upon
commit another crime during the the approval of the bailbond. If
pendency of the appeal. evidence of guilt is strong, the petition
should be denied.
 When is a bail hearing necessary?
 What are the guidelines in setting the
Bail hearing is mandatory when bail is a amount of bail?
matter of discretion. It is incumbent upon
the prosecution to show that the evidence of 1. Financial ability of the accused
guilt is strong. Even if the prosecution is 2. Nature and circumstances of the
absent or refuses to present evidence, the offense
court cannot grant bail without conducting a 3. Penalty for the offense
hearing. The court must first be convinced 4. Character and reputation of the
that the evidence does not warrant the accused
denial of bail. 5. Age and health of the accused
6. Weight of evidence against the
 What is required of the judge who accused
denies an application for bail? 7. Probability of the accused appearing
at the trial
The order should contain a summary of the 8. Forfeiture of other bail
evidence presented and the reason for the 9. The fact that he was a fugitive from
denial, otherwise it shall be void. This is in the law when arrested
order to safeguard the constitutional right to 10.Pendency of other cases where the
presumption of innocence and also because accused is on bail
there is a need for clear grounds before a
person can be denied of his liberty.  Where should bail be filed?

 If there is a likelihood that the It may be filed with the court where the case
accused would jump bail, what should is pending. In the absence of the judge
the court do? thereof, bail may be filed with any RTC or
MTC judge in the province, city, or
1. Increase the amount of bail municipality. If the accused is arrested in a
2. Require periodic reports of the province, city, or municipality other than
accused to court where the case is pending, bail may also be
3. Warn him that the trial may proceed in filed with and RTC of said place, or if no
absentia
 25
judge is available, with any MTC judge 8. To have a speedy, impartial, and
therein. public trial;
9. To appeal in all cases allowed and in
But where bail is a matter of discretion or the manner prescribed by law.
where the accused seeks to be released on
recognizance, bail may only be filed in the
court where the case is pending. Due Process

Any person in custody who is not yet  What are the two aspects of the right
charged may apply for bail with any court in to due process?
the province, city or municipality where he is
held. 1. Substantive due process – this refers
to the intrinsic validity of the law
 What is the remedy of the accused if 2. Procedural due process – one that
he is denied bail? hears before it condemns, proceeds
upon inquiry, and renders judgment
He should file a special civil action in the CA, only after trial and based on the
not the SC within 60 days. evidence presented therein.

 Does an application for bail bar the  Is it necessary to have trial-type

accused from questioning the validity or proceedings in order to satisfy the
his arrest, the validity of the warrant, requirement of due process?
or the manner of conducting the
preliminary investigation? No. There is no need for trial-type
proceedings in order to satisfy due process.
No, provided that he raises these questions What is important is that there was an
before plea. opportunity to be heard. Notice and hearing
are the minimum requirements of due
process.
RULE 115 RIGHTS OF THE ACCUSED
 In general, what are the requirements
 What are the rights of the accused in of procedural due process?
criminal prosecutions?
1. There must be an impartial and
1. To be presumed innocent until the competent court with judicial power to
contrary is proved beyond reasonable hear and determine the matter before
doubt; it;
2. To be informed of the nature and 2. Jurisdiction must be lawfully acquired
cause of the accusation against him; over the person of the defendant or
3. To be present and defend in person over the property subject of the
and by counsel at every stage of the proceeding;
proceedings, from arraignment to 3. The defendant must be given an
promulgation of judgment; opportunity to be heard;
4. To testify as a witness in his own 4. Judgment must be rendered upon
behalf but subject to cross- lawful hearing.
examination on matters covered by
direct examination;  In criminal cases, what are the
5. To be exempt from being compelled to requirements of procedural due
be a witness against himself; process?
6. To confront and cross-examine the
witnesses against him at the trial; The requirements in criminal cases are more
7. To have compulsory process issued to stringent. They are:
secure the attendance of witnesses
and production of other evidence in 1. The accused must have been heard by
his behalf; a court of competent jurisdiction;
 26
2. He must have been proceeded against sufficient provocation on the part of
under orderly processes of the law; the one defending himself) belongs to
3. He may be punished only after inquiry the accused.
and investigation;
4. There must be notice to the accused;  What is a “reverse trial”?
5. The accused must be given an
opportunity to be heard; Usually, the prosecution presents its
6. Judgment must be rendered within the evidence to establish the guilt of the accused
authority of a constitutional law. 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
Presumption of Innocence offense.

 What is the meaning of the right of Right to be present at the trial

presumption of innocence?
 What are the requisites of a valid trial
The right means that the presumption must in absentia?
be overcome by evidence of guilt beyond
reasonable doubt. Guilt beyond reasonable 1. The accused has already been
doubt means that there is moral certainty as arraigned;
to the guilt of the accused. Conviction 2. He has been duly notified of the trial
should be based on the strength of the 3. His failure to appear at the trial is
prosecution and not on the weakness of the unjustifiable.
defense. The significance of this is that
accusation is not synonymous with guilt.  Can the right to be present at the
trial be waived?
 What are the exceptions to the
constitutional presumption of Yes, except in the following situations, where
innocence? the presence of the accused at the trial is
required:
1. Presumptions – If there is a reasonable
connection between the fact 1. Arraignment;
presumed and the fact ultimately 2. During promulgation of judgment,
proven from such fact except if it is for a light offense;
3. When the presence of the accused at
Examples: the trial is necessary for purposes of
identification, unless he admits
a. When an accountable public beforehand that he is the same person
officer fails to account for funds charged.
or property that should be in his
custody, he is presumed to be Right to Counsel
guilty of malversation;
b. Persons in possession of  Is there a difference between the
recently stolen goods are right to counsel during custodial
presumed guilty of the offense investigation and the right to counsel
in connection with the goods. during the trial?

2. Self-Defense – One who invokes self- Yes. In custodial investigation, the right to
defense is presumed guilty. The counsel can only be waived in writing AND
burden of proving the elements of self- with the assistance of counsel. The counsel
defense (unlawful aggression, required in custodial investigation is
reasonable necessity of the means competent and independent counsel,
used to prevent or repel it; lack of preferably of his own (the suspect’s) choice.
 27
As a rule, the mistake of counsel binds the
During the trial, the right to counsel means client. Therefore, the client cannot question
the right to effective counsel. a decision on the ground that counsel was an
idiot. However, an exception to this is if
The requirement is stricter during custodial counsel misrepresents himself as a lawyer,
investigation because a trial is done in and he turns out to be a fake lawyer. In this
public, while custodial investigation is not. case, the accused is entitled to a new trial
The danger that confessions will be because his right to be represented by a
extracted against the will of the defendant member of the bar was violated. He was
during custodial investigation does not really thus denied of his right to counsel and to due
exist during trial. process.

During trial the purpose of counsel is not so  Is the right to counsel absolute?
much to protect him from being forced to
confess but to defend the accused. No. The right of choice must be reasonably
exercised. The accused cannot insist on
Why is the right to counsel afforded counsel that he cannot afford, one who is not
during trial? a member of the bar, or one who declines for
a valid reason, such as conflict of interest.
The right to counsel is embraced in the right Also, the right of the accused to choose
to be heard. counsel is subject to the right of the state to
due process and to speedy and adequate
 When should the right to counsel be justice.
invoked?
 When can the accused defend himself
The right to counsel may be invoked at any in person?
stage of the proceedings, even on appeal.
However, it can also be waived. The accused The accused can defend himself in person
is deemed to have waived his right to only if the court is convinced that he can
counsel when he voluntarily submits himself properly protect his rights even without the
to the jurisdiction of the Court and proceeds assistance of counsel.
with his defense.
Right to be a Witness on His Own Behalf
But in US v. Escalante and People v. Nang
Kay (p. 532 of Herrera Textbook), the Court  What is the weight of the testimony
held that the defendant cannot raise the of an accused who testifies on his own
question of his right to have an attorney for behalf but refuses to be cross-
the first time on appeal. If the question is examined?
not raised in the trial court, the prosecution
may go to trial. The question will not be The testimony will not be given weight. It
considered in the appellate court for the first will not have probative value because the
time when the accused fails to raise it in the prosecution was not given a chance to test
lower court. the credibility of the testimony through
cross-examination.
Is the duty of the court to appoint
counsel-de-oficio mandatory at all Right Against Self-Incrimination
times?
 What is the scope of the right against
No. The duty to appoint counsel-do-oficio is self-incrimination?
mandatory only up to arraignment.
The right against self-incrimination covers
 Does the mistake of counsel bind the testimonial compulsion only and the
client? compulsion to produce incriminating
documents, papers, and chattels. It does not
cover the compulsion to produce real or
 28
physical evidence using the body of the  Can the accused or witness invoke
accused. the right against self-incrimination if he
is asked about past criminality?
 Is there an exception to the right
against self-incrimination? It depends. If he can still be prosecuted for
it, questions about past criminal liability are
The right cannot be invoked when the State still covered by the protection of the right
has the right to inspect documents under its against self-incrimination. But if he cannot
police power, such as documents of be prosecuted for it anymore, he cannot
corporations. invoke the right.

 What is the rationale for protecting  What are the rights of the accused in
the right against self-incrimination? the matter of testifying or producing
evidence?
There are two reasons:
1. Before the case is filed in Court but
1. For humanitarian reasons: To prevent after he has been taken into custody
the State, with all its coercive powers, or otherwise deprived of his liberty
from extracting testimony that may
convict the accused. a. the right to be informed of
2. For practical reasons: The accused is b. his right to remain silent and to
likely to commit perjury if he were counsel
compelled to testify against himself. c. the right not to be subjected to
force, violence, threat,
 Who may invoke the right against intimidation, or any other
self-incrimination, and when can they means which vitiate free will
invoke the right? d. the right to have evidence
obtained in violation of these
1. An ordinary witness may invoke the rights rejected
right, but he may only do so as each
incriminating question is asked. 2. After the case is filed in court
2. The accused himself may invoke the
right, and unlike the ordinary witness, a. to refuse to be a witness
he may altogether refuse to take the b. not to have any prejudice
witness stand and refuse to answer whatsoever result to him by
any and all questions. such refusal
c. to testify in his own behalf
But, once the accused waives his right subject to cross-examination by
and chooses to testify in his own the prosecution
behalf, he may be cross-examined on d. while testifying, to refuse to
matters covered in his direct answer a specific question
examination. He cannot refuse to which tends to incriminate his
answer questions during cross- for some crime other than that
examination by claiming that the for which he is being
answer that he will give could prosecuted.
incriminate him for the crime with
which he was charged.  What are immunity statutes?

However, if the question during cross- The immunity statutes are classified into two
examination relates to a crime – use immunity statutes and transactional
different from that with which he was immunity statutes.
charged, he can still invoke the right
and refuse to answer. Use immunity prohibits the use of a
witness’ compelled testimony and its
fruits in any manner in connection with the
 29
criminal prosecution of the witness. 1. To allow the court to observe the
(Therefore, the witness can still be demeanor of the witness while
prosecuted, but the compelled testimony testifying.
cannot be used against him.) 2. To give the accused the opportunity to
cross-examine the witness in order to
Transactional immunity grants immunity test their recollection and credibility.
to the witness from prosecution for an
offense to which his compelled testimony  Can the right of confrontation be
relates. (Here, the witness cannot be waived?
prosecuted at all.) Examples are state
witnesses and those who furnish information Yes, it can be waived either expressly or
about violations of the Internal Revenue impliedly. It is waived impliedly when an
Code, even if they themselves offered bribes accused waives his right to be present at the
to the public official. trial. The right of confrontation may also be
waived by conduct amounting to a
 What is the effect of the refusal of renunciation of the right to cross-examine.
the accused to refuse to testify in his When the party was given an opportunity to
behalf? confront and cross-examine an opposing
witness but failed to take advantage of it for
As a general rule, the silence of the accused reasons attributable to himself alone, he is
should not prejudice him. deemed to have waived the right.

However, in the following cases, an  What happens to the testimony of a

unfavorable inference is drawn from the witness who dies or becomes
failure of the accused to testify: unavailable?

