How do you charge?

o For direct contempt, there is no need to charge. You just need

to disobey or disrespect.
o For indirect contempt, there are two ways:

1. Formal charge of the judge motu propio

2. Upon a verified complaint filed and docketed

separately
o Where do you file case for indirect contempt?

If against an RTC, file in the RTC

If against MTC, either:

RTC

Or MTC, subject to appeal to RTC

X had a main case pending in an RTC branch in Makati. X obtained
a preliminary injunction but the other party refused to comply.
Can he file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:

Let them proceed separately

File a motion to consolidate.

What is your remedy for direct contempt?
o Its immediately executory, so you can stay its execution by
posting a bond.
o File a petition for certiorari or prohibition based on GADALEJ.
What is your remedy for indirect contempt?
o Remedy is an appeal.
o Judgment will only be stayed from being executed by posting a
bond.
What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days. Fine
not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day.
Fine not
exceeding 200.
Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.

When is imprisonment imposed?

o When the contempt stems from the refusal or omission to do
an act which is yet in the power of the respondent to perform
he may be imprisoned by the court until he performs it
What is difference between criminal and civil contempt?
o Criminal contempt disrespect of the court/judiciary
o Civil contempt violation of right of other party
o Can there be administrative contempt? See below (QJAs)
o In case of absence of rules in QJA, what is the rule?

Venue is RTC where the contemptuous act was

performed (default)

Rules of Court apply

PART II: CRIMINAL PROCEDURE

General matters, jurisdiction

87

When did Rules on Criminal Procedure take effect?

o Dec 1, 2000
What is the rule on venue and jurisdiction?
o VENUE IS JURISDICTIONAL. The place of commission
determines jurisdiction.
o Contrast with civil cases where these are separate concepts.
o The crime of stabbing was committed in Makati; where can
it be filed?

ONLY in the courts of Makati.

o What is the exception?

Transitory and continuing offenses, wherein one or

more of the elements happened in more than one
venue.

Ex. Estafa, where the elements may be committed in

different places (ex. misappropriation in one place
and damage in another).

Ex. BP22 either place of issue, or where the check

bounced
Can an offense be committed outside the Philippines yet be filed
here?
o Yes.

Exception to DARs exclusive and original jurisdiction

are matters pertaining to just compensation which
goes to the courts

Also and more importantly the RTC as special

Agrarian Reform Court also has exclusive and original
jurisdiction for prosecution of all criminal cases under
the DAR Law
What is the jurisdiction of the Sandiganbayan?
o 1. The accused is at least a Salary Grade 27 employee.
o 2. And the office must be a constitutive element of the offense.
o Can you be charged of offenses falling under the RPC?

Yes.
Can there be instances when you are not SG27 and still be under
the SB jurisdiction?
o Yes, if there is an express provision.
o Serrano: UP Student Reagent is a public officer under the
SBs jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the first
part of 4a only covers officials SG27 and above, the second
part covers officers whose positions may not be SG27 and
higher, but who are by express provision of law are placed
under the SB.

Sec 4a(1g) gives the SB jurisdiction over officers in

State-owned universities [Student Reagent is part of
the board]
What if the public officer is not SG27 but the office was a
constitutive element of the offense? Which court has jurisdiction?
o Regular courts, subject to appeal before the SB.
o Because the SB has both original and appellate jurisdiction.
What if there is one public officer falling under the SB jurisdiction
and the other is not?
o They can both be charged as co-accused under the SB if at
least one is SG27.
o Esquivel v. OMB: There was a session in Sanggunian
involving both a Municipal Mayor and a Barangay Captain.
The MM was charged in the SB (since he was SG27) and the
Brgy. Captain was charged as co-accused, even if he was not
SG27. HELD: Valid, because at least one of the co-accused
was SG27.

o
o

1. Exceptions under article 2 of the RPC

2. Under the Human Security Law (Sec. 49)

Covers acts of terrorism

Even if the act was committed outside the Philippines

(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)

Act against Philippine citizens or against a specific

ethnic group.
But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o No, its not an exception, even if there are instances like the
Ampatuan case being heard in Manila instead of
Maguindanao, or Mayor Sanchez case being heard in Pasig
instead of Laguna.
o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o Where is this rule allowing transfer of hearing found?

Found in the Constitution, and subject to approval of

the SC.
What is the jurisdiction of courts under RA 7691?
o RTC: Penalty exceeds six years imprisonment

W/N committed in MM or outside MM does not matter

at all.

Regardless of fine or accessory penalty.

o MTC: Penalty does not exceed six years imprisonment.
o What if the penalty consists of just a fine?

SC Circular 09-94

If the fine exceeds 4,000 pesos, RTC has jurisdiction.

If it does not exceed 4,000 pesos, the MTC has

jurisdiction.
What is the jurisdiction of Special Agrarian Court?
o This is important because there can be a penalty for its
violation.
o DAR court has exclusive jurisdiction over all matters pertaining
to the DAR Law

88

What if a co-accused is a private party?

o Yes, the SB can have jurisdiction over him.
Which court has jurisdiction to issue hold departure orders?
o Monejar: An MTC CANNOT. Only an RTC can issue a hold
departure order.
o Circular 39-97 Hold Departure Orders by RTC only apply to
offenses cognizable by second level courts.
o But there are instances when the DOJ Secretary can issue
a hold departure order, right?

Yes, but this is not under the law but under the
powers of the Executive.

There must be probable cause for the DOJ to issue

one.
o What is the difference between a HDO and a watch list?

HDO prevents you from leaving.

Watch list youre only being watched, but you can

leave.
What determines jurisdiction of the court?
o It is determined by the allegations in the information
o And any one of the ingredients of the offense or the offense
itself must be committed within the territorial jurisdiction of the
court.
What is the concept of a prohibited second MR?
o As a rule, a second MR is a prohibited pleading.
o Padiola: Such motion is prohibited and will not be allowed
except 1) for ordinarily persuasive reasons and 2) only after
express leave has been obtained.
o A wrong mode of appeal under Rule 56 will cause the
dismissal of the case.
o Does dismissal of a criminal charge cover dismissal of an
administrative case?

No. It does not prevent the continuation of an

administrative action.

The degree of evidence is different (proof beyond

reasonable doubt and substantial evidence)
What is the jurisdiction of the OMB?
o Covers any act of malfeasance/misfeasance or omission by a
public officer.

89

It does not have to be in related to an office. The mere fact

that you are a public officer means that the OMB has
jurisdiction.
o Is the OMB a court?

No, its an investigative body.

What is the difference between the powers of investigation of the
OP and the OMB?
o Unlike the Office of the Prosecutor, which can only act upon an
affidavit complaint, while the OMB can investigate upon:

Own initiative, even without a formal complaint

Inquiry into acts of government

o Method of filing a complaint before the OMB is direct, informal,
speedy, and inexpensive.
Just sufficient information is
needed.
Which has primary jurisdiction to prosecute cases cognizable by
the SB OP or the OMB?
o The OMB. The OMB has primary jurisdiction over cases
cognizable by the SB. He can take over at whatever stage of
investigation by another prosecutor.
What is the Office of the Special Prosecutor?
o The OSP is merely a component of the office of the OMB and
may only act upon authority by the OMB.
o Without authority, the OSP cannot file an information
o The OMBs power to prosecute carries with it the power to file
an information
How do you review the actions of the OMB?
o Ordinarily, it can be reviewed by the CA under Rule 43 (for
QJAs).
o If it involves a criminal case and there is GADALEJ, you go to
the SC.
o Which decisions of the OMB in administrative cases are
unappeallable?

1. Public censure, reprimand,

2. Suspension of not more than 1 month

3. Fine of not more than 1 month salary

Can a case be dismissed outright by the OMB?
o Yes, for want of palpable merit.
Can the OMB prosecute cases within the jurisdiction of regular
courts?

o The powers granted to the OMB are very broad, so it can.

Who represents the people during trial?
o Office of the Prosecutor.
Who represents the people during appeals?
o Solicitor general
What is controlling in determining the age of a child in conflict with
the law?
o Remember, below 15 years of age, he is exempt
o 15 to below 18, exempt if without discernment

If with discernment, go through juvenile law

o What controls is NOT the age at the time of promulgation of
judgment, but the age at the time of commission of the offense.
What exceptional circumstances call justify an injunction to
restrain criminal prosecution? (IMPT)
o 1. To afford adequate protection to the constitutional rights of
the accused
o 2. Necessary for orderly administration of justice or to avoid
oppression/multiplicity of actions
o 3. Double jeopardy is clearly apparent
o 4. Charges are manifestly false and motivated by lust for
vengeance
o 5. When there is clearly no prima facie case against the
accused and a motion to quash on that ground was denied

Rule 110 institution of criminal actions

When does distinguishing between offenses committed in and

outside of MM matter?
o If for purposes of jurisdiction of courts, there is no need to
distinguish between MM and Outside MM (OMM), for purposes
of institution of the criminal complaint, you will have to
distinguish between MM/Chartered City (CC) and OMM.

Requiring PI
Not requiring PI
Falling under Rule
on summary proc.
(ex. BP22)

MM/CC
Office of the Prosecutor
Office of the Prosecutor
Office of the Prosecutor

OMM/OCC
Office of the Prosecutor
Provincial
Prosecutor/MTC
Provincial
Prosecutor/MTC

90

So who can conduct a preliminary investigation?

o 1. Prosecutor.

