CRIMINAL PROCEDURE NOTES

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PRELIMINARY CHAPTER
WHAT IS THE CLASSIFICATION OF LAWS ACCORDING TO
APPLICATION?
Public and private law
Public law: laws that define the relationship between the State
and the individual (e.g Constitution, Revised Penal Code)
Private law: laws that define the relationship between individuals
(e.g Civil Code, Commercial laws)
WHAT IS THE CLASSIFICATION OF LAWS ACCORDING TO ITS
NATURE?
Substantive and procedural law
Substantive law is the law that creates, defines and regulates
Procedural law defines the method or proceedings in the
enforcement of the rights and duties defined in substantive law
SUBSTANTIVE LAW:
1. Creates
2. Defines
3. Regulates
WHAT IS CRIMINAL PROCEDURE?
Criminal procedure is the method prescribed by law for the
apprehension and prosecution of persons accused of any criminal
offense and for their punishment, in case of conviction
As applied to criminal law, procedural law provides or regulates
the steps by which one who has committed a crime is to be
punished
MEMORY AID: CRIMINAL PROCEDURE IS THE (M
1. METHOD prescribed by law
2. For the APPREHENSION AND PROSECUTION of
3. Persons ACCUSED OF ANY CRIMINAL OFFENSE and
4. For their PUNISHMENT, in case conviction
WHAT IS CRIMINAL PROCEDURE CONCERNED WITH?
Procedural steps through which the criminal case passes
commencing with the investigation of a crime and concluding with
the unconditional release of the offender
Generic term to describe the network of laws and rules which
govern the procedural administration of criminal justice
WHAT ARE THE SOURCES OF CRIMINAL PROSECUTION?

BY: MA. ANGELA LEONOR C. AGUINALDO

ATENEO LAW 2D 2010

1.
2.
3.
4.

Spanish law on criminal procedure

General Order No. 58, dated April 23, 1900
Amendatory acts passed by the Philippines Commission
The quasi-acts, the Philippine Bill of 1902, the Jones law of 1916,
Tydings-McDuffie Law, and the Constitution of the Philippines
5. The Rules of Court of 1940, and the 1964, 1985, and 1988 Rules
on Criminal Procedure
6. Various Republic Acts: RA 240; New Rule 127, providing for
attachment; RA 296, Judiciary Act of 1948 defining criminal
jurisdiction; BP 129, as amended by RA 7691; RA 8249 creating
the Sandiganbayan; RA 8349: Speedy Trial Act of 1998
7. Presidential decrees
8. Article 3: Bill of Rights of 1987 Constitution
9. Civil Code, in particular Articles 32, 33, and 34
10. Certain judicial decisions
11. Circulars
12. The Revised Rules on Criminal Procedure
WHAT ARE THE THREE SYSTEMS OF CRIMINAL PROCEDURE?
1. THE INQUISITORIAL SYSTEM
2. THE ACCUSATORIAL SYSTEM
3. THE MIXED SYSTEM
INQUISITORIAL SYSTEM
Detection and prosecution of offenders are NOT LEFT IN THE
INITIATIVE OF PRIVATE PARTIES but to the officials and agents of
the law
Resort is to SECRET INQUIRY to discover the culprit, and violence
and torture are often employed to extract confessions
Judge not limited to evidence brought before him but could
proceed with his own inquiry which is not confrontational
Characterized by secrecypublic doesnt know of the proceedings
ACCUSATORIAL SYSTEM
Every citizen or member of the group to which the injured party
belongs may bring the accusation against a person suspected as in
the Philippines
is accusatorial in nature
the offender

Action supposed to be a combat between the parties---the

supposed offender has the right to be confronted by his accuser
Battle takes form of a public trial and is judged by a magistrate

who renders a verdict

The essence of this system is the right to be presumed innocent

to defeat this presumption, the prosecution must establish proof

of guilt beyond reasonable doubt or moral certainty

Judicial setup
Characterized by being public

MIXED SYSTEM
Combination of the inquisitorial and accusatorial systems
CRIMINAL LAW
Essentially
substantivedefines
crimes, treats of their nature, and
provides for their punishment

CRIMINAL PROCEDURE
Remedial or proceduralmethod by
which a person accused of a crime
is arrested, tried and punished

What acts are punishable

How the act is punished

HOW ARE THE RULES OF CRIMINAL PROCEDURE CONSTRUED?

Liberally construed in favor of the accused
Strictly construed against the State
WHY SHOULD THE RULES OF CRIMINAL PROCEDURE BE
CONSTRUED LIBERALLY IN FAVOR OF THE ACCUSED?
The purpose is to even the odds between the accused and the
machineries of the State
MAY
THE
RULES OF
CRIMINAL PROCEDURE BE
GIVEN
RETROACTIVE EFFECT?
It is a general rule that rules of procedure may be given
retroactive effect as far as it benefits the accused
WHAT IS JURISDICTION?
Power or authority given by the law to a court or tribunal to hear
and determine certain controversies
Power of courts to hear and determine a controversy involving
rights which are demandable and enforceable
VENUE
Particular country or geographical
area in which a court with
jurisdiction may hear or determine
a case

JURISDICTION
Power of the court to decide a case
on the merits

Place of trial
Procedural

Substantive

In civil cases, may be waived or

stipulated by the parties

Granted by law or by the constitution

and cannot be waived or stipulated

IN CRIMINAL CASES, IS VENUE AND JURISDICTION ONE AND THE

SAME?
Yes, it should be filed where the crime is committed.
This is different from civil cases, wherein venue and jurisdiction
are different with one another
CRIMINAL
JURISDICTION
Authority to hear and try a particular offense and impose the
punishment for it
ELEMENTS
OF
CRIMINAL
JURISDICTION
1. Nature of the offense and the penalty attached thereto
2. Fact that the offense has been committed within the territorial
jurisdiction of the court
WHAT ARE THE REQUISITES FOR A VALID EXERCISE OF CRIMINAL
JURISDICTION?
1. Jurisdiction over the person
2. Jurisdiction over the territory
3. Jurisdiction over the subject matter
WHAT IS JURISDICTION OVER THE SUBJECT
MATTER?
Power to hear and decide cases of the general class to which the
proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers
WHAT ARE THE ELEMENTS OF JURISDICTION OVER SUBJECT
MATTER?
1. Nature of the offense
2. Authority of the court to impose the penalty imposable given the
allegation in the information
3. Territorial jurisdiction of the court imposing the penalty
WHICH LAW DETERMINES THE JURISDICTION OF THE COURT
THE LAW IN FORCE AT THE TIME OF THE COMMISSION OF THE
OFFENSE OR THE ONE IN FORCE AS OF THE TIME WHEN THE
ACTION IS FILED?
General rule: the law as of the time when the action is filed, and
not when the offense was committed
Exception to the rule: where jurisdiction is dependent on the
nature of the position of the accused at the time of the

commission of the offensein this case, jurisdiction is determined

by the law in force at the time of the commission of the offense
WHY IS THE APPLICABLE LAW THE LAW IN FORCE AT THE TIME
WHEN THE ACTION IS FILED?
Since otherwise, it would amount to an ex post facto law if the law
is given retroactive effect and it is not beneficial to the accused.
WHAT
IS
ADHERENCE
OF
JURISDICTION?
Once jurisdiction is vested in the court, it is retained up to the end
of the litigation
Remains with the court until the case is finally terminated
Exception to the rule: when a newly enacted statute changing the
jurisdiction of a court is given retroactive effect. It can divest a
court of jurisdiction over cases already pending before it is which
were filed before the statute came to force or became effective.
WHAT
IS
THE
MOST
IMPORTANT
PRINCIPLE
ON
JURISDICTION?
Jurisdiction is conferred by law
This means that it cannot be the subject of stipulation or waiver
HOW
IS
JURISDICTION
DETERMINED?
It is determination of the allegations contained in the complaint or
information
SITUATION: X WAS CHARGED WITH AN OFFENSE WHOSE PENALTY
IS BELOW 6 YEARS. THE CASE WAS FILED WITH THE MTC. AFTER
TRIAL, THE MTC CONVICTED HIM OF THE CRIME WITH A HIGHER
PENALTY THAN 6 YEARS.
X QUESTIONED THE CONVICTION,
CLAIMING THAT THE MTC HAS NO JURISDICTION OVER THE
OFFENSE SINCE THE PENALTY PRESCRIBED FOR IT WAS HIGHER
THAN 6 YEARS. VALID?
X is wrong
Jurisdiction over the subject matter is determined by the
AUTHORITY OF THE COURT TO IMPOSE THE PENALTY IMPOSABLE
GIVEN THE ALLEGATION IN THE INFORMATION
Not determined by the penalty that may be meted out to the
offender after trial but to the extent of the penalty which the law
imposes for the crime charged in the complaint
IF DURING THE PROCEEDINGS, THE COURT FINDS THAT IT HAS NO
JURISDICTION, HOW SHOULD IT PROCEED?
Lower courts should simply dismiss the case

Where the case is filed in the Supreme Court or the Court of

Appeals, these courts can refer the case to the court with proper
jurisdiction

WHAT IS THE JURISDICTION OF THE MUNICIPAL TRIAL COURTS

IN CRIMINAL CASES?
1. Exclusive original jurisdiction over all violations of city or
municipal ordinances committed within their respective territorial
jurisdiction
2. Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding 6 years, regardless of the fine or
other accessory penalties and civil
liability
3. Offenses involving damage to property through criminal
negligence
4. In cases where the only penalty provided by law is a fine, it has
exclusive jurisdiction over offenses punishable by a fine not
exceeding P4000
5. In election offenses, cases involving failure to register or failure to
vote
6. Special jurisdiction to hear and decide petitioners for a writ of
habeas corpus or application for bail in the province or city where
the RTC judge is absent
7. Cases involving BP 22Bouncing Checks Law
WHAT IS THE JURISDICTION OF REGIONAL TRIAL COURTS IN
CRIMINAL CASES?
1. Exclusive original jurisdiction in criminal cases not within the
exclusive jurisdiction of any court, tribunal or body, except those
falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan
All criminal cases where the penalty is higher than 6 years,
including government-related cases wherein the accused in not
one of those falling under the jurisdiction of the Sandiganbayan is
within the jurisdiction of the RTC.
2.

Other laws which specifically lodge jurisdiction in the RTC

a. Laws on written defamation or libel
b. Decree on Intellectual Property
c. Dangerous Drugs Cases except where the offenders are
below 16 years and there are Juvenile and Domestic
Relations Courts in the province

3.

Appellate jurisdiction over all cases decided by MTCs in their

respective territorial jurisdiction
In areas where there are no family courts, the cases falling under
the jurisdiction of family courts shall be adjudicated by the RTC

3.

WHAT IS THE MEANING OF THE TERM REGULAR COURTS?

It refers to civil courts as opposed to military

courts
Military courts cannot try and exercise jurisdiction over civilians
for offenses allegedly committed by them as long as civil courts
are open and functioning

4.

4.

WHAT COURT HAS JURISDICTION OVER A COMPLEX CRIME?

Trial court having jurisdiction to impose the maximum and more
serious penalty on an offense forming part of the complex crime
WHAT IS TERRITORIAL JURISDICTION?
Territorial jurisdiction means that a criminal action should be filed
in the place where the crime was committed, except in those
cases provided for in Article 2 of the Revised Penal Code
WHAT ARE THE CASES PROVIDED FOR IN ARTICLE 2?
1. Should commit an offense while on a Philippine ship or
airship;
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number;
4. While being public officers or employees, should commit an offense
in the exercise of their functions; or
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of this
Code.
HOW IS JURISDICTION OVER THE PERSON OF THE ACCUSED
ACQUIRED?
1. Upon the lawful arrest of the accused
2.
Upon his voluntary appearance or submission to the
court
WHEN IS THERE A LAWFUL ARREST?
1. When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
2. When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it;

When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another
Hot pursuit

WHAT DOES IT MEAN WHEN A PERSON VOLUNTARILY SUBMITS

HIMSELF TO THE COURT?
He cannot anymore question the jurisdiction of the court over his
person
WHEN CAN A PERSON QUESTION THE LEGALITY OF HIS
ARREST?
An accused may question the legality of his arrest before he
enters his plea
CAN JURISDICTION OVER THE PERSON BE
WAIVED?
Yes
Unlike jurisdiction over the offense which is conferred by the
Constitution or by law, jurisdiction over the person may be waived
For example, any objection to the procedure leading to the arrest
must be opportunely raised before the accused enters his plea, or
it is deemed waived
SITUATION: X WAS CHARGED IN COURT WITH AN OFFENSE.
X
FILED A MOTION TO QUASH ON THE GROUND THAT THE COURT
HAS NO JURISDICTION OVER HIS PERSON BECAUSE THE ARREST
WAS
ILLEGAL
AND
BECAUSE
THE
INFORMATION
WAS
INCOMPLETE. CAN X INVOKE LACK OF JURISDICTION OF THE
COURT OVER HIS PERSON?
No. X cannot invoke the lack of jurisdiction of the court
One who desires to object to the jurisdiction of the court over his
person must appear in court for that purpose only, and if he
raised other questions he waives the objection.
SITUATION: X WAS CHARGED WITH ESTAFA IN MAKATI WHILE HE
IS IN THE US. HE WAS INFORMED ABOUT THIS AND HE MOVED
FOR THE QUASHING OF THE INFORMATION AGAINST HIM.
IS THE PRESENCE OF THE ACCUSED NECESSARY IN ORDER FOR
THE COURT TO ACT ON A MOTION?
It is not necessary for the court to first acquire jurisdiction over
the person of the accused to act on a motion, such as dismissing a
case or other relief.

The outright dismissal of the case even before the court acquires
jurisdiction over the person of the accused is allowed, except in
applications for bail, in which instance the presence of the
accused is mandatory.

WHAT IS THE RELATION OF THE PRINCIPLE OF ESTOPPEL TO

ILLEGALITY OF ARRESTS?
A person who has not questioned the illegality of his arrest can
not do so after a certain period

WHY IS IT NOT NECESSARY FOR THE COURT TO FIRST ACQUIRE

JURISDICTION OVER THE PERSON TO ACT ON A MOTION
EXCEPT IN APPLICATIONS FOR BAIL?
Personal presence is needed in bailthe court needs to know who
the person seeking liberty is

DOES THE PRINCIPLE OF ESTOPPEL APPLY TO THE

STATE?
No, it does not apply

SITUATION: X QUESTIONS THE LEGALITY OF HIS ARREST. HE

COMES BEFORE THE COURT TO APPLY FOR BAIL. DID HE WAIVE
HIS RIGHT TO QUESTION THE LEGALITY OF HIS ARREST?
Application for bail is not a waiver on the part of the arrested
person as long as he has not entered his plea

Section 1. Institution of criminal actions. Criminal actions shall

be instituted as follows:

CAN A PERSON WAIVE TO QUESTION THE ILLEGALITY OF HIS

ARREST?
He cannot question the illegality of his arrest after he enters his
plea
He must question the illegality before arraignment or before he
enters his plea
HOW ARREST IS TO BE
MADE?
An arrest is made by an ACTUAL RESTRAINT of a person to be
arrested, or by his submission to the custody of the person
making the arrest.
No violence or unnecessary force shall be used in making an
arrest. The person arrested shall not be subject to a greater
restraint than is necessary for his detention.
WHAT
DO
WE
MEAN
BY
ACTUAL
RESTRAINT?
When the person is deprived of liberty or otherwise in the custody
of the person making the arrest
IS THERE AN EXCEPTION TO THE RULE OF PHYSICAL PRESENCE IN
APPLICATION FOR BAIL?
See the PADARANGA CASE
WHAT ARE THE REMEDIES OF A
ARRESTED?
1. By the filing of a motion to quash
2. Refuse to enter plea (?)