1. If the prosecution has already It depends. If the other party had the
established a prima facie case, the opportunity to cross-examine the witness
accused must present proof to before he died or became unavailable, the
overturn the evidence of the testimony may be used as evidence.
prosecution. However, if the other party did not even
2. If the defense of the accused is alibi have the opportunity to cross-examine
and he does not testify, the inference before the subsequent death or
is that the alibi is not believable. unavailability of the witness, the testimony
will have no probative value. (An
 Is DNA testing covered by the right opportunity to cross-examine is all that is
against self-incrimination? necessary in order to allow the use of the
testimony of the witness. There need not be
No (recent SC ruling). an actual cross-examination, as long as there
was an opportunity to do so.)
Right of Confrontation
Right to Compulsory Process
 What is the meaning of the right of
confrontation?  What is the right to compulsory
process?
It means that the accused can only be tried
using those witnesses that meet him face to It is the right of the accused to have a
face at the trial who give testimony in his subpoena and/or a subpoena duces tecum
presence, with the opportunity to cross- issued in his behalf in order to compel the
examine them. attendance of witnesses and the production
of other evidence.
 What are the reasons for the right?
 What happens if a witness refuses to
testify when required?
 30
The court should order the witness to give 3. If he is restrained of his liberty, file for
bail or even order his arrest, if necessary. habeas corpus.
Failure to obey a subpoena amounts to 4. Ask for the trial of the case.
contempt of court.
 What is the limitation on the right of
Right to Speedy, Public, and Impartial an accused to a speedy trial?
Trial
The limitation is that the State should not be
 How should the trial be conducted? deprived of its day in court. The right of the
State/the prosecution to due process should
The trial should be speedy, public, and be respected.
impartial.
The prosecution and the complainant
 What is the meaning of the right to fail to attend the first hearing. The
speedy trial? court postpones the hearing to another
date. Is there a violation of the right to
The right means that the trial should be speedy trial?
conducted according to the law of criminal
procedure and the rules and regulations, free No. The right to speedy trial is violated when
from vexations, capricious, and oppressive there are unjustified postponements of the
delays. trial, and a long period of time is allowed to
elapse without the case being tried for no
 When should the arraignment and justifiable reason.
pre-trial be held?
What is the meaning of the right to a
According to the Speedy Trial Act and public trial?
Circular 38-98, arraignment and pre-trial if
the accused pleads not guilty should be held It means that anyone interested in observing
within 30 days from the date the court the manner that a judge conducts the
acquires jurisdiction of the person of the proceedings in his courtroom may do so.
accused.
 Why should a trial be conducted in
 Within how many days should the public?
trial be completed?
The trial should be public in order to prevent
In no case shall the entire period exceed 180 abuses that may be committed by the court
days from the first day of trial, except as to the prejudice of the defendant. Moreover,
otherwise authorized by the Court the accused is entitled to the moral support
Administrator. of his friends and relatives.

 What is the remedy of an accused  Is there an exception to the

whose right to speedy trial is violated? requirement of publicity?

The accused has the following remedies: Yes. The court may bar the public in certain
cases, such as when the evidence to be
1. File a motion to dismiss on the ground presented may be offensive to decency or
of violation of his right to speedy trial. public morals, or in rape cases, where the
(For purposes of double jeopardy, this purpose of some persons in attending is
has the same effect as an acquittal.) merely to ogle at the parties.
This must be done prior to trial, or
else, it is deemed a waiver of the right  Is it okay to hold the trial in the
to dismiss. chambers of the judge?
2. File for mandamus to compel a
dismissal of the information.
 31
Yes. There is no violation of the right to a 3. by furnishing the accused with a copy
public trial, since the public is not excluded of the complaint or information
from attending the trial. 4. reading it in the language or dialect
known to him, and
 In so-called trials by publicity, when 5. asking him whether he pleads guilty or
can the publicity be considered not guilty.
prejudicial to the accused?
 Can there be an arraignment without
To warrant a finding of prejudicial publicity, the presence of the accused?
there must be allegations and proof that the
judges have been unduly influenced, not No. The accused must be present at the
simply that they might be, by the barrage of arraignment and must personally enter his
publicity. plea.

Right to Appeal, When Allowed  What is the effect of the refusal of

the accused to enter a plea?
 Is the right to appeal a fundamental
right? If the accused refuses to plead or makes a
conditional plea, a plea of not guilty shall be
No. The right to appeal is a statutory right, entered for him.
except in the case of the minimum appellate
jurisdiction of the Supreme Court granted by  X is charged with homicide. He
the Constitution. Anyone who seeks to pleads guilty but presents evidence to
exercise the right to appeal must comply establish self-defense. What should the
with the requirements of the rules. court do?

 Can the right to appeal be waived? The court should withdraw the plea and
enter a plea of not guilty.
Yes, it can be waived expressly or impliedly.
 When should the arraignment be
 What is the effect of the flight of the held?
accused on his right to appeal?
The general rule is that the accused should
When the accused flees after the case has be arraigned within 30 days from the date
been submitted to the court for decision, he the court acquires jurisdiction over the
will be deemed to have waived his right to person of the accused. The time of the
appeal from the judgment rendered against pendency of a motion to quash or for a bill of
him. particulars or other causes justifying
suspension of the arraignment shall be
RULE 116 ARRAIGNMENT AND PLEA excluded in computing the period.

 Where should the accused be However, in the following cases, the accused
arraigned? should be arraigned with a shorter period:

The accused must be arraigned before the 1. Where the complainant is about to
court where the complaint was filed or depart from the Philippines with no
assigned for trial. definite date of return, the accused
should be arraigned without delay and
 How is arraignment made? his trial should commence within 3
days from arraignment.
Arraignment is made: 2. The trial of cases under the Child
Abuse Act requires that the trial
1. in open court should be commenced within 3 days
2. by the judge or clerk from arraignment.
 32
3. When the accused is under preventive evidence and cross-examine the witnesses of
detention, his case shall be raffled and the prosecution. The error was cured by the
its records transmitted to the judge to subsequent arraignment.
whom the case was raffled within 3
days from the filing of the information  Is the accused presumed to have
or complaint. The accused shall be been arraigned in the absence of proof
arraigned within 10 days from the to the contrary?
date of the raffle.
Yes. In view of the presumption of regularity
 Can the lawyer of the accused enter a in the performance of official duties, it can be
plea for him? presumed that a person accused of a crime
was arraigned, in the absence of proof to the
No. The accused must personally enter his contrary. However, the presumption of
plea. regularity is not applied when the penalty
imposed is death. When the life of a person
 What is the importance of is at stake, the court cannot presume that
arraignment? there was an arraignment; it has to be sure
that there was one.
Arraignment is the means for bringing the
accused into court and informing him of the  Is the accused entitled to know in
nature and cause of the accusation against advance the names of all of the
him. During arraignment, he is made fully prosecution witnesses?
aware of possible loss of freedom or life. He
is informed why the prosecuting arm of the No. The success of the prosecution might be
State is mobilized against him. It is endangered if this right were granted to the
necessary in order to fix the identity of the accused. The witnesses might be subjected
accused, to inform him of the charge, and to to pressure or coercion. The right time for
give him an opportunity to plead. the accused to know their identities is when
they take the witness stand.
 During the arraignment, is the judge
duty-bound to point out that an  Can the prosecution call witnesses
information is duplicitous? that are not listed in the information?

No. The judge has no obligation to point out Yes. The prosecution may call at the trial
the duplicitousness or any other defect in an witnesses other than those named in the
information during arraignment. The complaint or information.
obligation to move to quash a defective
information belongs to the accused, whose  X was charged with homicide. He
failure to do so constitutes a waiver of the entered a plea of guilty. He was later
right to object. allowed to testify in order to prove the
mitigating circumstance of incomplete
 X was tried for murder without self-defense. At the trial, he presented
having been arraigned. At the trial, X’s evidence to prove that he acted in
counsel presented witnesses and cross- complete self-defense. The court
examined the prosecution witnesses. It acquitted him. Later, X was again
was only after the case was submitted charged with physical injuries. X
for decision that X was arraigned. X invoked double jeopardy. Can X be
was convicted. Can X invoke the failure prosecuted again for physical injuries?
of the court to arraign him before trial Yes. There was no double jeopardy. In order
as a ground for questioning the for double jeopardy to attach, there must
conviction? have been a valid plea to the first offense. In
this case, the presentation by X of evidence
No. The failure of the court to arraign X to prove complete self-defense had the
before trial was conducted did not prejudice effect of vacating his plea of guilt. When the
the rights of X since he was able to present plea of guilt was vacated, the court should
 33
have ordered him to plead again, or at least 2. require the prosecution to present
should have directed that a new plea of not evidence to prove the guilt and the
guilty be entered for him. Because the court precise degree of culpability of the
did not do this, at the time of the acquittal, accused for the purpose of imposing
there was actually no standing plea for X. the proper penalty.
Since there was no valid plea, there can be 3. ask the accused if he desires to
no double jeopardy. present evidence in his behalf and
allow him to do so if he desires.
 Can a person who pleaded guilty still
be acquitted?  Does a plea of guilty mean an
admission even of the aggravating
Yes. When an accused pleads guilty, it does circumstances?
not necessarily follow that he will be
convicted. Additional evidence independent Yes. A plea of guilty results in the admission
of the guilty plea may be considered by the of all the material facts in the complaint or
judge to ensure that the plea of guilt was information, including the aggravating
intelligently made. The totality of evidence circumstances. Because of this, the court
should determine whether the accused should only accept a clear, definite, and
should be convicted or acquitted. unconditional plea of guilty.

 When can the accused plead guilty to  When can the plea of guilty be
a lesser offense? considered a mitigating circumstance?

At arraignment, the accused may plead It is mitigating if made before the

guilty to a lesser offense which is necessarily prosecution starts to present evidence.
included in the offense charged, provided
that the offended party and the prosecutor  What is the meaning of the duty of
give their consent. the judge to conduct a “searching
inquiry”?
After arraignment BUT BEFORE TRIAL, the
accused may still be allowed to plead guilty In all cases, the judge must convince himself:
to a lesser offense, after he withdraws his (1) that the accused is entering the plea of
plea of not guilty. In such a case, the guilty voluntarily and intelligently; and (2)
complaint or information need not be that he is truly guilty and that there exists a
amended. rational basis for a finding of guilt based on
his testimony.
When the penalty imposable for the offense
is at least 6 years and 1 day or a fine In addition, the judge must inform the
exceeding P12,000, the prosecutor must first accused of the exact length of imprisonment
submit his recommendation to the City or and the certainty that he will serve it at the
Provincial Prosecutor or to the Chief State national penitentiary or a penal colony. The
Prosecutor for approval. If the judge must dispel any false notion that the
recommendation is approved, the trial accused may have that he will get off lightly
prosecutor may then consent to the plea of because of his plea of guilt.
guilty to a lesser offense.
 Is it mandatory for the prosecution to
 What should the court do when the present proof of aggravating
accused pleads guilty to a capital circumstances?
offense?
Yes. It is mandatory in order to establish the
The court should: precise degree of culpability and the
imposable penalty. Otherwise, there is an
1. conduct a searching inquiry into the improvident plea of guilty.
voluntariness and full comprehension
of the consequences of the plea.
 34
 Can a court validly convict an accused  X is charged with homicide. He
based on an improvident plea of guilty? pleads guilty, but tells the judge “hindi
ko sinasadya.” Is his plea valid?
Yes. If there is adequate evidence of the
guilt of the accused independent of the No. In order to be valid, the plea of guilty
improvident plea of guilty, the court may still must be unconditional. In this case, when X
convict the accused. The conviction will be said “hindi ko sinasadya,” he made a
set aside only if the plea of guilt is the sole qualified plea of guilty. This is not a valid
basis of the judgment. plea of guilty. A plea of not guilty should be
entered instead.
 What should the court do when the
accused pleads guilty to a non-capital  When a defendant appears without
offense? an attorney during arraignment, what
should the court do?
The court may receive evidence from the
parties to determine the penalty to be The court has a four-fold duty:
imposed. Unlike in a plea of guilty to a
capital offense, the reception of evidence in 1. It must inform the defendant that he
this case is not mandatory. It is merely has a right to an attorney before being
discretionary on the court. arraigned;
2. After informing him, the court must
 When can the validity of a plea of ask the defendant if he desires to
guilty be attacked? have the aid of an attorney;
3. If he desires and is unable to employ
Generally, a plea of guilty cannot be an attorney, the court must assign an
attacked if it is made voluntarily and attorney de oficio to defend him;
intelligently. It can only be attacked if it was 4. If the accused desires to procure an
induced by threats, misrepresentation, or attorney of his own, the court must
bribes. When the consensual character of grant him a reasonable time therefor.
the plea is called into question or when it is
shown that the defendant was not fully  What is the reason for this four-fold
apprised of its consequences, the plea can duty?
be challenged.
The right to be heard would be of little avail
 Can an improvident plea of guilty be if it does not include the right to be heard by
withdrawn as a matter of right? counsel.

