CRIMINAL

PROCEDURE
Remedial Law
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VII. CRIMINAL PROCEDURE 8. Remedies of accused if there was no

preliminary investigation
9. Inquest
TOPIC OUTLINE UNDER THE SYLLABUS:
E. ARREST
A. GENERAL MATTERS
1. Arrest, how made
1. Distinguish jurisdiction over subject matter
2. Arrest without warrant, when lawful
from jurisdiction over person of the accused
3. Method of arrest
2. Requisites for exercise of criminal
a. By officer with warrant
jurisdiction
b. By officer without warrant
3. Jurisdiction of criminal courts
c. By Private person
4. When injunction may be issued to restrain
4. Requisites of a valid warrant of arrest
criminal prosecution
5. Determination of probable cause for
issuance of warrant of arrest
B. PROSECUTION OF CRIMINAL OFFENSES
1. Criminal actions, how instituted
F. BAIL
2. Who may file them, crimes that cannot be
1. Nature
prosecuted de oficio
2. When a matter of right; exceptions
3. Criminal actions, when enjoined
3. When a matter of discretion
4. Control of prosecution
4. Hearing of application for bail in capital
5. Sufficiency of complaint or information
offenses
6. Designation of offense
5. Guidelines in fixing amount of bail
7. Cause of the accusation
6. Bail when not required
8. Duplicity of the offense; exception
7. Increase or reduction of bail
9. Amendment or substitution of complaint or
8. Forfeiture and cancellation of bail
information
9. Application not a bar to objections in illegal
10. Venue of criminal actions
arrest, lack of or irregular preliminary
11. Intervention of offended party
investigation
C. PROSECUTION OF CIVIL ACTION
G. ARRAIGNMENT AND PLEA
1. Rule on implied institution of civil action with
1. How made
criminal action
2. When should plea of not guilty be entered
2. When civil action may proceed
3. When may accused enter a plea of guilty to
independently
a lesser offense
3. When separate civil action is suspended
4. Accused plead guilty to capital offense, what
4. Effect of the death of accused or convict on
the court should do
civil action
5. Searching inquiry
5. Prejudicial question
6. Improvident plea
6. Rule on filing fees in civil action deemed
instituted with the criminal action
H. MOTION TO QUASH
1. Grounds
D. PRELIMINARY INVESTIGATION
2. Distinguish from demurrer to evidence
1. Nature of right
3. Effects of sustaining the motion to quash
2. Purposes of preliminary investigation
4. Exception to the rule that sustaining the
3. Who may conduct determination of
motion is not a bar to another prosecution
existence of probable cause
5. Double jeopardy
a. Distinguish: Executive and Judicial
6. Provisional dismissal
Determination of Probable Cause
4. Resolution of investigation prosecutor
I. PRE-TRIAL
5. Review
1. Matters to be considered during pre-trial
6. When warrant of arrest may issue
2. What the court should do when prosecution
7. Cases not requiring a preliminary
and offended party agree to the plea offered
investigation
by the accused

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3. Pre-trial agreement 5. Personal examination by judge of the

4. Non-appearance during pre-trial
5. Pre-trial order
J. TRIAL
1. Instances when presence of accused is
required by law
2. Requisite before trial can be suspended on
account of absence of witness
3. Trial in absentia
4. Remedy when accused is not brought to trial
within the prescribed period
5. Requisites for discharge of accused to
become a state witness
6. Effects of discharge of accused as state
witness
7. Demurrer to evidence
8. Guidelines on Continuous Trial
a. Applicability
b. Prohibited and Meritorious Motions
c. Arraignment and Pre-trial
d. Trial; Memoranda
e. Promulgation
K. JUDGMENT
1. Requisites of a judgment
2. Contents of judgment
3. Promulgation of judgment; instances of
promulgation of judgment in absentia
4. When does judgment become final
applicant and witness
6. Particularity of place to be searched and
things to be seized
7. Personal property to be seized
8. Exceptions to search warrant requirement
a. Search incidental to lawful arrest
b. Consented search
c. Search of moving vehicle
d. Check points; body checks in airport
e. Plain view situation
f. Stop and frisk situation
g. Enforcement of custom laws
9. Remedies from unlawful search and seizure
10. Cybercrime Warrants
a. Scope and Applicability
b. General Provisions
c. Preservation of Computer Data
d. Disclosure of Computer Data
e. Interception of Computer Data
f. Search, Seizure, and Examination of
Computer Data
g. Custody of Computer Data
h. Destruction of Computer Data
O. PROVISIONAL REMEDIES

L. NEW TRIAL OR RECONSIDERATION

1. Grounds for new trial
2. Grounds for reconsideration
3. Requisites before a new trial may be granted
on ground of newly discovered evidence
4. Effects of granting a new trial or
reconsideration

M. APPEAL
1. Effect of an appeal
2. Where to appeal
3. How appeal taken
4. Effect of appeal by any of several accused
5. Grounds for dismissal of appeal

N. SEARCH AND SEIZURE

1. Nature of search warrant
2. Distinguish from warrant of arrest
3. Application for search warrant, where filed
4. Probable cause for issuance of search
warrant

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A. GENERAL MATTERS Liberal Construction of the Rules of Procedure

Criminal Procedure
It is the method prescribed by law for the
apprehension and prosecution of persons
accused of any criminal offense and for their
punishment, in case of conviction.
It is the series of processes by which criminal laws
are enforced and by which the State prosecutes
persons who violate the penal laws. It regulates
the steps by which one who committed a crime is
punished. (PP v. Lacson, G.R. No. 149453, 2003)
The rules of criminal procedure shall be liberally
construed in favor of the accused and strictly
against the State to even the odds in favor of the
accused against whom the entire machinery of the
State is mobilized. It is construed as a legal
safeguard in furtherance of the rights of the
accused.
These Rules shall be liberally construed in order
to promote their objective of securing a just,
speedy and inexpensive disposition of every
action and proceeding (Rule 1, Sec. 6)

Whereas civil procedure is that branch of remedial Retroactive effect of the Rules on Criminal
law concerned with civil rights and redress of Procedure
private wrongs not amounting to crime. Rules of criminal procedure are given retroactive
application in so far as they benefit the accused.
Criminal law vs. Criminal Procedure (PP v. Baubayan, G.R. No. 112459, 2003).
CRIMINAL LAW CRIMINAL
PROCEDURE 1. DISTINGUISH JURISDICTION OVER
SUBJECT MATTER FROM JURISDICTION
Substantive Remedial or OVER PERSON OF THE ACCUSED
Procedural
It declares what acts It provides how the act JURISDICTION OVER JURISDICTION OVER
are punishable is to be punished SUBJECT MATTER THE PERSON OF
It defines crimes, treats It provides for the THE ACCUSED
for their nature and method by which a Derived from the law Acquired either by his
provides for their person accused of a arrest or his voluntary
punishment crime is arrested, tried, appearance in court.
and punished It can never be acquired May be acquired by
solely by consent of the consent of the accused
Note: The system of procedure in the Philippines accused. The parties or by waiver of
is accusatorial or adversarial where two cannot waive it. objections or failure to
contending parties appear before the court, which invoke the objection
hears them impartially and renders judgment only
after trial. (Queto v. Catolico, G.R. No. L-25204 & Objection that the court If he fails to make his
L-25219, 1970) has no jurisdiction over objection in time, he will
the subject matter may be deemed to have
Jurisdiction be made at any stage of waived it.
the proceeding and the
It is the power or authority given by the law to a
right to make such
court or tribunal to hear and determine certain
controversies. It is the power of courts to hear and objection is never
determine a controversy involving rights which are waived, even on
demandable. appeal.

Criminal Jurisdiction
It is the power of a State to try and punish a person
for a violation of its penal laws. (PP v. Mariano,
G.R. No. L-40527, 1976)

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2. REQUISITES FOR EXERCISE OF
CRIMINAL JURISDICTION
a. Jurisdiction Over Subject Matter
The offense, by virtue of the imposable penalty or
its nature, is one which the court is by law
authorized to resolve.
This jurisdiction is conferred by law, and not simply
by rules. The conferment must be clear and it
cannot be presumed. On the other hand, criminal
jurisdiction over a criminal case is determined by
the allegations in the complaint or information
(Mobilia Products v. Umezawa, G.R. No. 149357,
2005)
Note: For the Sandiganbayan, both the nature of
the offense and the positions occupied by the
accused are conditions sin qua non before the
Sandiganbayan can validly take cognizance of the
case. (Uy v. Sandiganbayan, G.R. No. 105965-70,
1999)
b. Jurisdiction Over Territory
The offense must have been committed or any of
its essential ingredients took place within the
territorial jurisdiction of the court. In criminal cases,
venue is an essential element of jurisdiction, thus,
cannot be waived (Navaja v. De Castro, G.R. No.
182926, 2015).
If the evidence adduced during the trial shows that
the offense was committed somewhere else, the
court should dismiss the action for want of
jurisdiction. (Treñas v People, G.R. No. 195002,
2012).
Exception/s:
1. Where the offense was committed under the
exceptional circumstances provided for in
Article 2 of the Revised Penal Code, the
offense is cognizable before Philippine courts
even if committed outside of the territory of the
Philippines.
Note: Article 2 of the RPC includes offenders
who (SCION)
a. Should commit an offense while on a
Philippine ship or airship;
REMEDIAL LAW
b. Should forge or counterfeit any coin or
currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands;
c. Should be liable for acts connected with the
introduction into these Islands of the
obligations and securities mentioned above.
d. While being public officers and employees,
should commit an offense in the exercise of
their functions; or
e. Should commit any of the crimes against
national security and the law of nations.
Crimes against national security include
treason, conspiracy and proposal to commit
treason, misprision of treason, espionage,
inciting to war and giving motives for
reprisal, violation of neutrality,
correspondence with hostile country and
flight to enemy’s country. Crimes against
laws of nations are piracy and mutiny.
2. Where an offense is committed on a railroad
train, in an aircraft, or in any other public or
private vehicle while in the course of its trip,
the criminal action may be instituted and tried
in the court of any municipality or territory
where such train, aircraft or other vehicle
passed during such trip, including the place
of departure and arrival [Rule 110, Sec. 15
(b)].
3. Where an offense is committed on board a
vessel in the course of its voyage, the
criminal action may be instituted and tried in
the proper court of the first port of entry or of
any municipality or territory through which the
vessel passed during such voyage subject to
the generally accepted principles of
international law [Rule 110, Sec. 15 (c)].
4. In those cases where the Supreme Court, in
the interest of truth and impartial justice and
pursuant to its constitutional powers,
transfers the place of trial from one place to
another.
5. Where the case is cognizable by the
Sandiganbayan, the jurisdiction depends
upon the nature of the offense and the
position of the accused. The offense need not
be tried in the place where the act was
committed but where the court actually sits.
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Note: When the greater convenience of the
accused and of the witnesses, or other
compelling considerations so require, a case
originating from one geographical region may
be heard in another geographical region.
(R.A. 8249, Sec. 2)
6. In cases of written defamation. The case may
be filed in the province or city where the
offended party held office at the time of the
commission of the offense if he is a public
officer, or in the province or city where he
actually resided at the time of the commission
of the offense in case the offended party is a
private individual. (RA. 4363)
7. In cases of illegal recruitment, the criminal
action can be filed in the Regional Trial Court
of the province or city where the crime was
committed or where the offended party
actually resides at the time the offense was
committed (R.A. 10022, Rule IV, § 6).
8. Trafficking in persons, criminal action shall be
filed where the offense was committed, or
where any of its elements occurred, or where
the trafficked person actually resides at the
time of the commission of the offense (R.A.
9208, § 9). The State shall exercise
jurisdiction over any act, even if committed
outside the Philippines and whether or not
such act or acts constitute an offense at the
place of commission, it being a continuing
offense, having been commenced in the
Philippines and other elements having been
committed in another country if the suspect
or accused:
a. Is a Filipino citizen,
b. Is a permanent resident of the Philippines,
or
c. Has committed the act against a citizen of
the Philippines.
No prosecution may be commenced if a
foreign government has prosecuted or is
prosecuting such person except upon the
approval of the Secretary of Justice. (R.A.
No. 9208, Sec. 26-A)
Note: This is a non-exclusive list. There are other
special penal laws which have extraterritorial
application.
REMEDIAL LAW
c. Jurisdiction Over The Person Of The
Accused
The person charged with the offense must have
been brought to the court’s presence for trial,
forcibly by warrant of arrest or upon his voluntary
submission to the court.
General Rule: Seeking affirmative relief is
deemed to be submission to the jurisdiction of the
court. It may be accomplished by filing a pleading
to the merits (such as through a motion to quash),
appearing for arraignment, entering trial, or by
filing bail. (Santiago v. Vasquez, G.R. No. 99289-
90, 1993)
Exceptions:
1. Motion to quash a complaint on the ground of
lack of jurisdiction over the person of the
accused
2. Motion to quash a warrant of arrest (Miranda
v. Tuliao, G.R. No. 158763, 2006).
Special Rule on Application for Admission to
Bail
In narrow cases involving special appearances, an
accused can invoke the processes of the court
even though there is neither jurisdiction over the
person nor custody of the law. However, if a
person invoking the special jurisdiction of the court
applies for bail, he must first submit himself to the
custody of the law.
Custody of Law v. Jurisdiction over the Person
(Miranda v Tuliao).
Jurisdiction over
Custody of Law
the person
Required before the Required for the
court can act upon the adjudication of other
application for bail reliefs
Accomplished by Acquired upon his
either arrest or arrest or voluntary
voluntary surrender appearance
One can be under the One can be subject to
custody of the law but the jurisdiction of the
not yet subject to the court over his person,
jurisdiction of the and yet not be in the
court over his person, custody of the law,
such as when a such as when an
person arrested by accused escapes
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virtue of a warrant custody after his trial
files a motion before has commenced
arraignment to quash
the warrant
Doctrine of Estoppel
General Rule: Lack of jurisdiction may be raised
at any stage of the proceedings, in the trial court
or on appeal. (US v. de la Santa, G.R. No. L-3181,
1907).
Exception: After voluntarily submitting a cause
and encountering an adverse decision on the
merits, it is too late for the loser to question the
jurisdiction or power of the court.
While the jurisdiction of a tribunal may be
challenged at any time, sound public policy bars
the petitioners from so doing after their having
procured that jurisdiction themselves, speculating
on the fortunes of litigation. (People v. Munar, G.R.
No. L-37642, 1973).
Determination of Criminal Jurisdiction (NPAL)
1. Determined by the Nature of the offense and/or
Penalty attached thereto and not what may be
meted out after trial but by the extent of the
penalty which the law imposes for the offense.
It is the imposable penalty over the lower
penalty that might be adjudged. (People v.
Purisima G.R. No. L-40902, 1976)
2. Determined by the Allegations in the complaint
or information, not by the result of proof or by
the trial court’s appreciation of the evidence
presented. It is also not determined by the
caption or charges in the complaint.
3. Determined by the Law in force at the time of
the institution of the criminal action (when the
action is filed) and not at the time of the
commission of the offense. (De la Cruz v.
Moya, G.R. No. L-65192, 1988)
Principle of Adherence of Jurisdiction
Once jurisdiction is vested in the court, it is
retained up to the end of litigation. It remains with
the court until the case is finally terminated. (Dela
Cruz v. Moya, G.R. No. L-65192, 1988)
REMEDIAL LAW
Once vested, jurisdiction cannot be withdrawn by:
1. Subsequent amendment or stipulation
(People v. Chupeco, G.R. No. 19568, 1964)
or;
2. Subsequent statutory amendment of the rules
of jurisdiction.
Exception: The succeeding statute:
a. Expressly provides otherwise; or
b. Is construed that it is intended to operate to
actions pending before its amendment (Binay
v. Sandiganbayan, G.R. No. 120011, 1999)
Jurisdiction is retained regardless of:
1. Whether the evidence proves a less offense
that that charged in the information
2. The subsequent happening of events, although
of a character which would have prevented
jurisdiction from attaching in the first instance.
3. JURISDICTION OF CRIMINAL COURTS
a. Criminal Jurisdiction Of The MTC And
RTC
Jurisdiction is based on violations committed and
penalty imposed.
Municipal Trial Court
1. Exclusive Original Jurisdiction
a. Over all violations of city or municipal
ordinances committed within their
respective territorial jurisdictions;
b. Over all offenses punishable with
imprisonment of not more than 6 years
irrespective of the amount of fine (prision
correccional);
c. Over all offenses punishable with fine only
amounting to not more than P4,000.00
without the penalty of imprisonment.
d. Over all offenses (except violations of RA
3019 and Arts. 210 to 212 of RPC)
committed by public officers and employees
in relation to their office, including those
employed in GOCCs and by private
individuals charged as co-principals,
accomplices or accessories, punishable
with imprisonment of not more than 6 years
or where none of the accused holds a
position classified as Grade “27” and higher;
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e. In all cases of damage to property through
criminal negligence, regardless of other
penalties and the civil liabilities arising
therefrom;
f. In cases of summary procedure for
violations of B.P. 22 (Bouncing Checks
Law). (A. M. No. 00-11-01-SC)
g. Summary procedure in cases of traffic
violations, violations of the rental law,
violations of city or municipal ordinances,
violations of BP 22, and all other offenses
where the penalty does not exceed 6
months imprisonment and/or P1,000 fine,
irrespective of other penalties or civil
liabilities arising therefrom, and in offenses
involving damage to property through
criminal negligence where the imposable
fine does not exceed P10,000.
h. Jurisdiction over cases where the
imposable penalty is destierro considering
that in the hierarchy of penalties under
Article 71 of the Revised Penal Code,
destierro follows arresto mayor which
involves imprisonment. (People v. Eduarte,
G.R. No. 88232, 1990)
2. Special Jurisdiction
Applications for bail in criminal cases in the
absence of all RTC judges in a province or city.
(B.P. 129, Sec. 35)
Municipal Trial Courts have no jurisdiction over
cases which by provision of special law fall within
the jurisdiction of the Regional Trial Courts or the
Sandiganbayan, even if the maximum penalty
prescribed by such special law is less than 6
years. Included in such exceptions are election
offenses, libel or written defamation, and violation
of Section 39 of the Dangerous Drugs Act of 1972
(R.A. No. 6425).
If a family court does not exist in the place of the
petitioner for an application of a temporary
protection order (TPO) or a permanent protection
order (PPO), it may be filed with the metropolitan
trial court, municipal trial court, municipal circuit
trial court with territorial jurisdiction over the place
of residence of the petitioner (Sec. 10, Anti-
Violence Against Women and Their Children Act
of 2004).
REMEDIAL LAW
The municipal trial court, metropolitan trial court,
or municipal circuit trial court that has territorial
jurisdiction over the barangay that issued the
barangay protection order (BPO) also has the
jurisdiction over complaints of violation of the BPO
(Sec. 21, Anti-Violence Against Women and Their
Children Act of 2004).
Regional Trial Court
1. Exclusive Original Jurisdiction
a. The Regional Trial Court shall have
jurisdiction over all criminal cases which are
not within the exclusive jurisdiction of any
court, tribunal or body and appeals from all
cases decided by lower courts in their
respective territorial jurisdiction.
Note: Those punishable by fine only
(without imprisonment) amounting to more
than P4,000.00 fall under the jurisdiction of
the RTC.
b. Over criminal cases specifically conferred
by special laws:
i. Libel and written defamation.
Administrative Order No. 104-96, 1996,
designated the RTC as a special court
having jurisdiction in libel cases.
ii. Violations of the Comprehensive
Dangerous Drugs Act of 2002.
Regardless of its penalty, the jurisdiction
falls within the Regional Trial Court
designated as Drugs Court. (People v.
Morales, G.R. No. 126623, 1997; RA.
No. 9165, Sec. 90).
iii. But if the case involves a minor, the
jurisdiction lies with the Family Courts.
(R.A. 8369, §5)
iv. Violations of intellectual property rights.
(A.M. No. 03-03-03-SC, 2003)
v. Election offenses
c. Jurisdiction over Money Laundering Cases
(except those committed by public officers
and private persons in conspiracy with such
public persons falling under the jurisdiction
of the Sandiganbayan).
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2. Appellate Jurisdiction 3. Special Jurisdiction

Over all cases decided by the MTC within its Jurisdiction to handle exclusively criminal cases as
territorial jurisdiction. designated by the Supreme Court.

MTC v. RTC Jurisdiction

MTC RTC
Jurisdiction Original Jurisdiction

1. Over all violations of city or municipal ordinances -

committed within their respective territorial
jurisdictions

2. Over all offenses punishable with imprisonment of Over all offenses punishable with imprisonment of
not more than 6 years irrespective of the amount of more than 6 years irrespective of the amount of
fine (prision correccional). fine (prision correccional).

3. Over all offenses punishable with fine only Over all offenses punishable with fine only
amounting to not more than P4,000.00 without the amounting to more than P4,000.00 without the
penalty of imprisonment. penalty of imprisonment

4. Over all offenses (except violations of RA 3019
and Arts. 210 to 212 of RPC) committed by public
officers and employees in relation to their office,
including those employed in GOCCs and by private
individuals charged as co-principals, accomplices or
accessories, punishable with imprisonment of not
more than 6 years or where none of the accused
holds a position classified as Grade “27” and higher;
Over all offenses (except violations of RA 3019
and Arts. 210 to 212 of RPC) committed by public
officers and employees in relation to their office,
including those employed in GOCCs and by
private individuals charged as co-principals,
accomplices or accessories, punishable with
imprisonment of more than 6 years or where none
of the accused holds a position classified as Grade
“27” and higher;

5. In all cases of damage to property through criminal -

negligence, regardless of other penalties and the civil
liabilities arising therefrom

6. In cases of summary procedure for violations of -

B.P. 22 (Bouncing Checks Law).

7. Summary procedure in cases of traffic violations, -

violations of the rental law, violations of city or
municipal ordinances, and all other offenses where
the penalty does not exceed 6 months imprisonment
and/or P1,000 fine, irrespective of other penalties or
civil liabilities arising therefrom, and in offenses
involving damage to property through criminal
negligence where the imposable fine does not
exceed P10,000.

8. Jurisdiction over cases where the imposable -

penalty is destierro considering that in the hierarchy
of penalties under Article 71 of the Revised Penal

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Code, destierro follows arresto mayor which involves

imprisonment.

- 9. Libel and written defamation.

- 10. Violations of the Comprehensive Dangerous

Drugs Act of 2002. Regardless of its penalty, the
jurisdiction falls within the Regional Trial Court
designated as Drugs Court (except when the case
involves a minor, it falls under the Family Courts).

- 11. Violations of intellectual property rights.

- 12. Election offenses.

- 13. Jurisdiction over Money Laundering Cases

(except those committed by public officers and
private persons in conspiracy with such public
persons falling under the jurisdiction of the
Sandiganbayan).

Special Jurisdiction Special Jurisdiction

Applications for bail in criminal cases in the absence Jurisdiction to handle exclusively criminal cases
of all RTC judges in a province or city. as designated by the Supreme Court.

Appellate Jurisdiction Appellate Jurisdiction

No appellate jurisdiction. Over all cases decided by the MTC within its
territorial jurisdiction.

Jurisdiction over Complex Crimes Jurisdiction of Family Courts

Jurisdiction over the whole complex crime is
lodged with the trial court having jurisdiction to
impose the MAXIMUM and MOST SERIOUS
penalty imposable of an offense forming part of the
complex crime. It must be prosecuted integrally
and must not be divided into component offenses,
which may be made subject of multiple information
brought in different courts. (Cuyos v. Garcia, G.R.
No. L-46934, 1988)
Jurisdiction over Continuing Crimes
Continuing offenses are consummated in one
place yet by the nature of the offense, the violation
of the law is deemed continuing (e.g. estafa and
libel). As such, the courts of the territories where
the ESSENTIAL INGREDIENTS of the crime took
place have concurrent jurisdiction.
The court which FIRST acquires jurisdiction
excludes the other courts (Morillo v. People, 775
Phil. 192 (2015)).
R.A. No. 8369 establishing the Family Court
granting it exclusive jurisdiction over child and
family cases names: criminal cases where one or
more of the accused is below 18 years of age but
not less than 9 years of age or where one or more
of the victim is a minor at the time of the
commission of the offense, provided that if the
minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the
accused may have incurred. (The sentence shall
be suspended without need of an application
pursuant to the “Child and Youth Welfare Code”).
The jurisdiction depends on the parties not the
penalty.(P.D. 603; See R.A. No. 10630)
If the minor involved in the case, either as the
victim or the child-in-conflict-with-law (accused), is
already dead, the regular courts will have
jurisdiction over the case. (People v. Yadao, G.R.
No. 162144-54, 2012).

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b. Jurisdiction Of The Sandiganbayan
Exclusive Original Jurisdiction in All Cases
Involving:
1. Violations of R.A. No. 3019 as amended (Anti-
Graft and Corrupt Practices Act).
2. Violations of R.A. No. 1379 (An Act Declaring
Forfeiture in favor of the state any property
found to have been unlawfully acquired by
Public Officer or Employee and providing for
the procedure therefore, which prescribes the
penalties for violation thereof).
3. Crimes mentioned in Chapter 2 Section 2 Title
VII Book 2 of the Revised Penal Code (i.e.
Art.210: Bribery, Art.211: Indirect Bribery, Art.
212: corruption of Public Officials).
4. Other offenses or felonies whether simple or
complexed with other crimes committed by
public officials and employees in relation to
their office.
The Offense is “in relation to the office”
when:
a. The offense is intimately connected with the
office of the offender and perpetrated while
he was in the performance of his official
functions
b. The crime cannot exist without the office
c. The office is a constituent element of the
crime as defined in the statute
If the character of being “in relation to his
office” is absent or is not alleged in the
information, the crime committed falls within
the exclusive original jurisdiction of ordinary
courts and not the Sandiganbayan.
5. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986;
6. Violations of R.A. No. 9160 as amended by
R.A. No. 9194 (Anti-Money Laundering Act of
2001) when committed by public officers and
private persons who are in conspiracy with
such public officers.
Officials under the Exclusive Jurisdiction of
the Sandiganbayan:
1. Officials of the EXECUTIVE branch, occupying
SALARY GRADE 27 or higher, specifically
including:
a. Provincial Governors, Vice Governors,
Members of the Sangguniang
REMEDIAL LAW
Panlalawigan, and Provincial Treasurers,
Assessors, Engineers and other Provincial
Department Heads
b. City Mayors, Vice Mayors, Members of the
Sangguniang Panlungsod and City
Treasurers, Assessors, Engineers and
other Provincial Department Heads
c. Officials of the diplomatic service occupying
the position of consul and higher
d. Philippine Army and Air Force Colonels,
Naval Captains and all officers of higher
rank
e. Officers of the PNP, while occupying the
position of provincial director and those
holding the rank of senior superintended or
higher
f. City and Provincial Prosecutors and their
assistants, and officials and prosecutors in
the Office of the Ombudsman and special
prosecutors
g. President/ Directors/ Trustees/ Managers of
GOCCs, state universities, or educational
institutions/foundations
Note: Those specifically mentioned herein (a-
g) need not be with a salary grade of 27 or
higher to be under the jurisdiction of the
Sandiganbayan. (Inding v. Sandiganbayan,
G.R. No. 143047, 2004)
2. Members of the CONGRESS and officials
thereof classified as Grade 27 and up;
3. Members of the JUDICIARY without prejudice
to Constitutional provisions;
4. Chairmen and members of CONSTITUTIONAL
COMMISSIONS without prejudice to
Constitutional provisions;
5. All other national and local officials classified as
Grade ’27’ and higher under the Compensation
and Position Classification Act of 1989;
6. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection “A” of this section in relation to their
office;
Note: For Sandiganbayan to have jurisdiction over
officers as enumerated under RA 10660, they
should have been officers at the time of the
commission of the crime, from the wording of RA
10660, “where one or more of the accused are
officials… at the time of the commission of the
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offense.” and not at the time of the
commencement of the case. (RA 10660, Sec.
4(a))
Note: In case private individuals are charged as
co-principals, accomplices or accessories with
public officers or employees, including those
employed in government-owned or controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over
them. (Disini v. Sandiganbayan, G.R. Nos.
169823-24, 2013)
Exception/s:
1. Election offenses – jurisdiction falls under the
Regional Trial Court as provided for in the
Omnibus Election Code even if they are
committed by public officers classified as
Grade 27 and higher and in relation to their
offices
2. Court Martial cases – offenses committed by
members of the Armed Forces and other
persons subject to military law are cognizable
by court martial if such offenses are “service
connected” as expressly enumerated in R.A.
No. 7055. If the particular offense is not one of
those enumerated in the law, the case falls
under either the regular courts or the
Sandiganbayan, as the case may be.
3. That the Regional Trial Court shall have
exclusive original jurisdiction where the
information:
a. Does not allege any damage to the
government or any bribery; or
b. Alleges damage to the government or
bribery arising from the same or closely
related transactions or acts in an amount
not exceeding One million pesos
(P1,000,000.00) (R.A. No. 10660).
Note: The civil case initiated first will be
suspended when a criminal case is filed in the
Sandiganbayan
REMEDIAL LAW
4. WHEN INJUNCTION MAY BE ISSUED TO
RESTRAIN CRIMINAL PROSECUTION
General Rule: Writs of injunction or prohibition to
restrain a criminal prosecution are NOT available
Exception:
1. To afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly administration
of justice or to avoid oppression or multiplicity
of actions
3. When there is a prejudicial question which is
sub judice
4. When the acts of the officer are without or in
excess of authority
5. Where the prosecution is under an invalid law,
ordinance or regulation
6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction over the
offense
8. Where it is a case of persecution rather than
prosecution
9. Where the charges are manifestly false and
motivated by the lust for vengeance
10. When there is clearly no prima facie case
against the accused and the motion to quash
on that ground has been denied. (Samson v.
Guingona, Jr. G.R. No. 123504, 2000)
Note: A preliminary injunction has been issued by
the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Lopez v. de la Cruz,
G.R. No. L-6229, 1954)
Note: As a general rule, mandamus cannot be
used to compel the exercise of discretion of the
prosecutor. The courts can issue a writ of
mandamus only to compel the prosecutor to
decide on the complaint but it cannot direct the
prosecutor what to decide. The prosecutor still has
the discretion on what to do, either to file
information with the court or dismiss the complaint.
However, the moment he finds one to be so liable
it becomes his inescapable duty to charge him
therewith and to prosecute him for the same. In
such a situation, the rule loses its discretionary
character and becomes mandatory. Thus, where
despite the sufficiency of the evidence before the
prosecutor, he refuses to file the corresponding
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information against the person responsible, he Effect of Institution of Criminal Action on

abuses his discretion. His act is tantamount to a
deliberate refusal to perform a duty enjoined by
law. (MBTC v Reynaldo, G.R. No. 164538, 2010)
Prescriptive Period
General Rule: The institution of the criminal action
interrupts the running of the period of prescription
of the offense charged.
Exception: Otherwise provided in special laws.

B. PROSECUTION OF CRIMINAL NOTE: There is no more distinction between

OFFENSES cases punished under the RPC and those covered
by SPLs. Irrespective of whether the offense
1. CRIMINAL ACTIONS, HOW INSTITUTED charged is punishable by the Revised Penal Code
or by a special law, it is the filing of the complaint
Criminal Action
or information in the office of the public prosecutor
One by which the State prosecutes a person for an
for purposes of the preliminary investigation that
act or omission punishable by law.
interrupts the period of prescription (Disini v.
Sandiganbayan, G.R. Nos. 169823-24, 2013).
Offenses Where a Preliminary Investigation is
required
HOWEVER, as provided in the Revised Rules on
Preliminary investigation is required for offenses
Summary Procedure, only the filing of an
where the penalty prescribed by law is AT LEAST
Information tolls the prescriptive period where the
4 years, 2 months and 1 day (prision correccional
crime charged is involved in an ordinance
max) of imprisonment without regard to the fine.
(Jadewell Parking v. Lidua, G.R. No. 169588
(Rule 112, Sec. 1(2))
October 7, 2013).
For all other offenses
Prescription of Crimes punished under the
It is instituted DIRECTLY with the Municipal Trial
RPC (Art. 90)
Court and Municipal Circuit Trial Court or the
complaint is filed with the Office of the Prosecutor. CRIME PRESCRIPTIVE
(Rule 110, Sec. 1) PERIOD

Crimes punishable by 20 years

A complaint for offenses cognizable by the
death, reclusion
Regional Trial Court is NOT filed directly with the
perpetua or reclusion
Regional Trial Court either for purposes of
temporal
preliminary investigation or for commencement of
the criminal prosecution. Crimes punishable by 15 years
other afflictive penalties
Rule for Manila and other Chartered Cities
The complaint shall be filed with the Office of the Crimes punishable by a 10 years
Prosecutor unless otherwise provided in their correctional penalty except arresto mayor,
charters (Rule 110, Sec. 1). 5 years

For offenses where preliminary investigation is not Crime of libel or other 1 year
required, for criminal offenses in Metro Manila or similar crimes
chartered cities, the complaint must be filed with
Crime of oral 6 months
the Office of the Prosecutor. In contrast, for defamation and slander
criminal offenses outside Metro Manila, the by deed
complaint/information must be filed with the
provincial prosecutor or directly with the Municipal Light offenses 2 months
Trial Courts.

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Act No. 3326 which the judgment of such proceedings

It governs the prescriptive periods of violations of becomes final and executory. (BP Blg. 881)
special laws, or offenses other than those b. Genocide law – crimes defined and penalized
penalized under the RPC. under the Philippine Act on Crimes Against
International Humanitarian Law, Genocide,
Prescriptive Period for Violation of Special and Other Crimes Against Humanity, their
Penal Laws prosecution, and the execution of sentences
CRIME PRESCRIPTIVE imposed on their account, shall not be subject
PERIOD to any prescription. (R.A. 9851)

Offenses punished only 1 year Katarungang Pambarangay Law Local

by a fine or by
imprisonment for not
more than one month, or
both
Offenses punished by
imprisonment for more
than month but less than
2 years
Offenses punished by
imprisonment for 2
years or more, but less
than 6 years
Government Code
Filing of the complaint before the Punong
Barangay shall interrupt the prescriptive period but
in no case shall the interruption exceed 60 days
from the filing of the complaint. (Sec. 410 (c) RA
4 years 7160)
However, the filing of a complaint for purposes of
preliminary investigation starts the prosecution
8 years process.
The Real Offended Party
It is the People of the Philippines.

Offenses punished by 12 years Since the crime is also an outrage against the
imprisonment for 6 PRIVATE OFFENDED PARTY, he is entitled to
years or more Except for treason, 20 intervene in its prosecution in cases where the civil
years action is IMPLIEDLY instituted therein. But the
State remains the principal offended party, the
Violations of municipal 2 months offense having been committed against the People
ordinances of the Philippines.

The only proceeding that could interrupt the
running of prescription is that which is filed or
initiated by the offended party before the
appropriate body or office. If the proceedings are
null and void, In contemplation of the law, no
proceedings exist that could have merited the
suspension of the prescriptive periods.
(Romualdez v. Marcelo, G.R. Nos. 165510-33,
2006)
Examples of laws that have their own
prescriptive periods:
a. Election offenses – shall prescribe after five
years after the date of their commission. If the
discovery of the offense be made in an
election contest proceedings, the period of
prescription shall commence on the date on
When the criminal action is instituted in the name
of the private offended party (or not People of the
Philippines), the defect is merely of form and may
be cured at any stage of the trial.
The Rules on Criminal Procedure do not require
as a condition sine qua non to the validity of the
proceedings (in the preliminary investigation) the
presence of the accused for as long as efforts to
reach him were made, and an opportunity to
controvert evidence of the complainant is
accorded him. The obvious purpose of the rule is
to block attempts of unscrupulous respondents to
thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics.
(Sierra v. Lopez, Adm. Case No. 7549, 2008)

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The Information: directly with the MTC/MCTC (for cases over which
1. Must be in writing; MTC has jurisdiction) (Rule 110, Sec. 1). .
2. In the name of the People of the Philippines;
and The complaint as defined under Section 3 is
3. Against all persons who appear to be different from the complaint filed with the
responsible for the offense involved (Rule 110, Prosecutor’s Office which refers to the one filed in
Sec. 2). COURT for the commencement of a criminal
prosecution for violation of a crime usually
The information must be “against all persons who cognizable by Municipal Trial Courts as well as to
appear to be responsible for the offense involved.” a complaint filed by an offended party in PRIVATE
While the prosecutor has discretion to determine CRIMES or those which cannot be prosecuted de
who should be included in the information, he can oficio.
be compelled by mandamus if he abuses his
discretion by refusing to include a person as a co- The COMPLAINT FILED WITH THE
accused despite sufficient evidence. (Guiao v. PROSECUTOR’S OFFICE, on the basis of
Figueroa, et. al, G.R. No. L-6481, 1954) which the prosecutor may conduct a
preliminary investigation, refers to:
However, before mandamus may be resorted to, 1. Any sworn written complaint;
the petitioner must exhaust all remedies in the 2. Filed by an offended party or any peace officer,
ordinary course of law (i.e. filing a motion in the or other public officer charged with the
trial court for such inclusion) (Aquino, et al. v. enforcement of law violated.
Mariano, et al., G.R. No. L-30485, 1984)
Under the Rules on Summary Procedure:
An infirmity in the information, such as lack of A complaint may be directly filed in the Municipal
authority of the officer signing it, cannot be cured Trial Court, provided that in Metro Manila and in
by silence, acquiescence, or even by express chartered cities, the criminal action may only be
consent. (Cudia v. Court of Appeals, G.R. No. commenced by the filing of information, which
110315, 1998) However, this shall not be a bar to means, only by the prosecutor, except when the
a subsequent prosecution under a subsequent offense cannot be prosecuted de oficio as in
valid information. private crimes (Sec. 11, Revised Rules on
Summary Procedure).
A Complaint:
1. Sworn written statement; Complaint vs. Information
2. Charging a person with an offense; and COMPLAINT INFORMATION
3. Subscribed by:
a. The offended party; Subscribed by the Subscribed by the
b. Any peace officer; or offended party, any prosecutor. It does not
c. Other public officer charged with the peace officer or other have to be subscribed
enforcement of the law violated (Rule 110, officer charged with the by the offended party
Sec. 3). enforcement of the law or any peace officer or
violated. other peace officer
Where a preliminary investigation is required (i.e., charged with the
where the imposable penalty is at least 4 years, enforcement of the
two months and 1 day), the complaint is filed with law.
the prosecutor (Rule 110, Sec. 1).
Filed either in the Filed in court.
Where a preliminary investigation is not required Municipal Trial Court or
(i.e., where the imposable penalty is less than 4 with the provincial/city
years, two months and 1 day), the complaint may prosecutor’s office.
be filed with the prosecutor (in Metro Manila) or