The old rule which includes an MTC judge was

already amended.
o 2. Ombudsman.
Can there be direct filing in a Metropolitan TC (Met. C)?
o No. Just a MTC (Municipal Trial Court).
o Because only MM/CCs have Metropolitan TCs.
What is the procedure in MM, requiring PI?
o The entire Rule 112, Sec. 3:

1. File complaint

2. Investigating officer dismisses it or issues

subpoena to respondent

3. Respondent submits counter-affidavit

4. If subpoena impossible or no counter-affidavit,

investigating officer decides based on complaint

5. If there is counter-affidavit, the officer can set up a

clarificatory hearing

6. Resolution
o N.B. Remember, all periods here are 10 days
What is the procedure in MM, not requiring PI?
o Only Rule 112, Sec 3(A):

1. File complaint
o Then the prosecutor already decides
On a BP 22 case, when is the prescriptive period deemed as
interrupted? Upon filing the case in court or filing of the case
before the Office of the Prosecutor?
o Note that prescription is 4 years for BP 22. When Act 3326
was passed on 4 Dec 1926, preliminary investigation was
conducted by Justices of the Peace (equivalent of MTC
before), and so when it was filed with the JOP for PI, then the
prescriptive period is interrupted.
o So by filing the case with the Office of the Prosecutor, it
interrupts the running of the period.
o (It cited a case where the SEC is investigating a violation of the
Securities Code, and it was deemed to have interrupted the
period.)

Who has control and supervision of a criminal case?

o The public prosecutor.
o So what are the 3-fold duties of a PP?

1. Conduct preliminary investigation

2. Prosecute a case

3. Conducting inquest proceedings, consistent with

Rule 112, Sec. 6
o It means that the public prosecutor must be there during the
case. If the prosecutor is absent, the hearing will be cancelled.
o A PP cannot come to court because he needed medical
attention. He was not able to inform the court that he
could not come. The counsel of accused asked if he could
proceed even if the PP was absent, subject to the
prosecutors right to cross-examine the witness upon his
return. When the PP returned, he claimed the proceedings
were null and void. The other party said that the PP can
cross-examine anyway. Who is correct?

The PP.
The proceedings were null and void
because he was not present.
o So even if the PPs presence is a mere passive presence, and
not an active presence, that is fine, because everything is still
under his control and direction.
What is the only exception?
o The private prosecutor can obtain a certification from the Chief
of the Prosecution Office to prosecute even in the absence of a
PP. This certification lasts until the end of the case.
What is the role of a private prosecutor?
o The private prosecutor intervenes for the private offended
party. He does not represent the people.
What is the rule on private offenses?
o Adultery and concubinage cannot just be instituted by anyone.
It must be the offended spouse. You would have to likewise
implead as accused the paramour and the partner (so both),
unless either is dead.
o If he has condoned, pardoned, etc. the offense, he/she cannot
file.
o Same rule applies to seduction, abduction, and acts of
lasciviousness.
Who can institute a rape case?

91

The minor, the victim, parents, grandparents, guardian, State

in default
o The minor now can file alone, without assistance of parents
(esp. when the parents are the offender)
What about defamatory statements in connection with adultery or
concubinage?
o Can only be instituted by the offended party.
When is there sufficiency of information?
o Sections 7-12 are elaborations of Section 6.
o 1. Name of the accused

Full name (first and surname)

If his full name is not known?

Can use a nickname or appellation (Boy

Singkit)

What if there is no nickname or appellation?

Use John Doe or Jane Doe. For civil cases,

you use unknown owner or unknown heir
or whatever.
o 2. Designation of the offense by statute

Ex. murder, homicide, estafa

If there is no designated name of the offense, just say

Violation of Sec. 5 and 11 of the Dangerous Drugs
Law

Recent SC decision: Even in the absence of a

particular section, but the allegation in the information
shows that you know the nature of the offense, then
there is substantial compliance.
o 3. Qualifying and aggravating circumstances

Both should be alleged

If it is an aggravating circumstance, it must be

alleged. If it is not alleged but proven in trial, can
it be taken against the accused?

No.

Even
more
reason
for
qualifying
circumstances.

How about mitigating circumstances?

No need to allege, because it is part of the

defense of the accused.
o 4. Facts or circumstances constituting the offense.

Cause of accusation is the equivalent of a cause of

action in a civil case

The language of the information should be in a

language known to the accused.

What is the reason for this?

Rule 116 says that the accused must be

properly informed of the nature and cause of
accusation against him to make a proper
arraignment and plea.
o 5. Date of commission

Do you need to provide the specific date of

commission of the offense?

No need. Just an approximation is needed.

Exception: if the date is a material element of the

offense.

Election offense

Infanticide

Is date a material element of the offense of rape?

No.
o 6. Place

Need to show that it is committed within the territorial

jurisdiction of the court

But for offenses like trespass to dwelling, violation of

domicile, election cases, arson, etc. where the place
of commission is material, you have to allege it with
particularity
o 7. Name of the offended party

Place it there, if it is known

If it is a crime against property, you describe the

property so that you will know who the offended party
is

What if it is later on discovered?

It can be inserted in the information

Only one offense per information
o Is there an exception?

Yes. If there are multiple offenses in the information

and the accused fails to object, each offense proved
can be used against him.
Can you amend the information?

92

o Yes.
Can you substitute the information for another?
o Yes.
o We always remember amendment but forget about
substitution. So remember this.
When can you amend or substitute?
o Whether a matter of form or substance, there can be
amendment if it is before plea.
o Can you still change the substance of an information after
a plea?

No.
o Can you still change a matter of form after a plea?

Yes, as long as it will not prejudice the right of the

accused.

What is the test to know w/n it will prejudice the

rights of the accused?

If the original defense of the accused will

have to be changed due to the change in the
formal amendment.

Ex. The original case is for rape, except that

in the formal amendment, it was alleged that
the age should have been 17 and not 18 due
to a typo. This will prejudice the rights of the
accused.
What is downgrading and exclusion?
o Downgrading is lessening the offense (ex. robbery to theft,
murder to homicide, seduction to acts of lasciviousness)
o Exclusion is removing from the information a person
o When must downgrading or exclusion take place?

Before plea.
o What are the requirements for exclusion or downgrading?

1. Upon motion of prosecution

2. With leave of court

3. With consent of the offended party

What is difference between exclusion before plea and discharge of
the accused as State witness?
o If exclusion, there is no need to submit an affidavit. In
discharge, you have to.

In exclusion before plea, double jeopardy has not yet attached

so you can be charged again later on. In discharge as State
witness, it is tantamount to an acquittal so double jeopardy
sets in.
What is substitution?
o The information will be substituted with a new one to be filed, if
the prosecution cannot prove the offense charged in the prior
information
o The accused will not be released until a new information has
been filed as a substitute

Rule 111 civil liability in criminal cases

What is the general rule in civil liability?

o Once a criminal action is instituted, the civil is likewise
instituted
Exceptions?
o 1. Reservation

When is reservation not allowed?

BP 22 cases

When can reservation take place?

Any time before the prosecution commences

with presentation of evidence considering
the circumstances of the case. Take note of
the underlined part because the timeline is
not a strict rule.
o 2. Instituted ahead of the criminal case
o 3. Waived
When is there need for filing fees?
o Moral, nominal, exemplary, temperate damages require filing
fees.
o Actual damages do not require filing fees.
o For BP 22, what is the rule?

For EVERYTHING claimed, even liquidated and

actual damages (this is the face value of the check).
Consolidation of writ of amparo cases:
o Can you consolidate a Writ of Amparo case with a civil
case or an admin case?

No.

93

Can you consolidate a Writ of Amparo case with a criminal

case?

Yes.

Follow the general rule: if the civil case was instituted

ahead of the criminal case, the civil case is
interrupted in whatever stage and the criminal case
proceeds until judgment.

And there is an option to consolidate.

What are kinds of acquittal?
o 1. Based on reasonable doubt
o 2. Did not commit the crime
o 3. Purely civil
o 4. The acts from which the civil liability arises from were not
committed
What is a prejudicial question?
o A criminal case will be suspended when there is a pending civil
case which must be suspended until the prejudicial question is
resolved.
o What are the requisites?

1. The civil action was filed first

2. The resolution of the civil action is determinative of

the criminal action
o Give an example of a prejudicial question.

Can trespassing be only committed against the

owner of a property?

No. {Check this} So you need not file a civil

case to determine who owns the property
first.

Theft: determine first who owns the property

Who determines whether there is a prejudicial

question?

The court.

What will be suspended?

The criminal case.

o Where do you file a motion to suspend on the ground of
prejudicial question?

1. The court

2. The prosecutor conducting PI

o When do you file the motion to suspend?

Anytime before the prosecution rests its case

Can an administrative case suspend a criminal case on
the ground of prejudicial question?

No.
o Can another criminal case suspend a criminal case on the
ground of prejudicial question?

No.
What is an independent civil action?
o One that can proceed independent of a criminal case
o Arts. 31-34 of the NCC
o Art. 2176 of the NCC (quasi-delict)
If there is an independent civil case filed before the criminal case,
is the independent civil case suspended?
o No.
o If there is a criminal case filed ahead, do you need to
reserve the independent civil action?

No. YOU DO NOT RESERVE AN INDEPENDENT

CIVIL ACTION.
o Can it proceed side by side with a criminal case?

Yes.

Compare with a reserved civil action (i.e. not

independent).

It cannot proceed side by side.

o Must an independent civil action be reserved?