PERSON

ILLEGALLY

RULE 110 - PROSECUTION OF OFFENSES

(a) For offenses where a preliminary investigation is required

pursuant to section 1 of Rule 112, by filing the complaint with the
proper officer for the purpose of conducting the requisite
preliminary investigation.
(b) For all other offenses, by filing the complaint or information
directly with the Municipal Trial Courts and Municipal Circuit Trial
Courts, or the complaint with the office of the prosecutor. In
Manila and other chartered cities, the complaints shall be filed
with the office of the prosecutor unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt the running of
the period of prescription of the offense charged unless otherwise
provided in special laws.
HOW
ARE
CRIMINAL
ACTIONS
INSTITUTED?
1. For offenses where a preliminary investigation is required, by
filing a complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation
2. For the other offenses, by filing the complaint or information
directly with the MTC or complaint with the office of the
prosecutor
WHAT IS THE EFFECT OF THE INSTITUTION OF THE CRIMINAL
ACTIONS ON THE PERIOD OF PRESCRIPTION OF THE OFFENSE?
It shall interrupt the running off the period of prescription of the
offense unless otherwise provided for in special laws
Rule doesnt apply to violations of municipal ordinances and
special lawsinterrupted only by the institution of the judicial
proceedings for their investigation and punishment, while
violations of municipal ordinances prescribe after 2 months

INSTITUTION
For
offenses
which
require
preliminary
investigation,
the
criminal action is instituted by filing
the complaint for preliminary
investigation

COMMENCEMENT
Criminal action is commenced when
the complaint or information is filed
in court

WHAT IS THE EFFECT OF THE FILING BEFORE THE LUPON

BARANGAY TO THE RUNNING OF PRESCRIPTION?
It would interrupt the running of the prescriptive period but it
should not be for more than 60 days
Sixty days counted from the time when the Lupon Secretary
certifies that no conciliation or settlement was reached or upon
repudiation of the parties of the agreement
CAN THE OFFENDED PARTY GO DIRECTLY TO COURT TO FILE A
CRIMINAL ACTION?
No. General rule is that before a complaint is filed in court, there
should have been a confrontation between the parties before the
Lupon Chairman.
The Lupon secretary should certify that no
conciliation or settlement was reached attested to by the Lupon
Chairman.
The complaint may also be filed if the settlement is repudiated by
the parties
Note: Lupon Tagapamayapa
WHAT IS THE PROCEDURE IN THE KATARUNGAN
PAMBARANGAY LAW?
1. While the dispute is under mediation conciliation or arbitration,
the prescriptive periods for offenses and cause of action under
existing laws shall be interrupted upon filing of the complaint with
the Punong Barangay
2. Prescriptive periods shall resume upon receipt by the complainant
of the complaint or the certificate of repudiation or of the
certification to file action filed by the Lupon or Pangkat
secretary
3. Provided however, that such interruption shall not exceed 60 days
from the filing of the complaint with the Punong Barangay
WHAT ARE THE EXCEPTIONS TO THE RULE?
1. Where the accused is under detention
2. Where a person has been otherwise deprived of personal liberty
calling for habeas corpus proceedings

3.
4.

Where actions are coupled with provisional remedies

Where the action may be barred by the statute of limitations

WHEN
ARE
AMICABLE
SETTLEMENTS
NOT
ALLOWED?
1. Where one party is the government or any subdivision or
instrumentality thereof
2. Where one party is a public officer or employee and the dispute
relates to the performance of his official functions
3. Offenses punishable by imprisonment exceeding 1 year or fine
exceeding P5000
4. Offenses where there is no private offended party
5. Where the dispute involves real properties located in different
cities or municipalities
6. Disputes involving parties who reside in different barangays, cities
or municipalities
7. Other cases which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice
WHAT IS THE DIFFERENCE BETWEEN THE INSTANCES WHEN
PARTIES MAY GO DIRECTLY TO COURT AND WHEN AMICABLE
SETTLEMENTS ARE NOT ALLOWED?
The difference is that when the amicable settlements are not
allowed, the parties may still go to the Lupon Taga-pamayapa. It
is the Lupon that will say that it has no jurisdiction to settle the
dispute, on the other hand, in the other instance, the parties may
go directly to the court without going to the Lupon
Sec. 2. The complaint or information The complaint or
information shall be in writing, in the name of the People of the
Philippines and against all persons who appear to be
responsible for the offense involved.
WHAT IS THE FORM REQUIRED FOR THE COMPLAINT OR
INFORMATION?
1. Shall be in writing
2. In the name of the People of the Philippines
3. Against all persons who appear to be responsible for the offense
involved
WHY SHOULD THE COMPLAINT OR INFORMATION BE IN THE
NAME OF THE PEOPLE OF THE PHILIPPINES?
Crime is considered an outrage against the peace and security of
the people at large, its vindication must also be in the name of the
people

If the complaint was instituted in the name of the offended party,

such is only a defect in form and may be cured at any stage of the
trial
Justice Sabio: there was this person charged of raping a woman
who questions why People of the Philippines v. Juan dela Cruz
when he has only raped one person

HOW MANY OFFENDED PARTY COULD THERE

BE?
Public and private offended parties
The State, which is the public offended party
The individual, who is the private offended party
WHY
SHOULD
THE
COMPLAINT
BE
IN
WRITING?
So that the court has a basis for its decision
To inform the accused of the nature and cause of the accusation
to allow him to present his defense
So that given the fallibility of human memory, nobody will forget
the charge
TO WHOSE DECISION IS IT TO CHARGE PERSONS WHO APPEAR
TO BE RESPONSIBLE FOR THE OFFENSE?
Prosecutor
Sec. 3. Complaint defined. A complaint is a sworn written
statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer charged
with the enforcement of the law violated.
WHAT
IS
A
COMPLAINT?
1. Sworn written statement
2. Charging a person with an offense
3. Subscribed by the offended party, any peace officer, or public
officer charged with the enforcement of the law
WHO
MAY
FILE
A
COMPLAINT?
May be filed by the offended party, any peace officer, or public
officer charged with the enforcement of the law violated
WHO
IS
THE
OFFENDED
PARTY?
Person actually injured or whose feeling is offended
One to whom the offender is also civilly liable under Article 100 of
the RPC

Article 100. Civil liability of a person guilty of felony.

Every person criminally liable for a felony is also civilly liable.
IF THE OFFENDED PARTY DIES BEFORE HE IS ABLE TO FILE A
COMPLAINT, CAN HIS HEIRS FILE IT IN HIS BEHALF?
No, the right to file a criminal action is personal and abates upon
the death of the offended party. It is not transmissible to his
heirs.
This pertains to private crimes, compared to public crimes
WHY DO WE HAVE TO MAKE A DISTINCTION BETWEEN
PRIVATE AND PUBLIC CRIMES?
There is a deference to the offended party when it comes to
private crimes
CAN YOU FILE A COMPLAINT AGAINST A JURIDICAL PERSON?
No, a criminal complaint cannot lie against a juridical person
If the corporation violates the law, the officer, through whom the
corporation acts, answers criminally for his acts
MAY CRIMINAL PROSECUTIONS BE ENJOINED?
No, public interest requires that criminal acts must be
immediately investigated and prosecuted
Why? For the protection of society
Enjoin: to forbid or command someone to do something
It is a matter of policy
WHAT ARE THE EXCEPTIONS TO THE RULE THAT CRIMINAL
PROSECUTIONS MAY BE ENJOINED?
1. To afford adequate protection to constitutional rights of the
accused
2. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions
3. Where there is a prejudicial question which is sub judice (before a
court or judge for consideration)
4. When the acts of the officer are without or in excess of authority
5. Where the prosecution is under invalid law, ordinance, or
regulation
6. When double jeopardy is clearly apparent
7. Where the court had no jurisdiction over the offense
8. Where is it a case of persecution rather than prosecution
9. Where the charges are manifestly false and motivated by the lust
for vengeance

10. When there is clearly no prima facie case against the accused and
a motion to quash on that ground has been denied
11. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners
IF THE COMPLAINT IS NOT SWORN TO BY THE OFFENDED PARTY,
IS IT VOID?
No, a complaint presented by a private person when not sworn to
by him is not necessarily void
The want of an oath is merely a defect in form, which doesnt
affect the substantive rights of the defendant on the merits
WHEN
IS
A
COMPLAINT
REQUIRED?
1. If the offense is one which cannot be prosecuted de officio
2. Offense is private in nature
3. Where it pertains to those cases which need to be endorsed by
specific public authorities
Sec. 4. Information defined. An information is an accusation in
writing charging a person with an offense, subscribed by the
prosecutor and filed with the court.
WHAT
IS
AN
INFORMATION?
1. Accusation in writing
2. Charging a person with an offense
3. Subscribed by the prosecutor
4. Filed in the court
COMPLAINT
May be signed by the offended
party, any peace officer, or other
public officer in charge with the
enforcement of the law violated

INFORMATION
Always signed by prosecuting officer

Sworn to by the person signing it

Need not be under oath since the

prosecuting officer filing it is already
acting under his oath of office

May be filed either with the office

of prosecutor or with the court

Always filed in the court

In private offenses, this would start

the proceedings

An information is a product of a

complaint
Sec. 5. Who must prosecute criminal actions. All criminal actions
commenced by a complaint or information shall be prosecuted
under the direction and control of the prosecutor. However, in
Municipal Trial Courts or Municipal Circuit Trial Courts when the
prosecutor assigned thereto or to the case is not available, the
offended party, any peace officer, or public officer charged with
the enforcement of the law violated may prosecute the case.
This authority shall cease upon actual intervention of the
prosecutor or upon elevation of the case to the Regional Trial
Court.(Read A.M. NO. 02-2-07-SC [Effective May 01, 2002]
Latest Amendments to Section 5, Rule 110 of the Revised Rules of
Criminal Procedure which provides:
"Section 5. Who must
prosecute criminal action. - All criminal actions either commenced
by complaint or by information shall be prosecuted under the
direction and control of a public prosecutor. In case of heavy work
schedule of the public prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be authorized in writing
by the Chief of the Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the approval of the
court. Once so authorized to prosecute the criminal action, the
private prosecutor shall continue to prosecute the case up to end
of the trial even in the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn. x x x .").
The crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse. The
offended party cannot institute criminal prosecution without
including the guilty parties, if both are alive, nor, in any case, if
the offended party has consented to the offense or pardoned the
offenders.
The
offenses
of
seduction,
abduction
and
acts
of
lasciviousness shall not be prosecuted upon a complaint filed
by the offended party or her parents, grandparents or guardian,
nor, in any case, if the offender has been expressly pardoned by
any of them. If the offended party dies or becomes incapacitated
before she can file the complaint, and she has no known parents,
grandparents or guardian, the State shall initiate the criminal
action in her behalf.
The offended party, even if a minor, has the right to initiate the
prosecution of the offenses of seduction, abduction and acts of

lasciviousness independently of her parents, grandparents, or

guardian, unless she is incompetent or incapable of doing so.
Where the offended party, who is a minor, fails to file the
complaint, her parents, grandparents, or guardian may file the
same. The right to file the action granted to parents,
grandparents, or guardian shall be exclusive of all other persons
and shall be exercised successively in the order herein provided,
except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation
of any of the offenses mentioned above shall be brought except at
the instance of and upon complaint filed by the offended party.
The prosecution for violation of special laws shall be governed by
the provision thereof.
WHO
MAY
PROSECUTE
CRIMINAL
ACTIONS?
General rule: all criminal actions commenced by the filing of a
complaint or information shall be prosecuted under the direction
and control of the prosecutor
In the MTC or MCTC, if the prosecutor is unavailable, the offended
party, any peace officer or public officer in charge with the
enforcement of the law violated may prosecute. This authority
ceases upon actual intervention of the prosecutor or upon
elevation of the case to the RTC.
CAN A PROSECUTOR BE COMPELLED TO FILE A PARTICULAR
COMPLAINT OR INFORMATION?
No
A prosecutor is under no compulsion to file a particular
criminal

The resolution of the Secretary of Justice may be appealed to the

Office of the President in cases of offenses punishable by death or
reclusio perpetua

IS THE PROSECUTOR REQUIRED TO BE PHYSICALLY PRESENT IN

THE TRIAL OF A CRIMINAL CASE?
If he is not physically present, it cannot be said that the
prosecution was under his supervision and controlas held in the
case of People v. Beriales
People v. Malinao and Bravo v. CAproceedings are valid even
without the physical presence of the fiscal who left the prosecution
to the private prosecutor under his supervision and control
AFTER A CASE IS FILED IN COURT, TO WHOM SHOULD A
MOTION TO DISMISS BE ADDRESSED?
Once the information is filed in court, the court acquires
jurisdiction
Whatever the disposition the prosecutor may feel would proper in
the case thereafter should be properly addressed to the
consideration of the court, subject only to the limitation that the
court could not impair the substantial rights of the accused or the
right of the people to due process
WHERE SHOULD A MOTION FOR REINVESTIGATION BE FILED?
Should be to the trial judge and to him alone
IF THE PROSECUTOR THINKS AFTER FILING A CASE, THAT A
PRIMA FACIE CASE DOES NOT EXIST, CAN HE REFUSE TO
PROSECUTE?
No, he cannot refuse to prosecute
He is obliged by law to proceed and prosecute the criminal action

information where he is not convinced that he has evidence to

support his allegations thereof
May generally be not compelled by mandamus except if the
prosecutor shows evident bias in filing the information and
refuses to include co-accused without justification

But before filing of mandamus, the party must first avail himself
of such other remedies such as the filing of a motion for inclusion
The power of prosecution is discretionary in nature

TO WHOM SHOULD ONE APPEAL A DECISION OF THE

PROSECUTOR?
The decision of the Prosecutor may be appealed to the Secretary
of Justice or in special cases by the President of the Philippines

He cannot impose his opinion on court

At most, he could file a Motion for Reinvestigation or a Motion to
Withdraw Information
Justice Sabio: the judge would be stupid enough not to grant a
Motion to Withdraw Information or Motion for Reinvestigation
Serapio v. Sandiganbayan: the court may order the dismissal of a
case if it finds the absence of probable cause (essence of the
control of the court)

WHAT IS THE DISTINCTION BETWEEN THE CONTROL BY THE

PROSECUTION AND CONTROL BY THE COURT?
Before the filing of the case in court, the prosecution has control
over the followingwhat case to file, if need be; whom to
prosecute; the manner of prosecution; to conduct reinvestigation

The right to prosecute vests the prosecutor with a wide range of

discretionthe discretion of whether, what, and whom to charge,
the exercise of which depends on a variety of factors which are
best appreciated by the prosecutors
After the filing of the case in court, the court has control over the
followingthe suspension of arraignment; reinvestigation;
prosecution by the prosecutor; dismissal or withdrawal of the
case; and downgrading of the offense or dropping of the accused
even before plea; and review of the Secretarys recommendation
and reject it if there is grave abuse of discretion

WHAT ARE THE LIMITATIONS ON THE CONTROL OF THE COURT?

1. Prosecution is entitled to notice
2. The court must await the result of the petition for review
3. The prosecutions stand to maintain prosecution should be
respected by the court
WHAT ARE THE CRIMES THAT MUST BE PROSECUTED
UPON COMPLAINT OF THE OFFENDED PARTY?
1. Adultery and concubinage
2. Seduction, abduction, acts of lasciviousness
3. Defamation which consists in the imputation of an offense
mentioned above
IS THERE DEFAMATION AND A PRIVATE CRIME WHEN ONE
CALLS ANOTHER BLASPHEMOUS AND CHRONIC LIAR?
No, for the defamation to be considered a private crime, there
should be imputation of committing adultery, concubinage,
seduction, abduction, or acts of lasciviousness
WHAT IS A PRIVATE CRIME?
Private offense which cannot be prosecuted except upon a
complaint filed by the aggrieved party
Only to give deference to the offended party who may prefer not
to file the case instead of going through a scandal of a public trial
AFTER THE CASE FOR A PRIVATE CRIME IS FILED IN COURT, WHAT
IS THE EFFECT OF PARDON BY THE OFFENDED PARTY?
Will not have any effect on the prosecution of the offense
Once a complaint has been filed in court, jurisdiction over the
offense will be acquired and will continue to be exercised by the
court until the termination of the case

WHAT IS THE MEANING OF THE STATEMENT THAT

COMPLIANCE WITH THE RULE IS JURISDICTIONAL?
Complaint filed by the offended party is what starts the
prosecution, without which the courts cannot exercise their
jurisdiction
Prosecution cannot proceed without the complaint being filed by
the complainant
CAN A FATHER FILE A COMPLAINT ON BEHALF OF HIS DAUGHTER
FOR CONCUBINAGE?
No, the rule allowing parents, grandparents, or guardians to file a
complaint on behalf of the minor applies only to the offenses of
seduction, abduction, and acts of lasciviousness
A complaint for adultery and concubinage may only be filed by the
offended party
IF THE OFFENDED PARTY IS OF AGE IN THE CRIME OF
ABDUCTION, SEDUCTION, OR ACTS OF LASCIVIOUSNESS, CAN
HER PARENTS, GRANDPARENTS, OR GUARDIAN FILE THE
COMPLAINT FOR HER?
No. If the offended party is already of age, she has the exclusive
right to file the complaint unless she becomes incapacitated
The parents, grandparents, and guardians only have exclusive
successive authority to file the case if the offended party is only a
minor
IF THE OFFENDED PARTY DIES DURING THE PENDENCY OF THE
CASE,
IS
THE
CRIMINAL
LIABILITY
OF
THE
ACCUSED
EXTINGUISHED?
No, the death of the complainant during the pendency of the case
is not a ground for the extinguishment of criminal liability whether
total or partial
X FILED A SWORN COMPLAINT FOR ACTS OF LASCIVIOUSNESS
BEFORE THE PROSECUTOR.
BEFORE THE PROSECUTOR COULD
FILE A CASE IN COURT, X DIED. CAN THE PROSECUTOR STILL
FILE THE INFORMATION IN COURT?
Yes, the desire of X to file the case is evident in her filing of
complaint before the prosecutor
AN INFORMATION FOR ROBBERY WITH RAPE WAS FILED AGAINST
X.
X MOVED TO DISMISS THE INFORMATION ON THE GROUND
THAT THERE WAS NO COMPLAINT FILED BY THE OFFENDED
PARTY. SHOULD THE CASE BE DISMISSED?

