CrimPro Notes (Hizon & Hizon)

NOTES ON CRIMINAL PROCEDURE
Kenneth & King Hizon (2A)- UST Faculty of Civil Law _________
UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law
A.Y. 2011-2012
First Semester
CRIMINAL PROCEDURE
Chapter I Q: Distinguish between the adversarial system and the

PRELIMINARY CONSIDERATIONS inquisitorial system?
I. BASIC CONCEPTS A: In the latter system, the court plays a very active role
and is not limited to the evidence presented before it.
Q: What is Criminal Procedure? The court may consider evidence gathered outside the
court and a judge or a group of judges actively
A: It treats of the series of processes by which the participates in the gathering of facts and evidence
criminal laws are enforced and by which the State instead of merely passively receiving information or
prosecutes persons who violate the penal laws. It evidence from the parties.
regulates the steps by which one who committed a
crime is to be punished. Q: How do you construe the rules on criminal
procedure?
Criminal procedure has the imposing task of balancing
clashing social interests primarily between those of the A: It shall be liberally construed in order to promote
government and those of the individual. their objective of securing a jus, speedy and inexpensive
disposition of every action and proceeding. Accordingly,
Q: What is the difference between criminal laws and the rules of procedure must be viewed as tools to
criminal procedure? facilitate the attainment of justice, such that rigid and
strict application thereof which results in technicalities
A: The former defines crimes and prescribe punishment tending to frustrate substantial justice must always be
for such crimes while the latter lays down the avoided.
procedure by which an offender is made to answer for
violation of the criminal laws. DUE PROCESS
Q: Describe the system of procedure in our country? Q: What is the nature of due process in criminal
procedures?
A: The system of procedure in our jurisdiction is
accusatorial or adversarial. It contemplates 2 A: It is mandatory and indispensable and cannot be met
contending parties before the court which hears them without a “law which hears before it condemns and
impartially and renders judgment only after trial. proceeds upon inquiry and renders judgment only after
trial.”
It has 2-sided structure consisting of the prosecution
and the defense. The accusation starts with a formal Q: What are the requirements of due process in a
indictment called as a complaint or information. The criminal proceeding?
government and the accused present their evidence
before the court which shall decide either on acquittal A:
or conviction of the accused. The court has a passive 1. That the court or tribunal trying the case is properly
role and relies largely on the evidence presented by clothed with judicial power to hear and determine
both sides to the action in order to reach a verdict. the matter before it;
Facultad de Derecho Civil 1
2. That jurisdiction is lawfully acquired over the Q: What is the purpose of such rule?
person of the accused;
3. That the accused is given the opportunity to be A: The purpose of which is not to compel the defendant
heard; and to move to, and appear in, a different court from that of
4. That judgment is rendered only upon lawful the province where the crime was committed as it
hearing. would cause him great inconvenience in looking for his
witnesses and other evidence in another place.
A. Requisites for the exercise of Criminal Jurisdiction
Q: What do you mean by territorial jurisdiction?
1. Jurisdiction over the subject-matter;
2. Jurisdiction over the territory; and A: It is the territory where the court has jurisdiction to
3. Jurisdiction over the person of the accused. take cognizance or to try the offense allegedly
committed therein by the accused.
Q: What are the distinctions over the jurisdiction over
the subject-matter and that over of the person of the Q: What is the nature of the concept of venue in both
accused? criminal and civil cases?
A: A: It is jurisdictional.
Jurisdiction over the Jurisdiction over the Q: What are the exemptions to the rule that the
subject-matter accused offense must be prosecuted in the place where the
Refers to the authority Refers to the authority same was committed?
of the court to hear of the court, not over
and determine a the subject-matter of A:
particular criminal the criminal litigation,
case but over the person a. Where the offense was committed under the
charged. circumstances enumerated in Art. 2 of the Revised
Penal Code, the offense is cognizable before
Q: Explain the jurisdiction over the territory and venue Philippine courts even if committed outside of the
in criminal cases? territory of the Philippines. In this case, the offense
shall be cognizable by the court where the criminal
A: This element requires that the offense must have action is first filed;
been committed within the court’s territorial
jurisdiction or within the geographical limits of the ARTICLE 2 OF RPC
territory over which the court presides. This fact is to be
Application of its provisions. - Except as provided in the treaties
determined by the facts alleged in the complaint or and laws of preferential application, the provisions of this Code
information as regards the place where the offense shall be enforced not only within the Philippine Archipelago,
charged was committed. including its atmosphere, its interior waters and maritime zone,
but also outside of its jurisdiction, against those who:
In such case, the action shall be instituted and tried in 1. Should commit an offense while on a Philippine ship or
the court of the municipality or territory wherein the airship;
offense was committed or where anyone of the 2. Should forge or counterfeit any coin or currency note of
essential ingredients took place. the Philippine Islands or obligations and securities issued
by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction
Q: Describe the significance of venue in criminal cases? into these islands of the obligations and securities
mentioned in the preceding number;
A: Venue in criminal cases is an essential element of 4. While being public officers or employees, should commit
jurisdiction. Thus, for jurisdiction to be a court in a an offense in the exercise of their functions; or
5. Should commit any of the crimes against national
criminal case, the offense should have been committed security and the law of nations, defined in Title One of
or anyone of its essential ingredients should have taken Book Two of this Code.
place within the territorial jurisdiction of the court.
Q: What are the crimes against national security?
evidenced or supported by, for instance, the address of
A: their editorial or business offices in the case of
1. Treason; newspapers, magazines or serial publications. It is
2. Conspiracy and proposal to commit treason; necessary to forestall any inclination to harass.
3. Misprision of treason;
4. Espionage; Q: What if the defamatory material appeared on the
5. Inciting to war and giving motives for reprisal; internet?
6. Violation of neutrality;
7. Correspondence with hostile country; and A: “If the circumstances as to where the libel was
8. Flight to enemy’s country. printed and first published are used by the offended
party as basis for the venue in the criminal action, the
b. Where the Supreme Court, pursuant to its Information must allege with particularity where the
constitutional orders a change of venue or place of defamatory article was printed and first published, as
trial to avoid a miscarriage of justice; evidenced or supported by, for instance, the address of
c. Where an offense is committed in a train, aircraft, their editorial or business offices in the case of
or other public or private vehicle in the course of its newspapers, magazines or serial publications. This pre-
ship, the criminal action need not be instituted in condition becomes necessary in order to forestall any
the actual place where the offense was committed. inclination to harass.
It may be instituted and tried in the court of any
municipality or territory where said train, etc. The same measure cannot be reasonably expected
passed during its trip. The crime may also be when it pertains to defamatory material appearing on a
instituted and tried in the place of departure and website on the internet as there would be no way of
arrival. determining the situs of its printing and first
d. Where an offense is committed on board a vessel in publication. To credit Gimenez’s premise of equating his
the course of its voyage, the criminal action shall be first access to the defamatory article on petitioners’
instituted and tried not necessarily in the place of website in Makati with “printing and first publication”
the commission of crime. It may be brought and would spawn the very ills that the amendment to Article
tried in the court of the first port of entry, or in the 360 of the RPC sought to discourage and prevent. It
municipality or territory where the vessel passed hardly requires much imagination to see the chaos that
during the voyage; would ensue in situations where the website’s author or
e. Where the case is cognizable by the Sandiganbayan, writer, a blogger or anyone who posts messages therein
the jurisdiction of which depends upon the nature could be sued for libel anywhere in the Philippines that
of the offense and the position of the accused, the the private complainant may have allegedly accessed
offense need not be tried in the place where the act the offending website.
was committed but where the court actually sits in
Quezon City. For the Court to hold that the Amended Information
f. Where the offense is written defamation, the sufficiently vested jurisdiction in the courts
criminal action need not be filed in the RTC of the of Makati simply because the defamatory article
province or city where the alleged libelous article was accessed therein would open the floodgates to the
was printed and first published. It may be filed in libel suit being filed in all other locations where the
the province or city where the offended party held pepcoalition website is likewise accessed or capable of
office at the time of the commission of the offense being accessed” (Bonifacio et al., v. RTC of Makati).
if he is a public officer, or in the province or city
where he actually resides at the time of the B. Criminal Jurisdiction Over the Subject Matter
commission of the offense in case the offended
party is a private individual. Q: What do you mean by jurisdiction?
If the circumstances as to where the libel was printed A: It is the right to act or the power and authority to
and first published are used by the offended party as hear and determine a cause—it is a question of law. It is
basis for the venue in the criminal action, the the power and authority to hear and determine issues
information must allege with particularity where the of facts and of law, the power to inquire into the facts,
defamatory article was printed and first published, as to apply the law and to pronounce the judgment.
A: Jurisdiction is with the court having jurisdiction to
Q: What do you mean by jurisdiction over the subject impose the maximum and most serious penalty
matter? imposable on the offense forming part of the complex
crime.
A: It is the power to hear and determine cases of the
general class to which the proceedings in question Q: What is the hornbook doctrine? What is the statute
belong. It is the power to deal with the general subject applicable to a criminal action?
involved in the action, and means not simply jurisdiction
over the particular case then occupying the attention of A: It means that jurisdiction to try a criminal action is
the court but jurisdiction of the class of cases to which determined by the law in force at the time of the
the particular case belongs. institution of the action and not during the arraignment
of the accused.
Q: How is jurisdiction over the subject matter
conferred? The statute in force at the time of the commencement
of the action determines the jurisdiction of the court
A: Jurisprudence over the subject matter is conferred by over the subject matter and not at the time of its
law and not the rules. Philippine courts are without commission even if the penalty that may be imposed at
common law jurisdiction or power but only those the time of its commission is less and does not fall
expressly conferred by the Constitution and statutes. under the court’s jurisdiction.
NOTE: Jurisdiction cannot be fixed by the will of the Where the offense was allegedly committed on or
parties not can it be acquired or diminished by any act about December 19, 1995 and the filing of the
of the parties. information was on May 21, 2004, the jurisdiction of the
Sandiganbayan to try a criminal case is to be
Q: How is jurisdiction over the subject matter determined at the time of the institution of the action,
determined? not at the time of the commission of the offense.
A: While jurisdiction of courts is conferred by law, In determining whether or not the court has jurisdiction
jurisdiction over a criminal case is determined by the over an offense, we consider the penalty which may be
allegations in the complaint or information. Thus, the imposed upon the accused and not the actual penalty
compliant or information must be examined for the imposed after the trial.
purpose of ascertaining whether or not the facts set out
therein and the punishment provided by law for such The jurisdiction is not determined by what may be
acts fall within the jurisdiction of the court in which the meted out to the offender after trial, or even by the
criminal action is filed. result of the evidence that would be presented at trial,
but by the extent of the penalty which the law imposes
The jurisdiction of the court is defined by the for the offense, on the basis of the facts alleged in the
Constitution or statute. The elements of that definition information.
must appear in the complaint or information so as to
ascertain which court has jurisdiction of the court is Principle of Adherence of jurisdiction or Continuing
determined by the allegations in the complaint or jurisdiction
information and not by the evidence presented by the
parties at the trial. Q: What is the principle of adherence of jurisdiction or
continuing jurisdiction?
In cases cognizable by the Sandiganbyan, both the
nature of the offense and the position occupied by the A: It means that once a court has acquired jurisdiction,
accused are the conditions sine qua non before the that jurisdiction continues until the court has done all
Sandiganbayan can validly take cognizance of the case. that it can do in the exercise of that jurisdiction. Hence,
jurisdiction once vested cannot be withdrawn or
Q: In complex crimes how is jurisdiction determined? defeated by a subsequent valid amendment of the
information. It cannot also be lost by a new law
amending the rules of jurisdiction.
C. Criminal Jurisprudence Over the Person of the
Once a court acquires jurisdiction over a controversy, it Accused
shall continue to exercise such jurisdiction until the final
determination of the case and it is not affected by the Q: How is jurisdiction over the accused acquired?
subsequent legislation vesting jurisdiction over such
proceedings in another tribunal. A: It is acquired upon his arrest or apprehension, with
or without a warrant, or his voluntary appearance or
Thus, once a complaint or information is filed in court, submission to the jurisdiction of the court.
any disposition of the case such as its dismissal or
continuance rests on the sound discretion of the court. As a rule, seeking affirmative relief is deemed to be a
submission to the jurisdiction of the court. The
Dismissal on jurisdictional grounds voluntary submission of the accused to the jurisdiction
of the court may be effected by filing a motion to
An objection based on the ground that the court lacks quash, appearing for arraignment, participating in the
jurisdiction over the subject matter may be raised or trial or by giving bail.
considered motu propio by the court at any stage of the
proceedings or on appeal. The giving or posting of a bail by the accused is
tantamount to a submission of his person to the
A special appearance before the court to challenge the jurisdiction of the court. Even if it is conceded that the
jurisdiction of the court over the person is not warrant issued was void, the defendant waived the
tantamount to estoppel or a waiver of the objection same by appearing and giving a bond (Cojuangco, Jr. v.
and is not a voluntary submission to the jurisdiction of Sandiganbayan; Velasco v. Court of Appeals).
the court.
However, not all acts seeking affirmative relief would
Q: Can the issue of jurisdiction be raised for the first constitute a voluntary appearance or submission to the
time in the Supreme Court? jurisdiction of the court. Making a special appearance in
court to question jurisdiction is not a voluntary
A: An accused is not precluded from raising the issue of appearance as when in a criminal case a motion to
jurisdiction of the trial court over the offense charged quash is filed precisely on that ground.
because the issue may be raised or considered motu
propio by the court at any stage of the proceedings or Q: What is the difference of being in the custody of the
on appeal. law and being under the jurisdiction of the court?
A party cannot invoke the jurisdiction of the court to A: Being in the custody of the law signifies restraint on
secure affirmative relief against his opponent and after the person, who is thereby deprived of his own will and
obtaining or failing to obtain such relief, repudiate or liberty, binding him to become obedient to the will of
question that same jurisdiction. While the jurisdiction of the law. It is literally custody over the body of the
a tribunal may be challenged at any time, sound public accused. It includes, but not limited to, detention.
policy bars one from doing so after their having
procured that jurisdiction, speculating on the fortunes D. Injunction to Restrain Criminal Prosecution
of litigation.
G.R.: The Court will not issue writs of prohibition or
In the case of Tijam v. Sibonghanoy, the Court earlier injunction preliminary or final, to enjoin or restrain,
ruled that a party may be estopped from questioning criminal prosecution. With more reason will injunction
the jurisdiction of the court for reasons of public policy not lie when the case is still at the stage of preliminary
as when he initially invokes the jurisdiction of the court investigation or reinvestigation.
and then later on repudiates that same jurisdiction.
EXC:
For this case to be applied to a criminal case, the factual
circumstances which justified the application of the bar 1. When injunction is necessary to afford adequate
by laches, must be present in the case. protection to the constitutional rights of the
accused;
2. When it is necessary for the orderly administration
of justice or to avoid oppression or multiplicity of Generally, the prosecutor is afforded a wide attitude of
actions; discretion in the conduct of a preliminary investigation.
3. When there is a prejudicial question which is However, as an exception, judicial review is allowed
subjudice; where the respondent has clearly established that the
4. When the acts of the officer are without or in prosecutor committee grave abuse of discretion.
excess of authority;
5. Where the prosecution is under an invalid law, II. CRIMINAL JURISDICTION OF COURTS
ordinance or regulation;
6. When double jeopardy is clearly apparent; A. Criminal Jurisdiction of the MTCs
7. Where the Court has no jurisdiction over the
offense; Q: Under what circumstances may the MTCs exercise
8. Where it is a case of persecution rather than its criminal jurisdiction?
prosecution;
9. Where the charges are manifestly false and A: Except in cases falling within the exclusive original
motivated by the lust for vengeance; and jurisdiction of the RTC and of the Sandiganbayan, the
10. When there is clearly no prima facie case against MTC shall exercise the following criminal jurisdiction:
the accused and a motion to quash on that ground
has been denied. 1. Exclusive original jurisdiction over all violations of
city or municipal ordinances committed within their
E. Mandamus To Compel Prosecution respective territorial jurisdiction;
2. Exclusive original jurisdiction over all offenses
Q: What is Mandamus? punishable with imprisonment not exceeding 6
years irrespective of the amount of fine, and
A: It is a remedial for parties aggrieved which shall be regardless of other imposable or accessory
issued when “any tribunal, corporation, board, officer penalties, including the civil liability arising from
or person unlawfully neglects the performance of an act such offenses irrespective of kind, nature, value or
which the law specifically enjoins as a duty resulting amount.
from an office, trust, or station. It is not available to
control discretion. Neither may it be issued to compel NOTE: Yet, this rule will not apply in case when the
the exercise of discretion. offense is punishable by fine only.
It is a matter of discretion on the part of the prosecutor Also, jurisdiction of the MTC is qualified by the phrase
to determine which persons appear responsible for the “Except in cases falling within the exclusive original
commission of a crime. Yet, the moment he finds one to jurisdiction of the RTC and of the Sandiganbayan.”
be so liable, it becomes his inescapable duty to charge Hence, MTC does not at all times have jurisdiction over
him therewith and to prosecute him for the same. In offenses punishable with imprisonment not exceeding 6
such case, the rule loses its discretionary character and years if jurisdiction is vested by la either in the RTC or
becomes mandatory. Sandiganbayan.
If despite the sufficiency of the evidence before the Based on Art. 27, the MTC has jurisdiction over offenses
prosecutor, he refuses to file the corresponding punishable by up to the maximum of prision
information against the person responsible, he abuses correccional. Yet, offenses which even if punishable by
his discretion. This is tantamount to a deliberate refusal the maximum of prision correccional are not cognizable
to perform a duty enjoined by law. by the MTC because of an express provision of law like
libel. Accordingly, libel by means of writings or similar
The Secretary of Justice, would gravely abuse his means shall be punishable by prision correccional in its
discretion when, despite the existence of sufficient minimum and medium periods or a fine ranging from
evidence he completely ignored the prosecutor’s P200 to P600,000.00. Yet, under Art. 360 of the RPC, the
finding and proceeded with the questioned resolution criminal action as well as the civil action for such
anchored on purely evidentiary matters in utter offense shall be filed simultaneously or separately with
disregard of the concept of probable cause. the RTC.
c. Offenses involving damage to property through
ARTICLE 27 OF THE RPC criminal negligence where the imposable fine
does not exceed P 10,000.00.
Article 27. Reclusion perpetua. - The penalty of reclusion
perpetua shall be from twenty years and one day to forty B. Criminal Jurisdiction of the RTC
years.
1. Exclusive original jurisdiction in all criminal cases
Reclusion temporal. - The penalty of reclusion temporal shall
not within the exclusive jurisdiction of any court,
be from twelve years and one day to twenty years.
tribunal or body, except those now falling under the
Prision mayor and temporary disqualification. - The duration exclusive and concurrent jurisdiction of the
of the penalties of prision mayor and temporary Sandiganbayan;
disqualification shall be from six years and one day to twelve 2. Exclusive appellate jurisdiction over all cases
years, except when the penalty of disqualification is imposed decided by the MTC within its territorial jurisdiction;
as an accessory penalty, in which case, its duration shall be 3. Special jurisdiction to handle exclusively criminal
that of the principal penalty. cases as designated by the SC;
4. Jurisdiction over criminal cases under special laws:
Prision correccional, suspension, and destierro. - The duration
of the penalties of prision correccional, suspension and
a. Written defamation;
destierro shall be from six months and one day to six years,
except when suspension is imposed as an accessory penalty,
b. Comprehensive Dangerous Drugs Act of 2002;
in which case, its duration shall be that of the principal c. Violations of intellectual property rights;
penalty.
5. Jurisdiction in Money laundering cases
Arresto mayor. - The duration of the penalty or arresto mayor
shall be from one month and one day to six months. C. Criminal Jurisdiction of the Sandiganbayan
Arresto menor. - The duration of the penalty of arresto menor Section 4. Section 4 of the same decree is hereby further
shall be from one day to thirty days. amended to read as follows:
Bond to keep the peace. - The bond to keep the peace shall be "a. Violations of Republic Act No. 3019, as amended, otherwise
required to cover such period of time as the court may known as the Anti-graft and Corrupt Practices Act, Republic Act No.
determine. (As amended by Section 21, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
7659.) Code, where one or more of the accused are officials occupying the
following positions in the government whether in a permanent,
3. Where the only penalty is a fine, the amount acting or interim capacity, at the time of the commission of the
offense:
thereof shall determine the jurisdiction of the court
under the original provisions of B.P. No. 129 which
"(1) Officials of the executive branch occupying the
provided that the MTC shall have exclusive original positions of regional director and higher, otherwise
jurisdiction over offenses punishable with a fine not classified as Grade '27' and higher, of the Compensation
more than P4,000.00; and Position Classification Act of 1989 (Republic Act No.
4. Exclusive original jurisdiction over offense involving 6758), specifically including:
damage to property through criminal negligence;
"(a) Provincial governors, vice-governors,
5. Violations of B.P. 22; members of the sangguniang panlalawigan and
6. Summary procedure: provincial treasurers, assessors, engineers and
other provincial department heads;
a. Violations of traffic laws, rules and regulations,
violations of the rental law; and violations of "(b) City mayors, vice-mayors, members of the
municipal or city ordinances; sangguniang panlungsod, city treasurers,
assessors engineers and other city department
b. All other criminal cases where the penalty heads;
prescribed by law is imprisonment not
exceeding 6 months or a fine not exceeding "(c) Officials of the diplomatic service occupying
P1,000.00 or both, irrespective of other the position of consul and higher;
imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom;
"(d) Philippine army and air force colonels, naval prohibition, certiorari, habeas corpus, injunctions, and other
captains, and all officers of higher rank; ancillary writs and processes in aid of its appellate jurisdiction
and over petitions of similar nature, including quo warranto,
"(e) Officers of the Philippine National Police arising or that may arise in cases filed or which may be filed
while occupying the position of provincial under Executive Order Nos. 1,2,14 and 14-A, issued in 1986:
director and those holding the rank of senior Provided, That the jurisdiction over these petitions shall not
superintendent or higher;
be exclusive of the Supreme Court.
"(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the The procedure prescribed in Batas Pambansa Blg. 129, as well
Office of the Ombudsman and special as the implementing rules that the Supreme Court has
prosecutor; promulgated and may hereafter promulgate, relative to
appeals/petitions for review to the Court of Appeals, shall
"(g) Presidents, directors or trustees, or apply to appeals and petitions for review filed with the
managers of government-owned or -controlled Sandiganbayan. In all cases elevated to the Sandiganbayan
corporations, state universities or educational and from the Sandiganbayan to the Supreme Court, the
institutions or foundations; Office of the Ombudsman, through its special prosecutor,
shall represent the People of the Philippines, except in cases
"(2) Members of Congress and officials thereof classified filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
as Grade'27'and up under the Compensation and Position issued in 1986.
Classification Act of 1989;
"In case private individuals are charged as co-principals,
"(3) Members of the judiciary without prejudice to the accomplices or accessories with the public officers or
provisions of the Constitution;
employees, including those employed in govemment-owned
or controlled corporations, they shall be tried jointly with said
"(4) Chairmen and members of Constitutional
public officers and employees in the proper courts which shall
Commissions, without prejudice to the provisions of the
exercise exclusive jurisdiction over them.
Constitution; and
"(5) All other national and local officials classified as "Any provisions of law or Rules of Court to the contrary
Grade'27'and higher under the Compensation and Position notwithstanding, the criminal action and the corresponding
Classification Act of 1989. civil action for the recovery of civil liability shall at all times be
simultaneously instituted with, and jointly determined in, the
"b. Other offenses orfelonies whether simple or complexed same proceeding by the Sandiganbayan or the appropriate
with other crimes committed by the public officials and courts, the filing of the criminal action being deemed to
employees mentioned in subsection a of this section in necessarily carry with it the filing of the civil action, and no
relation to their office. right to reserve the filing of such civil action separately from
the criminal action shall be recognized: Provided, however,
"c. Civil and criminal cases filed pursuant to and in connection That where the civil action had therefore been filed
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. separately but judgment therein has not yet been rendered,
and the criminal case is hereafter filed with the
Sandiganbayan or the appropriate court, said civil action shall
"In cases where none of the accused are occupying positions
be transferred to the Sandiganbayan or the appropriate
corresponding to salary grade '27' or higher, as prescribed in
court, as the case may be, for consolidation and joint
the said Republic Act No. 6758, or military or PNP officers
determination with the criminal action, otherwise the
mentioned above, exclusive original jurisdiction thereof shall
separate civil action shall be deemed abandoned."
be vested in the proper regional trial court, metropolitan trial
court, municipal trial court and municipal circuit trial court '
as the case may be, pursuant to their respective jurisdiction R.A. 7975 conferred jurisdiction on the Sandiganbayan
as provided in Batas Pambansa Blg. 129, as amended. over certain specified offenses “where one or more of
the principal accused “are officials occupying positions
"The Sandiganbayan shall exercise exclusive appellate stated in the law. R.A 8249 however removed the word
jurisdiction over final judgments, resolutions or orders or principal before the word accused thus transforming
regional trial courts whether in the exercise of their own the phrase to read: “where one or more of the accused.
original jurisdiction orof their appellate jurisdiction as herein
provided. Q: What are the offenses under the jurisdiction of the
Sandiganbayan?
"The Sandiganbayan shall have exclusive original jurisdiction
over petitions for the issuance of the writs of mandamus,
A: Director A of Philhealth at the time of the commission
of the offense and that position is among those
1. Violations of the Anti-Graft and Corrupt Practices enumerated in paragraph 1(g), Sec. 4a of R.A. 8249.
Act; It is if no moment that the position was merely
2. Violations of the Act Declaring Forfeiture in Favor of classified as salary grade 26. While the first part of Sec 4
the State Any Property Found to Have Been of PD. 1606 covers only officials of the executive branch
Unlawfully Acquired by Any Public Officer or with the salary grade 27 and higher, the second part
Employee; therof “specifically includes” other executive officials
3. Violations of Chapter II, Sec.2, Title VII, Book II of whose positions may not be of grade 27 and higher but
the RPC (Arts.210-212); who are by express provision of law placed under the
4. Other offenses or felonies whether simple or jurisdiction of said court.
complexed with other crimes, committed by public
officials mentioned in Sec. a of Sec.4 in relation to Q: Is a member of the Sangguniang Panlungsod whose
their office. salary grade is below 27 and charged with violation of
the Auditing Code of the Philippines under the
NOTE: These offenses however must be those jurisdiction of the Sandiganbayan?
committed by officials “in relation to their office.”
In Serana v. Sandiganbayan, the court held that A: Particularly and exclusively enumerated are
estafa is one of those felonies and the provincial governors, vice-govenors, members of the
Sandiganbayan has jurisdiction if (a) the offense is sangguniang panlalawigan, and provincial treasurers,
committed by a public official or employee assessors, engineers, and other provincial department
mentioned in Sec. 4, paragraph “a;” and (b) the heads; city mayors, vice-mayors, members of the
offense is committed in relation to their office. sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads; officials of
5. Civil and criminal offenses filed pursuant to and in the diplomatic service occupying the position as consul
connection with Executive Order Nos. 1, 2, 14 and and higher; Philippine army and air force colonels, naval
14-A issued in 1986 involving sequestration cases. captains, and all officers of higher rank; PNP chief
superintendent and PNP officers of higher rank; City
Officials and employees with a salary grade of “27” or and provincial prosecutors and their assistants, and
higher” officials and prosecutors in the Office of the
Ombudsman and special prosecutor; and presidents,
a. Officials of the executive branch, occupying the directors or trustees, or managers of government-
position of regional director and higher; owned or controlled corporations, state universities or
b. Members of Congress or officials thereof; and educational institutions or foundations. In connection
c. All other national and local officials. therewith, Section 4 (b) of the same law provides that
other offenses or felonies committed by public officials
It has no reference for example to provincial governors, and employees mentioned in subsection (a) in relation
vice-governors, directors or managers of GOCCs, city to their office also fall under the jurisdiction of the
mayors, vice-mayors, city treasurers, and other officials Sandiganbayan (People v. Sandiganbayan and Rolando
enumerated in Sec. 4 (a)(1) from letters “a” to “g” of PD Plaza).
1606 as amended. They are subject to the jurisdiction of
the Sandiganbayan regardless of the salary grade Salary grade alone does not determine jurisdiction of
(Inding v. Sandiganbayan). the Sandiganbayan
Officers falling below salary grade “27”  It is not only the salary grade that determines the
jurisdiction of the Sandiganbayan.
Q: Does the Sandiganbayan have jurisdiction over a
regional director/manager of GOCCs organized and Q: Is a student regent of a state university considered
incorporated under the Corporation Code? as a public officer?
A: In the case of Geduspan v. People, the Court found A: Yes, he is a public officer whose position is covered
that the petitioner held the position of Department by the law vesting jurisdiction over the Sandiganbayan.
Accordingly, the board of Regents of the UP performs When the actual specific allegations of the intimacy
functions similar to those of a board of trustees of a between the offense and the official duties of the
non-stock corporation. accused need not appear in the information?
Offenses committed in relation to the office If public office is a constituent element of the crime
charged as provided for by statue, there is no need for
To make an offense one committed in relation to the the information to state the specific factual allegations
office, “the relation has to be such that, in legal sense, of the intimacy between the office and the crime
the offense cannot exist without the office.” Thus, the charged, or that the accused committed the crime in
office must be a constituent element of the crime. the performance of his duties.
Public office is not an element of the crime of murder In those instances where public office is not a
since murder may be committed by any person whether constituent element of the offense charged the
a public officer or a private citizen. information has to contain specific factual allegations
showing the intimate connection between the offense
Yet, even if the position is not an essential ingredient of charged and the public office of the accused, and the
the offense charged, if the information avers the discharge of his duties or functions.
intimate connection between the office and the
offense, this would bring the offense within the In the case of Barriga v. Sandiganbayan: There are two
definition of an offense committed in relation to the classes of public office-related crimes under
public office. But it is important that the information subparagraph (b) of Section 4 of Rep. Act No. 8249:
must allege the intimate relation between the offense first, those crimes or felonies in which the public office
charged and the discharge of official duties because the is a constituent element as defined by statute and the
factor that characterizes the charge is the actual recital relation between the crime and the offense is such that,
of facts in the complaint or information. If the in a legal sense, the offense committed cannot exist
information lacks the required specific factual without the office; second, such offenses or felonies
averments to show the intimate connection between which are intimately connected with the public office
the offense charged and the discharge of official and are perpetrated by the public officer or employee
functions, it was ruled that the Sandiganbayan is while in the performance of his official functions,
without jurisdiction over the case (People v. Montejo through improper or irregular conduct.
and Esteban v. Sandiganbayan).
The Sandiganbayan has original jurisdiction over
criminal cases involving crimes and felonies under the
While public office is not an element of murder, the
first classification. Considering that the public office of
offense as alleged shows its commission while the
the accused is by statute a constituent element of the
accused was in the performance of his official functions
crime charged, there is no need for the Prosecutor to
and that the offense could not have been committed
state in the Information specific factual allegations of
had he not held his office (People v. Montejo).
the intimacy between the office and the crime charged,
or that the accused committed the crime in the
In the case of Lacson v. Executive Secretary: The
performance of his duties. However, the
stringent requirement that the charge be set forth with
Sandiganbayan likewise has original jurisdiction over
such particularly as will reasonably indicate the exact
criminal cases involving crimes or felonies committed by
offense which the accused is alleged to have committed
the public officers and employees enumerated in
in relation to his office was, sad to say, not satisfied. We
Section (a) (1) to (5) under the second classification if
believe that the mere allegation in the amended
the Information contains specific factual allegations
information that the offense was committed by the
showing the intimate connection between the offense
accused public officer in relation to his office is not
charged and the public office of the accused, and the
sufficient. That phrase is merely a conclusion between
discharge of his official duties or functions - whether
of law, not a factual avernment that would show the
improper or irregular. The requirement is not complied
close intimacy between the offense charged and the
with if the Information merely alleges that the accused
discharge of the accused's official duties.
committed the crime charged in relation to his office
because such allegation is merely a conclusion of law.

Q: When is an offense deemed to be committed in information except when the offense is one which
relation to the public office? cannot be prosecuted ex officio.
A: It shall b accompanied by the affidavits of the complaint

and his witnesses in such number of copies as there are
1. When such office is an element of the crime accused plus 2 copies for the court’s files.
charged; or
2. When the offense charged is intimately connected Should the court find no cause or ground, it shall order
with the discharge of the official functions of the the dismissal of the case. Otherwise, it shall set the case
accused. for arraignment.
Anti-Money Laundering cases Q: What shall be done during the preliminary

conference?
Those money laundering cases committed by public
officers and private persons who are in conspiracy with A:
such public officers shall be under the jurisdiction of the
Sandiganbayan. 1. Entering into a stipulation of facts;
2. Considering the propriety of allowing the accused to
Forfeiture cases enter a plea of guilty to a lesser offense; or
3. Taking up such other matters to clarify the issues
A forfeiture case under R.A. 1379 arises out of action and to ensure a speedy disposition of cases.
separate and different from plunder case, thus negating
the notion that the crime of plunder absorbs the Q: What is the consequence of the refusal of the
forfeiture cases. accused to stipulate facts, or of his failure to do so?
Summary Procedure in criminal cases A: It shall not prejudice him.
 MTCs shall have jurisdiction over cases falling under Q: What is the effect of any admission of the accused
summary procedure committed within their during the preliminary conference?
jurisdiction.
A: The same must be reduced in writing and signed by
Q: What are the cases subject to summary procedure? the accused and his counsel. Otherwise, such admission
shall not be used against him.
A:
 During trial, an actual examination of the witnesses
1. Violations of traffic laws, rules and regulations; is not required as the affidavits constitute their
2. Violations of rental law; direct testimonies. Yet, they may be subjected to a
3. Violations of municipal or city ordinances; cross-examination, re-direct examination or re-
4. All other criminal cases where the penalty cross examination.
prescribed by law for the offense charged is
imprisonment not exceeding 6 months, or a fine not Q: What is the effect if the witnesses fail to testify?
exceeding P1000.00, or both, irrespective of other
imposable penalties, accessory or otherwise, or of A: His affidavits shall not be considered as competent
the civil liability arising therefrom. evidence for the party presenting the affidavit. Yet, the
5. Offenses involving damage to property through adverse party may utilize the same for admissible
criminal negligence where the imposable fine does purpose.
not exceed P 10,000.00.
Q: When a trial has been conducted, when shall the
The filing of criminal cases under summary procedure court promulgate its judgment?
may be either by complaint or information. In Metro
Manila and other chartered cities, the filing shall be by A: It should not be later than 30 days after the
termination of the trial.
Prohibited pleadings, motions and petitions in R.A. 7160 establishes the rule that the referral of a case
summary procedure to the Lupon for conciliation or settlement is required
before a complaint, petition or action is filed in court.
1. Motion to dismiss the complaint (motion to quash The invocation of judicial authority shall be allowed only
the complaint or information) except on the ground if a certification is issued by the proper barangay official
of lack of jurisdiction over the subject-matter or that judicial intervention may now be availed of
failure to comply with the barangay conciliation because the desired conciliation or settlement was not
proceedings; reached.
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a Q: Under what case is barangay conciliation process
judgment, or for reopening of trial; not required?
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, A: Where the penalty prescribed by law is at least 4
affidavits, or any other paper; years, 2 months, and 1 day. Under the rules, the filing of
6. Memoranda; a complaint for the purpose of conducting the requisite
7. Petition for certiorari, mandamus, or prohibition preliminary investigation is a way of instituting a
against any interlocutory order issued by the court; criminal action.
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement; Preliminary Investigation
10. Reply;
11. Third‐party complaints; and After the required preliminary investigation has been
12. Interventions. (Sec.14 of A.M. No. 08‐8‐7‐SC) completed, the investigating prosecutor may either
recommend the dismissal of the complaint or the filing
III. SYNOPSIS OF THE CRIMINAL LITIGATION of an information in court with an accompanying
PROCESS resolution to that effect prepared by the prosecutor.
There can be no criminal action unless a crime is Such action may be further reviewed by the Secretary of
believed to have been committed. Justice on appeal. The latter may reverse or modify the
resolution of the provincial or city prosecutor or of the
When a crime is committed, there is an offender and chief state prosecutor.
generally a victim. The victim may be a private person
who may be either natural or a juridical person. Q: Under what instance is a preliminary investigation
not required?
Sometimes the offense is committed against public
interest like counterfeiting the great seal of the A: It is when the penalty is less than 4 years, 2 months
Government of the Philippine Islands or committed and 1 day or when they are covered by the Rules on
against public order like rebellion, sedition or disloyalty Summary Procedure.
of public officers and employees.
The rules come into play only when acts are initiated Accordingly, the complaint or information may be filed
that would put the offender in contact with the law. directly with the MTC, and such filing is one of the
The offended party may file a written complaint before recognized ways of instituting a criminal action.
the barangay or in proper cases a sworn complaint
before the prosecuting arm of the government. In Q: What will happen of the court finds probable
certain cases, it may be initiated by filing of a complaint cause?
directly with the MTC.
A: Then it shall issue a warrant of arrest or a
Barangay Conciliation commitment order if the accused has already been
previously taken into custody although the judge may
There are violations of laws or ordinances which require issue summons instead o a warrant of arrest if judge is
compliance with the barangay conciliation proceedings satisfied that there is no necessity for placing the
provided for under the LGC. accused in custody.
“People” and under whose name a crime must be
Q: What if the accused is lawfully arrested without a prosecuted. The second name refers to the name of the
warrant, should he undergo a preliminary offender.
investigation?
It must state the name of the accused or under a
A: As a rule, no, even if under the Rules, the offense fictitious name when his true name is alleged to be
involves a penalty which normally would require such unknown, the name of the offended party, the
investigation. Yet, the complaint or information may be designation of the offense, aver the acts or omissions
filed by the prosecutor after an inquest has been constituting the offense, and specify the qualifying ad
conducted. aggravating circumstances.
Q: What if an inquest prosecutor is not available? It must also state the cause of the accusation against
the accused so he may know the offense for which he is
A: In such case, the compliant may be filed by the charged and also to enable the court to pronounce
offended party or a peace officer directly with court on judgment.
the basis of the affidavit of the party or arresting officer
or person. The date of the commission of the offense which need
not be the precise date unless the same is a material
The rule that a complaint or information may be filed ingredient of the offense, shall be stated also.
without a need for a preliminary investigation is not
absolute because before such complaint or information Implied institution of the civil action
is filed, the person arrested may ask for a preliminary
investigation after signing a waiver of the provisions of When the criminal action is instituted, the civil action
Art. 125 of the RPC. for the recovery of the civil liability arising from the
offense charged shall also be deemed instituted with
Even after such filing, the rule allows the person the criminal action.
arrested to ask for a preliminary investigation within 5
days from the time he learns of the complaint or Yet, when the offended party has waived the civil
information being filed and with the same right to action, reserves the right to institute the same
adduce evidence in his defense. separately or institutes the civil action prior to the
criminal action, the civil action is not deemed instituted
Filing of the information or complaint and other with the criminal action. The same applies for
processes independent civil actions because they do not legally
arise from the offense charged and are independent
Q: How is a criminal action commenced? sources of liability.
A: It is commenced by the filing of a complaint or After the criminal action has been commenced, the
information in court and shall be prosecuted under the separate civil action arising from the offense cannot be
control and direction of the public prosecutor although instituted until final judgment has been entered in the
in special cases, a private prosecutor may be authorized criminal action. Also, of it is filed after the civil action
in writing by the chief of the prosecution office or the has already been instituted, the civil action shall be
regional state prosecution to prosecute the case subject suspended in whatever state it may be found.
to the approval of the court. Independent civil actions however are not suspended
and shall proceed independently of the criminal action.
Q: What should be the content and form of the The suspension of the civil action when the criminal
complaint or information? action is commenced does not also apply to a situation
which poses a prejudicial question. Instead, it is the
A: It must be in writing. The caption of a criminal case criminal action which may be suspended upon a proper
contains at least 2 names. The first name refers to the petition on the ground of the existence of a prejudicial
party that brought the action and this party is question.
denominated as the “People of the Philippines” as the
crime is deemed to have been committed against the Q: What is a prejudicial question?
Whether or not the accused is under detention or out
A: It is a question that exists when the previously on bail, the court shall thereafter set the case for
instituted civil action involves an issue similar or arraignment.
intimately related to the issue raised in the subsequent
criminal action and the resolution of such issue Q: What is arraignment?
determines whether or not the criminal action may
proceed. A: It is a formal mode and manner of implementing the
constitutional right of an accused to be informed of the
Availment of Provisional remedies nature and cause of the accusation against him.
Without arraignment, the accused is not deemed to
When the complaint or information is filed and the civil have been informed of such accusation.
action arising from the offense charged is properly
instituted in accordance with the Rules, the offended Q: What is the effect of the escape of the accused
party may avail of the provisional remedies available in before his arraignment?
civil actions.
A: In such case, the court has no authority to try him in
BAIL absentia.
A person under the custody of the law may gain his Q: Describe the process of arraignment.
release from confinement by availing of the
constitutional right to bail which may be given in the A: The accused is to be arraigned before the court
form of corporate surety, property bond, cash deposit, where the complaint or information was filed or
or recognizance. assigned for trial. It is made in open court by the judge
or clerk and consists of furnishing the accused with a
Q: Where should the application be brought? copy of the complaint or information and the reading of
the same in a language he understands. He then is
A: The accused may apply for bail before or after he is asked whether he pleads guilty or not guilty.
formally charged and as a rule, the application shall be
made in the court where his case is pending but no bail Q: What are the other available options to the
shall be allowed after a judgment of conviction has accused?
becomes final. If before such finality, the accused
applies for probation, he may be allowed temporary A: He may move for bill of particulars if there are
liberty under his bail. defects in the information or complaint which prevent
him from properly pleading to the charge and preparing
NOTE: A person in custody who is not yet charged in for trial.
court may apply for bail with any court in the province,
city, or municipality where he is held. He may also move for the suspension of the
arraignment when justifiable reasons do exist for its
Q: What is the effect of applying for bail? suspension as when among others, the accused appears
to be suffering from an unsound mental condition
A: It shall not bar the accused from challenging the which affects his full understanding of the charges
validity of the arrest. against him and to plead intelligently thereto.
 Bail may be either a matter of right or a matter of Lastly, he may move to quash—to dismiss the
judicial discretion. Even a person charged with a complaint or information.
capital offense may be allowed bail when evidence
of his guilt is not strong, an evidence which the
prosecution has the burden of proving.
Quashal of complaint or information
Arraignment; bill of particulars; suspension of
arraignment The accused may move to quash on the ground that the
facts charged do not constitute an offense or that the
court trying the case has no jurisdiction over the omission charged but interposes a lawful defense, the
offense charged or over the person of the accused. order of trial may be modified.
Q: What is a motion to quash? After the prosecution rests its case, the accused may
now present his evidence to prove his defense and the
A: It is a written motion signed by the accused or hi damages he may have sustained arising from any
counsel which is supposed to distinctly specify both its provisional remedy issued in the case. Yet, he may also
factual and legal grounds. It is filed before the accused move to dismiss the case by presenting a demurrer to
enters his plea. evidence on the ground of insufficiency of evidence.
The demurrer may be presented with or without leave
PRE-TRIAL of court.
Q: When is the pre-trial held? DEMURRER
A: After the arraignment of the accused and within 30 If the demurrer is filed with leave of court is denied, the
days from the date the court acquires jurisdiction over accused shall be allowed to adduce evidence in his
the accused, the court shall order the mandatory trial behalf but shall waive the right to present evidence if
conference to consider certain matters including plea the demurrer to evidence is filed without leave of court
bargaining, stipulation of facts, the marking of the is denied.
evidence, the waiver of objections to admissibility, a
possible modification of the order of the trial and such JUDGEMENT
other matters that will help promote fair and
expeditious trial of the criminal and civil aspects of the After trial, the judgment shall follow.
case. Q: What is judgment?
Pre-trial Order A: It is the adjudication by the court on the guilt or

innocence of the accused and the imposition on him of
After the conference, the court shall issue an order the proper penalty and civil liability, if any.
reciting the actions taken, the facts stipulated and the
evidence marked. Such order shall bind the parties, limit Q: What is the form required for the promulgation of
the trial to matters not disposed of, and control the judgment?
course of the action during the trial, unless modified to
prevent manifest injustice. A: It is required to be written in the language,
personally and directly prepared by the judge and
All the agreements or admissions made or entered signed by him and shall contain clearly and distinctly a
during the pre-trial conference shall be reduced in statement of the facts and the law upon which it is
writing and signed by the accused and counsel; based.
otherwise, they cannot be used against the accused.
It is promulgated by reading it in the presence of the
TRIAL accused and by any judge of the court in which case the
judgment may be pronounced in the presence of his
Q: Within what time should the trial commence? counsel or representative.
A: Within 30 days from the receipt of the pre-trial POST-JUDGMENT REMEDIES