No need to be reserved, and it will not be suspended

If the civil action was instituted ahead of the criminal, and there
was a judgment stating that there was no civil liability, is the
offended party barred from filing another criminal action?
o No. Again, the burden of proof is different.
o

Rule 112 Preliminary investigation

What is PI?
o Where the prosecutor determines whether there is probable
cause to file a case against a respondent
Distinguish from inquest?
o Inquest is conducted by an inquest prosecutor, when one is
caught under the three exceptional circumstances provided in
law

94

Who can conduct preliminary investigation?

o City prosecutors, and their assistants, Provincial prosecutors
and their assistants
o OMB, and if they authorize the Special Prosecutor he can too
What is the procedure for PI?
o 1. After receiving affidavit-complaint, the prosecutor will
determine within 10 ten days whether there is probable cause

Raffle

Assigned to assistant prosecutor

o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days

In practice there can be a reply or rejoinder, but this is

not provided by the rules
o 4. Optional clarificatory hearing
o 5. Resolution

Who prepares the resolution?

The Assistant prosecutor

Is it the city prosecutor or the assistant

prosecutor?

Assistant prosecutor prepares it, and then

the city prosecutor approves it

City prosecutor has discretion to dismiss the

complaint, file the information himself, or ask
another assistant/State prosecutor to file it
o Regardless of recommendation

Can a resolution be issued by an assistant

prosecutor even without approval of the City
prosecutor?

No.

What if the City prosecutor does not

agree with the recommendation of the
assistant prosecutor?
o He has discretion to reverse it.

If the assistant prosecutor believes that there is

probable cause, he prepares a resolution AND an
information.
Information is filed in court and
resolution served to the parties. If he does not find
that there is probable cause, he only prepares a
resolution. But regardless, no resolution can be

o
o

issued without the approval of the City or Provincial

prosecutor.
Can you file a complaint with the OMB?
o Yes, and he will then investigate. He can also motu propio
investigate.
o Can the NBI conduct preliminary investigation?

No.
Is service of a subpoena and receipt thereof necessary for the
Office of the Prosecutor to obtain jurisdiction over the
respondent?
o No.
o There is still no case filed against him, just an investigation.
o Even if he does not get to file a counter affidavit, there can still
be a resolution issued against him.
X is arrested, accused of possessing illegal drugs, without a
warrant. What is the procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have
them proceed with inquest

If X applies for preliminary investigation, what

happens?

You sign a waiver of Art. 125 of RPC

Will X be released?

If he applies for bail.

Where does X apply for PI?

Before the inquest prosecutor.

Where do you apply for bail?

With the Executive Judge. (This is a trade

secret)
What is the procedure if someone is arrested for vagrancy, without
warrant?
o Note that vagrancy does not need preliminary investigation, so
the information can be directly filed with the MTC.
o Can you apply for bail?

Yes, because you were already arrested.

You were sued for slight physical injuries in MM, and it was not in
flagrante delicto, so it was on the basis of affidavit complaint.
What happens?

95

There is no need for preliminary investigation.

So the prosecutor will determine probable cause, then will file
the information in court.
o Is there a need for the respondent to file a counter affidavit
here, and is there need for preliminary investigation?

No.
When are inquest proceedings applicable?
o It must be due to a warrantless arrest:

A. In flagrante delicto

B. A crime has been committed and the police officer

has personal knowledge that the person committed
the crime

C. Escaped from confinement or escape

o Also, it must be for an offense that requires PI (at least 4y, 2m,
1d)

If no need for PI, just file affidavit-complaint to the

office of the prosecutor.
(Because only 3A is
required)
o How do we distinguish (A) from (B)?

First kind the arresting officer was there when the

crime was committed

Second kind the arresting officer has personal

knowledge
If a person is arrested with a warrant can he be placed on inquest?
o No.
What if he was arrested for an offense for which he was previously
charged, and then he escaped from detention and he was arrested
without a warrant?
o Inquest must be conducted.
How do you appeal a resolution?
o Within 15 days, file a Petition for Review to the DOJ.
o Must the petition be verified?

Yes.
o Can the period be extended?

No.
o If the DOJ decision is adverse, to where do you go?

Rule 43, to the CA

(Or Rule 65, to the CA if there was GADALEJ)

Only to the SC if its the OMB

(Or Office of the President if punishable by reclusion

perpetua or higher)
o Can you have the DOJ review the resolution if the offense
in question does not require a PI?

No. This is clear in the circular. The offense must

require, for its charging, at least preliminary
investigation OR has gone through reinvestigation.

What is reinvestigation?

There was a regular PI, and you were not

satisfied with it, so one files for a
reinvestigation with the Office of the
Prosecutor or in court.

This is not provided in the rules.

Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6 years
(and PI is for 4y,2m,1d)
Once the information is filed in court, what can the judge do?
o 1. Issue a warrant of arrest, after personally determining the
existence of probable cause
o 2. Dismiss the case for absence of probable cause
o 3. The court can call for a hearing to determine probable cause
So what are the options for a judge in an RTC case?
o Just these three.
What about the MTC? Distinguish:
o A. Not exceeding 6y, but more than 4y,2m,1d:

See above [the three options]. So its like the RTC.

o B. Below 4y,2m,1d, more than 6m

Same as three above, but the issuance of the warrant

is up to the discretion of the court. If the court
believes the offense is not so grave, it may not issue
a warrant and will just issue summons.
o C. Not more than 6m, falling under the rule on SP

The court cannot issue a warrant of arrest. Instead,

the court requires you to file a counter affidavit

So when does the court issue a warrant of arrest?

Only when there is failure by the accused to

appear in court despite repeated notice

What is an example of a crime involving summary

procedure?

BP 22
When can you file a motion for determination of probable cause?
o After filing of information, but before the judge has acted on it
o Can you file after issuance of a warrant of arrest?

No.
Will the filing of a petition for review suspend the issuance of a
warrant of arrest?
o No. The mere filing of a petition for review will not suspend the
issuance of a warrant of arrest.
o What it suspends is the arraignment.
o For how long?

60 days suspension of arraignment.

Rule 113 Arrest

96

Does the arresting officer need to show the warrant of arrest?

o 1. Inform cause of arrest
o 2. And that a warrant had been issued for his arrest
o Exception to this?

1. Flees/forcible resistance

2. Informing the accused imperils the arrest

What is the duty of the arresting officer if the arrest is without a
warrant?
o 1. State authority to arrest
o 2. Cause of the arrest
o Exceptions to this?

1. Engaged in commission of the offense

2. Pursued immediately after offense

3. Flees/forcible resistance

4. Informing accused imperils arrest

What about arrest by a private person?
o 1. State cause of arrest
o 2. And intent to arrest him
What are the other circumstances where there can be arrest
without warrant?
o 1. Judicial bondsman may arrest him to surrender accused to
court
o 2. Attempt to depart the country
o 3. Person who has been lawfully arrested and has escaped

After arrest what do you do?

o 1. Bring him to the police station
o 2. He will be incarcerated until he files for bail

What if he does not apply for bail?

He will stay in the city jail in the pendency of

the case.

If its a non-bailable offense, its a different

procedure.

Just wait for arraignment.

What if he applies for bail?

He is released from the city jail and he has

responsibility to attend arraignment/appear
o 3. Afterwards, there will be an arraignment
What if a person is arrested without a warrant?
o 1. Brought to the nearest police station
o 2. Inquest proceeding will be done

Brought to the Prosecutors Office

o 3. The inquest prosecutor can either release you or keep you
in detention

When the inquest prosecutor releases you, does

this mean your case is dismissed?

No.
You are released for preliminary
investigation.

This just means the affidavit-complaint of the

police officer used as basis for inquest will
be filed with the prosecutor as an ordinary
case.

What if the prosecutor says detain?

You can either apply for preliminary

investigation or not.

What if you apply for preliminary

investigation?
o You sign a waiver of Art. 125.
o Can you then apply for bail?

Yes. You file it with the

executive judge.

After waiver of 125, what is the next step?

o Go to preliminary investigation.

What if you did not ask for a preliminary

investigation?
o An information can be filed
o Afterwards, there is arraignment

Rule 114 Bail

97

When does bail apply?

o Whenever there is deprivation of liberty
When is bail a matter of right?
o Before conviction, whether MTC or RTC

Except for cases punishable by RP, LI, DP

o After conviction, if MTC
When is it a matter of discretion?
o After conviction, if RTC
What are the types of bail?
o 1. Cash bond

In a cash bond, how much is deposited in court?

The full amount

Who receives it?

Municipal, city, or provincial treasurer or the

CIR

Clerk of court where the case is pending

o 2. Corporate surety

Just pay the premium

o 3. Property bond

What is the most important requirement for a

property bond?

The owner must be resident of the

Philippines

Registration of the lien must be done within 10 days

from approval of the bond

Does the accused need to be the owner of the

property?

No.
o 4. Recognition

Can you be released on your own recognizance?

Yes.
What are the stipulations in a bond?

1. Bond is effective upon approval and unless cancelled

Lasts until promulgation of judgment in RTC, whether

case is originally filed or on appeal
o 2. Accused must appear in court if required
o 3. Failure to appear in trial is deemed a waiver

Trial can proceed in absentia

o 4. Bondman must surrender accused to the court for final
judgment
From when and up until when is a bail in force?
o From approval, until promulgation of judgment by the RTC
o Whether originally filed there or on appeal

N.B. thus if the case started in the MTC, you filed for
and were given bail, it can continue up to appeal in
the RTC

to bail. He has no right to bail, as a rule. But they can file a petition
for bail. Then he entered into a plea bargain. (When can you enter
into plea bargain? ANS: At any time before trial. You can enter into
plea of guilt to lesser offense during arraignment, or even after
arraignment but before trial, or during pre-trial.) Here the plea
bargain to a lesser offense of corruption was entered into after trial.
Is he now entitled to bail?
a. When there is conviction, are you still entitled to bail? As
a rule, no. But when you appeal the conviction, you can
still apply for bail, as long as the decision is not final and
executory, assuming that it is a bailable offense. In this
case, the bail is a matter of discretion to the court.
b. When the judgment has become final and executory, can
you still apply for bail? As a rule, no.
c. What are the requirements for a plea of guilty to a lesser
offense?
i. Notice to prosecutor
ii. Consent of offended party
d. If the trial court convicted you of an offense which is
bailable (original charge was non bailable offense), the
bail should be applied with the appellate court.