No. The withdrawal of the plea of guilty is  What is the effect of the failure of the
not a matter of strict right to the accused but court to comply with these duties?
is within the discretion of the court. The
reason for this is that trial has already It is a violation of due process.
commenced; withdrawal of the plea will
change the theory of the case and will put all  What is a counsel de oficio?
of the past proceedings to waste. Therefore,
it may only be withdrawn with permission of Counsel de oficio is counsel appointed by the
the court. court to represent and defend the accused in
case he cannot afford to employ one himself.
Moreover, there is a presumption that the
plea was made voluntarily. The court must  Who can be appointed as counsel de
decide whether the consent of the accused oficio?
was, in fact, vitiated when he entered his
plea. The court, considering the gravity of the
offense and the difficulty of the questions
that may arise shall appoint as counsel de
oficio:
 35
know that he was being represented by a
1. such members of the bar in good non-lawyer, the judgment is void because of
standing the misrepresentation.
2. who by reason of their experience and
ability, can competently defend the  What are the duties of the pubic
accused. attorney if the accused assigned to him
is imprisoned?
But, in localities where such members of the
bar are not available, the court may appoint 1. He shall promptly undertake to obtain
any person who is: the presence of the prisoner for trial,
or cause a notice to be served on the
1. a resident of the province person having custody of the prisoner,
2. and of good repute for probity and requiring such person to advise the
ability to defend the accused. prisoner of his right to demand trial.
2. Upon receipt of that notice, the person
 What is the difference between the having custody of the prisoner shall
duty of the court to appoint counsel de promptly advise the prisoner of the
oficio during arraignment and during charge and of his right to demand
trial? trial. It at anytime thereafter, the
prisoner informs his custodian that he
During arraignment, the court has the demands such trial, the latter shall
affirmative duty to inform the accused of his cause notice to that effect to be sent
right to counsel and to provide him with one promptly to the public attorney.
in case he cannot afford it. The court must 3. Upon receipt of such notice, the public
act on its own volition, unless the right is attorney shall promptly seek to obtain
waived by the accused. the presence of the prisoner for trial.
4. When the person having custody of
On the other hand, during trial, it is the the prisoner receives from the public
accused who must assert his right to attorney a properly supported request
counsel. The court will not act unless the for the availability of the prisoner for
accused invokes his rights. purposes of the trial, the prisoner shall
be made available accordingly.
 Can a non-lawyer represent the
accused during arraignment?  What is a bill of particulars?

No. During arraignment, it is the obligation It is a more specific allegation. A defendant

of the court to ensure that the accused is in a criminal case who believes or feels that
represented by a lawyer because it is the he is not sufficiently informed of the crime
first time when the accused is informed of with which he is charged and not in a
the nature and cause of the accusation position to defend himself properly and
against him. This is a task which only a adequately could move for a bill or
lawyer can do. particulars or specifications.

But during trial, there is no such duty. The  What is the purpose of a bill of
accused must ask for a lawyer, or else, the particulars?
right is deemed waived. He can even defend
himself personally. It is to allow the accused to prepare for his
defense.
 May an accused be validly
represented by a non-lawyer at the  When can the accused move for a bill
trial? of particulars?

If the accused knowingly engaged the The accused must move for a bill of
services of the non-lawyer, he is bound by particulars before arraignment. Otherwise,
the non-lawyer’s actions. But if he did not the right is deemed waived.
 36

 What should be contained in the The test is whether the accused will have a
motion for a bill or particulars? fair trial with the assistance of counsel, in
spite of his insanity. Not every aberration of
It should specify the alleged defects of the the mind or exhibition of mental deficiency is
complaint or information and the details sufficient to justify suspension.
desired.
RULE 117 MOTION TO QUASH
 What is the right to modes of
discovery?  When can the accused file a motion to
quash?
It is the right of the accused to move for the
production or inspection or material evidence At any time before entering his plea, the
in the possession of the prosecution. It accused may move to quash the complaint
authorizes the defense to inspect, copy, or or information.
photograph any evidence of the prosecution
in its possession after obtaining permission  What is the form required for a
of the court. motion to quash?

 What is the purpose of this right? 1. It must be in writing.

2. It must be signed by the accused or
The purpose is to prevent surprise to the his counsel.
accused and the suppression or alteration of 3. It must specify its factual and legal
evidence. grounds.

 Is this right available during  Can the court dismiss the case based
preliminary investigation? on grounds that are not alleged in the
motion to quash?
Yes, when indispensable to protect his
constitutional right to life, liberty, and As a general rule, no. The court cannot
property. (Webb v. de Leon) consider any ground other than those stated
in the motion to quash. The exception is lack
 What are the grounds for suspending of jurisdiction over the offense charged. If
arraignment? this is the ground for dismissing the case, it
need not be alleged in the motion to quash
1. If the accused appears to be suffering since it goes into the very competence of the
from an unsound mental condition, court to pass upon the case.
which renders him unable to fully
understand the charge against him  What are the grounds that the
and to plead intelligently thereto. The accused may invoke to quash a
court should order his mental complaint or information?
examination and his confinement, if
necessary. 1. That the facts charged do not
2. If there exists a prejudicial question. constitute an offense;
3. If a petition for review of the resolution 2. That the court trying the case has no
of the prosecutor is pending either at jurisdiction over the offense charged;
the DOJ or the Office of the President. 3. That the court trying the case has no
However, the period of suspension jurisdiction over the person of the
shall not exceed 60 days counted from accused;
the filing of the petition for review. 4. That the officer who filed the
information had no authority to do so;
 What is the test to determine 5. That it does not conform substantially
whether the insanity of the accused to the prescribed form;
should warrant the suspension of the 6. That more than one offense is charged
proceedings? except when a single punishment for
 37
various offenses is prescribed by law  X filed a motion to quash on the
(duplicitous); following grounds: that the court lacked
7. That the criminal action or liability has jurisdiction over the person of the
been extinguished; accused and that the complaint charged
8. That it contains averments which, if more than one offense. Can the court
true, would constitute a legal excuse grant the motion on the ground of lack
or justification; of jurisdiction over the person of the
9. That the accused has been previously accused?
convicted or acquitted of the offense
charged, or the case against him was No. A motion to quash on the ground of lack
dismissed or otherwise terminated of jurisdiction over the person of the accused
without his express consent. (double must be based only on this ground. If other
jeopardy) grounds are included, there is a waiver, and
the accused is deemed to have submitted
 X filed a motion to quash an himself to the jurisdiction of the court.
information on the ground that he was
in the US when the crime charged was  What is the effect of an information
committed. Should the motion be that was signed by an unauthorized
granted? person?

The motion should be denied. The accused It is a VALID information signed by a

is already making a defense. Matters of competent officer which, among other
defense are generally not a ground for a requisites, confers jurisdiction over the
motion to quash. They should be presented person of the accused and the subject
at the trial. matter of the accusation. Thus, an infirmity
in the information such as lack of authority of
 What is meant by the statement that the officer signing it cannot be cured by
“a motion to quash hypothetically silence, acquiescence, express consent, or
admits allegations of fact in the even amendment.
information”?
 What happens if the defendant enters
It means that the accused argues that his plea before filing a motion to quash?
assuming that the facts charged are true, the
information should still be dismissed based By entering his plea before filing the motion
on the ground invoked by the defendant. to quash, the defendant waives FORMAL
Therefore, since the defendant assumes that objections to the complaint or information.
the facts in the information are true, only
these facts should be taken into account But if the ground for the motion is any of the
when the court resolves the motion to quash. following, there is no waiver. The ground
Other facts, such as matters of defense, may be raised at any stage of the
which are not in the information should not proceeding:
be considered. Exceptions to this rule are
when the grounds invoked to quash the 1. failure to charge an offense
information are extinction of criminal 2. lack of jurisdiction over the offense
liability, prescription, and former jeopardy. 3. extinction of criminal liability
In these cases, additional facts are allowed. 4. double jeopardy

 Can the accused move to quash on  How is criminal liability extinguished?

the ground that he was denied due
process? Under Article 89 of the RPC, criminal liability
is extinguished by:
No. Denial of due process is not one of the
grounds for a motion to quash. 1. death of the convict, and as to
pecuniary penalties, liability therefor is
extinguished only when the death of
 38
the offender occurs before final OF CONGRESS necessary
judgment; ACCEPTANCE Beneficiary Need for
2. service of sentence; need not distinct acts
3. amnesty; accept of
4. absolute pardon; acceptance
5. prescription of the crime; on the part of
6. prescription of the penalty; the pardonee
7. marriage of the offended woman, as JUDICIAL Courts take Courts do not
provided in Article 344 of the RPC. NOTICE judicial take judicial
notice notice
 X and Y were charged with adultery. because it because it is
While the case was being tried, X died. is a public a private act
What happens to the criminal liability of act of the
X and Y? President.
Therefore, it
The criminal liability of X is extinguished. must be
The criminal liability of Y subsists. The death proved in
of one of several accused will not be a cause court.
for dismissal of the criminal action as against EFFECT Abolishes Relieves the
the other accused. the offense offender from
(looks the
 What is the effect of the death of the backward) consequence
offended party on the criminal liability s of the
of the accused? offense (looks
forward)
Where the offense charged in a criminal WHEN IT MAY Before or Only after
complaint or information is one against the BE GRANTED after conviction by
state, involving peace and order, the death prosecutio final
of the offended party before final conviction n judgment
of the defendant will not abate the
prosecution. Neither does the death of the  What is the effect of absolute pardon
offended party in private crimes abate the upon criminal liability?
prosecution.
Absolute pardon blots out the crime. It
 What are the means by which removes all disabilities resulting from the
criminal liability is partially conviction, such as the political rights of the
extinguished? accused.

1. Conditional pardon  What is the effect of pardon by the

2. Commutation of sentence offended party upon criminal liability?
3. For good conduct, allowances which
the culprit may earn while he is As a general rule, pardon by the offended
serving his sentence party does not extinguish criminal liability.
Only civil liability is extinguished by express
 What are the distinctions between waiver of the offended party.
pardon and amnesty?
However, pardon granted before the
AMNESTY PARDON institution of the criminal proceedings in
TYPE OF Political Infractions of cases of adultery, concubinage, seduction,
OFFENSE offenses the peace abduction, and acts of lasciviousness shall
(common extinguish criminal liability.
crimes)
BENEFICIARY Classes of An individual  What is the effect of marriage of the
persons offender with the offended party in
CONCURRENCE Necessary Not private crimes?
 39

It shall extinguish the criminal action or remit The accused can still raise prescription as a
the penalty already imposed. This applies defense even after conviction. The defense
even to co-principals, accomplices, and cannot be waived. This is because the
accessories. criminal action is totally extinguished by the
expiration of the prescriptive period. The
However, where multiple rape is committed, State thereby loses or waives its right to
marriage of the offended party with one prosecute and punish it.
defendant extinguishes the latter’s liability
and that of his accessories or accomplices  What is the proper action of the court
for a single crime of rape cannot extend to when the accused raises the defense of
the other acts of rape. prescription?

 If the offender in rape is the legal The proper action for the court is to exercise
husband of the offended party, how can its jurisdiction and to decide the case upon
the husband’s criminal liability be the merits, holding the action to have
extinguished? prescribed and absolving the defendant. The
court should not inhibit itself because it does
The subsequent forgiveness by the wife shall not lose jurisdiction over the subject matter
extinguish the criminal action or the penalty. or the person of the accused by prescription.
But the penalty shall not be abated if the
marriage is void ab initio.  What is the effect of prescription of
the offense on the civil liability of the
 Why is prescription a ground for a accused?
motion to quash?
The extinction of the penal action does not
This is meant to exhort the prosecution not carry with it the extinction of the civil action
to delay; otherwise, they will lose the right to to enforce civil liability arising from the
prosecute. It is also meant to secure the offense charged, unless the extinction
best evidence that can be obtained. proceeds from a declaration in a final
judgment that the fact from which the civil
 What are the prescriptive periods of liability might arise did not exist.
crimes?
 What should the court do if the
OFFENSE PRESCRIPTIVE accused moves to quash the complaint
PERIOD or information on grounds that can be
Punishable by 20 years cured by amendment (ex: duplicitous)?
death, reclusion
perpetua, or The court should order that the amendment
reclusion temporal be made.
Punishable by other 10 years
afflictive penalties  What should the court do if the
Punishable by 5 years accused moves to quash on the ground
arresto mayor that the facts charged do not constitute
Libel or other 2 years an offense?
similar offenses
Oral defamation 6 months The court should give the prosecution the
and slander by opportunity to correct the defect by
deed amendment. If the prosecution fails to make
Light offenses 2 months the amendment, or if, after it makes the
amendment, the complaint or information
 Can the accused still raise still suffers from the same defect, the court
prescription as a defense even after should grant/sustain the motion to quash.
conviction? Can the defense of
prescription be waived?
 40
 What is the effect if a motion to 2. the first jeopardy must have been
quash is sustained? validly terminated;
3. the second jeopardy must be for the
The court may order that another complaint same offense or the second offense
or information be filed against the accused includes or is necessarily included
for the same offense, except if the ground for in the offense charged in the first
sustaining the motion to quash is either: information, or is an attempt or a
frustration thereof.
1. extinguishment of the criminal liability
of the accused, or  What are the requisites for the first
2. double jeopardy. jeopardy to attach?