No, in robbery with rape, the complaint of the offended party is

not necessary since the offense of robbery is not a private offense
Prosecution can be commenced without the complaint of the
offended party

Sec. 6. Sufficiency of complaint or information. A complaint or

information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of
them shall be included in the complaint or information.
WHEN
IS
A
COMPLAINT
OR
INFORMATION
DEEMED
SUFFICIENT?
It is deemed sufficient if it states the following:
o
The name of the accused
o
The designation of the offense as defined by statute
o
The acts or omissions complained of as constituting the
offense
o
The name of the offended party
o
The approximate date of the commission of the offense
o
The place of the commission of the offense
Nothing in Section 6 or 8 of Rule 110 mandates that the
material
allegations should be stated in the preamble or caption of the
Information (People v. Villanueva)
X WAS CHARGED WITH RAPE OF THE 10-YEAR-OLD DAUGHTER OF
HIS COMMON-LAW WIFE.
THE INFORMATION ONLY ALLEGED
MINORITY AND RELATIONSHIP IN THE TITLE. VALID?
Yes. As held in People v. Villanueva, Nothing in Section 6 or 8 of
Rule 110 mandates that the material allegations should be stated
in the preamble or caption of the Information
WHAT IS THE RATIONALE BEHIND THE REQUIREMENTS TO DEEM A
COMPLAINT OR INFORMATION TO BE SUFFICIENT?
This is in consonance with the accuseds right to be informed of
the nature and cause of the accusation against him
ARTICLE 3, SECTION 14.
1. No person shall be held to answer for a criminal offense
without due process of law.

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, 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 evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding
the absence of the accused: Provided, that he has been duly
notified and his failure to appear is unjustifiable.

Sec. 7. Name of the accused. The complaint or information must

state the name and surname of the accused or any appellation or
nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name shall
be inserted in the complaint or information and record.
WHEN IS THE ERROR IN THE NAME OF THE ACCUSED NOT FATAL
TO AN INFORMATION?
Error in the name of the accused will not nullify the information if
it contains sufficient description of the person of the accused
WHEN SHOULD THE ERROR IN THE NAME OR IDENTITY BE RAISED
BY THE ACCUSED?
The error should be raised before arraignment, or else it is
deemed waived
WHY SHOULD THE NAME OF THE ACCUSED
PROVIDED?
In the issuance of the arrest warrants
For the court to acquire jurisdiction

BE

Sec. 8. Designation of the offense. The complaint or information

shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section
or subsection of the statute punishing it.

WHAT SHOULD BE INCLUDED IN THE DESIGNATION OF THE

OFFENSE IN THE COMPLAINT OR INFORMATION?
1. Designation of the offense given by the statute
2. Acts and omissions constituting the offense
3. Qualifying and aggravating circumstances
4. If there is no designation of the offense by the statute, reference
shall be made to the section or subsection of the statute punishing
it
THE
INFORMATION
MERELY
ALLEGED
EVIDENT
PREMEDITATION BUT THE TRIAL COURT CONSIDERED IT IN
IMPOSING THE PENALTY. VALID?
Invalid. It is not enough that the aggravating circumstance of
evident premeditation be alleged.
The essential elements thereof, just like the offense itself, must
be clearly proven and established
X WAS CHARGED WITH HOMICIDE.
CAN HE POSSIBLY BE
CONVICTED OF MURDER?
Yes. If the recitals in the complaint or information of the acts
and
omissions constituting the offense actually allege murder, X can
be convicted of murder.
The reason is that the recital of facts and not the designation of
the offense that is controlling
IN IMPOSING THE PENALTY FOR THE CRIME OF MURDER THE
TRIAL COURT CONSIDERED THE CIRCUMSTANCE OF THE USE OF
AN UNLICENSED FIREARM AS PROVEN DURING THE TRIAL TO
QUALIFY THE CRIME PURSUANT TO RA 8294, EVEN IF NOT
ALLEGED
IN THE
No.
The INFORMATION.
culprits use of anVALID?
unlicensed firearm is an essential
element, of which circumstances which must be alleged
X WAS CHARGED WITH ESTAFA BUT THE RECITAL OF FACTS
ACTUALLY ALLEGES THEFT. CAN X BE CONVICTED OF THEFT?
Yes, because it is the recital of facts, not the designation of the
offense which is controlling
X WAS CHARGED WITH ESTAFA AND THE RECITAL OF FACTS
ALLEGE ESTAFA. CAN X BE CONVICTED OF THEFT?
No, the two crimes have elements that are different from each
other. To convict X of theft under an information that alleges

estafa would violate his right to be informed of the nature and

cause of the accusation against him.
X WAS CHARGED WITH MURDER.
CAN HE BE CONVICTED OF
HOMICIDE?
Yes. It is the recital of the facts and not the designation of the
offense, which is controlling.
Murder is constituted of homicide with additional qualifying
aggravating circumstances. It may be the case that the qualifying
aggravating circumstances were not proven, to convict the
accused
WHAT IS THE REASON FOR QUALIFYING OR AGGRAVATING
CIRCUMSTANCES?
Its existence may give another designation of the offense
committed or increase the penalty to be imposed if the accused is
convicted
WHAT SHOULD THE PROSECUTOR DO IF EVER THERE EXISTS
AGGRAVATING OR QUALIFYING CIRCUMSTANCES?
To be appreciated, it must be specifically included in the allegation
of facts.
It must also be proven just like the crime itselfit should be
proven beyond reasonable doubt
WHAT ARE NEGATIVE ALLEGATIONS? WHAT IS THE DIFFERENCE
OF A NEGATIVE ALLEGATION AS AN ESSENTIAL ELEMENT OF A
CRIME AND A NEGATIVE ALLEGATION AS NOT AN ELEMENT OF A
CRIME?
A negative allegation as an essential element or ingredient of a
crime, it should be included in the information and must be
proven to be able to convict the accused
A negative allegation, if not an essential element of a crime, it

may not be included in the information to be able to convict the

accused
If a person is caught with a firearm without any license, the

information should indicate that he was carrying the firearm

without any license. This is a mala prohibitum. If the absence of
license is not included in the information, he could not be
convicted.
If a person is caught with prohibited drugs. This is a mala in se.

It is enough that he was in possession of such drugs. You dont

need to allege that he isnt in possession of any prescription. The

doctors prescription as mentioned by the accused is only a

matter of defense.
X WAS CHARGED WITH RAPE OF THE 10-YEAR-OLD DAUGHTER OF
HIS COMMON-LAW WIFE.
THE INFORMATION ONLY ALLEGED
MINORITY. THE COURT CONVICTED THE ACCUSED OF RAPE AND
IMPOSED THE DEATH PENALTY AFTER THE RELATIONSHIP OF THE
ACCUSED WITH THE VICTIMS MOTHER WAS PROVEN. WAS THE
COURT CORRECT?
No, while under Article 335 of the RPC amended by RA 7659, the
accused may be sentenced to death if the victim is a minor and
the offender is the parent, ascendant, stepparent, guardian,
relative by consanguinity or affinity within the third civil degree,
or the common-law spouse of the parent of the victim, THE TWIN
REQUISITES OF MINORITY AND RELATIONSHIP MUST BE
ALLEGED AND PROVED TO WARRANT THE IMPOSITION OF THE
DEATH PENALTY
X WAS CHARGED WITH RAPE COMMITTED THROUGH FORCE AND
INTIMIDATION. CAN HE BE CONVICTED OF RAPE WHERE THE
WOMAN IS
DEPRIVED OF
REASON OR
IS
OTHERWISE
UNCONSCIOUS?
No, where the law distinguishes two cases of violation of its
provision, the complaint or information must specify under which
of the two cases the defendant is being charged
Sec. 9. Cause of the accusation. The acts or omissions
complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying and aggravating circumstance and for the court
to pronounce judgment.
IN THE INFORMATION FOR RAPE THE AGES AND RELATIONSHIP
OF THE VICTIMS WERE STATED BUT NOT ALLEGED WITH
SPECIFICITY AS QUALIFYING CIRCUMSTANCES.
IN IMPOSING
THE PENALTY, THE COURT CONSIDERED THEM AS QUALIFYING
CIRCUMSTANCES. PROPER?
The requirement under Section 8 is satisfied as long as the
circumstances are alleged in the information even if those are not
specified as aggravating or qualifying circumstances

IN WHAT CASE CAN AN ACCUSED NOT BE CONVICTED OF A CRIME

DIFFERENT FROM THAT DESIGNATED IN THE COMPLAINT OR
INFORMATION EVEN IF THE RECITAL OF FACTS ALLEGE THE
COMMISSION OF THE CRIME?
The accused cannot be convicted if:
1. It involves a change of theory in the trial
2. It requires of the defendant a different defense
3. It surprises the accused in anyway
X WAS ACCUSED OF ILLEGAL POSSESSION OF FIREARMS, BUT THE
INFORMATION DIDN'T ALLEGE THAT X DIDN'T HAVE ANY LICENSE
TO POSSESS THE FIREARM. IS THE INFORMATION VALID?
No, the absence of the license is an essential element of the
offense
It should be alleged in the complaint or information
THE
TRIAL COURT
FOUND
THAT
THE
AGGRAVATING
CIRCUMSTANCE OF SUPERIOR STRENGTH AND DISREGARD OF SEX
ATTENDED THE COMMISSION OF THE CRIME AND WERE
SUFFICIENTLY PROVEN. THE COURT THUS CONSIDERED THEM IN
CONVICTING AND SENTENCING ACCUSED. VALID?
No, aggravating circumstances even if proven during the trial
could affect the culprits liability if the information failed to allege
such circumstances
X WAS CHARGED WITH ILLEGAL POSSESSION OF OPIUM.
X
CONTENDS THAT THE INFORMATION WAS INVALID FOR FAILURE
TO ALLEGE THAT HE DIDN'T HAVE A PRESCRIPTION FROM A
PHYSICIAN. IS X CORRECT?
No, the absence of the prescription is not an essential element of
the offense and is only a matter of defense
It need not be alleged in the information.
Sec. 10. Place of commission of the offense. The complaint or
information is sufficient if it can be understood from its
allegations that the offense was committed or some of its essential
ingredients occurred at some place within the jurisdiction of the
court, unless the particular place where it was committed
constitutes an essential element of the offense charged or is
necessary for its identification.
THE INFORMATION MENTIONS THAT THE CRIME WAS COMMITTED
WITHIN THE TERRITORIAL JURISDICTION OF THE COURT. IS
THIS SUFFICIENT?

Yes, as long as it is alleged that the essential ingredients of the

offense or crime has been committed within the territorial
jurisdiction of the court

(a) In offenses against property, if the name of the offended party

is unknown, the property must be described with such
particularity as to properly identify the offense charged.

IN WHICH OFFENSES IS THE PARTICULAR PLACE WHERE THE

OFFENSE WAS COMMITTED ESSENTIAL?
The particular place where the offense was committed is essential in the
following crimes:
1. Violation of domicile
2. Penalty on the keeper, watchman, visitor of opium den
3. Trespass to dwelling
4. Violation of election lawprohibiting the carrying of a deadly
weapon within a 30-m radius of polling place

(b) If the true name of the person against whom or against whose
property the offense was committed is thereafter disclosed or
ascertained, the court must cause such true name to be inserted in
the complaint or information and the record.

Sec. 11. Date of commission of the offense. - It is not necessary to

state in the complaint or information the precise date the offense
was committed except when it is a material ingredient of the
offense. The offense may be alleged to have been committed on a
date as near as possible to the actual date of its commission.

IN WHAT CASE IS THE NAME OF THE OFFENDED PARTY

DISPENSIBLE?
In offenses against property, the name of the offended party may
be dispensed with as long as the object taken or destroyed is
particularly described to properly identifying the offense

ACCUSED WAS CHARGED AND CONVICTED OF RAPE COMMITTED

ON OR ABOUT THE MONTH OF AUGUST 1996. VALID?
Yes. If the appellant was of the belief that the complaint
was
defective, he should have filed a motion for a bill of particulars
with the trial court before his arraignment.

IN WHAT CASES IS THE NAME OF THE OFFENDED PARTY

INDISPENSIBLE?
In cases involving slander and robbery with violence or
intimidation (People v. Lahoylaloy, 38 Phil 330)

FOR WHICH OFFENSES IS THE TIME OF THE COMMISSION OF THE

OFFENSE ESSENTIAL?
The time of the commission of the offense is essential in the
following crimes:
o
Infanticide
o
Violation of Sunday Statutes or Election laws
o
Abortion
o
Bigamy
Sec. 12. Name of the offended party. The complaint or
information must state the name and surname of the person
against whom or against whose property the offense was
committed, or any appellation or nickname by which such person
has been or is known. If there is no better way of identifying him,
he must be described under a fictitious name.

(c) If the offended party is a juridical person, it is sufficient to

state its name, or any name or designation by which it is known or
by which it may be identified, without need of averring that it is a
juridical person or that it is organized in accordance with law.

WHEN SHOULD THE ACCUSED RAISE AN ERROR IN HIS

NAME?
Upon arraignment
Otherwise, he is deemed to have waived the question of his
identity on appeal
Sec. 13. Duplicity of the offense. A complaint or information
must charge only one offense, except when the law prescribes a
single punishment for various offenses.
WHAT IS THE RULE ON DUPLICITY OF
OFFENSES?
General rule: A complaint or information must charge only one
offense
Exception: when the law provides only one punishment for the
various offenses (complex and compound crimes under Article 48
of the RPC and special complex crimes)
ARTICLE
48:
PENALTY
FOR
COMPLEX
CRIMES
When a single act constitutes two or more grave or less grave
felonies, or when an offense is necessary for committing the other,

the penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period

WHAT IS THE PRINCIPLE OF ABSORPTION?

1

WHAT IS THE EFFECT OF THE FAILURE OF THE ACCUSED TO

OBJECT TO A DUPLICITOUS INFORMATION?
If the accused fails to object before arraignment, the right is
deemed waived, and he may be convicted of as many offenses as
there are charged
WHAT IS THE REMEDY OF AN ACCUSED IN CASE OF
DUPLICITOUS OFFENSES CHARGED AGAINST HIM?
The accused may file a motion to quash on void complaint
WHAT IS A COMPLEX CRIME?
1. When a single act produces two or more grave or less grave felonies
2. When an offense is necessary for committing the other
WHAT IS A COMPOUND CRIME?
When a single act constitutes 2 or more grave or less grave
felonies

WHAT
IS
A
COMPLEX
CRIME
PROPER?
When an offense is necessary for committing the other
X FIRED HIS GUN ONCE, BUT THE BULLET KILLED 2 PERSONS. HE
WAS CHARGED WITH TWO COUNTS OF HOMICIDE IN ONE
INFORMATION.
CAN HE BE CONVICTED UNDER THAT
INFORMATION?
Yes. It falls under the exception to the rule.
This is a compound crime in which one act results in two or more
grave or less grave felonies
The law provides only one penalty for the two offenses
X WAS CHARGED WITH BOTH ROBBERY AND ESTAFA IN ONE
INFORMATION. CAN HE BE CONVICTED OF BOTH OFFENSES?
It depends. If he objects to the duplicitous information
before
arraignment, he cannot be convicted under the information.
But if he fails to object before arraignment, he can be convicted
of as many offenses as there are in the information

In cases of rebellion, other crimes committed in the course of

crime are deemed absorbed in the crime of rebellion either as a
means necessary for its commission or as an unintended effect of
rebellion
They cannot be charged as separate offenses in themselves
Exception: when the common crimes are committed without any
political motivation. In such case, they will not be absorbed by
rebellion.