< Kira notes follow >

Rule 113
People v. Laguio requisites inflagrante delicto; a 2007 case
1. Person to be arrested must execute an overt act that he has
committed, actually committing, or attempting to commit
2. Overt act is done within the presence or within the view of the
arresting person or officer

Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail

for Non-Bailable Offenses
1. Petition for Bail:
a. Case: Governor Leviste shot his aid. On advice of
counsel, he surrendered and was charged only with
homicide. It is a bailable offense. He can avail of bail, as a
matter of right. It was in the RTC, before conviction, the
offense is punishable not by reclusion perpetua, death, or
life imprisonment. Homicide is punishable with reclusion
perpetua. But then the information was withdrawn, and he
is now charged with murder a non bailable offense. He
will be arrested. Is he now entitled to bail? ANS. NO. But
he can file a petition for bail. Here, the court granted his
petition for bail. The court was convinced the evidence of
guilt against him was not strong. Trial proceeded and
there was promulgation of judgment, that he was guilty not
of murder, but of homicide. Can Leviste apply for bail
now? ANS: He is entitled to bail as a matter of discretion.
b. Lets say you were charged with offense where bail is a
matter of right (e.g. estafa), but then convicted. You can
apply for bail, but it is a matter of discretion.

Presentation of the informer/informant is not indispensable in the

prosecution of a criminal case.
Hot pursuit only applies:
1. Offense has just been committed (If there is just an attempt, or the
person is just committing, hot pursuit will not apply)
2. No requirement that it be done in the presence of the officer. It is
only required that the arresting officer with an independent and
personal assessment has probably cause to believe that a crime
has been committed.
Rule 114
Issues with grant of bail:
1. The General Garcia issue He was charged of plunder with the
Sandiganbayan, which is a non-bailable offense. He is not entitled

98

c.

2.

3.

What is the nature of a hearing for the petition for bail?

ANS: Summary.
d. Can we dispense with a hearing for bail? (When the judge
thinks malakas un kaso ng prosecution)? ANS: NO. You
cannot dispense with and ignore hearing for bail.
e. Can there be joint summary hearing of petitions for bail?
YES.
f. Is an arraignment a prerequisite to a petition for bail? NO.
Although the judge in the Ampatuan case required the
accused to be arraigned before allowing the petition for
bail. There is nothing irregular here though, the counsel for
the accused allowed it. The very moment there is a
deprivation of liberty, you can apply for bail.
Bail as a Matter of Right
a. Basta nasa MTC, bailable as a matter of right.
b. In RTC, bailable as matter of right if:
i. Before conviction
ii. And not punishable by reclusion perpetua, death,
or life imprisonment.
c. The judge cannot deny bail that is matter of right; he can
only increase amount of bail. Maceda case
Bail as a Matter of Discretion
a. In RTC
i. Conviction
ii. And not punishable by reclusion perpetua, death,
or life imprisonment
iii. And not accompanied by the ff instances, if the
penalty exceeds 6 years:
1. Recidivist, habitual delinquent, etc
2. Previously
escaped
from
legal
confinement
3. Committed
offense
while
under
probabtion, parole
4. Flight-risk
5. Undue risk that he may commit crime
during pendency of appeal
b. Where will you apply?
i. If appealed, before transmission of records: to
RTC
ii. If appealed, and the RTC conviction changed
nature of offense from non bailable to bailable: to
appellate court
c. Bail as a matter of discretion has an enumeration of
certain disqualifiers.

i. If convicted, beyond 6 years, and with

disqualifiers bail denied
ii. If convicted, beyond 6 years, and no disqualifiers
bail is matter of discretion
iii. If convicted, less than 6 years bail matter of
right
iv. If convicted, less than 6 years, and with
disqualifiers bail matter of discretion, but court
will impose higher bail because of disqualifiers
Mabutas v. Perello requirements for hearing for applications for bail
1. Bail as a matter of discretion is different from the exercise of
discretion in petitions for bail
2. Bail is a matter of judicial discretion that remains with the judge. A
hearing on application for bail is mandatory, whether bail is matter
of right or matter of discretion.
3. In case application for bail is filed, judge is entrusted with ff duties:
a. In all cases whether bail is matter of right or discretion,
notify prosecutor of application for bail or allow him to give
his recommendation
b. When bail is matter of discretion, conduct hearing on
application, regardless or not whether prosecutor wants to
present evidence that guilt is strong
c. Decide whether evidence of guilt is strong based on
summary evidence of the prosecution
d. If guilt is not strong, discharge accused on approval of bail
What if charged with murder, petition for bail granted, then convicted of
homicide? Entitled to bail as matter of discretion. The issue of whether
evidence of guilt is strong is not relevant, because that only applies if the
offense is non bailable.
What if charged with murder, petition for bail granted, then conviction of
murder? Cant apply for bail; the nature of offense is non bailable.
Obviously having been convicted, the evidence of guilt is strong.
What if convicted of offense not punishable of imprisonment beyond 6 years,
is it still a bail as a matter of discretion? (That which is alleged is different
from what is proven. Rule 120) It is now bail as matter of right.
For purpose of judge determining if bail if excessive must consider
parameters laid down in Section 9

99

But for purposes of recommending bail by prosecutor they have their own
administrative list
Where to File Bail:
1. You were arrested in Kamagong (Makati), the case was filed in
Makati. Action pending in same province/city where he was
arrested.
a. Apply in court where case is pending
b. In absence or unavailability of judge, in any court in the
area
2. Person arrested in Marikina, case pending in QC. Can person file
for bail in QC? NO. Because when you arrested in Marikina, you
will be taken to nearest police station in Marikina. So youll apply
there in Marikina.
3. If youre in Cavite, but the case is pending in Makati, but you
havent been arrested, you cant apply for bail in Cavite.
4. Arrested in Ilocos, case pending in Manila. He applied for bail in
Ilocos and was granted. Later the records were sent to Manila.
a. Should the records be sent to Manila? ANS: Yes.
b. Is the judge in Manila obligated to accept the bail? ANS:
Hes not required. He can require a new bail.

Expat is out on bail, he always leave every few weeks, can he do that?
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs
without securing such approval, he can be arrested without a warrant.
If accused is charged with vagrancy and has been in detention for almost 2
years, what should the judge do with the accused?

In a voluntary surrender, you do not need a certificate of arrest, for an

application for bail.

The DNA Rule

1. Can a person who has already been convicted and serving
sentence, apply for DNA examination? ANS: Yes
2. If the court finds after DNA evidence that the person serving
sentence is not guilty, what will the court do? ANS: Person serving
sentence must apply for habeas corpus.

Rule 115 Rights of the accused

100

A. Presumption of innocence
How did the court apply presumption of innocence in P v.
Dimalanta?
o When circumstances lead to two or more inferences, one or
more leading to innocence and one or more leading to guilt,
the former should prevail.
B. To be informed of the nature and cause of the accusation against him
To be informed of the nature and cause of accusation against him:
o Get an authorized interpreter if the accused does not speak
Filipino/English
When can a counsel de officio be appointed?
o 1. During arraignment
o 2. During trial
o 3. Before records are elevated on appeal (accused informed of
right to counsel by clerk of court at this point)
o 4. In the CA

When the accused signed his appeal by himself

Or accused is in prison
o 5. In the SC have their own guidelines
C. Right against self-incrimination
What is the concept of chain of custody in the DNA rule?
o Usually its a concept that is connected with drugs, as re:
possession of seized item from the scene of the crime
o For purposes of evidence, it is considered for tampering or
authenticity of the sample. If the sample has been tampered
with, you cannot get an accurate result.
What are the ways by which a laboratory can be accredited?
o See Rules on DNA Evidence 7c
What is the rule on filiation?
o DNA results that exclude from paternity are conclusive
o If the value of probability of paternity is less than 99.9% merely corroborative
o If the value is 99.9% or higher it is a disputable presumption
o Why is it just a disputable presumption?

Because you can still argue that it would have been

physically impossible for one to do it, or there is no
access, and that there is someone who could have
similar DNA makeup (twins, for instance).

Differentiate corroborative from cumulative evidence?

Corroborative proving same point, but different kind

and character of evidence

Cumulative Same kind and character, proving

same point
D. Right to be present in the course of the proceedings
o What is the consequence of his absence in the hearing?

There can be a trial in absentia if there already is

arraignment and the accused is unjustifiably absent
o When is his presence mandatory?

The general rule is the he must be present at all

stages of the proceeding.
o Can this be waived?

Yes.
o Where and when should it be waived?

There should be a stipulation in the conditions of bail.

So as a rule, it cannot be waived.
o What if the private complainant is absent?

Its fine.
E. The right to public trial
o General rule is that the trial is public
o When can the public be excluded?

Found in Rule 119, Sec 21. (offensive to

decency/public morals)
o Does public trial include public viewing on TV or radio
broadcast?