The grant of a motion to quash on these two 1. Valid complaint or information

grounds is a bar to another prosecution for 2. Court of competent jurisdiction
the same offense. 3. Arraignment
4. Valid plea
If the order is made, the accused, if in 5. The defendant was acquitted,
custody, shall not be discharged unless convicted, or the case was dismissed
admitted to bail. without his express consent.

If no order is made, or if no new information  A crime was committed in Makati.

was filed within the time specified by the The case was filed in Pasay. When the
court, the accused, if in custody, shall be prosecution realized that the complaint
discharged. should have been filed in Makati, it filed
the case in Makati. Can the accused
 What is the remedy of the accused if invoke double jeopardy?
the court denies his motion to quash?
No. The court in Pasay had no jurisdiction;
The accused cannot appeal an order therefore, the accused was in no danger of
overruling his motion to quash. This is being placed in jeopardy. The first jeopardy
because an order denying a motion to quash did not validly attach.
is interlocutory; it does not dispose of the
case upon its merits. The accused should go  For purposes of double jeopardy,
to trial and raise it as an error on appeal when is a complaint or information
later. valid?

 What are the two kinds of jeopardy? A complaint or information is valid if it can
support a judgment of conviction. It the
1. No person shall be twice put in complaint or information is not valid, it would
jeopardy for the same offense. violate the right of the accused to be
informed of the nature and cause of the
2. When an act is punished by a law and accusation against him. If he is convicted
an ordinance, conviction or acquittal under this complaint or information, the
under either shall constitute a bar to conviction is null and void. If the conviction
another prosecution for the same act. is null and void, there can be no first
jeopardy.
 What are the requisites for the
accused to raise the defense of double  X was charged with qualified theft. X
jeopardy? moved to dismiss on the ground of
insufficiency of the information. The
To raise the defense of double jeopardy, the case was dismissed. Subsequently, the
following requisites must be present: prosecution filed a corrected
information. Can X plead double
1. a first jeopardy must have attached jeopardy?
prior to the second;
 41
No. The first jeopardy did not attach dismissed without his express consent.
because the first information was not valid. Moreover, the dismissal was only provisional,
which is not a valid termination of the first
 X was charged with theft. During the jeopardy. In order to validly terminate the
trial, the prosecution was able to prove first jeopardy, the dismissal must have been
estafa. X was acquitted of theft. Can X unconditional.
be prosecuted for estafa later without
placing him in double jeopardy?  X was charged with slight physical
injuries. On his motion, the case was
Yes. For jeopardy to attach, the basis is the dismissed during the trial. Another
crime charged in the complaint or case for assault upon a person in
information, and not the one proved at the authority was filed against him. Can X
trial. In this case, the crime charged in the invoke double jeopardy?
first information was theft. X was therefore
placed in jeopardy of being convicted of No. The first jeopardy was not terminated
theft. Since estafa is not an offense which is through either conviction, acquittal, or
included or necessarily includes theft, X can dismissal without the express consent of X.
still be prosecuted for estafa without placing The first case was dismissed upon motion of
him in double jeopardy. X himself. Therefore, he cannot invoke
double jeopardy.
 The estafa case against X was
dismissed, but the dismissal contained  X was charged with theft. During
a reservation of the right to file another trial, the evidence showed that the
action. Can another estafa case be filed offense committed was actually estafa.
against X without placing him in double What should the judge do?
jeopardy?
The judge should order the substitution of
Yes. To raise the defense of double the complaint for theft with a new one
jeopardy, the firs jeopardy must have been charging estafa. Upon filing of the
validly terminated. This means that there substituted complaint, the judge should
must have been either a conviction or an dismiss the original complaint.
acquittal, or an unconditional dismissal of the
case. A provisional dismissal, such as this If it appears at any time before judgment
one, does not validly terminate the first that a mistake has been made in charging
jeopardy. the proper offense, the court shall dismiss
the original complaint or information upon
Note, however, that in the second kind of the filing of a new one charging the proper
jeopardy (one act punished by a law and an offense.
ordinance), the first jeopardy can only be
terminated either by conviction or acquittal,  What are the requisites for a valid
and not by dismissal of the case without the substitution of a complaint or
express consent of the accused. information?

 X was charged with theft. On the day 1. No judgment has been rendered;
of the trial, the prosecution could not 2. The accused cannot be convicted of
go to trial because important witnesses the offense charged or any other
were unable to appear. Counsel for the offense necessarily included in the
accused moved to dismiss the case. offense charged;
The court dismissed the case 3. The accused will not be placed in
provisionally. Subsequently, X was double jeopardy.
charged with theft again. Can X invoke
double jeopardy?  X was charged with homicide. On the
first day of trial, the prosecution failed
No. The case was dismissed upon motion of to appear. The court dismissed the
counsel for the accused, so it was not case on the ground of violation of the
 42
right of the accused to speedy trial. X But if the accused moves to dismiss on the
was later charged with murder. Can X following grounds, he can still be prosecuted
invoke double jeopardy? for the same offense because he is deemed
to have waived his right against a second
No. The first jeopardy was not validly jeopardy:
terminated. The judge who dismissed the
case on the ground of violation of the right of 1. Lack of jurisdiction (Why? Because if
X to speedy trial committed grave abuse of you move to dismiss on the ground of
discretion in dismissing the case after the lack of jurisdiction, it means that you
prosecution failed to appear once. This is could not have been validly convicted
not a valid dismissal because it deprives the by that court. You are later estopped
prosecution of due process. When the judge from claiming that you were in danger
gravely abuses his discretion in dismissing a of conviction).
case, the dismissal is not valid. Therefore, X 2. Insufficiency of complaint or
cannot invoke double jeopardy. information (Same reason. You could
not have been validly convicted under
that defective information, so you are
estopped from claiming that there was
 Distinguish between dismissal and a first jeopardy).
acquittal.
 When will dismissal or termination of
Acquittal is always based on the merits. The the first case not bar a second
accused is acquitted because the evidence jeopardy?
does not show his guilt beyond reasonable
doubt. Dismissal does not decide the case The conditions when dismissal or termination
on the merits, nor does it determine that the will not place the accused in double jeopardy
accused is not guilty. Dismissals terminate are:
the proceedings, either because the court is
not a court of competent jurisdiction or the 1. The dismissal must be sought by the
evidence does not show that the offense was defendant personally or through his
committed within the territorial jurisdiction of counsel; and
the court, or the complaint or information is 2. Such dismissal must not be on the
not valid or sufficient in form and substance. merits and must not necessarily
amount to an acquittal.
 When is a dismissal of the case, even
with the express consent of the  Before the prosecution could finish
accused, equivalent to an acquittal, presenting its evidence, the accused
which would constitute a bar to a filed a demurrer to evidence. The court
second jeopardy? When is it not a bar granted the motion and dismissed the
to a second jeopardy? case on the ground of insufficiency of
evidence of the prosecution. Can the
A dismissal upon motion of the accused or accused be prosecuted for the same
his counsel negates the application of double offense again?
jeopardy because the motion of the accused
amounts to express consent, EXCEPT: Yes. There was no double jeopardy because
the court exceeded its jurisdiction in
1. if the ground is insufficiency of dismissing the case even before the
evidence of the prosecution (demurrer prosecution could finish presenting evidence.
to evidence), or It denied the prosecution of its right to due
2. denial of the right to speedy trial. process. Because of this, the dismissal is
null and void and cannot constitute a proper
In these two cases, even upon motion of the basis for a claim of double jeopardy.
accused, the dismissal amounts to an
acquittal and would bar a second jeopardy.  The prosecutor filed an information
against X for homicide. Before X could
 43
be arraigned, the prosecutor withdrew No. X cannot invoke double jeopardy. The
the information, without notice to X. dismissal was upon his own motion, so it was
The prosecutor then filed an with his express consent. Since the
information against X for murder. Can dismissal was with his express consent, he is
X invoke double jeopardy? deemed to have waived his right against
double jeopardy. The only time when a
No. X has not yet been arraigned under the dismissal, even upon motion of the accuse,
first information. Therefore, the first will bar a second jeopardy is if it is based
jeopardy did not attach. A nolle prosequi or either on insufficiency of evidence or denial
dismissal entered before the accused is of the right of the accused to speedy trial.
placed on trial and before he pleads is not These are not the grounds invoked by X, so
equivalent to an acquittal and does not bar a he cannot claim double jeopardy.
subsequent prosecution for the same
offense.  X was charged with homicide. X
moved to dismiss on the ground that
 If the accused fails to object to the the court had no jurisdiction. Believing
motion to dismiss the case filed by the that it had no jurisdiction, the judge
prosecution, is he deemed to have dismissed the case. Since the court, in
consented to the dismissal? Can he still fact, had jurisdiction over the case, the
invoke double jeopardy? prosecution filed another case in the
same court. Can X invoke double
No. Silence does not mean consent to the jeopardy?
dismissal. If the accused fails to object or
acquiesces to the dismissal of the case, he No. X is estopped from claiming that he was
can still invoke double jeopardy, since the in danger of being convicted during the first
dismissal was still without his express case, since he had himself earlier alleged
consent. He is deemed to have waived his that the court had no jurisdiction.
right against double jeopardy if he expressly
consents to the dismissal.  X was charged with homicide. The
court, believing that it had no
jurisdiction, motu propio dismissed the
 X was charged with murder. The case. The prosecution appealed,
prosecution moved to dismiss the case. claiming that the court, in fact, had
Counsel for X wrote the words “No jurisdiction. Can X invoke double
objection” at the bottom of the motion jeopardy?
to dismiss and signed it. Can X invoke
double jeopardy later on? Yes. When the trial court has jurisdiction but
mistakenly dismisses the complaint or
No. X is deemed to have expressly information on the ground of lack of it, and
consented to the dismissal of the case when the dismissal was not at the request of the
his counsel wrote “No objection at the accused, the dismissal is not appealable
bottom of the motion to dismiss. Since the because it will place the accused in double
case was dismissed with his express consent, jeopardy.
X cannot invoke double jeopardy.
 X was charged with rape. X moved to
 X was charged with murder. After dismiss on the ground that the
the prosecution presented its evidence, complaint was insufficient because it
X filed a motion to dismiss on the did not allege lewd designs. The court
ground that the prosecution failed to dismissed the case. Later, another case
prove that the crime was committed for rape was filed against X. Can X
within the territorial jurisdiction of the invoke double jeopardy?
court. The court dismissed the case.
The prosecution appealed. Can X No. Like the previous problem, X is estopped
invoke double jeopardy? from claiming that he could have been
convicted under the first complaint. He
 44
himself moved to dismiss on the ground that Conviction for less serious physical injuries
the complaint was insufficient. He cannot bars prosecution for assault upon a person in
change his position and now claim that he authority.
was in danger of being convicted under that
complaint. Reckless imprudence resulting in damage to
property and serious or less serious physical
 X was charged with murder, along injuries is only one offense. If it is slight
with three other people. X was physical injuries, it can be broken down into
discharged as a state witness. Can X be two offenses, since a light offense cannot be
prosecuted again for the same offense? complexed.