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Needs to be sworn Requires no oath.
Merely requires that it
be an accusation “in
writing.”
2. WHO MAY FILE THEM, CRIMES THAT
CANNOT BE PROSECUTED DE OFICIO
Persons Authorized to File a Complaint
1. Offended party;
2. Any peace officers;
3. Other public officer charged with the
enforcement of the law violated (Rule 112, Sec.
3)
Persons Authorized to File an Information
1. City or provincial prosecutor and their
assistants
2. Duly appointed special prosecutors (Rule 112,
Sec. 4)
Exception: Offenses or crimes that cannot be
prosecuted de oficio, such as:
a. In private offenses (concubinage, adultery,
seduction, abduction, acts of lasciviousness);
and
b. Defamations imputing any of the aforesaid
offenses wherein a sworn written complaint is
required in accordance with Section 5 of this
Rule.
Prosecution in the Regional Trial Courts is always
commenced by information.
A complaint containing private offenses and
defamation must be filed by the offended party.
In case of variance between the complaint filed by
the offended party and the information in crimes
against chastity, the complaint controls. (People v.
Oso, G.R. No. L-42571, 1935)
A defectively crafted information, such as that
alleging multiple offenses in a single complaint or
information transgresses Section 13, Rule 110 of
the Rules of Court. The failure to make a timely
objection to such defect however is deemed to be
a waiver of the said objection. (People v. Santiago,
G.R. No. 137281, 2001)
REMEDIAL LAW
In upholding People v. Garfin, the court firmly
instructs that the filing of an Information by an
officer without the requisite authority to file the
same constitutes a jurisdictional infirmity which
cannot be cured by silence, waiver, acquiescence,
or even by express consent. Hence, such ground
may be raised at any stage of the proceedings
(Quisay v. People G.R. No. 216920, 2016).
Prosecutor’s Decision Subject to Review by:
1. The Secretary of Justice who exercises
supervision and control over the prosecutor’s
actions and who may sustain, modify or set
aside the prosecutor’s resolution on the matter
(Rule 112, Sec. 4, last paragraph); and
2. In appropriate cases, by the courts when the
prosecutor acts with grave abuse of discretion
amounting to lack of jurisdiction.
Remedies of the Offended Party if the
Prosecutor Refuses to File an Information:
1. File an appeal with the Secretary of Justice,
who in the exercise of his/her supervisory
powers as department head, my reverse the
opinion of the investigator and designate a
special prosecutor to review and handle the
case.
2. Institute administrative charges against the
erring prosecutor.
3. File criminal charges under Art. 208 of the
Revised Penal Code.
4. File civil action for damages under Art. 27 of
Civil Code.
5. File an action for mandamus to compel the
prosecutor to file such information only if there
is grave abuse of discretion. But the general
rule is that a prosecutor cannot be compelled
to file an Information by mandamus.
3. CRIMINAL ACTIONS, WHEN ENJOINED
See previous discussion in page 419.
4. CONTROL OF PROSECUTION
Full Discretion and Control of the Prosecutor
All criminal actions commenced by complaint or
information shall be prosecuted under the direction
and control of the prosecutor (Rule 1102, Sec. 5).
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Private Prosecutor May Prosecute the Case in
Case of:
1. Heavy work schedule of the public prosecutor;
or
2. In the event of lack of public prosecutors (Rule
1102, Sec. 5).
Provided:
1. Authorized in writing by the Chief of the
Prosecution Office or the Regional State
Prosecution; and
2. Subject to the approval of the Court (Rule 1102,
Sec. 5).
Once so authorized, private prosecutor shall
continue to prosecute the case up to the end of
trial unless the authority is revoked or withdrawn.
Prior to the filing of the information in court,
the prosecutor has full control of the case. He
decides who should be charged in court and who
should be excluded from the information.
But once the case is already filed in court, the
same can no longer be withdrawn or dismissed
without the tribunal’s approval. Should the
prosecutor find it proper to conduct a
reinvestigation of the case at such stage, the
permission of the Court must be secured (Crespo
v. Mogul, G.R. No. L-53373, 1987)
Private Prosecutor Participation
A public prosecutor may allow a private prosecutor
(i.e., a lawyer engaged by the private offended
party) to actively handle the conduct of the trial:
1. Where the civil action arising from the crime is
deemed instituted in the criminal action.
2. The Public Prosecutor must be present during
the proceedings and must take over the
conduct of the trial from the private prosecutor
at any time the cause of the prosecution may
be adversely affected.
Thus, where the prosecutor has turned over the
active conduct of the trial to the private prosecutor
who presented testimonial evidence even when
the public prosecutor was absent during the trial,
the evidence presented could not be considered
valid evidence of the People.
REMEDIAL LAW
Note: This rule applies ONLY to courts, which are
provided by law with prosecutors, and not to
municipal courts that have no trial prosecutors, in
which case the evidence presented by the private
prosecutor can be considered as evidence for the
People.
The conformity of the public prosecutor is not
necessary to give the aggrieved party personality
to question an order quashing search warrants
(WWW Corp v. People, G.R. No. 161106, 2014)
Appeal Procedure for Prosecution Before
Court of Appeals and Supreme Court
General Rule: Only the SOLICITOR GENERAL
may bring or defend actions in behalf of the
Republic of the Philippines, or represent the
People or State in criminal proceedings elevated
before the Court of Appeals and the Supreme
Court.
Exceptions:
1. When the State and the offended party are
deprived of due process because the
prosecution is remiss in its duty to protect the
interest of the State and the offended party; and
2. When the private offended party questions the
civil aspect of a decision of a lower court. (Heirs
of Delgado v. Gonzalez, G.R. No. 184337,
2009)
The Solicitor General (SolGen) has control of
appeals. It may abandon or discontinue the
prosecution of the case in the exercise of its sound
discretion and may even recommend the acquittal
of an accused when it believes that the evidence
does not warrant the accused’s conviction.
However, in all cases elevated to the Supreme
Court by way of petition for review against
decisions or final orders of the
Sandiganbayan, it is the Office of the
Ombudsman, through its Special Prosecutor,
which shall represent the People of the Philippines
pursuant to the second sentence, third to the last
paragraph of Section 4 of P.D. No. 1606, as
amended by R.A. No. 8249.
Even when a complaint is defective for being
signed and filed by the chief of police and not by
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the complainant, the court may still acquire
jurisdiction over the case. The complaint required
in Article 344 of the RPC is but a condition
precedent to the exercise by the proper authorities
of the power to prosecute the guilty parties. The
complaint simply starts the prosecutory
proceeding but does not confer jurisdiction in the
court to try the case.
Article 344 is not determinative of the jurisdiction
of courts over private offenses because the same
is governed by the Judiciary Law and not the RPC.
(People v. Yparraguire, G.R. No. 124391, 2000)
Prosecution of Private Crimes
Who May Prosecute
1. Adultery and Concubinage –
a. Only by the offended spouse who should
have the status, capacity, and legal
representation at the time of filing of the
complaint regardless of age
b. Both guilty parties must be included in the
complaint.
c. The offended party did not consent to the
offense nor pardoned the offenders (Sec. 5
Rule 110).
2. Seduction, Abduction and Acts of
Lasciviousness – Prosecuted exclusively and
successively by the following persons in this
order:
a. By the offended woman;
b. By the parents, grandparents or legal/
judicial guardians in that successive order,
if the offended party is a minor or of age but
suffers from physical or mental disability;
c. By the State pursuant to the doctrine of
parens patriae, when the offended party
dies or becomes incapacitated before she
could file the complaint and she has no
known parents, grandparents or guardians
(Sec. 5 Rule 110).
3. Defamation imputing to a person any of the
foregoing crimes of concubinage, adultery,
seduction, abduction, rape or acts of
lasciviousness – Only by the party or parties
defamed (Revised Penal Code, Art. 360)
REMEDIAL LAW
If the offended party is of legal age and does not
suffer from physical or mental disability, she alone
can file the complaint to the exclusion of all.
NOTE: A complaint for the prosecution of the
crimes of adultery, concubinage, seduction,
abduction, rape, and acts of lasciviousness under
Art. 344 of the RPC only starts the prosecution of
the crime and does not confer jurisdiction on the
court to try the case.
Who Can Give Pardon
1. Adultery and Concubinage – Only the
offended spouse not otherwise incapacitated,
can validly extend the pardon or consent
contemplated therein.
2. Seduction, abduction and acts of
lasciviousness
a. The offended minor, if with sufficient
discretion can validly pardon the accused by
herself if she has no parents or where the
accused is her own father and her mother is
dead;
b. The parents, grandparents or guardian of
the offended minor, in that order, cannot
extend a valid pardon in said crimes without
the conformity of the offended party, even if
the latter is a minor;
c. If the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
General Rule: The pardon refers to pardon
BEFORE filing of the criminal complaint in court.
Pardon effected after the filing of the complaint in
court does not prohibit the continuance of the
prosecution of the offense (People v Dela Cerna,
G.R. No. 136899-904, 2002)
Exception: In rape, marriage between the
offender and the offended party would be effective
as pardon even when the offender has already
commenced serving his sentence.
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Distinction between pardon and consent
PARDON CONSENT
Refers to past acts Refers to future acts
of adultery
In order to absolve In order to absolve
the accused from the accused from
liability must be liability, it is sufficient
extended to both even if granted only
offenders to the offending
spouse
Given after the Given before the
commission of the commission of the
crime crime
General Rule: The subsequent marriage between
the party and the accused extinguishes the
criminal liability of the latter, together with that of
the co-principals, accomplices and accessories.
Note: Pursuant to Article 344 of the Revised Penal
Code, seduction, abduction, acts of lasciviousness
and rape, the marriage of the offender with the
offended party shall extinguish the criminal action
or remit the penalty already imposed upon him.
Exception/s:
1. Where the marriage was invalid or contracted
in bad faith in order to escape criminal liability
(People v. Santiago, G.R. No. L-27972, 1927);
2. In “private libel” or the libelous imputation of the
commission of the crimes of concubinage,
adultery, seduction, abduction, rape, or acts of
lasciviousness, and in slander by deed (People
v. Orzame, 39 O.G. 1168); and
3. In multiple rape, insofar as the other accused in
the other acts of rape respectively committed
by them are concerned (People v. Bernardo, 38
O.G. 3749)
The acquittal or death of one of the accused in the
crime of adultery does not bar the prosecution of
the other accused. (United States v. Topiño, G.R.
No. 11895, 1916).
However, the death of the offended spouse before
the filing of the complaint for adultery bars further
prosecution, BUT if the offended spouse died
AFTER the filing of the corresponding complaint,
REMEDIAL LAW
his death will not prevent the proceeding from
continuing to its ultimate conclusion.
Effect of Desistance of Complainant
It does not bar the People from prosecuting the
criminal action. BUT it does operate as a waiver
of the right to pursue civil indemnity.
An offended party in a criminal case has sufficient
personality to file a special civil action for certiorari,
in proper cases, even without the imprimatur of the
State. In so doing, the complainant should not
bring the action in the name of the People of the
Philippines. The action may be prosecuted in the
name of the said complainant. (Perez v. Hagonoy
Rural Bank, Inc., G.R. No. 126210, 2000)
5. SUFFICIENCY OF COMPLAINT OR
INFORMATION
A complaint or information is sufficient if it
states the: (NDANAP)
1. Name of the accused;
2. Designation of the offense by a statute
3. Acts or omission complained of as constituting
the offense;
4. Name of the offended party;
5. Approximate date of the commission of the
offense; and
6. Place where the offense was committed (Sec.
6. Rule 110).
The non-inclusion of some of the names of the
eyewitnesses in the information does not preclude
the prosecutor from presenting them during trial.
(People v. Dela Cruz, G.R. No. 137967, 2001)
Test of sufficiency of the complaint or
information:
The test is whether the crime is described in
intelligible terms with such particularity as to
apprise the accused, with reasonable certainty, of
the offense charged to enable the accused to
suitably prepare for his defense. (Lazarte, Jr. v.
Sandiganbayan, G.R. No. 180122, 2009)
For as long as the ultimate facts constituting the
offense have been alleged, an Information will be
valid. (People v. Sandiganbayan Fourth Division,
G.R. No. 160619, 2015)
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Ultimate facts refer to the facts constituting the
cause of action which the evidence will prove at
trial, while evidentiary facts are facts supporting
the existence of some other alleged and unproven
fact. Matters of evidence (as distinguished from
the facts essential to the cause of action) need not
be alleged in the Information. Whatever facts and
circumstances must necessarily be alleged are
determined based on the essential elements of a
crime. (Enrile v. People, G.R. No. 213455, 2015)
Purpose
To safeguard the constitutional right of an accused
to be informed of the nature and cause of the
accusation against him so that he can duly prepare
his defense (Serapio v. Sandiganbayan, G.R. No.
128268, January 29, 2003).
Substantial defect in the information cannot be
cured by evidence that would jeopardize the
accused’s right to be informed of the true nature of
the offense he is charged with.
Name of the Accused
1. If name is known: The name and surname of
the accused or any appellation or nickname by
which he has been or is known
2. If name cannot be ascertained: A fictitious
name with a statement that his true name is
unknown.
3. If true name thereafter disclosed: Such true
name shall be inserted in the complaint or
information and record. (Rule 110, Sec. 7)
While one or more persons, along with specified
and named accused, may be sued as “John
Does,” an information against all accused
described as “John Does” is void; an arrest
warrant against them is also void.
An error in the name of the accused is not
reversible as long as his identity is sufficiently
established. This defect is curable at any stage of
the proceedings as insertion of the real name of
the accused is merely a matter of form (People v.
Padica, G.R. No. 102645, 1993)
A mistake in the name of the accused is not
equivalent, and does not necessarily tantamount
to, a mistake in the identity of the accused
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especially when sufficient evidence is adduced to
show that the accused is pointed to as one of the
perpetrators in the crime. (People v. Amodia, G.R.
No. 173791, 2008)
Note: Filing of Information instead of complaint by
the prosecutor in private offenses, is valid provided
that the complaint affidavit is attached thereto.
General Rule: An accused cannot be convicted of
an offense that is not clearly charged in the
complaint or information. To convict him of an
offense other than that charged in the complaint or
information would be violative of the Constitutional
right to be informed of the nature and cause of the
accusation. (Patula v. People, G.R. No. 164457,
2012)
Exception: Crimes necessarily included or
includes the offenses charged in the complaint.
Note: Every element of the offense must be stated
in the information. What facts and circumstances
are necessary to be included therein must be
determined by reference to the definitions and
essentials of the specified crimes. The
requirement of alleging the elements of a crime in
the information is to inform the accused of the
nature of the accusation against him so as to
enable him to suitably prepare his defense. The
presumption is that the accused has no
independent knowledge of the facts that constitute
the offense. (People v. Valdez, G.R. No. 175602,
2013)
Note: As embodied in Section 14 (1), Article III of
the 1987 Constitution, no person shall be held to
answer for a criminal offense without due process
of law. Further, paragraph 2 of the same section,
it provides that in all criminal prosecutions, the
accused has a right to be informed of the nature
and cause of the accusation against him. It is
further provided under Sections 8 and 9 of Rule
110 of the Revised Rules of Court that a complaint
or information to be filed in court must contain a
designation given to the offense by the statute,
besides the statement of the acts or omissions
constituting the same, and if there is no such
designation, reference should be made to the
section or subsection of the statute punishing it
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and the acts or omissions complained of as
constituting the offense. (People v. Taundo, G.R.
No. 207816, 2016)
Note: Section 6, Rule 110 of the Rules of Court,
expressly states that the information must include,
inter alia, both "the designation of the offense
given by the statute" and "the acts or omissions
complained of as constituting the offense." Failure
to aver this crucial ingredient – that the purported
acts were employed as a prerequisite for
admission or entry into the organization – would
prevent the successful prosecution of the criminal
responsibility of the accused, either as principal or
as accomplice, for the crime of hazing. Plain
reference to a technical term – in this case, hazing
– is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed
and thus a mere conclusion of law.
However, failure to allege that the purported acts
were not covered by the exemption relating to the
duly recommended and approved "testing and
training procedure and practices" for prospective
regular members of the AFP and the PNP is not
fatal. This exemption is an affirmative defense in,
not an essential element of, the crime of
accomplice to hazing. It is an assertion that must
be properly claimed by the accused, not by the
prosecution. (People v. Bayabos, G.R. No.
171222, 2015).
6. DESIGNATION OF OFFENSE
The Information or Complaint Must State or
Designate the Following Whenever Possible:
1. The designation of the offense given by the
statute. (If there is no designation of the
offense, reference shall be made to the
section/subsection of the statute punishing it)
2. The statement of the acts or omissions
constituting the offense, in ordinary, concise
and particular words.
3. The specific qualifying and aggravating
circumstances must be stated in ordinary and
concise language (Sec. 8, Rule 110).
For qualifying and aggravating circumstances to
be appreciated, it must be alleged in the complaint
or information. (People v. Lapore, G.R. No.
191197, 2015)
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A practical consequence of non-allegation of a
detail that aggravates the liability is to prohibit the
introduction or consideration against the accused
of evidence that tends to establish that detail. (PP
v. Valdez G.R. No. 175602, 2012)
In rape cases, relationship of the accused and the
victim must be stated in the accusatory portion of
the complaint. Every element of the offense must
be properly alleged especially if the accused is
being charged of a crime in its qualified form the
qualifying circumstances must be stated with
certainty to enable a person of common
understanding to be appraised of the acts or
omission that he is charged with. (People v Bali-
balita G.R. No. 134266, 2000)
Rationale: The seriousness of a criminal
prosecution requires a clear specification of the
offense charged, consistently with the right of the
accused to be informed of the nature and cause of
the accusation against him. Also, this is essential
to avoid surprise on the part of the accused and to
afford him the opportunity to prepare his defense
accordingly.
The real question is not, “Did he commit a crime
given in the law some technical and specific
name?” BUT, “Did he perform the acts alleged in
the body of the information?” If he did, it is of no
consequence to him, either as a matter of
procedure or of substantive right, how the law
denominates the crime.
“Try and attempt to rape” in the information is not
sufficient. (PP v. Dimaano, G.R. No. 168168,
2005)
The Supreme Court held that “That the said
accused by means of force and intimidation, to wit:
by then and there, willfully, unlawfully and
feloniously drag said AAA, his own daughter, 12
years of age, minor, inside a bedroom and
undressed her and put himself on top of her and
thereafter have carnal knowledge with said AAA
against her will and without her consent” complies
with the requirements of a sufficient information.
(PP v. Ching, G.R. No. 177150, 2007)
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In case of allegation of the aggravating
circumstance of HABITUAL DELINQUENCY, it
should NOT be generally averred.
The information must SPECIFY:
1. The commission of the crimes;
2. The date of last conviction or release;
3. The other previous conviction or release of the
accused and dates (PP v. Venus, G.R. No.
45141, 1936).
The qualifying and aggravating circumstances
cannot be appreciated even if proved, unless
alleged in the information. (PP v. Perreras, G.R.
No. 139622, 2001)
It is not the designation of the offense in the
complaint or information that is controlling. (PP v.
Samillano, G.R. No. L-31375, 1974)
The facts alleged therein, and not its title,
determine the nature of the crime. (El Pueblo de
Filipinas v. Magdowa, G.R. No. L-48457, 1941)
In rape cases, the concurrence of the minority of
the victim and her relationship with the offender is
a special qualifying circumstance which should be
both alleged (People v. Cantos, G.R. No. 129298,
1999) and proved (People v. Manggasin, G.R.
Nos. 130599-600, 1999) with certainty in order to
warrant the imposition of the (maximum) penalty.
The accused may be convicted of a crime more
serious than that named in the title or preliminary
part if such crime is covered by the facts alleged in
the body of the information and its commission is
established by evidence. (Buhat v. CA, G.R. No.
119601, 1996)
An accused could not be convicted under one act
when he is charged with a violation of another if
the change from one statute to the other involves:
1. A change in the theory of the trial;
2. Requires of the defendant a different defense;
or
3. Surprises the accused in any way. (U.S. v.
Panlilio, G.R. No. L-9876, 1914)
REMEDIAL LAW
Acts or Omissions Complained of as
Constituting the Offense
The acts or omissions complained of must be
alleged in such form as is sufficient to enable a
person of common understanding to know what
offense is intended to be charged, and enable the
court to pronounce proper judgment. No
information for a crime will be sufficient if it does
not accurately and clearly allege the elements of
the crime charged. Every element of the offense
must be stated in the information. What facts and
circumstances are necessary to be included
therein must be determined by reference to the
definitions and essentials of the specified crimes.
(People v. Canceran, G.R. No. 206442, 2015)
If one or more elements of the offense have not
been alleged in the information, the accused
cannot be convicted of the offense charged, even
if the missing elements have been proved during
the trial.
Even the accused’s entering a plea of guilty to
such defective information will not cure the defect,
nor justify his conviction of the offense charged.
Note: The new rule requires that the qualifying and
aggravating circumstances be alleged in the
information.
1. Purposes
a. To enable the court to pronounce a proper
judgment;
b. To furnish the accused with such a description
of the charge as to enable him to make a
defense;
c. As a protection against further prosecution for
the same cause.
2. Rules on Negative Averments
a. Where the law alleged to have been violated:
Prohibits generally acts therein defined; Is
intended to apply to all persons indiscriminately;
But prescribes certain limitations or exceptions
from its violation the information is sufficient if it
alleges facts which the offender did as constituting
a violation of law, without explicitly negating the
exception, as the exception is a matter of defense
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which the accused has to prove. (People vs. San
Juan, G.R. No. L-22944, 1968)
There, the Information alleged that the accused
prevented the offended party from entering the
polling precinct, in violation of the Election Code.
The law provided that “The voters shall have the
right to freely enter the polling place as soon as
they arrive unless there are more than forty voters
waiting inside, in which case they have the right to
enter in the order of their arrival as those who are
inside go out, which the latter shall immediately do
after having cast their votes.” The accused argued
that the Information failed to allege an offense
because the Information did not state that there
were forty or less voters.
The Supreme Court held: The limitation — when
there are more than forty voters waiting inside —
on the right of a voter to freely enter the polling
place does not constitute an essential part of the
definition of the crime contemplated in section 133
of the Revised Election Code. Instead, it is but a
matter which the accused must assert, and
establish as a defense, and not for the prosecution
to anticipate, allege, and disprove.
b. Where the law alleged to have been violated:
Applies only to specific classes of persons and
special conditions; and
The exemptions from its violation are so
incorporated in the language defining the crime
that the ingredients of the offense cannot be
accurately and clearly set forth if the exemption is
omitted, the information must show that the
accused does not fall within the exemptions. (U.S.
v. Pompeya, G.R. No. L-10255, 1915)
There, the Supreme Court gave the following
example: “Suppose xxx that there was a law
providing that all persons who performed manual
labor on Sunday should be punished, with a
provision that if such labor should be performed
out of necessity, the person performing it would
not be liable. In such a case, in the complaint, in
order to show a good cause of action, it would be
necessary to allege that the labor was not
performed under necessity. In other words, the
complaint, in order to be free from objection raised
REMEDIAL LAW
by a demurrer, must show that the person accused
of the crime, in the absence of proof, is punishable
under the law. One who performed labor under
necessity would not be liable.”
When an exception or negative allegation is not an
ingredient of the offense and is a matter of
defense, it need not be alleged. (U.S. v. Chan
Toco, G.R. No. L-3851, 1908)
3. Complex Crimes
Where what is alleged in the information is a
complex crime and the evidence fails to support
the charge as to one of the component offenses,
the defendant can be convicted of the offense
proven.
Place of the Commission of the Offense
General Rule: A complaint or information is
sufficient if it appears from the allegation that the
offense was committed or some of its essential
ingredients occurred at some place, within the
territorial jurisdiction of the court (Rule 110, Sec.
10).
Exception: When the place of commission is an
essential element of the offense, the place of
commission must be alleged with particularity
(Rule 110, Sec. 10). e.g. trespass to dwelling,
destructive arson, robbery in an inhabited house.
Purpose: To show territorial jurisdiction of the
court.
There may be conviction if it appears that the
crime was committed not at the place alleged
in the information, provided that:
1. The place of actual commission was within the
jurisdiction of the court; and
2. The particular place of commission is not an
essential element of the offense charged.
For example, in a case for murder, where the
Information alleges that the victim was shot on
Ayala Avenue but the evidence presented shows
that the shooting took place along Paseo de
Roxas, the accused may still be convicted since
the place of actual commission is within Makati
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City and the place of commission is not an
essential place of the offense charged.
In cases of falsification of private documents, the
venue is the place where the document is actually
falsified, to the prejudice of or with intent to
prejudice a third person, regardless whether or not
the falsified document is put to the improper or
illegal use for which it was intended. (Navaja v De
Castro, G.R. No. 182926, 2015)
Date of Commission of the Offense
General Rule: It is not necessary to state in the
complaint or information the precise date the
offense was committed. (People v. Bacus, G.R.
No. 208354, 2015)
Exception: If the date is material ingredient of the
offense. (Examples: Election offenses, Infanticide)
The remedy against an indictment that fails to
allege the time of commission of the offense with
sufficient definiteness is a motion for bill of
particulars (Rule 116, Sec. 10). The failure to
move or specification or the quashal of the
information on any of the grounds provided for in
the Rules deprives the accused of the right to
object to evidence which could be lawfully
introduced and admitted under an information of
more or less general terms but which sufficiently
charges the accused with a definite crime.
Besides, the exact date of the commission of the
crime is not an essential element of the crime.
(People v. Elpedes, G.R. No. 137106-07, 2001)
“On or about the 27th day of November 2000” was
held to be sufficient. (People v. Delfin, G.R. No.
201572, 2014)
The phrase “on or about” in the Information does
not require the prosecution to prove any precise
date. (Escandor v. People, G.R. No. 211962,
2020)
However, it was also held that the phrase “on or
about the year 1992” encompasses not only the
twelve months of 1992, but includes the years prior
and subsequent to 1992. Therefore, the accused
was deprived of his right to intelligently prepare for
his defense and convincingly refute the charges
REMEDIAL LAW
against him. (People v. Pareha, G.R. No. 202122,
2014)
Failure to specify the exact date or times when the
rape occurred does not ipso facto make the
Information defective on its face, as the gravamen
of rape is carnal knowledge of the woman (People
v. Cinco, G.R. No. 186460, 2009)
Name of the Offended Party
The complaint or information must state the:
1. Name and surname of the persons against
whom or against whose property the offense
was committed or any appellation or nickname
by which such person has been or is known.
2. If the offended party is a juridical person, it is
sufficient to state its name, or any name or
designation by which it is known or by which it
may be identified, without need of averring that
it is a juridical person or that it is organized in
accordance with law.
3. If there is no better way of identifying him, he
must be described under a fictitious name. If
true name is thereafter disclosed or
ascertained, the Court must cause true name
to be inserted in the complaint or information
and record.
4. In crimes against property, if the name of the
offended party is unknown, the property must
be described with such particularity as to
properly identify the particular offense charged
(Sec. 12, Rule 110).
To constitute larceny, robbery, embezzlement,
obtaining money by false pretenses, malicious
mischief, etc., the property obtained must be that
of another person, and indictment for such offense
must name the owner and a variance in this
respect between the indictment and the proof will
be fatal.
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Rule in Crimes Against Property
EFFECT OF ERROR
IN DESIGNATION
SUBJECT MATTER
OF OFFENDED
PARTY
General and not Fatal – results in the
identifiable, such as acquittal of the
money unlawfully taken accused
Specific and identifiable,
Immaterial – will not
such as jewelry in a list
result in the acquittal
(Senador v People, G.R.
of the accused
No. 201620, 2013)
7. CAUSE OF THE ACCUSATION
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the statute but
in terms sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment (Sec. 9, Rule 110).
The information need not reproduce the law
verbatim in alleging the acts or omissions that
constitute the offense. If its language is
understood, the constitutional right to be informed
of the nature and cause of the accusation against
the accused stands unviolated.
This mandate to be informed of the nature and
cause of the accusation against him does not
require a verbatim reiteration of the law. The use
of derivatives, synonyms, and allegations of basic
facts constituting the crime will suffice. (Omar
Villarba v. CA, G.R. No. 227777, June 15, 2020)
8. DUPLICITY OF THE OFFENSE;
EXCEPTION
The information is defective when it charges two
or more DISTINCT or DIFFERENT offenses.
General Rule: A complaint or information must
charge only one offense.
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Exception: When the law prescribes a single
punishment for various offenses (Sec. 13, Rule
110).
Duplicitous Information
Duplicity in criminal pleading is the joinder of two
or more distinct and separate offenses in the same
count of an indictment or information. It is
duplicitous if it charges two or more different
offenses.
Purpose
To give the defendant the necessary knowledge of
the charge to enable him to prove his defense.
The State should not heap upon the defendant two
or more charges which might confuse him in his
defense.
Remedy
Filing of a Motion to Quash (Rule 110, Sec. 3[f])
Waiver
When the accused fails, before arraignment
(entering a “plea”) is completed, to move for the
quashal of the information which charges 2 or
more offenses, he thereby waives the objection
and may be found guilty of as many offenses as
those charged and proved during the trial.
Exceptions to the Rule on Duplicity
1. Continuous crimes;
2. Complex crimes;
3. Special complex crimes;
4. Crimes susceptible of being committed in
various modes; and
5. Crimes of which another offense is an
ingredient. (People v. Camerino, G.R. No. L-
13484, 1960)
Requisites of Continuous Crime (PUU):
1. Plurality of acts performed separately during a
period of time;
2. Unity of penal provision infringed upon or
violated;
3. Unity of criminal intent which means that two or
more violations of the same penal provision are
united in one and the same intent leading to the
perpetration of the same criminal purpose or
claim (Gamboa v. CA, G.R. No. L-41054
November 28, 1975).
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Where the law with respect to an offense may be
committed in any of the different modes provided
by law, the indictment in the information is
sufficient if the offense is alleged to have been
committed in one, two or more modes specified
therein. The various ways of committing the
offense should be considered as a description of
only one offense and the information cannot be
dismissed on the ground of multifariousness.
When several people are killed by separate bullets
from a single automatic weapon, Art. 48 of RPC
will not apply. Each person killed became the
victim, respectively, of a separate crime. Although
the burst of shots was caused by one single act of
pressing the trigger of the automatic weapon, the
person firing it has only to keep pressing the
trigger with his finer and it would fire continually.
Hence, it is not the single act of pressing the trigger
which produced the several felonies, but the
number of bullets which were discharged (People
v Tabaco, G.R. No. 100382-100385, 1997).
9. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION
Amendment
Adding or striking out an allegation or the name of
any party, or by correcting a mistake in the name
of a party or a mistaken or inadequate allegation
or description in any other respect, so that the
actual merits of the controversy may speedily be
determined, without regard to technicalities, and in
the most expeditious and inexpensive manner
(Rule 10, Sec. 1)
Before the Accused Enters His Plea, the
Prosecutor May:
Without leave of court, in form and substance,
provided there is evidence thereon which has
been presented during the preliminary
investigation:
1. Upgrade the offense;
2. Allege qualifying and aggravating
circumstances; or
3. Change the offense charged (Rule 110, Sec.
14).
With leave of court, motion by the prosecutor and
notice to the offended party when amendment:
1. Downgrades the offense charged; or
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2. Excludes from the information a co-accused
(Rule 110, Sec. 14).
The court shall state the reasons in resolving the
motion and copies thereof furnished all parties,
especially the offended party.
After the Plea
1. Formal amendment only with leave of court,
and without causing prejudice to the rights of
the accused
2. But when a fact supervenes which changes the
nature of the crime charged in the information
or upgrades it to a higher crime, in which case,
there is a need for another arraignment of the
accused under the amended information (Rule
110, Sec. 14)..
Test as to whether a Defendant is Prejudiced
by the Amendment
1. Whether a defense under the information as it
originally stood would be available after the
amendment is made; and
2. Whether any evidence defendant might have
would be equally applicable to the information
in the new form as in the other (People v.
Borromeo, G.R. No. L-62737 June 29, 1983).
When an amendment is formal or substantial
The amendment is formal when it does not change
the nature of the crime alleged therein, or affect
the essence of the offense, or cause surprise; or
deprive the accused of an opportunity to meet the
new averment. (Ricarze v. Court of Appeals, G.R.
No. 160451, 2007)
An amendment which does not change the nature
of the crime alleged therein, does not expose the
accused to a charge which could call for a higher
penalty, does not affect the essence of the offense
or cause surprise or deprive the accused of an
opportunity to meet the new averment had each
been held to be one of form and not of substance-
not prejudicial to the accused and, therefore, not
prohibited by Section 14, Rule 110. (People v.
Casey, G.R. No. L-30146, 1981)
Changing the word “Homicide” to “Murder” in the
caption of the case, without any change in the
facts constituting the offense charged, is purely a
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formal amendment. (Pacoy v. Cajigal, G.R. No.
157472, 2007)
An amendment is merely formal if it did not change
the essence of the offense or cause surprise as to
deprive petitioner of the opportunity to meet the
new information. If the amendment only states with
precision something that was already included in
the original Information, it is merely a formal
amendment. (Omar Villarba v. CA, G.R. No.
227777, 2020)
The amendment is substantial “when a defense of
the accused, under the original complaint or
information, would no longer be available after the
amendment is made, and when any evidence the
accused might have would be inapplicable to the
complaint or information, as amended. (Kummer
v. People, G.R. No. 174461, 2013)
General Rule: After arraignment, the prosecutor
may no longer amend the information which
changes the nature of the crime, as it will prejudice
the substantial rights of the accused (Mendez v.
People, G.R. No. 179962, June 11, 2014).
Exception: When a fact supervenes which
changes the nature of the crime charged in the
information or upgrades it to a higher crime, the
prosecutor, with leave of court, may amend the
information to allege such supervening fact and
upgrade the crime charged to the higher crime
brought about by such supervening fact provided
it will not prejudice the rights of the accused.
However, if the supervening event which changes
the nature of the crime to a more serious one
occurred after the accused has been convicted,
which makes the amendment of the information no
longer the remedy of the prosecution, the
prosecution can and should charge the accused
for such more serious crime, without placing the
accused in double jeopardy, there being no
identity of the offense charged in the first
information and in the second one.
REMEDIAL LAW
Amendments to Information May Be Allowed
when:
1. It does not deprive the accused of the right to
invoke prescription;
2. It does not affect or alter the nature of the
offense originally charged;
3. It does not involve a change in the basic theory
of the prosecution so as to require the accused
to undergo any material charge or modification
in his defense;
4. It does not expose the accused to a charge
which would call for a higher penalty;
5. It does not cause surprise or deprive the
accused of an opportunity to meet the new
averment.
Substitution of the Complaint or Information
1. Before Plea – double jeopardy does not arise.
2. Anytime AFTER Plea – (no double jeopardy
and bail for witness)
a. Mistake has been made in charging the
proper offense or the accused cannot be
convicted of the offense charged,
b. Court shall dismiss the original complaint or
information upon the filing of a new one,
c. Provided, accused will not be placed in
double jeopardy
When it becomes manifest at any time before
judgment that a mistake has been made in
charging the proper offense and the accused
cannot be convicted of the offense charged or any
other offense necessarily included therein, the
accused shall not be discharged if there appears
good cause to detain him. In such case, the court
shall commit the accused to answer for the proper
offense and dismiss the original case upon the
filing of the proper information.
Note: A substantial amendment consists of the
recital of facts constituting the offense charged
and determinative of the jurisdiction of the court.
All other matters are merely of form.
The following have been held to be mere formal
amendments: (1) new allegations which relate only
to the range of the penalty that the court might
impose in the event of conviction; (2) an
amendment which does not charge another
offense different or distinct from that charged in the
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original one; (3) additional allegations which do not An amended Requires or

alter the prosecution’s theory of the case so as to information refers to presupposes that the
cause surprise to the accused and affect the form the same offense new information
of defense he has or will assume; (4) an charged in the original involves a different
amendment which does not adversely affect any information or to an offense which does
substantial right of the accused; and (5) an offense which not include or is not
amendment that merely adds specifications to necessarily includes or necessarily included
eliminate vagueness in the information and not to is necessarily included in the original charge,
introduce new and material facts, and merely in the original charge, hence the accused
states with additional precision something which is hence substantial cannot claim double
already contained in the original information and amendments to the jeopardy.
which adds nothing essential for conviction for the information after the
crime charged. plea has been taken
cannot be made over
The test as to whether a defendant is prejudiced the objection of the
by the amendment is whether a defense under the accused, for if the
information as it originally stood would be available original would be
after the amendment is made, and whether any withdrawn, the
evidence defendant might have would be equally accused could invoke
applicable to the information in the one form as in double jeopardy.
the other. An amendment to an information which
does not change the nature of the crime alleged
therein does not affect the essence of the offense Variance between Indictment and Proof:
or cause surprise or deprive the accused of an 1. When the offense proved is less serious than
opportunity to meet the new averment had each and is necessarily included in the offense
been held to be one of form and not of substance. charged, in which case, the defendant shall be
(Ricarze v. Court of Appeals, G.R. No. 160451, 9 convicted of the offense proved;
February 2007) 2. When the offense proved is more serious than
and includes the offense charged, in which
Amendment vs. Substitution case the defendant shall be convicted of the
offense charged;
AMENDMENT SUBSTITUTION 3. When the offense proved is neither included in,
May involve either Involves substantial nor does it include, the offense charged and is
formal or substantial change from original different therefrom, in which case the court
changes. charge. should dismiss the action and order the filing of
new information charging the proper offense.
Amendment before the Substitution of (Substitution of information applies in this
plea has been entered information must be case).
can be effected without with leave of court as
leave of court. the original 10. VENUE OF CRIMINAL ACTIONS
information has to be
dismissed. Venue in Criminal Case is Jurisdictional, Being
an Essential Element of Jurisdiction
When an amendment Another preliminary
is only as to form, there investigation is Purpose
is no need for another entailed and the To ensure that the defendant is not compelled to
preliminary accused has to plead move to, and appear in, a different court from that
investigation and the anew to the new of the province where the crime was committed as
retaking of the plea of information. it would cause him great inconvenience in looking
the accused. for his witnesses and other evidence in another
place (Treñas v. People, G.R. No. 195002, 2012)