No. It opens room for lawyers to grandstand.

o Also recognized in evidence:
F. Right to speedy trial
o How many kinds of speedy trial?

1. Speedy disposition of the case (constitutional law)

2. Right to speedy trial (criminal law)

o What is the difference?

In the Crim Pro concept, you can invoke it anytime

before or during trial.

In Constitution, any time as long as the action is

pending.
o What is the remedy for speedy trial under the
Constitution?

o
o

101

Habeas Corpus
Because your continuous detention has no more legal
basis
What if its in criminal procedure?

Certiorari

Prohibition

Mandamus
Rule 119 has a computation. How long is the maximum
time between the arraignment and trial?

80 days

If you dont follow number days, you could expect a

MTD on ground of violation of right to speedy trial
Entire period of trial?

180 days
But why are a lot of cases that do not commence in time,
and are not dismissed due to violation of this right?

Because of the exclusions.

What are the exclusions?

1. Other proceedings:

Mental/physical examination of accused

Other criminal charges

Extraordinary remedies against interlocutory

orders

Pre-trial proceedings, as long as not

exceeding 30 days

Orders of inhibition or change/transfer of

venue

Prejudicial question

Any period not exceeding 30 days when the

accused is actually under advisement

[Unavailable, unable]

2. Absence or unavailability of an essential witness

Absent whereabouts unknown

Unavailability whereabouts known

3. There is a co-accused over whom the court has not

acquired jurisdiction or for whom time for trial has not
run and no motion for separate trial is granted

4. Mental incompetence or physical inability of the

accused to stand trial
[Upon motions]
5. Prosecution dismissed information upon motion
and then filed another charge for the same case the
time limit between the dismissal and the subsequent
charge
6. Continuance granted by the court motu propio or
on motion
Memorize this list. Rule 119 Sec 3.

Cases:

In one case, Pre-trial happened after 7 years. Delay

was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion

But as a rule, extraordinary remedies must

not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.

In another case, there were 20 postponements. The

witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o What is VCO?

Vexatious, capricious, oppressive

VCO delays violate the right to speedy trial

G. Right to confront witnesses presented against him
o Basically, can cross examine
H. Right to have compulsory processes to secure attendance of
witnesses and production of evidence
o Can apply for subpoena ad testificandum and duces tecum
o Right to modes of discovery:

Can apply modes of discovery in criminal cases.

Rule 119, Secs. 12, 13, 15 Conditional

examination
of
witnesses
for
the
prosecution/accused. This is the equivalent of Rule
23 depositions in criminal trial.

Purposes for prosecution:

o

1. Sick or infirm, or unavailable

2. or the witness is about to depart.

Purposes for accused:

1. Sick or infirm or unavailable

2. or more than 100km

What is the difference if it will be availed of

prosecution or accused?

Prosecution: ONLY in the court where the

action is pending

Accused: Before any judge, member of the

Bar in good standing, and if ordered by a
superior court directing an inferior court
I. Right to testify on his own behalf
o Can the accused testify for the prosecution?

Yes, but he can refuse

o Can a party in a criminal case be asked a question that
would raise civil liability but not criminal liability?

[Answer unclear, but since its purely civil, I think the

witness can be compelled]
o What is the effect of silence?

It should in no manner prejudice him

J. Right to appeal
o Will be discussed below (Rule 122-125)

Rule 116 Arraignment and Plea

102

When must arraignment take place?

o Within 30 days of obtaining jurisdiction over the person of the
accused
o Take note that pre-trial must happen within this same period,
but after arraignment
o What if the person is preventively detained?

Follow the 3:10:10 rule. So its shorter (max 23 days)

1. From filing of information, case is raffled

within 3 days

2. Arraignment within 10 days of raffle

3. Pre-trial within 10 days of arraignment

What comes first, plea or arraignment?
o Arraignment, where the information is read against him

Can the arraignment be dispensed with? (Ex. by an

accused that does not want to hear the information)

Never. You cannot waive the arraignment.

o Can the arraignment or reading be in a language different
from what the accused knows?

No. It must be in a language known to the accused.

What about a belated arraignment? (P v. Trinidad)
o This happened when they realized that there was no
arraignment. There was a belated arraignment that was
validated because the lawyer had an opportunity to cross
examine and the lawyer actively participated in the
proceedings.
What are the kinds of pleas?
o 1. Plea of guilty

A. Plea of guilty to lesser offense

Until when can you do this?

o At very latest, pre-trial
o At trial, cannot plea guilty to lesser
offense

B. Plea of guilty to capital offense

[N.B. this is a moot and academic

discussion]

Punishable by death.

What is required?
o Conduct searching inquiry to see if
it is voluntary and if he understands
the plea

What does it entail?

o 1.
Background
check
(age,
education,
socio-economic
conditions)
o 2.
Conduct
of
custodial
investigation
o 3. Explain the nature of the offense
and extenuating circumstances to
the accused

Hearing after the plea

C. Plea of guilt to a non-capital offense

103

Should there be a hearing?

o Its not mandatory

D. Improvident plea

What is an improvident plea?

o Plea of guilty without fully
understanding consequences of the
plea
o X pleaded guilty to homicide. He
didnt know that if he pleaded
guilty, there wont be any hearing
anymore. Can he withdraw the
improvident plea?

Yes.

When can it be withdrawn?

o Any time before judgment of
conviction becomes final (after
appeal)

What are the further actions of the court

in case of an improvident plea?
o If the sole basis of conviction is the
improvident plea, it is remanded for
further proceedings in the trial
court. (Ex. the SC sends it back to
the RTC)
o If the conviction is supported by
other evidence, the SC will render
judgment
2. Plea of non-guilty

A. Conditional plea

What is this equivalent to?

o Its akin to a plea of not guilty

B. Refusal to enter a plea

The court assumes its not guilty

Can a representative enter a plea of not

guilty?
o No. The accused must be the one
to enter the plea.

[Should the accused be present during

promulgation of judgment?]

o
o

Yes.
Is there an exception to this rule?

Yes, for light offenses.

The accused can be
represented.

C. Direct plea of not guilty

D. Say guilty but present exculpatory evidence

When is there suspension of arraignment?
o 1. Accused suffers from unsound mental condition
o 2. Prejudicial question
o 3. Petition for review pending with DOJ

Not exceed 60 days

o 4. Pending incidents:

A. Motion to quash

B. Motion for inhibition

C. Motion for bill of particulars

Can there be a bill of particulars in a

criminal case?
o Yes. Apply before enter of plea.

What is required?
o Identify defects and details desired

Rule 117 Motion to quash

Why do you file motion to quash the information?

o 1. It is defective or
o 2. The court has no jurisdiction.
Differentiate from provisional dismissal:
o In P.D., there is no questioning of the information. In fact, it is
valid and charges a proper offense and the court has
jurisdiction over the SM and the person.
o Provisional dismissal is always with the consent of the
accused.
What is the effect of a grant of a MTQ?
o Dismissal of the case.
o Is it always dismissal?

No. The court can order amendment. [No period

provided.]

104

Amendment is a remedy, but it has a narrow

application. It does not apply to all grounds.
Can a case dismissed by a MTQ be re-filed?
o As a general rule, yes.
o It depends on the ground.
o When can it not be re-filed?

1. Prescription

2. Double jeopardy
Can the prosecution file a MTQ?
o No. The applicable remedy is substitution of information.
When a case is dismissed provisionally, what is the effect?
o The case is temporarily dismissed.

Ex. This case is dismissed for 30 days

o It can be revived (dont use re-file because the dismissal was
just provisional)
o Who will ask for provisional dismissal?

1. The prosecution

With consent of accused

If there is no consent of accused, is it a

provisional dismissal?
o No.
A dismissal without the
consent of the accused would lead
to double jeopardy (obtains finality).

2. Or the accused

Is the prosecutions consent required?

o No. Even without consent, its still a
provisional dismissal. As long as it
doesnt pass the time leading to
permanence.
o When can you ask for provisional dismissal?

Any time.
For a dismissal to take effect in MTQ, do you need to wait for a
lapse of time?
o There is still a period to seek a remedy after. Ex. You can file
an MR.
o After this period, it can be re-filed. (Except for the two
exceptional grounds.)
For a provisional dismissal to be permanent, what is the period
required?

Beyond 6 years 2 years

6 years or less 1 year
When will this period begin to run?

Upon receipt of notice by the accused (given by the

code)

But this has been supplemented by Lacson: Period

can only start upon receipt of notice by the public
prosecutor

Rationale: because it is the public

prosecutors duty to revive the case
What are the grounds for a MTQ?
o Problem as to form
o 1. Facts stated do not constitute an offense

The elements of the offense are not there

But is it possible that while not constituting an

offense, you can be liable for another offense?
Can this be the proper ground of a MTQ?

Its possible. This is not a ground for a MTQ.

Ex. Charged with qualified theft, but

relationship was not alleged. You file a
MTQ. The court can order an amendment to
show relationship. The court cannot quash
because there is an offense alleged in the
information.
o 2. More than one offense was charged in the information

How do you know if there is more than one

offense?

Ex. murder can you kill a person twice?

No.

Ex. rape you can rape someone multiple

times. For instance X raped Y five times.
How many informations should you file?
o Five.

What if ten checks bounced?

o Ten informations, because each is
an offense in its own.
o 3. Does not conform substantially to prescribed form
o 4. Officer who filed the information had no authority to do so.
o
o
o

o
o

o
o
o

105

There was a case in the Sandiganbayan. There

was a motion for reinvestigation and it was
granted. The Special Prosecutor amended it and
re-filed it. Can he do that?