It depends. As a general rule, an order  X installed a jumper cable which

discharging an accused as a state witness allowed him to reduce his electricity
amounts to an acquittal, and he is barred bill. He was prosecuted for violating a
from being prosecuted again for the same municipal ordinance against
offense. However, if he fails or refuses to unauthorized installation of the device.
testify against his co-accused in accordance He was convicted. Can he still be
with his sworn statement constituting the prosecuted for theft?
basis for the discharge, he can be
prosecuted again. No. Under the second type of jeopardy,
when an act is punished by a law and an
 Can a person accused of estafa be ordinance, conviction or acquittal under once
charged with violation of BP22 without will bar a prosecution under the other. (But
placing him in double jeopardy? remember, that there has to be either
conviction or acquittal. Dismissal without
Yes. Where two different laws define two the express consent of the accused is not
crimes, prior jeopardy as to one of the is no sufficient).
obstacle to a prosecution of the other
although both offenses arise from the same  What are the exceptions to double
facts, if each crime involves some important jeopardy? When can the accused be
act which is not an essential element of the charged with a second offense which
other. Other examples: Illegal recruitment necessarily includes the offense
and estafa, illegal fishing and illegal charged in the former complaint or
possession of explosives, alarm and scandal information?
and illegal discharge of firearms, brigandage
and illegal possession of firearms, consented The conviction of the accused shall not be a
abduction and qualified seduction. bar to another prosecution for an offense
which necessarily includes the offense
But take note of the following: charged in the former complaint or
information under any of the following
Possession of a shotgun and a revolver by circumstances:
the same person at the same time is only
one act of possession, so there is only one 1. the graver offense developed due to
violation of the law. supervening facts arising from the
same act or omission constituting the
Conviction for smoking opium bars former charge;
prosecution for illegal possession of the pipe. 2. the facts constituting the graver
He cannot smoke the opium without the charge became known or were
pipe. discovered only after a plea was
entered in the former complaint or
Theft of 13 cows at the same time and in the information;
same place is only one act of theft. 3. the plea of guilty to the lesser
offense was made without the
consent of the prosecutor and the
offended party except if the offended
 45
party fails to appear at the appeal the decision. It would still place the
arraignment. accused in double jeopardy.

 What is the doctrine of supervening  When can the prosecution appeal

fact? despite the dismissal or termination of
the case?
If, after the first prosecution, a new fact
supervenes on which the defendant may be As a general rule, the dismissal or
held liable, altering the character of the termination of the case after arraignment
crime and giving rise to a new and distinct and plea of the defendant to a valid
offense, the accused cannot be said to be in information shall be a bar to another
second jeopardy if indicted for the new prosecution for the same offense, an attempt
offense. or frustration thereof, or one included or
which includes the previous offense. The
 X was charged with frustrated exceptions are:
homicide. There was nothing to
indicated that the victim was going to 1. if the dismissal of the first case was
die. X was arraigned. Before trial, the made upon motion or with the express
victim dies. Can X be charged with consent of the defendant, unless the
homicide? grounds are insufficiency of evidence
or denial of the right to speedy trial;
It depends. If the death of the victim can be 2. if the dismissal is not an acquittal or
traced to the acts of X, and the victim did not based upon consideration of the
contribute to his death with his negligence, X evidence or of the merits of the case;
can be charged with homicide. This is a and
supervening fact. But if the act of X was not 3. the question to be passed upon by the
the proximate cause of death, he cannot be appellate court is purely legal so that
charged with homicide. should the dismissal be found
incorrect, the case would have to be
 X was charged with reckless remanded to the court of origin for
imprudence resulting in homicide and further proceedings to determine the
was acquitted. The heirs of the victim guilt or innocence of the accused.
appealed the civil aspect of the
judgment. X claims that the appeal will  What is the effect of the appeal by
place him in double jeopardy. Is X the accused?
correct?
If the accused appeals, he waives his right
No. There was no second jeopardy. What against double jeopardy. The case is thrown
was elevated on appeal was the civil aspect wide open for review and a penalty higher
of the case, not the criminal aspect. The than that of the original conviction could be
extinction of criminal liability whether by imposed upon him.
prescription or by the bar of double jeopardy
does not carry with it the extinction of civil  What should the accused do if the
liability arising from the offense charged. court denies the motion to quash on the
ground of double jeopardy?
 X was charged with murder and was
acquitted. Can the prosecution appeal He should plead not guilty and reiterate his
the acquittal? defense of former jeopardy. In case of
conviction, he should appeal from the
No. The prosecution cannot appeal the judgment, on the ground of double jeopardy.
acquittal, since it would place the accused in
double jeopardy.  When can a case be provisionally
dismissed?
Even if the decision of acquittal was
erroneous, the prosecution still cannot
 46
A case can only be dismissed provisionally if  What is the form required for the pre-
the accused expressly consents, and with trial agreement?
notice to the offended party. Provisional
dismissal does not place the accused in Any agreement or admission entered into
double jeopardy. But, ff the accused objects during the pre-trial conference should be:
to the provisional dismissal, a revival of the
case would place him in double jeopardy. 1. in writing
2. signed by the accused
 When does the provisional dismissal 3. signed by counsel
become final?
Otherwise, it cannot be used against the
The provisional dismissal of offenses accused.
punishable by imprisonment exceeding 6
years or a fine of any amount shall become  What is a pre-trial order?
permanent after 1 year without the case
having been revived. It is an order issued by the court after the
pre-trial conference containing:
For offenses punishable by imprisonment of
more than 6 years, the provisional dismissal 1. a recital of the actions taken,
shall become permanent after 2 years 2. the facts stipulated, and
without the case having been revived. 3. the evidence marked.

After the provisional dismissal becomes final, The pre-trial order binds the parties, limits
the accused cannot be prosecuted anymore. the trial to matters not disposed of, and
controls the course of the action during the
RULE 118 PRE-TRIAL trial, unless modified by the court to prevent
manifest injustice.
 When is pre-trial required?
 What is plea bargaining? Why is it
Pre-trial is mandatory in all criminal cases encouraged?
cognizable by the Sandiganbayan, RTC,
MTCs and Municipal Circuit Trial Courts. It is the disposition of criminal charges by
agreement between the prosecution and the
 When should it be conducted? accused. It is encouraged because it leads
After arraignment and within 30 days from to prompt and final disposition of most
the date the court acquires jurisdiction over criminal cases. It shortens the time between
the person of the accused. charge and disposition and enhances
whatever may be the rehabilitative prospects
 What happens during pre-trial? of the guilty when they are ultimately
imprisoned.
The following things are considered:
 When is plea bargaining not allowed?
1. plea bargaining
2. stipulation of facts It is not allowed under the Dangerous Drugs
3. marking for identification of evidence Act where the imposable penalty is reclusion
of the parties perpetua to death.
4. waiver of objections to admissibility of
evidence RULE 119 TRIAL
5. modification of the order of trial if the
accused admits the charge but  How much time does the accused
interposes a lawful defense have to prepare for trial?
6. other matters that will promote a fair
and expeditious trial of the criminal After he enters his plea of not guilty, the
and civil aspects of the case accused shall have at least 15 days to
prepare for trial. The trial shall commence
 47
within 30 days from receipt of the pre-trial
order.  What are the periods that should be
excluded in computing the time within
 How long should the trial last? which trial must commence?

The entire trial period should not exceed 180 1. Any period of delay resulting from
days from the first day of trial, except if other proceedings concerning the
authorized by the Supreme Court. accused
2. Any period resulting from the
 What are the duties of the presiding absence or unavailability of an
judge under the continuous trial essential witness.
system? 3. Any period of delay resulting from
mental incompetence or physical
The judge should: inability of the accused to stand trial.
4. If the information is dismissed upon
1. adhere faithfully to the session hours motion of the prosecution and
prescribed by laws; thereafter a charge is filed against the
2. maintain full control of the accused for the same offense, any
proceedings; period of delay from the date the
3. efficiently allocate and use time and charge was dismissed to the date the
court resources to avoid court delays. time limitation would commence to
run as to the subsequent charge, had
 In which cases is the time limitation there been no previous charge. (say
not applicable? what?)
5. A reasonable period of delay when the
1. Criminal cases covered by the Rule on accused is joined for trial with a co-
Summary Procedure or those where accused over whom the court has
the penalty does not exceed 6 months not acquired jurisdiction, or as to
imprisonment or a fine of P1,000: whom the time for trial has not run
governed by the Rules on Summary and not motion for separate trial
Procedure has been granted.
6. Any period of delay from a
2. When the offended party is about to continuance granted by any court
depart with no definite date or return: motu propio, or on motion of either
trial shall commence within 3 days the accused or his counsel, or the
from the date of arraignment, and prosecution, if the court granted it on
cannot be postponed except on the basis of finding that the ends of
grounds of illness of the accused or justice served by taking such action
other grounds over which the accused outweigh the best interest of the
has no control public and the accused in a speedy
3. Child abuse cases: trial shall trial.
commence within 3 days from
arraignment and cannot be postponed  What are examples of other
except on grounds of illness of the proceedings concerning the accused
accused or other grounds beyond his which should be excluded from the
control computation of time?
4. Violations of Dangerous Drugs Law:
trial shall be finished within 3 months 1. Delay resulting from an examination
from filing of the information. of the physical and mental
5. Kidnapping, Robbery in a band, condition of the accused;
Robbery against a Banking or Financial 2. Delay resulting from proceedings with
Institution, Violation of the Carnapping respect to other criminal charges
Act, and other heinous crimes: trial against the accused;
shall be finished within 60 days from
the first day of trial.
 48
3. Delay resulting from extraordinary  Is the grant of a motion for
remedies against interlocutory continuance or postponement a matter
orders; of right?
4. Delay resulting from pre-trial
proceedings, provided that the delay No. It is a matter of discretion on the part of
does not exceed 30 days; the court.
5. Delay resulting from orders of
inhibition, or proceedings relating  What are the public attorney’s duties
to change of venue of cases or where his client is being preventively
transfer from other courts; detained?
6. Delay resulting from a finding of the
existence of a prejudicial question 1. He shall promptly undertake to obtain
7. Delay reasonably attributable to any the presence of the prisoner for trial,
period not to exceed 30 days during or cause a notice to be served on the
which any proceeding concerning the person having custody of the prisoner,
accused is actually under requiring such person to advise the
advisement. prisoner of his right to demand trial.
2. Upon receipt of that notice, the person
 When is an essential witness having custody of the prisoner shall
considered absent? promptly advise the prisoner of the
charge and of his right to demand
When his whereabouts are unknown or trial. It at anytime thereafter, the
cannot be determined with due diligence. prisoner informs his custodian that he
demands such trial, the latter shall
 When is an essential witness cause notice to that effect to be sent
considered unavailable? promptly to the public attorney.

When his whereabouts are known but his 3. Upon receipt of such notice, the public
presence at the trial cannot be obtained with attorney shall promptly seek to obtain
due diligence. the presence of the prisoner for trial.
4. When the person having custody of
 What are the factors for granting a the prisoner receives from the public
continuance/postponement? attorney a properly supported request
for the availability of the prisoner for
1. Whether or not the failure to grant a purposes of the trial, the prisoner shall
continuance in the proceeding would be made available accordingly.
likely make a continuation of such
proceeding impossible or result in a  If the accused is not brought to trial
miscarriage of justice; and within the time limit required, what is
2. Whether or not the case taken as a the remedy?
whole is so novel, unusual, and
complex, due to the number of The accused should move to dismiss the
accused or the nature of the information of the ground of denial of his
prosecution, or that it is unreasonable right to speedy trial. He shall have the
to expect adequate preparation within burden of proving the motion, but the
the periods of time established prosecution shall have the burden or proving
therein. that the delay was covered by the allowed
exclusions of time. If the complaint or
No continuance shall be granted because information is dismissed, the accused can
of congestion of the court’s calendar or plead double jeopardy to a subsequent
lack of diligent preparation or failure to prosecution.
obtain available witnesses on the part of
the prosecutor. The accused must move to dismiss before
actually going to trial. Otherwise, it is a
waiver of the right to dismiss.
 49
will be a reverse trial in which the accused
 What is the order of trial? will prove the elements of self-defense. This
is because the accused admits the act or
The trial proceeds in the following order: omission already. The prosecution need not
prove it anymore. The accused must now
1. The prosecution shall present present evidence to justify the commission of
evidence to prove the charge and civil the act.
liability, if proper.
2. the accused may present evidence to  Who may examine a defense witness?
prove his defense and damages, if Who may examine a prosecution
any, arising from the issuance of a witness?
provisional remedy in the case.
3. The prosecution and the defense may, A defense witness may be examined by any
in that order, present rebuttal and sur- judge or by any member of the bar in
rebuttal evidence, unless the court, in good standing designated by the judge, or
furtherance of justice, permits them to before an inferior court.
present additional evidence bearing
upon the main issue. On the other hand, a prosecution witness
4. Upon admission of the evidence of the may only be examined before the judge of
parties, the case shall be deemed the court where the case is pending.
submitted for decision unless the court
directs them to argue orally or to  If there are two or more accused,
submit written memoranda. should they be tried jointly or
separately?
However, when the accused admits the act
or omission charged in the complaint or As a general rule, when two or more accused
information, but interposes a lawful defense, are jointly charged with an offense, they
there will be a reverse trial. should also be tried jointly. However, the
court, in its discretion and upon motion of
 Distinguish between a negative the prosecutor or any accused, may
defense and an affirmative defense. order separate trial for one of the accused.