order. Accordingly, while it is commenced it shall
continue from day to day as far as practicable until Before the judgment becomes final or before an appeal
terminated but it may be postponed for a reasonable is perfected, the accused may file a motion for the
period of time for good cause. modification of the judgment or for the settling aside
of the same.
The trial begins with the prosecution presenting its
evidence but when the accused admits the act or He may also move for a new trial or reconsideration.
Such motion for new trial shall be predicated upon
errors of law or irregularities during the trial and the
discovery of new or material evidence. A motion for A: It depends on whether or not the offense is one
reconsideration, on the other hand, may also be filed on which requires a preliminary investigation. Where it is
grounds of errors of law or fact in the judgment. required, a criminal action is instituted by filing the
complaint with the proper officer for the purpose of
He may also appeal from judgment of conviction in conducting the requisite preliminary investigation.
accordance with the procedure set forth in the Rules.
Yet, he may also withdraw the appeal already perfected Q: Where a P.I is not required, how is criminal action
before the record has been forwarded by the clerk of instituted?
court to the proper appellate court. It may be
withdrawn upon proper motion of the appellant before A:
the rendition of the judgment of the case on appeal in
which case the judgment of the court of origin shall 1. By filing the complaint or information directly
become final and the case shall be remanded to the with the Municipal Trial Court of Municipal
latter court for execution of judgment. Circuit Trail Court; or
2. By filing the complaint with the office of the
APPEAL prosecutor. (Section 1, Rule 110, Rules of Court)
The appeal in cases where the penalty imposed is Institution of criminal actions in Metro Manila and
reclusion perpetua or life imprisonment is imposed shall other chartered cities
be by notice of appeal to the CA. The previous rule that
no notice of appeal to the SC where the death penalty is In these places, the complaint shall be filed with the
imposed has been modified. A review of the case by the office of the prosecutor unless otherwise provided n
CA is necessary before the same is elevated to the SC. their charters.
Decisions and final orders of the Sandiganbayan shall be No direct filing in the RTC and MeTC of Manila and
appealable to the SC by petition for review on certiorari other chartered cities
by the SC in accordance with Rule 45 of the Rules of
Court. There is no direct filing of an information or complaint
with the RTC as its jurisdiction covers offenses which
Entry of judgment require preliminary investigation.
When all the remedies have been exhausted and the Also, there is no direct filing with the MTC of
judgment has become final, the same shall be entered Manila because in Manila, including other chartered
in accordance with existing rules. cities, the complaint, as a rule, shall be filed with the
office of the prosecutor, unless otherwise provided by
Chapter II their charters.
PROSECUTION OF OFFENSES
Q: What if there is conflict between a city charter and
RULE 110 a provision of the Rules of Court?
PROSECUTION OF OFFENSES
A: The former shall prevail as the same is a substantive
I. INSTITUTION OF CRIMINAL ACTIONS law.
Q: What is the purpose of criminal actions? Q: What is the effect of the institution of the criminal
action on the prescriptive period?
A: The purpose of a criminal action is to determine the
penal liability of the accused for having outraged the A:
state with his crime and if he be found guilty, to punish
him for it. G.R. It interrupts the running of the period of
prescription of the offense charged.
Q: How are criminal actions instituted?
XPN: When a different rule is provided for in special
laws. Q: Who must prosecute the criminal action? Who
controls the prosecution?
E.g. Prescriptive periods of violations of special laws and
municipal ordinances governed by Act No. 3323 (An Act A: It is prosecuted under the direction and control of
to Establish Periods of Prescription for Violations the prosecutor. It is commenced either by a complaint
Penalized by Special Laws and Municipal Ordinances or an information.
and to Provide When Prescription shall Begin to Run)
shall only be interrupted by the filing of a complaint or All criminal actions shall be prosecuted under the direct
information in court. The filing of a complaint with the supervision and control of the public prosecutor. Even if
prosecutor or the proper officer for purposes of there is a private prosecutor, the criminal action is still
conducting a preliminary investigation will not interrupt prosecuted under the direction and control of the
the prescriptive period. public prosecutor.
In Manila and other chartered cities, the filing of the Appearance of private prosecutor
complaint with the office of the prosecutor shall also
operate to interrupt the period of prescription of the The appointment of a private prosecutor is done by the
offense charged, unless also provided otherwise in offended party and is the mode by which the latter
special laws. intervene in the prosecution of the offense. This is
In the case of People v. Bautista, it is a well-settled rule allowed only where the civil action for the recovery of
declared by the Court, that the filing of the complaint civil liability is instituted with the criminal action
with the fiscal’s office suspends the running of the pursuant to Rule 111.
prescriptive period. It is not terminated upon the City
Prosecutor’s approval of the investigating prosecutor’s The offended party may not intervene in the
recommendation that an information be filed with the prosecution of the offense through a private prosecutor
court. if the offended party (1) waives the civil action, (2)
reserves the right to institute it separately, or (3)
Thus, the filing of a denuncia or complaint for intriguing institutes the civil action prior to the criminal action.
against honor, changed later to grave oral defamation,
even in the fiscal’s office interrupts the period of Effect of the filing of an independent civil action on the
prescription (Francisco v. CA). right of the offended party to intervene in the
prosecution of the offense
Rule on prescription for violations of special laws and
municipal ordinances The institution of an independent civil action does not
deprive the offended party of the right to intervene in
In the case of Sanrio Company Ltd. v. Lim, the court the civil action through a private prosecutor.
confirmed that under Sec. 2 of Act. 3326, the
prescriptive period for violation of special laws starts on Under Sec. 1 of Rule 111, “when a criminal action is
the day such offense was committed and is interrupted instituted, the civil action for the recovery of civil
by the institution of proceedings against the liability arising from the offense charged shall be
respondent. deemed instituted with the criminal action unless the
offended party waives the civil action, reserves the right
Likewise, in Panagguiton, Jr. v. DOJ, the Court held that to institute it separately or institutes the civil action
Act No., Jr. v. DOJ, the Court held that Act No.3326 prior to the criminal action.”
applies to offenses under BP Blg. 22. The petitioner’s
filing of his complaint-affidavit before the Office of the Yet, only the civil liability of the accused arising from the
City Prosecutor signified the commencement of the offense charged is deemed impliedly instituted in a
proceedings for the prosecution of the accused and criminal action. Those not arising from the offense
thus, effectively interrupted the prescriptive period for charged like the independent civil actions referred to in
the offenses they had been charged under BP Blg. 22. Arts. 32, 33, 34 and 2176 of the NCC are not deemed
instituted. These actions shall proceed separately from
II. PROSECUTION OF THE CRIMINAL ACTION criminal actions because they are separate, distinct and
independent of any criminal prosecution even if based even in the absence of the prosecutor charged with
on the same act which also gave rise to the criminal prosecuting the case. The prosecutor at the time was
action. undergoing medical treatment. In this case the Court
held that the presence of a public prosecutor in the
Q: What are the consequences of the rule that a trial of criminal cases is necessary to protect vital state
criminal action is prosecuted under the direction and interests, foremost of which is its interest to vindicate
control of the public prosecutor? the rule of law. Hence, the act of allowing he
presentation of defense witnesses in the absence of
A: The public prosecutor has the power and discretion complainant public prosecutor or a private prosecutor
to: designated for the purpose is a clear transgression of
the Rules which could not be rectified by subsequently
1. Determine whether a prima facie case exists; giving the prosecution a chance to cross-examine the
2. Decide which of the conflicting testimonies should witnesses.
be believed free from the interference or control of
the offended party; Prosecution of a criminal action in the MTC or MCTC
3. Subject only to the right against self-incrimination,
determine which witnesses to present in court. A criminal action in a MTC or MCTC shall also be
prosecuted under the discretion and control of the
NOTE: The public prosecutor may turn over the actual prosecutor. Yet, when the prosecutor assigned is not
prosecution to the private prosecutor but he may at any available, the action may be prosecuted by:
time take over the actual conduct of the trial.
a. The offended party;
Q: What is the extent of the authority of the public b. Any peace officer; or
prosecutor? c. Public officer charged with the enforcement of
the law violated.
A: It includes the discretion whether, what and whom
to charge, the exercise of which depends on factors III. INTERVENTION OF THE OFFENDED PARTY IN
which are best appreciated by prosecutors. He also has THE PROSECUTION OF CRIMINAL ACTION
the discretion to determine the witnesses he is going to
present. A person convicted of a crime is both criminally and
civilly liable.
Q: Can the SC order the prosecution of a person
against whom the prosecutor does not find sufficient Q: What does the civil liability for a crime include?
evidence to support at least a prima facie case?
A:
A: No. The only possible exception to the rule is where
there is an unmistakable showing of grave abuse of 1. Restitution;
discretion on the part of the prosecutor. 2. Reparation for damages caused; and
3. Indemnification for consequential damages
In case of Tan v. People, the Court sustained the
authority of the Acting DOJ Secretary Merceditas It is because of the existence of a civil liability involved
Gutierrez to sign the certification. Accordingly, the DOJ in a crime that the offended party s allowed to
is the prosecuting arm of the government mandated to intervene in the prosecution of the offense.
investigate the commission of crimes, prosecute
offenders and administer the probation and correction Accordingly, by virtue of Sec. 16 of Rule 110 in relation
system. Hence, DOJ is best suited to attest whether a to Sec. 1 of Rule 111, it is necessary that the civil action
similar or related case has been filed or is pending in for the recovery of the civil liability be instituted with
another court or tribunal. the criminal action. If the same is waived, or has been
reserved or has been instituted prior thereto, there is
In the case of State Prosecutor Pinote v. Judge Ayco, no civil liability which would supply the basis for the
where the trial court judge allowed the defense to intervention of the offended party through his counsel
present evidence consisting of testimony of 2 witnesses, or private prosecutor.
Yet, there are cases where the criminal action also gives Prosecution of adultery and concubinage
rise to an independent civil action as in crimes involving
physical injuries, fraud or oral defamation or when the The crimes of adultery and concubinage shall not be
act constituting a crime also constitutes a quasi-delict. prosecuted except upon a complaint filed by the
Thus, the filing of a suit based on a quasi-delict theory offended spouse.
during the pendency of the criminal proceeding, should
not prevent the intervention by the offended party in The same rule provides that the action cannot be
the prosecution of the offense because there still exists instituted against one party alone. It must be instituted
a civil liability under the RPC. Accordingly, the civil against both guilty parties, unless one of them is no
liability arising from a quasi-delict is entirely separate longer alive.
and distinct from the civil liability arising from
negligence under the Penal Code (Art. 2177, NCC). It cannot be instituted if it is shown that the offended
party has consented to the offense or has pardoned the
It should be emphasized that the civil liabilities arising offenders.
from independent civil action and a qausi-delict do not
arise from the felony or crime, and have distinct sources Prosecution of seduction, abduction and act of
from the law or the Civil Code. They are not covered by lasciviousness
the provision of the RPC declaring that persons liable
for a felony are also civilly liable. Such civil actions may The crimes of seduction, abduction and acts of
proceed independently of the criminal proceedings and lasciviousness shall not be prosecuted except upon a
regardless of the result of the latter (Article 31, NCC). complaint filed by the offended party or her parents,
grandparents or guardian, nor in any case, if the
Q: When can private prosecutor may prosecute a case offender has been expressly pardoned by them.
even in the absence of the public prosecutor?
NOTE: The right to file the action granted to parents,
A: He may prosecute the criminal action up to the end grandparents or guardian shall be exclusive of all other
of the trial even in the absence of the public prosecutor persons and shall be successively in the order
of he is authorized to do so in writing. The authorization mentioned.
shall be given by either the Chief of the Prosecution
Office or the Regional State Prosecutor. Yet, it must be Q: Can the pardon be implied?
approved by the court.
A: No, the pardon must be expressly made.
Q: What are the reasons for the written authorization
to be given? Q: What if the offended party dies or becomes
incapacitated before she can file the complaint, and
A: she has no known parents, grandparents or guardian,
who shall initiate the criminal action?
1. That the public prosecutor has a heavy work
load; or A: It is the State. Accordingly, in the order of those who
2. There is a lack of public prosecutors. may file the complaint, the State is in the last and can
only do so in the absence of the persons mentioned.
Q: What is the extent of such authority?
Q: What if the offended party is a minor, can he/she
A: The private prosecutor so authorized shall continue initiate the prosecution of the offense?
to prosecute the case up to the end of trial even in the
absence of a public prosecutor, unless the authority is A: Yes, independently of her parents, grandparents or
revoked or otherwise withdrawn. guardian except if she is incompetent or incapable of
doing so.
IV. PROSECUTION OF “PRIVATE CRIMES” OR
THOSE WHICH CANNOT BE PROSECUTED “DE
OFFICIO”
Q: Under Sec. 27 of R.A. 7610, who may file the A: They are only witnesses for the prosecution. He may
complaints on cases of unlawful acts mentioned in the not therefore appeal the dismissal of a criminal case or
law committed against children? the acquittal of the accused since the aggrieved party is
the People. Yet, he may appeal the civil aspect of the
A: case and file a special civil action for certiorari
questioning the decision on jurisdictional grounds. In
1. Offended party; such case, he must prosecute the same in his own
2. Parents or guardians; personal capacity.
3. Ascendant or collateral relative within the 3rd
degree of consanguinity; Q: Who can appeal the dismissal by the RTC of the
4. Officer, social worker or representative of a criminal case?
licensed child-caring institution;
5. Officer or social worker of the DSWD; A: The OSG. The private offended party has no legal
6. Barangay chairman; or personality to do so.
7. At least 3 concerned, responsible citizens where
the violation occurred. Information
Prosecution of defamation Q: What is an information?
Q: What does defamation include under Sec. 5 of Rule A: Information is an accusation in writing charging a
110? person with an offense, subscribed by the prosecutor
and filed with the court (Sec. 4, Rule 110).
A: It shall include imputation of offenses of adultery,
concubinage, seduction, abduction and acts of It is an accusation in writing and is not required to be
lasciviousness. “sworn” unlike a complaint. Only a public officer
described by the Rules of Court as a “prosecutor” is
Q: Who can initiate the criminal action? authorized to subscribe to the information.
A: Only the offended party. Similar to a complaint, it is filed in the name of the
People of the Philippines against all persons who appear
V. THE COMPLAINT AND INFORMATION to be responsible for the offense involved.
Complaint Q: What are the distinctions between a complaint and

an information?
Q: What is a complaint?
A:
A: It is a sworn written statement charging a person
with an offense, subscribed by the offended party, any Complaint Information
peace officer, or other public officer charged with the It is a sworn written Accusation must be in
enforcement of the law violated (Sec. 3). statement. writing. It requires no
oath. This is because
Q: In whose name and against whom should it be the prosecutor filing
filed? the information is
acting under oath of
A: It is not filed in the name of the private person but in his office.
the name of the People of the Philippines and is filed
against all persons who appear to be responsible for the
offense involved. Must be under oath It requires no oath
Q: What is the role of private offended parties in

criminal cases?

Subscribed by: Subscribed by the Q: Can the accused question the sufficiency of the
prosecutor complaint or information?
1. The offended
party; A: Yes but the same is not absolute as he is deemed to
2. Any peace officer; have waived this right if he fails to object upon his
3. Other public arraignment or during trial. In either case, evidence
officer charged presented during trial can cure the defect in the
with the information.
enforcement of
the law violated Q: When is the accused deemed to have waived his
(Sec. 3) right to assail such insufficiency?
A: It is when he voluntarily entered a plea when

Q: What is the consequence of any infirmity in the arraigned and participated in the trial.
signature in the information?
Q: When should the objections as to form of the
A: It is a valid information signed by a competent complaint or information be made?
officer, which confers jurisdiction on the court over the
person of the accused and the subject matter of the A: The accused should moved before arraignment
accusation. either for a bill of particulars or for the quashal of the
information. Objections relating to the form of the
But an infirmity in the information, such as lack of complaint or information cannot be made for the first
authority of the officer signing it, cannot be cured by time on appeal.
silence, acquiescence, or even by express consent.
Date of the commission of the offense
Q: When is a complaint or information deemed
sufficient? It is not necessary to state in the complaint or
information the precise date the offense was
A: It is deemed sufficient if it contains the following: committed except when the date of the commission is a
material element of the offense. The offense may thus
1. The name of the accused; if the offense is be alleged to have been committed on a date as near as
committed by more than 1 person, all of them possible to the actual date of its commission.
shall be included in the compliant or information;
2. The designation of the offense given by statute; In rape cases, the failure to state the exact dates or
3. The acts or omissions complained of as times when the raped occurred does not ipso facto
constituting the offense; make the information defective on its face since the
4. The name of the offended party; gravamen of rape is carnal knowledge of a woman
5. The approximate date of the commission of the through force or intimidation.
offense; and
6. The place where the offense was committed. Determination of the nature and character of the
crime
Q: What is the test for sufficiency of the complaint or
information? Q: What determines the nature and character of a
crime?
A: It is whether the crime is described in intelligible
terms with such particularity as to apprise the accused, A: The character of the crime is determined neither by
with reasonable certainty, of the offense charged and the caption or preamble of the information nor by the
thus, in order to enable the latter to prepare for his specification of the provision of law alleged to have
defense, since he is presumed to have no independent been violated, they being conclusions of law, but by the
knowledge of the facts that constitute the offense. recital of the ultimate facts and circumstances in the
information.

Q: What is the effect of a defective designation of the described with such particularity as to properly identify
crime in the information? the offense charged.
A: It does not render the information invalid since what (b) If the true name of the person against whom or
is controlling is the allegation of the facts in the against whose property the offense was committed is
information that comprises a crime and adequately thereafter disclosed or ascertained, the court must
describes the nature and cause of the accusation cause such true name to be inserted in the complaint or
against the accused. information and the record.
Q: How to state the name of the accused? Q: How to state the name of the offended party which
is a juridical person?
A: Section 7 of Rule 110 establishes the following rules
in designating the name of the accused: A:
1. The complaint or information must state the name (c) If the offended party is a juridical person, it is
and surname of the accused or any appellation or sufficient to state its name, or any name or designation
nickname by which he has been or is known. by which it is known or by which it may be identified,
2. If his name cannot be ascertained, he must be without need of averring that it is a juridical person or
described under a fictitious name. A description of that it is organized in accordance with law.
the accused under a fictitious name must be
accompanied by a statement that his true name is Q: What is the rule if the name of the offended party is
unknown. unknown in the offenses as against property?
3. If later his true name is disclosed by him of becomes
known in some other manner, his true name shall A: In such case, the property must be described with
be inserted in the complaint or information and in such particularity as to properly identify the offense
the records of the case. charged. In case of Sayson v. People, the Court ruled
that in case of offenses against property, the
Q: What is the effect of a mistake in the name of the designation of the name of the offended party is not
accused? absolutely indispensable for as long as the criminal act
charged in the complaint or information can be properly
A: It is not equivalent to and does not necessarily identified.
amount to, a mistake in the identity of the accused
especially when sufficient evidence is adduced to show Designation of the offense
that the accused is pointed to as one of the
perpetrators of the crime. It is the allegations in the information that determine
the nature of the offense, not the technical name given
Q: How to state the name of the offended party who is by the public prosecutor in the preamble of the
a natural person? information. Accordingly, the real question is not did he
commit a crime given in the law some technical and
A: specific name, but did he perform the acts alleged in the
body of the information in the manner therein set forth.
Sec. 12. Name of the offended party. – The complaint or
information must state the name and surname of the The particularity must be such that a person of ordinary
person against whom or against whose property the intelligence immediately knows what the charge is.
offense was committed, or any appellation or
nickname by which such person has been or is known. If Q: What are the rules in designating the offenses?
there is no better way of identifying him, he must be
described under a fictitious name. A:
(a) In offenses against property, if the name of the 1. The designation of the offense requires, as a rule,
offended party is unknown, the property must be that the name given to the offense by statute must
be stated in the complaint or information.
If the statute gives no designation to the offense, Every information must state the qualifying and
then reference must instead be made to the section aggravating circumstances attending the commission of
or subsection punishing it. the crime for them to be considered in the imposition of
2. To be included in the complete designation of the the penalty.
offense is an averment of the acts or omissions
constituting the offense; Accordingly, it would be a denial of the right of the
3. The complaint or information must specify the accused to be informed of the charges against him, and
qualifying and aggravating circumstances of the consequently, denial of due process, if he is charged
offense. with simple rape, on which he was arraigned, and be
convicted of qualified rape punishable by death (People
Q: What is the effect of failure to designate the v. Mendoza).
offense by the statute or failure to mention the
provision violated? Thus, the information or complaint must state the
designation of the offense given by the statute and
A: Failure to designate the offense by the statute or to specify its qualifying and generic aggravating
mention the specific provision penalizing the act or an circumstances and the accused will not be convicted of
erroneous specification of law violated does not vitiate the offense proved during the trial if it was not properly
the information if the facts alleged clearly recite the alleged in the information.
facts constituting the crime charged. There is no law
which requires that in order that an accused may be The courts could no longer consider the aggravating
convicted, the specific provision which penalizes the act circumstances not alleged and proven in the
charged be mentioned in the information. determination of the penalty and in the award of
damages.
In Licyayo v. People, the Court held that the fact that
the information does not specifically mention Art. 249 The qualifying circumstances need not be preceded by
of the RPC as the law which defines and penalizes prescriptive words such as “qualifying” or “qualified by”
homicide, does not make the information defective. to properly qualify an offense. It is the specific
There is nothing in the Rules of Court which specifically allegation of an attendant circumstance which adds the
requires that the information must state the particular essential element raising the crime to be a higher
law under which the accused is charged in order for it to category.
be considered sufficient and valid. Accordingly, the
allegations unmistakably refer to homicide which is the Cause of accusation
unlawful killing of any person other than murder or
infanticide. No matter how conclusive and convincing the evidence
of guilt may be, an accused cannot be convicted of any
It is not negated by an incomplete or defective offense unless it is charged in the information on which
designation but by the narration of facts and he is tries or is necessarily included therein.
circumstances which adequately depicts a crime and
sufficiently apprises the accused of the nature and In case of variance between the allegation in the
cause of the accusation against him. information and proof adduced during trial shall be
fatal to the criminal case if it is material and prejudicial
Q: What is the effect of the failure to specify the to the accused so much so that it affects his substantial
correct crime? rights.
A: It will not bar conviction of an accused. The character Q: What should be the content of the complaint or
of the crime is not determined by the caption or information?
preamble of the information or by the specification of
the provision of law alleged to have been violated. A: The acts or omissions complained of as constituting
the offense and the qualifying and aggravating
Statement of the qualifying and aggravating circumstances must be stated in ordinary and concise
circumstances 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 An objection must be timely interposed whenever a
being charged as well as its qualifying and aggravating complaint or information charges more than one
circumstance and for the court to pronounce judgment. offense. Otherwise, it would constitute waiver.
Accordingly, if he does not object, the court may convict
The information must allege clearly and accurately the him as many offenses as are charged and proved, and
elements of the crime charged. What facts and impose on him the penalty for each offense.
circumstances are necessary to be included therein
must be determined by reference to the definition and VI. VENUE OF CRIMINAL ACTIONS
elements of the specific crimes.
As a rule, criminal action shall be instituted and tried in
In the case of People v. Mejia, the court ruled that court of the municipality or territory:
“Jurisprudence dictates that when the law specifies
certain circumstances that will qualify an offense and a. Where the offense was committed; or
thus attach to it a greater degree of penalty, such b. Where any of its essential ingredients occurred.
circumstances must be both alleged and proven in
order to justify the imposition of the graver penalty. Written defamation cases
Recent rulings of the Court relative to the rape of
minors invariably state that in order to justify the Whether the offended party is a public official or a
imposition of death, there must be independent private individual, the criminal action may be filed in the
evidence proving the age of the victim, other than the RTC of the province or city where the libelous article is
testimonies of prosecution witnesses and the absence printed and first published.
of denial by the accused. A duly certified certificate of
live birth accurately showing the complainant's age, or Yet, if the offended party is a private individual, the
some other official document or record such as a school action may also be filed in the RTC of the province
record, has been recognized as competent evidence. where he actually resided at the time of the commission
of the offense. If the party is a public officer holding
In the instant case, we find insufficient the bare office in Manila at the time of the commission of the
testimony of private complainants and their mother as offense, the action may be filed with the RTC of Manila.
to their ages as well as their kinship to the appellant. x x If he holds office outside Manila, the action may be filed
x [We] cannot agree with the solicitor general that in the CFI of the province or city where he held office at
appellant's admission of his relationship with his victims the time of the commission of the offense.
would suffice. Elementary is the doctrine that the
prosecution bears the burden of proving all the Rule where offense is committed in a train, aircraft or
elements of a crime, including the qualifying vehicle
circumstances. In sum, the death penalty cannot be
imposed upon appellant.” It shall be instituted and tried in the court of any
municipality or territory where such train, aircraft or
How to state the date of the commission of the vehicle passed during its trip, including the place of
offenses? departure and arrival. This rule applies when the
offense is committed in the course of its trip.
It is not necessary to state the precise date of the
offense was committed because the offense may be Rule when the offense is committed on board a vessel
alleged to have been committed on a date as near as
possible to the actual date of its commission except The criminal action shall be instituted and tried:
when the date is a material ingredient of the offense. a. In the court of the first port of entry; or
b. The municipality or territory where the vessel
Duplicity of the offense passed during its voyage.
A complaint or information must charge only one How to state the place of the commission of the
offense, except when the law prescribes a single offense
punishment for various offenses.
Q: When is the statement the place of the commission an amendment in substance is not allowed at this
of the offense deemed sufficient? stage except if the same is beneficial to the accused.
A: If it can be understood from the allegations of the In Ricarze v. CA, the Court held that before the accused
complaint or information that the offense was enters his plea, a formal or substantial amendment of
committed or some of its essential ingredients occurred the complaint or information may be made without
at some place within the jurisdiction of the court. Yet, if leave of court—after the entry of plea, only a formal
the particular place where the offense was committed amendment may be made but with leave of court and if
is an essential ingredient of the offense or is necessary it does not prejudice the rights of the accused.
for its identification, the description of the place of the
commission of the offense must be specific. Q: When is an amendment considered as formal or
substantial?
VII. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION A: A substantial amendment consists of a recital of
facts constituting a change in the offense charged to the
Amendment prejudice of a party because another set of evidence is
required to suit the new charge or because it deprives
Q: When does the amendment of the information or an accused the opportunity to meet the new offense.
complaint need not be with leave of court? All other matters are merely in form.
A: If the same is made before the accused enters his Q: What is the test in determining if the defendant is
plea, the complaint or information may be amended in prejudiced by the amendment?
form or substance without the need for leave of court.
A: Whether a defense under the information as it
Q: When is leave of court required eve if the originally stood would be available after the
amendment is made before plea? amendment is made, and whether any evidence
defendant might have would be equally applicable to
A: the information in the one form as in the other.
1. If the amendment downgrades the nature of An amendment which does not change the nature of
the offense charged; or the crime alleged does not affect the essence of the
2. The amendment excludes any accused from the offense or cause surprise or deprive the accused of an
complaint or information. opportunity to meet the new averment had each been
held to be one of form and not of substance.
Also, the Rule mandated the court to state its reasons in
resolving the motion of the prosecutor and to furnish all Q: Cite examples of formal amendments?
parties, especially the offended party, of copies of its
order. A:
Q: State the rule as to amendment made after the 1. New allegations which relate only to the range of
plea of the accused. the penalty that the court might impose in the
event of conviction;
A: If the amendment is made after the plea of the 2. An amendment which does not charge another
accused and during the trial, any formal amendment offense different or distinct from that charged in
may only be made under 2 conditions: the original case;
3. Additional allegations which does not alter the
a. Leave of court must be secured; and prosecution’s theory of the case so as to cause
b. The amendment does not cause prejudice to surprise to the accused and affect the form of
the rights of the accused. defense he has or will assume;
4. One which does not adversely affect any
Since the rule makes reference only to a formal substantial right of the accused; and
amendment after plea, hence there is an indication that
5. An amendment that merely adds specifications to of court as the original the plea is entered can
eliminate vagueness in the information and does information has to be be effected without
not introduce new and material facts, and merely dismissed. leave of court.
states with additional precision something which is
already contained in the original information and Substitution of the An amendment as to
which adds nothing essential for conviction for the information entails form will not require
crime charged. another preliminary another preliminary
investigation and plea investigation and
Q: Is an amendment from homicide to murder a to the new retaking of plea of the
substantial one? information. accused.
A: In the case of Pacoy v. Judge Afable Cajigal, the court Requires or An amended
ruled the change of the offense as merely a formal presupposes that the information refers to
amendment and not substantial. Accordingly, the new information the same offense
information shows that the only change made was in involves a different charged in the original
the caption of the case. There was no change in the offense which does information or to an
recital of facts constituting the offense charged in the not include or is not offense which
determination of the jurisdiction of the court. necessarily included in necessarily includes or
the original charge; is necessarily included
Substitution hence the accused in the original charge,
cannot claim double hence substantial
Q: Under what circumstance can a complaint or jeopardy amendments to the
information be substituted. information after the
plea has been taken
A: If it appears at any time before judgment that a cannot be made over
mistake has been made in charging the proper offense. the objection of the
In such case, the court shall dismiss the original accused, for if the
complaint or information once the new one charging original would be
the proper offense is filed provided the accused will not withdrawn, the
be placed in double jeopardy. accused could invoke
double jeopardy.
Sec. 9 of Rule 19:
Sec. 19. When mistake has been made in charging the Chapter III
proper offense. – When it becomes manifest at any
time before judgment that a mistake has been made in RULE 111
charging the proper offense and the accused cannot be PROSECUTION OF CIVIL ACTION
convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be Implied institution of the civil action with the criminal
discharged if there appears good cause to detain him. In action
such case, the court shall commit the accused to answer
for the proper offense and dismiss the original case When a criminal action is instituted, the civil action for
upon the filing of the proper information. the recovery of the civil liability arising from the offense
charged shall be deemed instituted with the criminal
Q: Distinguish between substitution and amendment. action since every person criminally liable for a felony is
also civilly liable (Art. 100 of the RPC).
Substitution Amendment
Involves substantial May involve either Q: What are the 2 aspects of a criminal case?
change from the formal or substantial
original charge changes A:
It must be with leave Amendment before 1. Civil and

2. Criminal
A: it is the Rule on Criminal Procedure not the Rules of
A separate civil action would only prove to be costly, Civil Procedure as one of the issues in a criminal case is
burdensome and time-consuming for both parties. The the civil liability of the accused arising from the crime.
multiplicity of suits must be avoided.
Q: When may a civil action proceed independently?
Q: What is the exception to Art. 100 of the RPC?
A: The institution of an independent civil action based
A: In instances when no actual damage results from an on Arts. 32 33, 34 and 2176 of the Civil Code against
offense, such as espionage, violation of neutrality, flight the offender may proceed independently of the criminal
to an enemy country, and crime against popular case at the same time without the suspension of either
representation. proceeding (Sec. 3 Rule 111).
NOTE: It requires only a preponderance of evidence and
The civil action is deemed instituted with the criminal the offended party is entitled only to the bigger award
action unless the offended party waives the civil action when the awards in the cases vary.
or reserves the right to institute it separately or
institutes the civil action prior to the criminal action. Thus, if the EE/driver of a common carrier, by his
negligent act causes serious injuries to pedestrian, the
Yet, if there is no criminal case against the respondents former is not only civilly liable as a result of the
when the Ombudsman is still in the process of finding felonious act (reckless imprudence resulting to serious
probable cause to prosecute the respondent, the rule physical injuries) but is likewise liable under quasi-
that a civil action is deemed instituted is not applicable delict. Such civil liabilities even if resulting from the
(ABS-CBN v. Ombudsman). same negligent act are separate and independent of
each other.
Q: What are the purposes of the criminal and civil
actions? CIVIL CODE PROVISIONS
Art. 2177. Responsibility for fault or negligence under the

A: The primary purpose of the criminal action is to preceding article is entirely separate and distinct from the civil
punish the offender in order to deter him and others liability arising from negligence under the Penal Code. But the
from committing the same or similar offense, to isolate plaintiff cannot recover damages twice for the same act or
him from society, reform and rehabilitate him. On the omission of the defendant. (n)
other hand, the sole purpose of civil action is for the
Art. 32. Any public officer or employee, or any private individual,
resolution, reparation or indemnification of the private who directly or indirectly obstructs, defeats, violates or in any
offended party for damage or injury he sustained by manner impedes or impairs any of the following rights and liberties
reason of the delictual or felonious act of the accused. of another person shall be liable to the latter for damages:
(1) Freedom of religion;

Hence, in case of conviction, the court should state the (2) Freedom of speech;
civil liability or damages caused by the wrongful act or (3) Freedom to write for the press or to maintain a periodical
omission to be recovered from the accused by the publication;
offended party, if there is any. (4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
Q: Who are the real parties in interest in the civil of law;
aspect of the case? (7) The right to a just compensation when private property is
taken for public use;
A: They are the offended party and the accused. Thus, (8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and
either the offended party or the accused may appeal effects against /unreasonable searches and seizures;
the civil aspect of the judgment despite the acquittal of (10) The liberty of abode and of changing the same;
the accused. The public prosecutor has no interest in (11) The privacy of communication and correspondence;
appealing the civil aspect of a decision acquitting the (12) The right to become a member of associations or societies for
purposes not contrary to law;
accusd.
(13) The right to take part in a peaceable assembly to petition the
government for redress of grievances;
Q: In such case, what is the Rule applicable? (14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail; b. The institution or the waiver of the right to file a
(16) The right of the accused to be heard by himself and counsel, separate civil action arising from the crime
to be informed of the nature and cause of the accusation against
him, to have a speedy and public trial, to meet the witnesses face charged does not extinguish the right to bring
to face, and to have compulsory process to secure the attendance such action;
of witness in his behalf; c. Even if a civil action is filed separarely, the ex
(17) Freedom from being compelled to be a witness against one's delicto civil liability in the criminal prosecution
self, or from being forced to confess guilt, or from being induced by
remains and the offended party may still
a promise of immunity or reward to make such confession, except
when the person confessing becomes a State witness; intervene in the criminal action.
(18) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in accordance Q: When is there no implied institution of the civil
with a statute which has not been judicially declared action?
unconstitutional; and
(19) Freedom of access to the courts.
A:
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes a criminal offense, the 1. When the offended party waives the civil
aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil
action;
action shall proceed independently of any criminal prosecution (if 2. When the offended party reserves the right to
the latter be instituted), and mat be proved by a preponderance of institute the civil action separately; or
evidence. 3. When the offended party institutes the civil
action prior to the criminal action.
The indemnity shall include moral damages. Exemplary damages
may also be adjudicated.
Reservation of the civil action
The responsibility herein set forth is not demandable from a judge
unless his act or omission constitutes a violation of the Penal Code If the party reserve the right to institute the civil action
or other penal statute.
after the criminal action has been instituted, the
Art. 33. In cases of defamation, fraud, and physical injuries a civil reservation shall be made before the prosecution starts
action for damages, entirely separate and distinct from the presenting its evidence.
criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, No reservation of the civil action in BP Blg. 22
and shall require only a preponderance of evidence.
Art. 34. When a member of a city or municipal police force refuses The right to reserve does not apply to a prosecution of a
or fails to render aid or protection to any person in case of danger criminal for violation of BP Blg. 22 which is the law on
to life or property, such peace officer shall be primarily liable for bouncing checks. The criminal action in this case shall
damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be
be deemed to include the corresponding civil action. No
independent of any criminal proceedings, and a preponderance of reservation to file such civil action shall be allowed.
evidence shall suffice to support such action.
In such case, the offended party shall pay in full the
Q: What are the consequences of the independent amount of the check involved which shall be considered
character of actions under the forgoing articles? as the actual damages claimed.
A: Yet the law does not prohibit the waiver of the civil
action or the institution of the civil action prior to the
1. The right to bring the civil action shall proceed criminal action.
independently of the criminal action and regardless
of the results; Q: Is there an exemption from the above rule?
2. The quantum of proof required is preponderance of
evidence; A: Yes, a separate proceeding for the recovery of civil
3. liability in case of violation of BP. 22 is allowed when
the civil case is filed ahead of the criminal case.
a. The right to bring the forgoing actions based on
the CC need not be reserved; Q: When is the separate civil action suspended?

A: After the criminal action is commenced, the separate damages twice for the same act or omission charged in
civil action arising therefrom cannot be instituted until the criminal action.
final judgment has been entered in the criminal action.
There o preference given to the resolution of the ARTICLE 31 OF THE NCC
criminal action.
Art. 31. When the civil action is based on an obligation
Also, if the civil action was commenced before the not arising from the act or omission complained of as a
institution of the criminal action, the civil action shall be felony, such civil action may proceed independently of
suspended in whatever stage it may be found before the criminal proceedings and regardless of the result of
judgment on the merits, once the criminal action is the latter.
commenced. This however will not apply to
independent civil actions. In these cases, the failure to make a reservation in the
criminal action is not a waiver of the right to file a
Consolidation of the civil action with the criminal separate and independent civil action based on these
action articles of the NCC.
Counterclaim, cross-claim, third party claim in a
To avoid delay however, the offended party may move criminal action
for the consolidation of the civil action with the criminal
action in the court trying the criminal action. The Court cannot entertain counterclaims, cross-claims
and third party complaints in the criminal action. It is
The motion for consolidation is to be filed before the not the proper proceedings to determine the private
judgment on the merits is rendered in the civil action. complainant’s civil liability.
The consolidated criminal and civil actions shall be tried
and decided jointly. Sec. 1(a) of Rule 111
If the civil action was commenced ahead of the criminal No counterclaim, cross-claim or third-party complaint
action and evidence had already been adduced in the may be filed by the accused in the criminal case, but any
civil action even before the institution of the latter, the cause of action which could have been the subject
evidence so adduced shall be deemed automatically thereof may be litigated in a separate civil action.
reproduced in the criminal action without prejudice to
the right to cross-examine the witnesses presented by Rules on Filing Fees
the offended party in the criminal case.
Q: What are the rules on filing fees?
Suspension of the period of prescription
A:
Where there is no consolidation of the civil action with
the criminal action and the former is suspended or the 1. There are no filing fees for actual damages
civil action cannot be instituted separately despite its claimed even if specified unless required by the
reservation until after final judgment is rendered in the Rules as in BP Blg. 22;
criminal action, the running period of the civil action 2. Filing fees shall be paid by the offended party
shall be tolled during the pendency of the criminal upon the filing of the criminal action in court
action. where he asks for the enforcement of the civil
liability of the accused by way of moral,
Q: When is there no reservation required and thus the nominal, temperate or exemplary damages and
civil action is not suspended? where the amount of damages is specified.
A: In the cases provided in Articles 32, 33, 34 and 2176 Q: What if the amounts are not specified in the
of the Civil Code of the Philippines, the independent complaint or information but damages were then
civil action may be brought by the offended party. It awarded?
shall proceed independently of the criminal action and
shall require only a preponderance of evidence. In no
case, however, may the offended party recover
A: Then the filing fees based on the amount awarded Effect of acquittal or the extinction of the penal action
shall constitute a first lien on the judgment awarding on the civil action or liability
such damages.
The extinction of the penal action does not carry the
Effect of death of the accused on the civil action extinction of the civil action. Yet, the civil action based
on delict may be extinguished if there is a final
If the accused dies after arraignment and during the judgment that the act or omission from which the civil
pendency of the criminal action, the civil liability arising liability may arise did not exist.
from the crime is extinguished but the independent civil
actions mentioned and those civil liabilities arising from In case of acquittal, the accused may still be adjudged
other sources of obligation may be continued against civilly liable. The extinction of the penal action does not
the estate or legal representative of the accused after carry the extinction of the civil action where:
proper substitution or against the estate as the case
may be. a. The acquittal is based on a reasonable doubt as
only preponderance of evidence is required;
The court shall forthwith order the legal representative b. The court declares that the civil liability is only
to appear and be substituted within a period of 30 days civil;
from notice. c. The civil liability does not arise from or is not
based on the crime upon which the accused
If the accused dies before arraignment, the case shall was acquitted.
be dismissed but the offended party may file proper
civil action against the estate of the deceased. The civil liability is not extinguished by acquittal where
such acquittal is based on lack of proof beyond
In the case of ABS-CBN v. Ombudsman, the Court held reasonable doubt, since only preponderance of
that the death of the accused prior to the final evidence is required in civil cases.
judgment terminates his criminal liability and only the
civil liability directly arising from and based solely on Sec.2 of Rule 120
the offense committed. But the claim for civil liability
predicated on other source of obligation other than Sec. 2. Contents of the judgment. – If the judgment is of
delict survives notwithstanding the death of the conviction, it shall state (1) the legal qualification of the
accused. offense constituted by the acts committed by the
accused and the aggravating or mitigating
Where the civil action survives, an action for recovery circumstances which attended its commission; (2) the
may be pursued but only by way of filing a separate civil participation of the accused in the offense, whether as
action. It may be enforced either against the principal, accomplice, or accessory after the fact; (3) the
executor/administrator or the estate of the accused, penalty imposed upon the accused; and (4) the civil
depending of the source of obligation. liability or damages caused by his wrongful act or
omission to be recovered from the accused by the
The death of the accused during the pendency of his offended party, if there is any, unless the enforcement
appeal with the SC totally extinguished his criminal of the civil liability by a separate civil action has been
liability. Only civil liability predicated on a source of reserved or waived.
obligation other than the delict survived the death of
the accused. In case the judgment is of acquittal, it shall state
whether the evidence of the prosecution absolutely
Novation: extinguishment of criminal liability failed to prove the guilt of the accused or merely failed
to prove his guilt beyond reasonable doubt. In either
Q: Can novation extinguish criminal liability of a case, the judgment shall determine if the act or
person? omission from which the civil liability might arise did
not exist.
A: Novation is not one of the grounds in the RPC for the
extinguishment of the criminal liability. In the case of Romero v. People, the Court held that
every crime give rise to (1) a criminal action for the
punishment of the guilty party and (2) a civil action for 1. The previously instituted civil action involves an
the restitution of the thing, repair of the damage, and issue similar or intimately related to the issue
indemnification. raised in the subsequent criminal action; and
2. The resolution of such issue determines
Q: What is the effect of payment of civil liability? whether or not the criminal action may
proceed.
A: It does not extinguish the criminal liability. While
there may be a compromise upon the civil liability In the case of Magestrado v. People, the Court held that
arising from the offense, such compromise shall not to be considered as a prejudicial question, the following
extinguish the public action for the imposition of the requisites must be present:
penalty.
a. The civil case involves facts intimately related to
Q: What is the effect of judgment in the civil case those upon which the criminal prosecution
absolving the defendant? would be based;
b. In the resolution of the issue or issues raised in
A: It will not bar a criminal action against the defendant the civil action, the guilt or innocence of the
for the same act or omission subject of the civil action. accused would necessarily be determined; and
c. Jurisdiction to try said question must be lodged
Subsidiary liability of employer in another tribunal.
Q: Before the ER’s subsidiary liability is enforced, what Q: Under what cases will this rule not apply to?
must be established?
A:
A:
1. When both cases are both criminal;
1. That they are indeed the ERs of the convicted 2. Both civil;
EEs; 3. Both cases are administrative;
2. They are engaged in some kind of industry; 4. One case is administrative and the other civil;
3. The crime was committed by the EEs in the 5. One case is administrative and the other is criminal;
discharge of their duties; and 6. If the criminal case was instituted prior to the civil
4. The execution against the latter has not been case because the rule does not merely refer to an
satisfied due to insolvency. instituted civil action but specifically to previously
instituted criminal action; and
PREJUDICIAL QUESTION 7. If the civil and the criminal action can proceed
independently of each other.
Q: What is a prejudicial question?
NOTE: The civil action must be instituted prior to the
A: It is an issue involves in a civil case which is similar or institution of the criminal action. Otherwise, no
intimately related to the issue raised in the criminal prejudicial question exists.
action, the resolution of which determines whether or
not the criminal action may proceed. Accordingly, The Rule also presupposes that the issue that leads to a
because the jurisdiction to try and resolve such prejudicial question is one that arises in the civil case
question has been lodged in another tribunal, the and not in the criminal case. It is the issue in the civil
proceedings in the first case may be suspended to await case which needs to be resolved first before it is
the resolution of the prejudicial question in the second determined whether or not the criminal case should
case in order to avoid 2 conflicting decisions in the civil proceed or whether or not there should be a judgment
and in the criminal case. of acquittal or conviction.
Q: What are the requisites for a prejudicial question? It is not enough that both cases involve the same facts
or even the same or similar issues. The mere claim that
A: The elements of a prejudicial question are: the issues are intimately related will not necessarily
make the issue in the civil case prejudicial to the
resolution of the issue in the criminal case. It is critical Accordingly, in the latter case, the issue is whether the
to show that the issue in the civil case is determinative offender commenced the commission of the crime of
of the issue in the criminal case. If the resolution of the parricide. On the other hand, in the former case, the
issue in the civil action will not determine the criminal issue is whether the petitioner is psychologically
responsibility of the accused then the civil case does not incapacitated to comply with the essential marital
involve a prejudicial question. obligations. It would be immaterial to the criminal case
because prior to the declaration of nullity, the alleged
Q: What is the effect of the existence of a prejudicial act constituting the crime of frustrated parricide had
question? already been committed and all that is required is that
at the time of the commission of the crime is that the
A: A petition for the suspension of the criminal action marriage is still subsisting. Also, the facts show that the
based upon the pendency of prejudicial question may criminal case was filed ahead of the case for declaration
be filed. Thus, the rule precludes a motu propio of nullity. Hence, no prejudicial question exists.
suspension of the criminal action.
While the relationship between the offender and the
Since a petition to suspend can be filed only in the victim is a key element in the crime of parricide, the
criminal action, the determination of the pendency of a issue in the annulment of marriage is not similar or
prejudicial question should be made at the first instance intimately related to the issue in the criminal case of
in the criminal action and not before the SC in an appeal parricide. The subsequent dissolution of marriage will
from the civil action (IBP v. Atienza). have no effect on the alleged crime that was committed
at the time of the subsistence of marriage.
Also, where there is a prejudicial question the action
the action to be suspended is the criminal and not the In Magestrado v. People, a criminal complaint was filed
previously instituted civil action. A prejudicial question for perjury against petitioner. Later on, petitioner filed a
accords a civil case a preferential treatment and motion for suspension of proceedings based on
constitutes an exception to the general rule that the prejudicial question. Allegedly, an action for recovery of
civil action shall be suspended when the criminal action a sum of money is pending before another court. The
is instituted. court went on to hold that it is evident that the civil
case and the criminal case can proceed independently
Suspension does not include dismissal of each other. Regardless of the outcome of the civil
case, it will not establish the innocence or guilt of
The rule only authorizes suspension not dismissal. petitioner in the criminal case. The purchase by
petitioner of the land or his execution of a real estate
Q: Where to file the petition for suspension? mortgage will have no bearing whatsoever on whether
petitioner knowingly and fraudulently executed a false
A: The filing for a petition for suspension does not affidavit.
require that the criminal case be already filed in court. It
is sufficient that the case be in the stage of preliminary In the case of Omictin v. Court of Appeals, the petitioner
investigation as long as there has already been a was the operations manager of a corporation which
previously instituted civil case. filed a complaint for two counts of estafa against the
private respondent. Allegedly, the private respondent,
Thus, a petition for the suspension of the criminal despite repeated demands, refused to return the two
action may be filed in the office of the prosecutor company vehicles entrusted to him when he was still
conducting the preliminary investigation. When the the president of the corporation. Private respondent
criminal action has been filed, the petition shall be filed then filed a motion to suspend the proceedings on the
in the same criminal action at any time before the basis of a prejudicial question because of the then
prosecution rests. pending case with SEC, a case involving the same
parties. Apparently, the private respondent filed a case
In the case of Pimentel v. Pimentel, the Court held that for the declaration of nullity of the respective
there is no prejudicial question between a civil case appointments of petitioner and other individuals as
involving the action for the declaration of nullity of corporate officers. The court held that the resolution of
marriage and a criminal case involving parricide. the issues raised in the intra-corporate dispute will
determine the guilt or innocence of private respondent A: No. The mere act of issuing a worthless check even if
in the crime of estafa filed against him by petitioner. merely for accommodation is covered by BP 22. The
agreement surrounding the issuance of dishonored
BATAS PAMBANSA 22 (BOUNCING CHECKS LAW) checks is irrelevant to the prosecution for violation of
BP 22, the gravamen of the offense being the act of
B.P 22 controversies present a special class of cases making and issuing a worthless check that is dishonored
with remarkably consistent rulings against the upon its presentment for payment (Land Bank of the
appreciation of a prejudicial question. Philippines v. Ramon P. Jacinto).
In the case of Yap v. Cabales, petitioner prayed that the PREJUDICIAL QUESTIONS IN MARRIAGE
proceedings in the criminal cases be suspended until RELATIONSHIPS
the civil cases pending before the RTC were finally
resolved. The Court then ruled that the issue in the Q: Is the subsequent filing of a civil action for
criminal case is whether the petitioner is guilty of declaration of nullity of a previous marriage a
violating BP 22 while in civil case, it is whether the prejudicial question to a criminal case for bigamy?
private respondents are entitled to collect from the
petitioner the sum or the value of the checks that they A: No. In the case of Marbella Bobis v. Bobis, the issue
have rediscounted from the payee. Thus, the resolution presented was whether the subsequent filing of a civil
of the issue raised in the civil action is not action for declaration of nullity of a previous marriage
determinative of the guilt or innocence of the accused constitutes a prejudicial question to a criminal case for
in the criminal cases against him, and there is no bigamy. In holding that the civil action for declaration of
necessity that the civil case be determined first before the nullity of the marriage was not determinative of the
taking up the criminal cases. issue in the bigamy case, the court placed emphasis on
Art. 40 of the CC which requires a prior judicial
In a criminal action for violation of BP 22, it is the mere declaration of the nullity of a previous marriage before
issuance of worthless checks with knowledge of the a party may remarry. Otherwise, the marriage is
insufficiency of funds to support the checks which deemed to be subsisting. Accordingly, any question in
constitutes the offense. the civil action for nullity would not erase the fact the
respondent entered into a second marriage during the
Q: Will the validity of the interest rate affect the subsistence of a first marriage. It is not therefore a
criminal liability for the issuance of a bouncing check prejudicial question.
under BP 22?
Also, an action for a declaration of nullity of marriage is
A: No. In the case of Spouses Jose v. Spouses Suarez, the not a prejudicial question to a concubinage case.
court held on the issue that of whether the daily Accordingly, the pendency of the case or a declaration
interest rate of 5% is void such that the checks issued by of nullity of marriage is not a prejudicial question to the
respondents to cover the said interest are likewise void concubinage case because even a subsequent
and thus the case for BP 22 will no longer prosper: “the pronouncement that his marriage is void from the
validity or invalidity of the interest rate is not beginning is not a defense. Also, other instances where
determinative of the guilt of the respondents in the a party might well invoke the absolute nullity of a
criminal cases because the reason for the issuance of a previous marriage for purposes other than marriage
check is inconsequential in determining criminal such as in case of an action for liquidation, partition,
culpability under BP 22. Thus, whether or not the distribution and separation of property between the
interest rate imposed is eventually declared void will erstwhile spouses, as well as an action for custody and
not affect the outcome of the BP 22 cases because what support of their common children and the delivery of
will be penalized is the mere issuance of bouncing the latter’s presumptive legitimes (Beltran v. People).
checks.
Prado v. People
Q: Will the novation of the credit line agreement
constitute a prejudicial question in the prosecution for The undisputed facts began with an information
violation of BP 22? charging the petitioner with bigamy. It was alleged that
despite being legally married to her husband and
without said marriage having been legally dissolved, the PRELIMINARY INVESTIGATION
petitioner contracted a second marriage in a foreign
country. Q: State the nature of a preliminary investigation.
A: Preliminary investigation is an inquiry or proceeding
In this case, the court held that the requisites of a to determine whether there is sufficient ground to
prejudicial question are present in the case which engender a well-founded belief that a crime has been
brought into play the suspensive effect of a prejudicial committed and the respondent is probably guilty
question. thereof, and should be held for trial.
Thus, it is not a trial and so does not involve the
NOTE: This case was decided before the 2000 Rules examination of witnesses by way of direct or cross-
became effective, before the requirement that the civil examinations. Its purpose is not to declare the
case should be “previously” instituted. respondent guilty beyond reasonable doubt but only to
determine:
In a case, while the marriage was still subsisting, the
petitioner contracted a second marriage with another 1. Whether or not a crime has been committed;
woman. The wife then filed a complaint for bigamy. The and
month before however, the petitioner had already filed 2. Whether the respondent is “probably guilty” of
an action to annul his marriage with the private the crime.
respondent on the ground that he was merely forced to
marry her, that she concealed her pregnancy by another Preliminary investigation is not the occasion for the full
man and that she was incapacitated to perform her and exhaustive display of the parties’ evidence. It is for
essential marital obligations. The private respondents the presentation of such evidence only as may
then filed with the PRC for the revocation of the engender a well-founded belief that an offense has
engineering license of the petitioner and the second been committed and that the accused is probably guilty
woman. thereof (Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto).
The court held:
The prosecutor does not decide whether there is
1. The outcome of the civil case for annulment of evidence beyond reasonable doubt of the guilt of
marriage had no bearing upon the respondent. He merely determines the existence of
determination of the petitioner’s innocence or probable cause, and to file the corresponding
guilt in the criminal case for bigamy because all information if he finds it to be so.
that is required for the charge of bigamy to
prosper is that the first marriage be subsisting He does not determine the guilt or innocence of the
at the time of the marriage. The prevailing rule accused. He does not exercise adjudication nor rule-
is found in Art. 40 of the Civil Code which making functions. It is merely inquisitorial and is often
requires a prior judicial declaration of nullity the only means of discovering the persons who may be
before the void character of the first marriage reasonably charged with crime and to enable the fiscal
be invoked. to prepare his complaint or information.
2. The concept of prejudicial question involves a
civil and a criminal case. The filing of a civil case Q: What does probable cause mean?
does not necessitate the suspension of the
administrative proceedings. There is no A: It implies probability of guilt and requires more than
prejudicial question where one case is bare suspicion but less than evidence to justify a
administrative and the other civil. conviction.
NOTE: A Preliminary Investigation (PI) is not the

occasion for the full and exhaustive display of the
prosecution’s evidence. The presence or absence of the
CHAPTER IV elements of the crime is evidentiary in nature and is a
matter of defense that may be passed upon after a full-
RULE 112 blown trial on the merits.
Yet, it is also true that like quasi-judicial bodies, the
Q: What is the primary purpose of PI? prosecutor is an office in the executive department
exercising powers akin to those of a court.
A: It is to secure the innocent against hasty, malicious,
and oppressive prosecution and to protect him from Q: What is a quasi-judicial body?
an open and public accusation of a crime, from the A: It is an organ of government other than a court and
trouble, expenses and anxiety of a public trial, and also other than a legislature which performs adjudicatory
to protect the state from useless and expensive functions. It affects the rights of private parties either
prosecutions. through adjudication or rule-making. Its awards
determine the rights of the parties and their decisions
Nature of the right to a preliminary investigation have the same effect as judgments of a court.
Q: Is the holding of a PI required by the constitution? Q: Is a petition for review under Rule 43 a proper
mode of appeal from a resolution of the Sec. of Justice
A: No. It is not a fundamental right and is not among directing the prosecutor to file an information in a
those rights guaranteed in the Bill of Rights. It is criminal case?
statutory in character and may be invoked only when
specifically created by statute. Nonetheless, it is a A:No. Rule 43 of 1997 Rules of Civil Procedure governs
component of due process in criminal justice. appeals to the CA from decisions and final orders or
resolutions of quasi-judicial agencies in the exercise of
When the same is granted by statute, it becomes a their quasi-judicial functions. The DOJ is not among the
substantive right. agencies enumerated in Sec. 1 of Rule 43.
Q: What is the effect of denial of the claim of the Q: Is the DOJ covered by the constitutional injunction
accused to a PI? embodied in Sec. 14, Art. 8 of the Constitution?
A: It has the effect of depriving him of his right to due A: No.