No. He has no authority; it is not within his

powers.

Ex. a Prosecutor with authority only extending to

Bulacan cannot file an information in Makati.

If a State prosecutor is appointed as Acting city

prosecutor, does he have authority to approve/file
the information prepared by the asst. prosecutor?

Yes as long as he is properly appointed by

the DOJ.
Jurisdictional matters
5. Lack of jurisdiction over the person of the accused

Accused has not voluntarily surrendered

Or Accused not arrested

6. Lack of jurisdiction over the offense charged
Exculpatory matters
7. Criminal liability has been extinguished by prescription

Recall that there is prescription of crimes and

prescription of penalties.

To which does this ground apply to?

Prescription of crimes. In prescription of

penalties, there is already a judgment.
8. Contains averments that if were true, would constitute a
legal excuse or justification

Ex. Self-defense
9. Double jeopardy

What are the requisites?

1. Court of competent jurisdiction

2. Valid information

3. Plea

4. Conviction, acquittal, or dismissal without

express consent of the accused

What are examples of dismissal without the

express consent of the accused?

Ex. failure to prosecute

What about motion to dismiss prompted by the

accused on the ground of violation of right to
speedy trial?

It is tantamount to an acquittal and thus

leads to DJ. This is an exception to the
general rule

What about a demurrer to evidence which is

granted by the court?

It is also tantamount to an acquittal and thus

leads to DJ. Another exception.

What about a motion for determination of

probable cause filed by the accused and granted
by the court?

No, this is not an exception. There is no

plea yet. There is no dismissal without
express consent of the accused.
Compare motion to dismiss (civil procedure) from motion to quash
(criminal procedure).
o Re: court actions
o Motion to dismiss:

The court can grant, deny, or order an amendment

o Motion to quash:

The court could only order amendment if its a defect

that can be corrected by such amendment.

UNLIKE in motion to dismiss, regardless of

the ground, the court has a free hand: can
grant, deny, or order amendment.

Whereas here, the court has to order an amendment

before denying/granting, on some grounds.
o Re: refiling
o Motion to dismiss:

In general, it can be re-filed.

Except:

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)

o Motion to quash:

In general, it can be re-filed.

Except:

1. Prescription

2. Double jeopardy
o Re: objections not raised
o Motion to dismiss:

In general, grounds not raised are waived.

Except for:

1. Lack of jurisdiction over the SM

2. Prescription

3. Litis pendentia

4. Res judicata
o Motion to quash:

In general, grounds not raised are waived.

Except for:

1. Lack of jurisdiction over the offense

2. Prescription

3. Does not constitute an offense

4. Double jeopardy
When will double jeopardy not set in?
o 1. When there is a supervening event.
o 2. Facts constituting graver charge only were discovered after
a plea was entered
o 3. Plea of guilty to lesser offense was made without consent of
prosecutor and offended party

Except?

For purpose of plea bargaining, the private

offended party was notified but did not
appear during arraignment

And the offense is necessarily included in

the offense charged
When can there be consent of the accused but double jeopardy
can set in?
o 1. Speedy trial
o 2. Demurrer to evidence

Rule 118 Pre-trial

106

When must pre-trial happen?

Within 30 days from the court acquiring jurisdiction over the

person AND after arraignment

N.B. within the same 30 day period as arraignment

N.B. but take note of the exception (3:10:10 rule) if

the accused is detained
Can there be compromise?
o Basic rule: you cannot compromise criminal action
o But you can compromise the civil aspect of the case

But when you compromise the civil liability, it does not

lead to the dismissal of the criminal case

What do you need?

Affidavit of desistance by the offended party.

This is as to the civil aspect.

The prosecution has to move for the dismissal of the

case
o If the prosecution moves for dismissal, does double
jeopardy set in?

Check the requisites. If there is plea, double jeopardy

sets in. If there is none, double jeopardy will not.
Can the admissions of the accused be used against him in the
proceedings?
o Yes, if it is in writing and signed by the accused and his
counsel.
What is the rule for agreements entered into in the pre-trial
conference?
o Same rule reduced in writing and signed by both accused
and counsel.
o What are these agreements?

1. Plea bargaining

2. Stipulation of facts

3. Marking of evidence

4. Waiver of objections to admissibility of evidence

5. Modification of order of trial (lawful defense)

6. Matters that promote a fair and expeditious trial of

the civil and criminal aspects of the case
o What is required for these agreements?

Must be approved by the court

Absences and appearances:

The rule of absences in pre-trial (in civil case) does not apply in
criminal cases.
o The pre-trial will be reset.

If the witness is absent, the court can rely on

compulsory processes

If the accused in absent

1. There is forfeiture of bail

2. There will be a warrant of his arrest

[Distinguish cancellation from forfeiture of bail]:

Cancellation
o Voluntary surrender or death.
o It is automatically cancelled upon
acquittal, conviction, or dismissal of
the case against him without
express consent of the accused.

Forfeiture failure to appear

What is the procedure?

The court will order the bondsman to

produce the accused within 30 days. If he
fails to do so, the bail will be forfeited.

What is your remedy for forfeited bail?

Appeal
Is it mandatory?
o Yes. There is pre-trial before Clerk of Court
Can there be stipulations?
o Yes
Can there be marking of documents?
o Yes

Rule 119 Trial

107

When must trial commence?

o Within 30 days from receipt of PTO
o What if there is an order for new trial?

Within 30 days from notice of that order

But if impractical, it can be extended up to 180 days

from the notice of the order
Period to conclude trial?
o 180 days from first day of trial (unless authorized by the SC)

What is the order of trial?

o 1. Prosecution
o 2. Defense
o [optional:]
o 3. Rebuttal
o 4. Surrebuttal
o 5. Submission of memoranda
o Are rebuttal and surrebutal necessary?

No. This is upon courts discretion.

Likewise, with submission of memoranda.

o Can it be reversed?

Yes, when there is self defense and other exculpatory

defenses
Discharge of the accused as state witness requisites?
o 1. There is no direct evidence

So for this, you have no one who can point to the

perpetrator.

What is the opposite of direct evidence?

Circumstantial evidence
o 2. There is absolute necessity for the evidence
o 3. Could be corroborated in its material points
o 4. Not the most guilty
o 5. Not convicted of a crime involving moral turpitude
When can an application for discharge be made?
o Before the prosecution rests its case
o What does the applicant need to do or submit?

Submitting sworn affidavit

o What happens to the statement?

Becomes part of the evidence of prosecution

o What happens to the accused?

Becomes acquitted
o If the application is denied, what happens to the
statement?

Its inadmissible
Compare with requisites for discharge under Witness Protection
Program?
o The requisites are the same.
o But the mode of application is different you file it with the
DOJ, not with the court. (Yu v. RTC of Tagaytay)

108

Does double jeopardy set in, if under WPP?

No, because there is no plea.

So he can be prosecuted afterwards (!)

When do you file a demurrer to evidence?
o Civil after plaintiff has completed presentation of evidence
o Criminal after the prosecution rests
Do you need leave of court?
o In criminal: you dont need to, but there are serious
consequences if you do not secure leave.

If you file with leave of court and its denied, the

accused can still present evidence

If you file without leave of court and its denied, the

accused will not be able to present evidence there
will be a judgment
o In civil: no need for leave of court
o N.B. demurrer in criminal case on the courts own initiative
(motu propio) after giving prosecution chance to be heard is
allowed
When do you file motion for demurrer in criminal case?
o 1. Non-extendible period of 5 days from prosecution resting its
case
o And then?

Prosecution can oppose the motion in non-extendible

period of 5 days from receipt
o And then?

If leave is granted, accused has non-extendible period

of 10 days from notice to file the demurrer

Prosecution can oppose the demurrer in nonextendible period of 10 days from receipt
In criminal cases, if the demurrer is denied, can you file a petition
for certiorari?
o No. You cannot file a petition for certiorari. You have to wait
for judgment.
Whats the effect of a grant of demurrer in a civil case?
o Its a final disposition of the case.
o In a criminal case?

Its a dismissal. It amounts to an acquittal.

If the demurrer is granted and the accused is acquitted,

can the accused adduce evidence on the civil aspect of
the case?

Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.

So if the accused was not able to present evidence in

the civil aspect, it is a void judgment.
Recall: Exclusions to the 180-day rule for trial to finish from its first day.
When can the court grant a continuance?
o N.B. correlate with last ground for exclusions
o 1. Consider w/n it will lead to a miscarriage of justice

So this can include the civil procedure grounds (ex.

unavailability
of
material
evidence
or
sickness/absence of party or counsel)
o 2. The issues in the case are so novel, unusual, and complex
that it requires more time to prepare
NOTE: Check discussion in Rule 115 for Conditional examination of
witnesses
When can the testimony of a discharged witness be disregarded?
o ONLY when he deliberately fails to testify truthfully in court
Can there be a reopening of a case?
o Yes, anytime before finality of conviction, the court may motu
propio or upon motion (with hearing) reopen the hearing to
avoid miscarriage of justice
o How long before the proceedings terminate?

30 days from granting

Or if the facts from which the civil liability might rise

from were not committed
Does the prosecution have remedy against an acquittal?
o Note than an acquittal is immediately executory.
o But if there is GADALEJ (P v. Hernandez) you can file for
certiorari

Before you challenge an acquittal this way, you have

to secure consent of the Solicitor General

And this is only for exceptional circumstances

How do you promulgate judgment?
o The accused should be present during promulgation

Except if it is a light offense

Or else he forfeits his remedies

o There is a period within 15 days from promulgation of
judgment within this period he has to explain why he was
absent
o If he is in jail, to whom is the notice served?