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General Rule: Penal laws are territorial; hence
Philippine courts have no jurisdiction over crimes
committed outside the Philippines. It cannot be
waived or changed by the agreement of the parties
or by consent of the defendant.
Exception: There are crimes punished under the
RPC and under special penal laws which have
extraterritorial jurisdiction.
In exceptional circumstances, to ensure a fair
trial and impartial inquiry, the Supreme Court shall
have the power to order a change of venue or
place of trial to avoid the miscarriage of justice
(1987 Constitution, Section 5(4), Art. VIII).
11. INTERVENTION OF OFFENDED PARTY
General Rule: Offended party has the right to
intervene by counsel in the prosecution of the
criminal action where the civil action for recovery
of civil liability is instituted in the criminal action
pursuant to Rule 111, Rules of Court
Exception/s:
1. Where from the nature of the crime and law
defining and punishing, no civil liability arises in
favor of the offended party (e.g., charge of
Plunder, which involves government funds
only, as opposed to Estafa, where the money
belongs to a private person);
2. Where the offended party has waived the right
to civil indemnity (e.g., Estafa, where the
offended party states that he/she waives
recovery of actual and other damages); or
3. Where the offended party has already instituted
an action (e.g., Estafa, where the offended
party has filed a separate civil action to recover
actual and other damages).
Where the offended party withdrew a reservation
to file a separate civil action, the private prosecutor
may still intervene in the prosecution of the
criminal case, by conducting the examination of
witnesses under the control of the prosecutor.
HOWEVER: Once the offended party has filed a
separate civil action arising from the crime, he may
not withdraw such civil case in order to intervene
in the criminal prosecution. He loses the right to
REMEDIAL LAW
intervene. He no longer has any standing in the
criminal case, except to be a prosecution witness.
Q: Where a criminal action has been provisionally
dismissed upon motion of the prosecutor, can the
case be revived upon motion of the offended
party?
A: NO, because the offended party or complaining
witness cannot act for the prosecutor.
C. PROSECUTION OF CIVIL ACTION
1. RULE ON IMPLIED INSTITUTION OF
CIVIL ACTION WITH CRIMINAL ACTION
General Rule: The institution or filing of the
criminal action includes therein the institution of
civil action for recovery of civil liability arising from
the offense charged (Rule 111, Sec. 1).
Exception/s:
When the offended party:
1. Waives the civil action;
2. Reserves his right to institute the civil action
separately; or
3. Institutes the civil action prior to the criminal
action (Rule 111, Sec. 1).
Note: The civil action for the recovery of civil
liability that is deemed instituted with the criminal
action refers only to that arising from the offense
charged. (Solidum v. People, G.R. No. 192123,
2014).
Note: Under the Rules, where the civil action for
recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party
may intervene by counsel in the prosecution of the
offense. (Lee v. Chua, G.R. No. 181658, 2013).
Note on juridical persons: Nowhere in B.P. Blg.
22 is it provided that a juridical person may be
impleaded as an accused or defendant in the
prosecution for violations of that law, even in the
litigation of the civil aspect thereof. Nonetheless,
the substantive right of a creditor to recover due
and demandable obligations against a debtor-
corporation cannot be denied or diminished by a
rule of procedure.
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Technically, nothing in Section 1(b) of Rule 111
prohibits the reservation of a separate civil action
against the juridical person on whose behalf the
check was issued. What the rules prohibit is the
reservation of a separate civil action against the
natural person charged with violating B.P. Blg. 22,
including such corporate officer who had signed
the bounced check.
The civil action that is impliedly instituted based on
B.P. 22 is only the civil liability of the signatory and
not of the corporation itself. The distinctness of the
cause of action against the signatory and that
against the corporation is rendered beyond
dispute. (Gosiaco vs. Ching, G.R. No. 173807,
2009)
When Reservation Shall Be Made:
1. Before the prosecution starts to present its
evidence; and
2. Under circumstances affording the offended
party a reasonable opportunity to make such
reservation (Rule 111, Sec. 1).
Where No Reservation Shall Be Allowed
1. Criminal action for violation of B.P. 22 and
Estafa: Unless a separate civil action has been
filed before the institution of the criminal action,
no such civil action can be instituted after the
criminal action has been filed as the same has
been included therein.
NOTE: Where the civil action has been filed
separately before the criminal action, it may be
consolidated upon application with the court
trying the latter case.
NOTE: The civil liability arising from the act of
issuing a bouncing check can be the subject of
both civil actions deemed instituted with the
estafa case and the BP 22 violation. In the
crimes of both estafa and violation of BP 22,
Rule 111 of the Rules of Court expressly
allows, even automatically, the institution of a
civil action without need of election by the
offended party. (Rodriguez v. Ponferrada, G.R.
Nos. 155531-34, 2005)
REMEDIAL LAW
2. A claim arising from an offense which is
cognizable by the SB – a civil action filed prior
to the criminal action has to be transferred to
the subsequently filed criminal action for joint
hearing (P.D. No.1606 as amended by R.A.
No. 8249, Sec. 4);
NOTE: The filing of the criminal action shall be
deemed to necessarily carry with it the filing of
the civil action, and no right to reserve the filing
of such civil action separately from the criminal
action shall be recognized. However, where the
civil action had heretofore been filed separately
but judgment has not been rendered, and a
criminal case is filed before the Sandiganbayan
or appropriate court, said civil action shall be
transferred thereto. Otherwise, the civil action
shall be abandoned. (P.D. No. 1606, as
amended by R.A. No. 10660, Sec. 4)
3. Tax cases (R.A. No. 9282, Sec. 7[b][1]); and
4. Civil actions, which can be filed and prosecuted
independently of the criminal action, namely,
those provided in Articles 32, 33, 34 and 2176
of the Civil Code.
Although the criminal and civil actions may be
joined in the criminal case, they are distinct
from each other. The plaintiffs in the two
actions are different.
THEREFORE: Even if the accused started
serving his sentence within the 15-day period
from the promulgation of the judgment of
conviction by the lower court, thereby making
the judgment against him final, the complainant
may, within the 15-day reglementary period,
still ask that the civil liability be fixed by the
court, if the judgment does not adjudicate any
civil liability, as the judgment regarding civil
liability has not become final and the court still
has jurisdiction to adjudge the civil liability.
NOTE: Only civil liability arising from crime
charged (cause of action arising from delict) as
a felony is deemed instituted. Civil liability
arising from other sources of obligations (law,
quasi-contract and quasi-delict) are no longer
deemed instituted such as those under Article
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32, 33, 34 and 2176 of the Civil Code which can
be prosecuted even without reservation. The
employer may not be held civilly liable for
quasi-delict in the criminal action since quasi-
delict is not deemed instituted with the criminal.
(Maniago v. CA, G.R. No. 104392, 1996)
NOTE: Institution of a criminal case includes
the civil action for the recovery of the civil
liability arising from the offense charged. The
inclusion of the civil action is to avoid
multiplicity of suits. Article 100 of the RPC
states that every person criminally liable for a
felony is also civilly liable. (People v. Rayos,
G.R. No. 200942, 2015)
2. WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY
General Rule: Independent civil actions under
Articles 32, 33, 34 and 2176 of the Civil Code:
1. May be brought by the offended party;
2. Proceed independently of criminal action; and
3. Require only a preponderance of
evidence(Rule 111, Sec. 3).
Exception: A plaintiff cannot recover damages
twice for the same act or omission of the
defendant.
Purpose
To make the court’s disposition of the criminal
case of no effect whatsoever on the separate civil
case.
NOTE: This is subject to the rule prohibiting
double recovery.
3. WHEN SEPARATE CIVIL ACTION IS
SUSPENDED
General Rule: Primacy of Criminal Action Over
Civil Action
After the filing of the criminal action, the civil
action, which has been reserved, cannot be
instituted until final judgment has been rendered in
the criminal action (Rule 111, Sec. 2).
If the civil action is instituted before the criminal
action and the criminal action is subsequently
commenced, the pending civil action shall be
REMEDIAL LAW
suspended until final judgment of the criminal
action has been rendered (Rule 111, Sec. 2).
Exceptions:
1. In cases of independent civil actions based
upon Articles 32, 33, 34 and 2176 of the Civil
Code (Rule 111, Sec. 3);
2. In cases where the civil action presents a
prejudicial question; and
3. Where the civil action is not one intended to
enforce the civil liability arising from the
offense.
Note: Article 29 of the Civil Code merely
emphasizes that a civil action for damages is not
precluded by the acquittal of an accused for the
same criminal act or omission. It does not state
that the remedy can be availed of only in a
separate civil action.
Note: While the criminal action is pending, the
running of the period of prescription of the civil
action which, either 1) cannot be instituted
separately or 2) whose proceeding has been
suspended, shall be suspended.
Consolidation of Criminal and Civil Cases
Before Judgment on the Merits
Before judgment on the merits is rendered in the
civil action, the same may, upon motion of the
offended party be consolidated with the criminal
action in the court trying the criminal action. This
is a modification on the rule on primacy of criminal
action (Rule 111, Sec. 1, last paragraph).
Where Effected
The consolidation must be effected in the criminal
court, irrespective of the nature of the offense, the
amount of the civil claim or the rank of the court
trying the civil case.
In cases where consolidation is given due course,
the evidence presented and admitted in the civil
case shall be deemed automatically reproduced in
the criminal action without prejudice to the right of
the prosecution to cross-examine the witnesses
presented by the offended party in the criminal
case and of the parties to present additional
evidence.
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The consolidated criminal and civil cases shall be
tried and decided jointly (Rule 111, Sec. 2).
General Rule: A judgment of acquittal
extinguishes civil liability only when it includes a
declaration that the fact from which civil liability
might arise did not exist. Thus, civil liability is not
extinguished in the following situations:
1. The acquittal is based on reasonable doubt,
where the civil case was reserved.
2. The decision contains a declaration that the
liability is not criminal but only civil in nature.
3. The civil liability is not derived from or based on
the criminal act of which the accused is
acquitted. (Sapiera v. Court of Appeals, G.R.
No. 128927, 1999).
Exception: If there is a finding in the final
judgment in the criminal action that the act or
omission from which the civil liability may arise did
not exist. (Ching v. Nicdao, G.R. No. 141181,
2007)
Note: The acquittal of petitioner does not bar the
offended party from pursuing a subsequent civil
case based on the delict, UNLESS, the judgment
of acquittal expressly declares that the act or
omission from which the civil liability may arise did
not exist. (Coscuella v. Sandiganbayan. G.R. No.
191411, 2013)
Note: The acquittal of an accused who is also a
respondent in an administrative case does not
conclude the administrative proceedings, nor carry
with it relief from administrative liability. Only
substantial evidence is necessary in
administrative cases. (Gupilan-Aguilar v. Office of
the Ombudsman, G.R. No. 197307, 2014, see also
Dy v. People, G.R. No. 189081, 2016)
Note: The Supreme Court, in Co v. Muñoz (G.R.
No. 181986, 2013) ruled that there was no libel
committed because Muñoz’s remarks were
privileged communication, and since malice was
no longer presumed, there was no civil liability on
his part.
Criminal liability for estafa is not affected by a
compromise or novation of contract, since it is a
public offense (Metrobank v. Reynaldo, G.R. No.
G.R. No. 164538, 2010)
REMEDIAL LAW
4. EFFECT OF THE DEATH OF ACCUSED
OR CONVICT ON CIVIL ACTION
Before Arraignment
The criminal action shall be dismissed without
prejudice to the offended party’s filing any civil
action against the estate of the deceased (Rule
111, Sec. 4).
After Arraignment and During the Pendency of
the Criminal Action
General Rule: Death extinguishes the civil liability
arising from delict or the offense Rule 111, Sec. 4).
Exception: Where civil liability is predicated on
other sources of obligations such as law, contract,
quasi-contract, and quasi-delict (Asilo v. People
G.R. Nos. 159017-18, 2011) - Independent civil
action
Note: Both may be continued against the estate or
legal representative of the accused after proper
substitution, or against said estate, whatever the
case may be. Heirs of the deceased shall be
substituted for the deceased defendant without
requiring the appointment of an executor or
administrator. The court may also appoint a
guardian ad litem for minor heirs. The criminal
case is reduced to a civil action. (People v. Lipata
y Ortiza, G.R. No. 200302, 2016)
If the civil action has been reserved and
subsequently filed or such civil action has been
instituted, when the accused died, then such civil
action will proceed and substitution of parties shall
be ordered by the court pursuant to Section 16
Rule 3 of the Rules of Court.
Note: The Supreme Court, in People v. Lipata,
ruled that there was no separate civil case
instituted prior to the criminal case. Neither was
there any reservation for filing a separate civil case
for the cause of action arising from quasi-delict.
Under the present Rules, the heirs of Cueno
should file a separate civil case in order to obtain
financial retribution for their loss. The lack of a
separate civil case for the cause of action arising
from quasidelict leads us to the conclusion that, a
decade after Cueno’s death, his heirs cannot
recover even a centavo from the amounts
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awarded by the CA (People v. Lipata, G.R. No.
200302, 2016).
After Final Judgment
The action is enforced as a money claim against
the estate. (Rule 86)
Judgment in Civil Action Not A Bar
A final judgment rendered in a civil action
absolving the defendant from civil liability is not a
bar to a criminal action against the defendant for
the same act or omission subject of the civil action
(Rule 111, Sec. 5).
Note: Where the criminal case was dismissed
before trial because the offended party executed
an affidavit of desistance, the civil action thereof is
similarly dismissed.
Upon accused's death pending appeal of his
conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to
stand as the accused; the civil action instituted
therein for the recovery of the civil liability ex
delicto is ipso facto extinguished, grounded as it is
on the criminal action. However, it is well to clarify
that accused's civil liability in connection with his
acts against the victim may be based on sources
other than delicts; in which case, the victim may
file a separate civil action against the estate of the
accused, as may be warranted by law and
procedural rules. (People v. Layag, G.R. No.
214875, 2016).
5. PREJUDICIAL QUESTION
Prejudicial Question
It arises in a case, the resolution of which is a
logical antecedent of the issue involved in the
criminal case and the cognizance of which
pertains to another tribunal (Omictin v. CA, G.R.
No.148004, January 22, 2007)
Suspension of the criminal case due to a
prejudicial question is only a procedural matter,
and is subject to a waiver by virtue of prior acts of
the accused.
Purpose
To avoid two conflicting decisions (Jose v. Suarez,
556 SCRA 773).
REMEDIAL LAW
Where to File Petition for Suspension By
Reason of Prejudicial Question
Office of the Prosecutor or the court conducting
the preliminary investigation (Rule 111, Sec. 6).
Time to Plead
A petition for suspension of the criminal action
based upon the pendency of a prejudicial question
in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary
investigation. Even during preliminary
investigation, a petition for suspension based on
prejudicial question can be filed before the
investigating officer.
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the
same criminal action at any time before the
prosecution rests (Rule 111, Sec. 6).
Elements of Prejudicial Question based on
Jurisprudence
1. The civil case involves facts intimately related
to those upon which the criminal prosecution
would be based
2. In the resolution of the issue or issues raised in
the civil action, the guilt or innocence of the
accused would necessarily be determined; and
3. Jurisdiction to try said question must be lodged
in another tribunal. (People v. Arambulo, G.R.
No. 186597, 2015)
Elements of Prejudicial Question Based on the
Rules of Court
1. The previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action.
2. The resolution of such issue determines
whether or not the criminal action may proceed
(Rule 111, Sec. 7).
Requirement of Previous Civil Action and
Subsequent Criminal Action
General Rule: There must be a previously
instituted civil action and a subsequent criminal
action for the doctrine of prejudicial question to
apply.
Exception: The Supreme Court has relaxed this
rule and applied the doctrine to a previously
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instituted administrative case and a subsequent
civil case (Quiambao v. Osorio, G.R. No. L-48157,
1998) and also a previously instituted
administrative case and a subsequent criminal
case (San Miguel Properties, Inc. vs. Sec.
Hernando Perez, G.R. No. 166836, 2013).
The Supreme Court acknowledged in those cases
that there was an INTIMATE CORRELATION OR
INTIMATE RELATION between the two cases.
The annulment of marriage is not a prejudicial
question in the criminal case for parricide. (Joselito
Pimentel v. Maria C. Pimentel, G.R.172060,
2010).
A prejudicial question need not conclusively
resolve the guilt or innocence of the accused. It is
enough that it tests the sufficiency of the
allegations in the information in order to sustain
further prosecution of the criminal case. (San
Miguel Properties v. Perez, G.R. No. 192253,
2013)
The phrase “previously instituted” in Rule 111
Section 7 was inserted to qualify the nature of the
civil action involved in a prejudicial question in
relation to the criminal action. This interpretation is
further buttressed by the insertion of the word
“subsequent” directly before the term criminal
action. There is no other logical explanation other
than the civil action must precede the criminal
action for there to be a prejudicial question.
(Dreamwork Construction v. Janiola and Famini,
G.R. No. 184861, 2009)
B.P. 22 controversies generally present a special
class of cases with consistent rulings against the
appreciation of a prejudicial question. The issue in
the criminal cases is whether the petitioner is guilty
of violating B.P. 22, while in the civil case, it is
whether the private respondents are entitled to
collect form the petitioner the sum or the value of
the checks. The resolution in the civil action is not
determinative of the guilt or innocence of the
accused in the criminal action. Mere issuance of
the worthless check with knowledge of the
insufficiency of funds constitutes the crime. (Yap
v. Cabales, G.R. No. 159186, 2009)
REMEDIAL LAW
An independent civil action based on fraud
initiated by the defrauded party does not raise a
prejudicial question to stop the proceedings in a
pending criminal prosecution of the defendant for
estafa through falsification. The result of the
independent civil action is irrelevant to the issue of
guilt or innocence of the accused. In no case,
however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action. (Consing, Jr. vs.
People, G.R. No. 161075, 2013)
A prejudicial question in an administrative case
filed with the HLURB suspends the criminal action
because the action for specific performance was
civil in nature but could not be instituted elsewhere
except in the HLURB whose jurisdiction over the
action was exclusive and original. (San Miguel
Properties v. Perez, G.R. No. 192253, 2013).
6. RULE ON FILING FEES IN CIVIL ACTION
DEEMED INSTITUTED WITH THE CRIMINAL
ACTION
CASE FILING FEES REQUIRED
Actual None
damages
BP 22 Based on the amount of the check;
paid in full upon filing of the criminal
and civil actions
Estafa Based on the amount involved
Damages Based on the amount in the
other than complaint. If there is no specified
Actual amount in the complaint, filing fees
shall be assessed in accordance
with the Rules, and shall be a first
lien on the judgment.
Actual Damages
General Rule: No filing fees are required for
amounts of actual damages (Rule 111, Sec. 1).
Exception: Criminal action for violation of B.P. 22
which is deemed to include the corresponding civil
action. The offended party shall, upon the filing of
the criminal and civil actions, pay in full the filing
fees based on the face value of the check as the
actual damages.
Note: Where a total of 40 counts of violation of
B.P. 22 was filed, this is equivalent to the filing of
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40 different information, as each count represents
an independent violation of the law. Filing fees, are
therefore, due for each count. (Chua v. Executive
Judge, G.R. No. 202920, 2013).
Purpose of Execution: to prevent offended party
from using the prosecutor’s office and the court as
vehicles for recovery of the face value of the
check, without paying the corresponding filing fees
Damages Other Than Actual
1. If these damages are specified in the complaint
or information, the corresponding filing fees
should be paid, otherwise, the trial court will not
acquire jurisdiction over such other damages.
2. If not specified in the complaint or information,
the grant and amount thereof are left to the
sound discretion of the trial court, the
corresponding filing fees need not be paid and
shall simply constitute a first lien on the
judgment.
3. In an appeal of a criminal case, the appellate
court may impose additional damages or
increase or decrease the amounts of damages
upon the accused-appellant.
4. Additional penalties cannot be imposed upon a
co-accused who did not appeal, but
modifications of the judgment beneficial to him
are considered in his favor.
5. The offended party in a criminal case may
appeal the civil aspect despite the acquittal of
the accused. Where the trial court convicted
the accused, but dismissed the civil action
instituted therein, the offended party may
appeal the dismissal to the CA.
6. If aggravating circumstance is not alleged but
proven in trial, the court will not consider such
aggravating circumstance in the award of
damages
Compromise on Civil Aspect
The offended party may compromise the civil
aspect of a crime, provided that it must be entered
before or during the litigation, and not after final
judgment. A compromise on the civil aspect is
valid even if it turns out to be unsatisfactory either
to one or both of the parties.
IMPORTANT: Section 1, Rule 111, Rules of
Court now expressly provides that no
REMEDIAL LAW
counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case,
but any cause of action which could have been
subject thereof may be litigated in a separate civil
action.
REASONS:
1. The counterclaim of the accused will
unnecessarily complicate and confuse the
criminal proceedings;
2. The trial court should confine itself to the
criminal aspect and the possible civil liability
of the accused arising out of the crime.
HOWEVER: The accused, who is presumed
innocent, has a right to file a separate civil action
in the same way that the offended party can avail
of this remedy. To disallow the accused from filing
a separate civil action for quasi-delict, while
refusing to recognize his counterclaim in the
criminal case, is to deny him due process of law,
access to the courts, and equal protection of the
law. (Casupanan v. Laroya, G.R. No. 145391,
2002).
D. PRELIMINARY INVESTIGATION
Definition:
It is an inquiry or a proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and that the respondent is probably
guilty thereof and should be held for trial (Rule
112, Sec. 1).
It is purely executive in nature. The courts can only
come in when there is grave abuse of discretion
on the part of the prosecution. PI is based on
probable cause. It does not import absolute
certainty, and need not be based on clear and
convincing evidence. The investigating officer acts
upon reasonable belief. It implies probability of
guilt and requires more than bare suspicion but
less than evidence to justify a conviction. (Manebo
v. Acosta, G.R. No. 169554, 2009, see also SEC
v. Santos, G.R. No. 195542, 2014)
When Required
General Rule: BEFORE the filing of a complaint
or information for an offense where the penalty
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prescribed by law is at least 4 years, 2 months and
1 day without regard to the fine.
Exception: If the accused was arrested by virtue
of lawful warrantless arrest (Rule 112, Sec. 1)
The dismissal of the case by the investigator will
not constitute double jeopardy and will not bar the
filing of another complaint for the same offense,
but if re-filed, the accused is entitled to another
preliminary investigation. (Solado Law Offices v.
CA, G.R. No. 219914, 2016 citing Estrada v.
Ombudsman, G.R. No. 212140-41, 2015).
1. NATURE OF RIGHT
The right of an accused to a preliminary
investigation is not a constitutional but merely a
statutory right. Nonetheless, it is a component
part of due process in criminal justice and is a
substantive right. It is subject to the requirements
of both substantive and procedural due process
(Duterte v. Sandiganbayan, G.R. No. 130191.
April 27, 1998)
A preliminary investigation is not a trial and
does not involve the examination of witnesses
by way of direct or cross-examinations
(Bautista v. CA, G.R. No. 143375, July 6, 2001).
Preliminary investigation is not the occasion
for the full and exhaustive display of the
parties’ evidence. The merits and validity of the
accusation or defense and the admissibility of
testimonies and evidence are better ventilated
during trial (Ricaforte v. Jurado, G.R. No. 154428,
Sept. 5, 2007).
The right to a preliminary investigation is a
personal right and may be waived expressly or by
implication (People v. Lazo, G.R. No. 75367. June
19, 1991).
Lack of preliminary investigation is not a ground to
quash or dismiss a complaint or information, nor
does it affect the court’s jurisdiction (Pilapil v.
Sandiganbayan, G.R. No. 101978. April 7, 1993).
If there was no preliminary investigation and an
objection was raised, the court, instead of
dismissing the complaint or information, should
REMEDIAL LAW
order the conduct of such investigation. (Estrada
v. Ombudsman, G.R. 212140-41, 2015)
Waiver
Failure of accused to invoke his right to a
preliminary investigation constituted a waiver of
such right and any irregularity that attended it. The
right may be forfeited by inaction and can no
longer be invoked for the first time at the appellate
level. (People v. Liwanag y Buenaventura, G.R.
No. 120468, 2001)
Failure to request it within 5 days from the time he
learns of the filing of the complaint or information
in those instances where the accused is lawfully
arrested without a warrant.
No Right of Preliminary Investigation
When a person is lawfully arrested without a
warrant unless there is a waiver of the provisions
of Article 125 of the Revised Penal Code.
Note: Article 125 of the Revised Penal Code
provides for the periods within which the public
officer or employee detaining a person for some
legal ground is directed to deliver such person to
the judicial authorities (12, 18 or 36 hours
depending upon the penalties prescribed for the
offense).
HOWEVER: The Accused Can Ask for
Preliminary Investigation: If he is subjected to
lawful arrest or inquest proceeding, he can ask for
preliminary investigation BEFORE the filing of the
complaint/ information BUT he must sign a
waiver in accordance with Article 125, Revised
Penal Code.
Note: By virtue of Section 2 of RA 7438, any
waiver by the person arrested or detained or under
custodial investigation shall be in writing, signed
by such person in the presence of his counsel,
otherwise such waiver shall be null and void.
AFTER the filing of the information/complaint, the
accused may, within 5 days from the time he
learns of its filing ask for preliminary investigation.
If the accused is already arraigned, he waives his
right to preliminary investigation.
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Required before the filing of a

Note: This rule has been partially amended by complaint or information for an
A.M. 05-0-8-26-SC. The amendments took effect offense where the penalty
on October 3, 2005. The amendment removed the prescribed by law is > 4 yr, 2 mo,
conduct of preliminary investigation from the and 1 day
judges of the first level courts. Judge (Rule To determine W/N a warrant of
112, Secs. 5 & arrest or a commitment order
2. PURPOSES OF PRELIMINARY 8) shall be issued and that there is
INVESTIGATION a necessity of placing
respondent under immediate
Purposes
custody in order not to frustrate
1. To determine whether a crime has been
the ends of justice
committed and whether there is probable
Peace Officer When making a warrantless
cause to believe that the accused is guilty
or Private arrest, and he has probable
thereof (Bautista v. CA, G.R. No. 143375, July
Person (Rule cause to believe based on
6, 2001).
113, Sec. 5[b]) personal knowledge of facts or
Note: Probable cause for purposes of filing a
circumstances that the person to
criminal information is defined as such facts as
be arrested has committed it
are sufficient to engender a well-founded belief
Judge (Rule To determine W/N a search
that a crime has been committed and that the
126, Sec. 4) warrant shall be issued
respondent is probably guilty thereof. Probable
cause, although it requires less than evidence
Officers Authorized To Conduct Preliminary
justifying a conviction, demands more than
Investigation
bare suspicion (Callo-Claridad v. Esteban,
1. Provincial or City Prosecutor and their
G.R. No. 191567, March 20, 2013)
assistants
2. To preserve evidence and keep the witnesses
2. National and Regional State Prosecutors
within the control of the State.
3. Such other officers as may be authorized by
3. To determine the amount of bail, if the offense
law such as the COMELEC, Ombudsman and
is bailable. (Callo-Claridad vs. Esteban, G.R.
PCGG (Rule 112, Sec. 2).
No. 191567, 2013)
Note: Their authority to conduct preliminary
Note: It must be stressed that a preliminary
investigations shall include all crimes cognizable
investigation is essentially prefatory and
by the proper court in their respective territorial
inquisitorial. It is not a trial based on the merits of
jurisdictions. (As amended by A.M. No. 05-8-26-
the case. (Community Rural Bank of Guimba, Inc.
SC, effective October 3, 2005)
v. Judge Talavera, A.M. No. RTJ-05-1909, 2005)

3. WHO MAY CONDUCT DETERMINATION MTC Judges No Longer Authorized to Conduct

OF EXISTENCE OF PROBABLE CAUSE Preliminary Investigation
By implication, Municipal Trial Court judges in
Instances When Probable Cause Needs To Be Manila and in chartered cities have not been
Established granted the authority to conduct Preliminary
WHO PURPOSE OF Investigation, as the officers authorized to do so
DETERMINES DETERMINATION are the prosecutors
Investigating To determine W/N there is
Officer (Rule sufficient ground to engender a Note: Although courts must respect the executive
112, Secs. 1 & well-founded belief that the determination of probable cause, the trial courts
3) respondent is guilty thereof, and may still independently determine probable cause.
should be held for trial They are not irrevocably bound to the
determination of probable cause by the prosecutor
and the DOJ.

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Election Offenses
The trial court actually has the following options The exclusive jurisdiction of the COMELEC to
upon the filing of a criminal information: (1) investigate and prosecute election offenses
immediately dismiss the case if the evidence on inheres even if the offender is a private individual
record clearly fails to establish probable cause; (2) or public officer or employee, and in the latter
issue a warrant of arrest if it finds probable cause; instance, irrespective of whether the offense is
and (3) order the prosecutor to present additional committed in relation to his official duties or not. In
evidence within five days from notice in case of other words, it is the nature of the offense, namely,
doubt as to the existence of probable cause. an election offense as defined in the Omnibus
Indeed, the RTC is allowed to dismiss the charge Election Code and in other election laws, and not
of estafa against Ang notwithstanding the the personality of the offender that matters.
executive determination of probable cause by the
prosecutor. If we were to construe otherwise, we Regarding Offenses Falling Within the Original
would be contradicting the basic principle that Jurisdiction of the Sandiganbayan
"once an information is filed in RTC, any Prosecutors of offenses falling within the original
disposition of the case rests already in the sound jurisdiction of the Sandiganbayan shall, after their
discretion of the court." (Anlud Metal Recycling conclusion, transmit the records and their
Corporation v. Ang, G.R. No. 182157, 2-15). resolutions to the Ombudsman or his deputy for
appropriate action.
Other Officers Who are Authorized by Law to
Determine Probable Cause Moreover, the prosecutor cannot dismiss the
OFFICER INSTANCES complaint without the prior written authority of the
COMELEC, through Election offenses Ombudsman or his deputy, nor can the prosecutor
its duly authorized punishable under OEC file an information with the Sandiganbayan without
legal officers being deputized by, and without prior written
(Omnibus Election Prior to amendment, all authority of, the Ombudsman or his deputy.
Code, Sec. 265) election offenses
Office of the Investigate and prosecute The Ombudsman is clothed with the authority to
Ombusdman any act or omission of any conduct preliminary investigation and to prosecute
(Ombudsman Act, public officer or all criminal cases involving public officers and
Sec. 15[1]) employee, office or employees, not only those within the jurisdiction of
agency, when such act or the SB, but also those within the jurisdiction of the
omission appears to be regular courts. Section 15 of R.A. No. 6770
illegal, unjust, improper, (Ombudsman Act of 1989) does not make any
or inefficient distinction. “Any illegal act or omission of any
public official” is broad enough to embrace any
Primary jurisdiction over crime committed by a public officer or employee.
cases cognizable by the Such grant of primary jurisdiction over cases
Sandiganbayan, and may cognizable by the SB does not necessarily imply
take over, at any stage, the exclusion from its jurisdiction of cases
from any investigatory involving public officers and employees
agency of the Gov’t, the cognizable by other courts. (Uy v. Sandiganbayan,
investigation of such G.R. Nos. 105965-70, 1999)
cases
PCGG, assisted by Investigate, file, and In criminal prosecutions, a reinvestigation, like an
OSG (EO No. 14, prosecute cases appeal, renders the entire case open for review,
1986 investigated by it, which regardless of whether a motion for reconsideration
generally, are ill-gotten or reinvestigation was sought. The Ombudsman
wealth cases should not be limited in its review. It is clear from
R.A. No. 6770 that the Ombudsman may motu

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propio conduct a reinvestigation. (Roxas v.
Vasquez, G.R. No. 114944, 2002)
The Ombudsman
The power of the Ombudsman to make
investigation extends to any illegal act or omission
of any public official, whether or not the same is
committed in relation to his office.
Moreover, the jurisdiction of the Office of the
Ombudsman should not be equated with the
limited authority of the Special Prosecutor under
Section 11 of RA 6770. Certainly, the lawmakers
did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these
types of cases. The Ombudsman is mandated by
law to act on all complaints against officers and
employees of the government and to enforce their
administrative, civil, and criminal liability in every
case where the evidence warrants. The law
likewise allows him to direct the Special
Prosecutor to prosecute cases outside the
Sandiganbayan's jurisdiction in accordance with
Section 11 (4c) of RA 6770. (Uy v.
Sandiganbayan, G.R. Nos. 105965-70, 1999)
Section 4(d) of Administrative Order No. 07
disallows the filing of a motion to quash or dismiss
a complaint filed with the Ombudsman, except on
the ground of lack of jurisdiction.
Which remedy may an aggrieved party avail of
against resolutions of the Ombudsman in
criminal or non-administrative cases?
The law is silent. Hence, appeal is not available as
a remedy because the right to appeal is a statutory
privilege and may be availed of only if there is a
statute to that effect. However, an aggrieved party
is not without remedy, as he can resort to the
special civil action of certiorari under Rule 65.
Absent any showing of grave abuse of discretion,
the SC will not interfere and overturn the
Ombudsman’s findings of probable cause in
investigating criminal complaints. The executive
determination of probable cause is a highly factual
matter and as the Ombudsman is armed with the
power to investigate, it is in a better position to
assess the strengths or weaknesses of the
evidence on hand to make a finding of probable
REMEDIAL LAW
cause. Since the SC is not a trier of facts, it shall
defer to the sound judgment of the Ombudsman.
(Arroyo v. Sandiganbayan, G.R. No. 210488,
2020)
The Ombudsman DOES NOT Have the
Following Powers:
1. To prosecute before the SB any impeachable
officers with any offense which carries with it
the penalty of removal from office, or any
penalty service of which would amount to
removal from office because by constitutional
mandate, they can only be removed from office
on impeachment for, and conviction of,
culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes,
or betrayal of public trust
2. To prosecute public officers or employees who
have committed election offenses.
3. To file an information for an offense cognizable
by the regular courts.
Effects of an Incomplete Preliminary
Investigation
1. It does not warrant the quashal of the
information
2. It does not affect the court’s jurisdiction or the
validity of the information.
A motion to dismiss is now a prohibited pleading
during preliminary investigation.
The respondent is now required to submit counter-
affidavits and other supporting documents relied
upon by him for his defense.
The respondent has now the right to examine the
evidence submitted by the complainant of which
he may not have been furnished and to obtain
copies thereof at his expense.
If respondent cannot be subpoenaed, or if
subpoenaed but does not submit his counter-
affidavit within 10 days, investigating officer shall
resolve the complaint based on the evidence
presented by the complainant.
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Rights of Respondent in a Preliminary There are two kinds of determinations of probable

Investigation: cause:
1. To examine the evidence submitted by the 1. Preliminary Investigation: Done by the
complainant. Executive Department
2. To submit counter-affidavit. 2. Preliminary Examination: Done by the
3. To be present in the clarificatory hearing (Rule Judicial Department (Mendoza v. People, G.R.
112, Sec. 3). No. 197293, 2014)

Note: The Rules do not require the presence of EXECUTIVE JUDICIAL

the respondent in the Preliminary Investigation. DETERMINATION DETERMINATION
What is required is that he be given the opportunity Made by the proper Made by the judge to
to controvert the evidence of the complainant by officer (prosecutor) ascertain whether a
submitting counter-affidavits. during preliminary warrant of arrest should
A clarificatory hearing is not indispensable during investigation to be issued against the
preliminary investigation. It is optional on the part ascertain whether there accused.
of the investigating officer. If the investigating is enough evidence to
prosecutor is already satisfied that he can support an Information
reasonably determine the existence of probable being filed
cause based on the parties’ evidence thus The investigating The judge must satisfy
presented, he may terminate the proceedings and prosecutor evaluates if himself that based on
resolve the case. What is determined during the facts are sufficient the evidence submitted,
preliminary investigation is only probable cause, to engender a well- there is necessity for
not proof beyond reasonable doubt. (De Ocampo founded belief that a placing the accused
v. Secretary of Justice, G.R. No. 147932, 2006, crime has been under custody in order
Fenix v. CA, G.R. No. 189878, 2016) committed and that the not to frustrate the ends
accused is probably of justice. If the judge
a. Distinguish: Executive and Judicial guilty thereof. finds no probable
Determination of Probable Cause cause, the judge cannot
be forced to issue the
Determination of probable cause is either
arrest warrant.
executive or judicial in nature. The first pertains to
the duty of the public prosecutor during preliminary
Since a preliminary investigation does not finally
investigation for the purpose of filing an
adjudicate the rights and obligations of parties,
information in court. At this juncture, the
"probable cause can be established with hearsay
investigating prosecutor evaluates if the facts are
evidence, as long as there is substantial basis for
sufficient to engender a well-founded belief that a
crediting the hearsay” (Reyes v. Ombudsman,
crime has been committed and that the accused is
G.R. Nos. 212593-94, 2016).
probably guilty thereof. On the other hand, judicial
determination of probable cause refers to the
The executive determination of probable cause is
prerogative of the judge to ascertain if a warrant of
within the exclusive domain of the prosecutor and,
arrest should be issued against the accused. At
absent grave abuse of discretion, this
this stage, the judge makes a preliminary
determination cannot be interfered with by the
examination of the evidence submitted, and on the
courts. (Baya v. Sandiganbayan, G.R. Nos.
strength thereof, and independent from the
204978-83, 2020)
findings of the public prosecutor, determines the
necessity of placing the accused under immediate
custody in order to frustrate the ends of justice.
(People v. Young, GR 213910, 2016)

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4. RESOLUTION OF INVESTIGATION
PROSECUTOR
After having filed the information, the prosecutor is
called upon to prosecute the case in court. At this
stage, unlike judges who are mandated to display
cold neutrality in hearing cases, the prosecutors
are not required to divest themselves of their
personal convictions and refrain from exhibiting
partiality. But while he may strike hard blows, he
is not at liberty to strike foul ones (People v.
Cawaling, G.R. No. 117970, 1988).
The Prosecutor shall Certify Under Oath in the
Information that:
1. He or she, or an authorized officer personally
examined the complainant and his witnesses;
2. There is reasonable ground that a crime has
been committed and the accused is probably
guilty thereof;
3. The accused was informed of the complaint
and of the evidence against him/her; and
4. The accused was given an opportunity to
submit controverting evidence (Rule 112, Sec.
4).
Note: Under Sec. 1 Rule 112, the investigating
prosecutor is tasked to determine whether there is
sufficient ground to engender a well-founded belief
that a crime has been committed and that the
respondent is herein guilty. If he finds probable
cause, he executes a certification at the bottom of
the information. However, such certification by
itself is ineffective and not binding to the court. It
cannot be the sole basis for the finding of probable
cause of the trial judge. (Samuel Lee v. KBC Bank
N.V., G.R. No. 164673, 2010).
5. REVIEW
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or the Ombudsman or
his deputy (Rule 112, Sec. 4).
Action by Provincial / City Fiscal or Chief State
Prosecutor
Where an assistant fiscal or state prosecutor who
has investigated the case recommends the
dismissal of the case but his findings are reversed
REMEDIAL LAW
by the Provincial or City Fiscal or by the Chief
State Prosecutor on the ground that a prima facie
case exists, the Provincial or City Fiscal or the
Chief State Prosecutor may, by himself, and on the
basis of the same sworn statements and evidence
submitted:
1. File the information against the respondent; or
2. Direct any other assistant fiscal or state
prosecutor to do so, without conducting
another preliminary investigation (Rule 112,
Sec. 4).
Role of Secretary of Justice
The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from
the offended party even after the information has
been filed and the trial court has arraigned the
accused. Section 4 of DOJ 223 should be
construed as merely enjoining the Secretary of
Justice to refrain, as far as practicable, from
entertaining a petition for review or appeal from the
action of the prosecutor once the complaint or
information is filed in court.
If the Secretary reverses the ruling of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy,
the Secretary shall:
1. Direct the prosecutor to file the corresponding
information without conducting another
preliminary investigation; or
2. Dismiss or move for the dismissal of the
complaint or information with notice to the
parties (Rule 112, Sec. 4).
Note: A provincial or city prosecutor has neither
the personality nor the legal authority to review or
overrule the decision of the secretary. The only
time that a motion for reinvestigation may be filed
is when there is newly discovered evidence. Such
must be filed before the secretary of justice rules
on an appeal of the resolution in the preliminary
investigation. (Community Rural Bank of Guimba,
Inc. v. Talavera, A.M. No. RTJ-05-1909, 2005)
Note: The Secretary of Justice is empowered to
review the actions of the Provincial Fiscal during
the preliminary investigation or the reinvestigation
by virtue of Section 4, Rule 112 of the Rules of
Court which recognizes the Secretary of Justice's
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power to review the actions of the investigating
prosecutor, even motu proprio. (Fortaleza v.
Gonzales, G.R. No. 179287, 2016)
Note: Under Rule 112, Section 4 of the Rules of
Court, the Secretary of Justice may motu proprio
reverse or modify resolutions of the provincial or
city prosecutor or the chief state prosecutor even
without a pending petition for review. The
Secretary of Justice exercises control and
supervision over prosecutors and it is within her-
authority to affirm, nullify, reverse, or modify the
resolutions of her prosecutors.
Section 4 of Republic Act No. 10071 also gives the
Secretary of Justice the authority to directly act on
any "probable miscarriage of justice within the
jurisdiction of the prosecution staff, regional
prosecution office, and the provincial prosecutor or
the city prosecutor." Accordingly, the Secretary of
Justice may step in and order a reinvestigation
even without a prior motion or petition from a party
in order to prevent any probable miscarriage of
justice. (De Lima v. Reyes, G.R. No. 209330,
2016)
Review by the CA of the Secretary of DOJ’s
finding of probable cause under Rule 65.
Under the doctrine of separation of powers, the
courts have no right to directly decide matters over
which full discretionary authority has been
delegated to the Executive Branch of the
Government, or to substitute their own judgments
for that of the Executive Branch, represented in
this case by the Department of Justice.
Courts will not interfere with the executive
determination of probable cause for the
purpose of filing an information, in the
absence of grave abuse of discretion. That
abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law or
to act at all in contemplation of law, such as where
the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility. (Callo-
Claridad v. Esteban, G.R. No. 191567, 2013)
Note: A Rule 43 petition is not allowed since the
Secretary is not acting in a quasi-judicial function
REMEDIAL LAW
when reviewing the investigating prosecutor’s
resolution. (Callo-Claridad v. Esteban, G.R. No.
191567, 2013)
Note: The Court declared in Santos-Dio v. CA
(Santos-Dio) that while a judge's determination of
probable cause is generally confined to the limited
purpose of issuing arrest warrants, he is
nonetheless authorized under Section 5 (a), Rule
112 of the Revised Rules of Criminal Procedure to
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. A
judge may dismiss the case for lack of probable
cause only in clear-cut cases when the evidence
on record plainly fails to establish probable cause
- that is when the records readily show
uncontroverted, and thus, established facts which
unmistakably negate the existence of the elements
of the crime charged. (Young v. People, G.R. No.
213910, 2016)
Note: Judicial review of the resolution of the
Secretary of Justice is limited to a determination of
whether there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction considering that full discretionary
authority has been delegated to the executive
branch in the determination of probable cause
during a preliminary investigation. (People v. Go,
G.R. No. 210816, 2018)
Appeal to the Office of the President
Appeals from or petition for review of
decisions/orders/resolutions of the Secretary of
Justice on preliminary investigations of criminal
cases are entertained by the Office of the
President
Requisites:
1. Offense involved is punishable by reclusion
perpetua to death
2. New and material issues are raised which were
not previously presented before the
Department of Justice and were not ruled upon
3. Prescription of the offense is not due to lapse
within 6 months from notice of questioned
resolution
4. Appeal or petition for review is filed within 30
days from notice (Memorandum Circular No.
58, June 30, 1993)
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Note: In 2011, the Office of the President issued
A.O. No. 22, which revised the appeal procedure
for all offices under the OP. While it did not
expressly repeal M.C. No. 58, it expressly retained
the limitation to appeals where the offense
involved is punishable by reclusion perpetua to
death, but shortened the appeal period to 15 days.
The other requisites in M.C. No. 58 were not
mentioned. (Administrative Order No. 22, October
11, 2011)
Effects of Exclusion of Other Persons from the
Information
1. If during the trial, evidence is shown that such
persons should have been charged, the fact
that they were not included in the information
does not relieve them of criminal liability, and
they can be subsequently prosecuted.
2. The accused that has been charged with the
offense is not allowed to escape punishment
merely because it develops in the course of the
trial that there were other guilty participants in
the crime.
3. It does not vitiate the validity of the information.
Neither is the same a ground for a motion to
quash (Socrates v. Sandiganbayan, G.R. Nos.
116259-60 February 20, 1996)
Effect if the Information is Filed by Someone
Not Authorized by Law
The court does not acquire jurisdiction. The
accused’s failure to assert lack of authority on the
part of the prosecutor in filing the information does
not constitute a waiver thereof. (People v. Garfin,
G.R. No. 153176, 2004. Quisay v. People G.R. No.
216920, 2016).
6. WHEN WARRANT OF ARREST MAY
ISSUE
If the judge, upon the filing of the complaint or
information with the court, finds probable cause,
he/she shall issue a warrant of arrest or a
commitment order (if the accused had already
been arrested) and hold him/her for trial. If the
judge is satisfied that there is no necessity for
placing the accused under custody, he/she may
issue summons instead of warrant of arrest.
REMEDIAL LAW
If the judge does not find probable cause, he may
either dismiss the case or give the prosecutor a
period of 10 days to file additional evidence. If the
judge dismisses the case, he must state the basis
of his dismissal (Rule 112, Sec. 9).
However, if the evidence on record shows that,
more likely than not, the crime charged has been
committed and that respondent is probably guilty
of the same, the judge should not dismiss the case
and thereon, order the parties to proceed to trial.
(People vs. Young, GR No. 213910, 2016)
The validity and merits of a party’s defense or
accusation, as well as the admissibility of
testimonies and evidence, are better ventilated
during trial proper than at the level of determining
probable cause. Thus, the judge shall not
consider the defenses in finding probable
cause (Hasegawa v. Giron, G.R. No. 184536
August 14, 2013).
The judge will order the arrest if the imposable
penalty of the offense is more than 4 years, 2
months and 1 day.
For crimes under summary procedure, an
arraignment has to be set.
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.
In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the
complainant and his witnesses. Following
established doctrine and procedure, he shall:
1. Personally evaluate the report and the
supporting documents submitted by the fiscal
regarding the existence of probable cause and,
on the basis thereof, issue a warrant of arrest;
or
2. If on the basis thereof he finds no probable
cause, he may disregard the fiscal’s report and
require the submission of supporting affidavits
of witnesses to aid him in arriving at a
conclusion as to the existence of probable
cause.
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Sound policy dictates this procedure, otherwise
judges would be unduly laden with the preliminary
examination and investigation of criminal
complaints instead of concentrating on hearing
and deciding cases filed before their courts.
(Soliven v. Makasiar, G.R. Nos. L-82585, L-82827,
and L-83979, 1988)
A warrant issued by the judge solely on the basis
of the report and recommendation of the
investigating prosecutor, without personally
determining the existence of probable cause by
independently examining sufficient evidence
submitted by the parties during the Preliminary
Investigation is not valid.
Effect of a Finding of Probable Cause
It merely binds the suspect to stand trial. It is not
a pronouncement of guilt (Vilarosa v. OMB, G.R.
No. 221418, January 23, 2019).
Remedies of the Accused Who Believes that
there is No Probable Cause to Hold Him for
Trial:
Motion to dismiss on such ground. The mere fact
that a warrant of arrest has been issued means
that there is already probable cause.
Note: Section 6(b) of Rule 112 also states that the
investigating judge could issue a warrant of arrest
during the preliminary investigation even without
awaiting its conclusion should he find after an
examination in writing and under oath of the
complainant and the witnesses in the form of
searching questions and answers that a probable
cause existed, and that there was a necessity of
placing the respondent under immediate custody
in order not to frustrate the ends of justice.
(Mangila v. Pangilinan, G.R. No. 160739, 2013)
Where an information has already been filed in
court and the Secretary of Justice reversed the
prosecutor’s finding of probable cause, what
should the trial court do upon the prosecutor’s
motion to dismiss?
The judge should make his/her own assessment
of the evidence and not just rely on the conclusion
of the prosecutor; otherwise the court becomes a
mere rubber stamp.
REMEDIAL LAW
“Once a complaint or information is filed in Court
any disposition of the case, [either] dismissal or
the conviction or acquittal of the accused, rests in
the sound discretion of the Court. Although the
fiscal retains the direction and control of the
prosecution of criminal cases even while the case
is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole
judge on what to do with the case before it. The
determination of the case is within its exclusive
jurisdiction and competence. (Crespo v. Mogul,
G.R. No. L-53373, 1987)
Reinvestigation
Once the complaint or information is filed in court,
any motion for reinvestigation is addressed to the
sound discretion of the court (Leviste v. Alameda,
G.R. No. 182677, August 3, 2010).
While the trial court judge has the power to order
the reinvestigation of the case by the prosecutor,
he may not, before the prosecutor concluded the
reinvestigation, recall said order, set the case for
arraignment and trial, without gravely abusing his
discretion.
Basis for Reinvestigation
1. New evidence had been discovered which
materially affects the order, directive or
decision;
2. Grave errors of facts or laws or serious
irregularities have been committed prejudicial
to the interest of the movant.
NOTE: The rule now is that the investigating
judge’s power to order the arrest of the accused is
limited to instances in which there is a necessity
for placing him in custody in order not to frustrate
the ends of justice. Thus, even if the judge finds
probable cause, he cannot, on such ground alone,
issue a warrant of arrest. He must further find if
there is a necessity of placing the accused under
immediate custody in order not to frustrate the
ends of justice. (See A.M. No. 05-8-26-SC)
The investigating judge has no power to reduce or
change the crime charged in order to justify the
grant of bail to the accused. The power belongs
to the prosecutor.
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After the conclusion of his PI, the judge has to
transmit to the provincial prosecutor his resolution
and entire records of the case, regardless of
whether he finds a probable cause or sufficient
ground to issue a warrant of arrest.
When Warrant of Arrest Not Necessary
1. When the accused is already under detention
2. When the accused is lawfully arrested without
a warrant
3. When the offense is penalized by a fine only
(Rule 112, Sec. 5 (c))
When accused is lawfully arrested without
warrant
General Rule: No complaint or information shall
be filed for an offense which is penalized by
imprisonment of at least 4 years, 2 months and 1
day without Preliminary Investigation.
Exception: In case a person is ARRESTED
WITHOUT A WARRANT, a complaint or
information may only be filed after an inquest is
conducted in accordance with existing rules (Rule
112, Sec. 7).
7. CASES NOT REQUIRING A
PRELIMINARY INVESTIGATION
Cases where the penalty imposed is less than 4
years 2 months and 1 day.
Upon the finding of probable cause, a warrant of
arrest must be issued and arraignment has to be
set. (Rule 112, Section 6).
Procedure to Be Followed if
Complaint/Information filed with MTC/MCTC:
1. Evaluate the evidence presented;
2. Examine the witnesses in the form of searching
questions or answers; and
3. Require the submission of additional evidence
if necessary (Rule 112, Section 6).
If a complaint or information is filed directly with the
Municipal Trial Court, [xxx] the judge is given the
discretion to merely issue summons instead of a
warrant of arrest if he does not find it necessary to
place the accused under custody. [xxx] Whether it
is necessary to place the accused in custody in
order not to frustrate the ends of justice is left to
REMEDIAL LAW
the judge’s sound judgment. (Sesbreo v. Aglugub,
A.M. No. MTJ-05-1581, 2005)
For cases under the Revised Rules on Summary
Procedure, upon finding of probable cause, the
judge will order the arraignment of the accused.
8. REMEDIES OF ACCUSED IF THERE WAS
NO PRELIMINARY INVESTIGATION
Remedies of the Accused:
1. Before a complaint or information is filed, he
may ask for a preliminary investigation but he
must sign a waiver of the provision of Art. 125
of the RPC in the presence of his counsel; if it
is refused, he may file a petition for certiorari
2. After the filing of the complaint or information in
court without a preliminary investigation, the
accused may, within 5 days from the time he
learns of its filing, ask for a Preliminary
Investigation (Sec. 6 Rule 112);
3. Refuse to enter a plea upon arraignment and
object to further proceedings upon such
ground;
4. Raise lack of preliminary investigation as error
on appeal (US v. Banzuela, 1915);
5. File for prohibition (Conde v. CFI, 1923).
Note: The absence of a preliminary investigation
does not impair the validity of the information or
otherwise render it defective. Neither does it affect
the jurisdiction of the court or constitute a ground
for quashing the information. The trial court,
instead of dismissing the information, should hold
in abeyance the proceedings and order the public
prosecutor to conduct a preliminary investigation.
(Villaflor v. Viva, G.R. No. 134744, 2001)
9. INQUEST
Definition
Inquest is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without
the benefit of a warrant of arrest issued by the
court for the purpose of determining whether or not
said persons should remain under custody and
correspondingly charged in court. (DOJ
Department Circular No. 61, 1993)
Conducted by Inquest Prosecutor
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The inquest is conducted by a public prosecutor
who is assigned inquest duties as an Inquest
Officer and is to discharge his duties, unless
otherwise directed, only at the police
stations/headquarters of the PNP in order to
expedite and facilitate the disposition of inquest
cases. (Sec. 2, Part II, Manual for Prosecutors).
General Rule: Detained person should be present
during inquest proceedings.
Exception: When reasons exist that would
dispense with his presence like confinement in a
hospital, detention in a place requiring maximum
security or his presence is not feasibly by reason
of age, health or similar factors (Sec. 6, Part II,
Manual for Prosecutors).
Duty of Inquest Officer
1. To determine if the arrest of the detained
person is valid;
2. If found valid he shall:
a. Ask the detainee if he desires to avail of
himself preliminary investigation
b. If he does, he shall be made to execute a
waiver of the provision of Art. 125 of the
RPC.
3. If the arrest was not made in accordance with
the law and/or the Rules, he shall:
a. Recommend the release of the person
arrested or detained
b. Note down the disposition on the referral
document;
c. Prepare a brief memorandum indicating the
reasons for the action taken
d. Forward the same, together with the record
of the case to the City or Provincial
Prosecutor for appropriate action (Sec. 9
DOJ Circular No. 61).
Filing of Complaint or Information in case of
absence or unavailability of Inquest
Prosecutor
The complaint may be filed by the offended party
or a peace officer directly with the proper court on
the basis of the affidavit of the offended party or
arresting officer or person.
Accused may ask for a preliminary
investigation; conditions to do so
Before the filing of a complaint or information, the
person arrested without a warrant may ask for a
REMEDIAL LAW
preliminary investigation by a proper officer, but he
must sign a waiver of the provisions of Article 125
of the RPC.
1. If the accused allows himself to be arraigned
without asking for a preliminary investigation,
he is deemed to have waived the right to such
PI.
2. If the complaint or information was filed without
PI, the accused may, within 5 days from the
time he learns of the filing of the information,
ask for a preliminary investigation with the
same right to adduce evidence in his favor in
the manner prescribed in this Rule. (5–day
period is MANDATORY; failure to file within the
said period amounts to a waiver)
3. Where the information was amended without a
new PI having been conducted, the 5-day
period is computed from the time the accused
learns of the filing of said amended information
(Rule 112, Sec. 7).
The inquest must pertain to the offense for
which the arrest was made. This rule is
exemplified by Beltran v. People (G.R. No.
175013, 2007). “The joint affidavit of Beltran’s
arresting officers states that the officers arrested
Beltran, without a warrant, for Inciting to Sedition,
and not for Rebellion. Thus, the inquest prosecutor
could only had conducted as he did conduct an
inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors
subjected Beltran to a second inquest proceeding
for Rebellion, they overstepped their authority
rendering the second inquest void.”
OTHER MATTERS
Where a Motion for Reinvestigation is Granted
Where the trial court has granted a motion for
reinvestigation, it must hold in abeyance the
arraignment and trial of the accused until the
prosecutor shall have conducted and made a
report on the result of the reinvestigation (People
v. Beriales, G.R. No. L-39962. April 7, 1976).
Right to Bail Pending Preliminary Investigation
A person lawfully arrested may post bail before the
filing of the information or even after the filing
without waiving his right to PI, provided that he
asks for a PI by the proper officer within the period
fixed by the rules (Rule 112, Sec. 7).
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Records
An information or complaint filed in court shall be
supported by the affidavits and counter-affidavits
of the parties and their witnesses, together with the
other supporting evidence and the resolution on
the case.
Records of the preliminary investigation shall NOT
automatically form part of the records of the case.
Courts are not compelled to take judicial notice
thereof. It must be introduced as evidence. (De
Lima v. Reyes, G.R. No. 209330, January 11,
2016)
Conditions for the Issuance of Warrant of
Arrest:
1. Must EXAMINE in writing and under oath the
complainant and his witnesses by searching
questions and answers (must be
searching/probing; not merely questions
answerable by “yes” or “no”).
2. Be satisfied that a PROBABLE CAUSE exists.
3. That there is a need to place respondent under
IMMEDIATE CUSTODY in order not to
frustrate the ends of justice (Rule 112, Sec. 6).
E. ARREST
1. ARREST, HOW MADE
Arrest
It is the taking of a person into custody in order that
he may be bound to answer for the commission of
an offense. (Rule 113, Sec. 1)
Diplomatic and parliamentary immunity
It is a well-recognized principle of international law
that diplomatic representatives are exempt from
the criminal and civil jurisdiction of foreign courts.
This exemption includes the freedom from arrest,
prosecution, and punishment for violation of penal
laws.
For senators and congressmen, the privilege of
parliamentary immunity will NOT APPLY when:
1. The offense committed by them is punishable
by imprisonment of more than six years even if
REMEDIAL LAW
Congress is in session (People v. Jalosjos,
G.R. No. 132875-76, 2000); and
2. Congress is NOT in session when the crime
was committed (Phil. Const. art. VI, Sec. 11)
How an Arrest is Made
1. By actual restraint of the person to be arrested;
or
2. By his/her submission to the custody of the
person making the arrest. (Rule 113, Sec. 2)
A policeman in the performance of duty is justified
in using such force as is reasonably necessary to
secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm. In
case injury or death results from the policeman’s
exercise of such force, the policeman could be
justified in inflicting the injury or causing the death
of the offender if the policeman had used
necessary force.
Since a policeman’s duty requires him to
overcome the offender, the force exerted by the
policeman may therefore differ from that which
ordinarily may be offered in self-defense.
However, a policeman is never justified in using
unnecessary force or in treating the offender with
wanton violence, or in resorting to dangerous
means when the arrest could be affected
otherwise. (Cabanlig v. Sandiganbayan, G.R. No.
148431, 2005)
NOTE: After an arrest, the accused undergoes
custodial investigation. However, custodial
investigation may also happen even if the accused
was not arrested. A custodial investigation
includes the practice of issuing an "invitation" to a
person who is investigated in connection with an
offense he is suspected to have committed,
without prejudice to the liability of the "inviting"
officer for any violation of law (Sec. 2(f), R.A.
7438). This means that even those who voluntarily
surrendered before a police officer must be
apprised of their Miranda rights. The invocation of
these rights applies during custodial investigation,
which begins "when the police investigation is no
longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect taken
into custody by the police who starts the
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interrogation and propounds questions to the
person to elicit incriminating statements" (People
v. Chavez, G.R. No. 207950, 2014).
Modes of Arrest:
1. Arrest by virtue of a warrant; and
2. Arrest without a warrant under exceptional
circumstances as may be provided by statute.
Duty of Arresting Officer
1. Arrest the accused; and
2. Deliver him to the nearest police station or jail
without unnecessary delay (Rule 113, Sec. 3).
Execution of Warrant
A warrant of arrest has no expiry date. It remains
valid until arrest is effected or the warrant is lifted.
However, head of the office shall cause the
warrant to be executed within 10 days from receipt
thereof. Within 10 days after expiration of the
period, the arresting officer assigned to execute
the same shall submit a report to the judge who
issued the warrant. In case of his failure to execute
the warrant, he shall state the reasons thereof
(Rule 113, Sec. 4).
Unlike a search warrant, the validity of which is
limited to ten days, after which it becomes void
(Rule 126, Section 9), no time limit is fixed for the
validity of a warrant of arrest. The arrest warrant
continues to be in force so long as it has not been
recalled or the person named therein arrested or
had otherwise submitted himself to the jurisdiction
of the court. This must be so, for the return
mentioned in the section refers not to the physical
delivery of the very same copy of the process to
the issuing court, but to the report of the officer
charged with its execution on the action taken by
him thereon.
In short, the 10-day period provided in Rule 113,
Section 4 is only a directive to the officer executing
the warrant to make a return to the court. (People
vs. Givera, G.R. No. 132159, 2001)
The Judge Issues a Warrant of Arrest in Two
Instances:
1. Upon the filing of the information by the
prosecutor.
REMEDIAL LAW
In issuing this kind of warrant, the judge does
not personally examine the complainant and
the witnesses he may produce, but he merely
evaluates personally the report and supporting
documents and other evidence adduced during
the preliminary investigation and submitted to
him by the prosecutor, and if he finds probable
cause on the basis thereof, he issues the
warrant for the arrest of the accused.
2. Upon application of a peace officer
In this kind of warrant, the judge must
personally examine the applicant and the
witnesses he may produce, to find out whether
there exists probable cause, otherwise, the
warrant issued is null and void. He must
subject the complainant and the witnesses to
searching questions. The reason for this is
there is yet no evidence on record upon which
he may determine the existence of probable
cause.
2. ARREST WITHOUT WARRANT, WHEN
LAWFUL
Lawful Warrantless Arrest
1. When IN HIS/HER PRESENCE, the person to
be arrested has committed, is actually
committing or is attempting to commit an
offense (IN FLAGRANTE DELICTO
ARRESTS).
Note: For a warrantless arrest of a person
caught in flagrante delicto to be valid, two
requisites must concur: 1) the person arrested
must execute an overt act indicating that he has
just committed, is actually committing, or is
attempting to commit a crime; and 2) such overt
act is done in the presence or within the view of
the arresting officer. Thus, flight per se must not
always be attributed to one’s consciousness of
guilt (People v. Edaño, G.R. No. 188133,
2014).
Note: A valid warrantless arrest gives the
officers the right to search the area for objects
relating to the crime and seize them only if they
are in plain view. In the course of their lawful
intrusion, if items plainly visible were
discovered, the police officers would be
justified in seizing them. A valid warrantless
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arrest means that the search and seizure that
resulted from it are likewise lawful. The objects
obtained from such lawful search and seizures
are admissible in evidence. (Saraum v. People,
G.R. No. 205472, 2016)
2. When an offense has just been committed and
he has probable cause to believe based on
PERSONAL KNOWLEDGE of fact and
circumstance that the person to be arrested
has committed it. (DOCTRINE OF HOT
PURSUIT).
This doctrine is different from in flagrante
delicto in the sense that this does not require
the arresting officer or person to personally
witness the commission of the offense. What is
important is the immediacy of the arrest
reckoned from the commission of the crime.
However, it is not enough that the arresting
officer had reasonable ground to believe that
the accused had just committed a crime; a
crime must, in fact, have been committed first
and that the arresting officer knows for a fact
that it has been committed (Comerciante v.
People, G.R. No. 205926, 2015).
Test of Immediacy
There must be a large measure of immediacy
between the time the offense was committed
and the time of the arrest (Rolito Go v. CA, G.R.
No. 125299, 1999)
A warrantless arrest was invalidated because it
was made three days after the commission of
the crime (Posadas v. Ombudsman, G.R. No.
131492, 2000). The requirement of
“immediacy” between the time of the
commission of the crime and the time of arrest
is absent (see People v. Del Rosario, G.R. No.
127755, 1999)
Personal Knowledge
The person making the arrest has personal
knowledge of the fact that a crime was
committed because at the time of his arrest, he
has reasonably worthy information in his
possession coupled with his own observation
and fair inferences therefrom that the person
arrested has probably committed the offense;
REMEDIAL LAW
the arresting officer may even rely on
information supplied by a witness or a victim of
the crime (Pestilos v. Generoso, G.R. No.
182601, 2014).
Note: The standards for evaluating the factual
basis supporting a probable cause assessment
are not less stringent in warrantless arrest
situation than in a case where a warrant is
sought from a judicial officer. The probable
cause determination of a warrantless arrest is
based on information that the arresting officer
possesses at the time of the arrest and not on
the information acquired later. (Pestilos v.
Generoso, G.R. No. 182601, 2014).
Rule 113, Section 5(b) of the Rules of Court
pertains to a hot pursuit arrest. The rule
requires that an offense has just been
committed. It connotes “immediacy in point of
time.” That a crime was in fact committed does
not automatically bring the case under this rule.
An arrest under Rule 113, Section 5(b) of the
Rules of Court entails a time element from the
moment the crime is committed up to the point
of arrest. (Sapi v. People, G.R. No. 200370,
2017)
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
temporarily confined while his case is pending
or has escaped while being transferred from
one confinement to another.
4. When a person who has been lawfully arrested
escapes or is rescued (Rule 113, Sec. 13).
5. By the bondsman for the purpose of
surrendering the accused (Rule 113, Sec. 23).
6. Where the accused released on bail attempts
to leave the country without permission of the
court (Rule 114, Sec. 23).
Law enforcers may search an arrested person for
dangerous weapons or anything that may be used
as proof of the commission of an offense, without
need of a search warrant. Section 5(b) authorizes
warrantless arrest “when an offense has in fact just
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been committed.” The word “just” implies
immediacy in point of time.
Delivery of the detained person to the proper
judicial authorities means the filing of the
complaint or information with the municipal trial
court or with the inquest fiscal or prosecutor who
shall then decide either to order the release of the
detained person or to file the corresponding
information in court.
An accused who enters his plea of NOT guilty and
participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised
before arraignment, otherwise it is deemed
waived, as the accused had voluntarily submitted
himself/herself to the jurisdiction of the court.
The usual procedure in a buy-bust operation is for
the police officers to arrest the pusher of drugs at
the very moment he hands over the dangerous
drugs to the poseur-buyer. In a case where the
poseur-buyer calls up his superior after receiving
the money, and only thereafter gives a go-signal
to arrest the suspect, the operation is an illegal raid
rather than a buy-bust operation. (People v. Lim,
G.R. No. 141699, 2002)
Time of Making Arrest
It may be made on any day and at any time of the
day or night.
3. METHOD OF ARREST
a. By Officer With Warrant
Inform the person to be arrested of the:
1. Cause of the arrest and
2. The fact that a warrant has been issued for his
arrest (Rule 113, Sec. 7).
Exception/s:
1. When a person flees; or
2. When a person forcibly resists before the
officer has opportunity to so inform him; or
3. When the giving of such information will imperil
his arrest (Rule 113, Sec. 7).
The officer need not have the warrant in his
possession at the time of the arrest but after the
arrest, if the person arrested so requires, the
REMEDIAL LAW
warrant shall be shown to him as soon as
practicable. (Mallari v. CA, G.R. No. 110569,
1996).
b. By Officer Without Warrant
Inform the person to be arrested of:
1. His authority and
2. The cause of the arrest (Rule 113, Sec. 8).
Exception/s:
1. When the person is engaged in the commission
of an offense; or
2. Pursued immediately after its commission; or
3. Has escaped, flees; or
4. Forcibly resists before the officer has
opportunity to so inform him; or
5. When giving of such information will imperil the
arrest (Rule 113, Sec. 8).
Note: With port security personnel's functions
having the color of state-related functions and
deemed agents of government, the Bill of Rights
applies in this case.
Searches pursuant to port security measures are
not unreasonable per se. The security measures
of x-ray scanning and inspection in domestic ports
are akin to routine security procedures in airports.
Reason: there is a reasonable reduced
expectation of privacy when coming into airports
or ports of travel.
Travelers are often notified through airport public
address systems, signs and notices in their airline
tickets that they are subject to search and, if any
prohibited materials or substances are found, such
would be subject to seizure. These
announcements place passengers on notice that
ordinary constitutional protections against
warrantless searches and seizures do not apply to
routine airport procedures.
It is also important to note that routine baggage
inspections are different from a customs search.
Although customs searches usually occur within
ports or terminals, it is important that the search
must be for the enforcement of customs laws.
(Dela Cruz v. People, G.R. No. 209387, 2016)
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c. By Private Person Right of an Attorney or Relative to Visit the