process.
NOTE: Yet, in the case of Racho v. Miro, the Court held
There exist decisions holding that a PI is essentially a that even if a PI resembles a realistic judicial appraisal of
judicial inquiry and that during such investigation, the the merits of the case, public prosecutors could not
prosecutor or investigating officer acts as a quasi- decide whether there is evidence beyond reasonable
judicial officer. doubt of the guilt of the person charged. They are not
considered as judges but merely “quasi-judicial
NOTE: A PI is not a casual affair but is a realistic judicial officers.”
appraisal of the merits of the case. It is a judicial inquiry
when there is an opportunity to be heard and for the Q: Is the right to a PI waivable?
production of and weighing of evidence, and a decision
is rendered thereon (Cruz v. People). A: Yes, it may be waived for the failure to invoke the
right prior to or at the time of the plea.
In the case of Bautista v. CA however, it was held that a
PI is not even a quasi-judicial proceeding. Accordingly, Q: Give the distinction between preliminary
the prosecutor in a PI does not determine the guilt or investigation and preliminary examination.
innocence of the accused. While the fiscal makes that
determination, he cannot be said to be acting as a A:
quasi-judicial court, for it is the courts ultimately that
pass judgment on the accused, not the fiscal. Preliminary Investigation Preliminary Examination
Necessarily, its decisions are not appealable to the CA Conducted by the Conducted by the judge to
under Rule 43 as are the decisions of quasi-judicial prosecutor to ascertain determine probable cause
bodies enumerated therein. whether the alleged for the issuance of a
offender should be held warrant of arrest. This is a
for trial, to be subjected judicial function.
to the expense, rigors and A: A PI is required to be conducted before the filing of a
embarrassment of trial or complaint or information for an offense where the law
if the offender is to be prescribes a penalty of at least 4 years, 2 months and 1
released. day without regard to the fine.
Executive in nature Judicial in nature and is
lodged with the judge. Q: What is the procedure for cases not requiring a PI?
PROBABLE CAUSE A: In such case, there are 2 ways of initiating a criminal

action:
Probable cause is the existence of such facts and
circumstances as would lead a person of ordinary a. First, by filing the complaint directly with the
caution and prudence to entertain an honest and strong prosecutor; or
suspicion that the person charged is guilty of the crime b. By filing the complaint or information with the
subject of investigation. It does not import absolute Municipal Court.
certainty.
Direct filing with the prosecutor
It is such facts as are sufficient to engender a well-
founded belief that a crime has been committed and If the complaint is filed with the prosecutor, the
that respondents are probably guilty thereof. procedure described in Sec. 3 (a) of Rule 112 shall be
observed. It must comply with:
While probable cause demands more than “bare
suspicion”, it requires less than evidence which would a. The address of the respondent shall be
justify conviction. indicated in the complaint;
b. To establish probable cause, the complaint shall
Kinds of determination of probable cause be accompanied by:
a. Executive determination of probable cause is one i. The affidavit of the complainant; and
made during PI. It is a function that properly ii. The affidavits his witnesses.
pertains to the public prosecutor who is given a
broad discretion to determine whether probable c. The appropriate no. of copies of the above as
cause exists and to charge those whom he believes there are respondents, plus 2 copies for the
to have committed the crime as defined by law and official file must be submitted; and
thus should be held for trial. d. The affidavits shall be subscribed and sworn to
b. Judicial determination is one made by the judge to before any prosecutor or government official
ascertain whether a warrant of arrest should be authorized to administer oaths or in their
issued against the accused. Accordingly, the judge absence or unavailability, before a notary
must satisfy himself that there is necessity for public, each of whom must certify that he
placing the accused under custody in order not to personally examined the affiants and that he is
frustrate the ends of justice. satisfied that they voluntarily executed and
understood their affidavits.
NOTE: It must be stressed that in our system, the public
prosecutor exercises wide latitude of discretion in Direct filing with the MTC
determining whether a criminal case should be filed in
court, and that courts must respect the exercise of such If the complaint or information if filed directly with the
discretion when the information field against the MTC, the procedure under Sec. 3(a) of Rule 112 and the
person is valid on its face, and that no manifest error requirements therein shall be observed.
grave abuse of discretion can be imputed to the public
prosecutor. If within 10 days from the filing of the complaint or
information, the judge finds no probable cause, the
Q: What are the cases which require a PI? judge must personally evaluate the evidence or
personally examine in writing and under oath the
complainant and his witnesses. Otherwise, he may
require the submission of additional evidence within 10 provisions of Art. 125 of the RPC and even if no
days from notice to further determine the existence of information has yet been filed against him.
probable cause.
Q: Where should the bail be applied?
If the judge finds probable cause, he shall issue a
warrant of arrest. If he has been arrested, the court A: It must be applied for and issued by the court in the
shall instead issue a commitment order. province, city, or municipality where the person
arrested is held. Accordingly, while a person lawfully
Q: When is a PI not required even if the offense arrested and detained and not yet formally charged can
required a PI? apply for bail, the application must be filed in the
province, city or municipality where the person arrested
A: If a person is arrested lawfully without a warrant is held (Ruiz v. Beldia).
involving an offense which requires PI, an information
or complaint may be filed against him without need for Questioning the absence of a PI
PI.
An accused who wants to question the absence of a PI
NOTE: Inquest proceedings are proper only when the must do so before he enters his plea. The court shall
accused has been lawfully arrested without a warrant. resolve the matter as early as practicable but not later
than the start of the trial. Otherwise, it will amount to a
If he has been arrested in a place where an inquest waiver.
prosecutor is available, an inquest will be conducted
instead of a PI. In the absence or unavailability if an An application for or admission of the accused to bail
inquest prosecutor, the complaint may be filed directly does not bar him from raising such question.
with the proper court by the offended party or peace
officer on the basis of the affidavit of the offended party Q: Is a motion to quash a proper remedy?
or arresting officer or person.
A: No since it is not one of those grounds for motion to
Q: Can the person lawfully arrested ask for a PI? quash under Sec. 3 of Rule 117.
A: A person lawfully arrested may ask for a PI in If there is no PI and the accused before entering plea
accordance with Rule 112 before the complaint or calls the attention of the court to his deprivation of the
information is filed but he must sign a waiver of the required PI, the court should not dismiss the
provisions of Art. 125 of the RPC in the presence of his information. It should remand the case to the
counsel (Otherwise, it shall be null and void). prosecutor so that the investigation may be conducted.
NOTE: The filing of a complaint or information does not Q: What is the effect of the absence of a PI? Will the
bar him from asking for a PI. In such case, the person same affect the jurisdiction of the court?
arrested who is now the accused, may still ask for a PI
within 5 days from the time he learns of its filing, with A: No, it does not affect the court’s jurisdiction over the
the same right to adduce evidence in his defense under case nor does it impair the validity of the information or
Rule 112. otherwise, render it defective.
Bail for a person lawfully arrested during the PI Also, the absence of a PI is not a ground for a motion to
quash. Such ground is not provided for in Sec. 3 of Rule
117.
The waiver by the person lawfully arrested of the
provisions of Article 125 of RPC does not preclude him INQUEST PROCEEDINGS
from applying for bail.
Q; When will an inquest proceeding apply?
Note that while a PI is undertaken, the person arrested
is still under detention. To effect his release, he may
apply for bail notwithstanding the waiver of the
A: It applies when a person is lawfully arrested without the IP. Instead, he shall recommend the release of the
a warrant involving an offense which requires a PI. It is detainee, note down the disposition on the referral
not a PI. document, prepare a brief memorandum indicating the
reasons for the action he took and forward the same
It is conducted by a prosecutor in criminal cases where together with the record of the case, to the City or
a person has been lawfully arrested and detained Provincial Prosecutor for appropriate action.
without a warrant of arrest. It is formal and summary
and its purpose is to determine whether or not the When the recommendation is approved, the order of
person detained should remain under custody and then release shall be served on the officer having custody of
charged in court. the said detainee so the latter may be released. The
officer shall also serve upon the detainee a notice of PI
Q: Who conducts IP and where should it be held? if the evidence on hand warrants the conduct of a
regular PI. In such event, the detainee shall be released
A: It is to be conducted by a public prosecutor who is for further investigation.
assigned inquest duties as an Inquest Officer and is to
discharge his duties only at the police stations/ Should it be found that the arrest was properly
headquarters of the PNP in order to expedite and effected, the inquest shall proceed but the Inquest
facilitate the disposition of inquest cases. officer shall first ask the detained person if he desires to
avail himself of a PI and if he does, he shall be made to
Q: When shall the IP be deemed commence? execute a waiver of the provisions of Art. 125 of the RPC
with the assistance of a lawyer.
A: it shall be deemed commenced from the time the
Inquest Officer receives the complaint and referral If the Inquest officer finds that probable cause exists, he
documents from the law enforcement authorities. shall prepare the corresponding information with the
These documents shall include: recommendation that the same be filed in court. If no
probable cause is found, he shall recommend the
a. Affidavit of arrest; release of the detained person.
b. The investigation report;
c. The statements of the complainant and his The inquest must pertain to the offense for which the
witnesses; and arrest was made
d. Other supporting evidence gathered.
In the case of Beltran v. People, the court held that
Q: Should the detained person be present during the inquest proceedings are proper only when the accused
IP? has been lawfully arrested without warrant.
A: Yes unless reasons exist that would dispense with his Q: Who may conduct PI and determine existence of
presence like confinement in a hospital, detention in a probable cause?
place requiring maximum security or his presence is not
feasible by reason of age, health or similar factors. A:
Q: What are the possible options of the inquest 1. Provincial or City Prosecutors and their
prosecutor? assistants;
2. National and Regional State Prosecutors; and
A: The Inquest Officer has an initial duty to determine if 3. Other offenses as may be authorized by law.
the detained person has been arrested lawfully in
accordance with Sec. 5 (a) and (b) of Rule 113. He may The authority to conduct PI shall include all crimes
summarily examine the arresting officers on the cognizable by the proper court in their respective
circumstances surrounding the arrest or apprehension territorial jurisdiction.
of the detained person.
NOTE: Judges of the first level courts are no longer
Should it be found that the arrest was not made in allowed to conduct PI.
accordance with the Rules, he shall not proceed with
Q: Who else are authorized to conduct a PI?
1. To dismiss the compliant if he finds no ground
A: to conduct the investigation; or
2. To issue a subpoena to the respondent in case
1. According to the Omnibus Election Code, the he finds the need to continue with the
COMELEC, through its duly authorized legal officers, investigation.
has the power, concurrent with the other
prosecuting arms of the government, to conduct PI The respondent to whom the subpoena was issued shall
of all election offenses punishable under the Code have the right to examine the evidence submitted by
and to prosecute the same. the complainant which he may not have been furnished
2. The office of the Ombudsman has the authority to and to copy them at his expense. If the evidence is
investigate and prosecute on its own or on voluminous, the complainant may be required to
complaint by any person, any act or omission of any specify those which he intends to present against the
public officer or employee, office or agency, when respondent, and these shall be made available for
such act or omission appears to be illegal, unjust, examination or copying by the respondent at his
improper or inefficient. It has primary jurisdiction expense.
over cases cognizable by the Sandiganbayan and, in
the exercise of this primary jurisdiction, it may take Filing of counter-affidavit by the respondent
over, at any stage, from any investigatory agency of
the government, the investigation of such cases. The respondent who receives the subpoena, the
3. The Presidential Commission on Good Governance complaint, affidavits and other supporting documents,
with the assistance of the Office of the Solicitor is not allowed to file a motion to dismiss in lieu of a
General and other government agencies is counter-affidavit.
empowered to investigate, file and prosecute cases
investigated by it. Within 10 days from receipt of the subpoena, he is
required to submit his counter-affidavit, the affidavits of
Initial steps in PI his witnesses and the supporting documents relied
upon for his defense.
It is the filing of complaint with the investigating
prosecutor that starts the PI process. In actual The counter-affidavits shall be subscribed and sworn to
application, the compliant is normally initiated through before any prosecutor or before any government
an affidavit of complaint. official authorized to administer oaths. Yet, in their
absence, the same may be subscribed and sworn to
Note that the complaint filed for the purpose of PI before a notary public.
differs from the complaint filed for the purpose of
instituting a criminal prosecution. The latter refers to NOTE: The officer must certify that he personally
the one defined in Sec. 3 of Rule 110 and which is in the examined the affiants and that he is satisfied that they
name of the People of the Philippines. A complaint for voluntarily executed and understood their affidavits.
the purpose of PI is not just the affidavit of the
complainant because his affidavit is treated as a Q: What if the respondent does not submit his
component of the complaint. counter-affidavit?
NOTE: The prosecutor, officer or notary public before
whom the affidavits were subscribed and sworn does A: In such case, the investigating officer shall resolve
not perform a mere perfunctory or mechanical duty. He the complaint based on the evidence presented by the
is obliged to conduct a personal examination or the complainant. The situation would have the effect of an
affiants and that he is satisfied that they voluntarily ex parte investigation because the respondent cannot
executed and understood their affidavits. or does not participate in the proceedings.
Dismissal of the complaint or issuance of a subpoena Clarificatory hearing if necessary
From the filing of the complaint, the investigating Within 10 days from the submission of the counter-
officer has 10 days to decide: affidavit or within 10 days from the expiration of the
period for their submission, a hearing may be set by the
investigating officer, if there are facts and issues to be a. That he, or as shown by the record, an
clarified either from a party or the witnesses. authorized officer, has personally examine the
complainant and his witnesses;
The parties can be present at the hearing but do not b. That there is a reasonable ground to believe
have the right to examine or cross-examine each other that a crime has been committed;
or the witnesses. c. That the accused is probably guilty thereof;
d. That the accused was informed of the
Q: What if they have questions to ask? complaint and of the evidence submitted
against him; and
A: They shall submit the questions to the investigating e. That he was given an opportunity to submit
officer who shall ask the questions to the party or controverting evidence.
witness concerned. The hearing shall be terminated
within 5 days. Q: What is the effect of the absence of the required
certification?
NOTE: A clarificatory hearing is not indispensable during
PI. A: The information is nonetheless considered valid for
the reason that such certification is not an essential part
Determination by the investigating officer of the information itself and its absence cannot vitiate it
as such. What is not allowed is the filing of the
Within 10 days from the termination of the information without a preliminary investigation having
investigation, the investigating prosecutor shall been previously conducted.
determine whether or not there is sufficient ground to
hold the respondent for trial. Forwarding of the records of the case of action
DISCRETION OF PROSECUTOR IN FILING OF A Within 5 days from his resolution, he shall forward the
CRIMINAL COMPLAINT OR INFORMATION record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman. They
The determination of probable cause is an executive shall act on the resolution within 10 days from their
function exclusively of the prosecutor. He has no receipt thereof and shall immediately inform the parties
obligation to file a criminal action where he is not of such action.
convinced that he has the quantum of evidence at hand
to support the averments. Prosecuting officers have NOTE: No complaint or information may be filed or
equally the duty not to prosecute when after dismissed by an investigating prosecutor without the
investigation or reinvestigation they are convinced that prior written authority or approval of the provincial or
the evidence adduced was not sufficient to establish a city or chief state prosecutor or the Ombudsman or his
prima facie case. deputy.
Rule when recommendation for dismissal is
Since the discretion is involved in the determination of disapproved
probable cause, mandamus will not, as a rule, lie to
compel the filing of a complaint or information. In such case, the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on
Resolution of investigating prosecutor the ground that a probable cause exists may by himself,
file the information against the respondent or direct
If the investigating prosecutor finds cause to hold the another assistant prosecutor to do so without
respondent for trial, he shall prepare both the conducting another PI.
resolution and information. If he does not find probable
cause, he shall recommend the dismissal of the MOTION FOR RECONSIDERATION
complaint.
The aggrieved party under current practice is not
The information shall contain a certification which shall precluded from filing a MR before the Office of the
certify the following”
Prosecutor within 15 days from receipt of the assailed bar the Secretary of Justice from exercising his power of
resolution. review.
If the motion is denied, the aggrieved party may appeal Yet, the Secretary of Justice may also order the
within 15 days from the denial of the MR. reinvestigation of the case. If the Secretary finds it
necessary to investigate the case, the reinvestigation
APPEALS TO THE SECRETARY OF JUSTICE shall be made by the investigating prosecutor, unless
for compelling reasons, another prosecutor is
An appeal may be brought to the Secretary of Justice designated to conduct the same.
from the resolutions of the Chief State Prosecutor,
Regional State Prosecutors and Provincial/City Rules of Court provisions when resolution is reversed
Prosecutor. or modified by the Secretary of Justice
The appeal shall be taken within 15 days from receipt of The action of the provincial or city prosecutor of chief
the assailed resolution. If an MR has been filed, the state prosecutor is not the final say on the case. If the
appeal shall be taken within 15 days from receipt of the Secretary reverses or modifies the resolution of the
denial of the MR. provincial or city prosecutor, he shall direct the
prosecutor concerned either to file the corresponding
The appeal is made by filing a petition for review with information without conducting another PI, or to
the Office of the Secretary of Justice. This petition must dismiss or move for dismissal of the complaint or
be verified and copies of the same must be furnished information with notice to the parties.
the adverse party and the Prosecution Office issuing the
appealed resolution. Power of the Secretary to reverse resolutions of
prosecutors
Within a non-extendible period of 15 days from receipt
of the copy of the petition, the adverse party may file a The Secretary has the power to alter, modify, nullify or
verified comment. The investigating/reviewing/ set aside what a subordinate officer had done in the
approving prosecutor need not submit any comment performance of his duties and to substitute the
except when directed by the Secretary of Justice. judgment of the former for that of the latter.
Q: What is the effect if no comment is filed within the In the case of Joaquin, Jr. v. Drilon, the Court affirmed
prescribed period? the DOJ Secretary’s power of control over the authority
of a state prosecutor to conduct PI on criminal actions.
A: The appeal shall be resolved on the basis of the
petition. It is only where the decision of the Secretary is tainted
with grave abuse of discretion amounting to lack or
Note also that the party filing a petition for review is excess of jurisdiction that the CA may take cognizance
allowed to file a motion for the suspension of the of the case in a petition for certiorari under Rule 65. The
arraignment. CA decision may then be appealed to the SC by way of a
petition for review on certiorari.
If the Secretary of Justice finds the same to be patently
without merit or manifestly intended for delay, or when Assailing the resolution of the Secretary of Justice;
the issues raised therein are too unsubstantial to petition for review under Rule 43 not allowed
require consideration, he may dismiss the petition
outright. The rule is that the DOJ is not a quasi-judicial agency
exercising a quasi-judicial function when it reviews the
If pursuant to the appealed resolution an information findings of a public prosecutor regarding the presence
has already been filed and the accused has already been of probable cause and that its findings are not
arraigned prior to the filing of the petition, the petition reviewable by the CA in a petition under Rue 43 of the
shall not be given due course. If he has been arraigned Rules of Court. Rule 43 is an improper remedy.
after the filing of the petition, any arraignment shall not

In the case of Alcaraz v. Gonzalez, it was stressed that in In the event of an adverse decision against the
the determination of probable cause during the PI, the appellant, a verified petition for review may be taken to
executive branch of government has full discretionary the CA within 15 from notice of the final order of the OP
authority. Courts are not empowered to substitute their under Rule 43.
own judgment for that of the executive branch.
In the case of De Ocampo v. Secretary of Justice, the
Also, the resolution of the Investigating Prosecutor is Court held that the resolution of the DOJ is appealable
subject to appeal to the Secretary who exercises the administratively to the OP since the offenses charged in
power of control and supervision over said Investigating this case are punishable by reclusion perpetua.
Prosecutor; and who may affirm, nullify, reverse or
modify the ruling of such prosecutor. Appeals under Rule 43 and Rule 45
The Resolution of the Secretary is FINAL. The aggrieved From the OP, the aggrieved party may file an appeal
party has no more remedy of appeal except to file a MR with the CA pursuant to Rule 43.
of said resolution. The remedy of the aggrieved party is
to file a petition for certiorari under Rule 65 of the Rules The party aggrieved by the judgment, final order or
of Court since there is no more appeal or other remedy resolution of the CA may avail of an appeal by certiorari
available in the ordinary course of law. to the SC under Rule 45.
In the case of Sy Tiong Shiou v. Sy Chim, the principle of Records supporting the information or complaint filed
non-interference does not apply when there is grave in court
abuse of discretion which would authorize the
aggrieved person to file a petition for certiorari and The information or complaint filed in court shall be
prohibition under Rule 65, 1997 Rules of Civil supported by the affidavits and counter-affidavits of the
Procedure. parties and their witnesses, together with the other
supporting evidence and the resolution on the case.
Appeal to the Office of the President
The record of the PI shall not form part of the record of
While judicial pronouncements do not allow an appeal the case. This rule does not only apply to the PI
to the CA under Rule 43, the appeal referred to in such conducted by the prosecutor but also to a PI made by
pronouncements evidently pertains to judicial appeal. other officers as may be authorized by law. Yet, the
Court, on its own initiative or on motion of any party,
Accordingly, appeals from or petition for review of may order the production of the record or any of its
decisions/orders/resolutions of the Secretary of Justice part when the court considers it necessary in the
on PI of criminal cases are entertained by the Office of resolution of the case or any incident therein, or when
the President under the following conditions: it is introduced as an evidence in the case by the
requesting party.
a. The offense involved is punishable by reclusion
perpetua to death; Action of the judge upon the filing of the complaint or
b. New and material issues are raised which were information
not previously presented before the DOJ and
were not hence ruled upon; Within 10 days from the filing of the complaint or
c. The prescription of the offense is not due to information, the judge shall personally evaluate the
lapse within 6 months from notice of the resolution of the prosecutor. In conducting the
questioned resolution; and evaluation of the resolution, the judge shall look into its
d. The appeal or petition for review is filed within supporting evidence.
30 days from notice.
The judge may find that the evidence:
If the appeal does not clearly fall within the jurisdiction
of the OP, the appeal shall be dismissed outright. a. Fails to establish probable cause;
b. Establishes probable cause; or

c. Engenders doubt as to the existence of while the case is already in court, he cannot impose his
probable cause. opinion on the trial court. The trial court is the best and
sole judge on what to do with the case before it.
If the evidence clearly fails to establish probable cause,
the judge may immediately dismiss the case. A motion to dismiss the case filed by the public
prosecutor should be addressed to the court which has
If he finds probable cause, he shall issue a warrant of the option to grant or deny the same.
arrest. If a complaint or information was already filed
pursuant to a lawful warrantless arrest, the court shall In resolving a motion to dismiss the case to withdraw
issue a commitment order instead of a warrant of the information filed by the public prosecutor on his
arrest. own initiative or pursuant to the directive of the
Secretary of Justice, either for insufficiency of the
In case the judge doubts the existence of probable evidence or for lack of probable cause, the trial court
cause, the judge may order the prosecution to submit should not rely solely on the findings of the public
additional evidence within 5 days from notice. The issue prosecutor or the Secretary that no crime was
must be resolves by the court within 30 days from the committed or that the evidence is insufficient to
filing of the complaint or information. support a conviction.
Q: When warrant of arrest is not necessary? Thus, the judge himself must be convinced that there
was, indeed, no sufficient evidence against the
A: accused, and this conclusion can be arrived at only
after an assessment of the evidence in the possession
1. When a complaint or information has already of the prosecution.
been filed pursuant to a lawful warrantless
arrest or if the accused is already under The court must itself be convinced that there is indeed
detention and was lawfully arrested without a no satisfactory evidence against the accused and this
warrant and a complaint or information has conclusion can only be reached after an assessment of
been filed; the evidence of the prosecution.
2. When the accused is charged for an offense
punishable only by a fine; or NOTE: When the TC grants a motion of the public
3. When the case is subject to the Rules on prosecutor to withdraw the Information in compliance
Summary Procedure. with the directive of the Secretary, or to deny the said
motion, it does so not out of compliance or defiance of
If the judge finds probable cause, he is mandated by law the directive of the Secretary, but in sound and faithful
to issue such warrant. exercise of its judicial prerogative.
The arrest of the accused can be ordered only in the
event that the prosecutor files the case and the judge of In the case of Hipos, Sr. v. Bay, the Court held that the
the RTC finds probable cause for the issuance of the TC, when confronted with a motion to withdraw an
warrant of arrest. information on the ground of lack of probable cause, is
not bound by the resolution of the prosecuting arm of
WITHDRAWAL OF THE INFORMATION ALREADY FILED the government, but is required to make an
IN COURT independent assessment of the merits of such action, a
requirement satisfied by the respondent judge in the
Crespo v. Mogul case at bar.
In Crespo v. Mogul, the Court held that once a criminal NOTE: In Lee v. KC Bank, the SC declared that the judge
complaint or information is filed in court, any must in his order, positively state that the evidence
disposition of the case or dismissal or acquittal or presented against the respondents was insufficient for a
conviction of the accused rests within the exclusive prima facie case. It must include a discussion of the
jurisdiction, competence, and discretion of the trial merits of the case based on an evaluation or
court. Although the fiscal retains the direction and assessment of the evidence on record, look at the basis
control of the prosecution of the criminal cases even of the recommendation of the prosecution, and state
the reasons for granting the motion to withdraw the affect the substantial rights of the defendant on the
information and must embody the assessment in the merits.
order.
Chapter V
Clarification of the Mogul case ARREST, SEARCH AND SEIZURE
In Filemon A. Verzano v. Francis D. Paro, the SC clarified I. ARREST (RULE 113)

that Crespo did not foreclose the power or authority of
the secretary of justice to review resolutions of his Q: What is arrest?
subordinates in criminal cases. Accordingly, the action
of the investigating fiscal or prosecutor in the PI is A: It is the taking of a person into custody in order that
subject to the approval of the provincial or city fiscal or he may be bound to answer for the commission of an
chief-state prosecutor. Thereafter, it may be appealed offense.
to the Secretary of Justice.
To make an arrest, a person need not be actually
While the Secretary has the power to alter or modify restrained by the person making the arrest. Accordingly,
the resolution of his subordinate and thereafter direct a submission to the authority of the person making the
the withdrawal of the case, he cannot, however, impose arrest already constitutes an arrest.
his will on the court.
Arrest implies control over the person under custody
Estoppel in PI in the Ombudsman and as a consequence, a restraint on his liberty to the
extent that he is not free to leave on his own volition.
While it was true that the petitioner was directed to
submit his counter-affidavit thereto without requiring The legality of an arrest is of vital importance when
the complainants to verify their letter-complaint, subsequent to the arrest a seizure of evidence follows
however, despite the Ombudsman’s noncompliance because the admissibility of the evidence would hinge
with the affidavit requirement, the petitioner filed his on the legality of the prior arrest.
counter-affidavit and answered the charges against him.
Thus, having submitted himself to the jurisdiction of the Q: What are the requisites for the issuance of arrest?
Ombudsman and having allowed the proceedings to go
on until the PI was terminated and the information filed A: Sec. 2 of Art. III of the 1987 Constitution provides:
at the Sandiganbayan, the petitioner was deemed to
have waived whatever right he may otherwise have to “no search warrant or warrant of arrest shall issue
assail the manner in which the PI was conducted. except upon probable cause to be determined
personally by the judge after examination under oath or
Q: May a complaint affidavit notarized in a foreign affirmation of the complainant and the witnesses he
jurisdiction be the basis for a PI? may produce, and particularly describing the place to be
searched and the persons or things to be seized.”
A: Yes, in the case of Sasot v. People, the court held that
a complaint is substantially sufficient if it states the It is that a warrant of arrest shall issue only upon finding
known address of the respondent, it is accompanied by of probable cause personally determined by the judge
complainant’s affidavit and his witnesses and after examination under oath or affirmation of the
supporting documents, and the affidavit are sworn to complainant and the witnesses he/she may produce,
before any fiscal, state prosecutor or government and particularly describing the person to be seized.
official authorized to administer oath, or in their
absence or unavailability, a notary public who must NOTE: An arrest without a probable cause is an
certify that he personally examined the affiants and that unreasonable seizure of a person, and violates the
he is satisfied that they voluntarily executed and privacy of persons which ought not to be intruded by
understood their affidavits. Even the absence of an oath the State.
in the complaint does not necessarily render it invalid.
Want of oath is a mere defect of form, which does not Q: What is probable cause in connection with the
issuance of a warrant of arrest?
Indeed, what the law requires as personal
A: It assumes the existence of facts that would lead a determination on the part of the judge is that he should
reasonably discreet and prudent man to believe that a not rely solely on the report of the investigating
crime has been committed and that it was likely prosecutor. In Okabe v. Gutierrez, we stressed that the
committed by the person sought to be arrested. judge should consider not only the report of the
Probable cause demands more than suspicion; it investigating prosecutor but also the affidavit and the
requires less than evidence that would justify documentary evidence of the parties, the counter-
conviction. affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the
AAA v. Carbonell preliminary investigation, if any, submitted to the court
by the investigating prosecutor upon the filing of the
The petitioner contends that the judge is not personally Information. If the report, taken together with the
required to personally examine the complainant and supporting evidence, is sufficient to sustain a finding of
her witnesses in satisfying himself of the existence of probable cause, it is not compulsory that a personal
probable cause for the issuance of a warrant of arrest. examination of the complainant and his witnesses be
On the other hand, the respondent judge dismissed the conducted.
case without evaluating the evidence premised on the
complainant’s and her witnesses’ absence during the Talingdan v. Eduarte
hearing scheduled by the former for judicial
determination of probable cause. Interpreting the words "personal determination" the
Court said that it does not thereby mean that judges are
In the case of Soliven v. Makasiar, the Court declared obliged to conduct the personal examination of the
that the law does not mandatorily require the judge to complainant and his witnesses themselves. To require
personally examine the complainant and her witness. thus would be to unduly laden them with preliminary
He may opt to personally evaluate the report and examinations and investigations of criminal complaints
supporting documents submitted by the prosecutor or instead of concentrating on hearing and deciding cases
he may disregard the prosecutor’s report and require filed before them. Rather what is emphasized merely is
the submission of supporting affidavits of witnesses. the exclusive and personal responsibility of the issuing
judge to satisfy himself as to the existence of probable
In the case of Webb v. De Leon, the Court held that cause.
before issuing warrants of arrest, judges merely To this end he may: (a) personally evaluate the report
determine the probability, not the certainty, of guilt of and the supporting documents submitted by the
an accused. In doing so, judges do not conduct a de prosecutor regarding the existence of probable cause
novo hearing to determine the existence of probable and, on the basis thereof, issue a warrant of arrest; or
cause. They just personally review the initial (b) if on the basis thereof he finds no probable cause,
determination of the prosecutor finding a probable disregard the prosecutor’s report and require the
cause to see if it is supported by substantial evidence. submission of supporting affidavits of witnesses to aid
Accordingly: him in determining its existence. What he is never
allowed to do is follow blindly the prosecutor’s bare
“True, there are cases where the circumstances may call certification as to the existence of probable
for the judge’s personal examination of the complainant cause. Much more is required by the constitutional
and his witnesses. But it must be emphasized that such provision. Judges have to go over the report, the
personal examination is not mandatory and affidavits, the transcript of stenographic notes if any,
indispensable in the determination of probable cause and other documents supporting the prosecutor’s
for the issuance of a warrant of arrest. The necessity certification. Although the extent of the judge’s
arises only when there is an utter failure of the personal examination depends on the circumstances of
evidence to show the existence of probable cause. each case, to be sure, he cannot just rely on the bare
Otherwise, the judge may rely on the report of the certification alone but must go beyond it. This is
investigating prosecutor, provided that he likewise because the warrant of arrest issues not on the strength
evaluates the documentary evidence in support of the certification standing alone but because of the
thereof. records which sustain it. He should even call for the

complainant and the witnesses to answer the court’s those falsely charged with crimes from the tribulations,
probing questions when the circumstances warrant. expenses and anxiety of a public trial.
Preliminary Inquiry v. Preliminary Investigation Method of arrest with a warrant
It is well to remember that there is a distinction When a warrant of arrest is issued by a judge, the
between the preliminary inquiry which determines warrant is delivered to the proper law enforcement
probable cause for the issuance of a warrant of arrest agency for execution.
and the preliminary investigation proper which
ascertains whether the offender should be held for trial The head of the office to whom the warrant of arrest
or be released. The determination of probable cause was delivered for execution shall cause the warrant to
for purposes of issuing the warrant of arrest is made by be executed within ten (10) days from its receipt.
the judge. The preliminary investigation proper – Within ten (10) days after the expiration of the period,
whether or not there is reasonable ground to believe the officer to whom it was assigned for execution shall
that the accused is guilty of the offense charged – is the make a report to the judge who issued the warrant. In
function of the investigating prosecutor (AAA v. case of his failure to execute the warrant, he shall state
Carbonell). the reason therefore (Sec 4, Rule 113).
People v. Gabo When making an arrest by virtue of a warrant, the

officer shall:
It is well to remember that there is a distinction
between the preliminary inquiry, which determines 1. Inform the person to be arrested of the cause of
probable cause for the issuance of a warrant of arrest, the arrest, and
and the preliminary investigation proper, which 2. The fact that a warrant has been issued for his
ascertains whether the offender should be held for trial arrest.
or be released. The determination of probable cause
for purposes of issuing a warrant of arrest is made by Except:
the judge. The preliminary investigation proper – 1. When he flees or forcibly resists before the
whether or not there is reasonable ground to believe officer has opportunity to so inform him, or
that the accused is guilty of the offense charged – is 2. When the giving of such information will imperil
the function of the investigating prosecutor. the arrest.
The task of the presiding judge when the Information is The officer need not have the warrant in his possession
filed with the court is first and foremost to determine at the time of the arrest but after the arrest, if the
the existence or non-existence of probable cause for person arrested so requires, the warrant shall be shown
the arrest of the accused. Probable cause is such set of to him as soon as practicable (Sec. 7, Rule 114).
facts and circumstances as would lead a reasonably
discreet and prudent man to believe that the offense The officer assigned to execute the warrant of arrest
charged in the Information, or any offense included has the duty to deliver the person arrested to the
therein, has been committed by the person sought to nearest police station or jail without unnecessary delay.
be arrested. In determining probable cause, the average
man weighs the facts and circumstances without No unnecessary violence
resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on No violence or unnecessary force shall be used in
common sense. A finding of probable cause needs only making an arrest. The person arrested shall not be
to rest on evidence showing that, more likely than not, subject to a greater restraint than is necessary for his
a crime has been committed and that it was committed detention (Sec. 2, Rule 113).
by the accused. Probable cause demands more than
suspicion; it requires less than evidence that would Authority to summon assistance
justify conviction.[35] The purpose of the mandate of
the judge to first determine probable cause for the It sometimes happens that an officer cannot on his own
arrest of the accused is to insulate from the very start effectively make the arrest. Thus, the authority to effect
an arrest carries with it an authority to orally summon A bondman may arrest an accused for the purpose of
as many persons as he may deem necessary to assist surrendering him to the court. Also an accused released
him in effecting the arrest. The duty of the person on bail may be re-arrested without a warrant if he
summoned does not arise however when rendering attempts to depart from the Philippines without
assistance would cause harm to himself. permission of the court where the case is pending.
When a person to be arrested is inside a building Q: Who may make the arrest?
The Rules authorize the officer, in order to make an A: It may be made not only by a peace officer but also
arrest, to break into any building or enclosure in case he by a private person. When the latter makes the arrest,
is refused admittance after announcing his authority ad the arrest is called citizen’s arrest.
purpose. He may also break out from said place if
necessary to liberate himself from the same place. When an accused is caught in flagrante delicto, the
police officers are not only authorized but are bound to
When a warrantless arrest is lawful arrest him even without a warrant.
G.R: A warrant is required before an arrest is made. IN FLAGRANTE DELICTO ARREST
XPN: Warrantless arrest. Q: What is the basis of in flagrante delicto?
Sec. 5. Arrest without warrant; when lawful. – A peace A: Reliable information alone is not sufficient to justify a
officer or a private person may, without a warrant, warrantless arrest. It is required also that the accused
arrest a person: perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to
(a) When, in his presence, the person to be commit an offense.
arrested has committed, is actually committing,
or is attempting to commit an offense (In The basis of this rule is Sec. 5 (a), Rule 113:
flagrante);
(b) When an offense has just been committed and (a) When, in his presence, the person to be arrested
he has probable cause to believe based on has committed, is actually committing, or is
personal knowledge of facts or circumstances attempting to commit an offense;
that the person to be arrested has committed it
(hot pursuit); and Q: For the arrest to be valid, what are the 2 requisites
(c) When the person to be arrested is a prisoner that must concur?
who has escaped from a penal establishment or
place where he is serving final judgment or is A:
temporarily confined while his case is pending,
or has escaped while being transferred from 1. The person to be arrested must execute an
one confinement to another (escapee). overt act indicating that he has committed, is
actually committing, or is attempting to commit
In cases falling under paragraphs (a) and (b) above, the a crime; and
person arrested without a warrant shall be forthwith 2. Such overt act is done in the presence or within
delivered to the nearest police station or jail and shall the view of the arresting officer.
be proceeded against in accordance with section 7 of
Rule 112. NOTE: In flagrante delicto means caught in the act of
committing a crime. Example: an arrest made after an
NOTE: A peace officer or a private person may, without entrapment.
a warrant, arrest a person when, in his presence, the
person to be arrested has committed, is actually Such arrest is not justified when no one among the
committing, or is attempting to commit an offense. accused was committing a crime in the presence of the
police officers, more so if the police officers did not

have personal knowledge of the facts indicating that the The Rule does not require the arresting officers to
persons to be arrested had committed an offense. personally witness the commission of the offense with
their own eyes. Personal knowledge of facts must be
See the following cases: based on probable cause, which means an actual belief
or reasonable ground of suspicion—that the person to
1. People v. Aminnudin; be arrested is probably guilty of committing the offense
2. People v. Molina; and based on actual facts.
3. In Malacat v. CA, the Court declared that a
warrantless arrest cannot be justified where no See the following cases:
crime is being committed at the time of the
arrest because no crime may be inferred from 1. Abelita III v. Doria;
the fact that the eyes of the person arrested 2. People v. Acol
were “moving fast” and “looking at every 3. People v. Gerente
person” passing by.
Method of arrest without a warrant
People v. Mengote
1. Arrest by an officer-the officer shall inform the
The court held that the requirements of a warrantless person to be arrested of his authority and the
arrest were not complied with. There was no offense cause of his arrest.
which could have been suggested by the acts of
Mengote of looking from side to side while holding his Q: When will such information need not be given?
abdomen. There was nothing clandestine about his
being on that street at that busy hour in the blaze of the A:
noonday sun.
a. If the person to be arrested is engaged in the
People v. Laguio commission of an offense;
b. Is in the process of being pursued immediately
What was clearly established is that WW was arrested after its commission;
mainly on the information that he was the employer of c. Escapes or flees; or
the 2 men who were previously arrested and charged d. When the giving of such information will imperil
for illegal transport of shabu. They did not identify WW the arrest.
to be their source of the shabu when they were caught
with it in flagrante delcito. Thus, the warrantless arrest 2. Arrest by a private person- he must inform the
was illegal and thus the warrantless search incidental to person to be arrested of his intent to arrest him
the illegal arrest is likewise unlawful. and the cause of his arrest. This information
need not be given under the same conditions as
THE HOT PURSUIT ARREST when it is an officer who makes the arrest.
3. Where a warrantless arrest is made under the in
(b) When an offense has just been committed and he flagrante and hot pursuit exceptions, the
has probable cause to believe based on personal person arrested without a warrant shall be
knowledge of facts or circumstances that the person to forthwith arrested delivered to the nearest
be arrested has committed it; police station or jail.
Q: What are the 2 requisites for the arrest to be valid? Time of making an arrest
A: An arrest may be made on any day and at any time of

the day or night.
1. An offense has just been committed; and
2. The person making the arrest has personal RIGHTS OF A PERSON ARRESTED (R.A. 7438)
knowledge of facts or circumstances that the
person to be arrested has committed it. Q: What are the rights of the person arrested,
detained, or under custodial investigation?
Q: What is the effect of an illegal arrest on jurisdiction
A: of the court?
1. Right to be assisted by counsel at all times; A: The legality of the arrest affects only the jurisdiction
2. The right to remain silent; of the court over the person of the accused.
3. The right to be visited by the immediate
members of his family, by his counsel, or by nay NOTE: A waiver of an illegal warrantless arrest does not
non-governmental organization, national or also mean a waiver of the inadmissibility of evidence
international. seized during an illegal warrantless arrest.
The counsel must be independent and competent. He Q: What is the effect of admission to bail on objections
shall be allowed to confer at all times with the person to an illegal arrest?
arrested, detained or under custodial investigation. If
such person cannot afford the services of his own A: It shall not bar the accused from challenging the
counsel, he must be provided by the investigating validity of his arrest or the legality of the warrant
officer with a competent and independent counsel. issued, provided that he raises the objection before he
enters his plea.
Q: What is the effect of the absence of a lawyer?
Waiver of the illegality of the arrest
A: In such case, no custodial investigation shall be
conducted and the suspected person can only be A warrant arrest is not a jurisdictional defect and any
detained by the investigating officer in accordance with objection to it is waived when the person arrested
the provisions of Article 125 of the RPC. submits to arraignment without any objection.
Q: What shall be the form of such waiver? The established rule is that an accused may be stopped
from assailing the legality of his arrest if he failed to
A: It shall be in writing and signed by the person move for the quashing of the information against him
arrested, detained or under custodial investigation in before his arraignment. Any objection involving the
the presence of his counsel, otherwise the waiver shall arrest or the procedure in the court’s acquisition of
be null and void and of no effect. jurisdiction over the person of an accused must be
made before he enters his plea; otherwise the objection
Q: What shall be the form of an extrajudicial is deemed waived.
confession?
NOTE: Since the legality of an arrest affects only the
A: It shall also be in writing and signed by the person jurisdiction of the court over the person of the accused,
arrested, detained or under custodial investigation in any defect in the arrest of the accused may be deemed
the presence of his counsel, or in the latter’s absence, cured when he voluntarily submits to the jurisdiction of
upon a valid waiver, and in the presence of any of the the trial court.
parents, older brothers and sisters, his spouse, the
municipal mayor, municipal judge, district school Any irregularity attending the arrest of an accused,
supervisor, or priest or minister of the gospel as chosen depriving the trial court of jurisdiction over his or her
by him; otherwise such extrajudicial confession shall be person, should be raised in a motion to quash at any
inadmissible as evidence in any proceeding. time before entering her plea, and failure to timely raise
this objection amounts to a waiver of such irregularity,
Q: What does custodial investigation include? resulting in concomitant submission to the trial court’s
jurisdiction over his or her person.
A: It shall include the practice of issuing an “invitation”
to a person who is investigated in connection with an However, the principle that the accused is precluded
offense he is suspected to have committed, without after arraignment from questioning the illegal arrest of
prejudice to the liability of the “inviting” officer for any the lack of or irregular PI applies only if the accused
violation of law. voluntarily enters his plea and participates during trial,
without previously invoking his objections thereto.
judge after examination under oath or affirmation of
Persons not subject to arrest the complainant and the witnesses he may produce,
and particularly describing the place to be searched and
Section 11. A Senator or Member of the House of the persons or things to be seized (Sec. 2, Art. III).
Representatives shall, in all offenses punishable by not
more than six years imprisonment, be privileged from The Exclusionary Rule
arrest while the Congress is in session. No Member shall
be questioned nor be held liable in any other place for (2) Any evidence obtained in violation of this or the
any speech or debate in the Congress or in any preceding section shall be inadmissible for any purpose
committee thereof (Article VI of the 1987 Constitution). in any proceeding (Sec. 3, paragraph 2, Art. III).
Under the generally accepted principles of international Q: Distinguish between arrest and seizure.
law, sovereigns and other chief of state, ambassadors,
ministers plenipotentiary, ministers resident, and A:
charge d’affaires are immune from the criminal
jurisdiction of the country of their assignment and are ARREST SEIZURE
therefore immune from arrest. Concerned with the Covers a wider spectrum
seizure of a person. It of matters on the search
involves the taking of a of both persons and places
II. SEARCHES AND SEIZURES (RULE 126) person in custody. and the seizure of things
found therein.
Q: State the nature of a search warrant? NOTE: A search may follow
n arrest but the search
A: It is an order in writing issued in the name of the must be incident to a
People of the Philippines, signed by a judge and lawful arrest
directed to a peace officer, commanding him to search Probable cause to arrest does not include a probable
for personal property described therein and bring it cause to search and vice verse.
before the court. Probable cause to arrest Probable cause to search
involves the requires facts to show that
It is a peculiar and special remedy, drastic in nature, and determination of the particular things
made necessary because of public necessity. It judge (not the prosecutor) connected with a crime
resembles in some respects with what is commonly of the facts that would are found in a specific
known as John Doe proceedings. tend to show that a crime location.
has been committed and
It is a legal process which has been likened to a writ of that a particular person
discovery employed by the state to procure relevant committed it.
evidence of a crime. Judge is not required to Judge must, before issuing
make a personal the search warrant,
Q: Who has the power to issue such writ? examination before personally examine the
issuing a warrant of arrest. complainant and the
A: The power to issue search warrants is exclusively witnesses he may
vested with the trial judges in the exercise of their produce.
judicial functions.
May be made at any time Generally served in the
of the day or night. day time, unless there be
Constitutional provision
a direction in the warrant
that it may be served at
Section 2. The right of the people to be secure in their
any time of the day or
persons, houses, papers, and effects against
night.
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
NOTE: A search warrant
warrant or warrant of arrest shall issue except upon
shall be valid only for 10
probable cause to be determined personally by the
days.
In the case of Spouses Marimla v. People, involving
Q: What is a search warrant? violation of Dangerous Drugs Law, the application may
be filed by the NBI in the city of Manila and the warrant
A: It is an order in writing issued in the name of the may be served outside of Manila pursuant to A.M. No.
People of the Philippines, signed by a judge and 99-10-09-SC. Also, nothing in the said A.M prohibits the
directed to a peace officer, commanding him to search head of the NBI and of other law enforcement agencies
for personal property described therein and bring it mentioned from delegating their ministerial duty of
before the court. endorsing the application to their assistant heads.
Q: Where to file an application for a search warrant? Ex parte application for a search warrant
A: As a rule, it should be applied before any court An application n for a search warrant is heard ex parte.
within whose territorial jurisdiction a crime was It is neither a trial nor part of the trial. Action on these
committed. applications must be expedited for time is of the
essence.
XPNs:
Property subject of a search warrant
1. The application may be made before any court
within the judicial region where the crime was The property subject of a search warrant is personal
committed if the place of the commission of property, not real property.
the crime is known;
2. The application may also be filed before any Q: Under what instances may seizure be issued aside
court within the judicial region where the from search?
warrant shall be enforced;
A:
NOTE: In both cases, filing in such courts requires
compelling reasons stated in the application. 1. Personal property subject of the offense;
2. Personal property stolen or embezzled and
3. It shall be made only in the court where the other proceeds, or fruits of the offense; or
criminal action is pending, if the criminal action 3. Personal property used or intended to be used
has already been filed. as means of committing an offense.
Search warrants involving heinous crimes and others