IF HOMICIDE OR MURDER IS COMMITTED WITH THE USE OF AN

UNLICENSED FIREARM, HOW MANY OFFENSES ARE THERE?
There is only one offensemurder or homicide aggravated by the
use of the unlicensed firearm
X WAS SPEEDING ON A HIGHWAY WHEN HIS CAR COLLIDED WITH
ANOTHER CAR. THE OTHER CAR WAS TOTALLY WRECKED AND THE
DRIVER OF THE OTHER CAR SUFFERED SERIOUS PHYSICAL
INJURIES. HOW MANY INFORMATION SHOULD BE FILED AGAINST
X?
Only one information should be filed for serious physical injuries
and damage to property through reckless imprudence
The information against X cannot be split into 2 because there
was only one negligent act resulting in serious physical injuries
and
damage to property
SAME CASE AS ABOVE, BUT THE INJURIES SUFFERED BY THE
DRIVER WERE ONLY SLIGHT PHYSICAL INJURIES. HOW MANY
INFORMATIONS SHOULD BE FILED?
Two informations this timeone for the slight physical injuries
and the other for damage to property
Light felonies may not be complexed

Justice Sabio: he remembers a stupid decision wherein the SC held that

the crime of illegal possession of firearms is absorbed in crimes embodied
by the Revised Penal Code. There was this gang war between children of
politicians in Greenhills. They got their high-powered guns and proceeded
to Greenhills. When the police authorities were near, the spoiled brats shot
at the rats. They were only convicted of ALARMS AND SCANDALS. The
height of absurdity and no less than the former Chief Justice, Hilario
Davide, was the one who made this monumental doctrine.

Sec. 14. Amendment or substitution. A complaint or information

may be amended, in form or in substance, without leave of court at
any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave
of court and and when it can be done without causing prejudice to
the rights of the accused.
However, any amendment before plea, which downgrades the
nature of the offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of
court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the
offended party.
If it appears at anytime before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 19, Rule
119, provided the accused shall not be placed in double jeopardy.
The court may require the witnesses to give bail for their
appearance at the trial.
WHEN CAN A COMPLAINT OR INFORMATION BE
AMENDED?
General rule: Before plea, a complaint or information can be
amended in form or in substance without leave of court
Exception: if the amendment will downgrade the offense or drop
an accused from the complaint or information. In such case, the
following requisites shall be observed:
1. The amendment must be made upon motion of the prosecutor
2. With notice to the offended party
3. With leave of court
4. The court must state its reason in resolving the motion
5. Copies of the resolution should be furnished all parties,
especially the offended party
After plea, only FORMAL AMENDMENTS may be made but with the
leave of court and when it can be done without causing prejudice
to the rights of the accused
WHEN
CAN
A
COMPLAINT
OR
INFORMATION
BE
SUBSTITUTED?
A complaint or information may be substituted
if:
1. At any time before judgment it appears that a mistake has been
made in charging the proper offense, and

2.
3.

The accused cannot be convicted of the offense charged or of any

other offense necessarily included therein
Provided that he will not be placed in double jeopardy

WHEN ARE THE RIGHTS OF THE ACCUSED MAY BE PREJUDICED BY

AN AMENDMENT?
The rights of the accused may be prejudiced by an amendment in the
following circumstances:
1. When the defense which he had under the original information
would no longer be available
2. When any evidence which he had under the original information
would no longer be available
3. When any evidence which he had under the original information
would no longer be applicable to the amended information
WHAT ARE SUBSTANTIAL AMENDMENTS?
Amendments involving the recital of facts constituting the offense
and determinative of the jurisdiction of the court
All other matters are merely of form
After plea, substantial amendments are prohibited
WHEN CAN THERE BE AN AMENDMENT?
BEFORE PLEA, a complaint or information can be amended in form
or in substance without leave of court, except if the amendment
will downgrade the offense or drop an accused from the complaint
or information. In such a case, the following requisites must be
observed:
1. Must be made upon motion of the prosecutor
2. With notice to the offended party
3. With leave of court
4. The court must state its reason in resolving the motion
5. Copies of the resolution should be furnished all parties,
especially the offended party

AFTER PLEA, only formal amendments may be made only with

leave of court and when it can be done without
causing prejudice to the rights of the accused.

WHAT IS A SUBSTITUTION?
A complaint or information may be substituted if at any time
before judgment, it appears that a mistake has been made in
charging the proper offense, and the accused cannot be convicted
of the offense charged or of any other offense necessarily included
therein, provided that he will not be placed in double jeopardy.

WHAT ARE THE DISTINCTIONS BETWEEN AN AMENDMENT AND A

SUBSTITUTION?
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change.
2. Amendment before plea can be effected without leave of court, but
substitution is always done with leave of court since it involves the
dismissal
of
the
original
complaint.
3. Where the amendment is only as to form, there is no need for a new
preliminary investigation or plea; in substitution, another preliminary
investigation and plea is required.
4. An amended information refers to the same offense charged or to one,
which necessarily includes or is necessarily included in the original charge,
hence substantial amendments after plea cannot be made over the
objection of the accused. Substitution requires that the new information is
for a different offense which does not include or is not necessarily included
in the original charge.
AMENDMENT
May
invoke
either
formal
substantial changes

or

SUBSTITUTION
Necessarily involves a substantial
change

Before plea, can be effected without

leave of court

Always done with leave of court

Amended information refers to the

same offense charged or to one,
which necessarily includes or is
necessarily included in the original
charge

Requires that new information is for

a different offense which doesnt
include or isnt necessarily included
in the original charge

WHAT IS THE TEST TO DETERMINE IF WHAT IS NEEDED IS

AMENDMENT OR SUBSTITUTION?
Whether the new offense necessarily includes or is necessarily
included in the original charge, or is an attempt to commit the
same or frustration thereof
IS THERE A NEED FOR SUBSTITUTION OR AMENDMENT WHEN THE
ORIGINAL CRIME CHARGED IS ROBBERY BUT IT WAS LATER
FOUND OUT THAT THE CRIME SHOULD BE THEFT?
No since theft and robbery are similar in their elements, it is only
the existence of certain aggravating or qualifying circumstances in
robbery that makes the difference

WHEN
CAN
THERE
BE
DOUBLE
JEOPARDY?
To substantiate a claim of double jeopardy, the following must
be proven:
a. The first jeopardy must have attached prior to the second
b. The first jeopardy must have been validly terminated
c. The second jeopardy must be for the same offense, or the
second offense includes or is necessarily included in the
offense
charged in the first information, or is an attempt to commit the
same or is a frustration thereof
WHEN
DOES
DOUBLE
JEOPARDY
ATTACH?
In order that protection against double jeopardy may inure in
favor of the accused, the following should be present:
a. A valid complaint or information
b. A competent court
c. The defendant pleaded to the charge
d. The defendant was acquitted or convicted, or the case
against him was dismissed or otherwise terminated without his
express consent
IS AN ADDITIONAL ALLEGATION OF HABITUAL DELINQUENCY AND
RECIDIVISM A SUBSTANTIAL AMENDMENT?
No, these allegations only relate to the range of the imposable
penalty but not the nature of the offense
IS THE AMENDMENT OF AN INFORMATION FROM FRUSTRATED
MURDER
TO
CONSUMMATED
MURDER
A
SUBSTANTIAL
AMENDMENT?
No, it is merely a formal amendment and the accused need not
have to be re-arraigned
IS AN ADDITIONAL ALLEGATION OF CONSPIRACY A SUBSTANTIAL
AMENDMENT?
No, it is not a substantial amendment (new Sabio answer)
Yes because it changes the theory of the defense. It makes the
accused liable not only for his own acts but also for those of his
co-conspirators. (Old J. Sabio answer)
The new answer is: No, it is not a substantial amendment in the
following example: X is charged with murder as principal. Later,
the complaint is amended to include two other persons who
allegedly conspired with X. Can X invoke double jeopardy on the
ground that the amendment is substantial? No. The amendment

is merely a formal amendment because it does not prejudice the

rights of X, who was charged as a principal to begin with.
X IS CHARGED WITH MURDER AS A PRINCIPAL.
LATER, THE
COMPLAINT IS AMENDED TO INCLUDE TWO OTHER PERSONS WHO
ALLEGEDLY CONSPIRED WITH X. VALID?
X cannot invoke double jeopardy on the ground that the
amendment is substantial
The amendment is merely a formal amendment because it
doesnt
prejudice the rights of X, who was charged as a principal to begin
with
IS A CHANGE IN THE ITEMS STOLEN BY THE ACCUSED A
SUBSTANTIAL AMENDMENT OR A FORMAL AMENDMENT?
It is substantial as it affects the essence of the imputed crime
and
would deprive the accused of the opportunity to meet all the
allegations in preparation of his defense
IS THE CHANGE IN THE NATURE OF THE OFFENSE DUE TO
SUPERVENING EVENT A SUBSTANTIAL AMENDMENT?
No, it is merely a formal amendment
We have to distinguish if the event is supervening or not, to be
able to establish if its a formal amendment or not
RULE ON SUPERVENING FACTS: Where after the first prosecution a
new fact supervenes for which the defendant is responsible, which changes
the character of the offense and, together with the facts existing at the
time, constitutes a new and distinct offense, the accused cannot be said to
be in second jeopardy if indicted for the second offense.
WHY DO WE MAKE A DISTINCTION BETWEEN A SUBSTANTIAL AND
FORMAL AMENDMENTS?
Whether or not it is for the same offense, or the second offense
includes or is necessarily included in the offense charged in the
first information, or is an attempt to commit the same or is a
frustration thereof
CAN THE COURT ORDER THE DISMISSAL OF THE ORIIGNAL
COMPLAINT BEFORE A NEW ONE IS FILED IN SUBSTITUTION?
No, the court will not order the dismissal until the new
information
is filed

IS THERE AN ABSOLUTE RIGHT TO SUBSTITUTION INFORMATION

BY FILING A NEW ONE?
No, the right is subject to the following limitations:
1. That no judgment has been rendered yet
2. That the accused cannot be convicted of the offense charged
or of any other offense necessarily included therein
3. That the accused will not be placed in double jeopardy
Sec. 15. Place where action is to be instituted.

(a) Subject to existing laws, the criminal action shall be instituted

and tried in the court of the municipality or territory where the
offense was committed or where any of its essential ingredients
occurred.
(b) Where an offense is committed in a train, aircraft, or other
public or private vehicle in the course of its trip, the criminal
action shall be instituted and tried in the court of any
municipality or territory where such train, aircraft, or other vehicle
passed during its trip, including the place of its departure and
arrival.
(c) Where an offense is committed on board a vessel in the course
of its voyage, the criminal action shall be instituted and tried in
the court of the first port of entry or of any municipality or
territory where the vessel passed during such voyage, subject to
the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under
Article 2 of the Revised Penal Code shall be cognizable by the
court where the criminal action is first filed.
THE INFORMATION FOR MURDER DID NOT CONTAIN THE PLACE
WHERE IT WAS COMMITTED. IS THE INFORMATION VALID?
Yes, it is still valid.
The information may include wordings that mention that the crime
was committed within the territorial jurisdiction of the court.
The place of the commission of the crime may just be later
established by evidence
WHERE
SHOULD
A
CRIMINAL
ACTION
BE
INSTITUTED?
1. In the court of the municipality or territory where the offense was
committed or where any of its essential ingredients occurred
exception to this rule are those which fall under the jurisdiction of
the Sandiganbayan

2.

3.

4.

If the offense was committed in a train, aircraft, or any other

public or private vehicle: in the court of the municipality or
territory where the vehicle passed during the trip, including the
place of departure or arrival
If committed on board a vessel in the course of the voyage: in the
first port of entry or of any municipality or territory where the
vessel passed during the voyage, subject to the generally
accepted principles of international law
If the crime was committed outside the Philippines but is
punishable under Article 2 of the RPC: any court where the action
is first filed

WHAT IS A TRANSITORY OFFENSE? AND A CONTINUING

OFFENSE?
TRANSITORY OFFENSE: crimes where some acts material and
essential to the crimes and requisite to their commission occur in
one municipality or territory and some acts are done in another
place.
CONTINUING OFFENSE:
consummated in one place, yet by
nature of the offense, the violation of the law is deemed
continuing
HOW DO YOU DETERMINE JURISDICTION OVER A
CONTINUING CRIME?
The courts of the territories where the essential ingredients of the
crime took place have CONCURRENT JURISDICTION
But the court which first acquires jurisdiction excludes the other
courts
WHAT ARE THE RULES ON VENUE IN LIBEL CASES?
1. General rule: criminal action for libel may be filed with the RTC of
the province or city where the libelous article is printed and first
published
2. If the offended party is a private individual, the criminal action
may also be filed in the RTC of the province where he actually
resided at the time of the commission of the offense
3. If the offended party is a public officer whose office is in Manila at
the time of the commission of the offense, the criminal action may
be filed in the RTC of Manila
4. If the offended party is a public officer whose office is outside
Manila, the action may be filed in the RTC of the province or city
where he held office at the time of the commission of the offense
Article 353. Definition of libel. A libel is public and
malicious imputation of a crime, or of a vice or defect, real or
imaginary, or

any act, omission, condition, status, or circumstance tending to

cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead.
Sec. 16. Intervention of the offended party in criminal action.
Where the civil action for recovery of civil liability is instituted in
the criminal action pursuant to Rule 111, the offended party may
intervene by counsel in the prosecution of the offense.
CAN THE OFFENDED PARTY INTERVENE IN THE PROSECUTION OF
THE CRIMINAL ACTION?
General rule: YES
Exception to the rule: when he has waived his right, has reserved
it, or has already instituted the criminal action
Basis is Article 100: every person criminally liable shall also be
civilly liable
DO THE OFFENDED PARTIES HAVE THE RIGHT TO MOVE FOR THE
DISMISSAL OF THE CASE?
No, the right belongs only to the government prosecutor who is
the representative of the plaintiff
CAN THE OFFENDED PARTY FILE A CIVIL ACTION FOR CERTIORARI
IN HIS OWN NAME IF THE RTC DISMISSES AN INFORMATION?
Yes. In case of grave abuse of discretion amount to lack or
excess of jurisdiction, the petition may be filed by the offended
party
The offended party has an interest in the civil aspect of the case
RULE 111 - PROSECUTION OF CIVIL
ACTION Section 1. Institution of criminal and civil
actions.
(a) When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be
deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action
shall be made before the prosecution starts presenting its
evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

CRIMINAL PROCEDURE NOTES

Page 2 0 2 0 of
120
When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or exemplary
damages without specifying the amount thereof in the complaint
or information, the filing fees therefore shall constitute a first lien
on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in
the complaint or information, the corresponding filing fees shall
be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be
required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed
by the accused in the criminal case, but any cause of action which
could have been the subject thereof may be litigated in a separate
civil action.
(b) The criminal action for violation of Batas Pambansa Blg.
22 shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount
of the check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also seeks
to recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay additional filing fees based
on the amounts alleged therein. If the amounts are not so alleged
but any of these damages are subsequently awarded by the court,
the filing fees based on the amount awarded shall constitute a first
lien on the judgment.
Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated with the
criminal action upon application with the court trying the latter
case. If the application is granted, the trial of both actions shall
proceed in accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions.
WHAT IS THE GENERAL RULE GOVERNING THE INSTITUTION OF
CRIMINAL AND CIVIL ACTIONS IN RELATION TO THIS SECTION?
The general rule is that when a criminal action is instituted, the
civil action for the recovery of the civil liability arising from the

offense charged under Article 100 of the RPC shall be deemed

instituted with the criminal action
Hence, the subsidiary civil liability of the employee under Article
103 of the RPC may be enforced by execution on the basis of the
judgment of conviction meted out the employee
o
NOTE: Under the present amendment, the employer may
no longer be civilly liable for quasi-delict in the criminal
action.
The reason for this is that quasi-delict is not
deemed instituted with the criminal action. The only civil
liability of the employer in the criminal action would be
his subsidiary liability under the Article 102 and 103 of
the RPC (Philippine Rabbit Bus case)//

WHAT IS THE JURIDICAL BASIS OF THE PRINCIPLE OF IMPLIED

INSTITUTION OF THE CIVIL ACTION WITH THE CRIMINAL
ACTION?
The bases are found in the following:
1. Article 100 of the RPC: Every person criminally liable for
a felony is also civilly liable
2. Article 2176 of the New Civil Code: Whoever by act or
omission causes damage to another there being fault or
negligence is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing obligation
is called quasi-delict and is governed by the provisions of
this Code
3. Article 1157 of the New Civil Code: Obligations may arise
from acts or omissions punished by law and from quasidelict
WHAT ARE THE EXCEPTIONS?
The civil action is not deemed instituted in the following cases:
1. When the offended party has waived the civil action
2. When the offended party has reserved the right to
institute it separately
3. When the offended party has instituted the civil action
prior to the institution of the criminal action
WHAT KIND OF CIVIL ACTION IS DEEMED INSTITUTED WITH THE
CRIMINAL ACTION?
Only the civil action for the recovery of the civil liability arising
from the offense under Article 100 of the RPC, and not the
independent under Article 32, 33, 34 and 2176 of the Civil Code,
are deemed instituted with the criminal action
WHAT IS THE DUAL CONCEPT OF CIVIL LIABILITY?

two

Dual concept of civil liability means that civil liability may arise
from crimes or from quasi-delicts
Thus, a negligent act which causes damage may produce
kinds of civil liabilityone arising from crime and another arising
from quasi-delict
The only limitation is that the offended party may not recover
twice from the same act

WHAT ARE THE DIFFERENCES BETWEEN A CRIME AND A QUASIDELICT?