Person Arrested
Inform the person to be arrested of: The attorney of the person arrested has the right
1. Intention to arrest him and to visit and confer privately with such person in jail
2. The cause of the arrest (Rule 113, Sec. 9). or any place of custody at any hour of the day or
Exception/s: night (Rule 113, Sec. 14).
1. The person to be arrested is engaged in the
commission of an offense; 4. REQUISITES OF A VALID WARRANT OF
2. Pursued immediately after its commission; ARREST
3. Has escaped, flees;
4. Forcibly resists before the officer has Essential Requisites of a Valid Warrant of
opportunity to so inform him; or Arrest:
5. When giving of such information will imperil the 1. The arrest warrant must be issued upon
arrest (Rule 113, Sec. 9). PROBABLE CAUSE.
2. Probable cause must be DETERMINED
Officer May Summon Assistance PERSONALLY by a judge.
Arresting officer may orally summon as many 3. There must be an examination UNDER OATH
persons as he deems necessary to assist him in OR AFFIRMATION of the complainant and the
effecting the arrest (Rule 113, Sec. 10). witnesses he may produce.
4. The warrant must PARTICULARLY
Note: This rule does not cover a private individual DESCRIBE the person to be seized. (Phil.
making an arrest. Const. art. III, Sec. 2)

Right of Officer to Break Into Building or 5. DETERMINATION OF PROBABLE CAUSE

Enclosure; Requisites: FOR ISSUANCE OF WARRANT OF ARREST
1. That the person to be arrested is or is
(See discussion under Preliminary Investigation)
reasonably believed to be in the said building;
2. That the officer has announced his/her
Pendency of a motion for reconsideration, motion
authority and purpose for entering therein;
for reinvestigation, or petition for review is not a
3. That the officer has requested and been denied
cause for the quashal of a warrant of arrest
admittance (Rule 113, Sec. 11).
previously issued because the quashal of a
warrant of arrest may only take place upon the
Note: Rule is applicable both where there is a
finding that no probable cause exists. (Aguinaldo
warrant and where there is a valid arrest without a
vs Ventus, GR No.176033, 2015)
warrant.
The probable cause determination of a
Note: This rule also does not cover a private
warrantless arrest is based on information that the
individual making an arrest.
arresting officer possesses at the time of the arrest
and not on the information acquired later. (People
Right to Break Out of the Building or Enclosure
vs Pestilos, GR No. 182601, 2014)
to Effect Release
An officer making an arrest who has entered a
Note: Section 6 of Rule 112 specifically provides
building or enclosure may break out therefrom
that before a warrant of arrest or a commitment
when necessary to liberate himself/herself (Rule
order may be issued by the judge, there must first
113, Sec. 12).
be a judicial determination of probable cause by
the judge himself. In one case, it was held that a
Arrest after Escape or Rescue
motion for judicial declaration of probable cause is
If a person arrested escapes or is rescued, any
moot and academic when a warrant of arrest is
person may immediately pursue or retake him
subsequently issued. (Hao v. People, G.R. No.
without a warrant at any time and in any place
183345, 2014)
within the Philippines (Rule 113, Sec. 13).