In the case of People v. Nunez: The purpose of the
Q: Who are the persons authorized to act on all constitutional requirement that the articles to be seized
applications for search warrants involving heinous be particularly described in the warrant is to limit the
crimes, illegal gambling, dangerous drugs and illegal things to be taken to those, and only those particularly
possession of firearms? described in the search warrant -- to leave the officers
of the law with no discretion regarding what articles
A: Executive Judge and Vice-Executive Judges of RTCs of they should seize. A search warrant is not a sweeping
Manila and Quezon City filed by the PNP, NBI, the authority empowering a raiding party to undertake a
Presidential Anti-Organized Crime Task Force (REACT- fishing expedition to confiscate any and all kinds of
TF) with the RTC of Manila and Quezon City. evidence or articles relating to a crime. Accordingly, the
objects taken which were not specified in the search
The applications shall be personally endorsed by the warrant should be restored to appellant.
Heads of said agencies, for the search of places to be
particularly described therein, and the seizure of Q: What are the requisites for the issuance of a search
property or things as prescribed in the Rules, and to warrant?
issue the warrants of arrest, if justified, which may be
served in places outside the territorial jurisdiction of A:
said courts.
1. There must be probable cause; conditions obtaining in given situation (Central Bank v,
2. The presence of probable cause is to be Morfe).
determined by the judge personally;
3. The determination by the judge must be made The reviewing court can overturn such findings only
only after an examination under oath or upon proof that the judge disregarded the facts before
affirmation of the complainant and the him or ignored the clear dictates of reason. In
witnesses he may produce; and determining its existence, the examining magistrate
4. The warrant must specifically describe the place must make a probing and not merely routine or pro
to be searched and the things to be seized forma examination of the complainant and the
which may be anywhere in the Philippines. witnesses (Nola v. Barroso, Jr.).
The absence of these requisites for a search warrant’s Santos v. Pryce Gases, Inc.
validity will cause its downright nullification.
Probable cause for a search warrant is defined as such
Inherent in the court’s power to issue search warrants is facts and circumstances which would lead a reasonably
the power to quash warrants already issued. After a discrete and prudent man to believe that an offense has
judge has issued a warrant, he is not precluded to been committed and that the objects sought in
subsequently quash the same, if he finds upon re- connection with the offense are in the place sought to
evaluation of the evidence that no probable cause be searched. A finding of probable cause needs only to
exists. rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed
PROBABLE CAUSE IN SEARCH WARRANTS by the accused. Probable cause demands more than
bare suspicion; it requires less than evidence which
Q: What is probable cause in search warrants? would justify conviction. The existence depends to a
large degree upon the finding or opinion of the judge
A: It means such facts and circumstances which would conducting the examination. However, the findings of
lead a reasonably discreet and prudent man to believe the judge should not disregard the facts before him nor
that an offense has been committed and that the run counter to the clear dictates of reason.
objects sought in connection with the offense are in the
place to be searched. It must refer to one specific Q: Distinguish between probable cause to arrest from
offense. that of to search.
NOTE: The facts and circumstances being referred A: Probable cause to arrest does not include a probable
thereto pertain to facts, data or information personally cause to search and vice verse. Probable cause to arrest
known to the applicant and the witnesses he may involves the determination of the judge (not the
present. The applicant or his witnesses must have prosecutor) of the facts that would tend to show that a
personal knowledge of the circumstances surrounding crime has been committed and that a particular person
the commission of the offense being complained of. committed it. Probable cause to search requires facts to
show that particular things connected with a crime are
Probable cause does not mean actual and positive found in a specific location.
cause, nor does it import absolute certainty.
Webb v. De Leon
NOTE: It is presumed that a judicial function has been
regularly performed, absent showing to the contrary. A But each requires a showing of probabilities as to
magistrate’s determination of probable cause for the somewhat different facts and circumstances, and thus
issuance of a search warrant is paid with great one can exist without the other. In search cases, two
deference by a reviewing court, as long as there was conclusions must be supported by substantial evidence:
substantial basis for that determination. that the items sought are in fact seizable by virtue of
being connected with criminal activity, and that the
The question whether or not probable cause exists is items will be found in the place to be searched. It is not
one which must be decided in the light of the also necessary that a particular person be implicated. By
comparison, in arrest cases there must be probable
cause that a crime has been committed and that the distinguish it from other places in the community. Any
person to be arrested committed it, which of course can designation or description that points out the place to
exist without any showing that evidence of the crime the exclusion of others; and on inquiry leads the officers
will be found at premises under that person's control." unerringly to it, satisfies the constitutional requirement.
Worthy to note, our Rules of Court do not provide for a
similar procedure to be followed in the issuance of This is true where the executing officer is the affiant on
warrants of arrest and search warrants. whose affidavit the warrant had been issued, and when
he knows that the judge who issued the warrant
Q: How should the examination be conducted by the intended the compound described in the affidavit.
judge?
NOTE: The standard for determining the legality of a
A: warrant directed against person is whether the person
has been sufficiently described with particularity
1. The examination must be personally conducted sufficient to identify him with reasonable certainty.
by the judge; Even if his name is unknown or erroneously written, the
2. The examination must be in the form of description of the person with certainty to identify him
searching questions and answers; and set him apart from others is enough to lend validity
3. The complainant and the witnesses shall be to the warrant.
examined on those facts personally known to
them; NOTE: The test is not whether the description is
4. The statements must be in writing and under technically accurate in every detail but rather whether
oath; and the description is sufficient to enable the officer to
5. The sworn statements of the complainant and locate and identify the premises with reasonable effort,
the witnesses shall be attached to the record. and where there is any reasonable probability that
another premises may be mistakenly searched and not
The applicant or his witness must have personal the one intended to be searched under the warrant.
knowledge of the circumstances surrounding the
commission of the offense being complained of. See the following cases:
Section 5 of Rule 126 of the Rules of Court 1. U.S v. Darensbourg

2. People v. Superior Court
Sec. 5. Examination of complainant; record. – The judge 3. People v. Govea
must, before issuing the warrant, personally examine in 4. People v. Estrada- "the apartment house occupied
the form of searching questions and answers, in writing by Manuel Estrada at 18 S. 19th Street, San Jose"--
and under oath, the complainant and the witnesses he while not the optimum in careful and precise
may produce on facts personally known to them and description, does indicate that it was the premises
attach to the record their sworn statements, together occupied by defendant which were to be searched.
with the affidavits submitted. It is to be noted that the warrant, unlike many
thereby found invalid, does not merely direct the
The searching questions propounded to the applicant search of the entire premises without any limiting
and the witnesses depend largely on the discretion of language as to occupancy so that portions of it
the judge. Although there is no hard-fast rule governing occupied by innocent persons would fall within the
how a judge should conduct his investigation, it is search. It seems to us that the officers executing the
axiomatic that the examination must be probing and warrant could, as they apparently did, without
exhaustive, not merely routinary, general, peripheral, confusion or excessive effort, identify the part of
perfunctory or pro forma. the premises to be searched.”
Particular description of place or person In this case it was held that if the description in the
warrant limits the search to a particular part of the
A description of the place to be searched is sufficient if premises either by a designation of the area or
the officer with the warrant can, with reasonable effort, other physical characteristics of such part or by a
ascertain and identify the place intended and designation of its occupants, the business
conducted there, the warrant will meet Q: What do you mean by “meaningful restriction”?
constitutional standards in respect to the
description of the place to searched. A: It is one that leaves nothing to the discretion of the
officer who conducts the search.
Q: Explain a John Doe warrant?
NOTE: A warrant may not authorize a search broader
A: It is a warrant which does not name the person than the facts supporting its issuance.
subject of the same, is the exception rather than the
rule. In Pangandanan v. Casar¸a warrant was voided to Uy Kheytin v. Villareal
the extent that it was issued against 50 John Does none
of which could be identified by the witnesses. The purpose of the requirement is to limit the things to
be seized to those described in the search warrant and
NOTE: While the rule re quires it necessary to express to leave the officers of law no discretion regarding what
the name or give some description of a party subject of articles they shall seize so abuses may not be
a warrant, the principle does not prevent the issue and committed.
service of a warrant against a party whose name is
unknown. In such case, the best possible description of See the following cases:
the person is to be given in the warrant; but it must be
sufficient to indicate clearly on whom it is to be served, 1. Stonehill v. Diokno
by stating his occupation, his personal appearance and 2. Columbia Pictures Entertainment v. CA
peculiarities, the place of his residence or other 3. Stanford v. Texas- a high degree of particularity
circumstances by which he can be identified. is required for items such as books, films,
recordings, or other materials that have not yet
Even if his name is unknown or erroneously written, the been adjudged obscene. At this stage,
description of the person with certainty to identify him accordingly, they are still deemed to be
and set him apart from others is enough to lend validity constitutionally protected.
to the warrant.
General descriptions
There is also compliance with the law when the person
although not particularly named, is described as the one In the Philippines, general descriptions have been
occupying and having control of a specific address allowed in some cases when dictated by the nature of
(People v. Veloso). the things to be seized on the theory that the
description must be specific insofar as the
Particular description of the items to be seized and circumstances will ordinarily allow.
general warrants
The law does not require that the things to be seized
The provision requiring a particular description of the must be described in precise and minute details as to
items or things to be seized is designed to prevent leave no room for doubt on the part of the searching
general searches and avoid the seizure of a thing not authorities (Yao, Sr. v. People).
described in the warrant and also so nothing is to be
left to the discretion of the officer executing the In Kho v. Makalintal, the Court observed that the law
warrant. enforcement officers could not have been in the
position to know beforehand the exact caliber or make
It is designed to prevent general exploratory searches of the firearms to be seized. They had no way of
which reasonably interfere with a person’s right to knowing the caliber and make of the firearms unless
privacy (People v. Schilling). they get a close view of the weapons and thus, could
not be expected to know the communications
Q: What are general warrants? equipment.
A: These are warrants which do not describe the things People v. Tee
to be seized with the required particularity.

The description of “undetermined amount of
marijuana” satisfies the requirement of particularity in a Issuance and form of the search warrant
search warrant. A further description would be
unnecessary and impossible except as to such The warrant shall be issued when the judge is satisfied
character, the place and the circumstances. of the existence of facts upon which the application is
based or that there is a probable cause to believe that
Ownership of property seized not required they exist. The form of the search warrant must be in
the form prescribed by the Rules.
The law does not require that the property to be seized
should be owned by the person against whom the Duration of the validity of a search warrant
search warrant is directed. It is sufficient that such
person has control and possession of the property It shall be valid for 10 days from its date. Thereafter, it
sought to be seized. The critical element is not shall be void.
ownership but whether there is a reasonable cause to
believe that the things to be seized are located in the Time of making the search
place to be searched.
The warrant shall be served in the daytime and such
EXTENT OF SEARCH fact must be so directed by the warrant. Yet, if the
affidavit asserts that the property is on the person or in
The reasonableness of seizure and search also includes the place ordered to be searched, the warrant may
the manner the warrant was executed including the insert a direction that it may be served at any time of
time and the place of its execution. the day or night (Sec. 9, Rule 126).
The object of the search must be the one properly Manner of making the search
described in the warrant.
The search shall be made in the presence of the lawful
Where the warrant is unambiguous and limited only to occupant of the house, room or any other premises, or
a particularly place like a store described in the warrant any member of the lawful occupant’s family. In the
the search does not extend to the apartment units absence of the latter, the search shall be made in the
located at the back of the store even if the sketch presence of 2 witnesses of sufficient age and discretion
include such apartments (People v. CA). residing in the same locality. Otherwise, no search shall
be made except in the presence of the persons
A warrant which authorizes the search of weapons mentioned in the Rules.
includes the authority to open closets, drawers, chests
and containers in which the weapons might be found. If The officer seizing the property must give a receipt for
the warrant is to search a vehicle, every part of that the same to the lawful occupant of the premises in
vehicle which may contain the object may be searched whose presence the search and seizure were made, or
(U.S. v. Ross). in the absence of such occupant, must, in the presence
of at least 2 witnesses of sufficient age and discretion
It is also held that when a search warrant authorizes the residing in the same locality, leave a receipt in the place
search of a place particularly described, a justified in which he found the seized property (Sec. 11, Rule
search would include all the things attached to or 126).
annexed to the land if the place described be land (U.S.
v. Meyer). KNOCK AND ANNOUNCE RULE
Search of third persons not named in the warrant Being armed with a warrant does not justify outright
entry or barging into place to be searched. An officer
A warrant to search a place does not extend to the should knock, introduce himself and announce his
authority to search all persons in the place because the purpose only in exceptional cases may he forgo the
police have no probable cause to search and detain a same like when his safety is in danger of being
person not particularized in the warrant (Ybarra v. jeopardized or when evidence is about to be destroyed.
Illinois).
The officer may break open any outer or inner door or subsection (a) (delivery of the property seized and
window of a house or any part of a house or anything true inventory) hereof has been complied with.
therein.
When the evidence shows that the judge who issued
Q: What are the requisites in case of breaking open a the search warrant did not require the offices executing
window or door? the warrant to make an accurate and complete
inventory of the things seized and submit the same to
A: him, he is guilty of gross ignorance of the law (Betoy v.
Coliflores).
1. The officer gives notice of his purpose and
authority; Santos v. Pryce Gases, Inc.
2. He is refused admittance to the place of directed
search after giving notice of his purpose and Sec. 12 of Rule 126 expressly mandates the delivery of
authority, may break open any outer or inner door the seized items to the judge who issued the search
or window of a house or any part of a house or warrant to be kept in custodia legis in anticipation of
anything therein; the criminal proceedings against petitioner. The
3. The purpose of breaking is to execute the warrant delivery of the items seized to the court which issued
or to liberate himself or any person lawfully aiding the warrant together with a true and accurate inventory
him when unlawfully detained therein. thereof, duly verified under oath, is mandatory in order
to preclude the substitution of said items by interested
Duties of the officer after the search and seizure parties. The judge must ensure compliance with the
following: a. the issuance of a detailed receipt for the
Q: What are the duties of the officer? property received; b. Delivery of the seized property to
the court together with c. a verified true inventory of
A: the items seized.
1. He must forthwith deliver the property seized to Duty of the custodian of the log book
the judge who issued the warrant; and
2. The officer must, together with the delivery of the The return on the search warrant shall be filed and kept
property also deliver a true inventory of the by the custodian of the log book on search warrants
property seized. who shall enter therein the date of the return, the
result, and other actions of the judge
NOTE: Such inventory must be duly verified under oath.
Also, a violation of these rules shall constitute contempt A violation of the rule shall constitute contempt of
of court. court.
Duty of the judge Objection to issuance or service of a warrant
Under Sec. 12(b) of Rule 126, the judge has the Any objection must be made before he enters his plea,
following duties: otherwise, the objection is deemed waived
(Buenaventura v. People).
1. The judge who issued the warrant shall ascertain if
the return has been made. He shall do so 10 days The constitutional right of appellant against warrantless
after issuance of the search warrant. arrest and search was not violated when the appellant
2. If no return has been made, the judge shall summon failed to assail the legality of the arrest and the seizure
the person to whom the warrant was issued and of the sachet of shabu prior to his arraignment or at any
require him to explain why no return was made. stage in the proceedings of the trial court. The arrest
3. If the return has been made, the judge shall was pursuant to a buy-bust operation which is a valid
ascertain whether section 11 of this Rule (giving of form of entrapment of felons in the execution of their
receipt for the property seized) has been complied criminal plan; and that the search conducted on
with and shall require that the property seized be appellant was incidental to a lawful arrest (People v.
delivered to him. The judge shall see to it that Macatingag).
becomes unreasonable and any evidence obtained
Q: Where to file a motion to quash a search warrant or therefrom shall be inadmissible for any purpose in any
to suppress evidence? proceeding.
A: It may be filed and acted only by the court where the Yet there are instances when securing a warrant before
action has been instituted. effecting a search and a seizure would not serve the
ends of an orderly society. Thus, the Courts have
If no criminal action has been instituted, the motion developed certain exceptions to the warrant
may be filed in and resolved by the court that issued the requirement in order to authorize warrantless searches
search warrant. Yet, if such court failed to resolve the and seizures with the end of striking out a balance
motion and a criminal case is subsequently filed in between the need to safeguard the rights of citizens
another court, the motion shall be resolved by the latter and the need to avoid emasculating the powers of the
court. state to maintain a well-ordered society.
Q: Who may assail the issuance of a search warrant? There are well-recognized instances where the searches
and seizures are allowed even without a valid warrant
A: It can only be contested by the party whose rights under the following circumstances:
have been impaired thereby, and the objection to an
unlawful search and seizure is purely personal and a. Warrantless search incidental to a lawful arrest;
cannot be availed of by third parties. b. Seizure of evidence in “plain view”;
c. Search of a moving vehicle;
Only a corporation has the exclusive right to question d. Consented warrantless search;
the seizure of items belonging to the corporation on the e. Customs search;
ground that the latter has a personality distinct from f. Stop and frisk or Terry searches;
the officers and shareholders of the corporation. g. Exigent and emergency circumstances;
Assuming arguendo that Sun Gas, Inc. was the owner of h. Search of vessels and aircraft; and
the seized items, petitioner, as the manager of Sun Gas, i. Inspection of buildings and other premises for the
Inc., had the authority to question the seizure of the enforcement of fire, sanitary and building
items belonging to Sun Gas, Inc. Unlike natural regulations.
persons, corporations may perform physical actions
only through properly delegated individuals; namely, Plain View
their officers and/or agents (Santos v. Pryce Gases,
Inc.). Q: What are the elements of the plain view?
Petition for certiorari for unwarranted quashal of a A:

search warrant
1. Prior valid intrusion based on the valid
The special civil action for certiorari was the proper warrantless arrest in which the police are legally
recourse availed by respondent in assailing the quashal present in the pursuit of their official duties;
of the search warrant. As aforementioned, the trial 2. The evidence was inadvertently discovered by
court’s unwarranted reversal of its earlier finding of the police who have the right to be where they
probable cause constituted grave abuse of discretion. In are; and
any case, the Court had allowed even direct recourse to 3. The evidence must be immediately apparent.
this Court or to the Court of Appeals via a special civil
action for certiorari from a trial court’s quashal of a Search of a moving vehicle
search warrant (Santos v. Pryce Gases, Inc.).
The vehicle’s inherent mobility reduces expectation of
Exceptions to the search warrant requirement privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
The procurement of a warrant is required before a law amounting to probable cause that the occupant
enforcer can validly search or seize the person, house, committed a criminal activity.
papers, or effects of any individual. Otherwise, it
Search incidental to a lawful arrest Moreover, in lawful arrests, it becomes both the duty
and the right of the apprehending officers to conduct a
Sec. 13. Search incident to lawful arrest. – A person warrantless search not only on the person of the
lawfully arrested may be searched for dangerous suspect, but also in the permissible area within the
weapons or anything which may have been used or latter’s reach. Otherwise stated, a valid arrest allows
constitute proof in the commission of an offense the seizure of evidence or dangerous weapons either on
without a search warrant. the person of the one arrested or within the area of his
immediate control. The phrase "within the area of his
The application of the above rule presupposes that the immediate control" means the area from within which
person searched was previously arrested lawfully. Thus, he might gain possession of a weapon or destructible
a person illegally arrested cannot be validly searched evidence. A gun on a table or in a drawer in front of one
without a warrant. who is arrested can be as dangerous to the arresting
officer as one concealed in the clothing of the person
In searches incident to a lawful arrest, the arrest must arrested (Valeroso v. Court of Appeals).
precede the search; the process cannot be reversed.
Nevertheless, a search substantially contemporaneous A search and a seizure incident to a lawful arrest is not
with an arrest can precede the arrest if the police have limited to things related to the reason for the arrest. To
probable cause to make the arrest at the outset of the protect the arresting officer, the search extends to
search. Thus, given the factual milieu of the case, we weapons like a gun or a knife with no actual
have to determine whether the police officers had connection to the crime of illegal possession of the
probable cause to arrest appellant. The long standing drugs. If in the course of the search, evidence is found
rule in this jurisdiction is that "reliable information" constituting proof of another offense, like an illegal
alone is not sufficient to justify a warrantless arrest. The possessed weapon it is submitted that the phraseology
rule requires, in addition, that the accused perform of the rule does not prevent the seizure of the evidence.
some overt act that would indicate that he has
committed, is actually committing, or is attempting to In the case of Adams v. Williams, it was ruled that a
commit an offense. We find no cogent reason to depart person arrested may be searched for weapons and all
from this well-established doctrine (People v. Racho). unlawful articles in his person and within his immediate
control may be seized.
Parameters of a search incident to a lawful arrest
In an American case, the accused was legally arrested in
Q: State the allowable scope of a search incident to a his backyard. The officers then searched the apartment
lawful arrest? of the accused. The search was declared illegal not
being within the immediate control of the accused—not
A: within his immediate reach.
1. For dangerous weapons; Thus, the right does not extend to other places such as
2. For anything which may have been used in the a house several blocks away from the place where an
commission of an offense; or arrest was made.
3. For anything which constitute proof in the
commission of an offense. Chimel v. California
When an arrest is made, it is reasonable for the An arresting officer may search the arrestee’s person to
arresting officer to search the person arrested in order discover and remove weapons and to seize evidence to
to remove any weapon that the latter might use in prevent its concealment or destruction, and may search
order to resist arrest or effect his escape. Otherwise, the area within the immediate control of the person
the officer’s safety might well be endangered, and the arrested, meaning the area from which he might gain
arrest itself frustrated. In addition, it is entirely possession of a weapon or destructible evidence.
reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to Nolasco v. Pano
prevent its concealment or destruction.

The court held the warrant void. Accordingly,
considering that the accused has been charged with Routine checkpoints do intrude, to a certain extent, on
rebellion, which is a crime against public order, the motorists’ right to “free passage without interruption”
warrant for her arrest not having been made just within but it cannot be denied that, as a rule, it involves only a
half an hour after her arrest. brief detention of travelers during which the vehicle’s
occupants are required to answer brief question or two.
See the following cases: For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the
1. Espano v. Court of Appeals inspection of the vehicle is limited to a visual search,
2. People v. Lua said routine checks cannot be regarded as violative of
an individual’s right against unreasonable search. In
Search of a moving vehicle fact, these routine checks, when conducted in a fixed
area, are even less intrusive.
A warrantless search of a moving vehicle is justified
since it is not practicable to secure warrant because the Buy bust operations
vehicle can be quickly moved out of the locality or
jurisdiction on which the warrant must be sought. Q: What is a buy bust operation?
Q: What is the requisite for the validity of such search? A: It is a form of entrapment legally employed by peace
officers as an effective way of apprehending drug
A: It is valid as long as the officers conducting the search dealers in the act of committing an offense. This police
have reasonable or probable cause to believe prior to operation has judicial sanction as long as it is carried out
the search that they would find the instrumentality or with due respect to constitutional and legal safeguards.
evidence pertaining to a crime, in the vehicle to be
searched. A search warrant or warrant of arrest is not needed in a
buy bust operation because here the accused is caught
Check points n flagrante delicto.
Valmonte v. De Villa Entrapment and Instigation
“Under exceptional circumstances, as where the ENTRAPMENT INSTIGATION

survival of organized government is on the balance, or Employment of such ways Means by which the
where the lives and safety of the people are in grave and means for the accused is lured into the
peril, checkpoints may be allowed and installed by the purpose of trapping or commission of the offense
government. Xxx For as long as the vehicle is neither capturing a lawbreaker. charged in order to
searched nor its occupants subjected to a body search, prosecute him.
and the inspection of the vehicle is limited to a visual Peace officers resorts to The instigator practically
search, said routine checks cannot be regarded as ways and means to trap induces the would-be
violative of an individual’s right against unreasonable and capture the law offender into the
search. breaker in the execution commission of the
of the latter’s criminal offense, and the instigator
Also, routine checks, when conducted in a fixed area, plan. himself becomes a co-
are even less intrusive are permissible. Routine principal.
checkpoints stops do not intrude similarly on the Not a defense A defense available to the
motoring public. accused and is considered
as an absolutory cause
Searches conduced in checkpoints are valid for as long
as they are warranted by exigencies of public order and Q: What are the applicable tests in buy-bust
are conducted in a way least intrusive to motorists operation?
(People v. vinecario).
A:
Abenes v. CA
1. Subjective test; and In People v. Concepcion, the Court explained that the
2. Objective test absence of a prior surveillance or test buy does not
affect the legality of the buy-bust operation. The Court
Subjective Test has left to the discretion of police authorities the
selection of effective means to apprehend drug dealers.
The focus is on the intent or predisposition of the A prior surveillance is not necessary especially where
accused to commit a crime. the police operatives are accompanied by their
informant during the entrapment. Flexibility is a trait of
Objective Test good police work. Also, the failure to record the boodle
money will not render the buy bust operation illegal.
The primary focus is on the particular conduct of law The recording of marked money used in a buy-bust
enforcement officials or their agents and the accused’s operation is not one of the elements for the
predisposition becomes irrelevant. prosecution of sale of illegal drugs.
NOTE: The government agent’s act is evaluated in the In Quinicot v. People, prior surveillance is not necessary
light of the standard of conduct exercised by reasonable especially where the police operatives are accompanied
persons generally and whether such conduct falls below by their informant during the entrapment.
the acceptable standard for the fair and honorable
administration of justice. Q: What is the effect of the absence of record in police
blotter?
People v. Doria
A: The non-recording of the buy-bust money in the
In this case, the Court applied the objective test. police blotter will not affect the validity of the
Accordingly, the details of the purported transaction operations. Neither law nor jurisprudence requires that
during the buy-bust operation must be clearly and the buy bust money be entered in the police blotter.
adequately shown—initial contact between the poser- Accordingly, the only elements necessary to
buyer and the pusher, the offer to purchase, and the consummate the crime is proof that the illicit
promise or payment of the consideration until the transaction took place, coupled with the presentation in
consummation of the sale by the delivery of the illegal court of the dangerous drugs seized as evidence (People
drug subject of the sale. v. Hernandez).
The objective test demands that the details of the Plain View Doctrine
purported transaction must be clearly and adequately
shown. The manner by which the initial contact was Under this doctrine, objects falling in the plain view of
made, the offer to purchase the drug, the payment of an officer who has a right to be in the position to have
the “buy bust” money, and the delivery of the illegal that view are subject to seizure and may be presented
drug must be the subject of strict scrutiny to insure that as evidence.
law-abiding citizens are not unlawfully induced to
commit an offense. Criminals must be caught but not at Q: What are the requisites of this search?
all cost. Courts therefore should look at all factors to
determine the predisposition of an accused to commit A:
an offense in so far as they are relevant to determine
the validity of the defense of inducement (People v. 1. The law enforcement officer in search of the
Araneta). evidence has a prior jurisdiction for an intrusion or
is in a position from which he can view a particular
Q: What is the effect of absence of prior surveillance area;
before a buy-bust operation? 2. The discovery of the evidence in plain is
inadvertent; and
A: No rule requires a prior surveillance of the suspected 3. It is immediately apparent to the officer that the
offender before conducting a buy-bust operation. item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.

The plain view doctrine permits an officer to seize an
apparently illicit object without first obtaining a warrant The suggestion that the inadvertence requirement is
authorizing him to do so. Accordingly, when a police necessary to prevent the police from conducting
officer has seen or observed an object in ‘plain view,’ to general searches, or from converting specific warrants
require the officer to secure a warrant would be to into general warrants, is not persuasive because that
engage in a needless exercise because failure to seize interest is already served by the requirements that no
the object once observed might involve danger to the warrant issue unless it particularly describes the place
public and to the officer. The rule allows the seizure to be searched and the persons or things to be seized.
without obtaining a search warrant if evidence of
criminal activity or the product of the crime can be seen Q: Explain the “inadvertence” requirement.
without entry or search.
A:It means that the officer must not have known in
The doctrine has been applied to a situation where the advance of the location of the evidence and discovery is
police officers inadvertently come across evidence while not anticipated.
in ‘hot pursuit’ of a fleeing suspect.
Thus, it does not apply where the police did not just
It is also applied when an incriminating object comes accidentally discover the evidence but actually searched
into view during a search incident to a lawful arrest and for (Valeroso v. CA).
thus, could be searched without a warrant.
See the following cases:
The doctrine is also applied where a police officer is not
searching for evidence against the accused, but 1. Abenes v. CA-the SC stressed that the ‘plain
nonetheless inadvertently comes across an view’ applies when the following requisites
incriminating object. concur:
People v. Nuevas a. The law enforcement officer in search of

the evidence has a prior jurisdiction for an
Where the object seized was inside a closed package, intrusion or is in a position from which he
the object itself is not in plain view and therefore can view a particular area;
cannot be seized without a warrant. If the package is b. The discovery of the evidence in plain is
such that an experienced observer could infer from its inadvertent; and
experience that it contains the prohibited article, then c. It is immediately apparent to the officer
the article is deemed in plain view. that the item he observes may be evidence
of a crime, contraband or otherwise subject
NOTE: Not only must the item be in plain view. Its to seizure.
incriminating character must also be “immediately
apparent.” 2. Abelita III v. Doria;
3. Esquillo v. People—when a police officer sees a
The Inadvertence requirement under the plain view person placing a plastic sachet containing white
doctrine crystalline substance into her cigarette case, it
was plain view;
In Horton v. California, a California police officer 4. Zalameda v. People;
executed a search warrant only for the proceeds of the
crime of robbery. He did not find the stolen property in
the premises but in the course of his search, he did find
weapons in plain view which he seized. The US Supreme United Laboratories v. Isip
Court held that the constitution does not require that
the discovery of the evidence be inadvertent because That it must be immediately apparent to the officer that
this element is not a necessary condition of a the items observed may be an evidence of a crime is
warrantless seizure of things in plain view even if another important element of the doctrine. This means
inadvertence have been mentioned as a characteristics that the incriminating nature of the evidence becomes
in other legitimate plain view seizures. apparent if the officer, at the moment of seizure had
probable cause to connect it to a crime without the Also, his actions were not invasive and overly intrusive.
benefit of an unlawful search or seizure. To be He patted down the outer clothing of Terry and his 2
immediately apparent, the rule does not require an companions. He did not place his hands in their
unduly high degree of certainty as to the incriminating pockets or under the outer surface of their garments
character of the evidence. Thus, there must be until he had felt weapons, and then he merely reached
probable cause to associate the property with criminal for and removed the guns. He confined his search
activity; that a nexus exists between a viewed object strictly to what was minimally necessary to learn
and criminal activity. whether the men were armed and to disarm them once
he discovered the weapons.
The doctrine significantly stressed that the plain view
doctrine cannot be made to extend to a general At the time he seized petitioner and searched him for
exploratory search from one object to another until weapon, McFadden had reasonable grounds to believe
something incriminating at last emerges. It is a that petitioner was armed and dangerous, and it was
recognition of the fact that when executing police necessary for the protection of himself and others to
officers come across immediately upon incriminating take swift measures to discover the true facts and
evidence not covered by the warrant, they should not neutralize the threat of harm if it materialized. It was
be required to close their eyes to it, regardless held that where a police officer observes unusual
whether it is evidence of the crime they are conduct which leads him reasonably to conclude in the
investigating or evidence of some other crime because light of his experience that criminal activity may be
it would be needless to require the police to obtain afoot and that the persons with whom he is dealing
another warrant. may be armed and presently dangerous, where in the
course of investigating this behavior he identifies
Terry searches or stop and frisk himself as a policeman and makes reasonable
inquiries, and where there is nothing in the initial
Terry v. Ohio stages of the encounter to dispel his reasonable fear
for his own or other’s safety, he is entitled for the
In 1963, veteran Police Officer Martin McFadden was in protection of himself and others in the area to conduct
his usual beat in downtown Cleveland. He saw 2 a carefully limited search of the outer clothing of such
unknown men who later were identified as Terry and persons in an attempt to discover weapons which
Chilton, and who by their acts appeared to him to be might be used to assault him. Such search is a
engaged in an elaborate yet casual reconnaissance of a reasonable search and any weapons seized may
store. Kats then came to confer with the first 2. properly be introduced in evidence against the person
Suspecting them to be armed, and fearing that the 3 from whom they were taken.
were preparing to rob the store, McFadden approached
the men, identified himself as a police officer and asked Summary of the Terry Doctrine:
them to identify themselves. When they simply
mumbled an answer and did not get a clear and audible The Terry Doctrine is of 2 parts: the stop and the frisk. A
response, he patted down the outer garment of Terry stop by an officer requires that he has a reasonable and
and felt a gun in his pocket and removed the same. A articulable belief that criminal activity has happened or
gun was also recovered from Chilton. Terry was is about to happen. The frisk made after the stop must
subsequently convicted for carrying a concealed be done because of a reasonable belief that the person
weapon. stopped is in possession of a weapon that will pose a
danger to the officer and others. The frisk must be a
The Court held that the acts of McFadden were acts mere pat down outside the person’s outer garment and
which a reasonably prudent man would have done in not unreasonably intrusive.
believing that Terry was armed and that he presented
a threat to the officer’s safety while he was Q: What is the test for the application of this doctrine?
investigating his suspicious behavior. It was consistent
with McFadden’s hypothesis that these men were A: It is not the existence of probable cause because no
contemplating a daylight robbery which reasonably full arrest is made; it was probable cause (genuine
would have been carried out with a deadly weapon. reason in a Philippine decision). Accordingly, a law
enforcement officer has the authority to stop someone
and do a quick surface search of their outer clothing Not an arrest
for weapons. This is allowed if the officer has Does not require a Presupposes the existence
reasonable belief based on genuine reason and in the probable cause and the of a probable cause for the
light of the officer’s experience and the surrounding person is not under a full arrest, where the person is
circumstances, that a crime has either taken place or is scale arrest but under a taken under the custody
about to take place and the person to be stopped is mere brief, investigative of the arresting officer.
armed and dangerous. The reasonable suspicion must “stop” followed by a The search is of the person
be on “specific and articulable facts” and not merely surface, nonintrusive pat and the area within his
upon the officer’s bare suspicion or hunch. Terry down of one’s outer control. It is more
emphasized that a reasonable belief for making a stop garments to determine intrusive and is conducted
must be followed by a frisk which is equally reasonable the presence of weapons. not only for the purpose
which means it should not be broader than is necessary of finding weapons but
to find weapons in the person briefly stopped. The also for the purpose of
ruling that probable cause is not required in a stop and searching for evidence,
frisk situation is Terry’s significant contribution. any fruit of a crime or of
things which may provide
A mere deep suspicion by an experienced officer that the person arrested with
criminal activity could take place is not sufficient for the means of escape.
the application of the Terry doctrine. Has a limited scope; it is Must be carried through
not judged by the more with judicial warrant,
The apprehending police officer must have genuine stringent requirement of otherwise, such search
reason, in accordance with the police officer’s probable cause which and seizure constitutes
experience and the surrounding conditions, to warrant concededly applies only derogation of a
the belief that the person to be held has weapons to an arrest and a search. constitutional right.
concealed about him. It should therefore be What applies is the
emphasized that a search and seizure should precede reasonableness of the act
the arrest for this principle to apply. of the officer.
Q: What are the dual purposes of the principle? Bond to ensure the return of the seized items
A: An order requiring the owner of seized property to file

bond to ensure the return of the seized items should
1. The general interest of effective crime prevention the DOJ find probable cause against it as no basis in law.
and detection, which underlies the recognition that
a police officer may, under appropriate Consented Searches
circumstances and in an appropriate manner,
approach a person for purposes of investigating The consent to a warrantless search must be voluntary.
possible criminal behavior even without probable It must be unequivocal, specific, and intelligently given,
cause; and uncontaminated by any duress or coercion. Consent
2. The more pressing interest of safety and self- thereto is not to be lightly inferred but it must be shown
preservation of the police officer to take steps to by clear and convincing evidence.
assure himself that the person with whom he deals
is not armed with a deadly weapon that could be Q: What are the requisites in cases of consented
used against him. searches or waiver of the constitutional guarantee
against obstrusive searches?
Q: Distinguish between Terry search and search
incident to a lawful arrest. A:
A: 1. The right exists;

2. The person involved had knowledge, either
Terry Stop Search incident to a actual or constructive, of the existence of such
lawful arrest right; and
3. The said person had an actual intention to
relinquish the right (People v. Nuevas). A: It is a security given for the release of a person in
custody of the law, furnished by him or a bondsman, to
A peaceful submission to a search or seizure is not a guarantee his appearance before any court as required
consent or an invitation thereto, but is merely a under certain specified conditions.
demonstration of regard for the supremacy of the law.
It is distinguished from the bondsman who furnishes
Q: What is the effect of an illegal search and seizure? the security given for the provisional release of the
person in custody of the law.
A: Sec. 3 (2) of Article 3: Any evidence obtained in
violation of this or the preceding section shall be Q: What is the purpose of bail?
inadmissible for any purpose in any proceeding.
A: It is to guarantee the appearance of a person before
A search warrant illegally obtained or secured or which any court when so required.
is issued in violation of the constitution or the rules may
be quashed through the proper motion as in a motion It does not only involve the right of the accused to
to quash the search warrant. temporary liberty, but likewise the right of the State to
protect the people and the peace of the community
All searches and seizures made without a warrant are from dangerous elements.
invalid. The illegality of a search and seizure occurs not
only from the failure to comply with the procedures for It is a constitutional right, is personal in nature and is
obtaining a warrant and in the execution of the same. waivable.
Such failure will result in the application of the
exclusionary rule. Q: What is the basis of the right to bail?
The most important effect of an illegal search and A: It springs from the presumption of innocence
seizure is the exclusion of the evidence obtained from accorded every accused upon whom should not be
being used against the person whose rights were inflicted incarceration at the outset since after trial he
violated by the search, the evidence being the would be entitled to acquittal, unless his guilt is
proverbial and jurisprudential fruit of the poisonous established beyond reasonable doubt.
tree.
NOTE: It is not intended to cover the civil liability of the
Civil damages and criminal liability accused in the same criminal case.
There is civil liability based on the concept of an Yet the money deposited as bail nay be considered not
independent civil action for violation of a person’s right only as bail. It may be applied to the payment of fines
to be secure in his persons, house, papers, and effects and costs while the excess if any shall be returned to
against unreasonable searches and seizures. This the accused or to whoever made the deposit.
liability is separate and distinct from:
The question of granting bail to the accused is but an
1. Violation of the domicile (Art. 1289 of the RPC); aspect of the criminal action, preventing him or her
2. Search warrant maliciously obtained and abuse from eluding punishment in the event of conviction. The
in the service of those legally obtained (Art. grant of bail or its denial has no impact on the civil
129); or liability of the accused that depends on conviction by
3. Searching domicile without witness (Art. 130). final judgment.
Chapter VI When a person indicted for an offense is arrested, he is

BAIL deemed placed under the custody of the law. He is
placed in actual restraint of liberty in jail so that he may
RULE 114 be bound to answer for the commission of the offense.
He must be detained in jail during the pendency of the
Q: What is Bail? case against him, unless he is authorized by the court to
be released on bail or on recognizance. Let it be NOTE: The grant or denial of bail to a person charged
stressed that all prisoners whether under preventive with an offense punishable by at least reclusion
detention or serving final sentence can not practice perpetua is made dependent on wheter or not the
their profession nor engage in any business or evidence of guilt is strong.
occupation, or hold office, elective or appointive, while
in detention (Trillanes IV v. Pimentel citing People v. The test is not whether the evidence establishes guilt
Maceda). beyond reasonable doubt but rather whether it shows
evident guilt or a great presumption of guilt. As such,
The presumption of innocence is not a reason for the the court is ministerially bound to decide which
detained accused to be allowed to hold office or circumstances and factors are present which would
practice his profession. Such presumption does not show evident guilt or presumption of guilt.
carry with it full enjoyment of civil and political rights.
Q: What do you mean by proof of evident or evident
Constitutional basis of the right to bail proof?
Section 13. All persons, except those charged with A: It means clear, strong evidence which leads a well-
offenses punishable by reclusion perpetua when guarded dispassionate judgment to the conclusion that
evidence of guilt is strong, shall, before conviction, be the offense had been committed as charged, that
bailable by sufficient sureties, or be released on accused is the guilty agent, and that he will probably be
recognizance as may be provided by law. The right to punished capitally if the law is administered.
bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall Q: When does “presumption great” exist?
not be required.
A:It exists when the circumstances testified to are such
Principles on bail that the inference of guilt naturally to be drawn
therefrom is stong, clear, and convincing to an unbiased
a. All persons shall, before conviction, be bailable. This judgment and excludes all reasonable probability of any
is the general rule which makes the right other conclusion.
constitutional right. Excepted from this general rule
are those who are charged with offenses punishable The rule is very explicit as to when admission to bail is
by reclusion perpetua when the evidence of guilt is discretionary on the part of the respondent Judge. It is
strong. The person accused however shall be imperative that judges be conversant with basic legal
entitled to bail when evidence of guilt is not strong. principles and possessed sufficient proficiency in the
b. The suspension of the privilege of the writ of law. In offenses punishable by reclusion perpetua or
habeas corpus does not impair the right to bail. death, the accused has no right to bail when the
c. Excessive bail is not to be required. evidence of guilt is strong. Thus, as the accused in
Criminal Case No. 3620-01 had been sentenced
The Rules also state that no person charged with a to reclusion perpetua, the bail should have been
capital offense, or an offense punishable by reclusion cancelled, instead of increasing it as respondent Judge
perpetua or life imprisonment, shall be admitted to bail did. The act of Mangotara in increasing the bail bond of
when evidence of guilt is strong, regardless of the stage the accused instead of cancelling it is not a mere
of the criminal action. deficiency in prudence, discretion and judgment on the
xxx part of respondent Judge, but a patent disregard of
That the cited provisions apply equally to rape and coup well-known rules (Dipatuan v. Mangotara).
d'etat cases, both being punishable by reclusion
perpetua, is beyond cavil. Within the class of offenses Bail in the military
covered by the stated range of imposable penalties,
there is clearly no distinction as to the political The right to bail invoked has traditionally not been
complexion of or moral turpitude involved in the crime recognized and is not available in the military, as an
charged (Trillanes IV v. Pimentel). exception to the general rule embodied in the Bill of
Rights. The right to a speedy trial is given more
emphasis in the military where the right to bail does not
exist. The unique structure of the military should be rights. Furthermore, we believe that the right to due
enough reason to exempt military men from the process is broad enough to include the grant of basic
constitutional coverage on the right to bail.The fairness to extraditees. Indeed, the right to due
argument that denial from the military of the right to process extends to the “life, liberty or property”
bail would violate the equal protection clause is not of every person. It is “dynamic and resilient, adaptable
acceptable. This guaranty requires equal treatment only to every situation calling for its application.”
of persons or things similarly situated and does not
apply where the subject of the treatment is Accordingly and to best serve the ends of justice, we
substantially different from others. The accused officers believe and so hold that, after a potential extraditee has
can complain if they are denied bail and other members been arrested or placed under the custody of the law,
of the military are not. But they cannot say they have bail may be applied for and granted as an exception,
been discriminated against because they are not only upon a clear and convincing showing (1) that, once
allowed the same right that is extended to civilians granted bail, the applicant will not be a flight risk or a
(Comendador v. Villa). danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances
Bail in extradition cases including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants
Government of the USA v. Purganan provisional liberty in extradition cases therein.
Q: Is a person facing extradition entitled to bail? Since this exception has no express or specific statutory
basis, and since it is derived essentially from general
A: principles of justice and fairness, the applicant bears the
burden of proving the above two-tiered requirement
1. The use of the word conviction under Sec. 13 of with clarity, precision and emphatic forcefulness. The
Article 3 suggests that bail applies only when a Court realizes that extradition is basically an executive,
person has been arrested and detained for violation not a judicial, responsibility arising from the presidential
of Philippine criminal laws. It does not apply to power to conduct foreign relations. In its barest
extradition proceedings because extradition courts concept, it partakes of the nature of police assistance
do not render judgments of conviction or acquittal. amongst states, which is not normally a judicial
2. The constitutional right to bail “flows from the prerogative. Hence, any intrusion by the courts into the
presumption of innocence in favor of every accused exercise of this power should be characterized by
who should not be subjected to the loss of freedom caution, so that the vital international and bilateral
as thereafter he would be entitled to acquittal, interests of our country will not be unreasonably
unless his guilt be proved beyond reasonable impeded or compromised. In short, while this Court is
doubt.” It follows that the constitutional provision ever protective of “the sporting idea of fair play,” it also
on bail will not apply to a case like extradition, recognizes the limits of its own prerogatives and the
where the presumption of innocence is not at need to fulfill international obligations.
issue.
3. Extradition proceedings are not criminal in nature Purganan case re-examined
but sui generis, a class itself. Since it is not a
criminal proceeding, it will not call into operation all Government of Hong Kong Special Administrative
the rights of an accused under the Bill of Rights and Region v. Olalia
does not involve a determination of guilt or
innocence. In this case, the Court of Hong Kong v. Olalia, Jr. viewed
the issue in the light of the modern trend in
Exceptions to the “No Bail” Rule international law placing primacy on the worth of the
individual person and the sanctity of human rights.
The rule, is that bail is not a matter of right in Accordingly: “At first glance, the above ruling applies
extradition cases. However, the judiciary has the squarely to private respondent’s case. However, this
constitutional duty to curb grave abuse of Court cannot ignore the following trends in
discretion and tyranny, as well as the power to international law: (1) the growing importance of the
promulgate rules to protect and enforce constitutional individual person in public international law who, in
the 20thcentury, has gradually attained global
recognition; (2) the higher value now being given to If bail can be granted in deportation cases, we see no
human rights in the international sphere; (3) the justification why it should not also be allowed in
corresponding duty of countries to observe these extradition cases. Likewise, considering that the
universal human rights in fulfilling their treaty Universal Declaration of Human Rights applies to
obligations; and (4) the duty of this Court to balance deportation cases, there is no reason why it cannot be
the rights of the individual under our fundamental law,
invoked in extradition cases. After all, both are
on one hand, and the law on extradition, on the
administrative proceedings where the innocence or
other.”
guilt of the person detained is not in issue.
The Philippines, along with the other members of the
family of nations, committed to uphold the Clearly, the right of a prospective extraditee to apply
fundamental human rights as well as value the worth for bail in this jurisdiction must be viewed in the light
and dignity of every person. This commitment is of the various treaty obligations of
enshrined in Section II, Article II of our Constitution the Philippines concerning respect for the promotion
which provides: “The State values the dignity of every and protection of human rights. Under these treaties,
human person and guarantees full respect for human the presumption lies in favor of human liberty. Thus,
rights.” The Philippines, therefore, has the the Philippines should see to it that the right to liberty
responsibility of protecting and promoting the right of of every individual is not impaired.
every person to liberty and due process, ensuring that
those detained or arrested can participate in the Bail in deportation proceedings
proceedings before a court, to enable it to decide
without delay on the legality of the detention and order As a rule, aliens in deportation cases have no inherent
their release if justified. In other words, the Philippine right to bail and it has been held that a person arrested
authorities are under obligation to make available to
or detained cannot be released on bail, unless that right
every person under detention such remedies which
is granted expressly by law.
safeguard their fundamental right to liberty. These
remedies include the right to be admitted to bail. While
this Court in Purganan limited the exercise of the right Section 37(9)(e) of the Philippine Immigration Act of
to bail to criminal proceedings, however, in light of the 1940
various international treaties giving recognition and
protection to human rights, particularly the right to life Any alien under arrest in a deportation proceeding
and liberty, a reexamination of this Court’s ruling may be released under bond or under such other
in Purganan is in order. conditions as may be imposed by the Commissioner of
Immigration.
First, we note that the exercise of the State’s power to
deprive an individual of his liberty is not necessarily Thus, the use of word “may” indicates that the grant of
limited to criminal proceedings. Respondents in bail is merely permissive and not mandatory or
administrative proceedings, such as deportation and obligatory on the part of the Commissioner. The
quarantine, have likewise been detained. exercise of the power is wholly discretionary.
In the Matter of the Petition for Habeas Corpus of