CRIME
Affect public interest
RPC punishes
criminal act

or

QUASI-DELICT
Only of private concern
corrects

the

Crimes are punished only if there is

a law providing for their punishment

Merely repairs the damage

means of indemnification

by

Includes all acts where fault or

negligence intervenes hence under
the CC, these may be punishable
when fault or negligence is present
broader in scope

If the offended party seeks to enforce civil liability against

accused by way of moral, nominal, temperate, or exemplary
damages (other than actual), the following are the bases for
docket fees:
o
If amount other than actual damages is stated, it will be
based on the stated amount
o
If no amount is stated, no docket fees will be paid yet but
the docket fees to be paid will constitute a lien on the
damages that will be awarded

WHEN SHOULD THE RESERVATION BE

MADE?
The reservation should be made before the prosecution presents
its evidence and under circumstances affording the offended party
a reasonable opportunity to make such reservation
WHAT
IS
THE
REASON
FOR
THE
RULE
REQUIRING
RESERVATION?
The reason is to prevent double recovery from the same act or
omission

WHAT CONSTITUTES CIVIL LIABILITY?

According to Article 104 of the RPC, civil liability includes
restitution, reparation, and indemnification for consequential
damages

WHAT IS THE SIGNIFICANCE OF THE APPEARANCE OF THE

OFFENDED PARTY, IN THE CRIMINAL CASE THROUGH PRIVATE
PROSECUTOR?
The appearance of the offended party may not per se be
considered either as an implied election to have his claim for
damages determined in said proceedings or a waiver of the right
to have determined separately

WHAT IS THE BASIS FOR THE BROADER CONCEPT OF

CIVIL LIABILITY?
The broader concept of civil liability means that every person
criminally liable is also civilly liable
This is because in a criminal offense, there are two offended
partiesthe state and the private offended party

IN A BP22 CASE, CAN THE OFFENDED PARTY MAKE A

RESERVATION OF THE CIVIL ACTION?
No, the criminal action shall be deemed to include the civil action,
and the offended party is not allowed to make the reservation
The actual damages and the filing fees shall be equivalent to the
value of the check.

IF THE COMPLAINT DOESNT CONTAIN AN ALLEGATION FOR

DAMAGES, IS THE OFFENDER STILL LIABLE FOR THEM?
Yes, because every person criminally liable is also civilly liable
Exception: when the offended party has waived or has reserved
the right to institute the civil action separately

Sec. 2. When separate civil action is suspended. After the

criminal action has been commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has
been entered in the criminal action.

WHAT IS THE RULE ON PAYMENT OF DOCKET FEES ON CIVIL

LIABILITY?

If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever state it
may be found before judgment on the merits. The suspension shall
last until final judgment is rendered in the criminal action.
Nevertheless, before judgment on the merits rendered in the civil
action, the same may, upon motion of the offended party, be

consolidated with the criminal action in the court trying the

criminal action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of
the prosecution to cross-examine the witness presented by the
offended party in the criminal case and of the parties to present
additional evidence. The consolidated criminal and civil actions
shall be tried and decided jointly.
During the pendency of the criminal action, the running period of
prescription of the civil action which cannot be instituted
separately or whose proceeding has been suspended shall be
tolled.
The extinction of the penal action does not carry with it extinction
of the civil action. However, the civil action based on delict shall
be deemed extinguished if there is a finding in a final judgment in
the criminal action that the act or omission from which the civil
liability may arise did not exist.
WHEN
IS
THE
SEPARATE
CIVIL
ACTION
SUSPENDED?
After the criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final judgment
has been entered in the criminal action.
If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever state it
may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the criminal action.
Nonetheless, the civil action may be consolidate with the criminal
action at any time before judgment on the merits upon motion of
the offended party with the court trying the criminal action
The evidence presented at the civil action shall be deemed
reproduced in the criminal action without prejudice to the right of
the prosecution to cross-examine the witness presented by the
offended party in the criminal case and of the parties to present
additional evidence. The consolidated criminal actions shall be
tried and decided jointly
ONLY EXCEPTION: a prejudicial question arising in a previously
filed civil action should be resolved first
ARE
THE
INDEPENDENT
CIVIL
ACTIONS
ALSO
DEEMED
SUSPENDED WITH THE FILING OF THE CRIMINAL ACTION?
No, only the civil action arising from the crime under Article 100 of
the RPC is suspended

The independent civil actions are not suspended and may

continue even if the criminal action has been instituted
However, the offended party may not recover twice from the same
act
He should only get the bigger award

WHAT IS THE EFFECT OF ACQUITTAL ON THE CIVIL ACTION?

The general rule is that the civil action is not necessarily
extinguished by the acquittal of the accused. Even if the accused
is acquitted, the court can still award civil liability in the following
cases:
1. When the acquittal is based on reasonable doubt and
there was no negligence
2. When there is a declaration in the decision that the
liability of the accused is only civil
3. When the civil liability is not derived from or based on the
criminal act of which the accused is acquitted
(independent civil actions)
However, if the decision contains a finding that the act from which
the civil liability may arise doesnt exist, the civil liability is
extinguished
WHAT ARE THE TWO TYPES OF ACQUITTAL?
1. Acquittal based on reasonable doubt
2. Acquittal based on the meritshe didn't commit the crime
CAN YOU COMPEL A JUDGE BY MANDAMUS TO AWARD CIVIL
DAMAGES?
Yes, because every person criminally liable is also civilly liable
Another reason is that even if the accused is acquitted, there are
cases when he is still civilly liable
WHAT IS THE REASON FOR ALLOWING CIVIL LIABILITY TO
SUBSIST IN SPITE OF THE ACQUITTAL OF THE ACCUSED?
The reason is that the parties in the criminal and civil actions are
differentin the criminal action, the party is the state, while in the
civil action, the party is the private offended party
Also, the two actions require different quantities of evidencethe
criminal action requires proof of guilt beyond reasonable doubt,
the civil action on the other hand, requires mere preponderance
of evidence
Sec. 3. When civil action may proceed independently. In
the cases provided in Articles 32, 33, 34 and 2176 of the Civil
Code of

the Philippines, the independent civil action may be brought by the

offended party. It shall proceed independently of the criminal
action and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages twice for
the same act or omission charged in the criminal action.
WHAT
ARE
THE
INDEPENDENT
CIVIL
ACTIONS?
The independent civil actions are those provided in Articles 32,
33,
34 and 2176 of the Civil Code
They may proceed independently of the criminal action and shall
require only a preponderance of evidence
This is the principle of independent civil actionsit can proceed
independently from the criminal action. Nonetheless, the
offended
party may not have double recovery. The offended party only
gets the bigger award.
Justice Sabio: Philippine Rabbit case clarified the rule regarding
independent civil actions
Sec. 4. Effect of death on civil actions. The death of the accused
after arraignment and during the pendency of the criminal action
shall extinguish the civil liability arising from the delict. However,
the independent civil action instituted under section 3 of this Rule
or which thereafter is instituted to enforce liability arising from
other sources of obligation may be continued against the estate or
legal representative of the accused after proper substitution or
against said estate, as the case may be. The heirs of the accused
may be substituted for the deceased without requiring the
appointment of an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be
enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be
dismissed without prejudice to any civil action the offended party
may file against the estate of the deceased.
WHAT IS THE EFFECT OF THE DEATH OF THE ACCUSED ON THE
CRIMINAL AND CIVIL ACTIONS?

1.
2.

If the accused dies before arraignment, the case shall be

dismissed, without prejudice to any civil action that the offended
party may file against the estate of the deceased
If the accused dies after arraignment and during the pendency of
the criminal action, both the criminal and civil liability arising from
the crime shall be extinguished
However, the independent civil actions may be filed against
the estate of the accused after proper substitution, and the
heirs of the accused may also be substituted for the deceased

Sec. 5. Judgment in civil action not a bar. A final judgment

rendered in a civil action absolving the defendant from civil
liability is not a bar to a criminal action against the defendant for
the same act or omission subject of the civil action.
WHEN THE DEFENDANT IS ABSOLVED OF CIVIL LIABILITY IN A
CIVIL ACTION, CAN A CRIMINAL ACTION STILL BE FILED AGAINST
HIM? (ALTERNATIVE QUESTION: FOR EXAMPLE, X INSTITUTED A
CIVIL ACTION BEFOREHAND AND IT WAS DISMISSED LATER ON.
CAN A CRIMINAL ACTION STILL BE FILED?)
Yes, while every person criminally liable is also civilly liable, the
converse is not true
Therefore, even if the defendant is absolved of civil liability in a
civil action, a criminal action can still be filed against him.
The outcome of the civil action is not in anyway determinative of
the guilt or innocence of the respondent in the civil case
Besides, the state is a party in a criminal action, while only the
private offended party is a party in a civil action
Moreover, the quantum of evidence in the civil action is only
preponderance of evidence while that required in the criminal
action is proof beyond reasonable doubt
CAN THE OFFENDED PARTY STILL INTERVENE WITH THE
CRIMINAL ACTION?
No because interest of the offended party is only civil
Any time he institutes the 3 actions, he cannot anymore intervene
in the criminal action
The interest of the state is criminal prosecution of the accused
Sec. 6. Suspension by reason of prejudicial question. A
petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed in
the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been
filed in court for trial, the

petition to suspend shall be filed in the same criminal action at any

time before the prosecution rests.
MAY THE COURT MOTU PROPIO ORDER THE DISMISSAL OF A
CRIMINAL ACTION WHERE THERE IS A PREJUDICIAL QUESTION TO
BE RESOLVED?
No, the court can only suspend the criminal action upon a petition
but it has no authority to order its dismissal
WHAT
IS
A
PREJUDICIAL
QUESTION?
A prejudicial question is one based on a fact separate and distinct
from the crime but is so intimately related to it that it determines
the guilt or innocence of the accused
WHAT
IS
THE
RULE
REGARDING
PREJUDICIAL
QUESTIONS?
In case the civil action was instituted ahead of the criminal action,
the same shall be suspended in whatever stage it may be found
and before judgment is the merits upon commencement of the
criminal action
WHAT IS THE RATIONALE BEHIND THE PREJUDICIAL QUESTION
RULE?
To avoid two conflicting decisions
Sec. 7. Elements of prejudicial question. The elements of a
prejudicial questions are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the resolution of such
issue determines whether or not the criminal action may proceed.
WHAT ARE THE ELEMENTS OF A PREJUDICIAL
QUESTION?
1. The previously filed civil action involves an issue which is similar
or is intimately related with an issue raised in the subsequent
criminal action
2. The resolution of the issue will determine whether or not the
criminal action may proceed
WHEN IS AN ACTION FOR ANNULMENT OF
MARRIAGE
PREJUDICIAL TO A BIGAMY CASE?
An action for annulment of marriage is prejudicial to a bigamy
case only if the accused in the bigamy charge is also the one
asking for annulment of the second (bigamous marriage based on
vitiation of consent)

This is because in such a case, if the court declares that the

partys consent is indeed vitiated and annuls the marriage, then it
would mean that the party didnt willingly commit the crime of
bigamy
It would thus be determinative of the guilt and innocence of the
accused

IS AN ACTION FOR NULLITY BECAUSE OF ARTICLE 36 A

PRELIMINARY QUESTION OF ADULTERY?
No, what is important is the fact that the marriage still subsisted
during the commission of the crime of adultery
IS AN ACTION FOR LEGAL SEPARATION A PRELIMINARY
QUESTION ON CONCUBINAGE?
No, in legal separation, the marriage bond is not severed and
thus, it doesn't matter if the legal separation was granted or not
RULE 112 - PRELIMINARY INVESTIGATION
Section 1. Preliminary investigation defined; when required.
Preliminary investigation is an inquiry or proceeding to determine
whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.
Except as provided in Section 7 of this Rule, a preliminary
investigation is required to be conducted before the filing of a
compliant or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and
one (1) day without regard to the fine.
WHAT
IS
A
PRELIMINARY
INVESTIGATION?
It is an inquiry or proceeding to determine whether there is
sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty
thereof, and should be held for trial
WHAT IS THE NATURE AND EFFECTS OF A PRELIMINARY
INVESTIGATION?
1. It is merely inquisitorial
2. Only means of discovering whether the offense has been
committed and the persons responsible for it
3. To enable the fiscal to prepare his complaint and information
4. Not a trial on the merits

5.

Determine whether there is probable cause to believe that an

offense has been committed and the accused is probably guilty of
it
6. Doesn't place the accused in jeopardy
7. Doesn't affect the jurisdiction of the courtonly the regularity of
the proceedings
8. Accused cannot assert lack of preliminary investigation. Court
cannot dismiss the case based on this groundit should conduct
the investigation or order the fiscal or lower court to do it
9. Preliminary investigation may be waived
10. Accused should invoke right to PI before plea, otherwise it is
deemed waived
11. Accused doesn't have full gamut of rights yet. He doesn't have
right to counsel unless a confession is being obtained from him.
12. There is also no right to confront witnesses against him.
WHEN IS IT REQUIRED?

4.

To protect the state from having to conduct useless and

expensive trials

WHAT IS THE SCOPE OF PRELIMINARY INVESTIGATION?

Preliminary investigation is merely inquisitorial and it is often the
only means of discovering whether the offense has been
committed and the persons responsible for it to enable the fiscal
to prepare his complaint or information
It is not a trial on the merits and has no purpose BUT to
determine whether there is probable cause to believe that an
offense has been committed and that the accused is probably
guilty of it
It doesn't place the accused in double jeopardy
IS THE RIGHT TO PRELIMINARY INVESTIGATION A FUNDAMENTAL
RIGHT?
No, it is a statutory right

Before a complaint or information is filed, preliminary

investigation is required for all offenses punishable by
imprisonment of at least 4 years, 2 months and 1 day, regardless
of the fine, except if the accused was arrested by virtue of a lawful
arrest without warrant
In case of lawful arrest without warrant: the complaint or
information may be filed without a preliminary investigation
unless
the accused asks for a preliminary investigation and waives his
rights under Article 125 of the RPC
Whether or not there is a need for PI depends upon the
imposable
penalty for the crime charged in the complaint filed with the city
or provincial prosecutors office and not upon the imposable
penalty for the crime fund to have been committed by the
respondent after a preliminary investigation

WHAT IS THE PURPOSE OF A PRELIMINARY INVESTIGATION?

1. To determine if there is sufficient ground to engender a wellfounded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial
2. To protect the accused from the inconvenience, expense, and
burden of defending himself in a formal trial unless the reasonable
probability of his guilt has been first ascertained in a fairly
summary proceeding by a competent officer
3. To secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public
accusation of a crime, from the trouble, expense and anxiety of a
public trial

May be waived expressly or by silence

It is not an element of due process unless it is expressly granted
by law
While the right to a PI may be substantial, nevertheless it is not a
constitutional right

CAN THE ACCUSED DEMAND THE RIGHT TO CONFRONT AND CROSSEXAMINE

HIS
WITNESSES
DURING
THE
PRELIMINARY INVESTIGATION?
No, the preliminary investigation is not part of the trial
It is summary and inquisitorial in nature
Its function is not to determine the guilt of the accused but merely
to determine the existence of probable cause
IS THE LACK OF A PRELIMINARY INVESTIGATION A GROUND FOR
DISMISSING A COMPLAINT?

No, the absence of a PI doesn't affect the jurisdiction of the court

but merely the regularity of the proceedings
Neither is it a ground to quash the information or nullify the order
of arrest issued against him or justify the release of the accused
from detention
The court cannot dismiss the complaint on this ground, and it
should instead conduct the investigation or order the fiscal or
lower court to do it considering that the inquest investigation
conducted by the state prosecutor is null and void
The trial court should suspend proceedings and order a PI where
the inquest conducted is null and void

WHAT IS THE EFFECT OF THE ABSENCE OF CERTIFICATION THAT

PRELIMINARY INVESTIGATION WAS CONDUCTED?
It is of no consequence
The important thing is that there was actually an investigation and
that the accused was informed thereof and was allowed to
present controverting evidence

WHO MAY CONDUCT PRELIMINARY INVESTIGATIONS?