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Probable Cause for Search Warrant of Arrest v.
Search Warrant
WARRANT OF SEARCH WARRANT
ARREST
Determination of Determination of
whether there is a whether a crime was
necessity of placing committed and that
the accused under items connected to the
immediate custody in crime are likely to be
order not to frustrate found in the place
the ends of justice specified by the
warrant.
Note: Failure to raise an objection to the
irregularity of his arrest before his arraignment and
active participation in the trial of the case results to
the petitioner’s submission to the jurisdiction of the
court, thereby curing any defect in his arrest. An
accused is estopped from assailing any irregularity
of his arrest if he fails to raise this issue or to move
for the quashal of the information against him on
this ground before arraignment. Any objection
involving a warrant of arrest or the procedure by
which the court acquired jurisdiction over the
person of the accused must be made before he
enters his plea; otherwise, the objection is deemed
waived. (People v. Lugnasin, G.R. No. 208404,
2016).
F. BAIL
1. NATURE
Bail
It is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before
any court as required under the conditions
hereinafter specified. (Rule 114, Section 1)
Note: The term “punishable” under Sections 4 and
7 of Rule 114 refers to the prescribed and not
imposable penalty. (People v. Valdez and
Sandiganbayan, G.R. Nos. 216007-09, 2015)
Purpose of Bail
1. To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt;
REMEDIAL LAW
2. To enable him to prepare his defense without
being subject to punishment prior to conviction.
Note: In order to be able to avail of bail, there must
be either: a) custody over the person or b)
voluntary surrender (Paderanga v. CA, G.R. No.
115407 August 28, 1995)
Forms of Bail
1. Corporate surety;
2. Property bond;
3. Cash deposit; and
4. Recognizance (Rule 114, Sec. 1).
Bail Bond vs. Recognizance
BAIL BOND RECOGNIZANCE
An obligation given by An obligation of record,
the accused with one or entered into before
more sureties and some court or
made payable to the magistrate duly
proper officer with the authorized to take it,
condition to be void with the condition to do
upon performance by some particular act
the accused of such
acts as he may legally
be required to perform.
Note: A person is “in the custody of law” when he
has been arrested or otherwise deprived of his
freedom or when he has voluntarily submitted
himself to the jurisdiction of the court by
surrendering to the proper authorities.
As bail is intended to obtain or secure one’s
provisional liberty, the same cannot be posted
before the court has acquired custody over him.
Upon assumption of the obligation of bail, the
sureties become in law the jailers of their principal.
(People v. Gako, G.R. No. 135045, December 15,
2000)
When Prosecution Witness May also be
Required to Post Bail
When the Court is satisfied upon proof under oath
that a material witness will not testify when
required. (Rule 119, Sec. 14)
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Requiring Arraignment Before Grant of Bail Is
Not Valid
Bail does not require arraignment. As long as
there is deprivation of liberty or voluntary
surrender, one can apply for bail. (Serapio v.
Sandiganbayan, G.R. No. 148468, 2003)
The trial court could ensure the presence of the
accused at the arraignment precisely by granting
bail and ordering his presence at any stage of the
proceedings such as arraignment. (Rule 114,
Section 2[b])
The accused will be placed in a position where he
has to choose between 1) filing a motion to quash
and thus delay his release on bail and; 2)
foregoing the filing of a motion to quash so that he
can be arraigned at once and thereafter be
released on bail. These scenarios certainly
undermine the accused’s constitutional right not to
be put on trial except upon valid complaint or
information sufficient to charge him with a crime
and his right to bail. (Lavides v. Court of Appeals,
G.R. No. 129670, 2000)
All Kinds of Bail are Subject to the Following
Conditions:
1. Unless the court directs otherwise, the bail
bond posted by an accused remains in force at
all stages of the case until promulgation of the
judgment of the Regional Trial Court.
2. The accused shall appear before the proper
court whenever required by the court or rules.
3. Failure of the accused to appear at the trial
without justification despite due notice shall be
deemed a waiver of his right to be present
thereat. The trial may proceed in absentia.
4. The bondsman shall surrender the accused to
court for execution of the final judgment.
Note: If the accused presents his notice of appeal,
the trial court will order the accused to be taken
into custody in the absence of a new bail bond on
appeal duly approved by the court. If the accused
does not appeal, the bondsman must produce the
accused on the 15th day from promulgation of
sentence for service of sentence.
The prohibition against requiring excessive bail is
enshrined in the Constitution. The obvious
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rationale is that imposing bail in an excessive
amount could render meaningless the right to bail.
The court has wide latitude in fixing the amount of
bail. Thus, the amount should be high enough to
assure the presence of the accused when required
but no higher than is reasonably calculated to fulfill
this purpose. Bail is not intended as a punishment,
nor as a satisfaction of civil liability which would
necessarily await the judgment of the appellate
court. (Yap v. CA and the People, G.R. No.
141529, 2001)
No release or transfer except on court order or
bail
No person under detention by legal process shall
be released or transferred except upon order of
the court or when he is admitted to bail. (Rule 114,
Sec. 3)
Application for Bail does not necessarily mean
submission to the jurisdiction of the court
Bail cannot be posted before custody of the
accused has been acquired by the judicial
authorities either by his arrest or voluntary
surrender.
Being in the custody of the law signifies restraint
on the person, who is thereby deprived of his own
will and liberty, binding him to become obedient to
the will of the law.
The outright dismissal of the case even before the
court acquires jurisdiction over the person of the
accused is authorized under § 6(a) Rule 112 of the
Revised Rules of Criminal Procedure and the
Revised Rules on Summary Procedure (§ 12a).
(Miranda v. Tuliao, G.R. No. 158763, 2006)
Period to Decide Petition For Bail (A.M. No. 15-
06-10-SC, Revised Guidelines for Continuous
Trial in Criminal Cases)
1. A petition for bail filed after the filing of the
information shall be set for summary hearing
after arraignment and pre-trial. Testimony of a
witness in petition for bail may be in the form
allowed by subheading III, item no. 11, par. b
(Form of Testimony) of the Revised Guidelines,
provided that the demeanor of the witness is
not essential in determining his/her credibility.
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2. Petition for bail shall be heard and resolved
within a non-extendible period of 30 calendar
days from date of the first hearing, except in
drug cases which shall be heard and resolved
within 20 calendar days, without need of oral
argument and submission of memoranda,
consistent with the summary nature of the
proceedings.
3. Motion for reconsideration on the resolution of
petition for bail shall be resolved within a non-
extendible period of 10 calendar days from
date of submission of the motion.
2. WHEN A MATTER OF RIGHT;
EXCEPTIONS
When Bail is a Matter of Right
1. Before or after conviction by the MTC; and
2. Before conviction by RTC for all offenses
punishable by lower than death, reclusion
perpetua, or life imprisonment (Rule 114, Sec.
4)
Note: Prosecution does not have the right to
oppose or to present evidence for its denial.
When Bail is a Matter of Discretion:
1. Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
2. After conviction by the RTC of a non-capital
offense (Rule 114, Sec. 5).
Note: Prosecution is entitled to present evidence
for its denial.
In hearing the petition for bail, the prosecution has
the burden of showing that the evidence of guilt is
strong pursuant to § 8 Rule 114. In bail
proceedings, the prosecution must be given ample
opportunity to show that the evidence of guilt is
strong. While the proceeding is conducted as a
regular trial, it must be limited to the determination
of the bailability of the accused. It should be brief
and speedy, lest the purpose for which it is
available is rendered nugatory. (People v. Singh,
et. al., G.R. No. 129782, 2001)
The test is not whether the evidence establishes
guilt beyond reasonable doubt but rather whether
it shows evident guilt or a great presumption of
guilt. As such, the court is ministerially bound to
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decide which circumstances and factors are
present which would show evident guilt or
presumption of guilt. (People v. Cabral, G.R. No.
131909, February 18, 1999)
The hearing determining the grant of bail as a
matter of discretion is indispensable. Said hearing
may be either summary or otherwise, in the
discretion of the court.
Right to Bail May Be Waived
The right to bail is personal in nature and is
therefore, waivable. (Paderanga v. CA, G.R. No.
115407, 1995)
Bail in Court-Martial Offenses
The right to bail of an accused military personnel
triable by courts-martial does not exist, as an
exception to the general rule that an accused is
entitled to bail (except in a capital offense where
the evidence of guilt is strong).
Rationale
The unique structure of the military justifies
exempting military men from the constitutional
coverage on the right to bail.
The right to bail is not available to military
personnel or officer charged with a violation of the
Articles of War. (Aswat v. Galido, G.R. No. G.R.
No. 88555, 1991)
Bail in Deportation Proceedings
Aliens in deportation proceedings have no
inherent right to bail. An order of deportation is not
a punishment for a crime, the right to bail
guaranteed by the Constitution may not be
invoked by an alien in said proceedings.
The Commissioner of Immigration the power and
discretion to grant bail in deportation proceedings.
The grant of bail is merely permissive and not
mandatory or obligatory on the part of the
Commissioner. The exercise of the power is wholly
discretionary (Ong See Hang v. Commissioner of
Immigration, Np. L-9700, 1962).
Bail in Extradition Proceedings
If bail can be granted in deportation cases, we see
no justification why it should not also be allowed in
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extradition cases. Considering that the Universal
Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot
be invoked in extradition cases. After all, both are
administrative proceedings where the innocence
or guilt of the person detained is not in issue.
The right of a prospective extraditee to apply for
bail in this jurisdiction must be viewed in the light
of the various treaty obligations of the Philippines
concerning respect for the promotion and
protection of human rights. Under these treaties,
the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right
to liberty of every individual is not impaired
(Government of Hong Kong v. Olalia, G.R. No.
153675, 2007).
Notice of hearing required
Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be
given to the prosecutor or fiscal or at least he must
be asked for his recommendation because in fixing
the amount of bail, the judge is required to take
into account a number of factors such as the
applicant’s character and reputation, forfeiture of
other bonds or whether he is a fugitive from justice.
In any event, whether bail is a matter of right or
discretion, a hearing for the petition for bail is
required. (Villanueva v. Buoaya, A.M. No. RTJ-08-
2131)
Summary of the evidence for the prosecution
The court’s order granting or refusing bail must
contain a summary of the evidence for the
prosecution, otherwise the order granting or
denying bail may be invalidated because the
summary of the evidence for the prosecution
which contains the judge’s evaluation of the
evidence may be considered as an aspect of
procedural due process for both the prosecution
and the defense.(Cortes v. Catral, Adm. Matter
No. RTJ-97-1387, 1997).
3. WHEN A MATTER OF DISCRETION
Trial court may grant bail before appeal is
perfected
Whether bail is a matter of right or discretion, the
trial court may grant bail and approve the amount
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of the bail bond before the accused has perfected
his appeal, appeal being perfected upon filing of a
written notice of appeal and furnishing the adverse
party copy thereof.
Even if there is no notice of appeal, if the decision
of the TC convicting the accused changed the
nature of the offense from non-bailable to bailable,
the application for bail can only be filed with and
resolved by the appellate court.
After appeal is perfected, the trial court loses
jurisdiction to grant bail and to approve bail bond.
However, the accused may apply for bail or
provisional liberty with the appellate court.
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail be cancelled
upon a showing by the prosecution of the
following:
1. Accused is a recidivist, quasi-recidivist or
habitual delinquent or has committed the crime
aggravated by the circumstance of reiteration;
2. That he has previously escaped from legal
confinement, evaded sentence or violated the
condition of his bail without valid justification
3. That he committed the offense while under
probation, parole or conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if released on bail; or
5. That there is undue risk that he may commit
another crime during the pendency of the
appeal.
Two Scenarios under Rule 112, Section 5:
1. If the accused is convicted and sentenced by
the RTC to imprisonment exceeding 6 years
but not more than 20 years AND none of the
above circumstances (recidivist, etc.) is
present, the grant of bail is a matter of
discretion. The court may or may not grant bail.
2. If the accused is convicted and sentenced by
the RTC to imprisonment exceeding 6 years
but not more than 20 years AND one or more
of the above circumstances (recidivist, etc.) is
present, bail should be denied. (Leviste v. CA,
G.R. No. 189122, 2010)
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4. HEARING OF APPLICATION FOR BAIL
IN CAPITAL OFFENSES
Capital Offense
It is an offense which, under the law existing at the
time of its commission and of the application for
admission to bail may be punished with death
(Rule 114, Sec. 6).
Note: R.A. No. 9346 entitled ”An Act Prohibiting
the Imposition of Death Penalty in the Philippines”
was enacted on June 24, 2006 repealing R.A. No.
8177 and R. A. No. 7659 and abolishing the death
penalty.
After conviction by the trial court, the accused
convicted of a capital offense is no longer entitled
to bail as a matter of right, and can only be
released when the conviction is reversed by the
appellate court. (Phil. Const. art. III, Sec. 13)
Not entitled to bail
An accused who has been convicted of an offense
which carries a penalty of more than 20 years is
not entitled to bail during the pendency of his
appeal.
An accused who is convicted of a capital offense
is no longer entitled to bail on appeal since his
conviction imports that the evidence of guilt is
strong.
Burden of proof in bail application
When the offense is punishable by reclusion
perpetua or life imprisonment, the prosecution has
the burden of showing that evidence of guilt is
strong (Rule 114, Sec. 7).
“Evidence of Guilt”
It refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
Evidence Presented Automatically
Reproduced at Trial
The evidence presented during the bail hearing
shall be considered automatically reproduced at
the trial but, upon motion of either party, the court
may recall any witness for additional examination
unless the latter is dead, outside the Philippines,
or otherwise unable to testify. (Rule 114, Sec. 8)
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A.M. No. 12-11-2-SC: Guidelines for
Decongesting Holding Jails by Enforcing the
Rights of Accused Persons to Bail and to
Speedy Trial (“Guidelines”)
Bail hearing in offenses punishable by death,
reclusion perpetua, or life imprisonment:
1. The hearing of the accused’s motion for bail in
offenses punishable by death, reclusion
perpetua, or life imprisonment shall be
summary, with the prosecution bearing the
burden of showing that the evidence of guilt is
strong. The accused may at his option, if he
wants the court to consider his evidence as
well, submit in support of his motion the
affidavits of his witnesses attesting to his
innocence.
2. At the hearing of the accused’s motion for bail,
the prosecution shall present its witnesses with
the option of examining them on direct or
adopting the affidavits they executed during the
preliminary investigation as their direct
testimonies.
3. The court shall examine the witnesses on their
direct testimonies or affidavits to ascertain if the
evidence of guilt of the accused is strong. The
court’s questions need not follow any particular
order and may shift from one witness to
another. The court shall then allow counsels
from both sides to examine the witnesses as
well. The court shall afterwards hear the oral
arguments of the parties on whether or not the
evidence of guilt is strong.
4. Within 48 hours after hearing, the court shall
issue an order containing a brief summary of
the evidence adduced before it, followed by its
conclusion of whether or not the evidence of
guilt is strong. Such conclusion shall not be
regarded as pre-judgment on the merits of the
case that is to be determined only after a full-
blown trial. (Section 6 of Guidelines)
Regarding Minors Charged with a Capital
Offense
If the person charged with a capital offense, such
as murder, admittedly a minor, which would entitle
him, if convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless
of whether the evidence of guilt is strong. The
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reason for this is that one who faces a probable
death sentence has a particularly strong
temptation to flee. This reason does not hold
where the accused has been established without
objection to be minor who by law cannot be
sentenced to death.(See R.A. No. 9165, Sec. 98)
Privileged mitigating circumstance of minority shall
be considered for the purposes of recommending
the amount of bail.(R.A. No. 9344, Sec. 34)
Bail hearing is mandatory
Although, in theory, the only function of bail is to
ensure the appearance of the accused at the time
set for the arraignment and trial; and, in practice,
bail serves the further purpose of preventing the
release of an accused who may be dangerous to
society or whom the judge may not want to
release, a hearing upon notice is mandatory
before the grant of bail, whether bail is a matter of
right or discretion.
The fact that the public prosecutor recommended
bail did not warrant dispensing with the hearing.
The public prosecutors recommendation of bail
was not material in deciding whether to conduct
the mandatory hearing or not. (Gacal v. Judge
Infante, A.M. No. RTJ- 04-1845, 2011)
Where the prosecution agrees with the accused’s
application for bail or forgoes the introduction of
evidence, the court must nonetheless set the
application for hearing. It is mandatory for the
judge to conduct a hearing and ask searching and
clarificatory questions for the purpose of
determining the existence of strong evidence
against the accused; and the order, after such
hearing, should make a finding that the evidence
against the accused is strong.
Hearing for bail different from determination of
the existence of probable cause
[The determination of probable cause] takes place
prior to all proceedings, so that if the court is not
satisfied with the existence of a probable cause, it
may either dismiss the case or deny the issuance
of the warrant of arrest or conduct a hearing to
satisfy itself of the existence of probable cause. If
the court finds the existence of probable cause,
the court is mandated to issue a warrant of arrest
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or commitment order if the accused is already
under custody, as when he was validly arrested
without a warrant.
It is only after this proceeding that the court can
entertain a petition for bail where a subsequent
hearing is conducted to determine if the evidence
of guilt is weak or not…xxx… This Court had said
so in many cases and had imposed sanctions on
judges who granted applications for bail in capital
offenses and in offenses punishable by reclusion
perpetua, or life imprisonment, without giving the
prosecution the opportunity to prove that the
evidence of guilt is strong (Jorda v. Bitas, A.M. No.
RTJ-14-2376, 2014).
The grant or denial of bail is not a ground for
inhibition of the judge.
Duties of trial judge in a petition for bail in
offenses punishable by reclusion perpetua, life
imprisonment, or death
1. In all cases, whether bail is a matter of right or
of discretion, notify the prosecutor of the
hearing of the application for bail or require him
to submit his recommendation
2. Where bail is a matter of discretion, conduct a
hearing of the application for bail regardless of
whether or not the prosecution refuses to
present evidence to show that the guilt of the
accused is strong for the purpose of enabling
the court to exercise its sound discretion;
3. Decide whether the guilt of the accused is
strong based on the summary of evidence of
the prosecution;
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of the
bailbond (Enrile v. Sandiganbayan, G.R. No.
213847, 2015).
5. GUIDELINES IN FIXING AMOUNT OF
BAIL
The judge shall fix a reasonable amount of bail
considering primarily, but not limited to the
following factors
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
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6. Weight of the evidence against the accused;
7. Probability of the accused appearing at the
trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from
justice when arrested; and
10. Pendency of other cases where the accused is
on bail (Rule 114, Sec. 9..
It is settled that the amount of bail should be
reasonable at all times. In implementing this
mandate, regard should be taken of the prisoner’s
pecuniary circumstances. We point out that what
is reasonable bail to a man of wealth may be
unreasonable to a poor man charged with a like
offense. Thus, the right to bail should not be
rendered nugatory by requiring a sum that is
relatively excessive. The amount should be high
enough to assure the presence of the defendant
when required, but no higher than is reasonably
calculated to fulfill this purpose. Also, while the
DOJ Bail Bond Guide is persuasive, it is not
binding upon the courts. (Tanog v. Balindong, G.R.
No. 187464, 2015)
Excessive bail shall not be required. (Rule 114,
Sec. 9)
The principal factor considered is the probability of
the appearance of the accused, or of his flight to
avoid punishment. (Villaseñor v. Abano, G.R. No.
L-23599, 1967)
Whatever the fiscal recommends as the amount of
bail for the provisional release of an accused is
only recommendatory. The Judge still retains the
discretion to apply the precedents laid down by the
SC regarding the reasonable nature of the bail to
be required. It is not bound by the Fiscal’s
recommendation. (Amaya v. Ordoñez, G.R. No.
80906, 1988)
Note: A clear showing of fragile health justifies
one’s admission to bail.
The court recognizes the country’s responsibility to
the international community which arises from the
Universal Declaration of Human Rights. This
national commitment to uphold the fundamental
human rights as well as value the worth and dignity
of every person has authorized the grant of bail not
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only to those charged in criminal proceedings but
also to extraditees upon a clear and convincing
showing:
(1) That the detainee will not be a flight risk or a
danger to the community; and
(2) That there exist special, humanitarian and
compelling circumstances. (Enrile v.
Sandiganbayan, G.R. No. 213847, 2015)
Corporate Surety Bail Bond
May be provided by any domestic or foreign
corporation, licensed as surety in accordance with
law and currently authorized to act as such
Subscribed jointly by the accused and an officer of
the corporation duly authorized by the board of
directors. (Rule 114, Section 10)
Note: The term of the bail bond is not dependent
upon faithful payment of the bond premium.
Property Bond; How Posted
PROPERTY BOND is an undertaking constituted
as a lien on the real property given as security for
the amount of the bail. (Rule 114, Section 11)
Within 10 days after the approval of the bond, the
accused shall annotate the lien:
1. On the certificate of title with the Registry of
Deeds, if the land is registered
2. in the Registration Book, if the land is
unregistered
Failure to do so shall be sufficient cause for
cancellation of the property bond and his re-arrest
and detention.
Qualifications of sureties in property bond
1. Each must be a resident owner of real property
within the Philippines.
2. Where there is only one surety, his real estate
must be worth at least the amount of the
undertaking.
3. If there are two or more sureties, each may
justify in an amount less than that expressed in
the undertaking but the aggregate of the
justified sums be equivalent to the whole
amount of the bail demanded.
4. Every surety must be worth the amount
specified in his own undertaking over and
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above all just debts, obligations and properties
exempt from execution.
Note: The order fixing the amount of bail is not
appealable. (Section 4 of Guidelines)
Before accepting a surety or bail bond, the
following requisites must be complied with:
1. Photographs of the accused;
2. Affidavit of justification;
3. Clearance from the supreme court;
4. Certificate of compliance with Circular No. 66
dated September 19, 1996;
5. Authority of the agent; and
6. Current certificate of authority issued by the
insurance commissioner with a financial
statement showing the maximum underwriting
capacity of the surety company (Rule 114, Sec.
12).
Note: The purpose of requiring the affidavit of
qualification by the surety before the judge is to
enable the latter to determine whether or not the
surety possesses the qualification to act as such,
especially his financial worth as required in the
previous section.
Deposit of cash as bail
The accused or any person acting on his behalf
may deposit in cash the amount of bail fixed by the
court or recommended by the prosecutor who
investigated or filed the case with the:
1. Nearest collector of internal revenue;
2. Provincial, city or municipal treasurer; or
3. Clerk of court where case is pending.
Money considered as bail, applied to payment of
fine and costs while the excess if any, shall be
returned to the accused or whoever made the
deposit (Rule 114, Sec. 14).
The trial judge has no authority to strictly require
that only cash bond, instead of a surety bond, be
deposited for the provisional release of the
accused.
Respondent judge is only authorized to receive the
cash bail bond under Section 17 (a), Rule 114 of
the Revised Rules on Criminal Procedure which
says that the bail bond may be filed either with the
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court where the case is pending, or with any
Regional Trial Court (RTC) of the place of arrest,
or with any judge of the Metropolitan Trial Court or
the Municipal Trial Court of the place of arrest.
(Tormis v. Judge Paredes, A.M No. RTJ-13-2366,
2015)
A judge cannot receive cash for bail nor keep it in
his office or residence. (Lachica v. Judge Tormis,
A.M. No. MTJ-05-1609, 2005)
Recognizance
It is an obligation of record, entered into before
some court or officer authorized to take it with a
condition to do some particular act, the most usual
condition in criminal cases being the appearance
of the accused for trial. (See R.A. No. 10389)
The following are cases where the court may
order the release on recognizance of any
person under detention:
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or P2,000 fine,
under the circumstances provided in R.A. No.
6036.
2. Where a person has been in custody for a
period equal to or more than the minimum of
the imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case
the court, in its discretion, may allow his release
on his own recognizance.
3. Where the accused has applied for probation,
pending resolution of the case but no bail was
filed or the accused is incapable of filing one.
4. In case of a youthful offender held for physical
and mental examination, trial, or appeal, if he is
unable to furnish bail and under circumstances
envisaged in PD No. 603 as amended. (Espiritu
v. Jovellanos, A.M. No. MTJ-97-1139, 1997)
5. In summary procedure, when the accused has
been arrested for failure to appear when
required. His release shall be either on bail or
recognizance.
If it has been determined that the child taken into
custody is 15 years old or below, the authority
which will have an initial contact with the child has
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the duty to immediately release the child to the
custody of his/her parents or guardian, or in the
absence thereof, the child's nearest relative.(R.A.
No. 9344, Sec. 20)
If the parents, guardians or nearest relatives
cannot be located, or if they refuse to take custody,
the child may be released to any of the following
(R.A. No. 9344, Sec. 20):
1. A duly registered nongovernmental or religious
organization;
2. A barangay official or a member of the
Barangay Council for the Protection of Children
(BCPC);
3. A local social welfare and development officer;
or
4. When and where appropriate, the DSWD.
The court shall not order the detention of a child in
a jail pending trial or hearing of his/her case.
Institutionalization or detention of the child pending
trial shall be used only as a measure of last resort
and for the shortest possible period of time.
Whenever detention is necessary, a child will
always be detained in youth detention homes
established by local governments. (R.A. No. 9344,
Section 35-36).
6. BAIL WHEN NOT REQUIRED
Bail is not required when the law or rules
provide:
1. Offense charged is violation of an ordinance,
light felony or criminal offense the imposable
penalty does not exceed 6 months of
imprisonment and/or fine of P2,000 where said
person has established to the satisfaction of
the court or any other appropriate authority
hearing the case that he is unable to post the
required cash or bail bond (RA 6036, Sec. 1)
2. One of the rights of a child arrested acting as a
combatant, spy, carrier, or guide in an armed
conflict is to be released on recognizance to the
custody of DSWD or responsible member of
the community (R.A. No. 7610);
3. Where the accused applied for probation and
before the same has been resolved but no bail
was filed or the accused is incapable of filing
one, in which case he may be released on his
own recognizance.
4. In case of a youthful offender held for physical
or mental examination, trial or appeal, if unable
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to furnish bail and under the circumstances
provided by P.D. 603, as amended.
5. A person who has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense
charged, without prejudice to the continuation
of the trial or the proceedings on appeal.
6. Accused who was arrested for failure to appear
when required by the court may be released on
recognizance of a responsible citizen (Sec. 16,
Rules on Summary Procedure)
7. A person accused of an offense with a
maximum penalty of destierro shall be released
after 30 days of preventive imprisonment.
Reduced Bail
A person in custody for a period to or more than
the minimum of the principal penalty prescribed for
the offense charged, without application of the
Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail
or on his own recognizance at the discretion of the
court (Rule 114, Sec. 16).
Bail, Where Filed
1. May be filed with the court where the case is
pending: (e.g., if a case for homicide is pending
before Branch 1 of RTC Manila, the accused
should post/file bail in Branch 1);
2. In the absence or unavailability of the judge
thereof, with the regional trial judge or any first
court judge in the province, city or municipality;
3. If the accused was arrested in a province, city
or municipality other than where the case is
pending, bail may be filed with the RTC of the
said place or if no judge is available, with any
first court judge therein;
4. Where bail is a matter of discretion or the
accused seeks to be released on
recognizance, it may only be filed in the court
where the case is pending, whether on trial or
appeal;
5. Any person not yet charged in court may apply
for bail with any court in the province, city or
municipality where he is held;
6. If the accused was convicted and the nature of
the offense changed from non-bailable to
bailable, the application can be made with and
resolved by the appellate court (Rule 114, Sec.
17).
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Note: A judge presiding in one branch has no
power to grant bail to an accused who is being
tried in another branch presided by another judge
who is not absent or unavailable, and his act of
releasing him on bail constitutes ignorance of law
which subjects him to disciplinary sanction.
Notice of application to prosecutor
Court to give reasonable notice of the hearing to
the prosecutor or require him to submit his
recommendation (Rule 114, Sec. 18).
Hearing for application for bail is mandatory.
Whether bail is a matter of right or discretion, there
must be a reasonable notice given to or at least a
recommendation sought from the prosecutor.
(Mabutas v. Perello, A.M. No. RTJ-03-1817, 2005)
Release on Bail
Upon approval of the bail by the judge, the
accused must be discharged (Rule 114, Sec. 19).
An officer who fails or refuses to release him from
detention notwithstanding the approval by the
proper court of his bail bond may be held liable
under Art. 126 if the Revised Penal Code for
delaying release.
7. INCREASE OR REDUCTION OF BAIL
Court may either increase or reduce the
amount of the bail:
1. After the accused admitted to bail; AND
2. Upon good cause
If the accused does not give the increased amount
of bail within a reasonable time, he will be
committed to custody (Rule 114, Sec. 20).
Accused Released Without Bail May:
1. At any subsequent stage
2. Whenever a strong showing of guilt appears to
the court
3. Be required to give bail or in lieu thereof,
committed to custody (Rule 114, Sec. 20)
Where the offense is bailable, the mere probability
that the accused will escape or if he had previously
escaped while under detention does not deprive
him of his right to bail. The remedy is to increase
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the amount of bail, provided the amount is not
excessive. (Sy Guan v. Amparo, G.R. No. L-1771,
1947).
8. FORFEITURE AND CANCELLATION OF
BAIL
Bail is Forfeited:
1. Where the presence of the accused is
specifically required by the court or the Rules
of Court; and
2. Despite due notice to the bondsmen to produce
him before the court on a given date, the
accused fails to appear in person as so
required (Rule 114, Sec. 21).
To justify exemption from liability on a bail
bond or reduction thereof, two requisites must
be satisfied:
1. Production or surrender of the person of the
accused within 30 days from notice of the order
of the court to produce the body of the accused
or giving reasons for its non-production; and
2. Satisfactory explanations for the non-
appearance of the accused when first required
by the trial court to appear (Rule 114, Sec. 21).
Failure to PRODUCE the body of the principal or
give a reason for his non-production and EXPLAIN
why the accused did not appear before the court
when first required to do so, the court shall render
a judgment against the bondsmen, jointly and
severally for the amount of the bail.
The period of 30 days cannot be shortened by the
court but may be extended for good cause shown.
Note: When bail is granted, the accused must
appear whenever the court requires his presence;
otherwise, his bail shall be forfeited. This
authorizes the court to cancel the bail bond. Any
motion for bail pending appeal will also be denied
because of violation of the conditions of the
previous bail. Once an accused escapes from
prison or confinement, jumps bail or flees to a
foreign country, he loses his standing in court.
Unless he surrenders or submits to the jurisdiction
of the court, he is deemed to have waived any right
to seek relief from the court. (People v. Piad, G.R.
No. 213607, 2016)
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ORDER OF ORDER OF
FORFEITURE CONFISCATION
Conditional and Not independent of
interlocutory. It is not the order of forfeiture.
appealable. It is a judgment
ultimately determining
the liability of the
surety thereunder and
therefore final.
Execution may issue
at once.
Bail is Cancelled:
1. Upon application of the bondsmen with due
notice to the prosecutor, upon surrender of the
accused or proof of his death;
2. Upon acquittal of the accused;
3. Upon dismissal of the case; or
4. Execution of judgment of conviction.
In all instances, without prejudice to any liability on
the bail (Rule 114, Sec. 22).
Arrest of Accused Out on Bail
The bondsmen who put the bail bond for the
accused become the jailers and they or the police
officer to whom authority is endorsed may arrest
the accused for the purpose of surrendering him to
the court. The accused cannot leave the country
without the permission of the bondsmen and the
court (Rule 114, Sec. 23).
How sureties may be relieved from
responsibility over the accused:
1. Arrest the principal and deliver him to the
proper authorities.
2. They may cause the arrest of the accused to be
made by any police officer or other person of
suitable age or discretion.
3. By endorsing the authority to arrest upon a
certified copy of the undertaking and delivering
it to such officer or person.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of
the court where the case is pending.
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No Bail After Judgment; Exception
General Rule: No bail shall be allowed after the
judgment has become final, as what is left is for
him to serve the sentence (Rule 114, Sec. 24).
Exception: When he has applied for probation
before commencing to serve sentence, the penalty
and the offense being within the purview of the
Probation Law. The application for probation must
be filed within the period of perfecting an appeal.
Such filing operates as a waiver of the right to
appeal (Rule 114, Sec. 24).
Exception to the exception: The accused shall
not be allowed to be released on bail after he has
commenced to serve his sentence (Rule 114, Sec.
23).
Once a child who is under 18 years of age at the
commission of the offense is found guilty of the
offense charged, the court shall place the child
under suspended sentence, without need of
application. The suspension of sentence shall still
be applied even if the juvenile is already 18 years
of age or more at the time of the pronouncement
of his/her guilt. (R.A. No. 9344, Section 38)
Court Supervision of Detainees
The court shall exercise supervision over all
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
RTCs shall conduct monthly personal inspections
of provincial, city or municipal jails and the
prisoners within their respective jurisdictions.
However, an executive judge of the RTC has not
been given any authority to interfere with the
transfer of detainees in cases handled by other
judges nor to grant hold-departure orders in cases
not assigned to her sala. (Mupas v. Español, A.M.
No. RTJ-04-1850, 2005)
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9. APPLICATION NOT A BAR TO
OBJECTIONS IN ILLEGAL ARREST, LACK
OF OR IRREGULAR PRELIMINARY
INVESTIGATION
Bail is not a bar to objections on illegal arrest,
lack of or irregular preliminary investigation.
An application for admission to bail shall not
bar the accused from:
1. Challenging the validity of his arrest; or
2. The legality of the warrant issued therefore; or
3. From assailing the regularity or questioning the
absence of a preliminary investigation of the
charge against him.
PROVIDED: That the accused raises them before
entering his plea. (Rule 114, Section 26)
The court shall resolve the matter as early as
practicable, but not later than the start of the trial
of the case.
Other Matters:
Hold-Departure Orders
Supreme Court Circular No. 39-97 dated June
19, 1997 limits the authority to issue hold
departure orders to the RTCs in criminal cases
within their exclusive jurisdiction.
Consequently, MTC judges have no authority to
issue hold-departure orders, following the maxim,
express mention implies the exclusion. Neither
does he have authority to cancel one, which he
issued.
The accused may be prohibited from leaving the
country during the pendency of his case (Manotoc,
Jr. v. CA, G.R. No. L-62100, 1986).
A criminal case is required before a Hold-
Departure Order may be issued
Hold-Departure Orders shall be issued only in
criminal cases within the exclusive jurisdiction of
the Regional Trial Courts.
Sandiganbayan may issue Hold Departure
Order
Sandiganbayan is a special court, of the same
level as the Court of Appeals and possessing all
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the inherent powers of a court of justice.(R.A.
8249, 1997).
Precautionary Hold-Departure Orders (A.M.
No. 18-07-05-SC)
A Precautionary Hold Departure Order (PHDO) is
issued ex parte by a court commanding the
Bureau of Immigration to prevent any attempt by a
person suspected of a crime to depart from the
Philippines. (A.M. No. 18-07-05-SC, Sec. 1)
When PHDO is Available
The PHDO may be issued where the crime
involved:
1. Is punishable with at least 6 years and 1 day
2. Is committed by a Foreigner, regardless of the
penalty imposed. (A.M. No. 18-07-05-SC, Sec.
1)
Where and by whom PHDO may be filed
General Rule: Filed by the Prosecutor with the
RTC within whose territorial jurisdiction the crime
was committed.
Exceptions:
1. For compelling reasons, by the Prosecutor with
any RTC within the judicial region where the
crime was committed if such place is known
2. With the RTC of Manila, Quezon City, Cebu
City, Iloilo City, Davao City, and Cagayan de
Oro City when filed by the NBI. (A.M. No. 18-
07-05-SC, Sec. 2)
G. ARRAIGNMENT AND PLEA
1. HOW MADE
ARRAIGNMENT
It is the formal mode and manner of implementing
the constitutional right of an accused to be
informed of the nature and cause of the accusation
against him. (Taglay v. Daray, G.R. No. 1642258,
2012)
Purpose
It is indispensable in bringing the accused to court
and in notifying him of the nature and cause of the
accusations against him. Its importance is based
on the constitutional right of the accused to be
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informed. Procedural due process requires that
the accused be arraigned so that he may be
informed of the reason for his indictment, the
specific charges he is bound to face, and the
corresponding penalty that could be possibly
meted against him. It is at this stage that the
accused, for the first time, is given the opportunity
to know the precise charge that confronts him. It is
only imperative that he is thus made fully aware of
the possible loss of freedom, even of his life,
depending on the nature of the imputed crime
(Kummer v. People, G.R. No. 174461, 2013).
How Arraignment is Made
1. In open court where the complaint or
information has been filed or assigned for trial
2. By the judge or clerk of court
3. By furnishing the accused with a copy of the
complaint or information
4. Reading it in a language or dialect known to the
accused
5. Asking accused whether he pleads guilty or not
guilty (Rule 116, Sec. 1).
General Rule: The procedural steps laid down in
Section 1(a) of Rule 116 are not empty rituals that
a judge can take nonchalantly. Each step
constitutes an integral part of that crucial stage in
criminal litigation "where the issues are joined x x
x and without which the proceedings cannot
advance further." Anything less than strict
compliance is considered gross ignorance of the
law. (Bandoy v. Jacinto, Jr., A.M. No. RTJ-14-
2399, 2014).
Exception: The court, upon personal examination
of the accused, may allow a waiver of the reading
of the information upon the full understanding and
express consent of the accused and his or her
counsel (A.M. No. 15-06-10-SC, Sec. II (8) (c)).
When Arraignment Should Be Held
1. IF THE ACCUSED IS DETAINED – it shall be
set within 10 days from the court’s receipt of the
case;
2. IF THE ACCUSED IS NOT DETAINED – it
shall be set within 30 days from the date the
court acquires jurisdiction over the accused
(A.M. No. 15-06-10-SC, Sec. II (8) (a)).
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When Arraignment is Held Within a Shorter
Period:
1. When an accused is under preventive
detention, his case should be raffled within 3
days from filing and accused shall be arraigned
within 10 days from receipt by the judge of the
records of the case. (R.A. 8493 Speedy Trial
Act)
2. Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without delay.
(R.A. 4908)
3. Cases under the Dangerous Drugs Act;
Trial in absentia may be conducted only after valid
arraignment (Article III, Section 14 (2) of the 1987
Constitution)
Accused must personally appear during
arraignment and enter his plea (counsel cannot
enter plea for accused) (Rule 116, Sec. 1 (b)).
Absence of Arraignment
General Rule: Judgment is void if accused has
not been validly arraigned.
Exception: If accused went into trial without being
arraigned, subsequent arraignment will cure the
error provided that the accused was able to
present evidence and cross-examine the
witnesses of the prosecution during trial.
Period of Suspension of Arraignment
Suspension period shall not exceed 60 days
counted from the filing of the petition for review of
the resolution of the prosecutor with either the DOJ
or Office of the President (Section 11 (c), Rule
116).
NOTE: According to A.M. No. 15-6-10-SC on the
Guidelines for Continuous Trial of Criminal
Cases in Pilot Courts, the following rules shall be
observed for arraignment:
1. Plea Bargaining. - If the accused desires to
enter a plea of guilty to a lesser offense, plea
bargaining should immediately proceed,
provided that the private offended party in
private crimes or the arresting officer in
victimless crimes, is present to give his
conformity to the plea bargaining. Thereafter,
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judgment shall immediately be rendered in the
same proceedings.
2. Plea of Guilty to the Crime Charged in the
Information. – If the accused pleads guilty to
the crime charged in the Information, judgment
shall immediately be rendered, I except in
those cases involving capital offenses.
3. Where No Plea Bargaining or Plea of Guilty
Takes Place. - If the accused does not enter a
plea of guilty, whether to a lesser offense or the
offense charged in the Information, the court
shall immediately proceed with the arraignment
of the accused and, thereafter, indicate the pre-
trial and trial dates in the Order.
4. The schedule of the pre-trial and trial dates for
both the prosecution and the defense should
be within the periods provided in the Regular
Rules/Special Rules. The trial dates may be
shortened depending on the number of
witnesses to be presented. In this regard, a
flowchart shall be prepared by the court which
shall serve as the final schedule of hearings.
Consequences of Plea of Guilty
As a rule, a plea of guilty is an UNQUALIFIED
ADMISSION of the crime and of the attending
circumstances (aggravating and/or qualifying)
alleged in the complaint.
No Need for Further Evidence
Such plea removes the necessity of presenting
further evidence and for all intents and purposes
the case is deemed tried on its merits and
submitted for decision.
Plea of Guilty to a Capital Offense
If the case involves a capital offense, the reception
of evidence to prove the guilt and degree of
culpability of the accused is mandatory.
Mitigating and Aggravating Circumstances
However, the court may, upon motion, allow the
presentation of evidence to prove aggravating and
mitigating circumstances.
The trial court may allow an accused to plead
guilty and at the same time allow him to prove
other mitigating circumstances. However, if what
the accused would prove is an exempting
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circumstance, which would amount to a withdrawal
of his plea of not guilty.
When Evidence Presented after entering a Plea
of Guilty to a Non-Capital Offense
For non-capital offenses, the reception of evidence
is merely discretionary on the part of the court. If
the information or complaint is sufficient for the
judge to render judgment on a non-capital offense,
he may do so.
If the accused is permitted to present evidence
after his plea of guilty to a non-capital offense and
such shows that the accused is not guilty of the
crime charged, the accused must be acquitted, for
there is no rule which provides that simply
because the accused pleaded guilty to the charge
that his conviction automatically follows. Additional
evidence independent of the plea may be
considered to convince the judge that it was
intelligently made.
2. WHEN SHOULD PLEA OF NOT GUILTY
BE ENTERED
A plea of “not guilty” will be entered:
1. When accused so pleaded
2. When he refuses to plead
3. When he makes a conditional or qualified plea
of guilt (Ex. Accused pleads guilty but adds
“pero hindi ko sinasadya”)
4. When the plea is indefinite or ambiguous
5. When he pleads guilty but presents exculpatory
evidence (Ex. Evidence to prove complete self-
defense) (Rule 116, Sec. 1)
Note: If the accused who pleaded guilty presents
exculpatory evidence, his plea of guilty is deemed
withdrawn. The judge must order the accused to
plead again or at least direct that a new plea of “not
guilty” be entered for him, otherwise there shall be
no standing plea for the accused. This is
significant because if there is no standing plea, the
accused cannot invoke double jeopardy later on.
Presence of Offended Party
The private offended party is required to appear in
the arraignment for the purpose of plea bargaining,
determination of civil liability and other matters
requiring his presence.
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In case the offended party fails to appear despite
due notice, the trial court may allow the accused
to plead guilty to a lesser offense necessarily
included in the offense charged with the conformity
of the trial prosecutor alone (Rule 116, Sec. 1(f)).
3. WHEN MAY ACCUSED ENTER A PLEA
OF GUILTY TO A LESSER OFFENSE
Plea Bargaining
It is the process whereby the accused, the
offended party and the prosecution work out a
mutually satisfactory disposition of the case
subject to the court’s approval. (People v.
Villarama, G.R. No. 99287 June 23, 1992)
It usually involves the defendant’s pleading guilty
to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge.
Only facts, and not conclusions of law alleged in
the information, are admitted by a plea of guilty.
(People v. De la Cruz, G.R. No. L-2204, 1948). A
plea of guilty to an information alleging
aggravating or qualifying circumstances will not be
considered an admission of said circumstances if
the evidence subsequently presented by the
prosecution fails to prove the same. (People v.
Comendador, G.R. No. L-38756, 1984)
It precludes the filing and prosecution of the
offense originally charged in the information,
except when the plea of guilty to a lesser offense
is without the consent of the offended party and
the prosecutor.
Section 2, Rule 116 of the Rules of Court presents
the basic requisites upon which plea bargaining
may be made, i.e., that it should be with the
consent of the offended party and the prosecutor,
and that the plea of guilt should be to a lesser
offense which is necessarily included in the
offense charged. The rules however use word
“may”, denoting an exercise of discretion upon the
trial court on whether to allow the accused to make
such plea. Trial courts are exhorted to keep in
mind that a plea of guilty for a lighter offense than
that actually charged is not supposed to be
allowed as a matter of bargaining or compromise
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for the convenience of the accused. (Daan v
Sandiganbayan, G.R. Nos. 163972-77, 2008)
Effect of Plea Bargaining on Civil Liability of
the Accused
The civil liability is not covered by the plea bargain.
To hold otherwise would lead to the possibility that
offended parties will hesitate to give their consent
to a plea of guilty to a lesser offense by the
accused for fear that it would foreclose their
chance to recover the appropriate civil liability.
(Heirs of Mario Gevero v. Guihing Agricultural
Dev’t Corporation, G.R. No. 122619, 2006)
Plea to Lesser Offense During Arraignment
During arraignment, the accused may enter a plea
of guilty to a lesser offense PROVIDED there is
consent of the offended party AND of the
prosecutor to the plea of guilty to a lesser offense
that is necessarily included in the offense charged
(Rule 116, Sec. 2).
The accused may also enter a plea of guilty to a
lesser offense if the offended party was notified
and did not appear in the arraignment of the
accused.
Plea to Lesser Offense After Arraignment But
Before Trial
After arraignment but before trial, the accused may
still be allowed to plead guilty to a lesser offense
after withdrawing his previous plea of not guilty. No
amendment to the complaint or information is
necessary (Rule 116, Sec. 2).
Plea to Lesser Offense after Trial Has Begun
After the prosecution has rested its case, a change
of plea to a lesser offense may be granted by the
judge, with the approval of the prosecutor and the
offended party if the prosecution does not have
sufficient evidence to establish the guilt of the
accused for the crime charged. The judge cannot
on its own grant the change of plea (Daan v.
Sandiganbayan, G.R. Nos. 163972-77, March 28,
2008).
Note: The ruling on the motion must disclose the
strength and weaknesses of the prosecution’s
evidence. Absent any finding on the weight of the
evidence on hand, the judge’s acceptance of the
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defendant’s change of plea is improper and
irregular. (Estipona v. Lobrigo, G.R. No. 226679,
2017)
Presence and Consent of the Offended Party
The consent of the offended party is necessary
before the accused may be allowed to plead guilty
to a lesser offense. If the plea of guilty to a lesser
offense is made without the consent of the
prosecutor and the offended party, the conviction
of the accused shall not be a bar to another
prosecution for an offense which necessarily
includes the offense charged in the former
information (No double jeopardy).
If the offended party fails to appear during
arraignment, the court may allow the accused to
plead guilty to a lesser offense with the conformity
of the trial prosecutor alone.
The issuance by the DOJ of Circular No. 27 s.
2018 which instructs Prosecutors to outrightly
reject any plea-bargaining in drugs cases that go
beyond what is authorized in the Circular does not
violate the rule-making power of the Supreme
Court. Thus, their refusal to consent to the plea-
bargain should be treated as a continuing
objection that the Court must resolve. (PP v.
Reafor, G.R. No. 247575, 2020)
4. ACCUSED PLEAD GUILTY TO CAPITAL
OFFENSE, WHAT THE COURT SHOULD DO
Duty of the Court When Accused Pleads Guilty
to a Capital Offense:
1. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the plea.
2. Require prosecution to present evidence to
prove the guilt and precise degree of culpability
of the accused.
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so if
he desires (People v. Gumimba, 517 SCRA 25,
Feb. 25, 2007).
The raison d’etre for the rule is that the courts must
proceed with extreme care where the imposable
penalty is death, considering that the execution of
such sentence is irrevocable. Experience has
shown that even innocent persons have at times
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pleaded guilty. Improvident pleas of guilty to a
capital offense on the part of the accused must be
averted since by admitting his guilt before the trial
court, the accused would forfeit his life and liberty
without having fully understood the meaning,
significance and the dire consequences of his
plea. (People v Ulit, G.R. Nos. 131799-801, 2004)
The absence of the transcript of stenographic
notes of the proceedings during the arraignment
do not make the procedure flawed. The minutes of
the proceedings indubitably show that the judge
read the Informations to the accused-appellant
both in English and Tagalog, asked him questions
as to his understanding of the consequences of his
plea, his educational attainment and occupation.
Accused-appellant could have known of the
consequence of his plea having pleaded twice to
the charges against him (People v Magat, G.R.
No. 130026, 2000).
5. SEARCHING INQUIRY
Elements of “Searching Inquiry”
1. Judge must convince himself that accused is
entering the plea voluntarily and intelligently.
2. Judge must convince himself that there exists
a rational basis for the finding of guilt based on
accused’s testimony.
3. Inform the accused of the exact length of
imprisonment and the certainty that he will
serve it in a national penitentiary (People v.
Dayot, G.R. No. 88281, July 20, 1990).
Mandatory Nature of Searching Inquiry
It is generally mandatory on the RTC to conduct
such especially in a hearing for re-arraignment.
This requirement is NOT deemed complied when
it was the defense who explained the
consequences of the guilty plea.
However: [The SC ruled in a case] that the
accused had already pleaded guilty to a much
graver offense (multiple murder) based on the
same act relied upon in the multiple frustrated
murder charge. Prior to the change of plea, the
accused had already made two confessions of
guilt (1) through exclusive media interviews, and
(2) through judicial admission in pre-trial. Under
these circumstances, it is unnecessary to rule on
the sufficiency of the "searching inquiry."
Remanding for re-arraignment is not needed
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anymore as this plea of guilt is NOT the sole basis
for the judgment. (People v. Baharan, G.R. No.
188314, 2011)
6. IMPROVIDENT PLEA
IMPROVIDENT PLEA is a plea without
information as to all the circumstances affecting it;
based upon a mistaken assumption or misleading
information or advice.
Effects of Improvident Plea
The conviction will be set aside if the plea of guilty
is the sole basis for the judgment.
But, the court may validly convict the accused if
such conviction is supported by adequate
evidence of guilt independent of the plea itself.
When Remand Necessary in cases of
Improvident Plea of Guilty
Where there is an improvident plea of guilt, but the
prosecution was able to prove beyond reasonable
doubt the guilt of the accused, no remand is
necessary for so long as there is no procedural
unfairness or irregularity.
Where there is an improvident plea of guilt, but the
prosecution was unable to prove beyond
reasonable doubt the guilt of the accused, remand
for further proceedings is necessary.
EXCEPTION: Where the prosecution was still
unable to prove beyond reasonable doubt despite
multiple chances to do so, no remand is
necessary, and acquittal should follow. (PP v.
Pagal, G.R. No. 241257, 2020)
Withdrawal of Improvident Plea of Guilty
At any time before judgment of conviction
becomes final, the court may permit an
IMPROVIDENT PLEA of guilty to be withdrawn
and be substituted by a plea of not guilty.
The substitution of a plea of guilty by one of not
guilty is subject to the discretion of the court and
may be granted if the prosecution does not have
sufficient evidence to establish the guilt of the
accused. (People v. Kayanan, G.R. No. L-30355,
1978)
REMEDIAL LAW
Instances of Improvident Plea:
1. Plea of guilty was compelled by violence or
intimidation
2. Accused did not fully understand the meaning
and consequences of his plea
3. Insufficient information to sustain conviction of
the offense charged
4. Information does not charge an offense
5. Court has no jurisdiction
The withdrawal of a plea of guilty is not a matter of
right to the accused but of sound discretion to the
trial court. (People v. Lambino, G.R. No. L-10875,
1958)
There should be a categorical declaration from the
accused that he is withdrawing his plea of guilty
and substituting it with a plea of not guilty. There
must either be a motion to withdraw his plea of
guilty or any unequivocal manifestation of the
withdrawal of such plea. Convictions based on an
improvident plea of guilty are set aside only if such
plea is the sole basis of the judgment. If the trial
court relied on sufficient and credible evidence to
convict the accused, the conviction must be
sustained. (People v. Solamillo, G.R. No. 123161,
2003)
The reason behind the rules is that trial has
already begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste. Moreover, at this point,
there is a presumption that the plea was made
voluntarily.
Four-Fold Duty of Court when Accused
Appears without Counsel:
1. INFORM the defendant that he has a right to an
attorney before being arraigned
2. After informing him, court must ASK the
defendant if he desires to have the aid of an
attorney
3. If he desires but is unable to employ one, the
court must ASSIGN an attorney de oficio to
defend him
4. If the accused desires to procure an attorney of
his own, the court must grant him
REASONABLE TIME to do so (Gamas v. Oco,
A.M. No. MTJ-99-1231, 2004)
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Failure to comply with this 4-fold duty amounts to
a violation due process
COUNSEL DE OFICIO is counsel appointed by
the court to represent and defend the accused in
case he cannot afford to employ one himself
Who May Be Appointed Counsel De Oficio:
1. Members of the bar in good standing who can
competently defend the accused
2. In localities where such members of the bar
are not available, any resident of the province
of good repute for probity and ability.
Duty of the Court to Appoint Counsel During
Arraignment and During Trial
During arraignment, the court has an affirmative
duty to inform the accused of his right to counsel
and to provide him with one in case he cannot
afford it. The court must act on its own volition
unless the right is waived by the accused.
During trial, it is the accused who must assert his
right to counsel. The court will not act unless the
accused invokes his rights.
What Constitutes “Reasonable Time”
It depends on the circumstances surrounding the
case such as the gravity of the offense, complexity
of the allegations, whether a motion to quash or a
bill of particulars has to be filed, etc.
Generally, reasonable time to prepare for trial is
between 2-15 days.
The accused has at least 15 to 30 days from
receipt of pre-trial order to prepare for trial (Rule
119, Section 1).
Generally, reasonably time to prepare for
arraignment is 30 minutes to 1 hour.
Note: Counsel for the accused must expressly
demand the right to be given reasonable time to
consult with the accused. Only when so
demanded does denial thereof constitute
reversible error and a ground for new trial.
REMEDIAL LAW
Bill of Particulars
Accused must move for a bill of particulars
BEFORE arraignment to enable him to properly
plead and prepare for trial, otherwise it is deemed
waived.
The motion for bill of particulars must contain:
1. Alleged defects in the complaint or information
and
2. Details desired.
Rule 12 on Bill of Particulars applies by analogy to
Bill of Particulars as provided in Section 9 of Rule
116.
The remedy against an information that fails to
allege the time of the commission of the crime with
sufficient definiteness is a bill of particulars, not a
motion to quash.
It is Not the Office of the Bill of Particulars to:
1. Supply material allegation necessary to the
validity of a pleading
2. Change a cause of action or defense stated in
the pleading, or to state a cause of action or
defense other than the one stated.
3. Set forth the pleader’s theory of his cause of
action or a rule of evidence on which he intends
to rely.
4. Furnish evidentiary information whether such
information consists of evidence which the
pleader proposes to introduce or of facts which
constitute a defense or offset for the other party
or which will enable the opposite party to
establish an affirmative defense not yet
pleaded.
The filing of a motion for bill of particulars
suspends the period to file a responsive pleading.
If the motion is granted, the moving party has the
remaining period or at least 5 days to file his
answer from service of the bill of particulars.
If the motion is denied, he has the same period to
file his responsive pleading from receipt of the
order denying the motion.
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Right to Modes of Discovery While the pendency of a petition for review is a

This is the right of the accused to move for the
production of material evidence in the possession
of the prosecution. It authorizes the defense to
inspect, copy or photograph any evidence of the
prosecution in its possession after obtaining
permission of the court.
The purpose of such right is to prevent surprises
to the accused and the suppression or alteration
of evidence.
ground for suspension of the arraignment, the
Rules on Criminal Procedure limits the deferment
of the arraignment to a period of 60 days reckoned
from the filing of the petition with the reviewing
office. It follows, therefore, that after the expiration
of said period, the trial court is bound to arraign the
accused or to deny the motion to defer
arraignment. The trial court has to set the date of
arraignment even before the lapse of 60 days.
(Aguinaldo vs. Ventus, GR No. 176033, 2015)

Such right is available even during preliminary Note: Other grounds for suspension include
investigation when such is necessary to protect pending incidents like motion to quash, motion for
the constitutional right to life, liberty and property inhibition, motion for bill of particulars.
of the accused. It enables the respondent to obtain
evidence which he could incorporate in the
counter-affidavits or to substantiate his allegations
therein. H. MOTION TO QUASH

Definition
The rules applicable for the right to modes of
It is a special pleading filed by the defendant
discovery in criminal case is Section 12 and 13 of
before entering his plea, which hypothetically
Rule 119. Rules 23 to 29 of the Rules of Court is
admits the truth of the facts spelled out in the
not applicable.
complaint or information at the same time that it
NOTE: In one case, the Supreme Court held that sets up a matter which, if duly proved, would
preclude further proceedings. By a motion to
an RTC did not commit grave abuse of discretion
quash, the defendant assumes the facts alleged in
in granting the taking of a deposition through
the information to be true. (People v. Odtuhan,
written interrogatories under Rule 25 in a criminal
G.R. No. 191566, 2013)
case. The RTC took into consideration the
extraordinary circumstances of the case, and there
An order denying a motion to quash is interlocutory
was an honest effort on the part of the Trial Court
in character and absent a clear showing that the
to justify its conclusion. (People v. Sergio, G.R.
No. 240053, 2019). judge has committed a grave abuse of discretion
or acted in excess of jurisdiction, the order is not
appealable (Santos v. People, G.R. No. 173176,
Grounds for Suspension of Arraignment
August 26, 2008).
1. There exists a prejudicial question
2. Accused appears to be suffering from an
NOTE: A motion to quash based on double
unsound mental condition which renders him
jeopardy or extinction of the criminal action may,
unable to understand the charge against him
by their nature, be based on matters outside of the
and to plead intelligently thereto.
allegation of the information or complaint.
3. There is a petition for review pending before the
DOJ or Office of the President, however the
Time to move to quash
period of suspension shall not exceed 60 days
May be filed only before the accused has entered
counted from the filing of the petition for review.
his plea to the accusatory pleading (Rule 117, Sec.
1)
The suspension of the arraignment should always
be within the limits allowed by law (ABS-CBN v.
GMA, Felipe Gozon, G.R. No. 195956, 2015)

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Exceptions
1. When the same does not charge an offense;
2. Where the court has no jurisdiction over the
case;
3. When the offense or penalty had already been
extinguished; or
4. When further prosecuting the accused would
thereby place him in double jeopardy.
NOTE: The court is not authorized to motu propio
initiate a motion to quash. The right to file a motion
to quash belongs only to the accused.
1. GROUNDS
The grounds to quash the information are:
1. Facts charged do not constitute an offense
2. Court has no jurisdiction over offense charged
3. Court has no jurisdiction over the person of the
accused
4. Officer who filed the information had no
authority to do so
5. Does not conform substantially to the
prescribed form
6. More than one offense is charged except when
a single punishment for various offense is
prescribed by law
7. Criminal action or liability has been
extinguished by prescription
8. Contains averments which, if true, would
constitute a legal excuse or justification
9. Accused has been previously convicted or
acquitted of offense charged, or case has been
dismissed or otherwise terminated without the
express consent of the accused (double
jeopardy) (Rule 117, Sec. 3)
An affidavit of desistance or pardon is not a ground
for the dismissal of an action, once it has been
instituted in court. (People v. Salazar, G.R. No.
181900, 2010)
The absence of probable cause for the issuance
of a warrant of arrest is not a ground for quashal
of the information, but is a ground of the dismissal
of the case (People v. Sandiganbayan, G.R. No.
144159, 2004)
Matters of defense cannot be raised in a motion to
quash (Antone v. Beronilla, G.R. No. 183824,
2010).
REMEDIAL LAW
Omnibus Motion Rule
The court shall not consider any other ground
other than those specifically stated in the motion
to quash, except (1) lack of jurisdiction over the
offense charged; and (2) the information does not
charge an offense (Sec. 2, Rule 117).
Facts Charged Do Not Constitute an Offense
The test for the correctness of this ground is the
sufficiency of the averments in the information,
that is, whether the facts alleged, if hypothetically
admitted, establish the essential elements of the
offense as defined by law without considering
matters aliunde. (People v. Romuadez, G.R.
166510, 2008).
Note: The court in resolving the motion cannot
consider –
1. Facts contrary to those alleged in the
information
2. Facts which do not appear on the face of the
information
Except: Those admitted by the prosecution.
Officer who Filed the Information Had No
Authority to Do So
It occurs when a state prosecutor lacked the
authority to file the information because there was
neither a directive from the Secretary of Justice
designating him as a special prosecutor nor the
written approval of the information by the city
prosecutor as required under Section 5, Rule 110
of the Rules of Court.
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
(Tolentino vs. Paqueo, Jr., G.R. No. 150606,
2007).
Republic Act No. 6770, by conferring upon the
Ombudsman the power to prosecute, likewise
grants to the Ombudsman the power to authorize
the filing of informations. As to the Special
Prosecutor, respondent People invokes the
aforesaid authority of the Ombudsman in Section
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15(10) to delegate his powers, and claim that there 2. DISTINGUISH FROM DEMURRER TO
was a general delegation of the authority to EVIDENCE
approve the filing of informations in Office Order
No. 03-97, series of 2003 (dated 15 September MOTION TO QUASH DEMURRER TO
2003), and Office Order No. 40-05, series of 2005 EVIDENCE
(dated 4 April 2005). Filed before the Filed after the
defendant enters his prosecution has
The delegation of the power to authorize the filing plea rested its case
of informations under Office Order No. 40-05 was Does not require prior May be filed either
only made to Deputy Ombudsmen, and not to the leave of court with or without leave
Special Prosecutor. All that was delegated to the of court
Special Prosecutor was the discretional authority Based on matters Predicated upon
to review and modify the Deputy Ombudsmen- found on the matters outside of the
authorized information, but even this is subject to complaint or complaint or
the condition that such modification must be information information such as
“without departing from, or varying in any way, the the evidence or lack of
contents of the basic Resolution, Order or it
Decision.” (Perez v. Sandiganbayan, G.R. No. If granted, dismissal of If granted, is deemed
166062, 2006) the case will not an acquittal of the
necessarily follow accused and
Does Not Conform Substantially to the [See Sections 5 and 6 subsequent
Prescribed Form of this Rule, where prosecution will
The defects contemplated are defects in form, as another complaint or violate the rule on
where the requirements for the sufficiency of information may be double jeopardy
information are not complied with. filed by order of the
court]
Prescription If denied by grave If denied, shall not be
The following are the prescriptive periods of the abuse of discretion, reviewable by appeal
criminal liability or penalties: then certiorari or or certiorari before
1. Death and reclusion perpetua - 20 years prohibition lies judgment but may be
2. Other afflictive penalties - 15 years reviewable via Rule
3. Other correctional penalties - 10 years; 65 (Choa v. Choa,
however, if penalty is arresto mayor - 5 years G.R. No. 143376.
4. Light penalties - 1 year 2002).

Legal Excuse For Justification Notwithstanding the interlocutory character and

The legal excuse or justification referred to are
those provided for in the Revised Penal Code:
1. Justifying circumstances. (Art. 11)
2. Exempting circumstances. (Art. 12)
3. Absolutory causes. (Arts. 6 [par.3], 16, 20, 247
and 332)
effect of the denial of the demurrers to evidence,
the petitioners-accused could avail themselves of
the remedy of certiorari when the denial was
tainted with grave abuse of discretion. (Arroyo v.
People, G.R. No. 220598, 2016; Aguas v.
Sandiganbayan, G.R. 220953, 2016)

When the accused files such motion to dismiss

without express leave of court, he waives the right
to present evidence and submits the case for
judgment on the basis of the evidence for the
prosecution. The RTC did not need to inquire into
the voluntariness and intelligence of the waiver, for
her opting to file her demurrer to evidence without

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first obtaining express leave of court effectively

waived her right to present her evidence. (People
v. Cristobal, G.R. No. 159450, 2011)
Forms and Contents
1. In writing
2. Signed by the accused or his counsel
3. Distinctly specify the factual and legal grounds
of the motion (Rule 117, Sec. 2)
Motion to Quash in Cases covered by
Summary Procedure
General Rule: Filing of a motion to quash is not
allowed in a summary procedure
But where the prosecution failed to object and
such proof of privilege was admitted into the
record, quashal was proper. (People v. Balao,
G.R. No. L-22250, 1968)
If the accused had already entered his plea, it is
discretionary on the part of the court to permit him
to withdraw that plea in order to file a motion to
quash. (Mill v. People, et al., G.R. No. L-10427,
1957)
3. EFFECTS OF SUSTAINING THE MOTION
TO QUASH

Exception/s: GROUNDS EFFECT

1. On the ground of lack of jurisdiction over the  Facts charged do Court may order that
subject matter not constitute an another information
2. Failure to comply with the barangay conciliation offense be filed or an
proceedings (Sec. 19 (a), Revised Rules on  Officer who filed amendment thereof
Summary Procedure). the information be made
had no authority to
Effect of Failure to Assert Any Ground of a do so
Motion To Quash Before Pleading to a  It does not
Complaint or Information conform
This failure to assert a ground may either be substantially to the
because: prescribed form
1. Accused did not file a motion to quash  More than one
2. Accused filed a motion to quash but failed to offense is charged
allege the ground in said motion  Criminal action or Court must state, in its
liability has been order granting the
General Rule: Failure to assert or timely assert a extinguished motion, the release of
motion to quash shall be deemed a waiver of any  Averments would the accused if he is in
objections (Rule 117, Sec. 9) constitute a legal custody or the
excuse or cancellation of his
When the accused fails, before arraignment, to justification bond if he is on bail
move for the quashal of such information and goes  Accused has been
to trial thereunder, he thereby waives the objection previously
and may be found guilty of as many offenses as convicted or
those charged in the information and proved acquitted of the
during trial. (Escandor v. People, G.R. No. offense charged
211962, 2020)  Court has no Court should remand
jurisdiction over or forward the case to
Where, in a motion to quash an information for the offense the proper court, not
libel, the prosecution objected to evidence to quash the
showing the privileged nature of the complaint or
communication, the court cannot quash the case information
as such defense must be raised at the trial.
(Duque, et al. v. Santiago, etc. et al., G.R. No. L- Note: The fundamental test in determining
16916, 1962). whether a motion to quash may be sustained

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based on this ground is whether the facts alleged, b. Case against him was dismissed or
if hypothetically admitted, will establish the otherwise terminated without the accused’s
essential elements of the offense as defined in the express consent (Rule 117, Sec. 6).
law. Extrinsic matters or evidence aliunde are not .
considered. (Herminio Disini v. Sandiganbayan, When Court Shall Order the Amendment of the
G.R. Nos. 169823-24, 2013) Information or Complaint
General Rule: If the motion to quash is based on
IF COURT ORDERS THAT ANOTHER a defect which can be cured (ex. Allegations in the
COMPLAINT OR INFORMATION BE FILED AND information do not constitute an offense,
IS – information does not conform substantially to the
NOT ORDERED OR IF prescribed form), the court shall not immediately
ORDERED AND HAVING ORDERED, NO grant the motion but order that an amendment be
MADE NEW INFORMATION IS made. (Rule 117, Sec. 4)
FILED
The accused, if in The accused, if in custody, Exception/s: The motion shall be granted if
custody, shall not shall be discharged unless despite such opportunity, the prosecution:
be discharged he is also in custody for 1. Fails to make an amendment
unless admitted another charge 2. If despite the amendment, the complaint or
to bail information still suffers from the same defect
(Rule 117, Sec. 4).
Granting A Motion To Quash Appealable
An order granting a motion to quash is appealable, Order Denying Motion to Quash versus Order
and the accused cannot claim double jeopardy if Sustaining Motion to Quash
the dismissal is procured not only with his consent MOTION TO QUASH MOTION TO QUASH
but at his own instance (Rule 117, Sec. 7). DENIED GRANTED
Interlocutory Final Order
Denial of a Motion to Quash Not appealable, Appealable, but
A petition for certiorari is not the proper remedy except if there is subject to rules on
absent any showing of arbitrariness. The remedy grave abuse of double jeopardy
is for the movant to go to trial without prejudice to discretion, the
reiterating the defenses invoked in the motion to remedy is certiorari
quash (Acharon v. Purisima, G.R. No. 83754 Proper remedy is to Proper remedy is to
February 18, 1991) appeal after trial appeal the order
Next step: Next step: amend the
4. EXCEPTION TO THE RULE THAT arraignment information, if possible
SUSTAINING THE MOTION IS NOT A BAR
TO ANOTHER PROSECUTION 5. DOUBLE JEOPARDY

General Rule: When a motion to quash is
sustained, the court may order that another
complaint or information be filed (Rule 117, Sec.
6).
Exception/s: When the ground relied upon is:
1. Extinction of criminal action or liability
2. Double Jeopardy
a. Accused has been previously convicted or
acquitted of the offense charged
As a rule, when an accused has been convicted or
acquitted, or the case against him dismissed or
otherwise terminated without his express consent,
the conviction or acquittal shall be a bar to another
prosecution for:
1. The offense charged
2. Any attempt to commit the same or frustration
thereof
3. Any offense which necessarily includes or is
necessarily included in the offense charged
(Rule 117, Sec. 7).