Second, to limit bail to criminal proceedings would be to
Harvey, et al. v. Defensor-Santigao
close our eyes to our jurisprudential history. Philippine
jurisprudence has not limited the exercise of the right to Thus, Section 37(e) of the Philippine Immigration Act of
bail to criminal proceedings only. This Court has 1940 provides that "any alien under arrest in a
admitted to bail persons who are not involved in deportation proceeding may be released under bond or
criminal proceedings. In fact, bail has been allowed in under such other conditions as may be imposed by the
this jurisdiction to persons in detention during the Commissioner of Immigration." The use of the word
pendency of administrative proceedings, taking into "may" in said provision indicates that the grant of bail is
cognizance the obligation of the Philippines under merely permissive and not mandatory on the part of the
international conventions to uphold human rights. Commissioner. The exercise of the power is wholly
discretionary (Ong Hee Sang vs. Commissioner of lawful arrest or voluntary surrender. The purpose is to
Immigration, L-9700, February 28,1962, 4 SCRA 442). discourage and prevent the practice where the accused
"Neither the Constitution nor Section 69 of the Revised could just send another in his stead to post his bail,
Administrative Code guarantees the right of aliens without recognizing the jurisdiction of the court by his
facing deportation to provisional liberty on bail." (Tiu personal appearance (Miranda v. Tuliao).
Chun Hai et al vs. Deportation Board, 104 Phil. 949
[1958]). As deportation proceedings do not partake of Q: When is a person considered as under the custody
the nature of a criminal action, the constitutional of law?
guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of A: A person is deemed in custody if he is arrested by
Immigration, supra). virtue of a warrant or even without a warrant pursuant
to the Rules of Court or if he voluntarily submits himself
Q: Who furnishes bail? to the jurisdiction of the court as when he surrenders to
the proper authorities (People v. Gako).
A: It may be furnished by the bail applicant himself or
by a bondsman. Exceptions to the rule that the applicant must be in
custody of law
Obligation and right of the bondsman
1. When the bail is required to guarantee the
1. The bondsman shall surrender the accused to the appearance of a material witness under Sec. 14 of Rule
court for execution of the final judgment. For the 119;
purpose of surrendering the accused, the bondman
may arrest him or, upon written authority endorsed 2. When bail is require to guarantee the appearance of
on a certified copy of the undertaking, cause him to a prosecution witness in cases where there is a
be arrested by a police officer or any other person substitution of the information.
of suitable age and discretion;
2. An accused released on bail may be re-arrested Bail to guarantee appearance of witnesses
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of While the rule is that bail does not apply to a person
the court where the case is pending; who is in custody of the law, the bail required to secure
3. The authority of the bondsman to arrest or cause the appearance of a material witness constitutes an
the arrest of the accused springs from the old exception to the general rule.
principle that once the obligation of bail is assumed,
the bondsman or surety becomes the jailer of the When the court is satisfied, upon proof or oath, that a
accused and is subrogated to all the rights and material witness will not testify when required, the
means which the government possesses to make his court, may upon motion of either party, order the
control over him effective. witness to post bail in such sum as may be deemed
proper. If he refused to post bail, the court shall commit
The applicant for bail must be in custody him to prison until he complies or is legally discharged
after his testimony has been taken.
If bail is the security for the release of a person under
custody, bail cannot be availed of by someone outside If it appears at any time before judgment that a mistake
the custody of law. A freeman is not entitled for bail. has been made in charging the proper offense, the
court shall dismiss the original complaint or information
Hence, a fugitive may not apply for bail unless he gives upon the filing of a new one charging the proper
himself up first so he may be placed under the custody offense as long as the accused is not placed in double
of the law. An application for admission to bail by one jeopardy. The court may require the appearance of
who is at large is premature (Guillermo v. Reyes). witnesses to give bail for their appearance at the trial.
As bail is intended to obtain or secure one’s provisional Bail for those not yet charged
liberty, the same cannot be posted before custody over
him is acquired by judicial authorities, either by his
What entitles a person to bail is being under the should not be taken to mean that the hearing on
custody of the law. Hence, any person in custody who is petition for bail should at all times precede
not yet charged in court may apply for bail with any arraignment, because the rule is that a person is
court in the province, city, or municipality where he is deprived of his liberty by virtue of his arrest or
held. voluntary surrender may apply for bail as soon as he is
deprived of liberty, even before a complaint or
NOTE: A person deprived of his liberty by virtue of his information is filed against him. The court cautioned
arrest or voluntary surrender may apply for bail as soon that its pronouncements in Lavides should be
as he is deprived of his liberty, even before a complaint understood in the light of the fact that the accused in
or information is filed against him. said case filed a petition for bail as well as a motion to
quash the informations filed against him.
The application for bail shall be made with any court in
the province, city, municipality where the person Q: May a motion to quash be filed during the
arrested is held. pendency of petition for bail?
It is an elementary rule that an MTC judge has no A: A Motion to bail and motion to quash are two reliefs
authority to grant bail to an accused arrested outside of which have the objectives which are not necessarily
his territorial jurisdiction. antithetical to each other. Certainly, the right of an
accused to seek provisional liberty when charged with
Effects of failure to appear in the trial an offense not punishable by death, reclusion perpetua
or life Imprisonment, or when charged with an offense
Q: What are the effects of failure to appear in the punishable by such penalties but after due hearing,
trial? evidence of his guilt is found not be strong, does not
preclude his right to assail the validity of the
A: If without justification, it shall be deemed a waiver of information charging him with such offense.
his right to be present and trial may proceed in
absentia. But if a motion to quash a criminal complaint or
information on the ground that the same does not
The bondsman may arrest the accused for the purpose charge any offense is granted, and the case is dismissed
of surrendering the accused. The bondsman may also and the accused is ordered released, the petition for
cause the accused to be arrested by a police officer or bail of an accused may become moot and academic.
any other person of suitable age and discretion upon
written authority endorsed on a certified copy of the
undertaking.
Court cannot require arraignment before the FORMS OF BAIL

grant of bail
Q: What are the forms of bail?
Q: Can the Court require arraignment before the grant
of bail? A:
1. Corporate surety
A: In Lavides v. CA, the court held that the grant of bail 2. Property bond
should not be conditioned upon the prior arraignment 3. Cash deposit
of the accused. In cases where bail is authorized, bail 4. Recognizance
should be granted before arraignment, otherwise, the
accused will be precluded from filing a motion to quash Q: What is a corporate surety?
which is to be done before arraignment. If the
information is quashed and the case is dismissed, there A: This is furnished by a corporation. Under the Rules of
would be no need for the arraignment of the accused. Court, any domestic or foreign corporation which is
licensed as a surety and authorized to act as such, may
In the case Serapio v. Sandiganbayan, the court clarified provide bail by a bond subscribed jointly by the accused
its pronouncements in Lavides. The ruling in Lavides
and an officer of the corporation duly authorized by the NOTE: A judge is not one of those authorized to receive
board of directors. deposit of cash bail; nor should such cash be kept in the
judge’s office, much less in his own residence.
Q: What is property bond?
Q: What is recognizance?
A: It is an undertaking constituted as lien on the real
property given as security for the amount of the bail. A: This is an obligation on record entered into before
Within 10 days from the approval of the bond, the the same court or magistrate duly authorized to take it,
accused shall cause the annotation on the certificate of with the condition to do some particular act, the most
title on file with the Registry of Deeds. usual condition in criminal cases being the appearance
of the accused for trial.
If the land is unregistered, it is annotated in the Registry
Book on the space provided therefore in the RD of the The release may be either on the recognizance of the
province or city where the land lies. This shall also be accused himself or by a responsible person.
noted at the corresponding tax declaration.
Q: When is recognizance proper?
Within 10 days, the accused shall submit his compliance
with the above acts, otherwise it shall be a ground for A:
cancellation of the property bond, his re-arrest and 1. When the offense charged is for violation of an
detention. ordinance, a light felony, or a criminal offense, the
imposable penalty of which does not exceed 6
Q: What are the qualifications of a property bond? months imprisonment and or P2,000.00 fine,
under the circumstances provided by R.A. 6036.
A: 2. Where a person has been in custody for a period
1. Each must be a resident or owner of real estate equal to or more than the minimum of the
within the Philippines imposable principal penalty, without application of
2. Where there is only one surety, his real estate must the Indeterminate Sentence Law or any modifying
be worth at least the amount of the undertaking circumstance, in which case, the court, in its
3. If there are at least 2 sureties, each may justify in an discretion, may allow his release on his
amount less than that expressed in the undertaking recognizance, or on a reduced bail, at the
but the aggregate of the justified sums must be discretion of the court.
equivalent to the whole amount of the bail 3. Where the accused has applied for probation,
demanded. pending finality of the judgment but no bail was
filed or the accused is incapable of filing one.
NOTE: Each surety is also required to execute an 4. In case of youthful offender held for physical and
affidavit taken before the judge that he possess the mental examination, trial, or appeal, if he is unable
qualifications of a surety. to furnish bail and under the circumstances
envisaged in P.D. 603, as amended.
Q: What is a cash deposit? 5. In summary procedure, when the accused has been
arrested for failure to appear when required. His
A: The accused or any person acting in his behalf may release shall be either on bail or on recognizance
deposit in cash with the nearest collector of internal by a responsible citizen acceptable to the court.
revenue or provincial, city, or municipal treasurer the
amount of bail fixed by the court or recommended by Guidelines in fixing the amount of bail
the prosecutor who investigated or refiled the case.
Excessive bail shall not be required. It should be high
The accused shall be discharged from custody upon enough to assure the presence of the accused when
submission of the certificate of deposit and a written such presence is required but no higher than is
undertaking showing compliance with the requirements reasonably calculated to fulfill this purpose.
of the Rules of Court.
Q: What are the factors to be considered by the judge
in fixing the amount of bail?
imprisonment prescribed for offense charged,
A: he shall be released immediately, without
1. Financial ability of the accused to give bail prejudice to the continuation of the trial or the
2. Nature and circumstances of the offense proceedings on appeal.
3. Penalty for the offense charged 3. If the maximum penalty to which the accused is
4. Character and reputation of the accused sentenced is destierro, he shall be released after
5. Age and wealth of the accused 30 days of preventive imprisonment.
6. Weight of evidence against the accused 4. In cases with the Municipal Trial Court or
7. Probability of the accused appearing at the trial Municipal Circuit Trial Court for an offense
8. Forfeiture of other bail punishable by an imprisonment of less than 4
9. The fact that the accused was a fugitive from justice years, 2 months and 1 day, and the judge is
when arrested satisfied that there is no necessity for placing
10. Pendency of other cases where the accused is on the accused under custody, he may issue
bail. summons instead of warrant of arrest. Since no
arrest is made, bail is not required.
Q: What is the effect of high existence of a high degree 5. Under R.A. 6036, bail shall not be required if a
of probability that the defendant will abscond? person is charged with violation of a municipal
or city ordinance, a light felony and or a criminal
A: It confers upon the court no greater discretion than offense; the penalty of which is not higher than
to increase the bond to such an amount as would 6 months imprisonment and or a fine of
reasonably tend to assure the presence of the P2,000.00 or both where it is established that
defendant when it is wanted he is unable to post the required cash or bail
bond.
Duration of the bond This is subject to the ff. exceptions:
Q: What is the duration of the bond? a. When he is caught committing the offense in
flagrante
A:The undertaking under the bail shall take effect upon b. When he confesses to the commission of the
approval, and unless cancelled, shall remain in force at offense unless the confession is later
all stages of the case until promulgation of judgment of repudiated by him in a sworn statement or in
the RTC, irrespective of whether the case was originally open court as having been extracted through
filed in or appealed to it. force or intimidation
c. When he is found to have previously escaped
It can only be used during the 15-day period to appeal from legal confinement, evaded service of
and not during the entire period of appeal. sentence, or jumped bail
d. When he is found to have previously the
Q: What are the exceptions to the rule that no person provisions of Sec. 2 of the law
under detention by legal process shall be released or e. When he is found to be a recidivist or a habitual
transferred? delinquent or has been previously convicted for
an offense to which the law or ordinance
A: attaches an equal or greater penalty or for 2 or
1. Upon order of the court more offenses to which it attaches a lighter
2. When he is admitted to bail penalty
f. When he commits the offense while on parole
When bail is not required or under conditional pardon
g. When the accused has previously been
Q: When is bail not required? pardoned by the municipal or city mayor for
violation of municipal or city ordinance for at
A: least 2 times.
1. When the law or rules so provide
2. When a person has been in custody for a period When bail is not allowed
equal to or more than the possible maximum
Q: In what instances is bail not allowed? prosecutor must be notified to require him to submit
his recommendation.
A:
1. A person charged with a capital offense, or an Where application for bail is to be filed when bail is a
offense punishable by reclusion perpetua or life matter of discretion and after conviction by the RTC
imprisonment, shall not be admitted to bail when
evidence of guilt is strong regardless of the stage of Q: May an application for bail be filed even after a
the criminal prosecution. notice of appeal?
2. After judgment of conviction has become final.
3. After the accused has commenced to serve his A: The application for bail may be filed and acted upon
sentence by the trial court even if notice of appeal has already
been filed provided that the trial court has not yet
When bail is a matter of right transmitted the original record to the appellate court.
Q: When is bail a matter of right? Q: What if the record is already transmitted?
A: A: Then, the application shall be filed with the said

1. Before conviction by the MTC, MeTC, MTC in Cities, appellate court.
or MCTC
2. After conviction by the courts mentioned in letter a. Q: What if the decision of the RTC convicting the
3. Before conviction by the RTC of an offense not accused changed the nature of the offense from non-
punishable by death, reclusion perpetua or life bailable to bailable?
imprisonment
A: If the decision of the RTC convicting the accused
NOTE: The exercise of the discretionary power to grant changed the nature of the offense from non-bailable to
bail to an accused charged with a capital offense thus bailable, the application for bail can only be filed and
depends on whether the evidence of guilt is strong. The resolved by the appellate court.
court should first conduct a hearing, whether summary
or otherwise in the discretion of the court to determine If the application for bail is granted, the accused may be
the existence of strong evidence or the lack of it. allowed to continue on provisional liberty during the
pendency of the appeal under the same bail. This is
subject however to the consent of the bondsman.
Remedy when bail is denied

When application for bail after conviction by the RTC
The remedy of the petitioner is to file a petition for shall be denied
certiorari if the trial court committed a grave abuse of
its discretion amounting to excess or lack of jurisdiction 1. If the penalty imposed is death, reclusion perpetua
in issuing the said order. or life imprisonment, bail should be denied since
the conviction indicates strong evidence of guilt
When bail is a matter of discretion based on proof beyond reasonable doubt
2. Even if the penalty imposed by the trial court is not
Q: When is bail a matter of discretion? any of the above but merely imprisonment
exceeding 6 years, the accused shall be denied bail,
A: When the accused has been convicted in the RTC of or his bail already allowed shall be cancelled, if the
an offense not punishable by death, reclusion perpetua prosecution shows the ff. or other similar
or life imprisonment. circumstances.
a. That the accused is a recidivist or a quasi-
Since the grant of bail is a matter of discretion, a recidivist, a habitual delinquent or has
hearing must be conducted whether or not the committed the crime aggravated by the
prosecution refuses to present evidence and the circumstance of reiteration.

b. That the accused has previously escaped from (e) That there is undue risk that he may commit another crime
legal confinement, evaded sentence, or violated during the pendency of the appeal.
the conditions of his bail without justification. The appellate court may, motu proprio or on motion of any party,
c. That the accused committed the offense while review the resolution of the Regional Trial Court after notice to the
under pardon, parole or under conditional adverse party in either case.
pardon
d. That the circumstances of his case indicate the The 3rd paragraph of Sec. 5 of Rule 114 applies to 2
probability of flight if released on bail scenarios where the penalty imposed on the appellant
e. That there is undue risk that he may commit applying for bail is imprisonment exceeding 6 years:
another crime during the pendency of the
appeal. 1. Where the circumstances enumerated in the
said paragraph not being present;
NOTE: The court is not authorized to deny or cancel the
bail ex parte. The rule requires notice to the accused. In this situation, bail is a matter of sound discretion.
The appellate court has the discretion to grant or
Bail pending appeal deny bail.
2. The existence of at least one of the said
The appellant has no right to be freed on bail pending circumstances.
his appeal from the trial court’s judgment where his
conviction carries a penalty of imprisonment In this situation, the court exercises a more stringent
exceeding 6 years and there is a justification for the discretion to carefully ascertain whether any of the
cancellation of his bail pursuant to the 3rd paragraph of enumerated circumstances exists. If it so determines, it
section 5 (b), (d) and (e) of Rule 114. has no other option except to deny or revoke bail
pending appeal. Thus, a finding that none of the said
Sec. 5. Bail, when discretionary. – Upon conviction by the Regional circumstances is present will not automatically result in
Trial Court of an offense not punishable by death, reclusion the grant of bail. Such finding will simply authorize the
perpetua, or life imprisonment, admission to bail is discretionary.
The application for bail may be filed and acted upon by the trial
court to use the less stringent sound discretion
court despite the filing of a notice of appeal, provided it has not approach.
transmitted the original record to the appellate court. However, if
the decision of the trial court conviction the accused changed the Hearing of application for bail in offenses punishable
nature of the offense from non-bailable to bailable, the application by death, reclusion perpetua, or life imprisonment
for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed A hearing of the application for bail is to be conducted
to continue on provisional liberty during the pendency of the appeal when a person is in custody for the commission of an
under the same bail subject to the consent of the bondsman. offense punishable by death, reclusion perpetua, or life
If the penalty imposed by the trial court is imprisonment exceeding
imprisonment. In the hearing, the prosecution has the
six (6) years, the accused shall be denied bail, or his bail shall be burden of showing that evidence of guilt is stong. Bail in
cancelled upon a showing by the prosecution, with notice to the this type of offense is not a matter of right.
accuse, of the following or other similar circumstances:
Accordingly, when the granting of bail is not a matter of
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or
has committed the crime aggravated by the circumstance of right or is merely discretionary, a hearing should be first
reiteration; conducted to determine the existence of strong
evidence or lack of it, against the accused to enable the
(b) That he has previously escaped from legal confinement, evaded judge to make an intelligent assessment of the evidence
sentence, or violated the conditions of his bail without valid
justification;
presented by the parties.
(c) That he committed the offense while under probation, parole, or Q: What is a summary hearing?
conditional pardon;
A: It is such brief and speedy method of receiving and
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or considering the evidence of guilt as is practicable and
consistent with the purpose of hearing which is merely
to determine the weight of evidence for the purpose of
bail. The course of inquiry may be left to the discretion reclusion perpetua or life imprisonment, a hearing,
of the court which may confine itself to receiving such whether summary or otherwise in the discretion of the
evidence as has reference to substantial matters, court, must actually be conducted to determine whether
avoiding unnecessary examination and cross or not the evidence of guilt against the accused is
examination. strong. ‘A summary hearing means such brief and
speedy method of receiving and considering the
Accordingly, without the required hearing, the bail evidence of guilt as is practicable and consistent with
which may be granted to the accused would be the purpose of hearing which is merely to determine
arbitrary and without basis. the weight of evidence for the purposes of bail. On such
hearing, the court does not sit to try the merits or to
Jurisprudence is replete with decisions compelling enter into any nice inquiry as to the weight that ought
judges to conduct the required hearings in bail to be allowed to the evidence for or against the
applications, in which the accused stands charged with accused, nor will it speculate on the outcome of the trial
a capital offense. The absence of objection from the or on what further evidence may be therein offered and
prosecution is never a basis for the grant of bail in such admitted. The course of inquiry may be left to the
cases, for the judge has no right to presume that the discretion of the court which may confine itself to
prosecutor knows what he is doing on account of receiving such evidence as has reference to substantial
familiarity with the case. "Said reasoning is tantamount matters, avoiding unnecessary thoroughness in the
to ceding to the prosecutor the duty of exercising examination and cross examination.’ If a party is denied
judicial discretion to determine whether the guilt of the the opportunity to be heard, there would be a violation
accused is strong. Judicial discretion is the domain of of procedural due process." (Emphasis supplied.)
the judge before whom the petition for provisional
liberty will be decided. The mandated duty to exercise NOTE: It is mandatory to conduct a hearing despite the
discretion has never been reposed upon the prosecution’s refusal to adduce evidence in opposition
prosecutor" (Narciso v. Sania Romana-Cruz). to the application to grant and fix bail. The fact that the
prosecutor interposed no objection for bail does not
Q: Give the nature of a bail hearing? Is it mandatory? relieve the judge of the duty to set the motion for bail
for hearing.
A: It is mandatory to give the prosecution reasonable
opportunity to oppose the application by proving that
the evidence of guilt is strong.
Narciso v. Sania Romana-Cruz

Duty of the trial judge in a petition for bail in offenses
When the grant of bail is discretionary, the prosecution punishable by reclusion perpetua, life imprisonment or
has the burden of showing that the evidence of guilt death
against the accused is strong. However, the
determination of whether or not the evidence of guilt is (1) Notify the prosecutor of the hearing of the
strong, being a matter of judicial discretion, remains application for bail or require him to submit his
with the judge. ‘This discretion by the very nature of recommendation (Section 18, Rule 114 of the Rules of
things, may rightly be exercised only after the evidence Court as amended;
is submitted to the court at the hearing. Since the
discretion is directed to the weight of the evidence and (2) Conduct a hearing of the application for bail
since evidence cannot properly be weighed if not duly regardless of whether or not the prosecution refuses to
exhibited or produced before the court, it is obvious present evidence to show that the guilt of the accused
that a proper exercise of judicial discretion requires that is strong for the purpose of enabling the court to
the evidence of guilt be submitted to the court, the exercise its sound discretion (Sections 7 and 8, supra);
petitioner having the right of cross examination and to
introduce his own evidence in rebuttal. (3) Decide whether the evidence of guilt of the accused
is strong based on the summary of evidence of the
Consequently, in the application for bail of a person prosecution (Baylon v. Sison, supra);
charged with a capital offense punishable by death,
(4) If the guilt of the accused is not strong, discharge the (b) the penalty of life imprisonment, when the law violated does not
accused upon the approval of the bailbond. Otherwise, make use of the nomenclature of the penalties of the Revised Penal
Code.
petition should be denied."
Where application or petition for bail may be filed?
The above-enumerated procedure should now leave no
room for doubt as to the duties of the trial judge in Sec. 17 (a) of Rule 114 of the Rules of Court
cases of bail applications. So basic and fundamental is it
to conduct a hearing in connection with the grant of bail Bail in the amount fixed may be filed with the court
in the proper cases that it would amount to judicial where the case is pending, or in the absence or
apostasy for any member of the judiciary to disclaim unavailability of the judge thereof, with any regional
knowledge or awareness thereof." trial judge, metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the province,
Additionally, the court’s grant or refusal of bail must city or municipality. If the accused is arrested in a
contain a summary of the evidence for the prosecution, province, city, or municipality other than where the
on the basis of which should be formulated the judge's case is pending, bail may also be filed with any regional
own conclusion on whether such evidence is strong trial court of said place, of if no judge thereof is
enough to indicate the guilt of the accused. The available, with any metropolitan trial judge, municipal
summary thereof is considered an aspect of procedural trial judge, or municipal circuit trial judge therein.
due process for both the prosecution and the defense;
its absence will invalidate the grant or the denial of the Where there is no showing that the judge of the court
application for bail. where the criminal case is pending is unavailable,
another judge who entertains a bail application despite
NOTE: Even if the capital offense is bailable owing to knowledge of the pendency of the case in another court
the weakness of the evidence of guilt, the right to bail is clearly in error (Savella v. Ines).
may justifiably still be denied if the probability of escape
is great. When bail is filed with a court other than where the
case is pending, the judge who accepted the bail shall
Evidence in bail hearing are automatically reproduced forward it, together with the order of release and other
at the trial supporting papers, to the court where the case is
pending, which may, for good reason, require a
The evidence presented during the bail hearing shall be different one to be filed (Sec. 19, Rule 114).
considered automatically reproduced at the trial but,
upon motion of either party, the court may recall any The failure of the judge who granted the bail to
witness for additional examination unless the latter is transmit the order of release and other supporting
dead, outside the Philippines, or otherwise unable to papers to the court where the case is pending
testify (Sec. 8, Rule 114). constitutes violation of these rules.
CAPITAL OFFENSES (b) Where the grant of bail is a matter of discretion, or

the accused seeks to be released on recognizance, the
Q: What is a capital offense? application may only be filed in the court where the
case is pending, whether on preliminary investigation,
A: It is an offense which under the law existing at the trial, or appeal.
time of its commission and of the application for
admission to bail, may be punished with death. The (c) Any person in custody who is not yet charged in
imposition of death penalty is now prohibited by R.A. court may apply for bail with any court in the province,
9346: city, or municipality where he is held.
SEC. 2. In lieu of the death penalty, the following shall be imposed.
(a) the penalty of reclusion perpetua, when the law violated makes
Increase or reduction of bail (Sec. 20, Rule 114)
use of the nomenclature of the penalties of the Revised Penal Code;
or After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to
custody if he does not give bail in the increased should not be rendered against them for the amount of
amount within a reasonable period. An accused held to the bond.” The order is different from the judgment on
answer a criminal charge, who is released without bail the bond which is issued if the accused was not
upon filing of the complaint or information, may, at any produced within the 30-day period.
subsequent stage of the proceedings and whenever a
strong showing of guilt appears to the court, be Cancellation of the bail
required to give bail in the amount fixed, or in lieu
thereof, committed to custody. Bail may be cancelled by application of the bondsmen
with due notice to the prosecutor:
Bail for accused originally released without bail (Sec
20, Rule 114) a. Upon surrender of the accused; or
b. Proof of his death.
After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its amount. Q: When may bail be deemed as automatically
When increased, the accused may be committed to canceled?
custody if he does not give bail in the increased amount
within a reasonable period. An accused held to answer A:
a criminal charge, who is released without bail upon
filing of the complaint or information, may, at any 1. Acquittal of the accused;
subsequent stage of the proceedings and whenever a 2. Dismissal of the case; or
strong showing of guilt appears to the court, be 3. Execution of the judgment of conviction.
required to give bail in the amount fixed, or in lieu
thereof, committed to custody.
Forfeiture of bail If the penalty imposed by the trial court is

imprisonment exceeding six (6) years, the accused shall
When the presence of the accused is required by the be denied bail, or his bail shall be cancelled upon a
court or these Rules, his bondsmen shall be notified to showing by the prosecution, with notice to the accuse,
produce him before the court on a given date and time. of the following or other similar circumstances:
If the accused fails to appear in person as required, his
bail shall be declared forfeited and the bondsmen given (a) That he is a recidivist, quasi-recidivist, or
thirty (30) days within which to produce their principal habitual delinquent, or has committed the
and to show why no judgment should be rendered crime aggravated by the circumstance of
against them for the amount of their bail. Within the reiteration;
said period, the bondsmen must: (b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
(a) produce the body of their principal or give the conditions of his bail without valid justification;
reason for his non-production; and (c) That he committed the offense while under
(b) Explain why the accused did not appear before probation, parole, or conditional pardon;
the court when first required to do so. (d) That the circumstances of his case indicate the
probability of flight if released on bail; or
Failing in these two requisites, a judgment shall be (e) That there is undue risk that he may commit
rendered against the bondsmen, jointly and severally, another crime during the pendency of the
for the amount of the bail. The court shall not reduce or appeal.
otherwise mitigate the liability of the bondsmen, unless
the accused has been surrendered or is acquitted. The appellate court may, motu proprio or on motion of
Judgment against the bondsmen cannot be entered any party, review the resolution of the Regional Trial
unless such judgment is preceded by the order of Court after notice to the adverse party in either case.
forfeiture and an opportunity given to the bondsmen to
produce the accused or to adduce satisfactory reason Q: What is the appropriate remedy in case of
for their inability to do so. An order of forfeiture merely cancellation of bail?
requires the bondsman to “show cause why judgment
A: It is to file with the CA a motion to review the said court that he can properly protect his rights without
order in the same regular appeal proceedings which the the assistance of counsel.
appellant himself initiated, such motion being an (d) To testify as a witness in his own behalf but subject
incident to his appeal. to cross-examination on matters covered by direct
examination. His silence shall not in any manner
Application for admission to bail not bar to objections prejudice him.
on illegal arrest, lack or irregular preliminary (e) To be exempt from being compelled to be a witness
investigation against himself.
(f) To confront and cross-examine the witnesses
An application for or admission to bail shall not bar the against him at the trial. Either party may utilize as
accused from challenging the validity of his arrest or the part of its evidence the testimony of a witness who
legality of the warrant issued therefore, or from is deceased, out of or can not with due diligence be
assailing the regularity or questioning the absence of a found in the Philippines, unavailable, or otherwise
preliminary investigation of the charge against him, unable to testify, given in another case or
provided that he raises them before entering his plea. proceeding, judicial or administrative, involving the
The court shall resolve the matter as early as practicable same parties and subject matter, the adverse party
but not later than the start of the trial of the case (Sec. having the opportunity to cross-examine him.
26 of Rule 114). (g) To have compulsory process issued to secure the
attendance of witnesses and production of other
Chapter VII evidence in his behalf.
RIGHTS OF THE ACCUSED (h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner
RULE 115 prescribed by law.
Q: What are the rights of the accused? PRESUMPTION OF INNOCENCE
A: Sec. 14 (2) of Art. III of the 1987 Constitution of the

Philippines provides: In all criminal prosecutions, the
Section 1. Rights of accused at trial. – In all criminal accused shall be presumed innocent until the contrary
prosecutions, the accused shall be entitled to the is proved xxx.
following rights:
This constitutional guarantee cannot be overthrown
(a) To be presumed innocent until the contrary is unless the prosecution has established by such
proved beyond reasonable doubt. quantum of evidence sufficient to overcome this
(b) To be informed of the nature and cause of the presumption of innocence and prove that a crime was
accusation against him. committed and that the accused is guilty thereof.
(c) To be present and defend in person and by counsel
at every stage of the proceedings, from arraignment Also, this presumption prevails over the presumption of
to promulgation of the judgment. The accused may, regularity of the performance of official duty (People v.
however, waive his presence at the trial pursuant to Ong). While the law enforcers enjoy the presumption of
the stipulations set forth in his bail, unless his regularity in the performance of their duties, this
presence is specifically ordered by the court for presumption cannot prevail over the constitutional right
purposes of identification. The absence of the of the accused to be presumed innocent and it cannot
accused without justifiable cause at the trial of by itself constitute proof of guilt beyond reasonable
which he had notice shall be considered a waiver of doubt.
his right to be present thereat. When an accused
under custody escapes, he shall be deemed to have Prima facie presumptions of guilt
waived his right to be present on all subsequent
trial dates until custody over him is regained. Upon Q: May the Rules provide for the presumption of guilt?
motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the

A: Sec. 3(j) of Rule 131: a person found in possession of prosecution irresistibly pointing to the conclusive
a thing taken in the doing of a recent wrongful act is the culpability of the accused.
taker and the doer of the whole actxxx.”
In prosecution of cases involving illegal possession of
The Fisheries Decree of 1975 (P.D. 704) prohibited drugs, the prosecution must establish with
moral certainty the elemental act of possession of a
The discovery or dynamite, other explosives and prohibited substance coupled with the fact that such
chemical compounds containing combustible elements, possession is not authorized by law. Essential, however,
or obnoxious or poisonous substance, or requirement in a drug-related case is that the identity of the
or device for electric fishing in any fishing boat or in the dangerous drug be established beyond reasonable
possession of a fisherman shall constitute a doubt. Since the dangerous drug constitutes the corpus
presumption that the same were used for fishing in delicti of the offense and the fact of its existence is vital
violation of this Decree, and the discovery in any fishing to a judgment of conviction, it behooves upon the
boat of fish caught or killed by the cause of explosives, prosecution to establish and prove with certainty that
obnoxious or poisonous substance or by electricity shall the dangerous drug presented in court as evidence
constitute a presumption that the owner, operator or against the accused is the same item recovered from his
fisherman were fishing with the use of explosives, possession (Julius Cacao y Prieto v. People of the
obnoxious or poisonous substance or by electricity. Philippines).
Proof beyond reasonable doubt Q: Does the presumption of innocence end upon
conviction by the trial court even if the conviction is
The presumption of innocence is not meant to be appealed?
forever. It ends when it is overcome in a final
conviction. There is only one type of quantum of A:
evidence which overcomes the presumption—proof
beyond reasonable doubt. Without such quantum of Re: Conviction of Judge Angeles, A.M. No. 06-9-545-
evidence, the accused is entitled to an acquittal. RTC
Proof beyond reasonable doubt does not mean such “By parity of reasoning, the fact of respondent’s
degree of proof as, excluding the possibility of error, conviction by the RTC does not necessarily warrant her
produces absolute certainty. Moral certainty only is suspension. We agree with respondent's argument that
required, or that degree of proof which produces since her conviction of the crime of child abuse is
conviction in an unprejudiced mind (Sec.2, Rule 133). currently on appeal before the CA, the same has not yet
attained finality. As such, she still enjoys the
Q: What do you mean by reasonable doubt? constitutional presumption of innocence. It must be
remembered that the existence of a presumption
A: It is that doubt engendered by an investigation of the indicating the guilt of the accused does not in itself
whole proof and an inability after such investigation to destroy the constitutional presumption of innocence
let the mind rest each upon the certainty of guilt. unless the inculpating presumption, together with all
the evidence, or the lack of any evidence or
In criminal cases, the prosecution is not required to explanation, proves the accused's guilt beyond a
show the guilt of the accused with absolute certainty. reasonable doubt. Until the accused's guilt is shown in
Only moral certainty is demanded, or that degree of this manner, the presumption of innocence continues
proof which, to an unprejudiced mind, produces and until a promulgation of final conviction is made, this
conviction. constitutional mandate prevails."
The constitutional presumption of innocence can be Prosecution must rest on its own merits
accorded to the accused only in the absence of
evidence to prove his guilt beyond reasonable doubt. In establishing the guilt of the accused, the prosecution
That presumption cannot be upheld in the face of the must rest on its own merits and must not rely on the
overwhelming and incontrovertible evidence for the weakness of the defense. In fact, if the prosecution fails
to meet the required quantum of evidence, the defense
may logically not even present evidence on its own One, they were not arrested for the crime of robbery
behalf. In which case, the presumption of innocence with homicide but were arrested during a buy-bust
shall prevail and hence, the accused shall be acquitted. operation.
However, once the presumption of innocence is
overcome, the defense bears the burden of evidence to Apparently, the accused-appellants were arrested
show reasonable doubt as to the guilt of the accused. without a warrant during a buy-bust operation on
Reasonable doubt is that doubt engendered by an November 24, 2000, transferred to Camp Karingal
investigation of the whole proof and an inability after under dubious circumstances, and made to stand in a
such investigation to let the mind rest each upon the police line-up and identified by an eyewitness who
certainty of guilt. Absolute certainty of guilt is not failed to identify them three times. These circumstances
demanded by the law to convict a criminal charge, but were ignored by the trial court who gave too much
moral certainty is required as to every proposition of credence on the positive identification of the accused-
proof requisite to constitute the offense (Mupas v. appellants by the same eyewitness during direct
People). examination.
Effect of failure to identify the perpetrator Trial courts are mandated not only to look at the direct
examination of witnesses but to the totality of evidence
Q: What is the effect of the failure to identify the before them. In every case, the court should review,
accused as perpetrator of the offense charged? assess and weigh the totality of the evidence presented
by the parties. It should not confine itself to oral
A: It is settled that when the issue is the evaluation of testimony during the trial (People v. Olivo).
the testimony of a witness or his credibility, this Court
accords the highest respect and even finality to the Failure to comply with post-seizure procedures set by
findings of the trial court, absent any showing that it law
committed palpable mistake, misappreciation of facts
or grave abuse of discretion. It is the trial court which Q: What is the effect of the failure of the arresting
has the unique advantage of observing first-hand the officers to comply with post-seizure procedures set by
facial expressions, gestures and the tone of voice of a law?
witness while testifying.
A:
The well-entrenched rule is that findings of the trial
court affirmed by the appellate court are accorded high
respect, if not conclusive effect, by this Court, absent
clear and convincing evidence that the tribunals People v. Frondozo
ignored, misconstrued or misapplied facts and
circumstances of substances such that, if considered, To establish the identity of the shabu seized from
the same will warrant the modification or reversal of Frondozo, the procedures laid down in Rep. Act No.
the outcome of the case. 9165 should be complied with. Section 21 of the
Implementing Rules and Regulations of Rep. Act No.
Factual findings of trial courts, when substantiated by 9165 clearly outlines the post-seizure procedure in
the evidence on record, command great weight and taking custody of seized drugs. It states:
respect on appeal, save only when certain material facts
and circumstances were overlooked and which, if duly (1) The apprehending team having initial custody
considered, may vary the outcome of the case. and control of the drugs shall, immediately after
seizure and confiscation, physically inventory
and photograph the same in the presence of the
In this case, the material fact and circumstance that the accused or the person/s from whom such items
lone alleged eyewitness, Maricel Permejo, was not able were confiscated and/or seized, or his/her
to identify the accused-appellants as the perpetrators representative or counsel, a representative from
of the crime, varies the outcome of this case. the media and the Department of Justice (DOJ),
and any elected public official who shall be
required to sign the copies of the inventory and
be given a copy thereof. [Emphasis supplied.]