1. Provincial or city prosecutors and their assistants
2. National and Regional State prosecutors
3. COMELEC with respect to election offenses
4. Ombudsman with respect to Sandiganbayan offenses and other
offenses committed by public officers
5. PCGG with respect to ill-gotten wealth

WHEN SHOULD THE RIGHT TO PRELIMINARY INVESTIGATION BE

INVOKED?
The accused should invoke it before plea, or else, it is
deemed
waived

CAN
RTC
JUDGES
CONDUCT
PRELIMINARY
INVESTIGATIONS?
No, but this should not be confused with the authority of the RTC
to conduct an examination for the prupose of determining
probable cause when issuing a warrant of arrest

IF THE COURT DENIES THE INVOCATION OF THE RIGHT TO

PRELIMINARY INVESTIGATION, WHAT IS THE REMEDY OF THE
ACCUSED?
He must immediately appeal it to the appellate court
He cannot raise later the issue for the first time on appeal
IF THE COMPLAINT OR INFORMATION IS AMENDED, SHOULD A
NEW PRELIMINARY INVESTIGATION BE CONDUCTED?
No, unless the amended complaint or information charges a NEW
offense
IF THE NEW COMPLAINT OR INFORMATION IS SUBSTITUTED,
SHOULD A NEW PI BE CONDUCTED?
Yes
Sec. 2. Officers authorized to conduct preliminary investigations.
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit
Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include
all crimes cognizable by the proper court in their respective
territorial jurisdictions.

Sec. 3. Procedure. The preliminary

conducted in the following manner:

investigation

shall

be

(a) The complaint shall state the address of the respondent and
shall be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any prosecutor
or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom
must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to
continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these
shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but shall be

made available for examination, copying, or photographing at the
expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to
and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit.

2.

The hearing shall be held within ten (10) days from submission of
the counter-affidavits and other documents or from the expiration
of the period for their submission. It shall be terminated within
five (5) days.

3.

Within ten (10) days from receipt of the subpoena with

the complaint and supporting affidavits and documents,
the respondent shall submit his counter-affidavit and
that of his witnesses and other supporting documents
relied upon for his defense. The counter-affidavits
shall be subscribed and sworn to and certified. The
respondent shall not be allowed to file a motion to
dismiss in lieu of a counter-affidavit.

4.

If the respondent cannot be subpoenaed, or if

subpoenaed, does not submit counter-affidavits within
the ten (10) day period, the investigating office shall
resolve the complaint based on the evidence presented
by the complainant.

5.

The investigating officer may set a hearing if there are

facts and issues to be clarified from a party or a witness.
The parties can be present at the hearing but without the
right to examine or cross-examine. The hearing shall be
held within ten (10) days from submission of the counteraffidavits and other documents or from the expiration of
the period for their submission. It shall be terminated
within five (5) days.

(f) Within ten (10) days after the investigation, the investigating
officer shall determine whether or not there is sufficient ground to
hold the respondent for trial.
WHAT IS THE PROCEDURE IN CONDUCTING A PRELIMINARY
INVESTIGATION?
The preliminary investigation shall be conducted in the
following
manner:
1. The complaint shall state:

The address of the respondent and

Shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other
supporting documents to establish probable
cause.

Within ten (10) days after the filing of the complaint, the
investigating officer shall either

Dismiss it if he finds no ground to continue with

the investigation, or
Issue a subpoena to the respondent attaching to
it a copy of the complaint and its supporting
affidavits and documents.
The respondent shall have the right to examine the
evidence submitted by the complainant which he may not
have been furnished and to copy them at his expense. If
the evidence is voluminous, the complainant may be
required to specify those which he intends to present
against the respondent, and these shall be made
available for examination or copying by the respondent at
his expense.

(d) If the respondent cannot be subpoenaed, or if subpoenaed,

does not submit counter-affidavits within the ten (10) day period,
the investigating office shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts
and issues to be clarified from a party or a witness. The parties
can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the
party or witness concerned.

The affidavits must be subscribed and sworn

before the prosecutor or government official
authorized to administer such or notary public

6.

Within ten (10) days after the investigation, the

investigating officer shall determine whether or not there
is sufficient ground to hold the respondent for trial.

IS A PRELIMINARY INVESTIGATION A JUDICIAL PROCEEDING?

Yes it is a judicial proceeding where the prosecutor or
investigating officer acts a quasi-judicial officer
Parties are given the opportunity to be heard and to produce
evidence which shall be weighed and upon which a decision shall
be rendered
Since it is a judicial proceeding, the requirement of due process in
judicial proceedings is also required in preliminary investigations
WHAT IS DUE PROCESS?
The idea that laws and legal proceedings must be fair
Principle that the government must respect all of a person's legal
rights instead of just some or most of those legal rights when the
government deprives a person of life, liberty, or property
WHAT ARE THE TWO BRANCHES OF DUE PROCESS?
Due process covers two aspectssubstantive and procedural due
process
Substantive due process refers to the intrinsic validity of the law
Procedural due process, which is based on the principle that a
court hear before it condemns, proceeds upon inquiry, and
renders judgment only after trial and based on the evidence
presented therein
WHAT IS THE DIFFERENCE BETWEEN CRIMINAL
INVESTIGATION AND PRELIMINARY INVESTIGATION?
Criminal investigation is a fact-finding investigation carried out by
law-enforcement officers for the purpose of determining whether
they should file a complaint for preliminary investigation
Preliminary investigation is conducted for the purpose of
determining if there is a probable cause to hold a person for trial
WHAT IS PROBABLE CAUSE?
Probable cause is the existence of such facts and circumstances
as would excite the belief in a reasonable mind, acting on the
facts
within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted
Based on the evidence that would be adduced by the parties

IS
THE
PRESENCE
OF
COUNSEL
IN
A
PRELIMINARY
INVESTIGATION MANDATORY?
No, preliminary investigation is a summary proceeding and is
merely inquisitorial in naure
The accused cannot yet fully exercised his rights
However, if a confession is to be obtained from respondent, an
uncounselled confession would be void
WHAT ARE THE DOS AND DON'TS IN A PRELIMINARY
INVESTIGATION?
1. You cannot cross-examine
2. No right to counsel except when confession is being obtained
3. You cannot file complaint or information without authority
4. Right to be present not absolute
5. No dismissal without approval
6. Right to discovery proceedings
Sec. 4. Resolution of investigating prosecutor and its review. If
the investigating prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten
(10) days from their receipt thereof and shall immediately inform
the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of

the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.

of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the
parties of such action.
4.

No complaint or information may be filed or dismissed by an

investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.

If upon petition by a proper party under such rules as the

Department of Justice may prescribe or motu propio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding
information without conducting anther preliminary investigation,
or to dismiss or move for dismissal of the complaint or information
with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the
Ombudsman.

5.

If the investigating prosecutor recommends the dismissal of

the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, either:
a. By himself, file the information against the
respondent,
b. Direct another assistant prosecutor or state
prosecutor to do so without conducting another
preliminary investigation.

HOW DOES THE INVESTIGATING PROSECUTOR RESOLVE THE

FINDINGS AFTER PRELIMINARY INVESTIGATION?
The investigating prosecutor shall do the following
1. If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information
that:
a. He, or as shown by the record, an authorized officer,
has personally examined the complainant and his
witnesses;
b. That there is reasonable ground to believe that a
crime has been committed and that the accused is
probably guilty thereof;
c. That the accused was informed of the complaint and
of the evidence submitted against him;
d. And that he was given an opportunity to submit
controverting evidence.

6.

If upon petition by a proper party under such rules as the

Department of Justice may prescribe or motu propio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the
corresponding information
without
conducting
anther
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties.

2.

3.

If the investigating officer finds no probable cause, he shall

recommend the dismissal of the complaint
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise

IF THERE WAS NO PRELIMINARY INVESTIGATION CONDUCTED,

WHAT IS THE REMEDY OF THE ACCUSED?
*Code: RICA P
1. Refuse to enter plea
2. Insist on a preliminary investigation
3. File certiorari if refused
4. Raise it as an error on appeal
5. File a petition for prohibition
MAY THE REGIONAL STATE PROSECUTOR FILE AN INFORMATION
IN COURT?
No, unless he has the prior written approval of the city or
provincial or chief state prosecutor
Thus, even if the accused already entered a plea to an information
filed alone by the Regional State prosecutor, the court may still

CRIMINAL PROCEDURE NOTES

Page 3 0 3 0 of
120
dismiss the same on the ground that it didn't acquire jurisdiction
over the case since it was filed by one who is not authorized

release of an accused who is detained if no probable cause is found

against him.

WHY SHOULD THE SECRETARY OF JUSTICE DO IF AN

INFORMATION ALREADY FILED IN COURT IS APPEALED TO HIM?
He should as far as practicable, refrain from entertaining the
appeal
The matter should be left to the determination of the court

Sec. 6. When warrant of arrest may issue. (a) By the Regional

Trial Court. Within ten (10) days from the filing of the complaint
or information, the judge shall personally evaluate the resolution
of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary investigation or when
the complaint or information was filed pursuant to section 7 of this
Rule. In case of doubt on the existence of probable cause, the
judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the
complaint of information.

IF THE SECRETARY OF JUSTICE GIVES DUE COURSE TO THE

APPEAL, WHAT SHOULD THE TRIAL JUDGE DO?
The trial judge should suspend proceedins and defer arraignment
pending the resolution of the appeal
IS THE DETERMINATION OF PROBABLE CAUSE A JUDICIAL OR
EXECUTIVE FUNCTION?
It depends
Executive function: purpose of determining whether there is
reasonable ground to believe that the accused has committed the
offense and should be held for trial
Judicial function: issuance of warrant of arrest by a judge
Sec. 5. Resolution of investigating judge and its review. Within
ten
(10)
days
after
the
preliminary investigation, the
investigating judge shall transmit the resolution of the case to the
provincial or city prosecutor, or to the Ombudsman or his deputy
in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for appropriate action. The
resolution shall state the findings of facts and the law supporting
his action, together with the record of the case which shall
include: (a) the warrant, if the arrest is by virtue of a warrant; (b)
the affidavits, counter-affidavits and other supporting evidence of
the parties; (c) the undertaking or bail of the accused and the
order for his release; (d) the transcripts of the proceedings during
the preliminary investigation; and (e) the order of cancellation of
his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the
provincial or city prosecutor, or the Ombudsman or his deputy, as
the case may be, shall review the resolution of the investigating
judge on the existence of probable cause. Their ruling shall
expressly and clearly state the facts and the law on which it is
based and the parties shall be furnished with copies thereof. They
shall order the

(b) By the Municipal Trial Court. When required pursuant to the

second paragraph of section of this Rule, the preliminary
investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court, or Municipal Circuit Trial Court may be conducted by
either the judge or the prosecutor. When conducted by the
prosecutor, the procedure for the issuance of a warrant of arrest
by the judge shall be governed by paragraph (a) of this section.
When the investigation is conducted by the judge himself, he shall
follow the procedure provided in section 3 of this Rule. If his
findings and recommendations are affirmed by the provincial or
city prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of
arrest. However, without waiting for the conclusion of the
investigation, the judge may issue a warrant of arrest if he finds
after an examination in writing and under oath of the complainant
and his witnesses in the form of searching questions and answers,
that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to
frustrate the ends of justice.
(c) When warrant of arrest not necessary. A warrant of arrest
shall not issue if the accused is already under detention pursuant
to a warrant issued by the municipal trial court in accordance with
paragraph (b) of this section, or if the complaint or information
was filed pursuant to section 7 of this Rule or is for an offense

penalized by fine only. The court shall them proceed in the

exercise of its original jurisdiction.
CAN THE ACCUSED FILE A MOTION TO QUASH BASED ON
INSUFFICIENCY OF EVIDENCE?
No, he cannot preempt the trial by filing a motion to quash on the
ground of insufficiency of evidence
Whether the function of determining probable cause has been
correctly discharged by the prosecutor is a matter that the trial
court itself doesn't and may not pass upon
IS THE FINDING OF A JUDGE THAT PROBABLE CAUSE EXISTS FOR
THE PURPOSE OF ISSUING A WARRANT OF ARREST SUBJECT TO
JUDICIAL REVIEW?
No, that would be tantamount to asking the court to examine and
assess such evidence submitted by the parties before trial and on
the basis thereof and to make a conclusion as to whether or not it
suffices to establish the guilt of the accused
WHAT IS A PRELIMINARY EXAMINATION? WHAT IS ITS
PURPOSE?
A preliminary examination is a proceeding for the purpose of
determining probable cause for the issuance of a warrant of arrest
Its purpose is to determine
o
The fact of commission of a crime
o
The probability that the person sought to be arrested
committed the crime
WHAT ARE THE DIFFERENCES BETWEEN A PRELIMINARY
INVESTIGATION AND PRELIMINARY EXAMINATION?
PRELIMINARY INVESIGATION
Executive function
May be done by a prosecutor, PCGG
or a COMELEC official
May not be done ex parte

PRELIMINARY EXAMINATION
Judicial function
Done by judges only
May be done ex parte

WHAT IS THE REMEDY OF THE COMPLAINANT IF THE SECRETARY

OF JUSTICE DOESN'T ALLOW THE FILING OF A CRIMINAL
COMPLAINT AGAINST THE ACCUSED BECAUSE OF INSUFFICIENCY
OF EVIDENCE?
The complainant can file a civil action for damages against the
offender based on Article 35 of the CC
Would require only a preponderance of evidence

WHAT ARE THE REMEDIES OF A PARTY AGAINST WHOM A

WARRANT OF ARREST HAS BEEN ISSUED?
A party against whom a warrant of arrest has been issued may
1. Post bail
2. Ask for reinvestigation
3. File a motion to quash information
4. File a petition for review
5. If denied, he may appeal the judgment after trial (no
certiorari)
*Code: PAMPI
IF THE JUDGE DIDN'T ISSUE A WARRANT FOR THE ARREST OF THE
ACCUSED DURING THE PRELIMINARY INVESTIGATION, WHAT IS
THE REMEDY OF THE PROSECUTOR IF HE BELIEVES THAT THE
ACCUSED SHOULD BE IMMEDIATELY PLACED UNDER CUSTODY?
The prosecutor should file the information in court, so that the
RTC may issue the warrant of arrest
He should not file for mandamusthis would take two years to
resolve
WHAT
IS
A
WARRANT
OF
ARREST?
Legal process issued by a competent authority, directing the
arrest of a person or persons upon grounds stated therein
WHEN MAY A WARRANT OF ARREST BE
ISSUED?
If issued by the RTC,
1. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting evidence.
2. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause.
3. If he finds probable cause, he shall issue a warrant of arrest,
or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the MTC judge who
conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of
this Rule.
o
Pangay v. Ganay modified this rule by providing that
investigating judges power to order the arrest of the
accused is limited to instances where there is
necessity for placing him in custody in order not to
frustrate the ends of justice

4.

5.

In case of doubt on the existence of probable cause, the

judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days from the filing
of the complaint of information.
If the warrant of arrest is issued by the MTC and if the
preliminary investigation was conducted by the prosecutor,
the same procedure as above is followed

WHEN IS A WARRANT OF ARREST NOT NECESSARY?

A warrant of arrest is not necessary in the following instances:
1. When the accused is already in detention issued by the MTC
2. When the accused was arrested by virtue of a lawful arrest
without warrant
3. When the penalty is of a fine only
4. Those covered by a summary procedure
WHEN IS A JOHN DOE WARRANT VALID? ARE THEY VALID?
A John Doe warrant is a warrant for the apprehension of a person
whose true name is unknown
Generally, this kind of warrants are void because the violate the
constitutional provision which requires that warrants of arrests
should particularly describe the person or persons to be arrested
But if there is sufficient description to identify the person to be
arrested, the warrant is valid
WHAT ARE THE PRINCIPLES GOVERNING THE FINDING OF
PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST?
There is a distinction between the objective of
determining
probable cause as done by the prosecutor and that done by the
judgethe prosecutor determines it for the purpose of filing the

information may be filed by a prosecutor without need of such

investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provision of Article 125 of
the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days
from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his
defense as provided in this Rule.
HOW SHOULD THE COMPLAINT OR INFORMATION BE FILED WHEN
THE ACCUSED IS LAWFULLY ARRESTED WITHOUT WARRANT?
The complaint or information may be filed by the prosecutor
without need of preliminary investigation provided an inquest
proceeding has been conducted in accordance with existing rules
In the absence of an inquest prosecutor, the offended party may
file the complaint directly in court on the basis of the affidavit of
the offended party or police officer
WHAT
IS
WITHOUT

THE

REMEDY

OF

THE

PERSON

ARRESTED

complaint or information; while the judge

determines it for the purpose of issuing a
warrant
of arrest
to determine
whether
there
is
a necessity
of placing
the accused
under
immediate
in the ends of justice
order
not tocustody
frustrate
Since the objectives are different, the judge
shouldn't
rely of
solely
on
the report
the prosecutor in finding
probable
cause
to justifyof arrest
the issuance
of warrant
He must decide independently and must have
supporting evidence other than the
prosecutors bare report

Sec. 7. When accused lawfully arrested without warrant. When a

person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the
complaint or

WARRANT IF HE WANTS A
PRELIMINARY INVESTIGATION?
(ANGEL:
SHOULD
INQUEST
Before
theBE
complaint
or information
is filed,
he mayinvestigation
ask for a provided he
preliminary
signs
waiver125
of his
under aArticle
of rights
the RPC (Delay
in the Delivery
to presence
Judicial of counsel
Authorities)
in the
o
He may still apply for bail in
spite of the waiver
o
The investigation must be
within
15the
days
may terminated
within 5 days
from
time he
learns of the filing, ask for a
preliminary investigation

WHAT IS AN INQUEST?