A negative defense requires the prosecution  What happens to the evidence

to prove the guilt of the accused beyond presented in the trial of the other
reasonable doubt. In a negative defense, the accused if a separate trial is granted?
accused claims that one of the elements of
the offense charged is not present. It is When a separate trial is demanded and
incumbent upon the prosecution to prove the granted, it is the duty of the prosecution to
existence of this element. For example, in repeat and produce all its evidence at each
illegal possession of firearms, the accused and every trial, unless it had been agreed by
may interpose the negative defense that he the parties that the evidence for the
had a license to carry the firearm. He cannot prosecution would not have to be repeated
be compelled by the prosecution to present at the second trial and all the accused had
the license. It is the duty of the prosecution been present during the presentation of the
to prove the absence of the license, which is evidence of the prosecution and their
an essential element of the offense charged. attorney had the opportunity to cross-
examine the witnesses for the prosecution.
On the other hand, in an affirmative defense,
the accused admits the act or omission  X, a public officer, was charged with
charged, but interposes a defense, which if malversation of public funds in
proven, would exculpate him. For example, conspiracy with Y, a civilian. Should
the accused admits killing the victim, but he they both be tried in the
claims that he did it in self-defense. In this Sandiganbayan?
case, the burden of proving the elements of
self-defense belong to the accused. There
 50
Yes. In case private individuals are charged 1. There is absolute necessity for the
as co-principals, accomplices, or accessories testimony of the accused whose
with public officers, they shall be tried jointly discharge is requested;
with said public officers in the proper courts 2. There is no direct evidence
which shall exercise exclusive jurisdiction available for the proper prosecution
over them. of the offense committed, except the
testimony of the said accused;
 What is a state witness? 3. The testimony of said accused can be
substantially corroborated in its
A state witness is one of two or more material points;
persons jointly charged with the 4. Said accused does not appear to be
commission of a crime but who is the most guilty;
discharged with his consent as such accused 5. Said accused has not at any time
so that he may be a witness for the State. been convicted of any offense
involving moral turpitude.
 When should the application for
discharge of the state witness be  Can the court grant the discharge
made? before the prosecution has finished
presenting all its evidence?
It should be made upon motion of the
prosecution before resting its case. No. The court should resolve any motion to
discharge only after the prosecution has
 What is the procedure? presented all of its evidence since it is at this
time when the court can determine the
1. Before resting its case, the presence of the requisites above.
prosecution should file a motion to
discharge the accused as state Although Chua v. CA (p. 703 of Herrera) says
witness with his consent. that the prosecution is not required to
present all its other evidence before an
2. The court will require the prosecution accused can be discharged. The accused
to present evidence and the sworn may be discharged at any time before the
statement of the proposed state defendants have entered upon their defense.
witness at a hearing in order to
support the discharge.  What is the meaning of “absolute
necessity” of the testimony of the
3. The court will determine if the proposed state witness?
requisites of giving the discharge are
present. Evidence adduced in support It means that there is no other evidence to
of the discharge shall automatically establish the offense other than the
form part of the trial. testimony of the accused. For example,
where an offense is committed in conspiracy
4. If the court is satisfied, it will and clandestinely, the discharge of one of
discharge the state witness. The the conspirators is necessary in order to
discharge is equivalent to an acquittal, provide direct evidence of the commission
unless the witness later fails or refuses of the crime. No one else other than one of
to testify. the conspirators can testify on what
happened among them.
5. If the court denies the motion for
discharge, his sworn statement shall  What is the remedy of the
be inadmissible as evidence. prosecution if the court denies the
motion to discharge?
 What are the requisites in order for a
person to be discharged as a state The State can file a petition for certiorari.
witness?
 51
 What are the effects of the As an exception however, the testimony of a
discharge? co-conspirator, even if uncorroborated, will
be considered sufficient if given in a
1. Evidence in support of the discharge straightforward manner and it contains
become part of the trial. But if the details which could not have been the result
court denies the motion to discharge, of deliberate afterthought.
his sworn statement shall be
inadmissible in evidence.  When can different offenses be tried
2. Discharge of the accused operates as jointly?
an acquittal and bar to further
prosecution for the same offense, When the offenses are founded on the same
EXCEPT if he fails or refuses to testify facts or form part of a series of offenses of
against his co-accused in accordance similar character, the court has the
with his sworn statement constituting discretion to consolidate and try them jointly.
the basis of the discharge. In this
case, he can be prosecuted again AND  What is a demurrer to evidence?
his admission can be used against
him. It is a motion to dismiss the case filed by the
defense after the prosecution rests on the
 What happens if the court improperly ground of insufficiency of the evidence of the
or erroneously discharges an accused prosecution.
as state witness (ex. he has been
convicted pala of a crime involving  What are the ways by which a case
moral turpitude)? may be dismissed on the basis of
insufficiency of evidence of the
The improper discharge will not render prosecution?
inadmissible his testimony nor detract from
his competency as a witness. It will also not There are two ways:
invalidate his acquittal because the acquittal
becomes ineffective only if he fails or refuses 1. the court may dismiss the case on its
to testify. own initiative after giving the
prosecution the right to be heard; or
 What happens when the original 2. upon demurrer to evidence filed by
information under which an accused the accused with or without leave of
was discharged is later amended? court.

A discharge under the original information is  How do you file a demurrer to

just as binding upon the subsequent evidence with leave of court?
amended information, since the amended
information is just a continuation of the Within 5 days after the prosecution rests, the
original. accused should file a motion for leave of
court to file a demurrer to evidence. In the
 Can the other conspirators be motion for leave of court, he should state his
convicted solely on the basis of the grounds. The prosecution shall have 5 days
testimony of the discharged state within which to oppose the motion.
witness?
If the leave of court is granted, the accused
No. There must be other evidence to shall file the demurrer to evidence within 10
support his testimony. The testimony of a days from notice of the grant of leave of
state witness comes from a polluted source court. The prosecution may oppose the
and must be received with caution. It should demurrer to evidence within 10 days from its
be substantially corroborated in its material receipt of the demurrer.
points.
 52
 What is the effect of filing the offense charged and the imposition on him of
demurrer to evidence with leave of the proper penalty and civil liability, if any.
court?
 What is the form required for the
If the court grants it, the case is dismissed. judgment?

If the court denies the demurrer to evidence The judgment must:

filed with leave of court, the accused may
still adduce evidence in his defense. 1. be written in the official language,
2. personally and directly prepared by
 What is the effect of filing the the judge,
demurrer to evidence without leave of 3. signed by him, and
court? 4. should contain clearly and distinctly a
statement of the facts and law upon
If the court denies the demurrer to evidence which it is based.
without leave of court, the accused is
deemed to have waived his right to present  If the judge has very strong beliefs
evidence and submits the case for judgment against the imposition of the death
on the basis of the evidence of the penalty, can he refuse to impose it upon
prosecution. This is because demurrer to an accused who is guilty of an offense
evidence is not a matter of right but is punishable with death?
discretionary on the court. You have to ask
for its permission before filing it, or else you No. The judge must impose the proper
lose certain rights. penalty provided for by the law, even if he is
against it. If he refuses to do so, it is grave
 What is the remedy of the accused if abuse of discretion amounting to lack of
the demurrer to evidence is denied? jurisdiction.

As a general rule, there can be no appeal or  What are the contents of the
certiorari from the denial of the demurrer to judgment?
evidence, since it is an interlocutory order,
which does not pass judgment on the merits If the judgment is of conviction, it shall state
of the case. The codal says that there is no the following:
certiorari, but J. Sabio says that if there was
grave abuse of discretion, there can be 1. the legal qualification of the
certiorari. offense constituted by the acts
committed by the accused and the
 When can a case be reopened? aggravating and mitigating
circumstances which attended its
At any time before finality of judgment of commission;
conviction, the judge may reopen the case 2. the participation of the accused,
either on his own volition or upon motion, whether as principal, accomplice, or
with hearing in either case, in order to avoid accessory;
a miscarriage of justice. 3. the penalty imposed upon the
accused;
The proceedings should be terminated within 4. the civil liability or damages, if any,
30 days from the order granting the unless the enforcement of the civil
reopening of the case. liability has been reserved or waived
by the offended party.
RULE 120 JUDGMENT
If the judgment is of acquittal, the decision
 What is judgment? shall state:

Judgment is the adjudication by the court 1. whether the evidence of the

that the accused is guilty or not guilty of the prosecution absolutely failed to prove
 53
the guilt of the accused or merely The judgment is void. The error goes into
failed to prove it beyond reasonable the very essence of the penalty and does not
doubt; and merely arise from the misapplication thereof.
2. if the act or omission from which the
civil liability might arise did not exist.  Does the judge need to designate the
particular provision of law violated?
 Is it necessary for the validity of the
judgment that the decision be If possible, he should. But if he fails to do so,
promulgated by the same judge who the judgment is not void, as long as his
heard the case? conclusions are based on some provision of
law.
No. A judgment promulgated by a judge
other than the one who heard the case is  Can the judge impose a penalty of
valid, provided that the judge who rendered reclusion perpetua or a fine of P10,000?
the judgment relied on the records taken
during the trial as a basis for his decision. No. The judge cannot impose alternative
penalties (using OR). The penalty imposed
 Why should the decision be in must be definite. When the judge imposes
writing, setting fort the facts and the alternative penalties, giving the defendant
law on which it is based? the right to choose which one to serve, he
gives discretion belonging to the court to the
1. To inform the parties of the reason for accused.
the decision so if any of them appeals,
he can point out to the appellate court  Can the judge impose a penalty of
the findings of facts or the rulings on reclusion perpetua and a fine of
point of law with which he disagrees. P10,000?
Also, so that the appellate court will
have something to pass judgment Yes, because in this case, the penalty is
upon. definite (it uses AND instead of OR).
2. To assure the parties that in reaching
the judgment, the judge did so  What is the importance of using the
through the process of legal proper terminology in the imposition of
reasoning. imprisonment penalties?

 Is a verbal judgment valid? The judge should use the proper legal
terminology of the penalties since each
No. A verbal judgment is incomplete penalty has its distinct accessory penalties
because it does not contain findings of fact, and effects.
and it is not signed by the judge. It may,
however, be corrected by putting it in writing  What is the remedy of the offended
and following the prescribed form. When it is party if the judgment fails to award civil
put in writing, it becomes a full blown liability?
judgment.
The offended party can appeal, go on
 Is an erroneous judgment valid? certiorari, or file for mandamus.

Yes. Error in judgment will not invalidate a  What constitutes civil liability arising
decision, so long as it conforms with the from crime?
requirements of the law.
Civil liability arising from crime includes
 Is a judgment which imposes a actual damages, moral damages, exemplary
penalty that does not exist or one that damages, and loss of earning capacity.
is impossible valid?
 When may attorney’s fees be
awarded?
 54
 Is there need for proof of pecuniary
Attorney’s fees may be awarded only when a loss in order that moral, nominal,
separate civil action to recover civil liability temperate, liquidated, or exemplary
has been filed or when exemplary damages damages may be adjudicated?
are awarded. The reason for this is that
there is no attorney in a criminal case, only a No. Art. 2216 of the Civil Code provides that
public prosecutor, who is compensated by no proof is needed. The assessment of the
the government. damage depends on the discretion of the
court.
 What is the difference between
“damage” and “damages”?  May damages be increased on
appeal?
Damage refers to the actionable loss
resulting from another person’s act or Yes. An appeal opens the whole case for
omission. review by the appellate court, and this
includes the award of damages.
On the other hand, damages refer to the sum
of money which can be awarded for the  What are nominal damages?
damage done.
Nominal damages are awarded in recognition
 When are exemplary damages of a violation of a right of the plaintiff when
awarded? no actual damage was done to him.

1. In criminal actions, when the crime  What is the civil liability of one who is
was committed with one or more guilty of illegal possession of firearms?
aggravating circumstances.
2. In quasi-delicts, if the defendant acted None.
with gross negligence.
3. In contracts and quasi-contracts, if the  What is the effect of the failure of the
defendant acted in a wanton, accused to object to a complaint or
fraudulent, reckless, oppressive, or information that charges more than one
malevolent manner. offense before he is arraigned?