What is material in the prosecution for illegal sale of Finally, the presumption of regularity in the
dangerous drugs is proof that the transaction or sale performance of official duty relied upon by the lower
actually took place, coupled with the presentation in courts cannot by itself overcome the presumption of
court of evidence of corpus delicti. Prosecutions for innocence nor constitute proof of guilt beyond
illegal sale of prohibited drugs necessitate that the reasonable doubt. As a rule, the testimony of police
elemental act of possession of prohibited substance be officers who apprehended Frondozo is accorded full
established with moral certainty, together with the faith and credit because of the presumption that they
fact that the same is not authorized by law. The have performed their duties regularly. However, when
dangerous drug itself constitutes the very corpus the performance of their duties is tainted with
delicti of the offense and the fact of its existence is vital irregularities, such presumption is effectively destroyed.
to a judgment of conviction. Therefore, it is essential
that the identity of the prohibited drug be established Equipoise rule
beyond doubt.
The equipoise rule provides that where the evidence in
In this case, the arresting officers failed to strictly a criminal case is evenly balanced, the constitutional
comply with the procedures for the custody and presumption of innocence tilts the scales in favor of the
disposition of confiscated dangerous drugs as accused. If the inculpatory testimony is capable of 2 or
prescribed by Rep. Act No. 9165. The arresting officers more explanations, one consistent with the innocence
did not mark the shabu immediately after they arrested of the accused persons and the other consistent with
Frondozo. Further, while there was testimony regarding their guilt, then the evidence does not fulfill the test of
the marking of the shabuafter it was turned over to the moral certainty and is not sufficient to support a
police investigator, no evidence was presented to prove conviction.
that the marking thereof was done in the presence of
Frondozo. Hence, there is no equipoise if the evidence is not
evenly balanced. It cannot be invoke where the
Also, fatal in the prosecution’s case is the failure of the evidence of the prosecution is overwhelming
arresting officers to take a photograph and make an
inventory of the confiscated materials in the presence RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
of Frondozo. Likewise, there was no mention that any OF ACCUSATION
representative from the media, DOJ or any elected
public official had been present during the inventory or In order to inform the accused of the nature and cause
that any of these persons had been required to sign the of accusation against him, it is necessary for the
copies of the inventory. complaint or information to contain those matters
Clearly, none of the statutory safeguards mandated by required by the Statute:
Rep. Act No. 9165 was observed. Hence, the failure of
the buy-bust team to comply with the procedure in the a. The complaint or information must state the name
custody of the seized drugs raises doubt as to its and surname of the accused or any appellation or
origins. nickname by which he has been or is known. If his
name cannot be ascertained, he must be described
Nevertheless, while the seized drugs may be admitted under a fictitious name with a statement that his
in evidence, it does not necessarily follow that the same true name is unknown (Sec.7, Rule 110).
should be given evidentiary weight if the procedures b. Sec. 12 of Rule 110. Name of the offended party. –
provided by Rep. Act No. 9165 were not complied with. The complaint or information must state the name
The admissibility of the seized dangerous drugs in and surname of the person against whom or against
evidence should not be equated with its probative value whose property the offense was committed, or any
in proving the corpus delicti. The admissibility of appellation or nickname by which such person has
evidence depends on its relevance and competence been or is known. If there is no better way of
while the weight of evidence pertains to evidence identifying him, he must be described under a
already admitted and its tendency to convince and fictitious name.
persuade.
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 to be informed of the nature of the offense charged will
be identified, without need of averring that it is a be violated if his conviction is upheld.
juridical person or that it is organized in accordance
with law (Sec. 12 (c)). Where the date of the check and the amount thereof as
stated in the information vary with the exhibits
c. Sec. 9 of Rule110. Cause of the accusation. – The submitted by the prosecution, the inconsistencies
acts or omissions complained of as constituting the violate the constitutional right of the accused to be
offense and the qualifying and aggravating informed. Without sufficient identification of the
circumstances must be stated in ordinary and dishonored check in the information, the conviction of
concise language and not necessarily in the the accused should be set aside.
language used in the statute but in terms sufficient
to enable a person of common understanding to The Rules of Court, in implementing the right,
know what offense is being charged as well as its specifically require that the acts or omissions
qualifying and aggravating circumstance and for the complained of as constituting the offense, including the
court to pronounce judgment. qualifying and aggravating circumstances, must be
stated in ordinary and concise language, not necessarily
Sec. 8. Designation of the offense. – The complaint in the language used in the statute, but in terms
or information shall state the designation of the sufficient to enable a person of common understanding
offense given by the statute, aver the acts or to know what offense is being charged and the
omissions constituting the offense, and specify its attendant qualifying and aggravating circumstances
qualifying and aggravating circumstances. If there is present, so that the accused can properly defend
no designation of the offense, reference shall be himself and the court can pronounce judgment. To
made to the section or subsection of the statute broaden the scope of the right, the Rules authorize the
punishing it. quashal, upon motion of the accused, of an Information
that fails to allege the acts constituting the offense (Go
d. To state also in ordinary and concise language, the v. BSP).
qualifying and aggravating circumstances attending
the acts imputed to the accused; RIGHT TO COUNSEL OF THE ACCUSED AND OF
e. To sufficiently allege that the crime was committed PERSONS ARRESTED
or its essential ingredients occurred at some place
within the jurisdiction of the court; Section 1. Rights of accused at trial. – In all criminal
f. To allege the date of the commission of the acts or prosecutions, the accused shall be entitled to the
omissions constituting the offense, which date may following rights:
be one as near as possible to the actual date of the
commission of the offense, except when the precise
date is material ingredient of the offense; xxx
g. In offenses against property, if the name of the (c) To be present and defend in person and by counsel
offended party is unknown, the property must be at every stage of the proceedings, from arraignment to
described with such particularity to properly promulgation of the judgment. The accused may,
identify the offense charged. however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is
Q: May the accused convicted of violation of BP. 22 if specifically ordered by the court for purposes of
the check described in the information is not the check identification. The absence of the accused without
allegedly issued and admitted in evidence? justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present
A: The variance in the identity of the check nullifies thereat. When an accused under custody escapes, he
petitioner’s conviction. The identity of the check enters shall be deemed to have waived his right to be present
into the first element of the offense under Section 1 of on all subsequent trial dates until custody over him is
B.P. Blg. 22 – that a person draws or issues a check on regained. Upon motion, the accused may be allowed to
account or for value. There being a discrepancy in the defend himself in person when it sufficiently appears to
identity of the checks described in the information and the court that he can properly protect his rights without
that presented in court, petitioner’s constitutional right the assistance of counsel.
Xxx the assisting counsel in the language or dialect
known to such arrested or detained person. This is
In criminal cases, the right of an accused person to be done before the report is signed. If the procedure is
assisted by a member of the bar is immutable. not done, the investigation report shall be null and
Otherwise, there would be a grave denial of due void and of no effect whatsoever.
process. Thus, even if the judgment had become final
and executor, it may still be recalled, and the accused Q: Explain the importance or the vital role of the
afforded the opportunity to be heard by himself and lawyer during custodial investigation?
counsel.
A: In the absence of any lawyer, no custodial
Yet, one need not be an accused to avail of the right to investigation shall be conducted and the suspected
counsel and the right to counsel does not commence person can only be detained by the investigating officer
only during the trial. Every person under custody of the in accordance with the provisions of Article 125 of the
law enjoys the right. Revised Penal Code.
Custodial Investigation Also, the law mandates that a counsel “shall at all times
be allowed to confer privately with the person arrested,
Q: What is custodial investigation? detained, or under custodial investigation xxx.”
A: Custodial investigation is the stage “where the police Q: What is the purpose of the rule?
investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular A: It is to curb the uncivilized practice of extracting a
suspect taken into custody by the police who carry out confession.
a process of interrogation that lends itself to elicit
incriminating statements (People v. Sunga). Even a person under investigation for an offense shall
have the right to have a “competent and independent
Custodial investigation involves any questioning counsel preferably of his own choice.”
initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his The purpose of providing counsel to a person under
freedom of action in any significant way. It is only after custodial investigation is to curb the police-state
the investigation ceases to be a general inquiry into an practice of extracting a confession that leads appellant
unsolved crime and begins to focus on a particular to make self-incriminating statements. In order to
suspect, the suspect is taken into custody, and the comply with the constitutional mandates, there should
police carries out a process of interrogations that lend likewise be meaningful communication to and
itself to eliciting incriminating statements, that the rule understanding of his rights by the appellant, as opposed
begins to operate (Aquino v. Paiste). to a routine, peremptory and meaningless recital
thereof. (People v. Rapeza)
R.A. 7438 has redefined this concept to include the
practice of issuing an invitation to a person who is The right of a person under interrogation “to be
investigated in connection with an offense he is informed” implies a correlative obligation on the part of
suspected to have committed. the police investigator to explain and contemplates an
effective communication that results in an
Rights of persons under custodial investigation understanding of what is conveyed. (People v.
Guillermo)
RA. 7438 provides for the following requisites for a valid
custodial investigation report: The assisting counsel provided by the investigating
officer is any lawyer, except those directly affected by
1. The report shall be reduced to writing by the the case, those charged with conducting preliminary
investigating officer; investigation or those charged with the prosecution of
2. If the person arrested or detained does not know crimes (Sec. 3 of RA. 7438).
how to read and write, it shall be read and
adequately explained to him by his counsel or by
Custodial investigation involves any questioning Q: What do you mean by competent counsel?
initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his A: In the case of People v. Deniega, the court explained:
freedom of action in any significant way. It is only after
the investigation ceases to be a general inquiry into an “The lawyer called to be present during such
unsolved crime and begins to focus on a particular investigations should be as far as reasonably possible,
suspect, the suspect is taken into custody, and the the choice of the individual undergoing questioning. If
police carries out a process of interrogations that lend the lawyer were one furnished in the accused's behalf,
itself to eliciting incriminating statements, that the rule it is important that he should be competent and
begins to operate. Republic Act No. (RA) 7438 has independent, i.e., that he is willing to fully safeguard
extended this constitutional guarantee to situations in the constitutional rights of the accused, as
which an individual has not been formally arrested but distinguished from one who would merely be giving a
has merely been "invited" for questioning (Aquino v. routine, peremptory and meaningless recital of the
Paiste). individual's constitutional rights. In People vs. Basay,
this Court stressed that an accused's right to be
It has also been held that a barangay chairman is not informed of the right to remain silent and to counsel
deemed a law enforcement officer for purposes of "contemplates the transmission of meaningful
applying Sec 12(1) and (3) of the Constitution. Thus, a information rather than just the ceremonial and
suspect’s uncounselled statamenet before the barangay perfunctory recitation of an abstract constitutional
chairman is admissible. principle."
The right to counsel applies in certain pretrial Ideally therefore, a lawyer engaged for an individual
proceedings that can be deemed “critical stages” in the facing custodial investigation (if the latter could not
criminal process. The preliminary investigation can be afford one) "should be engaged by the accused
no different from the in-custody interrogations by the (himself), or by the latter's relative or person authorized
police, for a suspect who takes part in a preliminary by him to engage an attorney or by the court, upon
investigation will be subjected to no less than the proper petition of the accused or person authorized by
State’s processes, oftentimes intimidating and the accused to file such petition." xxx
relentless, of pursuing those who might be liable for
criminal prosecution. (People v. Sunga) The competent or independent lawyer so engaged
should be present from the beginning to end, i.e., at all
Right to choose a counsel is not plenary; right may be stages of the interview, counseling or advising caution
waived reasonably at every turn of the investigation, and
stopping the interrogation once in a while either to give
There is no denial of the right to counsel where a advice to the accused that he may either continue,
counsel de oficio is appointed during the absence of the choose to remain silent or terminate the interview.
accused's counsel de parte, or in this case the regular
counsel de oficio, pursuant to the court's desire to finish An effective and vigilant counsel necessarily and
the case as early as practicable under the continuous logically requires that the lawyer be present and able
trial system. The choice of counsel by the accused in a to advise and assist his client from the time the
criminal prosecution is not a plenary one. If the chosen confessant answers the first question asked by the
counsel deliberately makes himself scarce, the court is investigating officer until the signing of the
not precluded from appointing a de oficiocounsel, extrajudicial confession. Moreover, the lawyer should
which it considers competent and independent, to ascertain that the confession is made voluntarily and
enable the trial to proceed until the counsel of choice that the person under investigation fully understands
enters his appearance. Otherwise, the pace of a the nature and the consequence of his extrajudicial
criminal prosecution will be entirely dictated by the confession in relation to his constitutional rights. A
accused, to the detriment of the eventual resolution of contrary rule would undoubtedly be antagonistic to the
the case. constitutional rights to remain silent, to counsel and to
be presumed innocent (People v. Labatan).
Competent and independent counsel

The right to counsel must be more than just the competent and independent counsel preferably of his
presence of a lawyer in the courtroom or the mere own choice. If the person cannot afford the services of
propounding of standard questions and objections. The counsel, he must be provided with one. These rights
right to counsel means that the accused is amply cannot be waived except in writing and in the presence
accorded legal assistance extended by a counsel who of counsel.
commits himself to the cause for the defense and acts
accordingly. The right assumes an active involvement by (2) No torture, force, violence, threat, intimidation, or
the lawyer in the proceedings, particularly at the trial of any other means which vitiate the free will shall be used
the case, his bearing constantly in mind of the basic against him. Secret detention places, solitary,
rights of the accused, his being well-versed on the case incommunicado, or other similar forms of detention are
and his knowing the fundamental procedures, essential prohibited.
laws and existing jurisprudence. The right of an accused
to counsel finds substance in the performance by the (3) Any confession or admission obtained in violation of
lawyer of his sworn duty of fidelity to his client. Tersely this or Section 17 hereof shall be inadmissible in
put, it means an efficient and truly decisive legal evidence against him.
assistance and not a simple perfunctory representation.
(People v. Nadera) (4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to the
Right to counsel in administrative cases rehabilitation of victims of torture or similar practices,
and their families.
There is no law, jurisprudence or rule which mandates
that an employee should be assisted by counsel in an Also, the extrajudicial confession must also be tested
administrative case. On the contrary, jurisprudence is in for voluntariness—if it was given freely by the
unison in saying that assistance of counsel is not confessant without any form of coercion or
indispensable in administrative proceedings. (Perez v. inducement.
People)
Sec. 2 (d) of R.A. No. 7438 provides for the requisites for
While investigations conducted by an administrative the validity of an extrajudicial confession made by a
body may at times be akin to a criminal proceeding, the person arrested, detained or under custodial
fact remains that under existing laws, a party in an investigation:
administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of 1. Any extrajudicial confession made by a person
respondent’s capacity to represent himself, and no duty arrested, detained or under custodial
rests on such body to furnish the person being investigation shall be in writing and signed by
investigated with counsel.
such person;
Thus, the right to counsel is not imperative in
administrative investigations because such inquiries are 2. It must be signed in the presence of his counsel
conducted merely to determine whether there are facts
or in the latter's absence, upon a valid waiver;
that merit disciplinary measures against erring public
officers and employees, with the purpose of 3. In the event of a valid waiver, it must be signed
maintaining the dignity of government service.
in the presence of any of the parents, elder
Extrajudicial Confessions brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school
A confession is admissible in evidence when it is clearly supervisor, or priest or minister of the gospel as
shown to have been obtained in accordance with the chosen by him; otherwise, such extrajudicial
requisites mandated by the Constitution. Sec. 12 of Art. confession shall be inadmissible as evidence in
3 states:
any proceeding.
Section 12. (1) Any person under investigation for the According to Art. 125 of the RPC, the waiver must:
commission of an offense shall have the right to be
informed of his right to remain silent and to have
a. Be in writing; and Section 16. All persons shall have the right to a speedy
b. Such by the person arrested, detained or under disposition of their cases before all judicial, quasi-
custodial investigation; and judicial, or administrative bodies.
c. Such person must sign the waiver in the
presence of his counsel. Q: What do you mean by a speedy trial?
Admissions under custodial investigation made without A: This right to a speedy trial may be defined as one
the assistance of counsel are barred as evidence. The free from vexatious, capricious and oppressive delays,
records are bare of any indication that the accused have its "salutary objective" being to assure that an innocent
waived their right to counsel, hence, any of their person may be free from the anxiety and expense of a
admissions are inadmissible in evidence against court litigation or, if otherwise, of having his guilt
them. As we have held, a suspect’s confession, whether determined within the shortest possible time
verbal or non-verbal, when taken without the assistance compatible with the presentation and consideration of
of counsel without a valid waiver of such assistance whatsoever legitimate defense he may interpose. (Mari
regardless of the absence of such coercion, or the fact v. Hon. Gonzales)
that it had been voluntarily given, is inadmissible in
evidence, even if such confession were gospel truth The right does not preclude justifiable postponements
(People v. Ador). and delay when warranted by the situation. In the
application of the right, particular regard must also be
While the Court has consistently stricken out the taken of the facts and circumstances peculiar to each
extrajudicial confession extracted in violation of case. (Domondon v. Sandiganbayan)
constitutionally enshrined rights and declared it
inadmissible in evidence, the accused will not be Article III, Section 16 of the Constitution provides
entitled to an acquittal if his conviction was not based that, all persons shall have the right to a speedy
on the evidence obtained during such custodial disposition of their cases before all judicial, quasi-
investigation and if even without the extrajudicial judicial, or administrative bodies. The constitutional
confession of the accused the testimonial and right to a "speedy disposition of cases" is not limited to
documentary evidence on record could establish his the accused in criminal proceedings but extends to all
guilt beyond reasonable doubt (People v. Lumanog). parties in all cases, including civil and administrative
cases, and in all proceedings, including judicial and
RIGHT TO SPEEDY TRIAL quasi-judicial hearings. Hence, under the Constitution,
any party to a case may demand expeditious action
from all officials who are tasked with the administration
Sec. 14(2) of the 1987 Constitution provides: of justice. (Ombudsman v. Jurado)
(2) In all criminal prosecutions, the accused shall be Q: When is the right to speedy disposition of cases
presumed innocent until the contrary is proved, and violated?
shall enjoy the right to be heard by himself and counsel,
to be informed of the nature and cause of the A: It is violated only when the proceedings are attended
accusation against him, to have a speedy, impartial, by vexatious, capricious, and oppressive delays.
and public trial, to meet the witnesses face to face, and
A judge’s illness should not be an excuse for his failure
to have compulsory process to secure the attendance of to render the corresponding decision or resolution
witnesses and the production of evidence in his behalf. within the prescribed period. In case of poor health, the
However, after arraignment, trial may proceed Judge concerned needs only to ask this Court for an
notwithstanding the absence of the accused: Provided, extension of time to decide cases, as soon as it becomes
that he has been duly notified and his failure to appear clear to him that there would be delay in his disposition
of his cases (Balajedeong v. Del Rosario).
is unjustifiable.
The absence of a branch clerk should not affect the
prompt disposition of cases. It is the duty of the judge
to recommend to the SC the immediate appointment of
a branch clerk. The incompleteness of the transcript of prosecute crimes and rid society of criminals on the
stenographic notes is not a ground for delay. other.
Q: What is the purpose of time limits set by law or SPEEDY TRIAL ACT
rules?
SECTION 10. Exclusions. — The following periods of
A: As a general principle, rules prescribing the time delay shall be excluded in computing the time within
within which certain acts must be done, or certain which trial must commence:
proceedings taken, are considered absolutely
indispensable to the prevention of needless delays and (a) Any period of delay resulting from other proceedings
the orderly and speedy discharge of judicial business. concerning the accused, including but not limited to the
following:
Failure to resolve cases with a period fixed by law
constitutes a serious violation of the Constitution. It is (1) delay resulting from an examination of the accused,
not excusable and constitutes gross inefficiency that and hearing on his/her mental competency, or physical
warrants the imposition of administrative sanctions. incapacity;
(2) delay resulting from trials with respect to charges

The principle of “speedy trial” is a relative term and against the accused;
must necessarily be a flexible concept and that while
justice is administered with dispatch, the essential (3) delay resulting from interlocutory appeals;
ingredient is orderly, expeditious and not mere speed.
It cannot be definitely said how long is too long in a (4) delay resulting from hearings on pre-trial motions:
system where justice is supposed to be swift, but Provided, That the delay does not exceed thirty (30)
deliberate. It is consistent with delays and depends days;
upon circumstances. It secures rights to the accused,
but it does not preclude the rights of public justice. (5) delay resulting from orders of inhibition, or
Also, it must be borne in mind that the rights given to proceedings relating to change of venue of cases or
the accused by the Constitution and the Rules of Court transfer from other courts;
are shields, not weapons; hence, courts are to give
meaning to that intent. A balancing test of applying (6) delay resulting from a finding of the existence of a
societal interests and the rights of the accused valid prejudicial question; and
necessarily compels the court to approach speedy trial
cases on an ad hoc basis. (7) delay reasonably attributable to any period, not to
exceed thirty (30) days, during which any proceeding
Remedy for violation of the right to speedy trial or concerning the accused is actually under advisement.
disposition of cases
(b) Any period of delay resulting from the absence or
The trial court may dismiss a criminal case on a motion unavailability of the accused or an essential witness.
nolle prosequi if the accused is not brought to trial
within the prescribed time and is deprived of his right to For purposes of this subparagraph, an accused or an
a speedy trial or disposition of the case on account of essential witness shall be considered absent when
unreasonable or capricious delay caused by the his/her whereabouts are unknown and, in addition,
prosecution. he/she is attempting to avoid apprehension or
prosecution or his/her whereabouts cannot be
Speedy Trial Act determined by due diligence. An accused or an essential
witness shall be considered unavailable whenever
"Speedy trial" is a relative and flexible term, and the his/her whereabouts are known but his/her presence
courts are to maintain a delicate balance between the for trial cannot be obtained by due diligence or he/she
demands of due process and the strictures of speedy resists appearing at or being returned for trial.
trial on the one hand, and the right of the State to
(c) Any period of delay resulting from the fact that the
accused is mentally incompetent or physically unable to preparation or failure to obtain available witnesses
stand trial. on the part of the public prosecutor.
(d) If the information is dismissed upon motion of the Guidelines to determine violation of the right to
prosecution and thereafter a charge is filed against the speedy disposition of cases
accused for the same offense, or any offense required
to be joined with that offense, any period of delay from 1. The length of the delay;
the date the charge was dismissed to the date the time 2. The reasons for such delay;
limitation would commence to run as to the subsequent 3. The assertion or failure to assert such right by
charge had there been no previous charge. the accused; and
4. The prejudice caused by the delay
(e) A reasonable period of delay when the accused is
joined for trial with a co-accused over whom the court Q: What are the 2-rigid approaches on speedy trial—
has not acquired jurisdiction, or as to whom the time ways of eliminating some of the uncertainty which
for trial has not run and no motion for severance has courts experience protecting the right?
been granted.
A:
(f) Any period of delay resulting from a continuance
granted by any justice or judge motu propio or on The first approach is the “fixed-time period” which
motion of the accused or his/her counsel or at the holds the view that “the Constitution requires a criminal
request of the public prosecutor, if the justice or judge defendant to be offered a trial within a specified time
granted such continuance on the basis of his/her period.”
findings that the ends of justice served by taking such
action outweigh the best interest of the public and the The second approach is the “demand-waiver rule”
defendant in a speedy trial. No such period of delay which provides that “a defendant waives any
resulting from a continuance granted by the court in consideration of his right to speedy trial for any period
accordance with this subparagraph shall be excludable prior to which he has not demanded trial. Under this
under this section unless the court sets forth, in the rigid approach, a prior demand is a necessary condition
record of the case, either orally or in writing, its reasons to the consideration of the speedy trial right.”
for finding that the ends of justice served by the
granting of such continuance outweigh the best The fixed-time period was rejected because there is “no
interests of the public and the accused in a speedy trial. constitutional basis for holding that the speedy trial can
be quantified into a specific number of days or months.”
Q: What are the factors for granting continuance? The demand-waiver rule was likewise rejected because
aside from the fact that it is “inconsistent with this
A: Court’s pronouncements on waiver of constitutional
rights,” “it is insensitive to a right which we have
(a) Whether the failure to grant such a continuance deemed fundamental.”
in the proceeding would be likely to make a
continuation of such proceeding impossible, or The Court went on to adopt a middle ground: the
result in a miscarriage of justice. “balancing test,” in which “the conduct of both the
(b) Whether the case taken as a whole is so novel, prosecution and defendant are weighed.”
so unusual and so complex, due to the number
of accused or the nature of the prosecution or Q: Explain the balancing test rule.
otherwise, that it is unreasonable to expect
adequate preparation within the periods of A: A balancing test necessarily compels courts to
time established by this Act. approach speedy trial cases on an ad hoc basis. We can
do little more than identify some of the factors which
No continuance under subparagraph (f) of Section courts should assess in determining whether a
10 shall be granted because of general congestion particular defendant has been deprived of his
of the court's calendar, or lack of diligent right. Though some might express them in different
ways, we identify four such factors: Length of delay,
the reason for the delay, the defendant’s assertion of the last, because the inability of a defendant adequately
his right, and prejudice to the defendant. to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the
The length of the delay is to some extent a triggering prejudice is obvious. There is also prejudice if defense
mechanism. Until there is some delay which is witnesses are unable to recall accurately events of the
presumptively prejudicial, there is no necessity for distant past. Loss of memory, however, is not always
inquiry into the other factors that go into the balance. reflected in the record because what has been
Nevertheless, because of the imprecision of the right forgotten can rarely be shown.
to speedy trial, the length of delay that will provoke
such an inquiry is necessarily dependent upon the THE PRIVILEGE AGAINST SELF-INCRIMINATION
peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary Q: What are the pertinent constitutional and statutory
street crime is considerably less than for a serious, provisions enunciating the privilege against self-
complex conspiracy charge. incrimination?
Closely related to length of delay is the reason the A:

government assigns to justify the delay. Here, too, 1. “No person shall be compelled to be a witness
different weights should be assigned to different against himself” (Sec, 17, Art. III, Philippine
reasons. A deliberate attempt to delay the trial in order Constitution)
to hamper the defense should be weighted heavily 2. “In all criminal prosecutions, the accused shall
against the government. A more neutral reason such as be entitled to the following rights xxx (e) To be
negligence or overcrowded courts should be weighted exempt from being compelled to be a witness
less heavily but nevertheless should be considered since against himself.” (Sec. 1 (e), Rule 15, Rules of
the ultimate responsibility for such circumstances must Court).
rest with the government rather than with the
defendant. Finally, a valid reason, such as a missing The privilege is intended to prevent the State, with all
witness, should serve to justify appropriate delay. We its coercive powers, from extracting from the suspect
have already discussed the third factor, the testimony that may convict him and to avoid a person
defendant’s responsibility to assert his right. Whether subject to such compulsion to perjure himself for his
and how a defendant asserts his right is closely related own protection.
to the other factors we have mentioned. The strength
of his efforts will be affected by the length of the The privilege rests upon the principle that “forcing a
delay, to some extent by the reason for the delay, and man to be a witness against himself is at war with the
most particularly by the personal prejudice, which is “fundamentals of a republican government; that it may
not always readily identifiable, that he suit the purposes of despotic power but it can not abide
experiences. The more serious the deprivation, the the pure atmosphere of political liberty and personal
more likely a defendant is to complain. The defendant’s freedom.
assertion of his speedy trial right, then, is entitled to
strong evidentiary weight in determining whether the Q: What is the consequence of this constitutional
defendant is being deprived of the right. We emphasize right?
that failure to assert the right will make it difficult for
a defendant to prove that he was denied a speedy A: The court may not extract from a defendant’s own
trial. lips and against his will an admission of his guilt. Nor
may a court resort to compulsory disclosure, directly or
A fourth factor is prejudice to the defendant. indirectly, of facts usable against him as a confession of
Prejudice, of course, should be assessed in the light of the crime or the tendency of which is to prove the
the interests of defendants which the speedy trial right commission of a crime.
was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial Q: Is this right self-executing?
incarceration; (ii) to minimize anxiety and concern of
the accused; and (iii) to limit the possibility that the A: No, it is not self-executing or automatically
defense will be impaired. Of these, the most serious is operational. It must be claimed. If not claimed by or in
behalf of the witness, the protection does not come
into play. In Wilson v. U.S., the court held that a subpoena duces
tecum which is suitably specific and properly limited in
Q: May it be waived? its scope does not violate the unreasonable search and
seizure provisions of the constitution. The privilege
A: Yes, expressly or impliedly, as by a failure to claim it against self-incrimination cannot be raised by a
at the appropriate time. corporate officer having possession of corporate
documents for his personal benefit
Q: Can there be blanket assertions of this privilege?
Rogers v. U.S., clarified that since the privilege is solely
A: No. The assertion of the privilege must be raised in for the benefit of the witness, petitioner’s original
response to each specific inquiry or it is waived. Each refusal to answer could not be justified by a desire to
assertion of the privilege rests on its own protect another from punishment, much less to protect
circumstances. another from interrogation by a grand jury.
NOTE: It prescribes an "option of refusal to answer Q: Can books and records kept in representative
incriminating questions and not a prohibition of capacity be the subject of the privilege?
inquiry." It simply secures to a witness, whether he be
a party or not, the right to refue to answer any A: No, even though production of them might tend to
particular incriminatory question, i.e., one the answer incriminate their keeper personally since the books
to which has a tendency to incriminate him for some were not held in personal capacity.
crime.
The privilege protects a person from testimonial
However, the right can be claimed only when the compulsion or evidence of a communicative nature
specific question, incriminatory in character, is actually
put to the witness. It cannot be claimed at any other In the case Schmerber v. California, the Court held that
time. It does not give a witness the right to disregard a the privilege protects only a person from testimonial
subpoena, to decline to appear before the court at the compulsion or a compelled testimony communicative in
time appointed, or to refuse to testify altogether. The nature without, however, declaring that the privilege
witness receiving a subpoena must obey it, appear as applies only to cases where a testimonial evidence is
required, take the stand, be sworn and answer extracted from the lips of the witness or from a strictly
questions. oral testimony.
It is only when a particular question is addressed to him, Q: Is withdrawal of blood sample and admission in
the answer to which may incriminate him for some evidence of analysis violative of the right?
offense, that he may refuse to answer on the strength
of the constitutional guaranty. A: The privilege protects an accused only from being
compelled to testify against himself, or otherwise,
NOT APPLICABLE TO JURIDICAL PERSONS provide the State with evidence of a testimonial of a
communicative nature. The withdrawal of blood and
Q: Is the privilege applicable to juridical persons? use of analysis in question in this case did not involve
compulsion to these ends.
A: No. According to U.S. v. White¸ the constitutional
right is essentially a personal one, applying only to Q: Can the accused prior to trial be required to wear a
natural individuals. particular clothing to facilitate the identification by
witness?
A labor union cannot refuse to produce books and
records of the union in his custody and required by the A: The prohibition of compelling a man in criminal court
court to be produced. He cannot invoke the privilege by to be witness against himself is a prohibition of the use
contending that the production of the books and of physical or moral compulsion to extort
records would tend to incriminate himself and the communications from him, not an exclusion of his body
organization. as evidence when it may be material.
Also, mere exhibiting of the accused of his person for People v. Olvis
observation by witnesses and using his voice as an
identifying physical characteristic involved no A forced re-enactment is different. This is similar to a
compulsion of the accused to give evidence of a police procedure just as condemnable as an
testimonial nature against himself. uncounselled confession.
The court also held that the right offers no protection Q: In order to fall under compulsion, should there be
against compulsion: use of violence?
a. to submit to fingerprinting,
b. photography, or A: Compulsion does not necessarily connote the use of
c. measurements, violence. It may be a product of unintentional
d. to write or speak for identification, statements. Pressure which operates to overbear his
e. to appear in court will, disable him from making a free and rational choice,
f. stand or to assume a stance or impair his capacity for rational judgment would be
g. to walk sufficient. Moral coercion is included.
h. to make a particular gesture
Writing exemplars or samples
Villaflor v. Summers
NOTE: Not every act of affixing one’s signature is within
The kernel of the privilege as disclosed by the the protection of the privilege against self-
textwriters was testimonial compulsion. Forcing a man incrimination.
to be a witness against himself was deemed contrary to
the fundamentals of republican government. The court The taking of handwriting exemplars did not violate the
rejected the arguments of a woman accused of adultery right of the accused (Gilbert v. California).
that to compel her to submit to a physical examination
to determine her pregnancy was a violation of her right But in Beltran v. Samson, the court said that writing is
against self-incrimination. something more than moving the body, or the hands, or
the fingers; writing is not a purely mechanical act,
U.S. v. Tan Teng because it requires the application of intelligence and
attention; and in the case at bar writing means that the
The court rejected the claim when the accused for acts petitioner herein is to furnish a means to determine
of lasciviousness was stripped of his clothing after his whether or not he is the falsifier, as the petition of the
arrest and his body was found a substance consistent respondent fiscal clearly states. Except that it is more
with gonorrhea, a disease from which his victim was serious, we believe the present case is similar to that of
suffering from producing documents or chattels in one's possession.
People v. Otadora The present case is more serious than that of

compelling the production of documents or chattels,
It is not violative that a person is required to put on because here the witness is compelled to write and
clothings or shoes for size or for measuring or create, by means of the act of writing, evidence which
photographing does not exist, and which may identify him as the
falsifier.
Herrera v. Alba
Questions which the witness may refuse to answer
Obtaining a DNA sample from the accused in a paternity
case will not violate the right The privilege extends not only to answers that would in
themselves support a conviction but also to those which
would furnish a link in the chain of evidence needed to
prosecute the claimant of the privilege.

Q: Is there a need for the witness to explain how his criminal proceedings, wherever the answer might tend
answer will tend to incriminate him? to subject to criminal responsibility the person who
gives it.
A: No, since this would compel him to surrender the
protection to which the privilege is designed to Distinctions between the claim of the privilege by an
guarantee. accused and by a mere witness as enunciated in
Chavez v. C.A.
Q: What is the test to determine if the privilege is
validly asserted? An ordinary witness may be compelled to take the
witness stand and claim the privilege as each question
A: The decisive case is Malloy v. Hogan. The court held requiring an incriminating question is shot at him. On
that to sustain the privilege, it need only be evidenced the other hand, the accused may altogether refuse to
from the implication of the question, in the setting in take the witness stand and refuse to answer any and all
which it is asked, that a responsive answer to the questions. He cannot be compelled to do so even by a
question or an explanation of why it cannot be subpoena. His neglect or refusal to be a witness shall
answered might be dangerous because injurious not in any manner prejudice or be used against him.
disclosures would result. Thus, the judge must be
perfectly clear from a careful consideration of all Q: What if the defendant in a criminal action be asked
circumstances in the case that the witness is mistaken a question which might incriminate him, not for the
and that the answers cannot possibly have such crime with which he is charged, but for some other
tendency to incriminate. crime, distinct from that of which he is accused, may
he decline to answer that particular question?
Privilege extends to lawyers advising a witness to
invoke the privilege A: Assuming that in a prosecution for murder, the
accused should testify in his behalf, he may not on
Q: May a lawyer be held in contempt for counseling a cross-examination refuse to answer any question on the
witness in good faith to refuse to produce court- ground that he might be implicated in that crime of
ordered materials on the ground that they may tend to murder, but he may decline to answer any particular
incriminate the witness in another proceeding? question which might implicate him for a different and
distinct offense like estafa.
A: A lawyer may not be penalized even though his
advice caused the witness to disobey the court’s order. Waiver of the privilege
When a witness is so advised, the advice becomes an
integral part of the protection accorded the witness. Q: What is a waiver?
Proceedings in which the privilege may be asserted A: It is the intentional relinquishment or abandonment
of a known right.
Q: To what proceedings the privilege applies?
Q: How is this privilege deemed waived?
A: It may be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or A: By failure to timely assert the right, that is, by
adjudicatory. answering an incriminating question.
Q: What is the reason for this? Q: To be effective, what are the requisites of a valid
waiver?
A: The privilege is a personal privilege: it adheres
basically to the person, not to information that may A:
incriminate him. 1. Waiver must be certain and unequivocal
2. It must be intelligently, understandably, and
The privilege is not ordinarily dependent upon the willingly made
nature of the proceeding in which the testimony is
sought or is to be used. It applies alike to civil and
The privilege will not apply when witness is given Statutory provisions
immunity from prosecution
The Ombudsman Act of 1989 (R.A. 6770)
Q: How may the government grant immunity?
Section 17. Immunities. — In all hearings, inquiries, and proceedings
A: of the Ombudsman, including preliminary investigations of offenses,
nor person subpoenaed to testify as a witness shall be excused from
1. Transactional immunity also known as blanket or attending and testifying or from producing books, papers,
total immunity which completely protects the correspondence, memoranda and/or other records on the ground
witness from future prosecution of crimes related that the testimony or evidence, documentary or otherwise, required
to his or her testimony of him, may tend to incriminate him or subject him to prosecution:
provided, that no person shall be prosecuted criminally for or on
2. Use and derivative use immunity which prevents
account of any matter concerning which he is compelled, after
the prosecution only from using the witness’s own having claimed the privilege against self-incrimination, to testify and
testimony or any evidence derived from his produce evidence, documentary or otherwise.
testimony against the witnesses.
Under such terms and conditions as it may determine, taking into
account the pertinent provisions of the Rules of Court, the
IMMUNITY STATUTES Ombudsman may grant immunity from criminal prosecution to any
person whose testimony or whose possession and production of
Q: What are immunity statutes? documents or other evidence may be necessary to determine the
truth in any hearing, inquiry or proceeding being conducted by the
Ombudsman or under its authority, in the performance or in the
A: They seek a rational accommodation between
furtherance of its constitutional functions and statutory objectives.
imperatives of the privilege and the legitimate demands The immunity granted under this and the immediately preceding
of government to compel citizens to testify. The paragraph shall not exempt the witness from criminal prosecution
existence of these statutes reflects the importance of for perjury or false testimony nor shall he be exempt from demotion
testimony, and the fact that many offenses are of such or removal from office.
character that the only persons capable of giving useful Any refusal to appear or testify pursuant to the foregoing provisions
testimony are those implicated in the crime. shall be subject to punishment for contempt and removal of the
immunity from criminal prosecution.
Q: What are the examples of immunity statutes?
EXECUTIVE ORDER NO. 14
A:
Sec. 5. The Presidential Commission on Good Government is
authorized to grant immunity from criminal prosecution to any
Constitutional provisions person who provides information or testifies in any investigation
conducted by such Commission to establish the unlawful manner in
ARTICLE XVI- Section 3. The State may not be sued which any respondent, defendant or accused has acquired or
without its consent. accumulated the property or properties in question in any case
where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby
ARTICLE VI- Section 11. A Senator or Member of the granted shall be continued to protect the witness who repeats such
House of Representatives shall, in all offenses testimony before the Sandiganbayan when required to do so by the
punishable by not more than six years imprisonment, be latter or by the Commission
privileged from arrest while the Congress is in session.
No Member shall be questioned nor be held liable in PRESIDENTIAL DECREE No. 749
any other place for any speech or debate in the
Congress or in any committee thereof. Section 1. Any person who voluntarily gives information about any
violation of Articles 210, 211, and 212 of the Revised Penal Code;
Republic Act Numbered Three Thousand Nineteen, as amended;
ARTICLE XIII- Section 18. The Commission on Human Section 345 of the Internal Revenue Code and Section 3604 of the
Rights shall have the following powers and functions: Tariff and Customs Code and other provisions of the said Codes
(8) Grant immunity from prosecution to any person penalizing abuse or dishonesty on the part of the public officials
whose testimony or whose possession of documents or concerned; and other laws, rules and regulations punishing acts of
graft, corruption and other forms of official abuse; and who willingly
other evidence is necessary or convenient to determine testifies against any public official or employee for such violation
the truth in any investigation conducted by it or under shall be exempt from prosecution or punishment for the offense
its authority; with reference to which his information and testimony were given,

and may plead or prove the giving of such information and Pursuant to the stipulations set forth in his bail, the
testimony in bar of such prosecution: Provided; that this immunity accused has the right to waive his presence at the trial
may be enjoyed even in cases where the information and testimony
are given against a person who is not a public official but who is a but he shall be required to be at the trial, if his presence
principal, or accomplice, or accessory in the commission of any of is specifically ordered by the court for purposes of
the above-mentioned violations: Provided, further, that this identification.
immunity may be enjoyed by such informant or witness
notwithstanding that he offered or gave the bribe or gift to the
Q: How can this right be waived?
public official or his accomplice for such gift or bribe-giving; and
Provided, finally, that the following conditions concur:
A: It can be inferred from his absence without justifiable
1. The information must refer to consummated violations of any of cause provided he had prior notice of said trial.
the above-mentioned provisions of law, rules and regulations;
2. The information and testimony are necessary for the conviction of Q: What is the consequence when the accused under
the accused public officer; custody escapes?
3. Such information and testimony are not yet in the possession of A: It shall be deemed a waiver to be present on all
the State;
subsequent trial dates until custody over him is
4. Such information and testimony can be corroborated on its regained.
material points; and
THE RIGHT TO TESTIFY AS A WITNESS
5. The informant or witness has not been previously convicted of a
crime involving moral turpitude.
Rule 115
Section 1. Rights of accused at trial. – In all criminal prosecutions,
Republic Act No. 6981 the accused shall be entitled to the following rights:
Witness Protection, Security and Benefit Act
(d) To testify as a witness in his own behalf but subject to cross-
Section 12. Effect of Admission of a State Witness into the Program. examination on matters covered by direct examination. His silence
- The certification of admission into the Program by the Department shall not in any manner prejudice him.
shall be given full faith and credit by the provincial or city prosecutor
who is required not to include the Witness in the criminal complaint Q: What is the scope of questions which can be asked
or information and if included therein, to petition the court for his during cross-examination?
discharge in order that he can utilized as a State Witness. The Court
shall order the discharge and exclusion of the said accused from the
information. A: Limited to those matters covered by the direct
examination.
Admission into the Program shall entitle such State Witness to
immunity from criminal prosecution for the offense or offenses in If the accused does not want to testify in his behalf and
which his testimony will be given or used and all the rights and
benefits provided under Section 8 hereof.
chooses to remain silent, his silence shall not in any
manner prejudice him.
RIGHT TO DEFEND HIMSELF; RIGHT TO BE HEARD
THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE
Q: What is the consequence of this right? WITNESSES AGAINST HIM
A: The accused has the right to be present at the trial at Q: What is the constitutional basis of this right?
every stage of the proceedings from arraignment to the
promulgation of the judgment. A:
ARTICLE III
Q: Can the court allow the accused to defend himself BILL OF RIGHTS
without any counsel?
Section 14. (1) No person shall be held to answer for a
A: Yes, when it sufficiently appears to the court that he criminal offense without due process of law.
can properly protect his rights without the assistance of
counsel. (2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and

counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, THE RIGHT TO USE TESTIMONY OF
and public trial, to meet the witnesses face to face, A DECEASED WITNESS
and to have compulsory process to secure the
attendance of witnesses and the production of RULE 115 - RIGHTS OF ACCUSED
evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the Section 1. Rights of accused at trial. – In all criminal
accused: Provided, that he has been duly notified and prosecutions, the accused shall be entitled to the
his failure to appear is unjustifiable. following rights:
Q: What is the importance of cross-examination? (f) xxx Either party may utilize as part of its evidence
the testimony of a witness who is deceased, out of or
A: It is essential to test his accuracy, expose falsehoods cannot with due diligence be found in the Philippines,
or half-truths, uncover the truth which rehearsed direct unavailable, or otherwise unable to testify, given in
examination testimonies may successfully suppress, and another case or proceeding, judicial or administrative,
demonstrate inconsistencies in substantial matters involving the same parties and subject matter, the
which create reasonable doubt as to the guilt of the adverse party having the opportunity to cross-examine
accused and thus give substance to the constitutional him.
right of the accuses to confront witnesses.
Q: What are the requisites for this right?
Where a party has had the opportunity to cross-
examine a witness but failed to avail himself of it, he A:
necessarily forfeits the right to cross examine and the 1. The witness is dead or unable to testify
testimony given on direct examination of the witness 2. His testimony was given in a former case or
will be received or allowed to remain on record because proceeding, judicial or administrative between the
the right requires not really an actual cross-examination same parties or representing same interests
but merely an opportunity to exercise the right to cross- 3. The former case involved the same subject as that
examine if desired. in the present case, although on different causes of
action
Q: Does this right apply to preliminary investigations? 4. The issue testified to by the witness in the former
trial is the same issue involved in the present case
A: Under the present Rules of Court, no. The 5. The adverse party had an opportunity to cross-
investigating officer during preliminary investigation examine the witness in the former case.
may set a hearing if there are facts and issues to be
clarified from a party or witness. However, while the RIGHT TO COMPULSORY PROCESS
parties may be present at the hearing, they are without
the right to examine or cross-examine. They may This right may be invoked by the accused to secure the
however submit to the investigating officer questions attendance of witness and the production of witnesses
which may be asked to the party or witness thereof. in his behalf.
Q: What is the effect if the adverse party was deprived Q: State the constitutional basis.
of this right?
A:
A: The affidavits of a person who executed the sane are ARTICLE III- BILL OF RIGHTS
generally rejected for being hearsay. In the absence of
cross-examination, the direct examination of the Section 14. 2) In all criminal prosecutions, the accused
witness should be expunged from records. If the shall be presumed innocent until the contrary is
witness is the lone witness, the trial would not have a proved, and shall enjoy the right to be heard by
basis to deny a demurrer to evidence. himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the
attendance of witnesses and the production of NOTE: Without arraignment, the accused cannot invoke
evidence in his behalf. However, after arraignment, double jeopardy. Moreover, he cannot be tried in
trial may proceed notwithstanding the absence of the absentia.
accused: Provided, that he has been duly notified and
his failure to appear is unjustifiable. Duty of the court before arraignment
RIGHT TO APPEAL Q: What are the duties of the court before

arraignment?
In all criminal prosecutions, the accused shall have the
right to appeal in the manner prescribed by law. A:
1. Inform the accused of his right to counsel
An appeal in a criminal case opens the entire case for 2. Ask him if he desires to have one
review and the appellate court may correct even 3. Must assign a counsel de officio to defend him
unassigned errors. This is in contrast to civil case. In a unless the accused
civil case, as a rule, an unsigned error will not be a. Is allowed to defend himself in person
considered by the appellate court unless such error b. Has employed a counsel of his choice.
affects the jurisdiction of the court, affects the validity
of the judgment appealed from, or the error is closely The court shall appoint as counsel de oficio members of
related to or dependent upon the assigned error the bar in good standing who, by reason of their
properly argued in the brief, or when the error is simply experience and ability, can competently defend the
plain or clerical. accused.
Generally, the findings of the trial court relative to the In localities where members of the bar are not
credibility of the victim are normally respected and not available, the court may appoint any person, resident of
disturbed on appeal. the province, and of good refute for probity and ability
to defend the accused.
The fact that the judge who penned the decision was
not the judge who heard the testimonies of the witness Options of the accused before arraignment and plea
is not enough reason to overturn the findings of facts of
the trial court on the credibility of the witnesses. 1. Bill of Particulars
2. Suspension of arraignment in the ff. cases:
Chapter VIII a. The accused appears to be suffering from an
ARRAIGNMENT AND PLEA (Rule 116) unsound mental condition which effectively
renders him unable to fully understand the
ARRAIGNMENT charge against him and to plead intelligently
thereto. The court shall order his mental
Q: What is arraignment? examination and if necessary, his confinement
for such purpose
A: It that stage, where, in the mode and manner b. The trial court is mandated to order the
required by the Rules, an accused, for the first time, is confinement of an accused who is mentally
granted the opportunity to know the precise charge unsound
that confronts him. c. There exists a prejudicial question
d. There is a petition for review of the resolution of
Arraignment is an indispensable requirement of due the prosecutor which is pending at the DOJ or
process. It consists of the judge’s or the clerk of court’s Office of the President. The period of
reading of the criminal complaint or information to the suspension shall not exceed 60 days counted
defendant. At this stage, the accused is granted, for the from the filing of the petition with the
first time, the opportunity to be officially informed of reviewing office.
the nature and the cause of the accusation. Thus, 3. Motion to Quash
arraignment cannot be regarded lightly or brushed 4. Challenge the validity of arrest or legality of the
aside peremptorily. warrant issued or assail the regularity or question
the absence of a preliminary investigation of the
charge. The principle that the accused is precluded court in which the charge is pending, whichever date
from questioning the legality of the arrest after last occurs.
arraignment is true only if he voluntarily enters his
plea and participates during the trial, without Where a plea of not guilty is entered, the accused shall
previously invoking his objections thereto. have at least 15 days to prepare for trial. Trial shall
commence within 30 days from arraignment as fixed by
NOTE: The arraignment of the accused constitutes a the court.
waiver of the right to preliminary investigation or
reinvestigation. If the accused pleads not guilty to the crime charged,
he/she shall state whether he/she interposes a negative
PLEA MADE BEFORE A COURT WITH NO JURISDICTION or affirmative defense. A negative defense shall require
the prosecution to prove the guilt of the accused
A plea made before a court has no jurisdiction over the beyond reasonable doubt, while an affirmative defense
criminal action does not give rise to double jeopardy. may modify the order of the trial and require the
accused to prove such defense by clear and convincing
AMMENDED UNDER AN AMENDED INFORMATION; evidence.
SUBSTITUTED INFORMATION
NOTE: When the accused is under preventive detention,
Where the accused has been already arraigned and the his case shall be raffled and its records transmitted to
information was substantially amended, an arraignment the judge to whom the case was raffled within 3 days
on the amended information is mandatory because the from the filing of the information or complaint. The
accused has the constitutional right to be informed of accused shall be arraigned within 10 days from the date
the accusation against him and more so because the of the raffle and the pre-trial conference shall be held
accused has repeatedly called the attention of the court within 10 days after arraignment.
to the absence of arraignment.
ARRAIGNMENT AFTER SUBMISSION OF
Q: What is the effect if the amendment is only as to THE CASE FOR DECISION
form?
Q: May arraignment be made after the case has been
A: There is no need for preliminary investigation and submitted for decision?
the retaking of the plea of the accused.
A: Yes. Settled is the rule that jurisdiction over the
HOW ARRAIGNMENT AND PLEA IS MADE person of the accused is acquired upon his arrest or
voluntary appearance. His arrest, not arraignment
Q: Where should the arraignment be made? conferred on the trial court jurisdiction over his person.
Appellant’s belated arraignment did not prejudice him.
A: The accused must be arraigned before the court This procedural defect was cured when his counsel
where the complaint or information was filed or participated in the trial without raising any objection
assigned for trial. that his client is yet to be arraigned. His counsel’s active
participation in the hearing is a clear indication that he
Q: How is arraignment made? was fully aware of the charges against him; otherwise,
his counsel would have objected and informed the
A: The arraignment shall be held within 30 days from court of this blunder (People v. Pangilinan).
the date the court acquires jurisdiction over the person
of the accused, unless a shorter period is provided by a Q: What if there was failure to have a record of
special or a Supreme Court Circular. arraignment and plea?
The Speedy Trial Act of 1998 A: The same will not affect the validity of the
proceedings.
The arraignment of an accused shall be held within 30
days from the filing of the information, or from the date Q: Should the accused be personally present at the
the accused has appeared before the justice, judge, or arraignment?
A: The rules provide that the accused must be present Plea of guilty is a juridical confession; effect on
at the arraignment and must personally enter his plea. aggravating circumstances
Q: How about the offended party? Q: What do you mean by the phrase “plea of guilty is a
juridical confession”?
A: The private offended party shall be required to
appear at the arraignment for the ff. purposes: A: It means, an admission of all the material facts
a. Plea bargaining alleged in the information, including the aggravating
b. Determination of civil liability circumstances alleged.
c. Other matters requiring his presence
A judicial confession of guilt embraces all the material
Q: May the court allow the accused to enter the plea facts alleged in the information, including all the
of guilty to a lesser offense in case the offended party aggravating circumstances listed therein.
fails to appear despite due notice?
Conclusions of law are not however, admitted by a plea
A: Yes, provided the lesser offense is necessarily of guilty because conclusions of law are not facts.
included in the offense charged with the conformity of
the trial prosecutor alone. Exception to the admission of aggravating
circumstances
When plea of not guilty shall be entered
1. If such circumstances are disapproved by the
1. If the accused refuses to plead evidence, the aggravating circumstances should be
2. He makes a conditional plea disallowed in the judgment.
3. When he pleads guilty but presents exculpatory 2. A plea of guilty cannot be held to include treachery
evidence in which case the guilty plea shall be and evident premeditation where the evidence
withdrawn and a plea of not guilty shall be entered. adduced does not adequately disclose the existence
4. When he so clearly pleads guilty of these qualifying circumstances.
3. The evidence may disprove the existence of
Q: What is the effect when the accused enters his plea aggravating circumstances despite the plea of guilty
of guilty? because a plea of guilty does not dispense with the
presentation of evidence.
A: He submits himself to the jurisdiction of the trial
court, thereby curing any defect in his arrest. PLEA BARGAINING
Q: What if the accused admits the facts in the Q: What is plea bargaining?
information but alleges that he performed the acts as
charged because he feared for his life? A: It is the process where the accused and the
prosecution work a mutually satisfactory disposition of
A: Then it is proper to enter a plea of not guilty. the case subject to approval by the court. It usually
involves the defendant’s pleading to a lesser offense or
Q: What is the effect of conditional plea? to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for
A: It is equivalent to a plea of not guilty. the graver charge.
Q: What if the accused pleads guilty and bargains for a Q: What are the requisites for a plea of guilty to a
lesser penalty? lesser offense?
A: It is not a plea to a lesser offense. It is a plea that A:

made conditions on the penalty to be imposed. 1. The lesser offense is necessarily included in the
offense charged