The warden
o If he is out on bail?

The bondsman
o If he is at large?

Notice sent to last known address

Is there promulgation in appellate courts?
o Yes.
o When duly certified by the division, and then forwarded to the
clerk of court, who will give notice of promulgation on paper
Can a judgment be modified?
o Yes, before it is final and executory

Rule 120 Judgments

Rule 121-5 Remedies (NT/MR/Appeals)

What should a judgment contain?

o 1. Offense you have committed
o 2. Penalty to be imposed
o 3. Participation, whether principal, accomplice, accessory
o 4. Aggravating or mitigating circumstances
o 5. If acquitted, whether:

Complete non-liability

Reasonable doubt

Is there a record of appeal on criminal cases?

o No.
Is there ordinary appeal (notice of appeal)?
o Yes.

MR/MNT

109

When?

o
o

15 days
Is Neypes applicable (fresh period rule)?

Yes.
Grounds for MNT?
o 1. Errors of law/irregularities prejudicing substantive rights of
accused during trial
o 2. Newly discovered evidence

Material

Could not have been discovered with reasonable

diligence

Would probably change judgment

o How long does the court have to commence a new trial
from the order granting an MNT?

30 days from the notice of such order

Extendable up to 180 days from notice, if the period is

impractical
Ground for MR?
o 1. Errors of law or fact requiring no further proceedings
Can you file MNT in the CA?
o Yes
o What ground?

Newly discovered evidence only

o What is the period?

From perfection of appeal until the court loses

jurisdiction
Can you file MR in the CA?
o Yes, but just one.

Ordinary appeal

Who may appeal in a criminal case?

o Any party may appeal, unless it would place the accused in
double jeopardy
o Parties:

1. Accused

A statutory right, and affirmed in the ROC

2. Offended party

3. People of the Philippines

When may the private offended party appeal?

110

Only as regards the civil aspect of the case

Ex. Did not have a finding of civil liability, did not order
restoration, etc.
o This does not place the accused in double jeopardy.
When may the people appeal?
o See sample question: A person is charged with rape in the
information. Counsel for accused filed a motion to quash for
lack of J over the offense charged. The motion is granted.
What is the effect?

Dismissal of the case.

o Can the State appeal?

Yes. Because double jeopardy has not yet set in.

You file the MTQ before arraignment.
In appeals in civil cases, when a party appeals, only such assignment of
errors that he made in the appeal will be taken up by the court. The
appellate court cannot go beyond this assignment of errors. In criminal
cases, when the accused appeals from his conviction, he throws open
the entire case for review. He will not be limited to the assignment of
errors in the appeal brief.
o Significance: the penalty imposed, instead of being lowered or
cancelled, it can be increased.
In the case of several accused, where some appealed and some
didnt, what is the rule?
o Appeal made by one party does not affect those who did not
appeal.
o Except if it ends up being beneficial.
What happens to the decision?
o The decision is stayed until appeal is not yet completed.
Criminal: X was charged with acts of lasciviousness (within MTC
jurisdiction). MTC renders judgment. Who reviews it?
o RTC, through notice of appeal filed with the MTC. (RULE 122)
o Compare/contrast with Civil:

MTC RTC, through notice of appeal. (RULE 40)

Or MTC RTC, through record of appeal (not

available in criminal cases)
What is the procedure in the RTC for criminal cases, when acting
as appellate court?
o Parties submit their memoranda (Rule 122, Sec 9)
o Compare/contrast with Civil:

Same. Parties submit memoranda.

Criminal: Court of original jurisdiction is the RTC, and he was
convicted for homicide. Appeal?
o Go to the Court of Appeals, through Notice of appeal filed with
the RTC.
o Compare/contrast with RTC in civil action:

Go to the CA, through Notice of appeal filed with

RTC. OR file a record of appeal.

So still the same.

o What is the procedure followed by the CA in criminal
cases?

File appellants brief (Rule 124), within 30 days

File appellees brief, within 30 days

Reply brief, within 20 days

o Compare/contrast with civil cases:

45/45/20 days

Sandiganbayan

Petition for review

If it finds for death again, it can render judgment but

not enter it.
o What happens after?

The CA will certify the case to the SC.

The penalty is life/RP. Is it covered by automatic review?
o No. You need notice of appeal. CA
o The Court of Appeals found in favor of life/RP. Can it
render and enter a decision?

Yes.
o How do you appeal this?

This is the singular instance where you file a NOTICE

OF APPEAL with the Court of Appeals to go up to the
SC.

How does it reach the CA on petition for review?

o If the original case was filed in the MTC.
o MTC RTC CA
What about civil cases?
o Found in Rule 42.
o Still MTC RTC CA
Criminal: Review by the Supreme Court, if the penalty is not
punished by death, life, or reclusion perpetua: from where should
it come from?
o From the CA or the SB only
o Use Rule 45, whether civil or criminal. Again, the general rule
is that you cannot go up to the SC except through petition for
review on certiorari.
o In civil, from where can you come from?

RTC, CA, SB, CTA en banc, etc.

RTC, penalty is death, based on the law (although it cannot be
implemented). How do you appeal?
o There is automatic review to the Court of Appeals, even in the
absence of a notice of appeal.
o The case is with the CA. What can the CA do?

What if the penalty is less than death/life/RP, whether original or

on appeal?
o Rule 45 to SC
o [Note that the CA and SB are same level courts]
What if the penalty is death?
o Automatic review to SC
What if the penalty is life/RP?
o Notice of appeal to SC (like in the CA)

General provisions

111

Can there be a valid judgment even if the judge who rendered the
judgment was not the same one who heard the case?
o Yes.
Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not
appeal when there are multiple accused, and there is a favorable
judgment, it could benefit the non-appealing accused.
o However, in this case, the accused invoking this provision
actually filed an appeal, but it was dismissed due to a
technicality.
When is as appeal deemed to be abandoned?
o When the accused jumps bail, escapes, or fails to file an
appellants brief.

Counsel-de-officio:
o The general rule is the accused is given the choice to retain a
counsel de parte (of his choice)
o If he cannot afford one, the court appoints a counsel de officio
o One can be appointed during arraignment, or for the rest of the
trial.
o Can a counsel de officio be named in the Court of
Appeals?

Yes, when the accused signed his own appeal. Also,

when he was not assisted by counsel.
o Can the SC appoint a counsel de officio for the accused?

Yes, the SC can, but this is not provided for in the

rules.

Sample scenarios

Seduction what court has jurisdiction?

o File in MTC (since MTC cut-off is 6 years)
o Appeal to RTC which has territorial jurisdiction.

Notice of appeal

Records of MTC elevated to RTC, no new trial.

Parties are required to submit memoranda.

Rule 42
o Appeal again to CA

Regardless of the question involved, because RTC

was exercising appellate jurisdiction
o Appeal again to SC

Rule 45 only (pure questions of law)

Estafa
o File in RTC, performing original jurisdiction
o Appeal

Questions of fact and mixed questions, go to CA

Pure questions of law, go to SC

o If you go to SC, what mode?

Rule 45
o If you go to the CA, what mode?

Ordinary appeal, Rule 41

RTC sentences accused to RP or LI. What is the remedy?
o Notice of appeal to CA, Rule 41

112

What issues can you raise?

Facts, or Mixed
o If your questions are just purely legal, are you prevented from
raising it to the SC via Rule 45?

No you are not. There is nothing the rules preventing

you from doing so.
RTC imposes penalty of RP or LI. The CA affirmed. Your MR is denied.
What is your remedy?
o Go to the SC, under Notice of Appeal
o This is the exception
o Purpose: so you raise both questions of law and fact
Where appealed cases from Sandiganbayan go?
o SB (= CA) SC (Rule 45)
o SB (reclusion perpetua or LI) SC (notice of appeal)
o Note: there can still be certiorari (Rule 65) for instances, such
as when the prosecution was deprived its day in court
Does the Rule 41 provision which enumerates what cannot be
appealed apply suppletorily to criminal appeals?
o No.
o Resolution on MTQ is thus appealable regardless of the
ground availed of (because it is a final order)
o If the basis of MTQ is prescription of the offense or double
jeopardy if this is granted by the TC, this means that the
prosecution cannot simply refile it. There is no problem here,
so remedy is appeal.
o The only issue is when the MTQ is based on grounds like
alleging multiple offenses or lack of J of the court, which can
be cured by refiling in a different court the losing party can
still challenge it in an appeal!

Because as highlighted above, the Rule 41 prohibition

does not translate to criminal procedure
Practitioner-type question: If as prosecutor, your complaint was
dismissed under Rule 117 Sec 3 (5) did not comply with proper
form. What is the better remedy to choose: certiorari or appeal
(since this is allowed too)?
o N.B. If this were a civil case, the obvious remedy is re-file or
certiorari under Rule 65, since appeal does not vest.

In a criminal case, you have to choose appeal because

certiorari cannot vest if there is a plain, speedy, available
remedy.
But sir left this issue hanging. Its not yet clear cut.

Rule 126 Searches and seizures

How long is the life of the search warrant?

o 10 days from date of issue, and then void
What can be the personal property subject to search and seizure?
o 1. Subject of offense
o 2. Stolen or embezzled, or fruits of the offense
o 3. Used or intended to be used as means to commit offense
o The search warrant said an undetermined amount of
shabu. The original case was for marijuana. Will this be
enough for the police officers to conduct a search?