An inquest is an informal and summary investigation conducted

by the public prosecutor in a criminal case involving persons
ARRESTED AND DETAINED WITHOUT THE BENEFIT OF A
WARRANT OF ARREST issued by the court for the purpose of
determining WHETHER SAID PERSONS SHOULD REMAIN UNDER
CUSTODY AND CORRESPONDINGLY CHARGED IN COURT

WHAT ARE THE GUIDELINES TO SAFEGUARD THE RIGHTS OF AN

ACCUSED WHO HAS BEEN ARRESTED WITHOUT A WARRANT?
The arresting officer must bring the arrestee before the inquest
fiscal to determine whether the person should remain in custody
and charged in court or if he should be released for lack of
evidence or for further investigation
WHAT SHOULD BE IN A CUSTODIAL INVESTIGATION
REPORT?
1. It shall be in writing
2. Should be read and adequately explained to the arrestee by his
counsel in the language or dialect known to the arrestee
3. Signed or thumbmarked by the respondent
4. It should explain the causes on detention
5. It should include the recommendation and its corresponding
support and basis
It shall be null and void absent any of the requisites mentioned
Not applicable when a warrant of arrest was issued
Sec. 8. Records. (a) Records supporting the information or
complaint. An information or complaint filed in court shall be
supported by the affidavits and counter-affidavits of the parties
and their witnesses, together with the other supporting evidence
and the resolution on the case.
(b) Record of preliminary investigation. The record of the
preliminary investigation, whether conducted by a judge or a
prosecutor, shall not form part of the record of the case. However,
the court, on its own initiative or on motion of any party, may
order the production of the record or any of its part when
necessary in the resolution of the case or any incident therein, or
when it is to be introduced as an evidence in the case by the
requesting party.
NOTE: The record of the PI doesn't form part of the RTC records unless
introduced as evidence during the trial
Sec. 9. Cases not requiring a preliminary investigation nor covered
by the Rule on Summary Procedure. (a) If filed with the

prosecutor. If the complaint is filed directly with the prosecutor

involving an offense punishable by imprisonment of less than four
(4) years, two (2) months and one (1) day, the procedure outlined
in section 3(a) of this Rule shall be observed. The prosecutor shall
act on the complaint based on the affidavits and other supporting
documents submitted by the complainant within ten (10) days
from its filing.
(b) If filed with the Municipal Trial Court. If the complaint or
information is
filed
with
the
Municipal Trial
Court
or
Municipal Circuit Trial Court for an offense covered by this section,
the procedure in section 3 (a) of this Rule shall be observed. If
within ten (10) days after the filing of the complaint or
information, the judge finds no probable cause after personally
evaluating the evidence, or after personally examining in writing
and under oath the complainant and his witnesses in the form of
searching questions and answers, he shall dismiss the same. He
may, however, require the submission of additional evidence,
within ten (10) days from notice, to determine further the
existence of probable cause. If the judge still finds no probable
cause despite the additional evidence, he shall, within ten (10)
days from its submission or expiration of said period, dismiss the
case. When he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused had already been
arrested, and hold him for trial. However, if the judge is satisfied
that there is no necessity for
placing the accused under
custody, he may issue summons instead of a warrant of arrest.
WHAT IS THE PROCEDURE IN CASES NOT REQUIRING A
PRELIMINARY INVESTIGATION?
If the complaint is filed with the prosecutor, the prosecutor shall
act on the complaint based on the affidavits and other supporting
documents submitted by the complainant WITHIN 10 DAYS FROM
ITS FILING
If the complaint is filed with the MTC, and within 10 days from the
filing of the complaint or information, the judge FINDS NO
PROBABLE CAUSE after personally examining the evidence in
writing and under oath of the complainant and his witnesses in
the form of searching questions and answers, HE SHALL DISMISS
THE COMPLAINT OR INFORMATION
He may require the submission or additional evidence, WITHIN 10
DAYS FROM NOTICE. If he still finds no probable caue, he shall
dismiss the case.

IF HE FINDS PROBABLE CAUSE, he shall issue a warrant of arrest

or commitment order and hold him for trial. If he thinks there is
no necessity for placing the accused under custody, he may
ISSUE SUMMONS INSTEAD

NOTA BENE:
Distinction between the control of the court and the prosecutor
If the case has been filed in court, THE SECRETARY OF JUSTICE
IS ADMONISHED not to entertain any petition for review. The
court may ignore or deny any decision he would make and this
would cause embarrassment to him.
The court acquires absolute control upon the filing of the case
(review from the past lectures)
DISTINCTION
BETWEEN
INQUEST
PRELIMINARY INVESTIGATION

PROCEEDINGS

AND

INQUEST PROCEEDING
Accused already under detention.

PRELIMINARY INVESTIGATION
This is a statutory right.

To request for an inquest, the

accused must sign a waiver of
Article 125 of the RPC

The accused is not yet in custody

and there is no waiver to be signed.

The DOJ guidelines applicable when

accused has been validly arrested
without a warrant of arrest.

May be asked within 5 days from

filing.

RULE 113 - ARREST

Section 1. Definition of arrest. Arrest is the taking of a
person into custody in order that he may be bound to answer for
the commission of an offense.
WHAT IS ARREST?
Arrest is the taking of a person into custody in order that he may
be bound to answer for the commission of the offense
IS
THERE
HOUSE
ARREST
IN
OUR
JURISDICTION?
Yes. Under Article 88 of the RPC, when there are offenses
punishable with arresto mayor, one can be given house arrest
under certain conditions.

WHAT IS THE ISSUE REGARDING ERAP? WHY DID HE APPLY AND

WAS GRANTED HOUSE ARREST?
Erap first filed a petition for bail but was denied
Plunder is a non-bailable offense
The bail being denied, the natural consequence is detention
He applied for house arrest given the circumstances of his person
and medical reasons
Sec. 2. Arrest; how made. An arrest is made by an actual
restraint of a person to be arrested, or by his submission to the
custody of the person making the arrest.
No violence or unnecessary force shall be used in making an
arrest. The person arrested shall not be subject to a greater
restraint than is necessary for his detention.
HOW
ARREST
IS
MADE?
An arrest is made by an actual restraint of the person to be
arrested or by his submission to the custody of the person making
the arrest
WHAT DOES IT MEAN WHEN JURISPRUDENCE SAYS THAT THE
OFFICER IN MAKING THE ARREST, MUST STAND HIS GROUND?
It means that the officer may use such force as is reasonably
necessary to effect the arrest
Sec. 3. Duty of arresting officer. It shall be the duty of the
officer executing the warrant to arrest the accused and deliver him
to the nearest police station or jail without unnecessary delay.
WHAT IS THE DUTY OF THE ARRESTING OFFICER WHO ARRESTS A
PERSON?
He must deliver the person immediately to the nearest jail or
police station
WHY SHOULD HE DELIVER? WHAT IS THE EVIL SOUGHT TO BE
AVOIDED?
This is to avoid situations when the officer will hold the law in his
own hands
Sec. 4. Execution of warrant. The head of the office to whom the
warrant of arrest was delivered for execution shall cause the
warrant to be executed within ten (10) days from its receipt.
Within ten (10) days after the expiration of the period, the officer

to whom it was assigned for execution shall make a report to the

judge who issued the warrant. In case of his failure to execute the
warrant, he shall state the reason therefore.
WITHIN WHAT PERIOD MUST A WARRANT OF ARREST BE
SERVED?
There is no limitation of period
A warrant of arrest is valid until the arrest is effected or the
warrant lifted
The head of the office to whom the warrant was delivered must
cause it to be executed within 10 days from its receipt, and the
officer to whom it is assigned must make a report to the judge
who issued the warrant within 10 days from the expiration of the
period.
If he fails to execute it, he should state the reasons
therefore.
WHAT IS THE LIFETIME OF A WARRANT OF
ARREST?
A warrant of arrest remains valid until the arrest is effected or
the warrant lifted.
TO VALIDLY EFFECT ARREST, MUST THE PEACE OFFICER HAVE IN
HIS POSSESSION THE WARRANT OF ARREST?
Police officers may effect arrest without the warrant in their
possession at the time of the arrest
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the

nearest police station or jail and shall be proceeded against in

accordance with section 7 of Rule 112.
WHEN IS AN ARREST WITHOUT WARRANT
LAWFUL?
A peace officer or private person may arrest without warrant:
1. When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
2. When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
3. When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from
one confinement to another.
4. In hot pursuit
A POLICE OFFICER WAS CHASING A PERSON WHO HAD JUST
COMMITTED AN OFFENSE. THE PERSON WENT INSIDE A HOUSE,
SO THE POLICE OFFICER FOLLOWED.
INSIDE THE HOUSE, THE
POLICE OFFICER SAW DRUGS LYING AROUND.
CAN HE
CONFISCATE THE DRUGS AND USE THEM AS EVIDENCE?
Yes. The plain view doctrine is applicable to this case because
there was a valid prior intrusion. The police officer inadvertently
discovered the evidence, he had a right to be there, and the
evidence was immediately apparent.
WHAT IF THE OFFICER MERELY PEEKS THROUGH THE WINDOW OF
THE HOUSE AND SEES THE DRUGS, CAN HE CONFISCATE THEM
AND USE THEM AS EVIDENCE?
He can confiscate them, without prejudice though to his liability
for violation of domicile.
He cannot use them as evidence because the seizure cannot be
justified under the plain view doctrine, there being no previous
valid intrusion.
WHAT IS THE EFFECT IF A WARRANTLESS AREEST IS
ILLEGAL?
It doesn't render void all other proceedings, including those
leading to the conviction of the accused nor can the state deprived
of its right to convict the guilty when all the facts of record point
to his culpability

Sec. 6. Time of making arrest. An arrest may be made on any day

and at any time of the day or night.
WHEN SHOULD AN ARREST BE
MADE?
It can be made on any day or any time of the day and night

Sec. 11. Right of officer to break into building or enclosure. An

officer, in order to make an arrest either by virtue of a warrant, or
without a warrant as provided in section 5, may break into any
building or enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused admittance thereto,
after announcing his authority and purpose.

Sec. 7. Method of arrest by officer by virtue of

warrant.
When making an arrest by virtue of a warrant, the officer shall
inform the person to be arrested of the cause of the arrest and the
fact that a warrant has been issued for his arrest, except when he
flees or forcibly resists before the officer has opportunity to so
inform him, or when the giving of such information will imperil the
arrest. The officer need not have the warrant in his possession at
the time of the arrest but after the arrest, if the person arrested so
requires, the warrant shall be shown to him as soon as practicable.

Sec. 12. Right to break out from building or enclosure.

Whenever an officer has entered the building or enclosure in
accordance with the preceding section, he may break out
therefrom when necessary to liberate himself.

Sec. 8. Method of arrest by officer without warrant. When

making an arrest without a warrant, the officer shall inform the
person to be arrested of his authority and the cause of the arrest,
unless the latter is either engaged in the commission of an offense,
is pursued immediately after its commission, has escaped, flees, or
forcibly resists before the officer has opportunity to so inform him,
or when the giving of such information will imperil the arrest.

Sec. 13. Arrest after escape or rescue. If a person lawfully

arrested escapes or is rescued, any person may immediately
pursue or retake him without a warrant at any time and in any
place within the Philippines.

CAN AN OFFICER ARREST A PERSON AGAINST WHOM A WARRANT

HAS BEEN ISSUED EVEN IF HE DOESN'T HAVE THE WARRANT WITH
HIM?
Yes, but after the arrest, if the person arrested requires, the
warrant must be shown to him as soon as possible.
Sec. 9. Method of arrest by private person. When making an
arrest, a private person shall inform the person to be arrested of
the intention to arrest him and the case of the arrest, unless the
latter is either engaged in the commission of an offense, is
pursued immediately after its commission, or has escaped, flees,
or forcibly resists before the person making the arrest has
opportunity to so inform him, or when the giving of such
information will imperil the arrest.
Sec. 10. Officer may summon assistance. An officer making a
lawful arrest may orally summon as many persons as he deems
necessary to assist him in effecting the arrest. Every person so
summoned by an officer shall assist him in effecting the arrest
when he can render such assistance without detriment to himself.

WHAT
HAVE?
1.
2.
3.

AUTHORITY

DOES

AN

ARRESTING

OFFICER

Summon assistance
Break into the building or enclosure
Break out of the building

Sec. 14. Right of attorney or relative to visit person arrested.

Any member of the Philippine Bar shall, at the request of the
person arrested or of another acting in his behalf, have the right
to visit and confer privately with such person in the jail or any
other place of custody at any hour of the day or night. Subject to
reasonable regulations, a relative of the person arrested can also
exercise the same right.
NOTE: Under RA7438, any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with any member of
his immediate family, or any medical doctor, or priest or any religious
minister chosen by him or by any member of his immediate family or by
his counsel, or by any national non-governmental organization duly
accredited by the CHR or by any international non-governmental
organization accredited by the Office of the President.
Immediate family shall includespouse, fianc or fiance, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt, nephew or
neice, and guardian or ward.

RULE 114 - BAIL

Section 1. Bail defined. Bail is the security given for the release
of a person in custody of the law, furnished by him or a bondsman,
to guarantee his appearance before any court as required under
the conditions hereinafter specified. Bail may be given in the form
of corporate surety, property bond, cash deposit, or recognizance.
WHAT IS BAIL?
1. It is the security given
2. For the release of a person in custody of the law
3. Furnished by him or a bondsman
4. To guarantee his appearance before any court as required
WHEN
IS
THE
RIGHT
TO
BAIL
AVAILABLE?
The right only accrues when a person is arrested or deprived of
his liberty
The right to bail presupposes that the accused is under legal
custody
A court cannot order provisional liberty to one who is then
actually in the enjoyment of his liberty
The right to bail therefore presupposes that the accused should be
in custody
WHAT
BAIL?
1.
2.
3.
4.

ARE

THE

DIFFERENT

FORMS

OF

Corporate surety
Property bond
Cash bond
Recognizance

WHAT
IS
RECOGNIZANCE?
1. Obligation of record
2. Entered before a court or magistrate duly authorized to take it
3. With the condition to do some particular act
4. The most usual condition in criminal cases being the appearance
of the accused for trial
NOTA BENE: may be by the accused himself or of another person. An
example of this is when Cory Aquino took recognizance of Jomar Sison.
Take note also that there are instances when there is pending application
for probation, one applies for recognizance.
WHAT IS THE CONSTITUTIONAL BASIS OF THE RIGHT TO
BAIL?
Presumption of innocence

Sec. 2. Conditions of the bail; requirements. All kinds of bail are

subject to the following conditions:
(a) The undertaking shall be effective upon approval, and
unless
cancelled, shall remain in force at all stages of the case until
promulgation of the judgment of the Regional Trial Court,
irrespective of whether the case was originally filed in or appealed
to it;
(b) The accused shall appear before the proper court whenever
required by the court of these Rules;
(c) The failure of the accused to appear at the trial without
justification and despite due notice shall be deemed a waiver of his
right to be present thereat. In such case, the trial may proceed in
absentia; and
(d) The bondsman shall surrender the accused to the court for
execution of the final judgment.
The original papers shall state the full name and address of the
accused, the amount of the undertaking and the conditions
required by this section. Photographs (passport size) taken within
the last six (6) months showing the face, left and right profiles of
the accused must be attached to the bail.
WHAT
BAIL?
1.