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No double jeopardy attaches as long as there is
variance between the elements of the two offenses
charged (Braza v. Sandiganbayan, G.R. No.
195302, 2013)
Requisites to Raise Double Jeopardy:
1. First jeopardy must have attached
a. Accused must have been convicted or
acquitted, or the case against him was
dismissed or terminated without his express
consent
b. Made by a court of competent jurisdiction
c. Valid complaint or information
d. Accused has been arraigned (People v.
Obsania, G.R. No. L-24447, June 29, 1968)
2. First jeopardy must have been validly
terminated
3. The second jeopardy must be for the same
offense or the second offense includes or is
necessarily included in the offense charged in
the first information or is an attempt or
frustration thereof (Rule 117, Sec. 7).
An offense charged necessarily includes the
offense proved when some of the essential
elements or ingredients of the former, as alleged
in the complaint or information, constitute the
latter.
An offense charged is necessarily included in the
offense proved, when the essential ingredients of
the former form part of those constituting the latter
(Rule 120, Sec. 5).
The proscription against double jeopardy
presupposes that an accused has been previously
charged with an offense, and the case against him
is terminated either by his acquittal or conviction,
or dismissed in any other manner without his
consent.
As a general rule, the following requisites must be
present for double jeopardy to attach: (1) a valid
indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4)
a valid plea entered by him, and (5) the acquittal
or conviction of the accused, or the dismissal or
termination of the case against him without his
express consent.
REMEDIAL LAW
However, there are two (2) exceptions to the
foregoing rule, and double jeopardy may attach
even if the dismissal of the case was with the
consent of the accused: first, when there is
insufficiency of evidence to support the charge
against him; and second, where there has been an
unreasonable delay in the proceedings, in violation
of the accused's right to speedy trial.(Saldariega v.
Panganiban, G.R. No. 211933 & 211960, 2015)
When Double Jeopardy Shall Not Apply
Despite a Prior Conviction
1. Graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge
2. Facts constituting graver charge were
discovered only after a plea was entered in the
former complaint or information
3. Plea of guilty to a lesser offense was made
without consent of the prosecutor and of the
offended party except if they fail to appear in
any of these cases, where the accused
satisfies or serves the whole or in part the
judgment, he shall be credited with the same in
the event of conviction for the graver offense
(Rule 117, Sec. 7)
4. Prior conviction was not made by a competent
court.
In a case, MeTC took cognizance of the
Information for reckless imprudence resulting
in parricide while the criminal case for parricide
was still pending before the RTC.
As the offense of reckless imprudence resulting
in parricide was included in the charge for
intentional parricide pending before the RTC,
the MeTC clearly had no jurisdiction over the
criminal case filed before it, the RTC having
retained jurisdiction over the offense to the
exclusion of all other courts. The requisite that
the judgment be rendered by a court of
competent jurisdiction is therefore absent.
(Heirs of Jane Honrales vs. Honrales, G.R. No.
182651, 2010)
CA’s order of remanding and reshuffling a case to
another RTC branch does not constitute double
jeopardy because it has not yet attained finality
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and still subject of review. (Villalon v. Chan, G.R.
No. 196508, 2014).
Where Double Jeopardy Not Applicable
1. Preliminary investigation stage
2. Administrative cases
3. Civil aspect of the criminal case
Dismissal Must Be Without the Express
Consent of the Accused
General Rule: The termination of the case must
be without the express consent of the accused so
that jeopardy will attach (Rule 117, Sec. 7).
Exceptions: Dismissal is equivalent to acquittal
even with the accused’s consent if grounded on:
1. Speedy trial
2. Demurrer to evidence (People v. Bans, G.R.
No. 104147, 8 December 1994)
In an appeal by an accused, he waives his right
not to be subject to double jeopardy.
An appeal in a criminal case opens the entire case
for review on any question including one not raised
by the parties. When an accused appeals from the
sentence of the trial court, he waives the
constitutional safeguard against double jeopardy
and throws the whole case open to the review of
the appellate court, which is then called upon to
render such judgment as law and justice dictate,
whether favorable or unfavorable to the appellant.
(People v. Torres, G.R. No. 189850, 2014).
Rules Regarding State Witnesses
An order discharging an accused as a state
witness amounts to an acquittal, hence double
jeopardy will apply.
If the state witness fails or refuses to testify against
his co-accused in accordance with his sworn
statement, he may be prosecuted again (Rule 119,
Sec. 19).
Double Jeopardy in Quasi-Offenses
Once convicted or acquitted of a specific act of
reckless imprudence the accused may not be
prosecuted again for the same act.
Only the single act of recklessness is punished
and not the effect/s thereof (damage to property,
REMEDIAL LAW
resulting in injury or homicide), for it merely
determines the penalty.
Ex: Conviction of reckless imprudence resulting in
slight physical injuries shall bar prosecution for
reckless imprudence resulting in homicide and
damage to property. (Ivler v. Modesto-San Pedro,
G.R. No. 172716, 2010)
6. PROVISIONAL DISMISSAL
Contemplates that the dismissal of the criminal
action is not permanent and can be revived within
the period set by the Rules of Court.
Requisites of a Provisional Dismissal
1. Consent of the prosecutor
2. Consent of the accused;
3. Notice to the offended party; and
4. Public prosecutor is served with a copy of the
order of provisional dismissal (Rule 117, Sec.
8).
Examples on Grounds on Which Provisional
Dismissal May Be Granted
1. Prosecution was not prepared for trial
2. Repeated absences in court
3. Witness did not appear at the trial
When Provisional Dismissal Becomes
Permanent (Rule 117, Sec. 6)
The provisional dismissal shall become
permanent if not revived within:
PERIOD OF NON
PENALTY
REVIVAL
Penalty is 6 years and 1 year after issuance of
below, or a fine of any order
amount, or both
Penalty exceeds 6 2 years after issuance
years of order
One year shall start from the receipt of the
prosecutor of the order of provisional
dismissal
Rule 117, Sec. 8 provides that, “The provisional
dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount,
or both, shall become permanent one (1) year after
issuance of the order without the case having been
revived.”
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However, the provision should be construed to
mean that the order of dismissal shall become
permanent one year after service of the order of
dismissal on the public prosecutor who has control
of the prosecution without the criminal case having
been revived. The public prosecutor cannot be
expected to comply with the timeline unless he is
served with a copy of the order of dismissal. (Co v.
New Prosperity Plastic Products, G.R. No.
183994, 2014).
Note: When a criminal case is provisionally
dismissed with the express consent of the
accused, the case may be revived by the State
within the time prescribed by the rules. There is no
violation of due process as long as the revival of a
provisionally dismissed complaint was made
within the time-bar provided under the law.
(Saldariega v. Panganiban, GR Nos. 211933 &
211960, 2015)
Time-Bar Rule on Provisional Dismissal
A motion to withdraw information differs from a
motion to dismiss. While both put an end to an
action filed in court, their legal effect varies.
ORDER GRANTING
ORDER GRANTING MOTION TO
MOTION TO DISMISS WITHDRAW
INFORMATION
Attains finality fifteen Attains finality after
(15) days after receipt fifteen (15) days from
thereof, with prejudice receipt thereof, without
to the re-filing of the prejudice to the re-
same case once such filing of the
order achieves finality. information upon
reinvestigation.
Motion to Withdraw Information falls within the
ambit of Section 8, Rule 117 of the Revised Rules
of Criminal Procedure which provides that the law
on provisional dismissal becomes operative once
the judge dismisses, with the express consent of
the accused and with notice to the offended party
(Torres, Jr. vs. Aguinaldo, G.R. No. 164268,
2005).
REMEDIAL LAW
When New Preliminary Investigation if Case is
Reinstated
1. Original witnesses or some of them recant their
testimony, are no longer available (died), or
when new witnesses have emerged
2. Other persons are charged under the new
complaint
3. Original charge has been upgraded
4. Criminal liability of the accused has been
upgraded (ex. accomplice principal) (People v.
Lacson, G.R. No. 149453, April 1, 2003).
Quashal vs. Provisional Dismissal
If the problem relates to an intrinsic or extrinsic
deficiency of the complaint or information, as
shown on its face, the remedy is a motion to quash
under the terms of Section 3, Rule 117. All other
reasons for seeking the dismissal of the complaint
or information, before arraignment and under the
circumstances outlined in Section 8, fall under
provisional dismissal. (Los Baños v. Pedro, G.R
No. 173588, 2009)
Additional Rules on Provisional Dismissal
(Sec. 10, A.M. No. 12-11-2-SC, 2014)
(a) When the delays are due to the absence of an
essential witness whose whereabouts are
unknown or cannot be determined and, therefore,
are subject to exclusion in determining compliance
with the prescribed time limits which caused the
trial to exceed one hundred eighty (180) days, the
court shall provisionally dismiss the action with the
express consent of the detained accused.
(b) When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence though his whereabouts
are known, the court shall provisionally dismiss the
action with the express consent of the detained
accused provided:
(1) the hearing in the case has been previously
twice postponed due to the non-appearance of
the essential witness and both the witness and
the offended party, if they are two different
persons, have been given notice of the setting
of the case for third hearing, which notice
contains a warning that the case would be
dismissed if the essential witness continues to
be absent; and
(2) there is proof of service of the pertinent
notices of hearings or subpoenas upon the
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essential witness and the offended party at
their last known postal or e-mail addresses or
mobile phone numbers.
(c) For the above purpose, the public or private
prosecutor shall first present during the trial the
essential witness or witnesses to the case before
anyone else. An essential witness is one whose
testimony dwells on the presence of some or all of
the elements of the crime and whose testimony is
indispensable to the conviction of the accused.
I. PRE-TRIAL
Courts where Pre-Trial is Mandatory
1. Sandiganbayan
2. Regional Trial Court
3. Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court, Municipal
Circuit Trial Court (Rule 118, Sec. 1)
Purpose of Pre-Trial:
Pre-trial is not a mere technicality in court
proceedings for it serves a vital objective: the
simplification, abbreviation, and expedition of trial,
if not indeed its dispensation. (Tolentino v. Heirs of
Laurel-Ascalon, G.R. No. 181368, 2012).
Period of Pre-trial
General Rule: Both the pre-trial and arraignment
must be set within 30 days from the date the court
acquires jurisdiction over the person of the
accused (A.M. No. 15-06-10-SC, III.8.(a)).
Exceptions:
1. A shorter period is provided for in special law
or circulars of the Supreme Courts;
2. If the accused is under preventive detention,
the arraignment and pre-trial shall be set within
10 days of the Court’s receipt of the case (A.M.
No. 15-06-10-SC, III.8.(a))
1. MATTERS TO BE CONSIDERED DURING
PRE-TRIAL
The matters considered in a pre-trial are:
1. Plea bargaining
2. Stipulation of facts
3. Marking for identification of evidence
REMEDIAL LAW
Note: No evidence shall be allowed to be
presented and offered during the trial other
than those identified and marked during pre-
trial, except when allowed by the court for good
cause shown (I-B (2), A.M. No. 03-1-09-SC).
4. Waiver of objections to admissibility of
evidence
5. Modification of the order of trial if the accused
admits the charge but interposes a lawful
defense
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil aspects
of the case (Rule 118, Sec. 1).
During the pre-trial, the judge shall be the one to
ask questions on issues raised therein and all
questions must be directed to him to avoid
hostilities between parties. (I-B[7], A.M. No. 03-1-
09-SC)
All proceedings during the pre-trial shall be
recorded, the transcripts prepared and the minutes
signed by the parties and/or their counsels. (I-B[9],
A.M. No. 03-1-09-SC)
2. WHAT THE COURT SHOULD DO WHEN
PROSECUTION AND OFFENDED PARTY
AGREE TO THE PLEA OFFERED BY THE
ACCUSED
Plea Bargaining
The process whereby the accused, the offended
party, and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval.
Duty of the court when the prosecution and the
offended party agree to the plea offered by the
accused
1. During the pre-trial, the judge shall consider
plea bargaining arrangements except in cases
for violations of the Comprehensive Dangerous
Drugs Act of 2002.
Note: Section 23 of the Comprehensive
Dangerous Drugs Act of 2002 was declared
unconstitutional for being contrary to the rule-
making authority of the Supreme Court under
Section 5 (5), Article VIII of the 1987
Constitution. Sec. 23 provides, Any person
charged under any provision of this Act
regardless of the imposable penalty shall not
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be allowed to avail of the provision on plea- grams or more but not

bargaining.” exceeding 500 grams
2. If a plea bargaining is agreed upon, the court Section 12. Section 15. Use of
shall: Possession of Dangerous Drugs
a. Issue an order to that effect; Equipment,
b. Proceed to receive evidence on the civil Apparatus and Other
aspect of the case; and Paraphernalia for
c. Render and promulgate judgment of Dangerous Drugs
conviction, including the civil liability or Section 14. Section 15. Use of
damages duly established by the evidence. Possession of Dangerous Drugs
(I-B[5], A.M. No. 03-1-09-SC) Equipment,
Apparatus and Other
A.M. No. 18-03-16-SC (Adoption of the Plea Paraphernalia for
Bargaining Framework in Drugs Cases) Dangerous Drugs
Only the following acts punished under the during Parties, Social
Comprehensive Dangerous Drugs Acts may be Gatherings or
the subject of plea-bargaining. Meetings
Section 5. Sale, Section 12.
Acceptable Plea Trading, etc. of Possession of
Offense Charged
Bargain Dangerous Drugs Equipment,
Section 11, par. 3. Section 12. (Methamphetamine Instrument,
Possession of Possession of hydrochloride or Apparatus and Other
Dangerous Drugs Equipment, shabu only) Paraphernalia for
(Where quantity of Instrument, Dangerous Drugs
shabu, opium, Apparatus and Other .01 gram to .99 grams
morphine, heroin, Paraphernalia for (methamphetamine
cocaine is less than 5 Dangerous Drugs hydrochloride or
grams) shabu only)
Section 11, par. 3. Section 12. Section 5. Sale, Section 12.
Possession of Possession of Trading, etc. of Possession of
Dangerous Drugs Equipment, Dangerous Drugs Equipment,
(Where quantity of Instrument, (Marijuana only) Instrument,
marijuana is less than Apparatus and Other Apparatus and Other
300 grams) Paraphernalia for .01 gram to 9.99 Paraphernalia for
Dangerous Drugs grams of marijuana Dangerous Drug
Section 11, par. 2. Section 11, par. 3. only
Possession of Possession of
Dangerous Drugs Dangerous Drug When plea bargaining fails
(Where quantity of Adopt the minutes of preliminary conference as
shabu, opium, part of the pre-trial proceedings, confirm markings
morphine, heroin, of exhibits or substituted photocopies and
cocaine is 5 grams or admissions on the genuineness and due execution
more but not of documents and list object and testimonial
exceeding 10 grams) evidence. (I-B[6a], A.M. No. 03-1-09-SC)
Section 11, par. 2. Section 11, par. 3.
Possession of Possession of
Dangerous Drugs Dangerous Drugs
(Where the quantity of
marijuana is 300

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3. PRE-TRIAL AGREEMENT
All agreements or admissions made or entered
during the pre-trial conference shall be:
1. Reduced in writing; AND
2. Signed by the accused AND counsel (Rule
118, Sec. 1).
Otherwise, they cannot be used against the
accused. The agreements covering matters in a
pre-trial shall be approved by the court.
But admissions during trial binds the accused
even if it is not in writing or signed.
4. NON-APPEARANCE DURING PRE-TRIAL
The court may impose proper sanction or
penalties, if the counsel or prosecutor absent does
NOT offer an acceptable excuse (Rule 118, Sec.
3).
Note: There is NO similar provision on sanctions
and penalties in civil cases.
The absence during pre-trial of any witness for the
prosecution is NOT a valid ground for the
dismissal of a criminal case. The presence of the
private complainant or the complaining witness is
not required. Even the presence of the accused is
NOT required unless directed by the trial court. It
is enough that the accused is represented by his
counsel. (People v. Tac-an, G.R. No. 148000,
2003)
If the counsel for the accused/prosecutor does
NOT appear at the pre-trial conference and does
NOT offer an acceptable excuse for his lack of
cooperation, the court may sanction/penalize
counsel for the accused if any of the following
concur:
1. Counsel does NOT appear at the pre-trial
conference; AND
2. Counsel does NOT offer an acceptable
excuse. (Atty. Emelia H. Garayblas and Atty.
Renato G. dela Cruz v. Hon. Gregory Ong, et
al., G.R. No. 174507-30, 2011)
Note: In A.M. No. 15-06-10-SC, 2017: Revised
Guidelines for Continuous Trial in Criminal Cases,
2017 – The court shall proceed with the pre-trial
REMEDIAL LAW
despite the absence of the accused and/or private
complainant, provided they were duly notified of
the same, and the counsel for the accused, as well
as the public prosecutor, are present.
Note: In A.M. No. 15-06-10-SC (Revised
Guidelines for Continuous Trial in Criminal
Cases, 2017) – The pre-trial Order shall
immediately be served upon the parties and
counsel on the same day after the termination
of the pre-trial.
5. PRE-TRIAL ORDER
Issued within 10 days after termination of pre-trial
conference (A.M. No. 03-1-09-SC, Guidelines to
be Observed by Trial Court Judges and Clerks of
Court in the Conduct of Pre-Trial and Use of
Deposition-Discovery Measures as cited in Alviola
v. Avelino, A.M. No. MTJ-P-08-1697, 2008)
Sets forth:
1. Actions taken during the pre-trial conference
2. Facts stipulated
3. Admissions made
4. Evidence marked
5. Witnesses to be presented
6. Schedule of the trial
Note: Nos. 4-6 are added by A.M. No. 03-1-09-
SC, to the requirements under Sec. 4, Rule 118
Pre-trial order is not necessary to make pre-trial
stipulations binding. The court’s approval,
mentioned in the last sentence of Sec. 2, Rule 118,
is not needed to make the stipulations binding on
the parties. Such approval is necessary merely to
emphasize the supervision by the court over the
case and to enable it to control the flow of the
proceedings. (Bayas v. Sandiganbayan, G.R No.
143689-91, 2002)
The trial court may properly deny defense
counsel’s motion for substitution of witnesses
since Section 4, Rule 118 of the Revised Rules on
Criminal Procedure mandates that the matters
agreed upon in the pre-trial conference and as
stated in the pre-trial order shall bind the parties.
(People v. Guzman, G.R. No. 169246, 2007)
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Pre-trial in Civil and Criminal Cases counsel, otherwise,

CIVIL CASE CRIMINAL CASE they cannot be used
No motion ex parte against the accused

Set by the court not Ordered by the court
later than 60 days from after arraignment and
the filing of the last within 30 days from the
responsive pleading date the court acquires
jurisdiction over the
person of the accused,
unless a shorter period
is provided for in
special laws
Consider the propriety Does not consider the
of rendering a propriety of rendering a
judgment on the judgment on the
pleadings or a pleadings or a Mediation and conciliation at the level of the judge
summary judgment summary judgment
Consider the Does not consider the
possibility of an possibility of an
amicable settlement or amicable settlement or
of a submission to of a submission to
alternative modes of alternative modes of
dispute resolution dispute resolution
If the plaintiff and his Sanction is upon the
counsel fails to appear counsel of the accused
without valid cause, it or the prosecutor
shall result in the
dismissal of the action;
If the defendant and
his counsel fails to
appear without valid
vause, plaintiff shall be
allowed to present
evidence ex parte and
the court shall render
judgment based
thereon.
Parties are required to No mention of
file and serve their submission of pre-trial
respective pre-trial briefs
briefs
No such stipulation as All agreements or
that indicated in the admissions made or
next box. entered during the pre-
trial shall be reduced in
writing and signed by
the accused and
OTHER MATTERS
CONSOLIDATED AND REVISED GUIDELINES
TO IMPLEMENT THE EXPANDED COVERAGE
OF COURT-ANNEXED MEDIATION (CAM) AND
JUDICIAL DISPUTE RESOLUTION (JDR) (A.M.
No. 11-1-6-SC)
Court Annexed Mediation is a mediation
presided over by an accredited mediator (Sec. 1.2)
Judicial Dispute Resolution is a mediation
presided over by the judge (Sec. 1.2)
would contribute significantly to the:
1. Satisfaction of litigants
2. Help decongest the dockets of the judiciary
3. Expedite the resolution of cases
Mandatory Subject of CAM and JDR
(1) All civil cases and the civil liability of criminal
cases covered by the Rule on Summary
Procedure, including the civil liability for
violation of B.P. 22, except those which by
law may not be compromised;
(2) Special proceedings for the settlement of
estates;
(3) All civil and criminal cases filed with a
certificate to file action issued by the Punong
Barangay or the Pangkat ng
Tagapagkasundo under the
Revised Katarungang Pambarangay Law;
(4) The civil aspect of Quasi-Offenses under Title
14 of the Revised Penal Code;
(5) The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment, where the
offended party is a private person;
(6) The civil aspect of estafa, theft and libel;
(7) All civil cases and probate proceedings,
testate and intestate, brought on appeal from
the exclusive and original jurisdiction granted
to the first level courts under Section 33, par.
(1) of the Judiciary Reorganization Act of
1980;

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(8) All cases of forcible entry and unlawful
detainer brought on appeal from the exclusive
and original jurisdiction granted to the first
level courts under Section 33, par. (2) of the
Judiciary Reorganization Act of 1980;
(9) All civil cases involving title to or possession
of real property or an interest therein brought
on appeal from the exclusive and original
jurisdiction granted to the first level courts
under Section 33, par. (3) of the Judiciary
Reorganization Act of 1980; and
(10) All habeas corpus cases decided by the first
level courts in the absence of the Regional
Trial Court judge, that are brought up on
appeal from the special jurisdiction granted to
the first level courts under Section 35 of the
Judiciary Reorganization Act of 1980 (Sec.
3).
Cases which cannot be referred to CAM and
JDR
1. Civil cases which by law cannot be
compromised (Article 2035, New Civil Code);
2. Other criminal cases not covered under
paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No.
9262 (Violence against Women and Children);
and
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions
However, in cases covered under 1, 4 and 5 where
the parties inform the court that they have agreed
to undergo mediation on some aspects
thereof, e.g.,custody of minor children, separation
of property, or support pendente lite, the court
shall refer them to mediation (Sec. 3).
REMEDIAL LAW
Procedure for CAM
1. ORDER FOR MEDIATION
After the last pleading has been filed, the judge
shall issue an order requiring the parties to
forthwith appear before the concerned Philippine
Mediation Center (PMC) Unit staff to start the
process for the settlement of their dispute through
mediation
2. PERSONAL APPEARANCE
a. Natural Persons – they are required to
personally appear, unless they execute an SPA
in favor of his or her representative
b. Juridical Entities - represented by a ranking
corporate officer fully authorized by a Board
Resolution
3. MEDIATION PROPER
The Mediator shall have a period of not exceeding
thirty (30) days to complete the mediation process.
Such period shall be computed from the date when
the parties first appeared for the initial conference
as stated in the Order to appear. An extended
period of another thirty (30) days may be granted
by the court, upon motion filed by the Mediator,
with the conformity of the parties.
4. IF NO SETTLEMENT REACHED
The case must be returned to the referring judge.
5. IF SETTLEMENT IS REACHED
The parties, assisted by their respective counsels,
shall draft the compromise agreement which shall
be submitted to the court for judgment upon
compromise or other appropriate action. Where
compliance is forthwith made, the parties shall
instead submit a satisfaction of claims or a mutual
withdrawal of the case and, thereafter, the court
shall enter an order dismissing the case.
If partial settlement is reached, the parties shall,
with the assistance of counsel, submit the terms
thereof for the appropriate action of the court,
without waiting for resolution of the unsettled part.
In relation to the unsettled part of the dispute, the
court shall proceed to conduct JDR proceedings in
accordance with PART THREE hereof where JDR
is available.
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Judicial Dispute Resolution
Who may conduct
All judges who have undergone orientation in JDR
procedures and completed their training in
mediation, conciliation and neutral evaluation, are
authorized to conduct JDR proceedings.
Note: The judge to whom the case has been
originally raffled, who shall be called the JDR
Judge, shall preside over the first stage - from the
filing of a complaint to the conduct of CAM and
JDR during the pre-trial stage. The judge, who
shall be called the trial judge, shall preside over
the second stage - pre-trial proper to trial and
judgment
Order Pre-setting the Case for JDR
The pre-setting of the case for JDR shall not be
earlier than forty-five (45) days from the time the
parties first personally appear at the PMCU so that
JDR will be conducted immediately if the parties
do not settle at CAM.
Procedure
1. DURATION
a. First Level Court Judges shall have a period
of not exceeding thirty (30) days,
b. Second Level Court Judges shall have a
period of not exceeding sixty (60) days.
c. A longer period, however, may be granted
upon the discretion of the JDR judge if there
is a high probability of settlement and upon
joint written motion of the parties
d. As far as practicable, JDR conferences shall
be set not more than two (2) weeks apart so
as to afford the parties ample time to
negotiate meaningfully for settlement.
e. In criminal cases covered by CAM and JDR,
where settlement on the civil aspect has
been reached but the period of payment in
accordance with the terms of settlement
exceeds one (1) year, the case may be
archived upon motion of the prosecution,
with notice to the private complainant and
approval by the judge.
REMEDIAL LAW
2. SETTLEMENT OF CASES
a. Criminal Cases
If settlement is reached on the civil aspect of
the criminal case, the parties, assisted by their
respective counsels, shall draft the
compromise agreement which shall be
submitted to the court for appropriate action.
Action on the criminal aspect of the case will be
determined by the Public Prosecutor, subject to
the appropriate action of the court.
If settlement is not reached by the parties on
the civil aspect of the criminal case, the JDR
judge shall proceed to conduct the trial on the
merits of the case should the parties file a joint
written motion for him to do so, despite
confidential information that may have been
divulged during the JDR proceedings.
Otherwise, the JDR Judge shall turn over the
case to a new judge by re-raffle in multiple sala
courts or to the originating court in single sala
courts, for the conduct of pre-trial proper and
trial.
3. NO SETTLEMENT REACHED
Where no settlement or only a partial settlement
was reached, and there being no joint written
motion submitted by the parties, as stated in the
last preceding paragraphs, the JDR judge shall
turn over the case to the trial judge, determined by
re-raffle in multiple sala courts or to the originating
court in single sala courts, as the case may be, to
conduct pre-trial proper, as mandated by Rules 18
and 118 of the Rules of Court.
4. RAFFLE
a. Multiple Sala Court — If the case is not
resolved during JDR, it shall be raffled to
another branch for the pre trial proper 16 up to
judgment.
For cases with pending applications for
restraining orders/preliminary injunctions, the
judge to whom the case was raffled shall rule
on the said applications. During the pre-trial
stage, the judge refers the case to CAM, but if
the parties do not settle at CAM, the case will
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be raffled to another branch for JDR. If the
parties do not settle at JDR, the case will be
returned to the branch that ruled on the
applications for the pre-trial proper and up to
judgment. 17
b. Single Sala Court. — Unless otherwise agreed
upon as provided below, the JDR proceedings
will be conducted by the judge of the pair court,
if any, otherwise, by the judge of the nearest
court as determined by the concerned
Executive Judge. The JDR proceedings shall
be conducted at the station where the case was
originally filed. The result of the JDR
proceedings shall be referred to the court of
origin for appropriate action, e.g., approval of
the compromise agreement, trial, etc.
Notwithstanding the foregoing, before the
commencement of the JDR proceedings, the
parties may file a joint written motion
requesting that the court of origin conduct the
JDR proceedings and trial.
c. Family Courts — Unless otherwise agreed
upon as provided below, the JDR proceedings
in areas where only one court is designated as
a family court, shall be conducted by a judge of
another branch through raffle. However, if there
is another family court in the same area, the
family court to whom the case was originally
raffled shall conduct JDR proceedings and if no
settlement is reached, the other family court
shall conduct the pre-trial proper and trial.
Notwithstanding the foregoing, before
commencement of the JDR proceedings, the
parties may file a joint written motion
requesting that the family court to which the
case was originally raffled shall conduct the
JDR proceedings and trial.
Despite the non-mediatable nature of the
principal case, like annulment of marriage,
other issues such as custody of children,
support, visitation, property relations and
guardianship, may be referred to CAM and
JDR to limit the issues for trial.
REMEDIAL LAW
d. Commercial, Intellectual Property, and
Environmental Courts — Unless otherwise
agreed upon as provided below, the JDR
proceedings in areas where only one court is
designated as commercial/intellectual
property/environmental court, hereafter
referred to as special court, shall be conducted
by another judge through raffle and not by the
judge of the special court. Where settlement is
not reached, the judge of the special court shall
be the trial judge. Any incident or motion filed
before the pre-trial stage shall be dealt with by
the special court that shall refer the case to
CAM.
Notwithstanding the foregoing, before
commencement of the JDR proceedings, the
parties may file a joint written motion
requesting that the special courts to which the
case was originally raffled shall conduct the
JDR proceedings and trial.
J. TRIAL
Consolidation of Trials of Related Offenses
Charges for offenses founded on the same facts
or forming part of a series of offenses of similar
character may be tried jointly at the discretion of
the court (Rule 119, Sec. 22).
Trial of Several Accused
General Rule: When two accused are jointly
charged with an offense, joint trial is automatic,
without need of court order.
Exception: The court, in its discretion, AND upon
motion of the prosecutor or any accused, orders
separate trial (Rule 119, Sec. 16).
A motion for separate trial must be filed before the
commencement of trial and cannot be raised for
the first time on appeal.
Even if a joint trial is conducted, the accused can
always be permitted to present evidence
separately.
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Periods Relevant to Trial 7. Reasonably attributable to any period, not

ACTION FROM DAYS exceeding 30 days
Prepare for Plea of not at least 15
trial guilty B. Delay resulting from absence or
Initiate trial Receipt of within 30 unavailability of an essential witness
pre-trial order
Trial period First day of 180* ABSENT UNAVAILABLE
trial
(Rule 119, Secs. 1-2). Whereabouts are Whereabouts are
unknown or known but his
Except when: whereabouts cannot presence for trial
1. Authorized by the SC be determined by due cannot be obtained by
2. Exclusions diligence due diligence

A violation of Section 1, Rule 119 - time to prepare NOTE:

for trial, or the total absence of notice of trial, is a
denial of due process and a new trial may be
granted. (People v. Magdang, et al., G.R. No. L-
836, 1950)
It shall be the duty of the trial court, the public or
private prosecutor, and the defense counsel to
ensure, subject to the excluded delays specified in
Rule 119 of the RoC and the Speedy Trial Act of
1998, to observe the following the prescribed
period for the conduct of trial (Section 8, A.M. No.
12-11-2-SC, 2014)
The case against the detained accused may be
dismissed on ground of denial of the right to
speedy trial in the event of failure to observe the
above time limits (Section 9, A.M. No. 12-11-2-SC,
2014).
Exclusions (Rule 119, Sec. 3)
The following shall be excluded in computing the
180-day period:
A. Delay by reason of the accused
1. Examination of the physical and medical
condition
2. Proceedings with respect to other criminal
charges
3. Extraordinary remedies and interlocutory
orders
4. Pre-trial proceedings not exceeding 30 days
5. Orders of inhibition, or proceedings related to
change of venue or transfer from other courts
6. Existence of a prejudicial question
(a) When the delays are due to the absence of an
essential witness whose whereabouts are
unknown or cannot be determined and, therefore,
are subject to exclusion in determining compliance
with the prescribed time limits which caused the
trial to exceed one hundred eighty (180) days, the
court shall provisionally dismiss the action with the
express consent of the detained accused.
(b) When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence though his whereabouts
are known, the court shall provisionally dismiss the
action with the express consent of the detained
accused provided:
(1) the hearing in the case has been previously
twice postponed due to the non-appearance of
the essential witness and both the witness and
the offended party, if they are two different
persons, have been given notice of the setting
of the case for third hearing, which notice
contains a warning that the case would be
dismissed if the essential witness continues to
be absent; and
(2) there is proof of service of the pertinent
notices of hearings or subpoenas upon the
essential witness and the offended party at
their last known postal or e-mail addresses or
mobile phone numbers (Sec. 10, A.M. No. 12-
11-2-SC, 2014).
C. Mental incompetence or physical inability
of the accused to stand trial
D. Information dismissed upon motion of the
prosecutor

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And thereafter a charge is filed against the Public Attorney’s Duties Where Accused Is
accused for the same offense, any period of delay Imprisoned
from the date the charge was dismissed to the If the public attorney assigned to defend a person
date the time limitation would commence to run as charged with a crime knows that the latter is
to the subsequent charge had there been no preventively detained, either because he is
previous charge. charged with a bailable crime but has NO means
to post bail or is charged with a non-bailable crime,
E. Accused is joined for trial with a co- or, is serving a term of imprisonment in any penal
accused institution, it shall be his duty to do the following:
When applicable: 1. Promptly obtain his presence for trial or give
1. Court has not acquired jurisdiction over co- notice to person having custody to advise the
accused, or prisoner of his right to demand trial
2. Co-accused’s trial has not run and no motion 2. If the prisoner demands trial, the custodian
for separate trial has been granted shall notify the lawyer of such demand
3. Upon receipt of notice, public attorney shall
F. Continuance obtain presence of the prisoner for trial; and
Granting of postponement by the court is 4. The custodian shall make the accused
discretionary. available for trial upon receipt of such notice
(Rule 119, Sec. 7).
Factors:
REASONABLE NOT JUSTIFIED BY Grounds and Sanctions
If the private counsel for the accused, the public
• If failure to grant a • Congestion of court’s attorney, or the prosecutor:
continuance would dockets 1. Knowingly allows the case to be set for trial
likely make a • Lack of diligent without disclosing that a necessary witness
continuation of such preparation would be unavailable
proceeding • Failure to obtain 2. Files a frivolous motion (and without merit)
impossible or result witness for solely for delay;
to miscarriage of prosecution 3. Makes a false statement to obtain continuance;
justice OR
• Case is novel, 4. Willfully fails to proceed to trial without
unusual and justification (Rule 119, Sec. 8).
complex, due to the
number of accused Then the court may punish such counsel, attorney,
or nature of the or prosecutor, as follows:
prosecution PERSON SANCTIONS
Private • Max fine of P20,000
defense • Criminal sanctions if any
Time Limit Following Order for New Trial
counsel
Counsel • Max fine of P5,000
General Rule: Trial shall commence within 30
de oficio, • Criminal sanctions if any
days from notice of the new trial order
PAO or
prosecutor
Exception/s: Within 180 days if:
Defense • Denial of the right to practice
1. Period impractical due to unavailability of
witness counsel or before the court trying the case
2. Other factors (Rule 119, Sec. 5). prosecutor for a max of 30 days
• Criminal sanctions if any

The Modes of Discovery under Rules 23 to 29 do

not apply to criminal procedure. The applicable

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provision is Sections 12 and 13 of Rule 119. (Go
v. People, G.R. No. 185527, 2014)
Note: In People v. Sergio, the court ruled that
extraordinary factual circumstances surrounding
the case, where the witness Mary Jane Veloso is
currently imprisoned in another country and
awaiting execution by firing squad, warrant the
resort to Rule 25 of the Rules of Court allowing
deposition by written interrogatories.(People v.
Sergio, G.R. No. 240053, 2019)
Note: The right to counsel attaches upon the start
of the custodial investigation, i.e., when the
investigating officer starts to ask questions to elicit
information and/or confessions or admissions from
the accused. Custodial investigation starts when
the police investigation is no longer a general
inquiry into an unsolved crime but has begun to
focus on a particular suspect taken into custody by
the police who starts the interrogation and
propounds questions to the person to elicit
incriminating statements. Police line-up is not part
of the custodial investigation; hence, the right to
counsel guaranteed by the Constitution cannot yet
be invoked at this stage. (People v. Pepino, G.R.
No. 174471, 2016)
Note: In the case of Ibanez v. People, since the
beginning of the proceedings in the trial court until
the filing of the petition before the Supreme Court,
three counsel de oficio were appointed to
represent the accused. Their counsel de oficio
actively participated in the proceedings before the
trial court including the direct and cross-
examination of the witnesses. The accused were
duly represented by a counsel de oficio all
throughout the proceedings except for one hearing
when their court appointed lawyer was absent.
Going by the records, there was no indication that
any of the counsel de oficio had been negligent in
protecting the accused's interests. The counsel de
oficio kept on attending the trial court hearings in
representation of the accused despite the latter's
unjustified absences. The Court was not
persuaded that the absence of the counsel de
oficio in one of the hearings of amounts to a denial
of right to counsel. Nor does such absence warrant
the nullification of the entire trial court proceedings
REMEDIAL LAW
and the eventual invalidation of its ruling. (Ibanez
v. People, G.R. No. 190798, 2016)
1. INSTANCES WHEN PRESENCE OF
ACCUSED IS REQUIRED BY LAW
Accused is required to be present during:
1. At arraignment and plea, whether of innocence
or of guilt;
2. Whenever required by the court for purposes of
identification; and at
3. Promulgation of sentence.
Exception: In light offenses, when the accused
may appear by counsel or representative.
(People v. De Grano, G.R. No. 167710, June 5,
2009)
Note: The constitutional right of an accused
against self-incrimination proscribes the use of
physical or moral compulsion to extort
communications from the accused and not the
inclusion of his body in evidence when it may be
material. Thus, cases where non-testimonial
compulsion has been allowed reveal that the
pieces of evidence obtained must be material to
the principal cause of the arrest.
In one case, since the urine sample for drug
testing is immaterial to the charge of extortion,
there is a violation against right to self-
incrimination. The evidence is inadmissible. (Dela
Cruz v. People, G.R. No. 200748, 2014)
2. REQUISITE BEFORE TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE
OF WITNESS
Requisites before trial can be suspended on
account of absence of witness
1. Witness is essential
2. The party who applies has been guilty of no
neglect
3. The witnesses can be had at the time to which
the trial is deferred and incidentally that no
similar evidence could be obtained
4. An affidavit showing the existence of the
above circumstances must be filed.
NOTE: This has been qualified by the
aforementioned rules on provisional dismissal.
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Bail to Secure Appearance of Material Witness However Go v. People is not applicable when the
When the court is satisfied, upon proof or oath, witness of the prosecution is currently imprisoned
that a material witness will not testify when in another country, sentenced to death and is only
required, it may, upon motion of either party: awaiting execution by firing squad. The
1. Order witness to post bail extraordinary factual circumstances surrounding
2. If witness refuses to post bail, court shall the case warrant the resort to Rule 23 of the Rules
commit him to prison until he complies or of Court allowing deposition by written
testifies (Rule 119, Sec. 14). interrogatories. (People v. Sergio, G.R. No.
240053, 2019)
Examination of Witness Before Trial
One-Day Examination of Witness
FOR THE
FOR THE ACCUSED The court shall strictly adhere to the rule that a
PROSECUTION
witness has to be fully examined in one (1) day
GROUNDS / WITNESS IS: (A.M. No. 15-06-10-SC, Revised Guidelines for
• Sick, infirm or Continuous Trial in Criminal Cases)
unavailable
• Resides more than Applicability of Judicial Affidavit Rule in
• Sick, infirm or Criminal Cases
100km from the
unavailable The Judicial Affidavit Rule shall apply to all
place where the
• About to depart from criminal actions:
hearing is to be
the PH with no 1. Where the maximum of the imposable penalty
conducted and has
definite date of does not exceed six years;
no means to attend
return NOTE: Under the Revised Guidelines for
the same
• Other similar Continuous Trial, in criminal cases where the
circumstances demeanor of the witness is not essential in
EXAMINATION BEFORE WHOM determining the credibility of said witness, who
will testify on the authenticity, due execution
• Any judge in the PH and the contents of public documents and
• Any lawyer good reports, and in criminal cases that are
standing designated • Before the court or transactional in character, such as falsification,
by the judge judge where the malversation, estafa, or other crimes where the
• An inferior court if case is pending culpability or innocence of the accused can be
ordered by a established through documents, the
superior court testimonies of the witnesses shall be the duly
subscribed written statements given to law
Nowhere in the said rule (119) permits the taking enforcement or peace officers or the affidavits
of deposition (for the prosecution) outside the or counter-affidavits submitted before the
Philippines whether the deponent is sick or not. investigating prosecutor, and if such are not
Certainly, to take the deposition of the prosecution available, testimonies shall be in the form of
witness elsewhere and not before the very same judicial affidavits, subject to additional direct
court where the case is pending would not only and cross-examination questions (Sec. 11 (b),
deprive a detained accused of his right to attend A.M. No. 15-06-10-SC).
the proceedings but also deprive the trial judge of 2. Where the accused agrees to the use of judicial
the opportunity to observe the prosecution affidavits, irrespective of the penalty involved;
witness' deportment and properly assess his or
credibility, which is especially intolerable when the 3. With respect to the civil aspect of the actions,
witness' testimony is crucial to the prosecution's whatever the penalties involved are. (A.M. NO.
case against the accused. (Go v. People, G.R No. 12-8-8-SC Judicial Affidavit Rule, §9)
185527, 2012)

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Order of Trial When Mistake Has Been Made in Charging the

1. Prosecution shall present evidence to prove Proper Offense
the charge and, in the proper case, the civil When accused cannot be convicted of the offense
liability. charged or any other offense included therein –
2. Accused may present evidence to prove his 1. Accused shall not be discharged if there
defense and damages, if any, arising from the appears good cause to detain him
issuance of a provisional remedy in the case. 2. Court shall:
3. Prosecution and defense may, in that order, a. Commit the accused to answer for the
present rebuttal and sur-rebuttal evidence proper offense; and
unless the court, in furtherance of justice, b. Dismiss original case upon filing of proper
permits them to present additional evidence information (Rule 119, Sec.19).
bearing upon the main issue.
4. Upon admission of the evidence of the parties, Exclusion of the Public
the case shall be deemed submitted for Judge may exclude the public from the
decision unless the court directs them to argue courtroom/trial:
orally or to submit written memoranda (Rule MOTU PROPIO MOTION OF THE
119, Sec.11). ACCUSED

The order of trial MAY be modified if the accused
admits the acts charged but interposes lawful
defenses. Hence, it is discretionary on the RTC to
order the modification. Further, a Motion to
Reverse Order of Trial is interlocutory and hence
not appealable (People v. Marcial, G.R. Nos
152864-65, 2006).
In cases under Summary Procedure, affidavits
submitted by the parties shall constitute the direct
testimonies of the witnesses who executed it. The
witness who testified may be subject to cross-
examination, redirect, or re-cross-examination.
Should the affiant fail to testify, his affidavit shall
not be considered as competent evidence for the
party presenting the affidavit, but the adverse party
may utilize his affidavit for any admissible purpose.
(Revised Rule on Summary Procedure, §15)
Note: When the accused admits the act or
omission charged in the complaint or information
but interposes a lawful defense, the order of trial
may be modified.
Lack of Formal Offer of Evidence During Trial
Documents which may have been identified and
marked as exhibits during pre-trial or trial but
which were not formally offered in evidence cannot
in any manner be treated as evidence. (Heirs of
Pasag v. Parocha, G.R. No. 155483, April 27,
2007).
When evidence to be May exclude the public
produced is offensive to except court personnel
decency or public and the counsel of the
morals parties
(Rule 119, Sec.21).
Note: The Rule on Examination of a Child
Witness (A.M. NO. 004-07-SC) provides that:
When a child testifies, the court may order the
exclusion from the courtroom of all persons,
including members of the press, who do not have
a direct interest in the case.
In making its order, the court shall consider the
developmental level of the child, the nature of the
crime, the nature of his testimony regarding the
crime, his relationship to the accused and to
persons attending the trial, his desires, and the
interests of his parents or legal guardian.
3. TRIAL IN ABSENTIA
An accused need not always be present in every
hearing although it is his right to be present if he
so desires from arraignment to the rendition of the
judgment.
Requisites of a Trial in Absentia
1. Accused has already been arraigned
2. Accused has been duly notified of the trial or
hearings

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3. Absence of the accused is unjustified
(Bernardo v. People, G.R. No. 166980
April 4, 2007)
Note: While the right to be present may be waived
like any other right, the rule should not be taken to
mean that the accused may, as a rule, be tried in
absence (Riano 2016 commentary, no case cited).
Effects of trial in absentia
The accused waives the right to present evidence
and cross-examine the witnesses against him.
This does not mean, however, that the prosecution
is deprived of the right to require the presence of
the accused for purposes of identification by the
witnesses, except where he unqualifiedly admits in
open court after arraignment that he is the person
named as defendant in the case.
4. REMEDY WHEN ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD
The information may be dismissed on the motion
of the accused on the ground of denial of speedy
trial (sec. 9, Rule 117).
Note: The dismissal shall be subject to the rules
on double jeopardy.
Accused has the burden of proving the motion
BUT the prosecution has the burden of going
forward with the evidence to establish the
exclusion of time.
Substantial compliance with the time limitation
prescribed by the law for the resolution of the case
by the prosecutor is part of the procedural due
process guaranteed by the Constitution. Not only
under the broad umbrella of the due process
clause, but under the constitutional guarantee of
“speedy disposition” of cases as embodied in
Section 16 of the Bill of Rights, the inordinate delay
is violative of the petitioner's constitutional rights.
(Tatad v. Sandiganbayan, G.R. No. 72335-39,
1988)
Failure of the accused to move for dismissal prior
to trial is a waiver of the right to dismiss. Accused
was well aware of the case and proceedings
against him, and while the conduct of the
REMEDIAL LAW
investigation and approval of the resolution were
already in delay, he remained indifferent with the
passage of time. Thus, accused is deemed to have
waived his right. (Republic v. Sandiganbayan
(Special Second Division) G.R. No. 231144, 2020)
5. REQUISITES FOR DISCHARGE OF
ACCUSED TO BECOME A STATE WITNESS
State Witness
One of two or more persons jointly charged with
the commission of a crime but who is discharged
with his consent as such accused so that he may
be a witness for the State (PP v. Ferrer, 1996).
Requisites
For an accused to be discharged to be a state
witness, the following elements must concur:
1. There is absolute necessity for the testimony of
the accused whose discharge is requested
Note: Absolute necessity exists for the
testimony of an accused sought to be
discharged when he or she alone has
knowledge of the crime. In more concrete
terms, necessity is not there when the
testimony would simply corroborate or
otherwise strengthen the prosecution’s
evidence. (Jimenez v. People, G.R. No.
209195, 2014)
2. No other direct evidence available for the
prosecution
3. Testimony of said accused can be substantially
corroborated in its material points
The rules require that the testimony of the
accused sought to be discharged be
substantially corroborated in its material points,
and not on all points. (Jimenez v. People, G.R.
No. 209195, 2014)
4. Accused does not appear to be the most guilty;
AND
Note: By jurisprudence, "most guilty" refers to
the highest degree of culpability in terms of
participation in the commission of the offense
and does not necessarily mean the severity of
the penalty imposed. While all the accused
may be given the same penalty by reason of
conspiracy, yet one may be considered to have
lesser or the least guilt taking into account his
degree of participation in the commission of the
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offense. (Jimenez v. People, G.R. No. 209195, 4. Immunity for any person who provides
2014) information to the Presidential Commission on
5. Accused has never been convicted of a crime Good Governance (PCGG) (EO 14-A);
involving moral turpitude (Rule 119, Sec. 17). 5. Immunity under the comprehensive Dangerous
Drugs Act (RA 9165);
Two Types of Immunity 6. Immunity under the Human Security Act (RA
TRANSACTIONAL USE-AND- 9372).
IMMUNITY DERIVATIVE-USE
IMMUNITY Distinctions: Discharge as State Witness
under Rules of Court versus R.A. No. 6981
Witness can no longer Witness is only RULES OF COURT R.A. NO. 6981
be prosecuted for any assured that his or her
offense whatsoever particular testimony Who may be a State Who may be a State
arising out of the act or and evidence derived Witness: Only a Witness: Any person
transaction from it will not be used qualified accused may who has participated
against him or her in a be admitted as a State in the commission of a
subsequent Witness crime and desires to
prosecution be a State Witness. He
(Mapa v. Sandiganbayan, G.R. No. 100295 April need not be an
26, 1994) accused.