2. The plea must be with the consent of both the
offended party and the prosecutor. The consent of When plea of guilty to a lesser offense is not mitigating
the offended party will not be required if said party,
despite due notice, fails to appear during A plea of guilty made after arraignment and after trial
arraignment. had begun does not entitle the accused to have such
plea considered as mitigating.
Q: Is this offer to plead guilty to a lesser offense a
matter of right? An offer to enter plea of guilty to a lesser offense
cannot be considered as an attenuating circumstance
A: No, it is only matter addressed to the sound under the provisions of Art. 13 of the RPC because to be
discretion of the court. voluntary the plea of guilty must be to the offense
charged.
Q: When it may be said that the offense is necessarily
included to the other? Plea of guilty to capital offense
A: If some of the essential elements or ingredients of Q: What if the accused pleads guilty to a capital
the former as alleged in the complaint or information offense?
constitute the latter, and vice-versa, an offense may be
said to be necessarily included in another when the A: It is not proper for the court to immediately render
essential ingredients of the former constitute or form judgment on the basis of the guilty plea. Instead, the
part of those constituting the latter. court is mandated to perform the ff. acts:
a. To conduct a searching inquiry to ascertain:
Plea of guilty to a lesser offense after arraignment 1. The voluntariness of the plea
2. To ascertain whether or not the accused has full
Q: Under what circumstances is plea of guilty to a comprehension of the consequences of his plea
lesser offense be allowed even after arraignment? b. To require the prosecution to prove the ff:
1. The guilt of the accused
A: 2. The precise degree of his culpability
1. The plea of guilty is withdrawn c. To ask the accused if he wishes to present evidence
2. The plea of not guilty and the withdrawal of the and allow the accused to present evidence in his
previous guilty plea shall be made before trial. behalf when he so desires.
3. The lesser offense is necessarily included in the
offense charged. Searching inquiry
4. The plea must have the consent of the prosecutor
and the offended party. Q: What is searching inquiry?
NOTE: Plea-bargaining is one of the purposes of pre- A: There is no definite and concrete rule as to how a
trial conference. It is immaterial that plea bargaining trial judge must conduct a searching inquiry, but
was not made during the pre-trial stage or that it was nevertheless came up with the ff. guidelines:
made only after the prosecution already presented a. Ascertain from the accused himself
several witnesses. 1. How he was brought into the custody of the
law
It is incumbent upon a trial judge to ascertain and be 2. Whether he had the assistance of a
fully convinced that the plea of guilty was voluntarily competent counsel during the custodial and
made and its consequences fully comprehended by the preliminary investigations
accused. 3. Under what conditions he was detained and
interrogated during the investigations
No need for amendment of information or complaint b. Ask the defense counsel a series of questions as
to whether he had conferred with, and
Where there is a plea to a lesser offense and the same completely explained to, the accused the
was allowed by the court, there is no need to amend meaning and consequences of a plea of guilty.
the information or complaint.
c. Elicit information about the personality profile relied on sufficient and credible evidence in finding the
of the accused, such as his age, socio-economic accused guilty, the judgment must be sustained.
status, and educational background, which may
serve as a trust worthy index of his capacity to Convictions based on an improvident plea of guilty are
give a free and informed plea of guilty set aside only if such plea is the sole basis of the
d. Inform the accused of the exact length of judgment.
imprisonment or nature of the penalty under
the law and the certainty that he will serve such Q: How can an improvident plea be withdrawn?
sentence
e. Inquire if the accused knows the crime with A: Improvident plea may be withdrawn even during trial
which he is charged and fully explain to him the or even after judgment provided:
elements of the crime which is the basis of his a. The withdrawal is made prior to the finality of
indictment. Failure of the court to do so would judgment
constitute a violation of his right to be informed b. Withdrawal is permitted by the court.
f. All questions to the accused should be in a
language known and understood by the latter. Production or inspection of material evidence
g. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The Rule 116 allows a mode of discovery aside from those
accused must be required to narrate the allowed in the other parts of the Rules of Court. Sec. 10
tragedy or reenact the crime or furnish its authorizes the court to issue an order to the
missing details. prosecution to produce and permit the inspection and
copying or photographing of any written statement
Plea of guilty to a non-capital offense given by the complainant and other witnesses in any
investigation which contain evidence material to any
Q: What if the accused pleads guilty to a non-ca[ital matter involved in the case and which are in the
offense? possession or under the control of the prosecution,
police, or other law investigating agencies.
A: The court may receive evidence from the parties to
determine the penalty imposed. Additional evidence Q: How is the prosecution or inspection of material
independent of the plea may be considered to convince evidence in possession of the prosecution?
the judge that it was intelligently made.
A: It shall be allowed upon motion of the accused with
NOTE: There is no rule which provides that simply notice to the parties.
because the accused plead guilty to the charge that his
conviction automatically follows. Additional evidence Q: What is the purpose of this rule?
independent of the plea may be considered to convince
the judge that it was intelligently made. A: To prevent surprise, suppression, or alteration of the
evidence.
IMPROVIDENT PLEA OF GUILTY
Where the trial court failed in its duty to conduct the

prescribed “searching inquiry” into voluntariness of the
accused’s plea of guilty and full comprehension thereof,
the plea of guilty is deemed made improvidently and
rendered inefficacious.
Q: What is the effect of an improvident plea of guilty?
A: It does not mean that the case should be remanded

to the trial court. This course of action is appropriate
only when appellant’s guilty of plea was the sole basis
for conviction. On the other hand, if the trial court
The ground may be based Predicated upon matters
CHAPTER IX on the matters found on outside the complaint or
MOTION TO QUASH (RULE 117) the face of the complaint information such as the
or information as when it evidence or lack of it
Time for filing the motion to quash is alleged that the facts
charged do not constitute
Q: When should the motion to quash be filed? an offense or that the
information or complaint
A: The motion to quash may be made at any time does not conform to the
before the accused enters his plea prescribed form
When this motion is The grant on the ground
Q: Is a motion to quash allowed in a summary granted, a dismissal of the of insufficiency of
procedure case? case will not necessarily evidence is deemed an
follow. The court may acquittal and would
A motion to quash is generally not allowed in a even order the filing of a preclude the filing of
summary procedure except on the ground of lack of new complaint or another information or an
jurisdiction over the subject matter or failure to comply information because an appeal by prosecution.
with the barangay conciliation proceedings in Sec. 18 of order sustaining the
the 1991 Rule on Summary Procedure. motion is generally not a
bar to another
Form and contents of the motion to quash prosecution
If the court, in denying the The order denying the
Q: Does the rule allow an oral motion to quash? motion to quash acts motion to leave to file a
without or in excess of demurrer shall not be
A: No. The motion shall be in writing. jurisdiction or with grave reviewable by appeal or by
abuse of discretion, then certiorari before
Q: What are the requisites for a motion to quash? certiorari or prohibition judgment.
lies
A:
1. The motion shall be in writing Court shall consider only those grounds
2. The motion shall be signed by the accused or his stated in the motion
counsel
3. The motion shall distinctly specify the factual and The court shall consider no grounds other than those
legal grounds of the motion stated in the motion. The only ground which the court
may consider even if not stated in the motion to quash
Motion to Quash v. Demurrer to Evidence is lack of jurisdiction over the offense.
MOTION TO QUASH DEMURRER TO EVIDENCE Grounds for motion to quash

Filed before the accused Filed after the prosecution
enters a plea rests its case and hence Q: What are the grounds for a motion to quash?
presupposes that the
accused has already A:
entered his plea and is in 1. That the facts charged do not constitute an offense
fact already going through 2. That the court trying the case has no jurisdiction
trial over the subject matter
Rule 117 does not require Under Rule 119, a 3. That the court trying the case has no jurisdiction
a prior leave of court for demurrer to evidence may over the person of the accused
filing of motion to quash be filed by the accused 4. That the officer who filed the information had no
either with leave or authority to do so
without leave of court 5. That it does not conform substantially to the
Different grounds The ground is prescribed form
“insufficiency of evidence”
6. That more than one offense is charged except when
a single punishment for various offenses is EXPNS:
prescribed by law 1. Double jeopardy
7. That the criminal action or liability has been 2. Extinguishment of criminal liability
extinguished
8. That it contains averments which, if true, would Absence of a preliminary investigation
constitute a legal excuse or justification
9. That the accused has been previously convicted or Q: Is the absence of PI a ground to quash an
acquitted of the offense charged, or the case information?
against him was dismissed or otherwise terminated
without his express consent. A: No. It is not a ground for a motion to quash but a
petition for reinvestigation.
Execution of an affidavit of desistence is not ground
for a motion to quash Neither is the court’s jurisdiction nor validity of an
information adversely affected by deficiencies in the PI.
Q: Is the execution by the offended party of an
affidavit of desistence a ground for a motion to quash? Test in appreciating a motion to quash
A: No. It is not one of those enumerated in the Rules of Q: What are the tests in appreciating a motion to
Court. quash?
In criminal cases, an affidavit of desistance or pardon is A: The determinative test in appreciating a motion to
not a ground for the dismissal of an action, once the quash under Sec. 3(a) of Rule 117 is the sufficiency of
action has been instituted in the court. the averments in the information—whether the facts
alleged, if hypothetically admitted, would establish the
Q: Is the absence of probable cause a ground to quash essential elements of the offense as defined by law
the information? without considering matters aliunde. Thus, the
information must allege clearly and accurately the
A: No, it is not a ground for the quashal of the elements of the crime charged.
information but is a ground for the dismissal of the
case. Sec. 2 of Rule 117 provides:
Q: What do you mean by the phrase “to quash”? SEC. 2. Form and contents. - The motion to quash
shall be in writing signed by the accused or his
A: It means to “annul, vacate or withdraw,” implying counsel. It shall specify distinctly the factual and legal
that the quashing of an information does not grounds therefor and the court shall consider no
necessarily mean its dismissal. grounds other than those stated therein, except lack of
jurisdiction over the offense charged. (3a, 4a, 5a).
Note that when the motion to quash is sustained, the (underscoring supplied for emphasis)
court may in fact order that another complaint or
information be filed under the conditions set forth in It is clear from this Section that a motion to quash may
Secs. 5 and 6 of the Rules of Court. be based on factual and legal grounds, and since
extinction of criminal liability and double jeopardy are
Matters of defense are not grounds for retained as among the grounds for a motion to quash in
a motion to quash Section 3 of the new Rule 117, it necessarily follows that
facts outside the information itself may be introduced
General Rule: Matters of defense are not grounds for to prove such grounds. (Garcia v. Court of Appeals)
motion to quash. Facts that constitute the defense of
the petitioners against the charge under the Q: What is the effect of failure to assert any ground to
information must be proved by them during the trial. a motion to quash?
Such facts and circumstances do not constitute proper
grounds for a motion to quash.
A: The failure to assert any ground of a motion to quash
before a plea to the complaint or information shall be Q: When can the court shall order the amendment of
deemed a waiver of any objections. the information or complaint?
This failure to assert any ground may either be because: A: If the motion to quash is based on the alleged defect
of the complaint or information, and the defect can be
a. The accused did not file a motion to quash; cured, the court shall order that an amendment be
b. He filed but failed o allege the ground in said made.
motion.
Sec. 4 of Rule 117
Q: What are the grounds or objections which are not
deemed waived? If the motion to quash is based on an alleged defect of
the complaint or information which can be cured by
A: amendment, the court shall order that an amendment
be made. (4a)
1. That the facts charged do not constitute an
offense; If it is based on the ground that the facts charged do not
2. That the court trying the case has no constitute an offense, the prosecution shall be given by
jurisdiction over the offense charged; the court an opportunity to correct the defect by
3. That the criminal action or liability has been amendment. The motion shall be granted if the
extinguished; and prosecution fails to make the amendment, or the
4. Double jeopardy. complaint or information still suffers from the same
defect despite the amendment. (n)
Denial of a motion to quash
Q: Is an Order sustaining a motion to quash a bar to
Q: What is the proper remedy in case of denial of a another prosecution?
motion to quash?
A: No.
A: The remedy is not a petition for certiorari, but for
petitioners to go to trial, without prejudice to XPN: If the ground relied upon is either:
reiterating the special defenses invoked in their motion
to quash. 1. Extinction of the criminal liability; and
2. On the ground of double jeopardy.
A petition for certiorari under Rule 65 is not the proper
remedy against an order denying a motion to An order sustaining a motion to quash is not a bar to
quash. Absent any showing of arbitrariness on the part another prosecution for the same offense unless based
of the investigating prosecutor or any other officer on the ground that the criminal liability has been
authorized by law to conduct preliminary investigation, extinguished or double jeopardy (Sec. 6, Rule 117).
courts as a rule must defer to said officer’s finding and
determination of probable cause. Well-established is DOUBLE JEOPARDY
the rule that when a motion to quash in a criminal case
is denied, the remedy is not a petition for certiorari but Sec. 21 of Art. III of the Constitution
for petitioners to go to trial without prejudice to
reiterating the special defenses invoked in their motion Section 21. No person shall be twice put in jeopardy of
to quash. This general rule, however, is subject to punishment for the same offense. If an act is punished
certain exceptions. If the court, in denying the motion by a law and an ordinance, conviction or acquittal under
to dismiss or motion to quash acts without or in excess either shall constitute a bar to another prosecution for
of jurisdiction or with grave abuse of discretion, then the same act.
certiorari or prohibition lies (Boiser v. People and
Lazarte v. Sandiganbayan).

A: No, what it prohibits is putting an accused in “double
Sec. 7 of Rule 117 jeopardy” in which he is put in danger of punishment
for the same offense more than once.
SEC. 7. Former conviction or acquittal; double
jeopardy.—When an accused has been convicted or
At the heart of the policy is the concern that permitting
acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a the sovereign freely to subject the citizen to a second
court of competent jurisdiction, upon a valid complaint judgment for the same offense would arm the
or information or other formal charge sufficient in form government with a potent instrument of
and substance to sustain a conviction and after the oppression. The constitutional provision, therefore,
accused had pleaded to the charge, the conviction or guarantees that the State shall not be permitted to
acquittal of the accused or the dismissal of the case make repeated attempts to convict an individual for an
shall be a bar to another prosecution for the offense alleged offense, thereby subjecting him to
charged, or for any attempt to commit the same or embarrassment, expense, and ordeal and compelling
frustration thereof, or for any offense which necessarily him to live in a continuing state of anxiety and
includes or is necessarily included in the offense insecurity, as well as enhancing the possibility that even
charged in the former complaint or information. though innocent he may be found guilty. (Co v. Lim)
However, the conviction of the accused shall not be a Double jeopardy refers to jeopardy of punishment for
bar to another prosecution for an offense which the same offense, suggesting that double jeopardy
necessarily includes the offense charged in the former presupposes 2 separate criminal offenses. It is also
complaint or information under any of the following called as res judicata in prison grey.
instances:
Q: What are the effects of double jeopardy?
(a) the graver offense developed due to supervening
facts arising from the same act or omission constituting A: When double jeopardy exists, “the conviction or
the former charge; acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense
(b) the facts constituting the graver charge became charged, or for any attempt to commit the same or
known or were discovered only after a plea was entered frustration thereof, or for any offense which necessarily
in the former complaint or information; or includes or is necessarily included in the offense
charged in the former complaint or information.”
(c) the plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the Thus, an acquittal rendered by a court of competent
offended party except as provided in section 1(f) of Rule jurisdiction after trial on the merits is immediately final
116. and cannot be appealed on the ground of double
jeopardy.
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the judgment, he People v. Nazareno
shall be credited with the same in the event of
conviction for the graver offense. (7a) A judgment of acquittal is final and is no longer
reviewable. It is also immediately executory and the
Q: What is “jeopardy”? State may not seek its review without placing the
accused in double jeopardy. The Constitution has
A: It is the danger of conviction and punishment which expressly adopted the double jeopardy policy and
the defendant in a criminal action incurs when a valid thus bars multiple criminal trials, thereby conclusively
indictment has been found. presuming that a second trial would be unfair if the
innocence of the accused has been confirmed by a
Q: Does the Constitution prohibit it? previous final judgment. Further prosecution via an
appeal from a judgment of acquittal is likewise barred
because the government has already been afforded a
complete opportunity to prove the criminal defendant’s

culpability; after failing to persuade the court to enter a 1. a first jeopardy must have attached prior to the
final judgment of conviction, the underlying reasons second;
supporting the constitutional ban on multiple trials 2. the first jeopardy must have been validly
applies and becomes compelling. The reason is not only terminated; and
the defendant’s already established innocence at the 3. the second jeopardy must be for the same offense
first trial where he had been placed in peril of or the second offense includes or is necessarily
conviction, but also the same untoward and prejudicial included in the offense charged in the first
consequences of a second trial initiated by a information, or is an attempt to commit the same
government who has at its disposal all the powers and or a frustration thereof.
resources of the State. Unfairness and prejudice would
necessarily result, as the government would then be Q: What are the elements in determining when the
allowed another opportunity to persuade a second trier first jeopardy may be said to have been attached?
of the defendant’s guilt while strengthening any
weaknesses that had attended the first trial, all in a A:
process where the government’s power and resources
are once again employed against the defendant’s 1. The accused has been convicted or acquitted, or
individual means. That the second opportunity the case against him was dismissed or
comes via an appeal does not make the effects any less terminated without his express consent;
prejudicial by the standards of reason, justice and 2. That the conviction, acquittal or dismissal was
conscience. made by a court of competent jurisdiction;
3. There is a valid complaint or information or
Thus, the absolute and inflexible rule is that the other formal charge is sufficient in form and
State is proscribed from appealing the judgment of substance to sustain a conviction;
acquittal through either a regular appeal under Rule 41 4. The accused has pleased to the charge.
of the Rules of Court, or an appeal by certiorari on pure
questions of law under Rule 45 of the same Rules. In determining when the first jeopardy may be said to
have attached, it is necessary to prove the existence of
People v. Caraang the following:
The accused may appeal from a judgment of conviction (a) Court of competent jurisdiction
but when the accused appeals from the sentence of the (b) Valid complaint or information
trial court, he waives his right to the constitutional (c) Arraignment
safeguard against double jeopardy and throws the (c) Valid plea
whole case open to review by the appellate court. (e) The defendant was acquitted or convicted or the
case was dismissed or otherwise terminated without
NOTE: The acquittal of the accused does not affect the the express consent of the accused.
right of the offended party to appeal the civil aspect of
the case. Thus, while a judgment of acquittal cannot be Court must have jurisdiction
appealed by the prosecution, either the offended party
or the accused may appeal the civil aspect of the For double jeopardy to attach the court which rendered
judgment despite the acquittal of the accused. a judgment of conviction or acquittal or the court which
terminated or dismissed the case be one vested with
Thus, the extinction of the criminal liability will not “competent jurisdiction.”
necessarily give rise to the extinction of the civil liability.
It is necessary that there be a court of competent
Q: What are the requisites for the application of jurisdiction because jurisdiction to try the case the case
double jeopardy? is essential to place an accused in jeopardy.
A: In order to successfully invoke the defense of double The first jeopardy could not attach if the action was
jeopardy, the following requisites must be present: filed in a court of the place which was not the proper
venue for hearing the case.

Venue in criminal cases is jurisdictional, being an who may be reasonably charged with a crime, to enable
essential element of jurisdiction. the fiscal to prepare his complaint or information.
Q: Where should the criminal case be filed? It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime
A: In all criminal prosecutions, the action shall be has been committed and whether there is probable
instituted and tried in the court of the municipality or cause to believe that the accused is guilty thereof, and it
territory wherein the offense was committed or any does not place the person against whom it is taken in
one of the essential ingredients thereof took place. jeopardy.
Q: What if the court which initially has jurisdiction in Q: Describe the nature of preliminary investigation.
the course of proceedings is ousted of that same
jurisdiction? A: It is executive in character. It does not contemplate a
judicial function. It does not place the person against
A: Such event would bar any invocation of double whom it is taken in jeopardy (Tandoc v. Resultan).
jeopardy.
Q: What is the effect of dismissal of the case during its
Curing an erroneous acquittal; grave abuse of preliminary investigation stage?
discretion amounting to lack of jurisdiction
A: It is settled that the dismissal of a case during its
Q: May an erroneous acquittal be cured without preliminary investigation does not constitute double
offending the principle against double jeopardy? jeopardy since a preliminary investigation is not part of
the trial and is not the occasion for the full and
A: As a general rule, an acquittal is immediately final exhaustive display of the parties evidence but only such
and cannot be appealed on the ground of double as may engender a well-grounded belief that an offense
jeopardy. has been committed and accused is probably guilty
thereof.10 For this reason, it cannot be considered
The only exception where double jeopardy cannot be equivalent to a judicial pronouncement of acquittal
invoked is where there is a finding of mistrial resulting (Vincoy v. CA).
in a denial of due process.
Res judicata and double jeopardy; res judicata in
Q: What is the remedy to question a verdict of prison grey
acquittal whether at the trial court or at the appellate
level? Q: Does res judicata apply to criminal cases?
A: Petition for certiorari under Rule 65. A: No. Res judicata is a doctrine of civil law and thus has
no bearing on criminal proceedings even if double
Q: When can there be availment of certiorari? jeopardy has been described as “res judicata in prison
grey.”
A: Only when it is clearly shown that the public
respondent acted without jurisdiction or with grave Q: Is double jeopardy applicable to administrative
abuse of discretion amounting to lack or excess of cases?
jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction. A: To avail of the protection against double jeopardy, it
is fundamental that the following requisites must have
Preliminary investigation; obtained in the original prosecution: (a) a valid
double jeopardy not applicable complaint or information; (b) a competent court; (c) a
valid arraignment; (d) the defendant had pleaded to the
Q: What is preliminary investigation? charge; and (e) the defendant was acquitted, or
convicted, or the case against him was dismissed or
A: A preliminary investigation is merely inquisitorial and otherwise terminated without his express consent. 6 All
it is often the only means of discovering the persons
these elements do not apply vis-a-vis the administrative 5. The approximate date of commission
case. 6. The place where the offense was committed.
NOTE: A single act may offend against 2 or more distinct Q: May parents substitute the victim or offended
and related provisions of law, or that the same act may party?
give rise to criminal as well as administrative liability.
This principle may successfully prevent any assertion of A: Unless the offended party dies or becomes
the principle of double jeopardy in administrative cases. incapacitated or she has no known parents,
grandparents, or guardians, a public prosecutor cannot
Q: What are the kinds of remedies available against a subscribe to or assign the formal charge for seduction,
public officer for impropriety in the performance of his abduction, and acts of lasciviousness.
powers and the discharge of his duties?
Accused should have pleaded to the charge (should
A: have been arraigned)
1. Civil
2. Criminal The application of the rule against double jeopardy
3. Administrative requires that the accused “had pleaded to the charge.”
This remedies may be invoked separately, alternately, Hence, if before arraignment, the prosecutor withdrew
simultaneously or successfully. Sometimes, the same an information charging theft and later on filed another
offense may be the subject of all 3 kinds of remedies. information for theft or robbery against the same
accused, double jeopardy cannot be invoked because
Q: Will the defeat in any of the 3 remedies preclude the accused was never arraigned under the first
resort to other remedies or affect decisions reached information.
thereat?
The existence of a plea is an essential requisite to
A: No, as different degrees of evidence are required in double jeopardy.
these several actions.
The accused has been convicted or acquitted, or the
Criminal case- proof beyond reasonable doubt case against him dismissed or terminated without his
Civil- preponderance of evidence express consent
Administrative- substantial evidence
For the accused to invoke double jeopardy, it must be
Valid complaint or information shown that in the prior change, he had been either
convicted or acquitted. He may also show that the case
Q: How will you determine whether or not the against him had been dismissed or terminated without
complaint or information is sufficient? express consent.
A: It is dependent on whether the same could sustain a Q: How may the first case be terminated?
conviction. If it could not sustain the conviction desired,
then the charge is not a valid one which preclude A:
double jeopardy. 1. Conviction
2. Acquittal
Q: Under Sec. 6 Rule 10, what should be included in 3. Dismissal or termination without the express
the complaint? consent of the accused
A: NOTE: Where the first case has not yet been

1. Name of the accused terminated, double jeopardy cannot be invoked.
2. Designation of the offense given by the statute
3. The acts or omissions complained of as constituting Q: What if there are 2 informations filed against same
the offense accused? Can the accused claim double jeopardy?
4. Name of the offended party
A: It is well-settled that the mere filing of two of the case shall be a bar to another prosecution for the
informations or complaints charging the same offense same offense.
does not yet afford the accused in those cases the But when the case id dismissed with the express
occasion to complain that he is being placed in jeopardy consent of the defendant, the dismissal will not be a bar
twice for the same offense, for the simple reason that to another prosecution for the same offense; because,
the primary basis of the defense of double jeopardy is his action in having the case dismissed constitutes a
that the accused has already been convicted or waiver of his constitutional rights or privilege, for the
acquitted in the first case or that the same has been reason that he thereby prevents the court from
terminated without his express consent. It is the proceeding to the trial on the merits and rendering a
conviction or jeopardy of being convicted or the judgment of conviction against him.
acquittal of the accused or termination of the case that
bars further prosecution of the same offense or any Q: What do you mean by consent?
attempt to commit the same or frustration thereof, or
for any offense which necessarily includes or is A: The consent that would preclude another
necessarily included in the offense charged in the prosecution in order to be deemed an express one
former complaint or information. should be positive, direct, unequivocal, and requiring no
inference or implication to supply its meaning.
A verdict of acquittal is immediately final and a
reexamination of the merits of such acquittal, even in Dismissals equivalent to acquittal even with the
the appellate courts, will put the accused in jeopardy consent of the accused; speedy trial;
for the same offense. demurrer to evidence
Q: The finality-of-acquittal doctrine has several Not every dismissal with the consent of the accused
avowed purposes. What are these purposes? would preclude the invocation of the protection against
double jeopardy.
A: Primarily, it prevents the State from using its criminal
processes as an instrument of harassment to wear out A dismissal based on violation of the right to speedy
the accused by a multitude of cases with accumulated trial is equivalent to an acquittal. A waiver of the double
trials. It also serves the additional purpose of jeopardy will not apply even if the accused expressly
precluding the State, following an acquittal, from moved for the termination of the proceedings.
successively retrying the defendant in the hope of
securing a conviction. And finally, it prevents the State, If the dismissal was predicated on the unreasonable
following conviction, from retrying the defendant again delay in the proceedings in violation of the accused’s
in the hope of securing a greater penalty. right to speedy trial, double jeopardy may attach even if
the dismissal of the case was with the consent of the
Dismissal or termination must be without express accused.
consent of the accused
The dismissal of a criminal case upon motion of the
The dismissal or termination of the case with the accused because the prosecution was not prepared for
express consent of the accused will not prevent another trial since the complainant and his witness did not
prosecution for the same offense. appear at the trial is a dismissal equivalent to an
acquittal that would bar further prosecution of the
The assent of the accused to the dismissal is the defendant for the same offense.
operative act that precludes the effects of the double
jeopardy from setting in. If the accused wants to exercise his constitutional right
to speedy trial, he should ask not for the dismissal, but
When a defendant has been convicted or acquitted or ask for the trial of the case.
the case against him is dismissed or otherwise
terminated without his express consent, upon a valid Q: What is the effect of the discharge of an accused as
complaint or information by a court of competent a state witness?
jurisdiction and after he has pleaded to the charge, the
conviction or acquittal of the defendant or the dismissal
A: It shall amount to an acquittal and shall be a bar to a
future prosecution for the same offense, unless the Q: What do you mean by “same offense”?
accused fails or refuses to testify against his co-accused
in accordance with his sworn statement constituting the A: It means the offense charged, or an attempt to
basis for his discharge. commit it or a frustrated stage thereof, or any offense
which necessarily includes or is necessarily included in
Q: What if the court grants a demurrer to evidence? the offense charged in the former complaint.
A: The dismissal amounts to an acquittal. NOTE: A single act may offend against two or more
entirely distinct and unrelated provisions of law, and if
Double jeopardy in quasi-offenses one provision requires proof of an additional fact or
element which the other does not, an acquittal or
Once convicted or acquitted of a specific act of reckless conviction or a dismissal of the information under one
imprudence, the accused may not be prosecuted again does not bar prosecution under the other
for that same act. For the essence of the quasi offense
of criminal negligence under article 365 of the Revised The constitutional right against double jeopardy
Penal Code lies in the execution of an imprudent or protects from a second prosecution for the same
negligent act that, if intentionally done, would be offense, not for a different one. Indeed, the crime under
punishable as a felony. The law penalizes thus the Section 3(e) of RA 3019 shares two common elements
negligent or careless act, not the result thereof. The with the felony under Article 171 of the Revised Penal
gravity of the consequence is only taken into account to Code -- that the offender is a public officer and that the
determine the penalty, it does not qualify the substance act is related to the officer’s public position. However,
of the offense. And, as the careless act is single, the latter offense is not necessarily inclusive of the
whether the injurious result should affect one person or former. The essential elements of each are not
several persons, the offense (criminal negligence) included among or do not form part of those
remains one and the same, and can not be split into enumerated in the former. The differences between the
different crimes and prosecutions. elements needed to establish the commission of the
two charges imply that the evidence required to prove
When double jeopardy shall not apply the guilt or the innocence of the accused would likewise
despite a prior conviction differ in each case. Since both charges stemmed from
the same transaction, the same documents may be
Q: The rule against double jeopardy precludes another relevant to both cases. However, the degree
prosecution for any attempt to commit the same or of materiality of these documents in relation to proving
frustration thereof, or for any offense which the commission of the offenses would necessarily vary.
necessarily includes or is necessarily included in the
offense charged. When can it be said that an offense is Q: Give some examples of identical acts but which
necessarily included in another? constitute different offenses.
A: A:
1. The graver offense developed due to supervening 1. Theft of electricity under RPC and violation of P.D.
facts arising from the same act or omission 401
constituting the former charge 2. Illegal recruitment and estafa
2. The facts constituting the graver charge became 3. Violation of B.P. 22 and estafa
known or were discovered only after a plea was 4. Direct bribery under Art. 210 of the RPC and Sec. 3
entered in the former complaint or information (b) of R.A. 3019
3. The plea of guilty to a lesser offense was made
without the consent of the prosecutor and of the
offended party except as provided in Sec.1 (f) of
Rule 116.

c. The court issues an order granting the motion
Provisional dismissal and dismissing the case provisionally
d. The public prosecutor is served with copy of the
Q: What is provisional dismissal? order of provisional dismissal of the case
A: It contemplates that the dismissal of the criminal Q: What is the rational behind the requirement of
action is not permanent and can be revived within the express consent of the accused to a provisional
period set by the Rules of Court. dismissal of a criminal case?
Q: What are the remedies for provisional dismissal? A: To bar him from subsequently asserting that the
revival of the criminal case will place him in double
A: jeopardy for the same offense or for an offense
1. There must be express consent of the accused necessarily included therein.
2. There must be notice to the offended party
Q: How should the consent be given?
Time bar rule; when provisional dismissal
becomes permanent A: Express consent to a provisional dismissal is given
either viva voce or in writing. It is a positive, direct,
Q: When is dismissal considered as permanent? unequivocal consent requiring no inference or
implication to supply its meaning.
A:
a. The case is not revived within 1 year after the Where the accused writes on the motion of a
issuance of the order of provisional dismissal with prosecutor for a provisional dismissal of the case No
respect to offenses punishable by imprisonment not objection or With my conformity, the writing amounts
exceeding 6 years or a fine of any amount or both to express consent of the accused to a provisional
b. The case is not revived within 2 years after the dismissal of the case.
issuance of the order of provisional dismissal with
respect to offenses punishable by imprisonment of Q: What is the effect of mere silence?
more than 6 years.
A: Mere silence or inaction of the accused to a motion
Thus, within the stated periods, the prosecution has to for a provisional dismissal of the case of his failure to
revive the case if it desires to prevent the provisional object to a provisional dismissal does not amount to
dismissal becoming permanent and the revival of the express consent
case being time-barred.
NOTE: A motion of the accused for a provisional
NOTE: The State may revive a criminal case beyond the dismissal of a case is an express consent to such
one-year or two-year periods provided that there is a provisional dismissal.
justifiable necessity for the delay.
If a criminal case is provisionally dismissed with the
Q: What is the effect of the case People v. Lacson? express consent of the accused, the case may be
What are the conditions sine qua non to the revived only within the periods provided in the new
application of the time-bar rule? rule. On the other hand, if a criminal case is
provisionally dismissed without the express consent of
A: The law provides the following conditions sine qua the accused or over his objection, the new rule would
non to the application of the time-bar rule? not apply.
a. The prosecution with the express conformity of
the accused or the accused moves for a Q: May the case be revived or refilled even beyond the
provisional dismissal of the case; or both the prescribed periods?
prosecution and the accused move for a
provisional dismissal of the case A: Yes, subject to the right of the accused to oppose the
b. The offended party is notified of the motion for same on the ground of double jeopardy or that such
a provisional dismissal of the case revival or refilling is barred by the Statute of Limitations.
Q: How may the case be revived? Chapter X

PRE-TRIAL, TRIAL AND DEMURRER TO EVIDENCE
A: The case may be revived by the State within the (Rules 118-119)
time-bar rule either by the refilling of the information or
by filing of a new information for the same offense or A. PRE-TRIAL (Rule 118)
an offense necessarily included therein. There would be
no need for a new preliminary investigation. Courts in which pre-trial is mandatory
Q: In what occasions a new preliminary investigation is 1. Sandiganbayan

required? 2. Regional Trial Court
3. Metropolitan Trial Court, Municipal Trial Court
A: in Cities, Municipal Trial Court, Municipal Circuit
1. Where the original witnesses of the prosecution or Trial Court
some of them may have recanted their testimonies
or may have died or may no longer be available and Matters to be considered during pre-trial; purposes
new witnesses for the State have emerged
2. If aside from the original accused, other persons are Q: What are the purposes of pre-trial?
charged under a new criminal complaint for the
same offense or necessarily included therein A:
3. If under a new criminal complaint, the original 1. Plea bargaining
charge has been upgraded 2. Stipulation of facts
4. If under a new criminal complaint, the criminal 3. Marking for identification of evidence of the parties
liability of the accused is upgraded from that as an 4. Waiver of objections to admissibility of evidence
accessory to that as a principal. 5. Modification of the order of trial if the accused
admits the charge but interposes a lawful defense
Note that that accused must be accorded the right to 6. Such matters as will promote a fair and expeditious
submit counter-affidavits and evidence. trial of the criminal and civil aspects of the case
Withdrawal of information distinguished from a When pre-trial shall be held

motion to dismiss
Q: When should the pre-trial be held?
Q: A motion filed by prosecutor to withdraw an
information differs from a motion to dismiss. What are A: It shall be held after arraignment and within 30 days
their differences? from the date of the court acquires jurisdiction over the
person of the accused, unless a shorter period is
A: The order granting the withdrawal of the information provided for in special laws or circulars of the SC.
attains finality after 15 days from receipt thereof,
without prejudice to the re-filing of the information Q: It is said that after the arraignment, the Court shall
upon reinvestigation. On the other hand, the order set the pre-trial conference within 30 days from the
granting a motion to dismiss becomes final 15 days date of arraignment. Moreover, it shall issue an order.
after receipt thereof, with prejudice to the re-filing of What should be the contents of the order by the
the same case once such order achieves finality. Court?
A motion to dismiss when filed thus puts into place the A:

time-bar rule on provisional dismissal. Unlike a motion 1. An order requiring the private offended party to
to dismiss, a motion to withdraw information is not appear for purposes of plea bargaining and for
time-barred and does not fall within the ambit of Se. 8 other matters requiring his presence, except in
of Rule 117. cases for violations of the Comprehensive
Dangerous Drugs Act of 2002.
2. Referring the case to the Branch Clerk of Court, if
warranted for a preliminary conference to be set at
least 3 days prior to the pre-trial to mark the Q: How about when the prosecution and the offended
documents or exhibits to be presented by the party agree to the plea?
parties and copies thereof to be attached to the
records after comparison and to consider other A: Where the prosecution and the offended party
matters as may aid in its prompt disposition. agree to the plea offered by the accused, the
3. Inform the parties that no evidence shall be allowed court shall:
to be presented and offered during pre-trial other
than those identified and marked during the pre- a. Issue an order which contains the plea
trial except when allowed by the court for good bargaining arrived at;
cause shown. b. Proceed to receive evidence on the civil aspect
of the case; and
Q: What are the consequences of non-appearance at c. Render and promulgate judgment of conviction,
the pre-trial conference? including the civil liability or damages duly
established by the evidence.
A: If the counsel for the accused or prosecutor does not
appear in the pre-trial conference, the court may Q: How about when the plea-bargaining fails?
impose the proper sanctions or penalties, if the counsel
or prosecutor absent does not offer an acceptable A: When plea bargaining fails, the Court shall:
excuse for his lack of cooperation.
a. Adopt the minutes of preliminary conference as
Q: During the preliminary conference, what are the part of the pre-trial proceedings, confirm
duties of the Branch Clerk? markings of exhibits or substituted photocopies
and admissions on the genuineness and due
A: execution of documents and list object and
1. assist the parties in reaching a settlement of the testimonial evidence;
civil aspect of the case, b. Scrutinize every allegation of the information
2. mark the documents to be presented as exhibits and the statements in the affidavits and other
and copies thereof attached to the records after documents which form part of the record of the
comparison, preliminary investigation and other documents
3. ascertain from the parties the undisputed facts and identified and marked as exhibits in determining
admissions on the genuineness and due execution farther admissions of facts, documents and in
of documents marked as exhibits and particular as to the following:
4. consider such other matters as may aid in the
prompt disposition of the case 1. the identity of the accused;
2. court's territorial jurisdiction relative to the
Q: What is the duty of the judge before the pre-trial offense/s charged;
conference? 3. qualification of expert witness/es;
4. amount of damages;
A: Before the pre-trial conference the judge must study 5. genuineness and due execution of
the allegations of the information, the statements in the documents;
affidavits of witnesses and other documentary evidence 6. the cause of death or injury, in proper cases;
which form part of the record of the preliminary 7. adoption of any evidence presented during
investigation. the preliminary investigation;
8. disclosure of defenses of alibi, insanity, self-
Q: What is the duty of the judge when plea bargaining defense, exercise of public authority and
is agreed upon? justifying or exempting circumstances; and
9. such other matters that would limit the facts
A: During the pre-trial, except for violations of the in issue.
Comprehensive Dangerous Drugs Act of 2002, the trial c. Define factual and legal issues;
judge shall consider plea-bargaining arrangements. d. Ask parties to agree on the specific trial dates
and adhere to the flow chart determined by the
court which shall contain the time frames for
the different stages of the proceeding up to by the court to prevent manifest injustice (Rule 118,
promulgation of decision and use the time Sec. 2).
frame for each stage in setting the trial dates;
e. Require the parties to submit to the Branch COC Said Order shall bind the parties, limit the trial to
the names, addresses and contact numbers of matters not disposed of and control the course of the
witnesses that need to be summoned action during the trial.
by subpoena; and
f. Consider modification of order of trial if the PRE-TRIAL IN A CIVIL CASE V.
accused admits the charge but interposes a PRE-TRIAL IN CRIMINAL CASE
lawful defense.
Pre-trial in a civil case Pre-trial in criminal case
Q: Who shall ask questions during the pre-trial? Preceded by a motion ex Not required
parte filed by the plaintiff
A: During the pre-trial, the judge shall be the one to ask to set the case for pre-trial
questions on issues raised therein and all questions or Set by the court after the The pre-trial shall be held
comments by counsel or parties must be directed to the requisite motion from after arraignment and
judge to avoid hostilities between the parties. plaintiff after all pleadingswithin 30 days from date
have been served and filed the court acquires
Pre-trial agreements; signing of admissions made jurisdiction over the
person of the accused,
Q: What is the rule regarding agreements and unless a shorter period is
admissions? provided for in special
laws or circulars of SC
A: All agreements or admissions made or entered Purpose is to consider the No such purpose
during the pre-trial conference shall be: possibility of amicable
a. reduced in writing and settlement or submission
b. signed by the accused and counsel, otherwise, they to ADR
cannot be used against the accused. Sanction for non- The sanction is upon the
appearance is imposed counsel, or the prosecutor
All proceedings during the pre-trial shall be recorded, upon the non-appearing upon whom the proper
the transcripts prepared and the minutes signed by the party sanctions and penalties
parties and/or their counsels. may be imposed for non-
appearance and the failure
Q: Under Rule 118, Sec. 2 of the Rules of Court, what to offer an acceptable
are is the rule regarding agreements and admissions? excuse for lack of
cooperation
A: All agreements or admissions made or entered The parties are required to No such requirement
during the pre-trial conference shall be: file and serve their
a. reduced in writing and respective pre-trial briefs
b. signed by the accused and counsel, otherwise, they Shall be recorded Stricter requirement, all
cannot be used against the accused. agreements or admissions
c. Must be approved by the court if the agreement made or entered during
covers the same matters under Rule 118, Sec. 1. the pre-trial conference
shall be reduced in writing
Pre-trial order and signed by the accused
and counsel, otherwise,
After the pre-trial conference, the court shall issue an they cannot be used
order reciting the actions taken, the facts stipulated, against the accused.
and evidence marked. Such order shall bind the parties,
limit the trial to matters not disposed of, and control Effect of pre-trial order
the course f the action during the trial, unless modified
Q: What is the effect of pre-trial order?
Criminal cases like violation of traffic rules and
A: Such order shall regulations and violation of municipal or city ordinances
a. bind the parties, although included in the list of cases under summary
b. limit the trial to matters not disposed of, and procedure should not be mediated because they cannot
c. control the course of the action during the trial, be compromised and might be a source of corruption if
unless modified by the court to prevent manifest mediation pushes through.
injustice.
2. Cases cognizable by Lupong Tagapamayapa
JUDICIAL DISPUTE RESOLUTION (JDR); Purposes 3. Civil aspect of BP 22
4. Civil aspect of quasi-offenses
This is an innovative concept in the judicial system and a. Cases covered are acts committed by reckless
by it, it is hoped that mediation and conciliation at the or simple imprudence or negligence resulting
level of the judge would contribute significantly to the for example in slight, less serious or serious
resolution of mediatable cases, thereby increasing the physical injuries
satisfaction of litigants in the court processes and also b. Imprudence resulting to damage to property
helping to decongest the dockets of the judiciary. c. Reckless or simple imprudence with violation of
the motor vehicle law
Another goal is to strengthen conciliation during the 5. The civil aspect of estafa and libel under proposed
pre-trial stage in order to expedite the resolution of circular amending A.M. No. 04-1-12-SC
cases. 6. The civil aspect of theft, under Art. 308 of the RPC,
as part of cases for referral to mediation.
Q: What are the 2 stages in judicial proceedings?
Discovery procedures in criminal cases
A:
1. from the filing of a complaint, to the conduct of 1. The rules allow the production and inspection of
CAM (conciliation and mediation) and JDR during material evidence in possession of the prosecution
the pre-trial stage under Sec. 10 of Rule 116.
2. pre-trial proper to trial and judgment 2. Order the mental examination of the accused and
to order his confinement if necessary
The judge to whom the case has been originally raffled
shall preside over the first stage. He shall be called the NOTE: The taking of depositions in criminal cases is
JDR judge. addressed to judicial discretion. Discretion has to be
exercised in a reasonable manner and in consonance
As a mediator and conciliator, the judge facilitates the with the spirit of the law.
settlement discussions between parties and tries to
reconcile their differences. B. TRIAL (Rule 119)
As a neutral evaluator, the judge assesses the relative Section 1. Time to prepare for trial. – After a plea of
strengths and weaknesses of each party's case and not guilty is entered, the accused shall have at least
makes a non-binding and impartial evaluation of the fifteen (15) days to prepare for trial. The trial shall
chances of each party's success in the case. On the commence within thirty (30) days from receipt of the
basis of his neutral evaluation, the judge persuades the pre-trial order.
parties to reconsider their prior reluctance to settle
their case amicably. The entire process comprises JDR. Sec. 5. Time limit following an order for new trial. – If
the accused is to be tried again pursuant to an order
Cases subject to mediation for JDR for a new trial, the trial shall commence within thirty
(30) days from notice of the order, provided that if the
1. All civil cases, settlement of estates, and cases period becomes impractical due to unavailability of
covered by the Rule on Summary Procedure, except witnesses and other factors, the court may extend but
those which by law may not be compromised. not to exceed one hundred eighty (180) days. For the
second twelve-month period, the time limit shall be

one hundred eighty (180) days from notice of said Q: What is the effect of not bringing the accused to
order for new trial. trail within the prescribed period?
A:
Summary of Periods If the accused is not brought to trial in accordance
within the time limit set by the Rules of Court, the
1. Arraignment: information may be dismissed upon motion of the
accused. The ground for dismissal is the denial of his
Unless a shorter period is provided by special law or right to speedy trial.
Supreme Court circular, the arraignment shall be held
within thirty (30) days from the date the court acquires The motion for dismissal must be made prior to trial,
jurisdiction over the person of the accused. The time of otherwise failure to do shall be deemed a waiver of the
the pendency of a motion to quash or for a bill or right to have the charge dismissed.
particulars or other causes justifying suspension of the
arraignment shall be excluded in computing the period. Q: What are the delays to be excluded from computing
(Sec. 1(g), Rule 116) the period for commencement of the trial?
2. Pre-trial A:
In all criminal cases cognizable by the Sandiganbayan, RULE 119, Sec. 3

Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court and Municipal Sec. 3. Exclusions. - The following periods of delay shall
Circuit Trial Court, the court shall, after arraignment and be excluded in computing the time within which trial
within thirty (30) days from the date the court acquires must commence:
jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars (a) Any period of delay resulting from other
of the Supreme Court, order a pre-trial conference. proceedings concerning the accused, including but not
(Sec. 1, Rule 118) limited to the following:
3. Trial (1) Delay resulting from an examination of the physical

and mental condition of the accused;
Notwithstanding the provisions of section 1(g), Rule 116 (2) Delay resulting from proceedings with respect to
and the preceding section 1, for the first twelve- other criminal charges against the accused;
calendar-month period following its effectivity on
September 15, 1998, the time limit with respect to the (3) Delay resulting from extraordinary remedies against
period from arraignment to trial imposed by said interlocutory orders;
provision shall be one hundred eighty (180) days. For
the second twelve-month period, the time limit shall be (4) Delay resulting from pre-trial proceedings; provided,
one hundred twenty (120) days, and for the third that the delay does not exceed thirty (30) days;
twelve-month period, the time limit shall be eighty (80)
days. (Sec. 6, Rule 119) (5) Delay resulting from orders of inhibition, or
proceedings relating to change of venue of cases or
The general period applicable is 30 days from receipt of transfer from other courts;
the pre-trial order. The extended period at present is 80
days from the arraignment because the third twelve- (6) Delay resulting from a finding of existence of a
month period earlier refereed to now applies. prejudicial question; and
Q: What is the time period to prepare for trial? (7) Delay reasonably attributable to any period, not to
exceed thirty (30) days, during which any proceeding
A: After a plea of not guilty is entered, the accused shall concerning the accused is actually under advisement.
have at least 15 days to prepare for trial.