 What are the mandatory awards in The court may convict him of as many
case of rape cases? offenses as are charged and proved and
impose on him the penalty for each offense.
In rape cases, a civil indemnity of P50,000 is The court must set out separately the
mandatory. An award of moral damages is findings of fact and law in each offense.
also mandatory without need or pleading or
proof.  When does an offense charged
necessarily include the offense proved?
If it is qualified rape, the mandatory civil
indemnity is P75,000. An offense charged necessarily includes an
offense proved when some of the essential
 What should the offended party prove elements or ingredients of the offense
do if he wants to claim actual damages charged constitute the offense proved.
or loss of earning capacity?
Example: Offense charged is homicide.
The offended party must show proof of the Offense proved is physical injuries.  Some
amount of the pecuniary loss, such as of the essential elements of homicide
receipts. However, if death results from the constitute physical injuries. Therefore, the
crime or the quasi-delict, the heirs need only offense charged (homicide) necessarily
to prove the fact of death in order to claim includes the offense proved (physical
actual or compensatory damages. injuries).
 55
 When is an offense charged
necessarily included in the offense People v. Abiera says that the accused
proved? charged with rape through one mode of
commission may still be convicted of the
An offense charged is necessarily included in crime if the evidence shows another mode of
the offense proved when the essential commission, provided that the accused did
ingredients of the offense charged constitute not object to such evidence.
or form part of the elements constituting the
offense proved. People v. Padilla says that the accused
cannot be convicted of rape of a mental
Example: Offense charged is acts of retardate if it is not alleged in the
lasciviousness. Offense proved is rape.  information.
The essential ingredients of acts of
lasciviousness form part of the elements of I think People v. Padilla is a better ruling
rape. Therefore, the offense charged (acts of because to convict the accused would violate
lasciviousness) is necessarily included in the his right to be informed of the nature and
offense proved (rape). cause of the accusation against him.

 What is the rule in case the offense  X was charged with rape. What was
charged is different from the offense proved at the trial was qualified
proved? seduction. Can X be convicted of
qualified seduction?
The accused can only be convicted of the
lesser offense, which is included in the No. Although qualified seduction is a lesser
graver offense either proved or charged. offense than rape, the elements of the two
The reason for this is that the accused can are different. Qualified seduction is not
only be convicted of the offense which is included in the crime of rape. Therefore, if
both charged and proved. the court convicts him of qualified seduction,
it will violate his right to be informed of the
Example: If the offense charged is rape and nature and cause of the accusation against
the offense proved is acts of lasciviousness, him, since some elements of qualified
he can only be convicted of acts of seduction were not charged.
lasciviousness. If the offense charged is less
serious physical injuries and the offense  How is the judgment promulgated?
proved is serious physical injuries, he can
only be convicted of less serious physical The judgment is promulgated by reading it in
injuries. its entirety in the presence of the accused by
any judge of the court in which it was
 X was charged with willful homicide. rendered. When the judge is absent or
What was proved was homicide through outside the province or city, the judgment
reckless imprudence. Under which may be promulgated by the clerk of court.
offense should X be convicted?
 Can there be promulgation of
X should be convicted of homicide through judgment in the absence of the
reckless imprudence. The offense done accused?
through negligence is lesser than the one
done willfully. Judgment must be promulgated in the
presence of the accused. But if the
 X was charged with rape by force and conviction is for a light offense, judgment
intimidation. At the trial, it was proved may be promulgated in the presence of his
that X raped a mental retardate. Can X counsel or representative. Also, if the
be convicted or rape of a mental accused fails to attend the promulgation,
retardate? even if he was notified thereof, or if he
jumped bail or escaped from prison,
There are conflicting decisions:
 56
judgment may be validly promulgated in  When may a judgment of conviction
absentia. be modified or set aside by the court
that rendered it?
 What happens if only the dispositive
portion of the judgment is read to the A judgment of conviction may be modified or
accused? set aside by the court that rendered it:

The first jeopardy will not validly terminate. 1. upon motion of the accused, and
The judgment must be promulgated in its 2. before judgment has become final or
entirety, not just the dispositive portion. appeal has been perfected.

 Where should judgment be  When does a judgment become final?

promulgated if the accused is confined
in a province outside of the territorial Except where death penalty is imposed,
jurisdiction of the court? judgment becomes final:

If the accused is confined or detained in 1. after the lapse of time for perfecting
another province or city, the judgment may an appeal;
be promulgated by the executive judge of 2. when the sentence has been partially
the RTC with jurisdiction over the place of or totally satisfied;
confinement upon request of the court that 3. when the accused has expressly
rendered the decision. The court waived in writing his right to appeal;
promulgating the judgment can also accept or
notices of appeal and applications for bail, 4. when the accused has applied for
unless the court that rendered the decision probation.
changed the nature of the offense from non-
bailable to bailable, in which case, the  X, a 16 year-old, was charged with
application for bail can only be filed with the theft. After hearing, the court found
appellate court. that he committed the acts charged.
What should the court do?
 What happens if the accused fails to
appear on the date of promulgation of The court should determine the imposable
judgment despite notice? penalty, including the civil liability. However,
instead of pronouncing a judgment of
The promulgation shall be made by recording conviction, the court should automatically
the judgment in the criminal docket and suspend the sentence and commit the minor
serving the accused a copy thereof at his last to the DSWD or other institution until he
known address or through his counsel. reaches the age of majority. (And on his 18th
birthday, Happy Birthday, he will go straight
If the judgment is of conviction, the accused to jail. This is so strange.)
who fails to appear at the promulgation shall
lose the remedies available to him against The exceptions to suspension of sentence in
the judgment, and the court shall order his case of youthful offenders are:
arrest.
1. if the offender has enjoyed a previous
Within 15 days from promulgation, the suspension of sentence;
accused can surrender and file a motion for 2. if the offender is convicted of an
leave of court to avail of these remedies. He offense punishable by death or life
shall state the reason for his failure to attend imprisonment;
the promulgation, and if he is able to justify 3. if the offender is convicted by a
his absence, he shall be allowed to avail of military tribunal.
these remedies within 15 days from notice.
This does not apply if, at the time of
sentencing, the offender is already of age,
 57
even if he was a minor at the time of the of justice and the best interest of the public
commission of the offense. will be served by the grant of probation.

 When should an adult offender apply  When should the court deny the
for probation? application for probation?

The offender should apply for probation after The application should be denied if the court
conviction within the period for perfecting an finds that:
appeal.
1. the offender is in need of correctional
 Can the defendant still file for treatment that can be provided most
probation if he has already perfected an effectively by his commitment to an
appeal? institution;
2. there is an undue risk that during the
An application for probation may not be filed period or probation, the offender will
if the defendant has already perfected an commit another crime; or
appeal from the judgment of conviction. 3. probation will depreciate the
Once the appeal is perfected, it may no seriousness of the offense committed.
longer be withdrawn to apply for probation.

 Can the defendant still appeal if he

has filed for probation?
 When does the probation order take
No. The filing of an application for probation effect?
is deemed a waiver of the right to appeal.
A probation order shall take effect upon its
 Is the grant of probation a matter of issuance, at which time the court shall
right upon application by the inform the offender of the consequences
defendant? thereof and explain that upon his failure to
comply with any of the conditions, he shall
No. It is a mere privilege, and the grant is serve the penalty imposed for the offense.
discretionary upon the court.
 What is the effect of probation on the
 Can there be probation if the penalty civil liability of the accused?
is merely a fine?
Probation does not release civil liability.
Yes. In those cases where the penalty is a However, in its discretion, the court may
fine, and the defendant cannot pay, he has provide for the manner of payment by the
to serve subsidiary imprisonment. This is accused of the civil liability during the period
where probation or suspension of sentence of probation.
becomes relevant.
 What is the duration of the period of
 Can the defendant appeal from an probation?
order denying the application for
probation? 1. If the defendant was sentenced to
imprisonment of not more than one
No. year, probation shall not exceed 2
years.
 What is the court mandated to do 2. If the term of imprisonment is more
before placing an accused on than one year, probation shall not
probation? exceed 6 years.
3. If the penalty is only a fine and the
The court should order a post sentence offender is made to serve subsidiary
investigation to determine whether the ends imprisonment in case of insolvency,
the period of probation shall not be
 58
less than nor be more than twice the and further proceedings. It is only proper
total number of days of subsidiary after rendition or promulgation of judgment.
imprisonment.
In a reconsideration, the case is not
 Ex: Subsidiary imprisonment is 10 reopened for further proceeding. The court
days. The period of probation should is merely asked to reconsider its findings of
not be less than 10 days but not more law in order to make them conformable to
than 20 days. the law applicable to the case.

 Can the grant of probation be  What are the grounds for a new trial?
revoked?
1. That errors of law or irregularities
Yes. Probation is revocable before the final prejudicial to the substantial rights of
discharge of the probationer by the court for the accused have been committed
violation of any of its conditions. Once it is during the trial (errors of law or
revoked, the court should order the arrest of irregularities);
the probationer so that he can serve the 2. That new and material evidence has
sentence originally imposed. The period of been discovered which the accused
probation is not deducted from the penalty could not with reasonable diligence
imposed. have discovered and produced at the
trial and which if introduced and
 Upon the lapse of the period of admitted would probably change the
probation, is the case against the judgment (newly discovered
probationer automatically terminated? evidence).

No. After the period of probation, the court 3. If the case is being heard by the CA or
still has to order the final discharge of the SC, it may determine other grounds in
probationer upon finding that he has fulfilled the exercise of its discretion.
the terms and conditions of his probation.
Only upon the issuance of this order is the  What are the grounds for
case terminated. reconsideration?

 What is the effect of the final Errors of law or fact in the judgment.
discharge?
 Are the mistakes of counsel in
It shall operate to restore the probationer to conducting the case valid grounds for a
all civil rights lost or suspended as a result of motion for a new trial?
his conviction. His is also fully discharged of
his liability for any fine imposed as to the No. The mistakes of counsel generally bind
offense for which probation was granted. the client, unless he misrepresented himself
as a lawyer when he was in fact a plumber
RULE 121 NEW TRIAL OR (or some other occupation). A new trial may
RECONSIDERATION also be granted where the incompetency of
the counsel is so great that the defendant is
 What is the purpose of a new trial? prejudiced and prevented from fairly
presenting his defense and where the error
It is to temper the severity of a judgment or of counsel is serious.
prevent the failure of justice.
 What are the requisites for granting a
 Distinguish between new trial and new trial on the ground of newly
reconsideration. discovered evidence?

In a new trial, the case is opened again, after 1. The evidence must have been
judgment, for the reception of new evidence discovered after trial;
 59
2. Such evidence could not have been the accused beyond reasonable doubt
discovered and produced at the without the testimony of the offended party.
trial even with the exercise of
reasonable diligence;  Can the accused move for a new trial
3. The evidence is material, not merely if he has found evidence that would
cumulative, corroborative, or impeach the testimony given by a
impeaching; prosecution witness?
4. The evidence must go to the merits,
such that it would produce a different No. Evidence which merely seeks to
result if admitted. impeach the evidence upon which the
conviction was based will not constitute
 What is a recantation? Is it a ground grounds for new trial. It has to be material
for a new trial? evidence.

It is when a prior statement is withdrawn  When is evidence considered to be

formally and publicly by a witness. material?

It is not a ground for granting a new trial It is material if there is reasonable likelihood
because it makes a mockery of the court and that the testimony or evidence could have
would place the investigation of truth at the produced a different result (the accused
mercy of unscrupulous witnesses. Moreover, would have been acquitted).
retractions are easy to extort out of
witnesses. In contrast, their previous  What is the form required for a
statements are made under oath, in the motion for new trial or motion for
presence of the judge, and with the reconsideration?
opportunity to cross-examine. Therefore, the
original testimony should be given more The motion for new trial or reconsideration
credence. should:

However, the exception to this rule is when 1. be in writing;

aside from the testimony of the retracting 2. state the grounds on which it is based;
witness, there is not other evidence to 3. if based on newly discovered evidence
support the conviction of the accused. In (for new trial), be supported by
this case, the retraction by the sole witness affidavits of witnesses by whom such
creates a doubt in the mind of the judge as evidence is expected to be given or
to the guilt of the accused. A new trial may authenticated copies of documents to
be granted. be introduced in evidence.