Immunity Granted Immunity Granted

6. EFFECTS OF DISCHARGE OF ACCUSED
by: Court by: DOJ
AS STATE WITNESS
When motion is filed: When application is
General Rule The prosecution, filed: The person may
1. Discharge of accused operates as an acquittal before resting its case, apply at any time with
and bar to further prosecution for the same should file a motion to the DOJ (Sec. 3, R.A.
offense (Sec. 18, Rule 119); discharge the accused No. 6981)
2. Evidence adduced in support of the discharge as state witness with
shall automatically form part of the trial (Sec. the accused’s
17, Rule 119); consent.
3. If the court denies the motion to discharge, his
The prosecution
sworn statement shall be inadmissible in
should present
evidence (Sec. 17, Rule 119).
evidence and the
sworn statement of the
Exception
proposed state
1. When the accused fails or refuses to testify
witness.
against his co-accused in accordance with his
sworn statement constituting the basis of his Requirements: Requirements:
discharge (Sec. 18, Rule 119); See above discussion The enumeration is
the same as in the
Other Modes of Discharging the Accused as Unlike in R.A. No. Rules of Court, but
State Witness 6981, the Rules of there is an additional
1. Witness Protection Program (RA 6981); Court do not impose a requirement:
2. Granted by the Ombudsman (Sec. 17, RA qualification as to the
6770); kind of felonies The offense in which
3. Immunity for givers of bribes and other gifts and his testimony will be
to their accomplices in graft cases against used is a grave felony
public officers (PD 749); under the RPC or its

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equivalent in special certiorari under Rule 65. (People v.

laws Sandiganbayan, G.R. No. 197953, 2015)

It is doctrinal that the situations in which the writ of

certiorari may issue should not be limited. Thus,
notwithstanding the interlocutory character and
Effects: Effects: effect of the denial of the demurrers to evidence,
Unless the accused RA 6891 DOES NOT the petitioners as the accused could avail
fails or refuses to provide for acquittal as themselves of the remedy of certiorari when the
testify against his co- an effect. denial was tainted with grave abuse of discretion.
accused in (Arroyo v. People, G.R. No. 220598, 2016; Aguas
accordance with his Sec. 12 merely states v. Sandiganbayan, G.R. 220953, 2016)
sworn statement that the Court shall
constituting the basis order the discharge When Prosecution Has Rested Its Case
for his discharge, the and exclusion of the To conclude the case for the prosecution, the rules
discharge shall said accused from the require that there must have been a prior formal
operate as: information. He is offer of evidence, hence a demurrer filed before
1. An acquittal on the granted immunity from then is premature. (Valencia v. Sandiganbayan,
case; and criminal prosecution G.R. No. 165996, 2005)
2. A bar to future for the offense or
prosecution for the offenses in which his The prosecution should complete the presentation
same offense testimony will be given or offer of evidence. To grant a demurrer prior to
or used. the complete presentation of evidence by the
prosecution would be a denial of due process.
7. DEMURRER TO EVIDENCE
Effect of Grant of Demurrer
A motion to dismiss filed by the accused after the It has long been settled that the grant of a
prosecution has rested its case; the grounds being demurrer is tantamount to an acquittal. An
insufficiency of the evidence of the prosecution. acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of its
The Court’s task is to ascertain if there is acquittal. (People v. Lagos, G.R. No. 184658,
competent or sufficient evidence to establish a March 6, 2013)
prima facie case to sustain the indictment or
support a verdict of guilt. (People v. An accused who files a demurrer to evidence has
Sandiganbayan, G.R. No. 197953, 2015) not yet adduced evidence on either the criminal or
civil aspects of the case. If granted, the accused is
Denial of Leave of Court Not Appealable acquitted and still has the right to submit evidence
An order denying the motion for leave of court to against the civil liability imposed. (Salazar v.
file a demurer cannot be reviewed by appeal or by People, et al., G.R. No. 151931, 2003)
certiorari before judgment for it is merely an
interlocutory order. (People v. Laguio, G.R. No. Effect of Denial of Demurrer
128587, 2007) WITH LEAVE OF WITHOUT LEAVE OF
COURT COURT
Appeal of a denial of demurrer
In criminal cases, the grant of a demurrer amounts Accused may still Accused waives the
to an acquittal, and the dismissal order may not be adduce evidence in his right to present
appealed as this would place the accused in defense evidence and submits
double jeopardy. Although the dismissal order is the case for judgment
not subject to appeal, it may be reviewed through (Rule 119, Sec. 23).

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Demurrer to Evidence in a Civil Case and further evidence

Demurrer to Evidence in a Criminal Case should be
CIVIL CASE CRIMINAL CASE terminated with 30
Based on plaintiff’s Predicated upon days from the
failure to prove his insufficiency of issuance of the
entitlement to relief evidence order (Cabarles v.
Requires no prior May be filed with or Maceda, G.R.
leave of court without leave of court 161330, February
Defendant may still Accused may adduce 20, 2007).
adduce evidence if evidence only if the
denied demurrer was filed 8. GUIDELINES ON CONTINUOUS TRIAL
with leave of court
Plaintiff may appeal if No appeal if granted a. Applicability
granted, and if
reversed, defendant General Rule: It shall apply to all newly-filed
is deemed to have criminal cases, including those governed by
waived his right to Special Laws and Rules, in the First and Second
present his evidence Level Courts, the Sandiganbayan and the Court of
It is the defendant The court may, in its Tax Appeals as of effectivity date. The Revised
who invokes a own initiative, dismiss Guidelines shall also apply to pending criminal
demurrer by moving the action after giving cases with respect to the remainder of the
for the dismissal of the prosecution an proceedings.
the case. The court opportunity to be
does not do so in its hear. Exception: Unless otherwise specified, it shall not
own initiative. apply to criminal cases filed under the Rules on
Summary Procedure.
Reopening of the Proceedings
The proceedings may be reopened to prevent b. Prohibited and Meritorious Motions
miscarriage of justice –
Prohibited Motions
WHEN HOW It shall be denied outright before arraignment
without need of comment/opposition.
Before the finality of Either:
judgment of the 1. Court motu propio,
The following motions are prohibited:
conviction, and the or
1. Motions for judicial determination of probable
following requirements 2. Upon motion
cause
are met:
2. Motion for preliminary investigation if filed
beyond the five (5)-day reglementary period in
1. Judgment is issued
inquest proceedings under Sec. 6, Rule 112, or
by the judge on his
when required under Sec. 8, Rule 112, or in
own initiative or
inquest proceedings where accused failed to
upon motion;
participate despite due notice.
2. Order is issued only
3. Motion for reinvestigation of the prosecutor
after a hearing is
when the motion is filed (1) without prior leave
conducted;
of court; (2) when preliminary investigation is
3. Order intends to
not required under Sec. 8 Rule 112, and when
prevent a
the preliminary investigation is required and
miscarriage of
has been conducted, the grounds not being
justice;
meritorious (i.e. credibility, admissibility of
4. The presentation of
evidence, innocence of accused, lack of due
additional and/or
process even when notified, etc.)

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4. Motion to quash information when the grounds
stated are not in Sec. 3 Rule 117
5. Motion for bill of particulars that does not
conform to Sec. 9, Rule 116
6. Motion to suspend the arraignment If motion is
based on grounds not stated in Sec. 11, Rule
116
7. Petition to suspend the criminal action on the
ground of prejudicial question and no civil case
has been filed pursuant to Sec. 7, Rule 111
Meritorious Motions
Except those already covered by the Revised
Guidelines, meritorious motions are those that
allege plausible grounds supported by relevant
documents and/or competent evidence, such as:
1. Motion to withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused originally
charged therein filed as a result of
reinvestigation, reconsideration, and review;
2. Motion to quash warrant of arrest
3. Motion to suspend arraignment on the ground
of unsound mental condition under Sec. 11 (a),
Rule 116
4. Motion to quash information on the grounds
that the facts do not constitute an offense, lack
of jurisdiction, extinction of criminal action or
liability, or double jeopardy under Sec. 3, par.
(a), (b), (g), and (i), Rule 117
5. Motion to discharge accused if the accused is
a state witness the motion shall be submitted
for resolution from the termination of the
hearing, and be resolved within a non-
extendible period of ten (10) calendar days
thereafter under Sec. 17, Rule 119
6. Motion to quash search warrant under Sec. 14,
Rule 126, or motion to suppress evidence; and
7. Motion to dismiss on the ground that the
criminal case is a Strategic Law Suit against
Public Participation (SLAPP) under Rule 6 of
the Rules of Procedure for Environmental
Cases.
The comments of adverse parties shall be filed
strictly within a non-extendible period of 10
calendar days from notice, and resolved by the
court within a non-extendible period of 10 calendar
days after the expiration of the period, with or
without comment. The court, at its discretion, may
REMEDIAL LAW
set a hearing within 10 calendar days from the
expiration of period to file comment. The case shall
be deemed submitted for resolution after
termination of the hearing, and resolved within 10
calendar days. Reply and memorandum need not
be submitted.
In case of a motion to discharge accused as state
witness under Sec. 17, Rule 119, where the
prosecution is required to present evidence in
support thereof, such motion shall be submitted for
resolution from the termination of the hearing, and
shall be resolved within a non-extendible period of
10 calendar days thereafter.
The Motion for Reconsideration of the resolution of
a meritorious motion shall be filed within a non-
extendible period of 5 calendar days from the
receipt of resolution, and the adverse party is
given 5 calendar days from the receipt of the
motion to submit comment. The court shall resolve
the motion for reconsideration within a non-
extendible period of 5 days from the expiration to
submit comment.
Motions that do not conform to the above
requirements shall be considered unmeritorious
and shall be denied outright.
c. Arraignment and Pre-trial
Schedule of Arraignment and Pre-Trial for a
detained accused
Pre-Trial is set ten (10) days from the Court’s
receipt of the case. It should be set in the
Commitment Order.
Schedule of Arraignment and Pre-Trial for a
non-detained accused
Pre-Trial is set thirty (30) days from the Court’s
receipt of the case. It should be set in the Order of
Approval of Bail.
Notice of Arraignment and Pre-Trial
Notice must be sent to: the accused, his/her
counsel, private complainant/complaining law
enforcement agent, public prosecutor and
witnesses whose names appear in the Information
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Waiver of Reading of the Information
The Court may allow the waiver after a personal
examination of the accused and upon the full
understanding and consent of the accused and his
counsel.
The Court shall explain the waiver in the
language/dialect known to the accused to ensure
full understanding.
Arraignment Proper
1. Plea Bargaining EXCEPT in Drug Cases – If
the accused enters a plea of guilty to lesser
offense, plea-bargaining IMMEDIATELY
proceeds, provided the private offended party
in private crimes, or arresting officer in
victimless crimes is present to consent with the
conformity of the Public Prosecutor. Judgment
shall be immediately rendered
2. Plea of Guilty to the Crime Charged in the
Information – Judgment shall be immediately
rendered, except in cases involving capital
punishment.
3. Where NO Plea Bargaining or Plea of Guilty
Takes Place – The Court shall immediately
proceed with the arraignment and pre-trial
Schedule of Trial Dates
The schedule of trial dates shall be continuous and
within the period provided in the Regular
Rules/Special Rules. It may be shortened
depending on the number of witnesses to be
presented.
Arraignment and Preliminary Conference of
Mediatable Cases subject to the Rule on
Summary Procedure
The arraignment and preliminary conference shall
be simultaneously held, and all the matters
required under Sec. 14 of the Rule on Summary
Procedure shall be taken up in the Preliminary
Conference.
1. If the accused pleads guilty to the crime
charged, the above rule for “Plea of Guilty to
the Crime Charged in the Information” will be
followed
REMEDIAL LAW
2. If the accused pleads guilty to a lesser offense,
the above rule for “Plea Bargaining except in
Drug Cases” will be followed
3. If the accused does not enter a plea of guilty,
arraignment and preliminary conference will
immediately proceed, and the case will be
referred to mediation
Conduct of Pre-Trial
1. Absence of parties – The Court shall proceed
with pre-trial even in the absence of the
accused or the private complainant, provided
they were duly notified, as long as counsel for
the accused and the public prosecutor are
present.
2. Stipulations – Proposals for stipulations shall
be done with the active participation of the
Court and not left alone to the counsels.
3. Marking of evidence – The documentary
evidence of the prosecution and the accused
shall be marked.
4. Pre-trial Order – The pre-trial Order shall
immediately be served upon the parties and
counsel on the same day after termination of
Pre-Trial.
5. Compliance with Rules – Courts must strictly
comply with the Guidelines to be observed in
the Conduct of Pre-Trial under A.M. No. 03-1-
09-SC.
d. Trial; Memoranda
The Court shall encourage the following:
1. For the Accused – Avail of Secs. 12 & 13, Rule
119 on the application for examination of
witness for the accused before trial;
2. For the Prosecution – Sec. 15, Rule 119 on the
conditional examination of witness for the
prosecution.
Absence of counsel de parte
The hearing shall proceed upon the appointment
by the Court of a counsel de officio
Offer of evidence
The offer of evidence, the comment/objection
thereto, and the Court’s ruling shall be made
orally. A party is required to make the oral offer on
the same day as the presentation of the last
witness, and the opposing party is required to
immediately interpose any comment or objection.
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The Court shall make a ruling on the offer in open
court.
The counsel shall cite the specific page numbers
in the court record where the exhibits being offered
are found. The Court shall ensure the exhibits
offered are submitted to it on the same day as the
offer. If the exhibits are not attached to the record,
the party making the offer must submit the same
during the offer in open court.
Demurrer to evidence
1. Demurrer to Evidence. — After the prosecution
has rested its case, the court shall inquire from
the accused if he/she desires to move for leave
of court to file a demurrer to evidence, or to
proceed with the presentation of his/her
evidence.
2. If the accused orally moves for leave of court to
file a demurrer to evidence, the court shall
orally resolve the same. If the motion for leave
is denied, the court shall issue an order for the
accused to present and terminate his/her
evidence on the dates previously scheduled
and agreed upon, and to orally offer and rest
his/her case on the day his/her last witness is
presented.
3. If despite the denial of the motion for leave, the
accused insists on filing the demurrer to
evidence, the previously scheduled dates for
the accused to present evidence shall be
cancelled.
4. The demurrer to evidence shall be filed within
a non-extendible period of 10 calendar days
from the date leave of court is granted, and the
corresponding comment shall be filed within a
non-extendible period of 10 calendar days
counted from date of receipt of the demurrer to
evidence. The demurrer shall be resolved by
the court within a non-extendible period of 30
calendar days from date of the filing of the
comment or lapse of the 10-day period to file
the same.
If the motion for leave of court to file demurrer to
evidence is granted, and the subsequent demurrer
to evidence is denied, the accused shall likewise
present and terminate his/her evidence (one day
apart, morning and afternoon) and shall orally offer
and rest his/her case on the day his/her last
REMEDIAL LAW
witness is presented. The court shall rule on the
oral offer of evidence of the accused and the
comment or objection of the prosecution on the
same day of the offer. If the court denies the
motion to present rebuttal evidence because it is
no longer necessary, it shall consider the case
submitted for decision.
Presentation of Rebuttal and Sur-rebuttal
Evidence.
If the motion to present rebuttal evidence is
granted, the prosecution shall immediately
proceed with presentation after the accused rests
his/her case, and orally rest its case in rebuttal
after the presentation of the last rebuttal witness.
The accused shall immediately present sur-
rebuttal evidence, if any, and orally rest case in
sur-rebuttal after the presentation of the last sur-
rebuttal witness. Thereafter, the case will be
submitted for decision.
One-day examination of witness rule
The Court shall strictly adhere to the rule that a
witness has to be fully examined in 1 day.
Memoranda
The submission of memoranda is discretionary on
the part of the Court, which shall not exceed 25
pages, single spaced on legal size paper in size
14 font. The period to submit shall be non-
extendible and shall not suspend the period of
promulgation of the decision. The promulgation
shall proceed with or without the memoranda.
e. Promulgation
Schedule of promulgation
General Rule: The Court shall announce in open
court the order submitting the case for decision,
including the date of promulgation which shall not
be more than 90 days from the date the case is
submitted for decision.
Exception: If the case is covered by Special Rules
and other laws which provide for a shorter period.
Resolution of Motion for Reconsideration of
Judgment of Conviction of Motion for New
Trial
A motion for reconsideration of judgment of
conviction or motion for new trial under Rule 121
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shall be filed within 15 days from promulgation and
shall be resolved within a non-extendible period of
10 calendar days from submission of comment of
the prosecution. The court shall resolve the motion
within 10 days with or without comment of the
prosecution.
K. JUDGMENT
Judgment
It is the adjudication by the court that the accused
is guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil
liability, if any. (Rule 120, Sec. 1)
1. REQUISITES OF A JUDGMENT
Requisites of a judgment
1. Written in official language
2. Personally and directly prepared by the judge
and signed by him
3. Shall contain clearly and distinctly:
a. Statement of the facts
b. Law upon which it is based (Rule 120, Sec.
1)
The parties to a litigation should be informed of
how it was decided, with an explanation of factual
and legal reasons that led to the conclusions of the
trial court. A decision that does not clearly and
distinctly state the facts and the law on which it is
based leaves the parties in the dark as to how it
was reached and is precisely prejudicial to the
losing party, who is unable to pinpoint possible
errors of the court for review by a higher tribunal.
(Lumanog, et al. v. People, G.R. No. 182555,
2010)
The jurisdictional requirements before a judgment
may be validly rendered are jurisdiction over the
subject matter, the territory, and the person of the
accused. (Antiporda, Jr. v. Garchitorena, G.R. No.
133289, 1999)
2. CONTENTS OF JUDGMENT
Judgment of Conviction
1. Legal qualification of the offense constituted by
the acts committed by the accused
2. Aggravating and mitigating circumstances
REMEDIAL LAW
3. Participation of the accused whether as
principal, accomplice or accessory
4. Penalty imposed
5. Civil liability or damages, unless reserved or
waived (Rule 120, Sec. 2)
Judgment of Acquittal
1. State whether or not evidence of the
prosecution:
a. Absolutely failed to prove guilt
b. Merely failed to prove guilt beyond
reasonable doubt
2. In either case, judgment shall determine if the
act or omission from which the civil liability
might arise did not exist (Rule 120, Sec. 2).
A verdict of acquittal is immediately final. (People
v. Serrano, G.R. No. 135451, 1999)
Conditional and Alternative Penalties
The penalty imposed in a judgment cannot be
conditional, nor can it be in the alternative as, even
if the law provides for alternative penalties, the
court must choose and impose either of said
alternative penalties (US v. Chong Ting, 1912).
Award of Indemnity Despite Acquittal
Unless there is a clear showing that the act from
which the civil liability might arise did not exist, the
judgment must make a finding on the civil liability
of the accused in favor of the offended party (Sec.
2 (2), Rule 120).
When Two or More Offenses Contained in a
Single Information or Complaint
Accused may file a motion to quash.
If accused fails to object to it before trial, the
accused is deemed to have waived the defect and
the court may convict him of as many offenses as
charged and proved, and impose a penalty for
each offense. (Rule 120, Section 3)
While Sec. 13 of Rule 110 frowns upon multiple
offenses being charged in a single information, the
failure to raise this issue during arraignment
amounts to a waiver, and the objection can no
longer be raised on appeal. (Abalos v. People,
G.R. No. 136994, 2002)
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Judgment Rendered by Judge Who Did not
Hear the Case
The fact that the trial judge who rendered
judgment was not the one who had the occasion
to observe the demeanor of the witnesses during
trial, but merely relied in the records of the case,
does not render the judgment erroneous,
especially when the evidence on record is
sufficient to support its conclusion. (People v.
Alfredo, G.R. No. 188560, 2010)
Where the judge who penned the decision had
ceased to be a member of the judiciary without
said decision having been promulgated, and his
successor caused its promulgation to be made
thereafter, such judgment is null and void. A
decision penned by a judge during his incumbency
cannot be validly promulgated after his retirement.
When a judge retired all his authority to decide any
case, i.e., to write, sign and promulgate the
decision thereon also retired with him. (Nazareno
v. CA, et al, G.R. No. 111610, 2002)
Variance Doctrine
General Rule: The accused can be convicted of
an offense only when it is both charged and
proved.
Exception: When there is variance between the
crime charged and the crime proved, and the
offense as charged is included or necessarily
includes offense proved, the accused shall be
convicted of the offense proved which is included
in the offense charged, or of the offense charged
which is included in the offense proved. (People v.
Chi Chan Liu, GR No. 189272, 2015)
An offense charged necessarily includes the
offense proved when some essential elements of
the former, as alleged in the complaint or
information, constitute the latter.
An offense charged is necessarily included in the
offense proved when the essential ingredients of
the former constitute the latter.
If there is variance, the accused can only be
convicted of the lesser offense which is included in
REMEDIAL LAW
the graver offense. (People v. Pareja, G.R. No.
202122, 2014)
The mere fact that the evidence presented would
indicate a lesser offense outside the court’s
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it under
the allegations in the information (PP v. Ocaya,
1987).
3. PROMULGATION OF JUDGMENT;
INSTANCES OF PROMULGATION OF
JUDGMENT IN ABSENTIA
General Rule: The judgment must be read in the
presence of the accused and any judge of the
court in which it was rendered (Rule 120, Sec. 6).
Exception/s:
1. Judgment in light offenses
a. May be pronounced in the presence of the
accused’s counsel or representative
b. May be promulgated by the clerk of court if
the judge is absent or outside the province
or city
2. Judgment if accused is confined or detained in
another province or city
a. May be promulgated by the executive judge
of the RTC having jurisdiction over the place
of confinement or detention
b. Upon request of the court which rendered
judgment (Rule 120, Sec. 6).
Manner of Promulgation
Judgment is promulgated by filing the signed copy
thereof with the clerk of court who causes true
copies to be served upon the parties.
How Accused Is Notified of the Promulgation
Notice shall be given personally by the clerk of
court to the accused or to his bondsman or warden
and counsel
Notice shall be served at the accused’s last known
address if the latter:
1. Jumped bail; or
2. Escaped from prison (Rule 120, Sec. 6).
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If Accused Fails to Appear in the Promulgation

FOR ACQUITTAL FOR CONVICTION Absence of some of the accused during
Promulgation shall be made by: promulgation of judgment
1. Recording the judgment in the criminal If an accused that is part of multiple accused in one
docket; and case is absent at promulgation of judgment, and
2. Serving accused a copy thereof at his last such judgment is of conviction, he loses his
known address or thru his counsel remedies in law even if an appeal is perfected by
 If absence his co-accused, who was present, including his
without justifiable name (People v. De Grano, G.R. No. 167710,
cause, accused 2009).
shall lose all
remedies against Modification of Judgment
the judgment and A judgment of conviction may be modified or set
the court shall aside upon motion of the accused, before the
order his arrest judgment becomes final or before appeal is
 But within 15 days perfected. (Rule 120, Sec. 7).
from
promulgation, General Rule: Judgment should be rendered
accused may within 90 days from submission
surrender and file
a motion for leave Exceptions:
of court to avail of 1. It must be rendered within 30 days in cases
the remedies and under Summary Procedure
prove the reason 2. It must be rendered within 15 days in drug
of his absence. If cases
justified, he may
then avail of the Modification of Judgment vs. New Trial
remedies within MODIFICATION OF NEW TRIAL
15 days from JUDGMENT
notice No new hearings or Irregularities are
(Rule 120, Sec. 6) proceedings of any expunged from the
kind or change in the record and/or new
If the accused was duly notified, his absence is not record or evidence. A evidence is
a ground for the suspension of the promulgation. simple modification is introduced.
made on the basis of
If the judgment is for conviction and the failure to what is on record.
appear was without justifiable cause, the accused
shall lose the remedies available in the Rules of 4. WHEN DOES JUDGMENT BECOME
Court against the judgment. FINAL

General Rule: Judgment becomes final after:

Thus, it is incumbent upon the accused to appear
1. Lapse of period for appeal
on the scheduled date of promulgation, because it
2. Sentence partially or totally served
determines the availability of their possible
3. Accused waives in writing his right to appeal
remedies against the judgment of conviction.
4. Accused has applied for probation
When the accused fail to present themselves at
the promulgation of the judgment of conviction,
Exception: When the death penalty is imposed.
they lose the remedies of filing a motion for a new
trial or reconsideration (Rule 121) and an appeal
Youthful Offenders
from the judgment of conviction (Rule 122). (Jaylo
In case of youthful offenders, instead of
v. Sandiganbayan, G.R. Nos. 183152-54, 2015)
pronouncing a final judgment of conviction, the

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court should automatically suspend the sentence

and commit the minor to the DSWD or other
institution until he reaches the age of majority
(Sec. 38, Juvenile Justice and Welfare Act).
Exception/s:
1. If the offender has enjoyed a previous
suspension of sentence;
2. If the offender is convicted by a military tribunal;
A denied application for probation cannot be
appealed.
Appeal and Probation
General Rule: No application for probation shall
be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction (Sec. 1, RA 10707).

NOTE: Appeal and probation are mutually exclusive

1. Suspension of sentence can be availed of even remedies. Implicit in an application for probation is
if the child is already 18 years old or more but an admission of guilt (Almero v. PP, G.R. No.
not above 21 years old, at the time of the 188191, 2014).
pronouncement of guilt, without prejudice to the
availment of other benefits such as probation, Exception: When a judgment of conviction
if qualified, or adjustment of penalty, in interest imposing a non-probationable penalty is appealed
of justice. or reviewed, and such judgment is modified
2. The benefits of the suspended sentence shall through the imposition of a probationable penalty,
apply to one who is convicted of an offense the defendant shall be allowed to apply for
punishable by reclusion perpetua or life probation based on the modified decision before
imprisonment pursuant to the provisions of RA such decision becomes final (Sec. 1, RA 10707).
9346 prohibiting the imposition of the death
penalty and in lieu thereof, reclusion perpetua, When Should the Court Deny the Application
and after application of the privileged mitigating for Probation
circumstance of minority. 1. The offender is in need of correctional
3. If the child in conflict with the law reaches 18 treatment that can be provided most effectively
years of age while under suspended sentence, by his commitment to an institution.
the court shall determine whether to discharge 2. There is undue risk that during the period or
the child in accordance with the provisions of probation, the offender will commit another
Republic Act 9344, or to extend the suspended crime.
sentence for a maximum period of up to the 3. Probation will depreciate the seriousness of the
time the child reaches twenty-one (21) years of crime committed (Sec. 8, Probation Law).
age, or to order service of sentence (Sec. 48,
Rule on Juveniles in Conflict with the Law; A.M. SENTENCE PERIOD OF
No. 02-1-18-SC). IMPOSED PROBATION
Not more than 1 year Not more than 2 years
Probation
Probation is a mere privilege, and the grant is More than 1 year Not more than 6 years
discretionary upon the court.
Fine only, but At least equal to the
The offender should apply for probation after offender serves number of days of
conviction within the period for perfecting an subsidiary subsidiary
appeal. imprisonment imprisonment but not
more than twice such
An application for probation may no longer be filed period
once the defendant has already perfected an (Sec. 14, Probation Law).
appeal from the judgment of conviction.

Probation does not release civil liability.

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L. NEW TRIAL OR RECONSIDERATION Formal Requirements

New Trial or Reconsideration
At any time before a judgment of conviction
becomes final, the court may, on motion of the
accused or at its own instance but with the consent
of the accused, grant a new trial or reconsideration
(Rule 121, Sec. 1).
Period to file MNT or MR
It should be filed within 15 days from notice of
judgment or final order.
If an appeal has already been perfected, a motion
for new trial on the ground of newly discovered
evidence may be filed in the appellate court.
1. In writing;
2. Filed in court;
3. States the grounds on which it is based;
4. If MNT is based on newly discovered
evidence, it must be supported by the
affidavits of the witness by whom such
evidence is expected to be given or duly
authenticated copies of documents which it is
proposed to introduce in evidence. (Sec. 4,
Rule 121).
Note: The defect of lack of affidavit of merit may
be cured by the testimony under oath of the
defendant at the hearing of the motion. (Paredes
v. Borja, 1961).

Motion for Reconsideration; New Trial; and Notice of the MNT or MR shall be given to the
Reopening of the Case prosecutor, (Sec. 4, Rule 121)
MOTION FOR NEW TRIAL REOPENING
RECONSI- OF THE CASE 1. GROUNDS FOR NEW TRIAL
DERATION
To reconsider To permit the reception of new A motion for new trial may be filed upon any of
its findings of evidence and extend the the following grounds:
law proceedings 1. Errors of law during trial
Filed after judgment is rendered Made by the 2. Irregularities prejudicial to the substantial rights
but before the finality thereof court before of the accused during trial
judgment is 3. New and material evidence has been
discovered (Rule 121, Sec. 2)
rendered, in the
exercise of
sound The rule does not provide for a motion for new trial
discretion by the prosecution as the reopening of the case
would result in double jeopardy.
On motion of the accused or on May be at the
motion of the court but with the instance of 2. GROUNDS FOR RECONSIDERATION
consent of the accused either party or
by the court A motion for reconsideration may be filed upon
motu proprio, any of the following grounds:
with a hearing 1. Errors of law.
in either case, 2. Errors of fact in the judgment (Rule 121, Sec.
for the purpose 3)
of presenting
additional Note: Requires no further proceedings
evidence

Effect of Filing of Motion for New Trial or

Reconsideration
The filing of either motion interrupts the period for
perfecting an appeal from the time of its filing until
notice of the order overruling the motion shall have
been served upon the accused or his attorney.

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3. REQUISITES BEFORE A NEW TRIAL MAY

BE GRANTED ON GROUND OF NEWLY
DISCOVERED EVIDENCE
Elements of Newly Discovered Evidence
1. New evidence discovered after trial
2. It could not have been previously discovered
and produced at the trial even with reasonable
diligence
3. It is new and material evidence
4. If introduced and admitted, it would probably
change judgment (Ybiernas v. Tanco-
Gabaldon, G.R. No. 179825, 2011)
NOTE: Under the Revised Rules on Civil
Procedure, an MNT or MR shall be resolved its
receipt of the opposition thereto, or the period to
file such opposition (Rule 15, Sec. 5, A.M. No. 19-
10-20-SC). However, the court, in the exercise of
its discretion, call for a hearing (Rule 15, Sec. 6,
A.M. No. 19-10-20-SC). There is no ruling yet as
to whether or not the same shall apply in criminal
cases.
4. EFFECTS OF GRANTING A NEW TRIAL
OR RECONSIDERATION

Note: The Rules do not give an exact definition of GROUNDS OF GROUND OF

due diligence, and whether the movant has ERRORS OF LAW NEWLY-
exercised due diligence depends upon the OR DISCOVERED
particular circumstances of each case. IRREGULARITIES EVIDENCE
 Notice shall be given to the prosecutor
Nonetheless, it has been observed that the phrase  Judgment shall be set aside and vacated
is often equated with “reasonable promptness to  New judgment shall be rendered
avoid prejudice to the defendant.” In other words, accordingly
the concept of due diligence has both a time All the proceedings Evidence already
component and a good faith component. (People and evidence affected adduced shall stand
v. Chua, G.R. No. 196853, 2015) thereby shall be:
1. Set aside and Newly discovered and
A new trial may not be had on the basis of taken anew other evidence as the
evidence which was available during trial but was 2. The court, in the court may, in the
not presented due to its negligence. (People v. interest of justice, interest of justice,
Senit, G.R. No. 192914, 2016). may allow allow to be introduced
additional shall be taken and
When Hearing of the Motion is Required evidence considered together
A hearing shall be conducted when the motion for with evidence already
new trial calls for a resolution of a question of fact. in record
Court may hear evidence on the motion by Requires no further Supported by
affidavits or otherwise. (Rule 121, Section 5) proceeding affidavits of witnesses
or by authenticated
As correctly stated by the Office of the Special copies of documents
Prosecutor (OSP), Sec. 2 of Rule 37 and Sec. 4 of which are proposed to
Rule 121 should be read in conjunction with Sec. be introduced
5 of Rule 15 of the Rules of Court. (Rule 121, Sec. 6)

Basic is the rule that every motion must be set for
hearing by the movant except for those motions
which the court may act upon without prejudice to
the rights of the adverse party. The notice of
hearing must be addressed to all parties and must
specify the time and date of the hearing, with proof
of service. (Flores v. People, G.R. No. 181354,
2013)
Application Of The Neypes Rule In Criminal
Cases
The Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal
in the RTC, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration. (Yu v. Hon. Tatad, G.R. No.
170979, 2011)

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Recantation Who May Appeal

The public and formal withdrawal of a witness’
prior statement made under oath, in the presence General Rule: Any party may appeal from a
of the judge, and with the opportunity to cross- judgment or final order.
examine.
Exceptions:
General Rule: Recantation is not a ground for new 1. A party may not appeal if the accused will be
trial because it makes a mockery of the court and placed in double jeopardy (Rule 122, Sec. 1)
would place the investigation of truth at the mercy HENCE, the prosecution cannot appeal from a
of the unscrupulous witness. judgment of acquittal because a verdict of that
nature is immediately final and to try him on the
Exception: When the testimony is material, its merits, even in an appellate court, is to put him
recantation creates doubt of the guilt of the a second time in jeopardy for the same offense.
accused (De Guzman v. IAC, G.R. No. 69386. (Central Bank of the Phils. v. CA, G.R. No.
April 4, 1990). 41859, 1989)
2. If the judgment is for conviction and the
RECANTATION AFFIDAVIT OF accused fails to appear without justifiable
DESISTANTCE cause, he would use the remedy of appeal
A witness who The complainant states (Rule 120, Sec. 6)
previously gave a that he did not really
testimony subsequently intend to institute the Despite acquittal, however, either the offended
declares that his case and that he is no party or the accused may appeal, but only with
statements were not longer interested in respect to the civil aspect of the decision. Or, said
true testifying or prosecuting judgment of acquittal may be assailed through a
petition for certiorari under Rule 65 of the Rules of
Court showing that the lower court, in acquitting
the accused, committed not merely reversible
M. APPEAL errors of judgment, but also exercised grave abuse
of discretion amounting to lack or excess of
1. EFFECT OF AN APPEAL jurisdiction, or a denial of due process, thereby
rendering the assailed judgment null and void. If
Subject Matter for Review on Appeal
there is grave abuse of discretion, granting
In a criminal case, an appeal throws the whole
petitioner’s prayer is not tantamount to putting
case open for review, and it becomes the duty of
private respondents in double jeopardy. (AAA v.
the appellate court to correct such errors as may
CA, G.R. No. 183652, 2015)
be found in the judgment appealed from, whether
they are made the subject of the assignment of
The doctrine that "double jeopardy may not be
errors or not. (People v. Michael Lindo y Vergara,
invoked after trial" may apply only when the Court
G.R. No. 189818, 2010)
finds that the “criminal trial was a sham” because
the prosecution representing the sovereign people
Note: Accused’s release on parole does not affect
in the criminal case was denied due process. The
his appeal.
Court in People v. Bocar rationalized that the
"remand of the criminal case for further hearing
Not a Natural Right
and/or trial before the lower courts amounts
The right to appeal is not a natural right nor part of
merely to a continuation of the first jeopardy, and
due process but merely a statutory privilege and
does not expose the accused to a second
may be exercised only in the manner and in
jeopardy. (People v. Hon. Velasco, G.R. 127444,
accordance with the provisions of law. (Estrallado-
2000)
Mainar v. People, G.R. No. 184320, 2015)

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In the case of the People of the Philippines, only
the state, through its appellate counsel, the Office
of the Solicitor General, has the sole right and
authority to institute proceedings before the CA or
SC. (Carino v. De Castro, G.R. No. 176084, 2008)
Permissible appeal by the People
1. When the right of the offended parties to appeal
an order of the trial court which deprives them
of due process;
2. Where the information was quashed prior to
arraignment, the prosecution may appeal the
order sustaining the motion to quash because
before a plea is entered, no jeopardy attaches;
3. When the case was provisionally dismissed
with the express consent of the accused, the
same may be refilled by the fiscal without
violating the right against double jeopardy; or
4. When the trial court gravely abused its
discretion, as when it dismissed the case due
to non-appearance of a vital witness who was
not properly notified of the date of trial,
certiorari will lie because such a grave abuse of
discretion is tantamount to lack or excess of
jurisdiction.
Effect of Appeal by the Accused
If the accused appeals his conviction, he waives
the protection against double jeopardy and runs
the risk of being sentenced to a penalty higher
than that imposed by the trial court (Philippine
Rabbit Bus Lines v. PP, G.R. No. 147703, 2004).
Change of Theory on Appeal
Points of law, theories, issues and arguments not
adequately brought to the attention of the trial
court ordinarily will not be considered by a
reviewing court as they cannot be raised for the
first time on appeal because this would be
offensive to the basic rules of fair play, justice and
due process. (People v. Mamaril, G.R. No.
171980, 2010)
When Appeal is to be Taken
APPEAL OF A APPEAL OF AN
JUDGMENT ORDER
Must be perfected Must be perfected
within 15 days from within 15 days from
promulgation of the final notice of the final order
judgment
REMEDIAL LAW
Note: A party shall have a fresh period of 15 days
to file a notice of appeal to the RTC from receipt of
the order denying a motion for new trial or motion
for reconsideration. (Neypes vs. CA, G.R. No.
141524, 2005)
This applies in criminal cases under Rule 122,
Sec. 6 (Yu vs. Tatad, G.R. No. 170979, 2011)
Rules on Criminal and Civil Liability When
Accused Dies
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as
well as the civil liability based solely thereon.
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the
same may also be predicated on a source of
obligation other than delict.
a. Law;
b. Contracts;
c. Quasi-contracts; and
d. Quasi-delicts. (Civil Code, Art. 1157)
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery
therefor may be pursued but only by way of
filing a separate civil action and subject to Rule
111, Sec. 1.
This separate civil action may be enforced
either against the executor/administrator or the
estate of the accused, depending on the source
of obligation upon which the same is based as
explained above.
4. Finally, the private offended party need not fear
a forfeiture of his right to file this separate civil
action by prescription, in cases where during
the prosecution of the criminal action and prior
to its extinction, the private offended party
instituted together therewith the civil action. In
such case, the statute of limitations on the civil
liability is deemed interrupted during the
pendency of the criminal case, conformably
with provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on
a possible deprivation of right by prescription.
(People v. Lipata, G.R. No. 200302, 2016)
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Period Suspended Modes of Review

The period for appeal is suspended from the time
the motion for new trial or reconsideration is filed
up to the service to the accused or his counsel of
the notice of the order overruling the motion.
The Rules of Court recognizes 4 modes by which
the decision of the final order of the court may be
reviewed by a higher tribunal:
1. Ordinary appeal
2. Petition for review on certiorari (Rule 45)

APPEAL FROM DECISION OF APPEALTO HOW

Filing notice of appeal with the

MTC RTC MTC and serving copy of notice
to the adverse party
Filing a notice of appeal with the
RTC (original jurisdiction) CA RTC and serving copy of notice
to the adverse party
RTC (appellate jurisdiction) CA Petition for review under Rule 42
RTC (penalty imposed is
reclusion perpetua or life
imprisonment or where a lesser
penalty is imposed but for
offenses committed on the same Filing a notice of appeal with the
occasion or which arose out of CA RTC and serving copy of notice
the same occurrence that gave to the adverse party
rise to the more serious offense
for which death, reclusion
perpetua, or life imprisonment is
imposed)
Automatic review (no need for
RTC (death penalty imposed) CA
notice of appeal)
CA (imposes penalty other than
Petition for review on certiorari
death, reclusion perpetua, or life SC
under Rule 45
imprisonment)
CA (penalty imposed is reclusion Filing a notice of appeal with the
SC
perpetua, or life imprisonment) CA
Sandiganbayan (appellate
jurisdiction for offenses where
the imposable penalty is SC File a notice of appeal
reclusion perpetua or life
imprisonment)
Sandiganbayan (original
jurisdiction for offenses were File a notice of appeal (Sec. 13,
where the imposable penalty is SC Rule 124; Sec. 5, P.D. 1606 as
reclusion perpetua or life amended by RA 8429).
imprisonment)
Sandiganbayan (in all other Petition for review on certiorari
SC
cases) under Rule 45.
X