(b) Any period of delay resulting from the absence or 1. His whereabouts are unknown; or
unavailability of an essential witness. 2. His whereabouts cannot be determined by due
For purposes of this subparagraph, an essential diligence.
witness shall be considered absent when his
whereabouts are unknown or his whereabouts cannot Q: When is a witness considered as unavailable?
be determined by due diligence. He shall be considered
unavailable whenever his whereabouts are known but A: He shall be considered as unavailable even if his
his presence for trial cannot be obtained by due whereabouts are known provided his presence for trial
diligence. cannot be obtained by due diligence.
(c) Any period of delay resulting from the mental CONTINUOUS TRIAL
incompetence or physical inability of the accused to
stand trial. Sec. 2. Continuous trial until terminated;
postponements. – Trial once commenced shall continue
(d) If the information is dismissed upon motion of the from day to day as far as practicable until terminated. It
prosecution and thereafter a charge is filed against the may be postponed for a reasonable period of time for
accused for the same offense, any period of delay from good cause.
the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent The court shall, after consultation with the prosecutor
charge had there been no previous charge. and defense counsel, set the case for continuous trail
on a weekly or other short-term trial calendar at the
(e) A reasonable period of delay when the accused is earliest possible time so as to ensure speedy trial. In no
joined for trial with a co-accused over whom the court case shall the entire trial period exceed one hundred
has not acquired jurisdiction, or, as to whom the time eighty (180) days from the first day of trial, except as
for trial has not run and no motion for separate trial has otherwise authorized by the Supreme Court.
been granted.
The time limitations provided under this section and the
(f) Any period of delay resulting from a continuance preceding section shall not apply where special laws or
granted by any court motu proprio, or on motion of circulars of the Supreme Court provide for a shorter
either the accused or his counsel, or the prosecution, if period of trial.
the court granted the continuance on the basis of its
findings set forth in the order that the ends of justice NOTE: To ensure speedy trial, the court shall set the
served by taking such action outweigh the best interest case for continuous trial on a weekly or other trial
of the public and the accused in a speedy trial. calendar at the earliest possible time.
Q: When delay or suspension of trial is justified by Q: State the trial period.

reason of the absence of a witness?
A: In no case shall the entire period exceed 180 days
A: To justify delay, the witness cannot b just any from the first day of trial, except as otherwise
witness. The rule describes such witness as an authorized by the SC.
“essential” witness.
Postponement or continuance
Q: Who is an essential witness?
While the Rule provides for a continuous trial, the rule
A: It means indispensable, necessary or important in the does not prohibit postponements. For such
highest degree. postponement to be made, it must be:
Q: When is an essential witness considered as absent a. For a reasonable period; and

(as distinguished from unavailable)? b. For a good cause
A: Sec. 4. Factors for granting continuance. – The following

factors, among others, shall be considered by a court in
determining whether to grant a continuance under trial and has no mean to attend the trial or there are
section 3(f) of this Rule. other circumstances that exist that would make him
unavailable during the trial or prevent him from
a. Whether or not the failure to grant a attending the same.
continuance in the proceeding would likely
make a continuation of such proceeding
impossible or result in a miscarriage of justice; Q: What should be indicated in the motion for the
and grant of this conditional examination?
b. Whether or not the case taken as a whole is so
novel, unusual and complex, due to the number A:
of accused or the nature of the prosecution, or
that it is unreasonable to expect adequate 1. The substance of his testimony; and
preparation within the periods of time 2. The reason or reasons for his inability to attend
established therein. the trial.
In addition, no continuance under section 3(f) of this If the court is satisfied that the examination of a witness
Rule shall be granted because of congestion of the for the accused is necessary, an order shall be made
court’s calendar or lack of diligent preparation or failure directing that the witness be examined at a specific
to obtain available witnesses on the part of the date, time and place and that a copy of the order be
prosecutor. served on the prosecutor at least three (3) days before
the scheduled examination. The examination shall be
A continuance allowed by the court to allegedly serve taken before a judge, or, if not practicable, a member of
the ends of justice does not include a continuance the Bar in good standing so designated by the judge in
because of congestion of the court’s calendar or lack of the order, or if the order be made by a court of superior
diligent preparation or failure to obtain witnesses on jurisdiction, before an inferior court to be designated
the part of the prosecutor. therein. The examination shall proceed notwithstanding
the absence of the prosecutor provided he was duly
An inadequate preparation may be allowed as a reason notified of the hearing. A written record of the
if the case, taken as a whole is novel, unusual and testimony shall be taken. (Sec. 13, Rule 119)
complex, due to the number of the accused or the
nature of the prosecution, that it would been Q: Where should this conditional examination be
unreasonable except an adequate preparation within made?
the limit set by the Rules.
A: It shall be made before the court where the case is
Q: What are the prohibited grounds for a continuance? pending and shall be conducted in the same manner as
an examination at the trial. It shall be made in the
A: presence of the accused who shall be notified of the
same.
1. Congestion of the court’s calendar due to lack
of preparation; or Q: How to secure the appearance of a material
2. Failure to obtain available witnesses on the part witness?
of the prosecutor.
A:
Conditional examination of witnesses even before trial
1. Either party may secure an order from the court
Witnesses for both the accused and the prosecution for a material witness to post bail for such sum
may be conditionally examined even before the trial of as may be deemed proper, if the court is
the case. A witness for the accused may for instance, be satisfied upon either proof or oath that a
sick or infirm and there is no reasonable ground to material witness will not testify when required;
believe that he will be able to attend the trial because 2. If the witness refuses to post bail, the court
of his condition. The witness, although not sick or shall commit him until he complies or is legally
infirm, may reside more than 100 km from the place of discharged after his testimony has been taken.
b. File the motion before the prosecution rests its
case.
Discharge of the accused as a state witness Evidence adduced during the discharge hearing
Sec. 16. Trial of several accused. – When two or more The evidence adduced in support of the discharge shall
accused are jointly charged with an offense, they shall automatically form part of the trial.
be tried jointly unless the court, in its discretion and
upon motion of the prosecutor or any accused, orders If the court denies the motion for discharge of the
separate trial for one or more accused. accused as a state witness, his sworn statement shall be
inadmissible in evidence.
Sec. 17. Discharge of accused to be state witness. –
When two or more persons are jointly charged with the Effect of discharge of an accused to be a state witness
commission of any offense, upon motion of the
prosecution before resting its case, the court may direct Q: What is the effect of discharge of an accused to be a
one or more of the accused to be discharged with their state witness?
consent so that they may be witnesses for the state
when, after requiring the prosecution to present A: The discharge of an accused shall amount to an
evidence and the sworn statement of each proposed acquittal and shall be a bar to another for the same
state witness at a hearing in support of the discharge, offense, except if the accused fails or refuses to testify
the court is satisfied that: against his co-accused in accordance with his sworn
statement constituting the basis for his discharge (Sec.
(a) There is absolute necessity for the testimony of 18, Rule 119)
the accused whose discharge is requested;
(b) There is no other direct evidence available for Mistake in charging the proper offense
the proper prosecution of the offense
committed, except the testimony of said Sec. 19 of Rule 119 contemplates the situation where
accused; there has been a mistake in charging the proper offense
(c) The testimony of said accused can be and this mistake has become manifest at any time
substantially corroborated in its material points; before judgment. Because of the mistake, the accused
(d) Said accused does not appear to be the most cannot be convicted of the offense charged, or any
guilty; and other offense necessarily included therein. The original
(e) Said accused has not at any time been case shall be dismissed upon filing of the proper
convicted of any offense involving moral information and the court shall commit the accused to
turpitude. answer for the proper offense. Although the original
case was dismissed, the accused shall not be discharged
Evidence adduced in support of the discharge shall if there is a good cause to detain the accused.
automatically form part of the trial. If the court denies
the motion for discharge of the accused as state Order of trial
witness, his sworn statement shall be inadmissible in
evidence. Q: What should be the order of the trial?
One or more of the accused tried jointly with the A:

others, may however, be discharged so that they may 1. The prosecution shall present its evidence first
be a state witness. Accordingly, the prosecutor shall a. To prove the offense charged
comply with the following: b. To prove the civil liability in the proper case
2. The accused will then present his evidence
a. File a motion for the discharge of the accused; a. To prove his defense
and
b. Damages sustained, if any arising from the from arraignment to the rendition of the judgment. This
issuance of a provisional remedy in the case right is subsumed under the right to meet the witnesses
3. The prosecution may present its rebuttal evidence against him face to face and other rights of the accused
unless the court allows it to present additional guaranteed in Sec. 14(2) of Bill of Rights.
evidence bearing on the main issue
4. The accused may present sur-rebuttal evidence, Q: What are the requisites for trial in absentia?
unless the court allows him to present additional
evidence bearing on the main issue A:
5. Upon submission of the evidence of the parties, the
case shall be deemed submitted for decision unless 1. The accused has already been arraigned;
the court directs them to argue only or to submit 2. The accused has been duly notified of the trial
written memoranda (Sec. 11, Rule 119) or hearings; and
3. The absence of the accused or his failure to
Re-opening of the proceedings appear is unjustified.
Q: Can the proceedings be re-opened? How? Q: What are the instances where the presence of the
accused is required?
A: At anytime before the finality of the judgment of
conviction, the judge may motu propio or upon motion A:
with hearing in either case, reopen the proceedings to
avoid a miscarriage of justice. The proceedings shall be a. At arraignment and plea, whether of innocence
terminated within 30 days from the order granting it. or of guilt;
b. During trial, whenever necessary for
A motion to reopen the case to receive further proofs identification purposes; and
was not provided in the old rules. c. At the promulgation of sentence, unless it is for
a light offense, in which case, the accused may
Q: What are the requirements for the reopening of the appear by counsel or representative. At such
case? stages of the proceedings, his presence is
required and cannot be waived.
A:
1. The reopening must be before the finality of a Rule on witness’ credibility
judgment of conviction
2. The order is issued by the judge on his own Contradictions between the contents of an affiant’s
initiative or upon motion affidavit and his testimony in the witness stand do not
3. The order is issued only after a hearing is conducted always militate against the witness’ credibility. Affidavit,
4. The order intends to prevent miscarriage of justice which are usually taken ex parte, are often incomplete
5. The presentation of additional evidence should be and inaccurate.
terminated within 30 days from the issuance of the
order. Comments and questions of the judge during the trial
NOTE: The participation by the defense counsel in The Court has acknowledged the right of a trial judge to
cross-examining the witness for the prosecution and in question witnesses with a view to satisfying his mind
the proceedings after the case was re-opened by the upon any material point which presents itself during the
judge without prior hearing does not amount to waiver trial of a case over which he presides. But not only
of the accused’s objection to the order reopening the should his examination be limited to asking
case—to be effective, a waiver must be certain and “clarificatory” questions, the right should be sparingly
unequivocal. and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither
TRIAL IN ABSENTIA interfering nor intervening in the conduct of the
trial. Here, these limitations were not observed. Hardly
An accused need not always be present in every hearing in fact can one avoid the impression that the
although it is his right to be present if he so desires Sandiganbayan had allied itself with, or to be more
precise, had taken the cudgels for the prosecution in that (1) the accused was in possession of an item or an
proving the case against Tabuena and Peralta…The object identified to be a prohibited or regulated drug,
“cold neutrality of an impartial judge” requirement of (2) such possession is not authorized by law, and (3) the
due process was certainly denied Tabuena and Peralta accused was freely and consciously aware of being in
when the court, with its overzealousness, assumed the possession of the drug. Accordingly, to sustain
dual role of magistrate and advocate. (Tabuena v. conviction, the testimonies of the prosecution
Sandiganbayan) witnesses were unequivocal, definite and
straightforward. More importantly, their testimonies
Corpus delicti in criminal cases were consistent in material respects with each other
and with other testimonies and physical evidence.
Q: What is corpus delicti? (People v. Tamayo y Tema).
A: Corpus delicti has been defined as the body, In all prosecutions for the violation of The Dangerous
foundation, or substance of a crime. The evidence of a Drugs Act, the existence of the prohibited drug has to
dead body with a gunshot wound on its back would be be proved. The chain of custody rule requires that
evidence that murder has been committed. testimony be presented about every link in the chain,
from the moment the item was seized up to the time it
Q: What are the 2 elements of corpus delicti? is offered in evidence. To this end, the prosecution must
ensure that the substance presented in court is the
A: Corpus delicti has two elements: same substance seized from the accused. (People v.
(a) that a certain result has been established, for Habana y Orante)
example, that a man has died; and
(b) that some person is criminally responsible for Yet, non-compliance with the procedure shall not
it. render void and invalid the seizure and custody of the
drugs only when: (1) such non-compliance is attended
The prosecution is burdened to prove corpus by justifiable grounds; and (2) the integrity and the
delicti beyond reasonable doubt either by direct evidentiary value of the seized items are properly
evidence or by circumstantial or presumptive evidence. preserved by the apprehending team. (People v. De
Guzman y Danzil)
But corpus delicti need not be proved by an autopsy
report of the dead victim’s body or even by the Acts of lasciviousness
testimony of the physician who examined such body.
While such report or testimony is useful for The elements of the crime of acts lasciviousness are: (1)
understanding the nature of the injuries the victim that the offender commits any act of lasciviousness or
suffered, they are not indispensable proof of such lewdness; (2) that it is done: (a) by using force and
injuries or of the fact of death. Nor is the presentation intimidation or (b) when the offended party is deprived
of the murder weapons also indispensable since the of reason or otherwise unconscious, or (c) when the
physical existence of such weapons is not an element of offended party is under 12 years of age; and (3) that the
the crime of murder. (People v. Tuniaco) offended party is another person of either sex.
Examples of essential elements of certain common Section 32, Article XIII, of the Implementing Rules and
offenses which the trial court should consider before Regulations of RA 7610 or the Child Abuse Law defines
rendering a judgment lascivious conduct, as follows: The intentional touching,
either directly or through clothing, of the genitalia,
Illegal Sale of Dangerous Drugs anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or
In a prosecution for illegal sale of dangerous drugs, the mouth, of any person, whether of the same or opposite
following elements must first be established: (1) proof sex, with an intent to abuse, humiliate, harass, degrade,
that the transaction or sale took place and (2) the or arouse or gratify the sexual desire of any person,
presentation in court of the corpus delicti or the illicit bestiality, masturbation, lascivious exhibition of the
drug as evidence. In a prosecution for genitals or pubic area of a person.
illegal possession of a dangerous drug, it must be shown
Rape recruitment and placement refers to “any act of
canvassing, enlisting, contracting, transporting, utilizing,
In the determination of the innocence or guilt of the hiring or procuring workers and includes referrals,
accused in rape cases, courts consider the following contract services, promising or advertising for
principles: (1) an accusation of rape can be made with employment, locally or abroad, whether for profit or
facility and while the accusation is difficult to prove, it is not.” In the simplest terms, illegal recruitment is
even more difficult for the accused, though innocent, to committed by persons who, without authority from the
disprove; (2) considering that in the nature of things, government, give the impression that they have the
only two persons are usually involved in the crime of power to send workers abroad for employment
rape, the testimony of the complainant should be purposes. The law imposes a higher penalty when the
scrutinized with great caution; and (3) the evidence for crime is committed by a syndicate as it is considered as
the prosecution must stand or fall on its own merits and an offense involving economic sabotage. Illegal
cannot be allowed to draw strength from the weakness recruitment is deemed committed by a syndicate if
of the evidence for the defense. carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in
The gravamen of the offense of rape is sexual congress carrying out any unlawful or illegal transaction,
with a woman by force and without consent. As enterprise or scheme defined under the first paragraph
provided in the Revised Penal Code, sexual intercourse of Article 38 of the Labor Code. (People v. Adeser y Rico)
with a girl below 12 years old is statutory rape. The two
elements of statutory rape are: (1) that the accused had For illegal recruitment in large scale to prosper, the
carnal knowledge of a woman; and (2) that the woman prosecution has to prove three essential elements, to
was below 12 years of age. Sexual congress with a girl wit: (1) the accused undertook a recruitment activity
under 12 years old is always rape. (People v. Lolos) under Article 13(b) or any prohibited practice under
Article 34 of the Labor Code; (2) the accused did not
Swindling have the license or the authority to lawfully engage in
the recruitment and placement of workers; and (3) the
For petitioners to be convicted of the crime of swindling accused committed such illegal activity against three or
under Article 316 (2) of the Revised Penal Code, the more persons individually or as a group. (People v.
prosecution had the burden to prove the confluence of Chua)
the following essential elements of the crime:
Lack of formal offer of evidence during the trial
1. that the thing disposed of be real property;
2. that the offender knew that the real property Documents which may have been identified and marked
was encumbered, whether the encumbrance is as exhibits during pre-trial or trial but which were not
recorded or not; formally offered in evidence cannot in any manner be
3. that there must be express representation by treated as evidence. Neither can such unrecognized
the offender that the real property is free from proof be assigned any evidentiary weight and value
encumbrance; and pursuant to the express mandate that the court shall
4. that the act of disposing of the real property be consider no evidence which has not been formally
made to the damage of another. (Llamas v. offered.
Court of Appeals)
C. DEMURRER TO EVIDENCE (Rule 119)
Illegal Recruitment
The demurrer to evidence filed by the accused maybe:
Illegal recruitment is committed when these two
elements concur: (1) the offenders have no valid license a. With leave of court; or
or authority required by law to enable them to lawfully b. Without leave of court
engage in the recruitment and placement of workers,
and (2) the offenders undertake any activity within the The power to grant leave to the accused to file a
meaning of recruitment and placement defined in demurrer is addressed to the sound discretion of the
Article 13(b) or any prohibited practices enumerated in trial court, and the purpose is to determine whether the
Article 34 of the Labor Code. Under Article 13(b),
accused in filing his demurrer is merely stalling the is deemed to have waived the right to present
proceedings. evidence. At that juncture, the court is called upon to
decide the case including its civil aspect, unless the
The motion for leave of court to file demurrer to enforcement of the civil liability by a separate civil
evidence shall specifically state its grounds and shall be action has been waived or reserved. (Hun Hyung Park v.
filed within a non-extendible period of five (5) days Eung Won Choi)
after the prosecution rests its case. The prosecution
may oppose the motion within a non-extendible period Not every motion to dismiss is a demurrer to evidence
of five (5) days from its receipt.
A demurrer to evidence must contain what is so
If leave of court is granted, the accused shall file the fundamental in every demurer. It must make reference
demurrer to evidence within a non-extendible period of to the insufficiency of the evidence of the prosecution
ten (10) days from notice. The prosecution may oppose and must make references to the evidence on record.
the demurrer to evidence within a similar period from Hence, a motion to dismiss not grounded upon the
its receipt. insufficiency of evidence is not a demurrer under Sec.
23 of Rule 19.
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be Q: How will you determine whether the pleading is
reviewable by appeal or by certiorari before judgment. one of demurrer to evidence or a motion to dismiss?
(Sec. 23 of Rule 119)
A: To determine whether the pleading filed is a demurer
Q: What is the consequence of the grant of demurrer? to evidence or a motion to dismiss, the Court must
consider:
A: The case is dismissed and the accused is as good as 1. the allegations in it made in good faith;
acquitted. 2. the stage of the proceeding at which it is filed; and
3. the primary objective of the party filing it.
Demurrer to evidence without leave of court
A demurrer to evidence assumes that the prosecution
A demurrer to evidence may also be filed by the has already rested its case. Hence, the prosecution’s
accused without leave of court. If the demurrer is motion for extension of time to make its formal offer
granted, the case is dismissed and the effect is an was granted by the court before the motion to dismiss
acquittal. by petitioner was filed. The prosecution has not hence,
rested its case.
If the same is denied, the accused waives the right to
present evidence and submits the case for judgment on Granting of demurrer to evidence is an acquittal
the basis of the evidence for the prosecution.
The prosecution cannot appeal from a ruling granting
Q: Is certiorari a proper remedy in case of denial of the the demurrer to evidence of the accused as it is
motion? equivalent to an acquittal, unless the prosecution can
sufficiently prove that the court’s action is attended
A: The general rule prevailing is that it does not lie to with grave abuse of discretion. Otherwise, the
review an order denying a demurrer to evidence, which constitutional right of the accused against double
is equivalent to a motion to dismiss, filed after the jeopardy will be violated.
prosecution has presented its evidence and rested its
case. Yet, certiorari may be availed of when the denial The demurrer to evidence in criminal cases, such as the
of a demurrer to evidence is tainted with “grave abuse one at bench, is “filed after the prosecution had rested
of discretion or excess of jurisdiction, or oppressive its case.” As such, it calls “for an appreciation of the
exercise of judicial authority.” evidence adduced by the prosecution and its sufficiency
to warrant conviction beyond reasonable doubt,
When a demurrer to evidence is filed without leave of resulting in a dismissal of the case on the merits,
court, the whole case is submitted for judgment on the tantamount to an acquittal of the accused.” (People v.
basis of the evidence for the prosecution as the accused Sandiganbayan, G.R. No. 167526)
Demurrer to evidence in a civil case vs. demurrer to 1. It must be written in the official language,
evidence in a criminal case 2. It must be personally and directly prepared by the
judge and
1. A demurrer to evidence in a civil case is anchored 3. signed by him and shall contain clearly and
upon failure of plaintiff to show that upon facts and distinctly:
the law, he is entitled to relief (Sec. 1, Rule 33, Rules a. a statement of the facts and;
of Court).A demurrer to evidence in criminal case is b. the law upon which it is based.
predicated upon insufficiency of evidence (Sec. 23,
Rule 199, Rules of Court). NOTE: The jurisdictional requirements before a
judgment may be validly rendered are jurisdiction over
2. A demurrer to evidence in civil case under Rule 33 the subject matter, the territory and the person of the
requires no prior leave of court. A demurrer to accused.
evidence in a criminal case may be filed with or
without leave of court. The parties to a litigation should be informed of how it
was decided, with an explanation of the factual and
3. In a civil case, when the demurrer is denied, the legal reasons that led to the conclusions of the trial
defendant does not lose his right to present his court. The losing party is entitled to know why he lost,
evidence. In a criminal case, the accused may so he may appeal to the higher court, if permitted.
adduce his evidence only when the demurrer that
was denied was filed with leave of court. When filed A decision that does not clearly and distinctively state
without leave of court and demurrer is denied, the the facts and the law on which it is based leaves the
accused waives his right to present evidence and parties in the dark as how it was reached and is
submits the case for judgment on the basis of the precisely prejudicial to the losing party, who is unable to
evidence for the prosecution. pinpoint the possible errors of the court for review by a
higher tribunal.
4. In a civil case, if the demurrer to evidence is
granted, the plaintiff may appeal and if the Q: What are the contents of a judgment of conviction?
dismissal is reversed, the defendant is deemed to
have waived his right to present his evidence. No A: If the judgment is of conviction, it shall state
appeal is allowed when the demurrer to evidence is
granted in a criminal case because the dismissal is (1) the legal qualification of the offense constituted by
deemed an acquittal. To allow appeal would be to the acts committed by the accused and the aggravating
put the accused in double jeopardy. or mitigating circumstances which attended its
commission;
(2) the participation of the accused in the offense,
CHAPTER XI whether as principal, accomplice, or accessory after the
JUDGEMENT, REMEDIES AFTER JUDGMENT OF fact;
CONVICTION AND PROVISIONAL REMEDIES (3) the penalty imposed upon the accused; and
(4) the civil liability or damages caused by his wrongful
I. JUDGMENT (Rule 120) act or omission to be recovered from the accused by
the offended party, if there is any, unless the
Q: What is judgment? enforcement of the civil liability by a separate civil
action has been reserved or waived.
A: Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged Q: How about when the judgment is of acquittal?
and the imposition on him of the proper penalty and
civil liability, if any. A: In case the judgment is of acquittal, it shall state:
Q: What are its requisites? a. whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely
A: failed to prove his guilt beyond reasonable doubt.
b. determine if the act or omission from which the civil
liability might arise did not exist. VARIANCE DOCTRINE:
Variance between the allegation and proof
NOTE: A judgment of acquittal is immediately final
Sec. 4. Judgment in case of variance between
Duplicitous complaint or information allegation and proof. – When there is variance
between the offense charged in the complaint or
Q: What is the rule when there are 2 or more offenses information and that proved, and the offense as
in a single information or complaint? charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the
A: The accused may move to quash the complaint or offense proved which is included in the offense
information if more than one offense is charged except charged, or of the offense charged which is included in
when a single punishment for various offenses is the offense proved.
prescribed by law (Rule 117, Sec. 3 (f))
The application of the above rules presupposes that the
Q: What if two or more offenses are charged in a single court rendering judgment has jurisdiction over the case
complaint or information but the accused fails to based on the allegations of the information (Pangilinan
object to it before trial? What is the effect of the v. CA).
same?
Thus, following the variance doctrine, an accused
A: When two or more offenses are charged in a single charged with qualified rape can be found guilty of the
complaint or information but the accused fails to object lesser crime of acts of lasciviousness committed against
to it before trial, the court may convict him of as many a child (People v. Sumingawa).
offenses as are charged and proved, and impose on him
the penalty for each offense, setting out separately the General Rule: An accused can only be convicted of the
findings of fact and law in each offense. crime with which he is charged.
Q: What if the accused fails to raise the issue of Exception: Variance Doctrine (People v. Batiancila).
multiple offenses under a single complaint during the
arraignment? When an offense includes or is included in another
A: It constitutes waiver, and the objection can no longer 1. An offense charged necessarily includes the offense
be raised on appeal. proved when some of the essential elements or
ingredients of the former, as alleged in the complaint
Judgment rendered by judge who did not or information, constitute the latter.
hear the case 2. And an offense charged is necessarily included in
the offense proved, when the essential ingredients
The validity of conviction is not adversely affected by of the former constitute or form part of those
the fact that the judge who rendered judgment was not constituting the latter.
the one who heard the witnesses.
Variance in the mode of the commission of the offense
The fact that the trial judge who rendered judgment
was not the one who had the occasion to observe the A variance in the mode of commission of the offense is
demeanor of the witnesses during trial, but merely binding upon the accused if he fails to object to
relied on the records of the case, does not render the evidence showing that the crime was committed in a
judgment erroneous, especially where the evidence on different manner than what was alleged. In the present
record is sufficient to support its conclusion. case, Abello did not object to the presentation of
evidence showing that the crime charged was
committed in a different manner than what was stated
in the Information. Thus, the variance is not a bar to
Abello’s conviction of the crime charged in the
Information (People v. Abello).
scheduled promulgation and if he proves that his
Promulgation of judgment absence was for a justifiable cause, he shall be allowed
to avail of said remedies within fifteen (15) days from
Sec. 6. Promulgation of judgment. – The judgment is notice.
promulgated by reading it in the presence of the
accused and any judge of the court in which it was Modification of judgment
rendered. However, if the conviction is for a light
offense, the judgment may be pronounced in the A judgment of conviction may be modified or set aside
presence of his counsel or representative. When the upon motion of the accused, before the judgment
judge is absent or outside the province or city, the becomes final or before appeal is perfected.
judgment may be promulgated by the clerk of court.
When judgment becomes final
If the accused is confined or detained in another
province or city, the judgment may be promulgated by Q: When does a judgment become final?
the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention A:
upon request of the court which rendered the
judgment. The court promulgating the judgment shall a. After the lapse of the period for appeal; or
have authority to accept the notice of appeal and to b. When the sentence has been partially or totally
approve the bail bond pending appeal; provided, that satisfied of served; or
if the decision of the trial court convicting the accused c. When the accused has waived in writing his
changed the nature of the offense from non-bailable right to appeal; or
to bailable, the application for bail can only be filed d. Has applied for probation.
and resolved by the appellate court.
Entry of judgment
How accused is notified of the promulgation
After a judgment has become final, it shall be entered in
The proper clerk of court shall give notice to the accordance with Rule 36.
accused personally or through his bondsman or warden
and counsel, requiring him to be present at the II. NEW TRIAL OR RECONSIDERATION (RULE 121)
promulgation of the decision. If the accused was tried in
absentia because he jumped bail or escaped from Section 1. New trial or reconsideration. – At any time
prison, the notice to him shall be served at his last before a judgment of conviction becomes final, the
known address. court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a
Rule if the accused fails to appear in the promulgation new trial or reconsideration.
of judgment
The accused may file a motion for new trial or a motion
In case the accused fails to appear at the scheduled for reconsideration of the judgment adverse to him.
date of promulgation of judgment despite notice, the Yet, the court need not wait from the accused because
promulgation shall be made by recording the judgment it may allow a new trial or a reconsideration of the
in the criminal docket and serving him a copy thereof at judgment but with the consent of the accused.
his last known address or thru his counsel.
Q: When should the motion be filed?
If the judgment is for conviction and the failure of the
accused to appear was without justifiable cause, he A: At any time before the judgment of conviction
shall lose the remedies available in these rules against becomes final.
the judgment and the court shall order his arrest.
Within fifteen (15) days from promulgation of The 2 motions apply only when the judgment is one of
judgment, however, the accused may surrender and file conviction and it is the accused not the prosecution
a motion for leave of court to avail of these remedies. which avails of the same.
He shall state the reasons for his absence at the
Notice of the motion
Q: What are the grounds for a new trial?
Notice of the motion for new trial or reconsideration
A: shall be given to the prosecutor.
Sec. 2. Grounds for a new trial. – The court shall grant When hearing of the motion is required
a new trial on any of the following grounds:
Sec. 5. Hearing on motion. – Where a motion for new
(a) That errors of law or irregularities prejudicial trial calls for resolution of any question of fact, the
to the substantial rights of the accused have court may hear evidence thereon by affidavits or
been committed during the trial; otherwise.
(b) That new and material evidence has been
discovered which the accused could not with Effects of granting a new trial or reconsideration
reasonable diligence have discovered and
produced at the trial and which if introduced Q: What are the effects of granting a new trial or
and admitted would probably change the reconsideration?
judgment.
A: The effects would depend on the ground availed of in
Q: What are the requisites for newly discovered granting the new trial.
evidence?
(a) When a new trial is granted on the ground of errors
A: of law or irregularities committed during the trial, all
the proceedings and evidence affected thereby shall be
1. The evidence must have been discovered after set aside and taken anew. The court may, in the interest
the trial; of justice, allow the introduction of additional evidence.
2. It could not have been previously discovered (b) When a new trial is granted on the ground of newly-
and produced at the trial when with the discovered evidence, the evidence already adduced
exercise of reasonable diligence; shall stand and the newly-discovered and such other
3. It is new and material evidence; and evidence as the court may, in the interest of justice,
4. If introduced and admitted, if would probably allow to be introduced shall be taken and considered
change the judgment. together with the evidence already in the record.
(c) In all cases, when the court grants new trial or
Q: What are the grounds for reconsideration of the reconsideration, the original judgment shall be set aside
judgment? or vacated and a new judgment rendered accordingly
(Sec. 6, Rule 121 of the Rules of Court).
A:
The Neypes Rule
1. Errors of law in the judgment which requires no
further proceedings; and To standardize the appeal periods provided in the Rules
2. Errors of fact which also requires no further and to afford litigants fair opportunity to appeal their
proceedings. cases, the Court deems it practical to allow a fresh
period of 15 days within which to file the notice of
Form of the motions appeal in the Regional Trial Court, counted from receipt
of the order dismissing a motion for a new trial or
The motion for new trial or reconsideration shall be in motion for reconsideration.
writing and shall state the grounds on which it is based.
If based on a newly-discovered evidence, the motion Henceforth, this “fresh period rule” shall also apply to
must be supported by affidavits of witnesses by whom Rule 40 governing appeals from the Municipal Trial
such evidence is expected to be given or by duly Courts to the Regional Trial Courts; Rule 42 on petitions
authenticated copies of documents which are proposed for review from the Regional Trial Courts to the Court of
to be introduced in evidence. Appeals; Rule 43 on appeals from quasi-judicial agencies
to the Court of Appeals and Rule 45 governing appeals
by certiorari to the Supreme Court. The new rule aims given the opportunity to be heard on behalf of the
to regiment or make the appeal period uniform, to be People.
counted from receipt of the order denying the motion
for new trial, motion for reconsideration (whether full Although the petition for review before the Court of
or partial) or any final order or resolution. Appeals was filed with the conformity of the Assistant
City Prosecutor, such conformity is insufficient, as the
NOTE: The Neypes rule was expressly declared to be rules and jurisprudence mandate that the same should
applicable to appeals under Rules 40, 41, 42, 43, and 45. be filed by the Solicitor General (People v. Duca).
If the appeal in criminal case is predicated upon either
Rules 42 or Rule 45, it is likewise submitted that the While a private prosecutor may be allowed to intervene
Neypes rule should also apply. in criminal proceedings on appeal in the Court of
Appeals or the Supreme Court, his participation is
III. APPEALS subordinate to the interest of the People, hence, he
(Rules 122, 124 and 125) cannot be permitted to adopt a position contrary to
that of the Solicitor General. To do so would be
Q: Is appeal a natural right? tantamount to giving the private prosecutor the
direction and control of the criminal proceeding,
A: The right to appeal is not a natural right nor a part of contrary to the provisions of law (Cariño v. De Castro).
due process but merely a statutory privilege and may be
exercised only in the manner and in accordance with Subject matter for review of appeal
the provisions of the law. Once it is granted by law, its
suppression would be a violation of due process. It is a well-settled rule that an appeal in a criminal case
throws the whole case wide open for review and that it
Q: Who may appeal? becomes the duty of the Court to correct such errors as
may be found in the judgment appealed from, whether
A: Any party may appeal from a judgment or final order, they are assigned as errors or not.
unless the accused will be placed in double jeopardy.
Observe that the subject of the appeal is a judgment or This is in contrast with the general rule in civil cases
a final order. where as a rule, no error will be considered by the
appellate court unless stated in the assignment of
Since the rule refers to “any party,” the prosecution errors except:
may appeal provided the accused will not be placed in a. The error affects the jurisdiction of the court
double jeopardy. over the subject matter
b. The error affects the validity of the judgment
Q: May an accused appeal from a judgment of appealed from or the proceedings therein
conviction? c. The error is closely related or dependent on an
assigned error and properly argued in the brief
A: Yes. But when he appeals his conviction, he waives d. The error is a plain error or a clerical error.
the prosecution on the prohibition against double e. The appellate court finds that the consideration
jeopardy and runs the risk of being sentenced to a of errors not assigned on appeal is necessary in
penalty higher than that imposed by trial court. arriving at a complete and just resolution of the
case or to serve the interests of justice or to
Q: In the case of People of the Philippines, who may avoid piecemeal justice
institute proceedings before the CA or the SC?
Change of theory on appeal
A: Only the State, through its appellate counsel, the
OSG has the sole right and authority to institute A party cannot change his theory on appeal nor raise in
proceedings before the CA or the SC. the appellate court any question of law or of fact that
was not raised in the court below or which was not
In criminal cases, as in the instant case, the Solicitor within the issue raised by the parties in their pleadings.
General is regarded as the appellate counsel of the
People of the Philippines and as such, should have been
In a long line of cases, this Court held that points of law, (a) To the Regional Trial Court, in cases decided by the
theories, issues and arguments not adequately brought Metropolitan Trial Court, Municipal Trial Court in Cities,
to the attention of the trial court ordinarily will not be Municipal Trial Court, or Municipal Circuit Trial Court;
considered by a reviewing court as they cannot be (b) To the Court of Appeals or to the Supreme Court in
raised for the first time on appeal because this would be the proper cases provided by law, in cases decided by
offensive to the basic rules of fair play, justice and due the Regional Trial Court; and
process. (c) To the Supreme Court, in cases decided by the Court
of Appeals (Sec 2, Rule 122).
Factual findings; credibility of witnesses
How to appeal
Q: What is the general rule regarding the factual
findings of the lower courts? (a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the Regional Trial
A: An established rule in appellate review is that the Court in the exercise of its original jurisdiction, shall be
trial court’s factual findings – including its assessment of taken by filing a notice of appeal with the court which
the credibility of the witnesses, the probative weight of rendered the judgment or final order appealed from
their testimonies, and the conclusions drawn from the and by serving a copy thereof upon the adverse party.
factual findings – are accorded great respect and even (b) The appeal to the Court of Appeals in cases decided
conclusive effect if duly supported by evidence. These by the Regional Trial Court in the exercise of its
factual findings and conclusions assume greater weight appellate jurisdiction shall be by petition for review
if they are affirmed by the CA. under Rule 42.
(c) The appeal to the Supreme Court in cases where
Q: What is the reason for the rule? the penalty imposed by the Regional Trial Court is
reclusion perpetua, or life imprisonment, or where a
A: The trial court’s assessment deserves great weight, lesser penalty is imposed but for offenses committed on
and is even conclusive and binding, if not tainted with the same occasion or which arose out of the same
arbitrariness or oversight of some fact or circumstance occurrence that gave rise to the more serious offense
of weight or influence. Having the advantage of directly for which the penalty of death, reclusion perpetua, or
observing the] deportment and manner of testifying [of life imprisonment is imposed, shall be by filing a notice
the witness, the trial court is in a better position than of appeal in accordance with paragraph (a) of this
the appellate court to evaluate testimonial evidence section.
properly. (d) No notice of appeal is necessary in cases where the
death penalty is imposed by the Regional Trial Court.
Q: What is the exception to this? The same shall be automatically reviewed by the
Supreme Court as provided in section 10 of this Rule.
A: However, if there is any indication that the trial court
overlooked certain facts or circumstances which would Except as provided in the last paragraph of section 13,
substantially affect the disposition of the case, we will Rule 124, all other appeals to the Supreme Court shall
not hesitate to review the same. In this case, we find it be by petition for review on certiorari under Rule 45
imperative to review the factual findings of the trial (Sec. 3, Rule 122)
court because of certain inconsistencies in the
testimonies of the prosecution witnesses on material When appeal is to be taken
points.
An appeal must be taken within fifteen (15) days from
NOTE: It has been "consistently held that appellate promulgation of the judgment or from notice of the
courts, as a rule, will not disturb the findings of the trial final order appealed from. This period for perfecting an
court on the credibility of witnesses. appeal shall be suspended from the time a motion for
new trial or reconsideration is filed until notice of the
Where to appeal order overruling the motion has been served upon the
accused or his counsel at which time the balance of the
The appeal may be taken as follows: period begins to run (Sec. 6, Rule 122)

from the judgment of a Metropolitan Trial Court,
Service of notice of appeal Municipal Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court to withdraw his appeal,
If personal service of the copy of the notice of appeal provided a motion to that effect is filed before rendition
can not be made upon the adverse party or his counsel, of the judgment in the case on appeal, in which case the
service may be done by registered mail or by judgment of the court of origin shall become final and
substituted service pursuant to sections 7 and 8 of Rule the case shall be remanded to the latter court for
13 (Sec. 6, Rule 122). execution of the judgment.
Transmission of the papers to appellate court Appeal not mooted by accused’s release on parole
Sec. 8. Transmission of papers to appellate court upon The appeal was not mooted by accused-appellant’s
appeal. – Within five (5) days from the filing of the release on parole. His release only meant that,
notice of appeal, the clerk of court with whom the according to the Board, he had already served the
notice of appeal was filed must transmit to the clerk of minimum penalty imposed on him and that he was
court of the appellate court the complete record of the “fitted by his training for release, that there [was]
case, together with said notice. The original and three reasonable probability that [he would] live and remain
copies of the transcript of stenographic notes, together at liberty without violating the law and that such
with the records, shall also be transmitted to the clerk release [would] not be incompatible with the welfare of
of the appellate court without undue delay. The other society.” Should he violate the conditions of his parole,
copy of the transcript shall remain in the lower court. accused-appellant may be ordered rearrested, to serve
the remaining unexpired portion of the maximum
Sec. 9. Appeal to the Regional Trial Courts. – sentence.
(a) Within five (5) days from perfection of the appeal, Parole refers to the conditional release of an offender
the clerk of court shall transmit the original record to from a correctional institution after he serves the
the appropriate Regional Trial Court. minimum term of his prison sentence. The grant thereof
does not extinguish the criminal liability of the offender.
(b) Upon receipt of the complete record of the case, Parole is not one of the modes of totally extinguishing
transcripts and exhibits, the clerk of court of the criminal liability under Article 89 of the Revised Penal
Regional Trial Court shall notify the parties of such fact. Code (People v. Abesamis)
(c) Within fifteen (15) days from receipt of said notice, Effect of appeal by any of several accused
the parties may submit memoranda or briefs, or may be
required by the Regional Trial Court to do so. After the An appeal taken by one or more of several accused shall
submission of such memoranda or briefs, or upon the not affect those who did not appeal, except insofar as
expiration of the period to file the same, the Regional the judgment of the appellate court is favorable and
Trial Court shall decide the case on the basis of the applicable to the latter (People v. Gandia).
entire record of the case and of such memoranda or
briefs as may have been filed. Although the rule states that a favorable judgment shall
benefit those who did not appeal, we have held that a
Withdrawal of appeal literal interpretation of the phrase "did not appeal" will
not give justice to the purpose of the provision. It
Notwithstanding perfection of the appeal, the Regional should be read in its entirety and should not be
Trial Court, Metropolitan Trial Court, Municipal Trial myopically construed so as to defeat its reason, i.e., to
Court in Cities, Municipal Trial Court, or Municipal benefit an accused who did not join in the appeal of his
Circuit Trial Court, as the case may be, may allow the co-accused in case where the appellate judgment is
appellant to withdraw his appeal before the record has favorable.58
been forwarded by the clerk of court to the proper
appellate court as provided in section 8, in which case, In fact, the Court has at various times applied the
the judgment shall become final. The Regional Trial foregoing provision without regard to the filing or non-
Court may also, in its discretion, allow the appellant filing of an appeal by a co-accused, so long as the
judgment was favorable to him. In such cases, the co- based only on the ground of newly-discovered evidence
accused already withdrew his appeal, failed to file an (Sec. 12, Rule 124).
appellant’s brief, or filed a notice of appeal with the
trial court but eventually withdrew the same. Even Dismissal of appeal by CA
more, in these cases, all the accused appealed from the
judgment of conviction but for one reason or another, The Court of Appeals may also, upon motion of the
their conviction had already become final and appellee or motu proprio, dismiss the appeal if the
executory. Nevertheless, the Court still applied to them appellant escapes from prison or confinement, jumps
the favorable judgment in favor of their co-accused. bail or flees to a foreign country during the pendency of
Therefore, we cannot find a reason to treat Lindong the appeal (Sec. 8, Rule 124).
differently, especially so in this case where the public
officer accused of violating the anti-graft law has been Rule 124, Section 8, paragraph 2 of the same Rules
acquitted, and the appeal by Lindong was dismissed on allows the Court of Appeals, upon motion of the
a technicality (Constantino v. Sandiganbayan). appellee or motu proprio, to dismiss the appeal of the
accused-appellant who eludes the jurisdiction of the
Appeal from the civil aspect courts over his person. The Court of Appeals may also,
upon motion of the appellee or motu proprio, dismiss
The appeal of the offended party from the civil aspect the appeal if the appellant escapes from prison or
shall not affect the criminal aspect of the judgment or confinement, jumps bail or flees to a foreign country
order appealed from. during the pendency of the appeal (People v. Taruc).
The appeal period accorded to the accused should also Ground for reversal of judgment or its modification
be available to the offended party who seeks redress of
the civil aspect of the decision," the period to appeal No judgment shall be reversed or modified unless the
granted to petitioner Ching is the same as that granted Court of Appeals, after an examination of the record
to the accused. and of the evidence adduced by the parties, is of the
opinion that terror was committed which injuriously
Period to apply for probation affected the substantial rights of the appellant (Sec. 10,
Rule 14).
An application for probation must be made within the
period for perfecting an appeal, and the filing of the Review of decisions of the SC
application after the time of appeal has lapsed is
injurious to the recourse of the applicant. The procedure for the review by the SC of decisions in
criminal cases rendered by CA shall be the same as in
Stay of execution civil cases (Sec. 2, Rule 124).
Upon perfection of the appeal, the execution of the Applicability of the rules in the CA to the SC
judgment or final order appealed from shall be stayed
as to the appealing party (Sec. 11 (c), Rule 122). Although Rule 124, Section 8 particularly applies to the
Court of Appeals, it has been extended to the Supreme
The benefit of the stay of execution afforded to a co- Court by Rule 125, Section 1 of the Revised Rules of
accused who timely files an appeal cannot b extended Criminal Procedure.
to those who fail to file the same
Rule if the opinion of the SC en banc is equally divided
Power of the CA to receive evidence
When the Supreme Court en banc is equally divided in
The Court of Appeals shall have the power to try cases opinion or the necessary majority cannot be had on
and conduct hearings, receive evidence and perform whether to acquit the appellant, the case shall again be
any and all acts necessary to resolve factual issues deliberated upon and if no decision is reached after re-
raised in cases (a) falling within its original jurisdiction, deliberation, the judgment of conviction of lower court
(b) involving claims for damages arising from provisional shall be reversed and the accused acquitted (Sec. 3 of
remedies, or (c) where the court grants a new trial Rule 125).
security for the satisfaction of any judgment that may
IV. PROVISIONAL REMEDIES IN CRIMINAL CASES be recovered from the accused in the following cases:
Availability of provisional remedies (a) When the accused is about to abscond from the
Philippines;
The provisional remedies in civil actions, insofar as they (b) When the criminal action is based on a claim for
are applicable, may be availed of in connection with the money or property embezzled or fraudulently
civil action deemed instituted with the criminal action misapplied or converted to the use of the accused who
(Sec. 1, Rule 127). is a public officer, officer of a corporation, attorney,
factor, broker, agent or clerk, in the course of his
When a criminal action is instituted, the civil action for employment as such, or by any other person in a
the recovery of civil liability arising from the offense fiduciary capacity, or for a willful violation of duty;
charged shall be deemed instituted with the criminal (c) When the accused has concealed, removed, or
action unless the offended party waives the civil action, disposed of his property, or is about to do so; and
reserves the right to institute it separately or institutes (d) When the accused resides outside the Philippines.
the civil action prior to the criminal action (Sec. 1, Rule
111). Now, since there is a civil action that goes with the NOTE: The grounds for preliminary attachment in a
criminal action, provisional remedies may be availed of criminal case are not as verified as the grounds for
in connection with the civil action. preliminary attachment in a civil case.
To avail of the remedy in a criminal action, it must be In letter b, preliminary attachment may be availed of
one with the corresponding civil liability. If there is a without the need for showing that the accused has
civil liability, the civil action must be one arising from concealed, removed, or disposed of his property or is
the offense charged and which is instituted in the said about to do so. What need to be shown are:
criminal action. a. When the criminal action is based on a claim for
money or property embezzled or fraudulently
If the civil action has been waived, reversed, or misapplied or converted to the use of the
instituted separately, the provisional remedy applicable accused
may not be availed of in criminal action. Instead, the b. That the accused occupies any positions
provisional remedy should be applied for in the mentioned in Sec.2 of Rule 127 or that he
separate civil action instituted. committed a willful violation of duty.
Since provisional remedies are available in connection

with the civil action properly instituted in the criminal
action, the offended party of the accused attached as --END--
security for the satisfaction of any judgment that may
be recovered from the accused (Sec. 2, Rule 127).
Q: What are these provisional remedies?
A:
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support pendente lite
When preliminary attachment is available
When the civil action is properly instituted in the

criminal action as provided in Rule 111, the offended
party may have the property of the accused attached as

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NOTES ON CRIMINAL PROCEDURE

UNIVERSITY OF SANTO TOMAS

Chapter I Q: Distinguish between the adversarial system and the

Facultad de Derecho Civil 10

A: It shall b accompanied by the affidavits of the complaint

Anti-Money Laundering cases Q: What shall be done during the preliminary

Summary Procedure in criminal cases A: It shall not prejudice him.

Q: When is the pre-trial held? DEMURRER

Pre-trial Order A: It is the adjudication by the court on the guilt or

A: Within 30 days from the receipt of the pre-trial POST-JUDGMENT REMEDIES

Prosecution of defamation Q: What is an information?

Complaint Q: What are the distinctions between a complaint and

Q: What is the role of private offended parties in

Facultad de Derecho Civil 20

A: It is when he voluntarily entered a plea when

Facultad de Derecho Civil 21

It must be with leave Amendment before 1. Civil and

Art. 2177. Responsibility for fault or negligence under the

(1) Freedom of religion;

Facultad de Derecho Civil 27

Facultad de Derecho Civil 28

NOTE: A Preliminary Investigation (PI) is not the

A: It has the effect of depriving him of his right to due A: No.

PROBABLE CAUSE A: In such case, there are 2 ways of initiating a criminal

Dismissal of the complaint or issuance of a subpoena Clarificatory hearing if necessary

Facultad de Derecho Civil 41

Facultad de Derecho Civil 42

In Filemon A. Verzano v. Francis D. Paro, the SC clarified I. ARREST (RULE 113)

Facultad de Derecho Civil 45

Preliminary Inquiry v. Preliminary Investigation Method of arrest with a warrant

People v. Gabo When making an arrest by virtue of a warrant, the

G.R: A warrant is required before an arrest is made. IN FLAGRANTE DELICTO ARREST

XPN: Warrantless arrest. Q: What is the basis of in flagrante delicto?

Facultad de Derecho Civil 47

A: An arrest may be made on any day and at any time of

Search warrants involving heinous crimes and others

Section 5 of Rule 126 of the Rules of Court 1. U.S v. Darensbourg

Facultad de Derecho Civil 54

Duty of the judge Objection to issuance or service of a warrant

Petition for certiorari for unwarranted quashal of a A:

Facultad de Derecho Civil 58

Valmonte v. De Villa Entrapment and Instigation

“Under exceptional circumstances, as where the ENTRAPMENT INSTIGATION

Facultad de Derecho Civil 60

People v. Nuevas a. The law enforcement officer in search of

A: An order requiring the owner of seized property to file

A: 1. The right exists;

Chapter VI When a person indicted for an offense is arrested, he is

In the Matter of the Petition for Habeas Corpus of

Court cannot require arraignment before the FORMS OF BAIL

Q: When is bail a matter of right? Q: What if the record is already transmitted?

A: A: Then, the application shall be filed with the said

Remedy when bail is denied

Facultad de Derecho Civil 72

Narciso v. Sania Romana-Cruz

CAPITAL OFFENSES (b) Where the grant of bail is a matter of discretion, or

Forfeiture of bail If the penalty imposed by the trial court is

Q: What are the rights of the accused? PRESUMPTION OF INNOCENCE

A: Sec. 14 (2) of Art. III of the 1987 Constitution of the

Facultad de Derecho Civil 77

Facultad de Derecho Civil 79

Facultad de Derecho Civil 83

(2) delay resulting from trials with respect to charges