Yes, even if the amount was not specified. What is

required is that the object of the search be described
with particularity. Quantity is not required.
o The police officer was armed with a search warrant. But
before implement or enforcing it, on plain view, he saw
illegal firearms. Can there be a valid search?

Yes. Plain view exception applies, even if there is a

search warrant.
Where could you apply for a search warrant?
o 1. You apply to the court, following the rule on territoriality.
o 2. For compelling reasons, any court within judicial region
where the crime was committed or any court within judicial
region where warrant shall be enforced
o What can be a compelling reason?

Its a question of fact, but an example is when he is a

public officer of that locality and there is doubt that a
search warrant can be properly applied for.
o N.B. But if there is already a criminal action, file it in the court
where the action is pending
o Is application for a search warrant a criminal action?

No. It is a special judicial process.

o Can it become one?

113

No. You need information because the application for

a search warrant will not evolve into one.
Where do you file for quashal of search warrant?
o In the court wherein it was applied for if there is no case yet
o If there is a case, in the court where the case is pending
Who determines probable cause for search warrants?
o The judge. Not the prosecutor.
o Wherelse is probable cause required, apart from
application for search warrant?

1. Preliminary investigation

2. Rule 113, warrantless arrest (personal knowledge

that crime has been committed)

3. Warrant of arrest

4. Search and seizure

o What is required for the judge to do?

Personal examination and determination by the judge

of the complainant/applicant and witnesses.

It does not involve mere submission of affidavits.

Give an example of a search based on a warrant, where the place
is described with particularity.
o
Ex. if its an apartment, you give the number of the apartment.
o What if its a stretch of apartments, and what was
indicated is apartment B, but what was searched was
apartment C. Was there a valid search?

No.
o But was the search warrant valid?

Yes. The search warrant can be valid, but the

implementation was invalid.
o There were illegal items seized from apartment C. How
can you prevent these goods from being used in a
criminal trial?

Motion to suppress.
o Differentiate motion to quash from motion to suppress.

Motion to quash is before implementation of the

search warrant.

Motion to suppress is after implementation and before

presentation in court.
o What if there is no way to describe with particularity the
place, esp. when it is a province?

Its possible to say kilometer 30. But this cant apply

for cities or municipalities.
To whom must a search warrant be served?
o The lawful occupant.
o In the absence of the lawful occupant?

To a relative.
o In the absence of the occupant or relative?

To two witnesses of sufficient age and discretion

residing in that locality.
When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the
premises where they were seized
When can it be conducted?
o The warrant must provide that search is in day time
o N.B. Unless affidavit asserts the property is on the person or
place ordered to be searched, in which case, it is day or night
What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit
inventory makes him liable for contempt.
Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For
normal crimes, it can be done in court or police station or
wherever.)
o The person must make a physical science report to track the
chain of custody.
What is the rule as to search and arrest?
o The general rule is that the arrest must come before the search
and seizure.
o Or, the search and seizure must be contemporaneous to
arrest.
If you apply for a search warrant in QC, can it be applied outside of
the territorial jurisdiction?
o As a general rule, no.
o But allowed as an exception for violations of:

1. DDL,

2. IP code,

3. illegal possession of firearms,

4. illegal gambling,

5. Heinous crimes,

6. AML,

7. Violation of tariff and customs code.

o You have to apply before an executive judge before the City of
Manila or Quezon City. This will be effective anywhere in the
Philippines.
Re: Seizure of fake goods (ex. fake Adidas) What is the role of
the private party?
o The private party can submit documents and pleadings to
support the application of the NBI.
The place of manufacture of the fake goods is in Cavite, and place
of sale is in San Juan. Where do you apply?
o Either place.

Rule 127 Provisional remedies

What is the general rule?

o Provisional remedies in civil procedure are applicable to
criminal procedure.
What about replevin?
o Does not apply because it can only be filed before an answer,
but in a criminal case, there is no answer.
What are the grounds for attachment in criminal cases?
o 1. The accused is about to abscond or depart with intent to
defraud
o 2. Claim for money or property that has been embezzled with
abuse of trust (estafa)
o 3. Accused resides outside the Philippines
o 4. Accused has concealed/removed/disposed his property

Situation
PRELIMINARY
INVESTIGATION
Filing of complaint
Initial
action
prosecutor (no PI)
Initial
action
prosecutor (with PI)

114

Period

of
of

Within 10 days from

filing of complaint
Within 10 days from
filing of complaint

Remarks

*start
of
criminal
procedure*
Either dismissing or
prosper
Dismiss case or issue
subpoena
to
respondent

Respondent
submits
counter-affidavit

Clarificatory hearing

Termination
clarificatory hearing
Resolution

of

Forward record of case

to provincial or city
prosecutor
or
OMB/deputy
Action by the provincial
or city prosecutor or
OMB/deputy
Judge
determines
probable cause
Prosecutor to present
additional
evidence
upon judicial order
(Post inquest) Filing of
complaint
or
information in court
without
preliminary
investigation accused
may ask for preliminary
investigation

Within 10 days from

receipt of subpoena

Within 10 days from

submission of counteraffidavits
Within 5 days from first
hearing
Within 10 days after
investigation
Within 5 days from
resolution

If respondent cannot be
subpoenaed or did not
submit counter-affidavit
within
10
days,
prosecutor
resolves
based on complaint
alone
(Optional)

Suspension
of
arraignment due to
petition for review filed
with Sec. of DOJ
Filing of motion to
quash
TRIAL
Time for accused to
prepare for trial
Commencement of trial

Within 10 days from

receipt

Can: a) dismiss or b)
file information

Within 10 days from

filing of information or
complaint
Within 5 days from
notice

If
judge
doubts
existence of probable
cause, he may opt to:
The
10
days
to
determine extends to
30 days

Commencement of trial
after MNT granted
Entire trial period
Exclusion from 180 day
limit of delay due to
pre-trial proceedings or
period
in
which
accused is actually
under advisement
Examination of witness
for defense (aka modes
of discovery for criminal
action)
Leave of court to file
demurrer to evidence

Within 5 days from the

time he learns of its
filing

Opposition
by
prosecution
to
the
motion
After being granted
leave, filing of demurrer
to evidence
Reopening of trial to
avoid miscarriage of
justice

ARRAIGNMENT and
PRE-TRIAL
Arraignment
not under
detention
Arraignment
under
detention

of person
preventive
of person
preventive

Within 30 days from

date court acquires
jurisdiction over him
Raffled within 3 days
from
filing
of
information
or

This same period must

cover pre-trial
Remember the 3:10:10
rule

115

complaint;
Arraigned within 10
days from date of raffle;
Pre-trial within 10 days
from arraignment
Maximum 60 days from
filing of petition

Any time before he is

arraigned

At least 15 days from

plea of not guilty
Within 30 days from
receipt of pre-trial order
Within 30 days from
notice of the order
Maximum 180 days
from first day of trial
Maximum 30 days

Allow extension up to
180 days, by the court

Order by court (upon

application of accused)
issued at least 3 days
before the examination
Within 5 days after
prosecution rests its
case
Within 5 days from
receipt of the motion

Before
a
judge,
member of bar in good
standing, or inferior
court
Non-extendible

Within 10 days from

notice

Non-extendible

Anytime before finality

of conviction

Terminate proceedings
within 30 days from
order granting it

Non-extendible

JUDGMENT,
REMEDIES
Surrender of convicted
accused, after initially
failing to appear in
promulgation
of
judgment
Availing
of
postjudgment remedies of
above-stated person

Appeal from judgment

Submission
appellants brief

Submission
appellees brief

of

Within 15 days from

promulgation
of
judgment

Surrender
and
file
motion to avail of postjudgment
remedies
(because these will not
avail anymore)

Direct: proves fact in dispute without

need for inference or presumption

Within 15 days from

notice, after proving
justifiable reasons for
non-appearance

Primary: best evidence; affords

greatest certainty of fact
Positive: witness affirms that a fact
did or did not occur. Positive trumps
negative, when witnesses equally
credible

*follow usual periods in

appeal
Within 30 days of
receipt of notice from
clerk of transmittal of
evidence

Corroborative: Different kind and

character proving the same point

of

Prima facie: that which suffices to

prove a fact, until contradicted by
other evidence

PART III: EVIDENCE

General provisions

o 3. Testimonial
Whether its object, documentary or testimonial, what is required?
o They have to pass the test of admissibility (Rule 128, Sec. 3)

When did the Rules on Evidence take effect?

o July 1, 1989
What is evidence?
o Evidence is the means, sanctioned by the Rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Not all concepts of evidence will require presentation of evidence.
What are these exceptions?
o 1. Judicial notice
o 2. Judicial admissions
When youre required to present evidence, there are three kinds:
o 1. Object
o 2. Documentary

116

Circumstantial: proof of facts, when

taken collectively, existence of
particular fact may be inferred as a
necessary or probable consequence.
Secondary: inferior to primary
evidence and shows on its face that
better evidence exists.
Negative: witness states that he did
not see or know the occurrence of a
fact; only admissible to contradict
positive evidence.
Cumulative: Same kind and
character as that already given,
proving same point
Conclusive: incontrovertible

When is evidence admissible?

o When it is relevant and competent
When is it relevant?
o 1. When it is material

When is it material?

Has direct relation to the fact in issue

o 2. When it has probative value

When does it have probative value?

Can induce belief as to its existence or nonexistence

When is it competent?
o Not excluded by law
o What are not competent give examples:

Those excluded by the Best Evidence Rule

Those seized without valid warrant and without a valid

exception

Those violating the Parol Evidence Rule (contents in

the written document are presumed to be the