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2. WHERE TO APPEAL
Regional Trial Court
In cases decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court
Court of Appeals or the Supreme Court in the
proper cases provided by law
In cases decided by the Regional Trial Court
Supreme Court
In cases decided by the Court of Appeals, CTA En
Banc, and the Sandiganbayan.
3. HOW APPEAL TAKEN
Service of Notice of Appeal
General Rule: It should be served upon the
adverse party or his counsel by personal service.
Exception: If personal service of the copy of
notice of appeal cannot be made upon the adverse
party or his counsel, service may be done by
registered mail or substituted service (Rule 122,
Sec. 4).
The appellate court may, in its discretion, entertain
an appeal notwithstanding failure to give such
notice if the interests of justice so require (Rule
122, Sec. 5).
The fact that no copy of the notice of appeal is
served upon the adverse party is not fatal to the
perfection of the appeal as long as the notice of
appeal had been filed on time. (People v.
Villanueva, G.R. No. L-1876, 1966)
Withdrawal of Appeal in RTC (Rule 122, Sec. 12)
The appellant may withdraw his appeal filed in
MTC before the record has been forwarded to the
RTC
If the record has been forwarded, withdrawal may
only be allowed if:
1. A motion to withdraw is filed
2. Motion is filed before the RTC renders
judgment
REMEDIAL LAW
Appeal Not Mooted by Accused’s Release on
Parole
Appeal not mooted by accused-appellant’s
release on parole. Parole refers to the conditional
release of an offender from a correctional
institution after he serves the minimum term of his
prison sentence. Parole is not one of the modes of
totally extinguishing criminal liability under Article
89 of the RPC. (People v. Abesamis, G.R. No.
140985, 2007).
4. EFFECT OF APPEAL BY ANY OF
SEVERAL ACCUSED
An appeal taken by one or more of several
accused shall not affect those who did not appeal,
except insofar as the judgment of the appellate
court is favorable and applicable to him.
Appeal of the offended party of the civil aspect
shall not affect the criminal aspect of the judgment
or order appealed from.
Upon perfection of appeal, the execution of
judgment or final order appealed from shall be
stayed as to the appealing party (Rule 122, Sec.
11)
NOTE: In People v. Olivo (G.R. No. 177768,
2009), an accused has benefitted from the
acquittal of his co-accused despite the former’s
failure to appeal from the judgment.
5. GROUNDS FOR DISMISSAL OF APPEAL
1. Failure to serve and file the required number
of copies of his brief or within the time provided
by these Rules
2. Appellant escapes from prison or
confinement, jumps bail, or flees to a foreign
country during the pendency of the appeal;
3. Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by the Rules
4. Failure to file the notice of appeal or the record
on appeal within the period prescribed by the
Rules;
5. Failure of the appellant to pay docket and
other lawful fees;
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6. Unauthorized alterations, omissions, or
additions in the approved record on appeal
7. Absence of specific assignment of error in the
appellant’s brief, or of page references to the
record as required; and
8. Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order
Motion for Extension of Time
General Rule: In the CA and in the SC, it is
generally prohibited.
Exception: For good and sufficient cause
Certification or Appeal of Case to the SC
1. If the CA finds that the death penalty should be
imposed, it shall render judgment but refrain
from making an entry of judgment and forthwith
certify the case and elevate its entire record to
the SC for review;
2. Where the judgment also imposes a lesser
penalty for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more severe
offense for which the penalty of death is
imposed, and the accused appeals, the appeal
shall be included in the case certified for review
to the SC;
3. In cases where the Court of Appeals imposes
reclusion perpetua, life imprisonment or a
lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment
may be appealed to the Supreme Court by
notice of appeal filed with the Court of Appeals
(Rule 124, Sec.13; People v. Abon, G.R. No.
169245, Feb. 15, 2008).
N. SEARCH AND SEIZURE
1. NATURE OF SEARCH WARRANT
An application for a search warrant is not a
criminal action; and not of the same form as that
of a criminal action. It is not similar to a criminal
action but is rather a legal process that may be
likened to a writ of discovery employed by no less
than the State to procure relevant evidence of a
REMEDIAL LAW
crime. It is an instrument or tool, issued under the
State’s police power and this is the reason why it
must issue in the name of the People of the
Philippines. (Te v. Breva, G.R. No. 164974, 2015)
It is not a proceeding against a person but is solely
for the discovery and to het possession of personal
property (Worldwide Web Corporation v. PP, G.R.
161106, 2014).
The power to issue search warrants is exclusively
vested with trial judges (Skechers USA v. Inter
Pacific, G.R. 164321, 2006).
Note: It cannot be validly issued against chattels
and effects of persons enjoying diplomatic
immunity pursuant to RA 75.
Note: The rule that venue is jurisdictional does
NOT strictly apply in proceedings for the
application of search warrants. A warrant, such
as a warrant of arrest or a search warrant, merely
constitutes process. It is a special criminal
process. A search warrant is in the nature of a
criminal process akin to a writ of discovery. It is a
special and peculiar remedy, drastic in its nature,
and made necessary because of a public
necessity (Pilipinas Shell Petroleum Corporation
and Petron Corporation v. Romars International
Gases Corporation, G.R. No. 189669, 2015).
Requisites of a Search Warrant (Rule 126, Sec.
1)
1. Order in writing
2. Issued in the name of the People of the
Philippines
3. Signed by a judge
4. Directed to a peace officer
5. Commanding him to search for personal
property described therein
6. To bring the property before the court
One Search Warrant per Offense
No search warrant shall issue for more than one
specific offense. (Rule 126, Sec. 4).
Thus, when a search warrant was issued for
robbery but the information however was quashed,
the things seized on the basis of such search
warrant cannot be used for re-filing of an
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information for qualified theft on the same case. personal examination

(Sy Tan v. SyTion, G.R. No. 174570, 2010) before issuing a warrant
of arrest.
2. DISTINGUISH FROM WARRANT OF Generally served at day May be made at any
ARREST time, unless there be a time of the day or night
direction in the warrant
SEARCH WARRANT WARRANT OF that it may be served at
ARREST any time of the day or
Concerned with the Concerned with the night
seizure of personal seizure of a person so
Prescribes in 10 days Until served
property subject of the he may be made to
from date of issue
offense, stolen oranswer for the
Search warrant does Issuance of a warrant of
embezzled property,commission of an
not require the arrest presupposes the
fruits of the offense, or offense – involves
existence of a criminal existence of a pending
those intended to be taking of a person into
case, it may be issued criminal case that gave
used to commit an custody
prior to the filing of the rise to the warrant
offense
case
Applicant must show Applicant must show:
that the items sought 1. Probable cause that 3. APPLICATION FOR SEARCH WARRANT,
are in fact: an offense has been WHERE FILED
1. Seizable by virtue of committed and
being connected 2. The person to be General Rule: Before any court within whose
with criminal activity arrested has territorial jurisdiction a crime was committed. (Sps.
2. Will be found in the committed it Marimla v. People, G.R. No. 158467, 2009)
place to be
searched Exception/s:
Personal examination Judge not required to 1. Before any court within the judicial region
of the complaint and the make a personal where the crime was committed if the place of
witness is required from examination but the the crime is known. (A.M. No. 00-5-03-SC as
the judge judge must make an cited in Sps. Marimla v. People, G.R. No.
independent 158467, 2009)
evaluation of the 2. Before any court within the judicial region
records forwarded to where the warrant shall be enforced. (A.M. No.
him/her after 00-5-03-SC as cited in Sps. Marimla v. People,
preliminary G.R. No. 158467, 2009)
investigation.
Note: In both exceptions, filing in such courts
Note: In cases where requires compelling reasons stated in the
no preliminary application.
investigation is required Confidentiality of the operations and desire to
(offense is less than 4 prevent leakage are compelling reasons within
years, 2 months and 1 the contemplation of Rule 126, Sec. 2(b)
day), the complaint or (People v. Kelley, G.R. No. 243653, 2020)
information may be filed 3. IF the criminal action has already been filed,
directly with the the application shall be made only in the court
MeTC/MTC without a where the criminal action is pending (Sec. 2,
preliminary Rule 126).
investigation. The Note: The wordings of the provision is of a
MeTC/MTC judge mandatory nature, requiring a statement of
should conduct a compelling reasons if the application is filed in

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a court which does not have territorial
jurisdiction over the place of commission of the
crime. Section 2, Rule 126 of the Revised
Rules of Criminal Procedure should be
construed strictly against state authorities who
would be enforcing the search warrants.
(Pilipinas Shell Petroleum Corporation and
Petron Corporation v. Romars International
Gases Corporation, G.R. No. 189669, 2015).
However: Nothing in the rule does it say that the
court issuing a search warrant must also have
jurisdiction over the offense. A search warrant may
be issued by any court pursuant to Sec. 2, Rule
126 and the resultant case may be filed in another
court that has jurisdiction over the offense
committed. What controls here is that a search
warrant is merely a process, generally issued by a
court in the exercise of its ancillary jurisdiction, and
not a criminal action to be entertained by a court
pursuant to its original jurisdiction.
Thus, in certain cases when no criminal action has
yet been filed, any court may issue a search
warrant even though it has no jurisdiction over the
offense allegedly committed, provided that all the
requirements for the issuance of such warrant are
present. (People v. Castillo, Jr., G.R. No. 204419,
2016)
Authority of the Executive Judge and Vice-
Executive Judge Re Search Warrants in Manila
and Quezon City
Executive Judges of the RTC’s of Manila and
Quezon City may issue search warrants outside
their territorial jurisdiction for the following crimes:
1. Heinous crimes;
2. Illegal gambling;
3. Dangerous drugs;
4. Illegal possession of firearms;
5. Anti-Money Laundering Act;
6. Violation of Tariff and Customs Code (Marimla
v. People, G.R. No. 158467, 2009, citing A.M.
99-10-09-SC and A.M. No. 03-8-02-SC entitled
Guidelines On The Selection And Designation
Of Executive Judges And Defining Their
Powers, Prerogatives And Duties)
REMEDIAL LAW
Searches and Seizure for Violation of the
Intellectual Property Code
Special Commercial Courts in Quezon City,
Manila, Makati, and Pasig shall have authority to
act on applications for the issuance of writs of
search and seizure in civil actions for violations of
the Intellectual Property Code, which writs shall be
enforceable nationwide (Rule 1, Sec. 2, A.M. No.
10-3-10-SC).
Transitory and Continuing Crimes
If the nature of the violation would constitute a
transitory or continuing offense, application
for search warrant may be filed in any court where
any element of the alleged offense was committed.
(Sony Computer v. Supergreen, Inc., G.R. No.
161823, 2007)
Note: The omission of the People of the
Philippines from the petition was fatal. A search
warrant is not similar to a criminal action but is
rather a legal process that may be likened to a writ
of discovery employed by no less than the State to
procure relevant evidence of a crime.
In that respect, it is an instrument or tool, issued
under the State’s police power, and this is the
reason why it must issue in the name of the People
of the Philippines. If one wishes to contest the
finding of probable cause or any other aspect of
the issuance of the search warrant, then he must
implead the entity who in legal contemplation
made the finding and in whose name the finding
was made; otherwise, there can be no final
determination of the case because the party
indispensable to its resolution had been omitted.
(Te v. Breva, G.R. No. 164974, 2015)
Requisites for the Issuance of a Search
Warrant: (Rule 126, Sec. 4)
1. There must be probable cause;
2. Probable cause is to be determined personally
by the judge;
3. The judge must personally examine in the form
of searching questions and answers, in writing
and under oath, the complainant and any
witness he may produce, on facts personally
known to them
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4. The search warrant must particularly describe
the place to be searched and the persons or
things to be seized;
5. The probable cause must be in connection with
one specific offense
6. The sworn statements together with the
affidavits submitted by the complainant and
witnesses must be attached to the record.
(Prudente v. Dayrit, G.R. No. 82870, 1989).
Duration of validity of a Search Warrant
It is valid for 10 days from the date of its issue.
After such time, it is void.
General Rule: It can only be used once, thereafter
it becomes functus officio.
Exception: When the search conducted was
interrupted, in which case the same may be
continued under the same warrant the following
day if not beyond the 10-day period.
4. PROBABLE CAUSE FOR ISSUANCE OF
SEARCH WARRANT
It refers to such facts and circumstances, which
would lead a reasonably discreet and prudent man
to believe that objects sought in connection with
an offense are in the place to be searched (MHP
Garments v. CA, G.R. No. 86720, Sept. 2, 1994)
The probable cause must be shown to be within
the personal knowledge of the complainant or the
witnesses and not based on mere hearsay.
No exact test exists as to what acts constitute
probable cause but the requirement is less than
certainty of proof, but more than suspicion or
possibility.
5. PERSONAL EXAMINATION BY JUDGE
OF THE APPLICANT AND WITNESS
Personal examination by judge of the applicant
and witnesses
1. Examination must be personally conducted by
the judge
2. Examination must be in the form if searching
questions and answers
3. Complainant and witnesses shall be examined
on those facts personally known to them
REMEDIAL LAW
4. Statements must be in writing and under oath
5. Sworn statements of the complainant and the
witnesses, together with the affidavits
submitted, shall be attached to the record
(People v. Mamaril, G.R. No. 147607, January
22, 2004)
Failure to attach to the records the depositions of
the complainant and his witnesses and/or the
transcript of the judge's examination, though
contrary to the Rules, does not by itself nullify the
warrant. The requirement to attach is merely a
procedural rule and not a component of the right.
Rules of procedure or statutory requirements,
however salutary they may be, cannot provide new
constitutional requirements. Ogayon v. People,
G.R. No. 188794, 2015)
Note: Examination must be probing and
exhaustive, not merely routinary or pro forma. The
judge must not simply rehash the contents of the
affidavit but make his own inquiry on the intent and
justification of the application.
Objection to Issuance or Service of a Warrant
Any objection concerning the issuance or service
of a warrant or a procedure in the acquisition by
the court of jurisdiction over the person of the
accused must be made before he enters his plea;
otherwise, the objection is deemed waived
(People v. Tan, G.R. No. 191069, November 15,
2010).
The requirement to raise objections against search
warrants during trial is a procedural rule
established by jurisprudence. Compliance or
noncompliance with this requirement cannot in any
way diminish the constitutional guarantee that a
search warrant should be issued upon a finding of
probable cause. The failure to make a timely
objection cannot serve to cure the inherent defect
of the warrant. To uphold the validity of the void
warrant would be to disregard one of the most
fundamental rights guaranteed in our Constitution
(Ogayon v. People, G.R. No. 188794, 2015).
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6. PARTICULARITY OF PLACE TO BE
SEARCHED AND THINGS TO BE SEIZED
A description of the place to be
searched is sufficient if the officer
with the warrant can, with
reasonable effort, ascertain and
identify the place intended and
PLACE TO distinguish it from other places in
BE the community. (People v.
SEARCHED Posada, GR. No. 196052, 2015)
The failure to name the owner or
occupant of a property in the
affidavit and search warrant does
not invalidate the warrant.
Description must be so particular
that the officer charged with the
execution of the warrant will be
left with no discretion respecting
the property to be taken
Test: whether the things
PROPERTY described are limited to those
TO BE which bear direct relation to the
SEIZED offense for which the warrant is
issued. (Chan v. Honda Motors,
G.R. No. 172775, 2007). [Note:
The SC allowed the seizure of
“Wave 110 S” and “Wave 125 S”
motorcycles where the search
warrant was for “Wave”
motorcycles.]
It may be said that the person to
be searched is “particularly
described” in the search warrant
PERSON TO when his name is stated in the
BE search warrant, or if the name is
SEARCHED unknown, he is designated by
words sufficient to enable the
officer to identify him without
difficulty
REMEDIAL LAW
Time of serving a search warrant
General Rule: It must only be served during day
time
Exception: It may be served at night if it is
positively asserted in the affidavit that the property
is on the person or in the place ordered to be
searched. The affidavit making such assertion
must itself be sufficient as to the fact so asserted,
for if the same is based upon hearsay, the general
rule shall apply.
Where a search is to be made during the night
time, the authority for executing the same at that
time should appear in the directive on the face of
the warrant (Asian Surety v. Herrera, G.R. L-
25232,1973).
7. PERSONAL PROPERTY TO BE SEIZED
Personal property to be seized
1. Subject of the offense (i.e. the gun in a case
for illegal possession of firearms, the drugs in
a case for violation of the Dangerous Drugs
Act.)
2. Stolen or embezzled and other proceeds, or
fruits of the offense (i.e. the stolen watch in a
case for theft)
3. Instruments of the offense (i.e. the hammer
used by accused to break the glass window in
a case for robbery). (Rule 126, Sec. 3)
Nature of Personal Property
"Personal property" in the foregoing context
actually refers to the thing’s mobility, and not to its
capacity to be owned or alienated by a particular
person. Article 416 of the Civil Code states that in
general, all things which can be transported from
place to place are deemed to be personal
property.
Ownership of Property Seized Not Required
It is sufficient that the person against whom the
warrant is directed has control and possession of
the property sought to be seized.
Right to Break Door or Window
The searching officer may break any door or
window, or any part of the house if refused
admittance (Rule 126, Sec. 7)
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The use of a bolt cutter to gain access to the
premises was, under the circumstances, is
reasonable, for after the members of the searching
team introduced themselves to the security guards
and showed them the search warrants, the guards
refused to receive the warrants and to open the
premises, they claiming that "they are not in
control of the case.” (Sony Computer
Entertainment v. Bright Future Technologies, G.R.
No. 169156, 2007)
Search of Premises to be Made in Presence of
Two Witnesses
The following should at least be present during the
search:
1. Lawful occupant or any family member, or
2. In the absence of any family member, two
witnesses of sufficient age and discretion
residing in the same locality
The absence of the lawful occupant does not taint
the regularity of the search provided that two
witnesses are present. (Rule 126, Sec. 8; Lucito v.
People, G.R. No. 192050, 2013)
Even if the barangay officials were not present
during the initial search, the search was witnessed
by accused-appellants themselves, hence, the
search was valid since the rule that "two witnesses
of sufficient age and discretion residing in the
same locality" must be present applies only in the
absence of either the lawful occupant of the
premises or any member of his family. (People v.
Punzalan, G.R. No. 199087, 2015)
Receipt for Property Seized
The searching officer must give a detailed receipt
to the lawful occupant.
In the absence of such occupant, must, in the
presence of at least two witnesses of sufficient age
and discretion residing in the same locality, leave
the receipt in the premises (Rule 126, Sec. 11).
In Dangerous Drugs Act cases, the two-witness
rule shall not apply and shall instead follow Section
21 of DDA. (Chain of Custody)
REMEDIAL LAW
Non-Compliance with the Doctrine of Chain of
Custody
General Rule: Non-compliance is fatal; the
accused’s arrest becomes illegal and the items
seized are inadmissible in evidence.
Exception: Non-compliance is not fatal and will
not make the accused’s arrest illegal nor render
the items seized as inadmissible, provided:
1. There is justifiable ground; and
2. The integrity and evidentiary value of the items
are properly preserved (R.A. No. 9165, Sec.
21; People v. Dela Cruz, G.R. No. 205414,
2016)
Procedure in R.A. No. 9165, Sec. 21
1. Inventory and Photograph by the
Apprehending Team
a. In the presence of the accused and counsel
or his representative
b. In the presence of a representative from the
media and the Department of Justice (DOJ)
c. In the presence of the an elected public
official, who shall sign the copies of the
inventory and shall be given a copy thereof.
d. If there was a SEARCH WARRANT – this
shall be done in the place where the warrant
was presented
e. If it is a WARRANTLESS SEIZURE – it must
be done in:
i. The nearest police station; or
ii. The office of the apprehending team,
whichever is more practicable
iii. Note: Failure to comply with these
requirements shall make the seizure
void, unless there is a justifiable
reason and the integrity and
evidentiary value of the seized
materials are preserved.
2. Submission to PDEA Forensic Laboratory
within 24 hours after receipt of the subject items
3. Within 24 hours, the PDEA Forensic
Laboratory shall issue a Certification as to the
quality and quantity of the subject items.
a. If the quantity of the items does not allow the
completion of testing within the said period
a partial laboratory examination report shall
be provisionally issued, and a final
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certification shall be issued within the next
24 hours.
4. Filing of the criminal case in court
5. Within 72 hours from filing, the court shall
conduct an ocular inspection
6. Within 24 hours from ocular inspection, the
PDEA shall burn or destroy the seized items
a. In the presence of the accuse or his
representative or his counsel
i. Note: If the accused refuses or fails to
appoint a representative after due notice
in writing within 72 hours before the
actual destruction of the evidence in
question, the Secretary of Justice shall
appoint a member of the PAO office to
represent the former
b. In the presence of a representative of the
media, the DOJ, and a civil society group
c. In the presence of an elected official
d. Note: A representative sample must be
retained
7. Dangerous Drugs Board shall issue a sworn
certification as to the fact or destruction or
burning which it must submit to the court
together with the representative samples
8. Promulgation and Judgment
9. Trial Prosecutor must inform the Dangerous
Drugs Board of the judgment and request the
court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction.
10. Within 24 hours, the seized items must be
properly disposed or destroyed.
Note: The following has been adopted as a
mandatory policy in drug-related cases (People v.
Romy Lim, G.R. No. 231989, Sept. 4, 2018):
1. In the sworn statements/affidavits, the
apprehending/seizing officers must state their
compliance with the requirements of Section
21(1) of RA No. 9165, as amended and its IRR.
2. In case of non-observance of the provision, the
apprehending/ seizing officers must state the
justification or explanation therefor as well as
the steps they have taken in order to preserve
the integrity and evidentiary value of the
seized/ confiscated items.
3. If there is no justification or explanation
expressly declared in the sworn statements or
affidavits, the investigation fiscal must not
REMEDIAL LAW
immediately file the case before the court.
Instead, he or she must refer the case for
further preliminary investigation in order to
determine the (non) existence of probable
cause.
4. If the investigating fiscal filed the case despite
such absence, the court may exercise its
discretion to either refuse to issue a
commitment order (or warrant of arrest) or
dismiss the case outright for lack of probable
cause in accordance with Section 5, Rule 112,
Rules of Court.
8. EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT
Search warrant is not required in the following
instances:
1. Search incidental to lawful arrest
2. Seizure of evidence in “plain view”
3. Search of a moving vehicle
4. Consented warrantless search
5. Customs search
6. Stop and frisk (Terry searches)
7. Checkpoints
8. Exigent and emergency circumstances
9. Search of vessels and aircraft
10. Inspection of buildings and other premises for
the enforcement of fire, sanitary and building
regulations
a. Search incidental to lawful arrest
The arrest must precede the lawful search
Nevertheless, a search substantially
contemporaneous with an arrest is permissible if
the police have probable cause to make the arrest
at the outset of the search
The search is limited to the following:
1. For dangerous weapons
2. Anything which may have been used in the
commission of an offense
3. Anything which constitute proof in the
commission of the crime
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Immediate possession and control rule
1. Search may be done not only on the person of
the suspect but also within the permissible
area within the latter’s reach
2. The area from which he might gain possession
of a weapon or destroy evidence is covered by
a search incident to a lawful arrest (People v.
Calantiao, G.R. No. 203984, 2014).
Accused was caught in flagrante delicto. The
arrest was valid, therefore, and the arresting
policemen thereby became cloaked with the
authority to validly search his person and effects
for weapons or any other article he might use in
the commission of the crime or was the fruit of the
crime or might be used as evidence in the trial of
the case, and to seize from him and the area within
his reach or under his control, like the jeep he was
driving, such weapon or other article (People v.
Belocura, G.R. No. 173474, 2012).
b. Consented search
The consent to a warrantless search must be
voluntary, that is, it must be unequivocal, specific,
and intelligently given, uncontaminated by any
duress or coercion. Consent to a search is not to
be lightly inferred, but must be shown by clear and
convincing evidence. It is the State which has the
burden of proving, by clear and positive testimony,
that the necessary consent was obtained and that
it was freely and voluntary given. (Valdez v.
People, G.R. No. 170180, 2007)
A peaceful submission to a search and seizure is
not a consent or invitation thereto, but is merely
demonstration of regard for the supremacy of the
law. (People v. Nuevas, G.R. No. 170233, 2007)
Factors to determine in voluntariness of
consent
(1) The age of the defendant;
(2) Whether the defendant was in a public or a
secluded location;
(3) Whether the defendant objected to the search
or passively looked on;
(4) The education and intelligence of the
defendant;
(5) The presence of coercive police procedures;
(6) The defendants belief that no incriminating
evidence would be found;
REMEDIAL LAW
(7) The nature of the police questioning;
(8) The environment in which the questioning took
place; and
(9) The possibly vulnerable subjective state of the
person consenting.
c. Search of moving vehicle
Justified on the ground that it is not practicable to
secure a search warrant because the vehicle can
be quickly moved out of the locality or jurisdiction
in which the warrant must be sought.
When a vehicle is flagged down and subjected to
an extensive search, such warrantless search has
been held to be valid as long as the officers
conducting the search have reasonable or
probable cause to believe prior to the search that
they would find the instrumentality or evidence
pertaining to a crime, in the vehicle to be searched.
(People v Tuazon, G.R. No. 175783, 2007).
Exclusive reliance on an unverified, anonymous tip
cannot engender probable cause that permits a
warrantless search of a moving vehicle that goes
beyond a visual search (People v. Sapla, G.R. No.
244045, 2020)
d. Check points; body checks in airport
Requisites
1. Passengers not subjected to body search
2. Limited to visual search
3. Under exceptional circumstances, as where:
a. Survival of the government is on the
balance, or
b. Lives and safety of the people are in peril
4. Vehicle not searched
Searches conducted in checkpoints are valid for
as long as they are warranted by exigencies of
public order and are conducted in a way least
intrusive to motorists. For as long as the vehicle is
neither searched nor its occupants subjected to a
body search, and the inspection of a vehicle is
limited to a visual search, said routine checks
cannot be regarded as violative of an individual’s
right against unreasonable searches. (People v
Vinecario, G.R. No. 141137, 2004)
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e. Plain view situation
Requisites
1. A prior valid intrusion.
2. Evidence was inadvertently discovered by the
police.
The inadvertence requirement means that the
officer must not have known in advance of the
location of the evidence and discovery is not
anticipated
3. The evidence must be immediately apparent.
The incriminating nature of the evidence
becomes apparent if the officer, at the moment
of seizure, had probable cause to connect it to
a crime without the benefit of an unlawful
search or seizure – it requires merely that the
seizure be presumptively reasonable assuming
that there is probable cause to associate the
property with criminal activity; that a nexus
exists between a viewed object and criminal
activity
4. Plain view is justified seizure of evidence
without further search.
f. Stop and frisk situation
Requisites
1. Police officer observes unusual conduct.
2. Reasonable suspicion that person is engaged
in some type of criminal activity.
3. Identifies himself as a policeman upon
approach.
4. Makes reasonable inquiries.
5. There is reasonable fear for his own or other’s
safety thus he is entitled to conduct limited
search of the outer clothing of such persons in
an attempt to discover weapons that might be
used for assault.
g. Enforcement of custom laws
9. REMEDIES FROM UNLAWFUL SEARCH
AND SEIZURE
Remedies
1. Motion to Quash the Search Warrant
2. Motion to Suppress Evidence the object
illegally taken
3. Replevin, if the objects are legally possessed
4. Certiorari, where the search warrant is a patent
nullity.
REMEDIAL LAW
5. File a complaint for damages under Art. 32, in
relation to Art. 2219 (6) and (10) of the Civil
Code;
6. File an administrative case under Section 41 of
R.A. No. 6975
When Motion to Quash a Search Warrant may
be appealed
If a search warrant is issued as an incident in a
pending criminal case, the quashal of a search
warrant is merely interlocutory.
In contrast, where a search warrant is applied for
and issued in anticipation of a criminal case yet to
be filed, the order quashing the warrant ends the
judicial process (final order) and an appeal may be
properly taken therefrom. (World Wide Web
Corporation, et al. v. People of the Philippines, et
al. & Planet Internet Corporation v. Philippine Long
Distance Telephone Company, G.R. Nos. 161106
& 161266, 2014)
Where to file a motion to quash a search
warrant or to suppress evidence
A motion to quash a search warrant and/or to
suppress evidence obtained by virtue of the
warrant may be filed and acted upon only by the
court where the action has been instituted; OR
IF no criminal action has been instituted, the
motion may be filed in and resolved by the court
that issued the search warrant. However, if such
court failed to resolve the motion and a criminal
case is subsequently filed to resolve the motion
and a criminal case is subsequently filed in
another court, the motion shall be resolved by the
latter court
10. CYBERCRIME WARRANTS
a. Scope and Applicability
This Rule sets forth the procedure for the
application and grant of warrants and related
orders involving the preservation, disclosure,
interception, search, seizure, and/or examination,
as well as the custody, and destruction of
computer data, as provided under RA 10175 or the
"Cybercrime Prevention Act of 2012. (Sec. 1.2)
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b. General Provisions
Definition of Terms (Sec. 1.4):
a. Computer data – refers to any representation
of facts, information, or concepts in a form
suitable for processing in a computer system,
including a program suitable to cause a
computer system to perform a function, and
includes electronic documents and/or
electronic data messages whether stored in
local computer systems or online;
b. Content data – refers to the content of the
communication, the meaning or purported
meaning of the communication, or the
message or information being conveyed by the
communication, other than traffic data;
c. Forensic image – also known as a forensic
copy, refers to an exact bit-by-bit copy of a data
carrier, including slack, unallocated space, and
unused space;
d. Interception – refers to listening to, recording,
monitoring or surveillance of the content of
communications, including procuring of the
content data, either directly, through access
and use of a computer system, or indirectly
through the use of electronic eavesdropping or
tapping devices, at the same time that the
communication is occurring;
e. Off-site search – refers to the process whereby
law enforcement authorities, by virtue of a
warrant to search, seize, and examine, are
allowed to bring the computer device/s and/or
parts of the computer system outside the place
to be searched in order to conduct the forensic
examination of the computer data subject of the
warrant;
f. On-site search – refers to the process whereby
law enforcement authorities, by virtue of a
warrant to search, seize, and examine, obtains
the computer data subject thereof for forensic
examination, without the need of bringing the
related computer device/sand/or parts of the
computer system outside the place to be
searched;
g. Service provider – refers to:
(a) any public or private entity that provides
users of its service the ability to
communicate by means of a computer
system; and
(b) any other entity that processes or stores
computer data on behalf of such
REMEDIAL LAW
communication service or users of such
service;
The term service provider as used in this
Rule is understood to include any service
provider offering its services within the
territory of the Philippines, regardless of its
principal place of business;
h. Subscriber's information – refers to any
information contained in the form of computer
data or any other form that is held by a service
provider, relating to subscribers of its services,
other than traffic or content data, and by which
any of the following can be established:
1. The type of communication service used,
the technical provisions taken therewith,
and the period of service;
2. The subscriber's identity, postal or
geographic address, telephone and other
access number, any assigned network
address, billing and payment information
that are available on the basis of the service
agreement or arrangement; or
3. Any other available information on the site
of the installation of communication
equipment that is available on the basis of
the service agreement or arrangement; and
i. Traffic data – refers to any computer data other
than the content of the communication,
including, but not limited to, the
communication's origin, destination, route,
time, date, size, duration, or type of underlying
service.
Venue
Criminal actions for violation of RA10175 shall be
filed before a cybercrime court of the province or
city where –
(i) The offense or any of its elements is committed
(ii) Any part of the computer system used is
situated
(iii) Any of the damage caused to a natural or
juridical person took place (Section 2.1).
Note: All other crimes committed by, through, and
with the use of ICT shall be filed before the regular
or other specialized regional trial courts.
Where to file an application for a Warrant
The same rules for venue applies. However, the
cybercrime courts in Quezon City, the City of
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Manila, Makati City, Pasig City, Cebu City, Iloilo
City, Davao City and Cagayan De Oro City shall
have the special authority to act on applications
and issue warrants which shall be enforceable
nationwide and outside the Philippines. (Sec. 2.2).
Who may apply
Law enforcement authorities who must be
personally examined by the judge in the form of
searching questions and answers, in writing and
under oath; the applicant and the witnesses he
may produce, on facts personally known to them
and attach to the record their sworn statements,
together with the judicial affidavits submitted. (Sec.
2.4).
Validity of Warrants: For the period determined
by the court, which shall not exceed 10 days from
its issuance, extendible up to 10 days upon the
filing of a motion upon the finding of justifiable
reasons (Sec. 2.5).
c. Preservation of Computer Data
The integrity of traffic data and subscriber’s
information shall be kept, retained, and preserved
by a service provider for a minimum period of 6
months from the date of the transaction. On the
other hand, content data shall be preserved for 6
months from the date of receipt of the order from
law enforcement authorities requiring its
preservation (Sec. 3.1)
Law enforcement authorities may order a one-time
extension for another 6 months; Provided, that
once computer data is preserved, transmitted, or
stored by a service provider is used as evidence in
a case, the receipt by the service provider of a
copy of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to
preserve the computer data until the final
determination of the case and/or as ordered by the
court, as the case may be. (Sec. 3.1)

Extraterritorial Service of Warrants: For d. Disclosure of Computer Data;

persons or service providers situated outside of
e. Interception of Computer Data;
the Philippines, service of warrants and/or other
court processes shall be coursed through the f. Search, Seizure, and Examination of
Department of Justice - Office of Cybercrime, in Computer Data
line with all relevant international instruments
and/or agreements on the matter. (Sec. 2.6)
X
CYBERCRIME WARRANTS
A.M. No. 17-11-03-SC
Warrant to
Warrant to Warrant to
Warrant to Search, Seize and
Disclose Examine
Intercept Computer Examine
Computer Data Computer Data
Data (WICD) Computer Data
(WDCD) (WECD)
(WSSECD)
1. Applied by law 1. Applied by law 1. Applied by law Upon acquiring
enforcement enforcement enforcement possession of a
authorities authorities authorities computer device or
2. In writing 2. In writing 2. In writing computer system via
3. Issued in the 3. Issued in the 3. Issued in the a lawful warrantless
name of the name of the name of the arrest, or by any other
Formal People of the People People lawful method, law
Requirements Philippines 4. Signed by a 4. Signed by a enforcement
4. Signed by judge, upon the judge, upon the authorities shall first
Judge, upon finding of finding of apply for a WECD
the finding of probable cause probable cause before searching the
probable 5. Authorizes law 5. Authorizes law said computer device
cause enforcement enforcement or computer system
authorities to: authorities to for the purpose of

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5. Authorizing (a) Listen to search the obtaining for forensic

law content of particular place examination the
enforcement communications; for items to be computer data
authorities to (b) Record seized and/or contained therein.
issue an order content of examined. (Sec. (Sec. 6.9)
requiring any communications 6.1
person or (c) Monitor
service content of
provider to communications
disclose or (d) Conduct
submit surveillance of
subscriber's content of
information, communications
traffic data or (Sec. 5.3
relevant data
in his/her or its
possession or
control within
72 hours from
receipt of the
order in
relation to a
valid
complaint
officially
docketed and
assigned for
investigation
and the
disclosure is
necessary
and relevant
for the
purpose of
investigation
(Sec. 4.1)
A verified A verified application A verified application A verified application
application and and supporting and supporting and supporting
supporting affidavits stating: affidavits stating: affidavits stating:
affidavits stating: a. The probable a. The probable a. The probable
a. The probable offense offense offense involved;
offense involved; involved; b. Relevance and
involved; b. Relevance and b. Relevance and necessity of the
Contents of b. Relevance necessity of the necessity of the computer data
Application and communication computer data sought to be
for Warrant necessity of or computer sought to be examined and all
the computer data sought to searched, other items
data or be intercepted. seized, and related thereto.
subscriber's c. Names of the examined, and c. Names of the
information individuals or all other items individuals or
sought to be entities whose related thereto. entities whose
disclosed for communication c. Names of the computer data
the purpose or computer individuals or

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of the data are sought entities whose are sought to be

investigation; to be computer data examined
c. Names of the intercepted. are sought to be d. Particular
individuals or d. Particular searched, description of the
entities description of seized, and computer data
whose the examined sought to be
computer communication d. Particular examined.
data or or computer description of e. Place where the
subscriber's data sought to the computer examination of
information be intercepted. data sought to the computer
are sought to e. Place where the be searched, data, if available.
be disclosed, interception of seized, and f. Manner or
including the communication examined. method by which
names of the or computer e. Place where the examination of
individuals or data, if search, seizure, the computer
entities who available; and examination data is to be
have control, f. Manner or of the computer carried out, if
possession method by data, if available; and
or access which the available. g. Other relevant
thereto, if interception of f. Manner or information that
available; communication method by will persuade the
d. Particular or computer which the court that there is
description of data is to be search, seizure, a probable cause
the computer carried out, if and examination to issue a WECD;
data or available; and of the computer h. Disclose the
subscriber's g. Other relevant data is to be circumstances
information information that carried out, if surrounding the
sought to be will persuade available; and lawful acquisition
disclosed; the court that g. Other relevant of the computer
e. Place where there is a information that device or
the probable cause will persuade computer system
disclosure of to issue a the court that containing the
computer WICD. (Sec. there is a said computer
data or 5.3) probable cause data. (Sec. 6.9)
subscriber's to issue a
information is WSSECD.
to be h. An explanation
enforced, if of the search
available; and seizure
f. Manner or strategy to be
method by implemented,
which the including a
disclosure of projection of
the computer whether or not
data or an off-site or on-
subscriber's site search will
information is be conducted,
to be carried taking into
out, if account the
available; nature of the
and computer data
g. Other involved, the
relevant computer or

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information computer
that will system's
persuade the security
court that features, and/or
there is a other relevant
probable circumstances,
cause to if such
issue a information is
WDCD. available. (Sec.
(Sec. 4.3) 6.2)
It must be It must be submitted An Initial Return An Initial Return must
submitted within within 48 hours from must be submitted be submitted within
48 hours from implementation or within 10 days from 10 days from the
implementation or after the effectivity of the issuance of the issuance of the
after the effectivity the WDCD, whichever WSSECD stating: WECD stating:
of the WDCD, comes first.
whichever comes 1. A list of all the 1. A list of all the
first. The officer shall items that were items that were
simultaneously turn seized, with a examined, with
The officer shall over the custody of detailed a detailed
simultaneously the intercepted identification of: identification of:
turn over the communications or (a) the devices (a) the devices
custody of the computer data. of the computer of the computer
disclosed system seized, system
computer data or The law enforcement including the examined,
subscriber’s officer has the duty name, make, including the
information. (Sec. notify the person brand, serial name, make,
4.5) whose numbers, or any brand, serial
communications or other mode of numbers, or any
computer data have identification, if other mode of
been intercepted – available; and identification, if
Return of
(b) the hash available; and
Warrant
1. Within 30 days from value of the (b) the hash
the filing of the return, computer data value of the
and a copy of the and/or the computer data
return shall be seized computer and/or the
attached to the notice device or examined
computer computer device
2. If no return was system or computer
made, from the lapse containing such system
of the forty-eight (48) data; containing such
hour period to file a 2. A statement on data;
return; the notice shall whether a 2. A statement on
state the details of the forensic image whether a
interception activities, of the computer forensic image
including the contents data was made of the computer
of the intercepted on-site, and if data was made
communication or not, the reasons on-site, and if
computer data. for making the not, the reasons
forensic image for making the
The subject of the off-site; forensic image
warrant may 3. A statement on off-site;
challenge the legality whether the

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thereof, through a search was 3. A statement on

motion, within ten (10) conducted on- whether the
days from notice. site, and if not, examination
(Sec. 5.5) the reasons for was conducted
conducting the on-site, and if
search and not, the reasons
seizure off-site; for conducting
4. A statement on the search and
whether seizure off-site;
interception was 4. A statement on
conducted whether
during the interception was
implementation conducted
of the during the
WSSECD, implementation
together with (a) of the WECD,
a detailed together with (a)
identification of a detailed
all the identification of
interception all the
activities that interception
were conducted; activities that
(b) the hash were conducted;
value/s of the (b) the hash
communications value/s of the
or computer communications
data or computer
intercepted; and data
(c) an intercepted; and
explanation of (c) an
the said items' explanation of
reasonable the said items'
relation to the reasonable
computer data relation to the
subject of the computer data
WSSECD; subject of the
5. List of all the WECD;
actions taken to 5. List of all the
enforce the actions taken to
WSSECD, from enforce the
the time the law WECD, from the
enforcement time the law
officers reached enforcement
the place to be officers reached
seized until they the place to be
left the premises seized until they
with the seized left the premises
items and with the seized
reached the items and
place where the reached the
items seized place where the
were stored and items seized
secured for were stored and

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examination; secured for

and examination; and
6. A reasonable 6. A reasonable
estimation of estimation of how
how long the long the
examination of examination of
the items seized the items seized
will be will be concluded
concluded and and the
the justification justification
therefor. (Sec. therefor.
6.7)
After which, the court
After which, the shall issue an order
court shall issue an fixing the period to
order fixing the conclude the
period to conclude examination of all the
the examination of items seized,
all the items seized, extendible up to 30
extendible up to 30 days
days
Within 48 hours from
Within 48 hours from the expiration thereof
the expiration a Final Return shall
thereof a Final be submitted together
Return shall be with turn-over the
submitted together custody of the seized
with turn-over the computer data, as
custody of the well as all other items
seized computer seized and/or the
data, as well as all communications or
other items seized computer data
and/or the intercepted in relation
communications or thereto
computer data
intercepted in
relation thereto
(Sec. 6.8)
X
examination of the computer data, as the
g. Custody of Computer Data case may be. If the examiner or analyst has
recorded his/her examination, the recording
Upon the filing of the return for a WDCD or WICD, shall also be deposited with the court in a
or the final return for a WSSECD or WECD, all sealed package and stated in the affidavit;
computer data subject thereof shall be 2. The particulars of the subject computer data,
simultaneously deposited in a sealed package including its hash value;
with the same court that issued the warrant. It 3. The manner by which the computer data was
shall be accompanied by a complete and verified obtained;
inventory of all the other items seized in relation 4. Detailed identification of all items seized in
thereto, and by the affidavit of the duly authorized relation to the subject computer data,
law enforcement officer containing: including the computer device containing
1. The date and time of the disclosure, such data and/or other parts of the computer
interception, search, seizure, and/or

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system seized, indicating the name, make,
brand, serial numbers, or any other mode of
identification, if available;
5. The names and positions of the law
enforcement authorities who had access to
the computer data from the time of its seizure
until the termination of the examination but
prior to depositing it with the court, and the
names of officers who will be delivering the
seized items to the court;
6. The name of the law enforcement officer who
may be allowed access to the deposited data.
When the said officer dies, resigns of severs
tie with the office, his/her successor may,
upon motion, be granted access to the
deposit; and
7. A certification that no duplicates or copies of
the whole or any part thereof have been
made, or if made, all such duplicates or
copies are included in the sealed package
deposited, except for the copy retained by
law enforcement authorities pursuant the rule
on retained copies under WDCD.
The return on the warrant shall be filed and kept
by the custodian of the log book on search
warrants who shall enter therein the date of the
return, the description of the sealed package
deposited, the name of the affiant, and other
actions of the judge. (Sec. 7.1)
h. Destruction of Computer Data
General Rule: Upon the expiration of the period
to preserve computer data and the period to
examine computer data), the service providers
and the law enforcement authorities shall
immediately and completely destroy the
computer data subject of the preservation and
examination
Exception: The court may order the (a) Complete
or Partial Destruction of Data; or (b) the Return of
the Data to its lawful owner or possessor -
1. Upon motion and due hearing, the court finds
justifiable reasons for such order:
2. Upon written notice to all the parties
concerned, if no preliminary investigation or
case involving these items has been instituted
after thirty-one (31) days from their deposit, or
if preliminary investigation has been so
REMEDIAL LAW
instituted within this period, upon finality of the
prosecutor's resolution finding lack of
probable cause. In its sound discretion, the
court may conduct a clarificatory hearing to
further determine if there is no reasonable
opposition to the items' destruction or return.
Note: In cases of WDCD, the court should first
issue an order directing the law enforcement
authorities to turn-over the retained copy thereof.
Upon its turn-over, the retained copy shall be
simultaneously destroyed or returned to its lawful
owner or possessor together with the computer
data or subscriber's information that was
originally turned over to the issuing court.
Process
1. The Destruction shall be made in the
presence of –
a. the Branch Clerk of Court;
b. In his absence, any person duly
designated by the court to witness the
same
2. The following may witness the destruction, if
they file with the Branch Clerk of Court notifies
them at least 3 days before the scheduled
date of destruction:
a. The accused or the person/s from whom
such items were seized;
b. His/her representative or counsel;
c. The law enforcement officer allowed
access to such items;
d. Such law enforcement officer’s duly
authorized representative.
3. Within twenty-four (24) hours from the
destruction of the computer data, the Branch
Clerk-of-Court or the witness duly designated
by the court shall issue a sworn certification as
to the fact of destruction and file the said
certificate with the same court.
O. PROVISIONAL REMEDIES
Nature
The provisional remedies in civil actions, in so far
as they are applicable, may be availed of in
connection with the civil action deemed instituted
with the criminal action.
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HENCE, If the civil action has been waived,

reserved, or instituted separately, a provisional
remedy may not be availed of in the criminal
action. Instead, the provisonal remedy should be
applied for in the separate civil action instituted.

Note: The requisites and procedure for availing

of these provisional remedies shall be the same
as those for civil cases.

Kinds of Provisional Remedies

1. Attachment (Rule 57)
2. Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendent lite (Rule 61)

Attachment, When Proper

1. Accused is about to abscond from the
Philippines;
2. Criminal action is based on a claim of money
or property embezzled or fraudulently
misapplied or converted;
3. When the accused has concealed, removed,
or disposed of his property, or is about to do
so; and
4. When the accused resides outside the
Philippines (Rule 127, Sec. 2).

Note: Under R.A. 9208, in cases of trafficking in

persons, the court may motu propio issue
attachment and injunction.

Support pendente lite can be claimed for by the

victim of rape or seduction to support the
offspring.
 end of topic 

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