But if there is other evidence independent of Notice of the motion for new trial or
the retracted testimony, there can be no new reconsideration should be given to the
trial. prosecutor.

 Distinguish between a recantation  What is the effect of the grant of the

and an affidavit or desistance. motion for new trial?

In a recantation, a witness who previously 1. If it is based on errors of law or

gave a testimony subsequently declares that irregularities committed during the
his statements were not true. trial, all the proceedings and evidence
affected by the error or irregularity will
In an affidavit of desistance, the complainant be set aside. The court may, in the
states that he did not really intend to interest of justice, allow the
institute the case and that he is no longer introduction of additional evidence.
interested in testifying or prosecuting. It is a This is called trial de novo.
ground for dismissing the case only if the
prosecution can no longer prove the guilt of
 60
2. If it is based on newly discovered accused in double jeopardy. However, the
evidence, the evidence already offended party may appeal the civil aspect of
adduced will stand. The newly the case.
discovered evidence and whatever
other evidence the court will allow to
be introduced shall be taken and  How is appeal taken?
considered together with the evidence
already on record. APPEAL FROM THE HOW?
TO DECISION OF
3. In all cases – whether the court grants RTC MTC File a notice
new trial or reconsideration – the of appeal
original judgment shall be set aside or with the
vacated and a new judgment MTC and
rendered. serve a copy
of the notice
 Why is the accused not subjected to to the
double jeopardy when a new trial or adverse
reconsideration is granted? party
CA RTC in the File a notice
First, because it is only granted upon motion exercise of its of appeal
of the accused. Also, the first jeopardy is original with the RTC
never terminated, since the original jurisdiction and serve a
judgment is set aside and replaced with a copy of the
new one. notice to the
adverse
RULE 122 APPEAL party
CA RTC in the File a
 Is appeal a part of due process: exercise of its petition for
appellate review with
Appeal is not a part of due process except jurisdiction the CA
when provided by law. If the right to appeal under Rule
is granted by law, it is statutory and must be 42
exercised in accordance with the procedure SC RTC where the File a notice
laid down by law. It is compellable by penalty imposed of appeal
mandamus. is reclusion with the RTC
perpetua or life and serve a
 Where should the appeal be filed? imprisonment, copy of the
OR where a notice to the
1. If the case was decided by the MTCs, lesser penalty is adverse
the appeal should be filed with the imposed for party
RTC. offenses
2. If the case was decided by the RTC, committed on
the appeal should be filed with the CA the same
or the SC in proper cases provided by occasion or
law. which arose out
3. If the case was decided by the CA, the of the same
appeal should be filed with the SC. occurrence that
gave rise to the
 Can the prosecution appeal a offense
judgment of acquittal? punishable by
death, reclusion
No. A judgment of acquittal becomes final perpetua or life
immediately after promulgation. It cannot imprisonment
even be the subject of certiorari. The reason SC RTC imposing Automatic
for this rule is that an appeal would place the the death review by
 61
penalty the SC When an appeal has been perfected, the
SC All other Petition for court a quo loses jurisdiction.
appeals, except review on
the two cases certiorari  What is the difference between the
above under Rule appeal of a judgment and the appeal of
45 an order?
SC Sandiganbayan Petition for
review on The appeal from a judgment must be
certiorari perfected within 15 days from
under Rule promulgation. The appeal from an order
45 should be perfected within 15 days from
notice of the final order.

 A, B, C, D, and E were all charged  A and B were convicted of murder.

with murder, punishable by death. A, Only A appealed from the conviction.
B, and C were charged as principals. D Should the decision of the appellate
was charged as an accomplice. E was court bind B?
charged as an accessory. All of them
were convicted. To whom should they It depends. If the decision of the appellate
appeal? court would be beneficial to B, it should
affect him. But if the decision would not
A, B, and C’s case will be automatically benefit him, it should not bind him.
reviewed by the SC without need for notice
of appeal, since the penalty imposable is  What is the effect of the appeal by
death. D and E should also appeal to the SC the offended party of the civil aspect of
because although the penalty imposable is the judgment on the criminal aspect?
not death, the offense arose out of the same
occurrence that gave rise to the offense Nothing.
punishable by death. The reason for this rule
is so that only one court will review on  Can an appeal that has already been
appeal the single case involving different perfected by withdrawn by the
defendants. This would prevent a variance appellant?
or conflict in the decisions of the SC and the
CA. If the records have not yet been transmitted
to the appellate court, the court that
 How is an appeal perfected? rendered the judgment has the discretion to
allow the appellant to withdraw the appeal.
An appeal is perfected by filing a notice of If the appeal is withdrawn, the judgment
appeal with the court in which the judgment shall become final.
or order was rendered, and by serving a copy
thereof upon the adverse party or his If the records have already been transmitted
attorney within the period for perfecting an to the appellate court, only the appellate
appeal. court may decide whether to grant the
motion to withdraw the appeal, and only
 Within what period must appeal be before the judgment is rendered in the case
perfected? on appeal.

An appeal must be perfected within 15 days  Is counsel de oficio still required to

from promulgation of the judgment or from represent his client on appeal?
notice of the final order appealed from.
Yes. The duty of counsel de oficio does not
 What is the effect of the perfection of terminate upon judgment of the case. It
an appeal? continues until appeal.
 62
RULE 123 PROCEDURE IN THE
MUNICIPAL TRIAL COURTS It is an order in writing issued in the name of
the People of the Philippines, signed by a
Important stuff: judge and directed to a peace officer,
commanding him to search for personal
1. Preliminary conference: Before property described therein and bring it
conducting the trial, the court shall before the court.
call the parties to a preliminary
conference during which:  Distinguish between a search warrant
and a warrant of arrest.
a. a stipulation of facts may be
entered into, SEARCH WARRANT OF
b. the propriety of allowing the WARRANT ARREST
accused to plead guilty to a The applicant must The applicant must
lesser offense may be show: show:
considered, and
c. other matters may be taken up 1. that the 1. probable cause
to clarify the issues and to items sought that an offense
ensure a speedy disposition of are in fact has been
the case. seizable by committed; and
virtue of
2. Prohibited pleadings and motions: being 2. that the person
connected to be arrested
a. motion to dismiss the complaint with criminal committed it
or to quash the complaint or activity; and
information on the ground of
lack of jurisdiction over the 2. that the
subject matter, or failure to items will be
refer the case to the lupon. found in the
b. Motion for a bill or particulars place to be
c. motion for new trial, or for searched.
reconsideration of a judgment, The judge must The judge need not
or for reopening of trial; conduct a personal, conduct a personal
d. petition for relief from searching examination of the
judgment; examination of the applicant and his
e. motion for extension of time to applicant and his witnesses. He may
file pleading, affidavits, or any witnesses rely on the affidavits of
other paper; the witnesses and the
f. memoranda; recommendation of the
g. petition for certiorari, prosecutor.
mandamus, or prohibition
against any interlocutory order  Why are the requirements for the
issued by the court; issuance of a search warrant more
h. motion to declare the defendant stringent than the requirements for the
in default; issuance of a warrant of arrest?
i. dilatory motions for
postponement; The violation of the right to privacy produces
j. reply; a humiliating effect which cannot be rectified
k. third-party complaints; anymore. This is why there is no other
l. interventions. justification for a search, except a warrant.
On the other hand, in a warrant of arrest, the
person to be arrested can always post bail to
RULE 126 SEARCH AND SEIZURE prevent the deprivation of liberty.

 What is a search warrant?

 63
 Where should the application for 5. particularly describing the place to
search warrant be filed? be searched and the items to be
seized
As a general rule, it should be filed with the 6. the sworn statements together with
court within whose territorial jurisdiction the the affidavits of the witnesses must be
crime was committed. attached to the record.

But for compelling reasons, it can be filed  When is the affidavit or testimony of
with the court within whose judicial region the witness said to be based on
the offense was committed or where the personal knowledge?
warrant is to be served.
The test is whether perjury could be charged
Example of this: The drug syndicate against the witness.
stores its drugs in Pasay. It has
connections in Pasay and can easily  Is it necessary that the person named
get a tip when the police officers will in the search warrant be the owner of
file for a search warrant. To avoid the the things to be seized?
drug syndicate from getting a tip of
the impending search, the police No. Ownership is of no consequence. What
officer may apply for a search warrant is relevant is that the property is connected
in Makati (within the RTC region), to an offense.
stating the compelling reason.
 What are the requisites of the
But, if the criminal action has already been personal examination that the judge
filed, the application for a search warrant can must conduct before issuing the search
only be made in the court where the criminal warrant?
action is pending.
The judge must:
 What may be the subject of a search
warrant? 1. examine the witnesses personally;
2. under oath;
Personal property, which is: 3. and reduced to writing in the form of
searching questions and answers.
1. subject of the offense,
2. stolen or embezzled and other  What is a “scatter shot warrant”?
proceeds or fruits of the offense, or
3. used or intended to be used as the It is a warrant of arrest that is issued for
means of committing an offense. more than one offense. It is void, since the
law requires that a warrant of arrest should
 What are the requisites for issuing a only be issued in connection with one
search warrant? specific offense.

1. There must be probable cause  A warrant was issued for the seizure
2. Which must be determined of drugs connected with “violation of
personally by the judge the Dangerous Drugs Law.” Is the
3. upon personal examination in warrant valid?
writing and under oath of the
complainant and his witnesses in the The warrant is valid. Although there are
form of searching questions and many ways of violating the Dangerous Drugs
answers on facts personally Law, it is not a scatter shot warrant since it is
known to them in connection with only one penal law.
4. the probable cause must be in
connection with one specific offense
 64
 Police officers applied for a warrant It is valid for 10 days, after which the peace
to search Door #1 of an apartment officer should make a return to the judge
complex. The court issued the warrant. who issued it. If the peace officer does not
When the went to the apartment make a return, the judge should summon
complex, they realized that what they him and require him to explain why no return
thought was Door #1 was actually Door was made. If the return was made, the judge
#7. Can they search Door #7? should determine if the peace officer issued
a receipt to the occupant of the premises
No. What is controlling is what is stated in from which the things were taken. The judge
the warrant, not what the peace officers had shall also order the delivery to the court of
in mind, even if they were the ones who the things seized.
gave the description to the court. This is to
prevent abuses in the service of search  If the warrant was executed even
warrants. before the expiration of the ten-day
period, can the peace officer use the
 Can the police officer seize anything warrant again before it expires?
that is not included in the warrant?
No. If the purpose for which it was issued
No. Anything not included in the warrant has already been carried out, the warrant
cannot be seized EXCEPT if it is mala cannot be used anymore. The exception is if
prohibita, in which case, the seizure can be the search was not finished within one day,
justified under the plain view doctrine. the warrant can still be used the next day,
provided that it is still within the 10-day
Even if the object was related to the crime, period.
but it is not mentioned in the warrant nor is
it mala prohibita, it still cannot be seized. SUMMARY

 Police officers went to a house to 1. The Constitution does not prohibit all
execute a search warrant. They found a kinds of searches and seizures. It only
pistol on the table, but the pistol was prohibits unreasonable searches and
not included in the search warrant. Can seizures.
they seize the pistol? 2. A search and seizure is unreasonable
if it is made without a warrant, or the
No. It is not mala prohibita, and they have warrant was invalidly issued.
no proof that it is unlicensed. 3. A search and seizure without a
warrant is still reasonable if conducted
 What should the police officer or under the following circumstances:
court do to things seized illegally?
a. Incident to a lawful arrest
Anything seized illegally must be returned to
the owner unless it is mala prohibita. In this  It must be made AFTER the
case, it should be kept in custodia legis. arrest. The objective is to make
sure that the life of the peace
 When should the search warrant be officer will not be endangered.
executed?
 It must be contemporaneous
If possible, it should be executed during the with the arrest in both time and
daytime. But in certain cases, such as when place.
the things to be seized are mobile or are in
the person of the accused, it can be served b. Search of moving vehicles
during nighttime. c. Consent searches

 For how long is the search warrant  Only the person whose right
valid? may be violated can give the
consent; it is a personal right.
 65

 The requisites are:

(1) The person has

knowledge of his right against
the search;
(2) He freely gives his
consent in spite of such
knowledge.

d. Objects in plain view

 Requisites:

(1) There must have been a

prior valid intrusion,
and the officer must
have had a right to be
at the place searched at
the time of the search;
(2) The evidence was
inadvertently
discovered;
(3) The evidence must be
immediately apparent;
(4) There was no need for
further search.

e. Customs searches
f. Stop and Frisk/ Exigent
circumstances
g. Emergency