ARE

THE

CONDITIONS

OF

THE

If before conviction, that the defendant shall answer the

complaint or information in the court in which it is filed or to
which it may be
transferred for trial
2. After conviction, that he will surrender himself in execution of the
judgment that the appellate court may render
3. That in case the cause is remanded for new trial, he will appear in
court to which it may be remanded and submit himself to the
orders and processes thereof
*For failure to perform any of these conditions, the bond given as security
thereof may be forfeited.
CAN THE COURT IMPOSE OTHER CONDITIONS OR LIMITATIONS
ON THE BAIL?
Yes, the trial court may impose other conditions in granting bail
where the likelihood of the accused jumping bail or of committing
other harm to the citizenry is feared.
The court even has the power to prohibit a person admitted to
bail from leaving the Phiippines or restrict his right to travel

DOES
AN
ADDITIONAL
CONDITION
NOT
VIOLATE
THE
PROHIBITION ON EXCESSIVE BAIL?
No because the determination if there is excessive bail would

guarantee of the Bill of Rights, and this right he retains unless and
until he is charged with a capital offense and evidence of guilt is
strong

IS BAIL A MATTER OF RIGHT OR OF

depend on the facts and circumstances of each
DISCRETION? WHEN IS IT EITHER?
case
Bail wouldliability
still be ofdetermined
basedtoongive
the
financial
the accused
Bail is either a matter of right or of
bail; nature and
discretion
circumstance of the offense; penalty for the
Upon custody and prior to
offense charged;
conviction,
it is a MATTER
OF RIGHT
accused;
weight of the evidence against the
imprisonment,
or reclusion
perpetua
accused; probability
However, upon conviction by the RTC
of the accused appearing at the trial;
of an offense not punishable by
forfeiture of other bail; the fact that the
death, life imprisonment, or reclusion
accused was a fugitive from
justice
whenWhen bail is a matterperpetua,
a
NOTA
BENE:
of right, bail
the becomes
accused may
apply for
and
be
granted
bail
even
prior
to
Sec. 3. No release or transfer except on court order or bail. No
arraignment.
person under detention by legal process shall be released or
transferred except upon order of the court or when he is admitted
Sec. 5. Bail, when discretionary. Upon conviction by the
to bail.
Regional Trial Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment, admission to bail is
ARTICLE
3,
SECTION
13
OF
THE
discretionary. The application for bail may be filed and acted upon
CONSTITUTION:
by the trial court despite the filing of a notice of appeal, provided
it has not transmitted the original record to the appellate court.
All persons, except those charged with offenses punishable by
However, if the decision of the trial court conviction the accused
reclusion perpetua when evidence of guilt is strong, shall, before
changed the nature of the offense from non-bailable to bailable,
conviction, be bailable by sufficient sureties, or be released on
the application for bail can only be filed with and resolved by the
recognizance as may be provided by law. The right to bail shall
appellate court.
not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the pendency
Sec. 4. Bail, a matter of right; exception. All persons in custody
of the appeal under the same bail subject to the consent of
shall be admitted to bail as a matter of right, with sufficient
the bondsman.
sureties, or released on recognizance as prescribed by law or this
Rule (a) before or after conviction by the Metropolitan Trial Court,
If the penalty imposed by the trial court is imprisonment
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal
exceeding six (6) years, the accused shall be denied bail, or his
Circuit Trial Court, and (b) before conviction by the Regional Trial
bail shall be cancelled upon a showing by the prosecution, with
court of an offense not punishable by death, reclusion perpetua, or
notice to the accuse, of the following or other similar
life imprisonment.
circumstances:

WHAT IS THE GENERAL RULE REGARDING THE RIGHT TO

BAIL?
As a general rule, before conviction of any criminal offense any
person shall be bailable, except when such person is charged with
a capital offense and the evidence of guilt is strong
From the moment a person is under custody, under arrest or
detention or restraint by the officers of the law, he can claim the

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent,

or has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;

(c) That he committed the offense while under probation, parole,

or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party,
review the resolution of the Regional Trial Court after notice to the
adverse party in either case.
IF THE ACCUSED IS CONVICTED IN THE RTC FOR AN OFFENSE
WITH LESS THAN 6 YEARS OF IMPRISONMENT, IS BAIL A MATTER
OF RIGHT OR OF DISCRETION?
It is matter of discretion
Bail after conviction in the RTC for an offense not punishable by a
capital punishment is a matter of discretion
IF THE ACCUSED IS CONVICTED IN THE RTC FOR AN OFFENSE
PUNISHABLE FROM 6 TO 8 YEARS, IS BAIL A MATTER OF RIGHT
OR OF DISCRETION?
It is neither a matter of right nor a matter of discretion. Why? It
should be denied due to the high flight risk.
WHEN CAN THE PROSECUTION MOVE FOR THE CANCELLATION OR
DENIAL OF BAIL OF THE ACCUSED?
If the penalty imposed by the court is imprisonment for more
than
6 years, the prosecution may move for the denial or cancellation of the
bail of the accused, with notice to the accused, upon showing of the
following circumstances:
1. That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance
of reiteration;
2. That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
3. That he committed the offense while under probation, parole,
or conditional pardon;
4. That the circumstances of his case indicate the probability of
flight if released on bail; or
5. That there is undue risk that he may commit another crime
during the pendency of the appeal.

WHEN MAY A PERSON BE NOT ADMITTED TO BAIL?

When the evidence of guilt is strong, a person shall not be
admitted to bail if charged with a capital offense, or when charged
with an offense that under the law is punishable with reclusion
perpetua at the time of the commission of the offense and at the
time of application for bail
WHEN IS A BAIL HEARING NECESSARY?
The present rules provide that a bail hearing is mandatory on
granting bail, whether it is a matter of right or of discretion
Even in cases where there is no petition for bail, a hearing should
still be had
It is incumbent upon the prosecution to show evidence of guilt is
strong. Even if there is absence or refusal, court shall still
conduct a hearing.
IF PROSECUTOR REFUSES, WHAT EVIDENCE SHOULD BE USED BY
THE COURT?
If the prosecutor refuses to cooperate, the evidence that should
be used by the court is the evidence found in the information,
complaint or even the records of the case or preliminary
investigation conducted
CAN THE COURT MOTU PROPIO GRANT BAIL EVEN IF THERE IS NO
APPLICATION?
No.
WHAT IS REQUIRED OF THE JUDGE WHO DENIES AN
APPLICATION FOR BAIL?
The order denying bail issued by the judge should contain a
summary of the evidence presented and the reason for the denial,

otherwise, it shall be void

The reason is that there is a need for clear grounds before
person can be denied his liberty
This is to safeguard the constitutional right to presumption of
innocence

IF THERE IS A POSSIBILITY THAT THE ACCUSED WOULD JUMP

BAIL, WHAT CAN THE COURT DO?
1. Increase the amount of the bail
2. Require periodic reports of the accused to court
3. Warn the accused that should he jump bail, the trial may proceed
in absentia

CRIMINAL PROCEDURE NOTES

Page 4 0 4 0 of
120
WHAT IS THE DOCTRINE OF RESIDUAL POWERS?
They are powers which the trial court retains even after the
perfection of the appeal
For example: X was charged and convicted with a crime so he
filed a notice of appeal. If he wants to put up bail, where should
he file his application? If the records of the case have not been
transmitted to the appellate court, X can file the application with
the trial court. However, once the records have been transmitted
to the appellate court, the trial court loses his jurisdiction over the
bail application.
IS THE RULE ABSOLUTE?
No, if the decision of the trial court upgraded the offense from
non-bailable to bailable, the application should be filed with and
could only be resolved by the appellate court
CAN AN ACCUSED POST BAIL EVEN IF HE HAS NOT BEEN
FORMALLY CHARGED IN COURT?
Yes as long as the accused is under custody of the law
CAN ANTONIO TRILLANES POST BAIL?

What is to be considered is prima facie evidence, not the penalty

that may be imposed taking into account modifying circumstances

Sec. 7. Capital offense or an offense punishable by reclusion

perpetua or life imprisonment, not bailable. No person charged
with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the state of the criminal
prosecution.
IN AN INFORMATION FILED BEFORE THE RTC, RP WAS CHARGED
WITH VIOLATION OF PD 1866 FOR ILLEGAL POSSESSION OF
FIREARMS PUNISHABLE BY RECLUSION TEMPORAL MAXIMUM TO
RECLUSION PERPETUA. PENDING TRIAL, RP WAS RELEASED ON
BAIL.
THEREAFTER, RP WAS CONVICTED AS CHARGED AND
METED AN INDETERMINATE PENALTY OF 17 YEARS 4 MONTHS
AND 1 DAY OF RECLUSION TEMPORAL TO 21 YEARS OF
RECLUSION PERPETUA. ON APPEAL, RPS CONVICTION WAS
AFFIRMED AND HIS BAIL WAS CANCELLED. RP APPEALED TO
THIS DECISION AND PRAYED TO BE ALLOWED TO POST BAIL FOR
TEMPORARY LIBERTY. IS RP ENTITLED TO BAIL?
In this case, appellant was convicted of a crime punishable by

No,
even
if
the
offense
is
punishable with prison correctional,
military men are not granted bail.
They have access to arms which
make them a danger to society.
See COMENDADOR
CASE
The
equal protection

CAN BAIL BE GRANTED IN DEPORTATION

CASES?
No, see PURUGGANAN CASE
Sec. 6. Capital offense defined. A capital offense is an offense
which, under the law existing at the time of its commission and of
the application for admission to bail, may be punished with death.
WHAT
IS
A
CAPITAL
OFFENSE?
A capital offense is an offense which, under the law existing at the
time of its commission and of the application for admission to
bail, may be punished by death
HOW
IS
THE
CAPITAL
NATURE
OF
AN
OFFENSE
DETERMINED?
The capital nature of the offense is determined by the penalty
prescribed by law

CRIMINAL PROCEDURE NOTES

Page 4 1 4 1 of
120 not entitled
reclusion perpetua. He is therefore

to bail as his conviction clearly imports that the

evidence of guilt is strong.
Furthermore, a summary hearing for his bail
application for the
sole
purpose oftrial
determining
whether
or notand the
The extensive
before the
lower court
appeal before
respondent
than hearing
sufficientfor
in bail
purpose
for court
whicharea more
summary
application is
designed

Sec. 8. Burden of proof in bail application. At the hearing of an

application for bail filed by a person who is in custody for the
commission of an offense punishable by death, reclusion perpetua,
or life imprisonment, the prosecution has the burden of showing
that evidence of guilt is strong. The evidence presented during the
bail hearing shall be considered automatically reproduced at the
trial but, upon motion of either party, the court may recall any
witness for additional examination unless the latter is dead,
outside the Philippines, or otherwise unable to testify.
NOTA BENE: The grant or denial of bail in capital offense hinges on the
strength of the evidence of guilt. This requires that the trial court conduct

bail hearings wherein both the prosecution and the defense are afforded
sufficient opportunity to present their respective evidence. The burden of
proof lies with the prosecution to show the evidence of guilt is strong. But
the determination of whether the evidence of guilt is strong is a matter of
judicial discretion. Though not absolute nor beyond control, the discretion
of the trial court must be sound and exercised within reasonable grounds.

(d) Character and reputation of the

MUST THE DEFENSE PRESENT ANY EVIDENCE DURING

THE HEARING ON THE APPLICATION FOR BAIL?
No, the burden of proof is upon the prosecution to show that the
evidence of guilt of accused is strong

(g) Probability of the accused appearing at the

WHAT ARE THE DUTIES OF THE TRIAL JUDGE IN CASE

AN APPLICATION FOR BAIL IS FILED?
1. Notify the prosecutor of the hearing or require him to submit a
recommendation
2. Conduct a hearing
3. Decide whether the evidence of guilt is strong based on the
summary of evidence of the prosecution
4. If the guilt of the accused is not strong, discharge the accused
upon the approval of the bail bond. If evidence of guilt is strong,
the petition should be denied.
WHAT IS EVIDENT PROOF AND PRESUMPTION GREAT?
EVIDENT PROOF
Clear, strong evidence while leads a
well-grounded
dispassionate
judgment to the conclusion that the
offense has been committed as
charged, that the accused is the
guilty agent and that he will
probably be punished capitally if the
law is administered

PRESUMPTION GREAT
Exists when the circumstances
testified to are such that the
inference of guilt naturally to be
drawn therefrom is strong, clear
and convincing unbiased judgment
and
excludes
all
reasonable
probability of any other conclusion

Sec. 9. Amount of bail; guidelines. The judge who issued the

warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following
factors: (a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the
offense; (c) Penalty for the offense
charged;

accused; (e) Age and health of the accused;

(f) Weight
accused;

of

the

evidence

against

the

trial; (h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on
bail.
Excessive bail shall not be required.
WHAT DETERMINES IF BAIL IS EXCESSIVE OR NOT? IS IT THE
AMOUNT?
It doesn't depend on the amount but is dependent on the
circumstances of the accused particularly his financial capacity
WHAT ARE THE GUIDELINES IN SETTING THE AMOUNT OF
BAIL?
1. Financial liability of the accused to give bail;
2. Nature and circumstance of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing at the trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from justice when
arrested; and
10. Pendency of other cases where the accused is on bail.
ARTICLE
3,
CONSTITUTION:

SECTION

19

OF

THE

1. Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua.

2.
The employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law.
WHAT HAPPENS WHEN THE JUDGE IMPOSES EXCESSIVE
BAIL?
The judge may be administratively sanctioned and filed as the
judge violates the constitutional right of the accused to bail and
its
prohibition on excessive bail
The judge makes the right a teasing illusion like a munificent
bequest in a paupers will
WHAT IS THE REMEDY OF THE ACCUSED IF HE IS DENIED
BAIL?
He should file a special civil action in the Court of Appeals within
60 days
Sec. 10. Corporate surety. Any domestic or foreign corporation,
licensed as a surety in accordance with law and currently
authorized to act as such, may provide bail by a bond subscribed
jointly by the accused and an officer of the corporation duly
authorized by its board of directors.
CAN THE COURT REFUSE TO ACCEPT A CORPORATE SURETY AND
REQUIRE INSTEAD THE POSTING OF A CASH BOND?
No, the trial court may not reject otherwise acceptable sureties
and insist that the accused obtain his provisional liberty only
through a cash bond
The posting of the cash bond would entail a transfer of assets
into the possession of the court, and its procurement could work
untold hardship on the part of the accused as to have the effect
of altogether denying the accuseds constitutional right to bail.
On the other hand, a surety bond may be obtained by the
accused by the payment of a relatively small premium. A surety
or property bond doesn't require an actual financial outlay on the
part of the bondsmand or property owner.
It is only the reputation or credit standing of the bondsman or
the expectancy of the price at which the property can be sold is
placed in the hands of the court to guarantee the production of
the body of the accused at the various proceedings leading to
conviction or acquittal.
Sec. 11. Property bond, how posted. A property bond is an
undertaking constituted as lien on the real property given as

security for the amount of the bail. Within ten (10) days after the
approval of the bond, the accused shall cause the annotation of the
lien on the certificate of title on file with the Registry of Deeds
if the land is registered, or if unregistered, in the Registration
Book on the space provided therefore, in the Registry of Deeds for
the province or city where the land lies, and on the corresponding
tax declaration in the office of the provincial, city and municipal
assessor concerned.
Within the same period, the accused shall submit to the court his
compliance and his failure to do so shall be sufficient cause for the
cancellation of the property bond and his re-arrest and detention.
Sec. 12. Qualifications of sureties in property bond. The
qualifications of sureties in a property bond shall be as follows:
(a) Each must be a resident owner of real estate within the
Philippines;
(b) Where there is only one surety, his real estate must be worth
at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an
amount less than that expressed in the undertaking but the
aggregate of the justified sums must be equivalent to the whole
amount of the bail demanded.
In all cases, every surety must be worth the amount specified in
his own undertaking over and above all just debts, obligations and
properties exempt from execution.
Sec. 13. Justification of sureties. Every surety shall justify by
affidavit taken before the judge that he possesses the qualification
prescribed in the preceding section. He shall describe the property
given as security, stating the nature of his title, its encumbrances,
the number and amount of other bails entered into by him and still
undischarged, and his other liabilities. The court may examine the
sureties upon oath concerning their sufficiency in such manner as
it may deem proper. No bail shall be approved unless the surety is
qualified.
WHAT
ARE
THE
MINIMUM
REQUIREMENTS
FOR
SURETIES?
Surety must be a resident owner of real estate within the
Philippines

If there is only one surety, his real estate must be worth the
amount of the undertaking
If there are two or more sureties, the aggregate of the sums
must
be equivalent to the whole amount of the bail demanded, and
every surety must be worth the amount specified in his own
undertaking over and above all just debts, obligations, and
properties exempt from execution

MAY THE COURT ADDITIONALLY REQUIRE THAT THE SURETY BE A

RESIDENT OF THE PHILIPPINES BUT OF THE PROVINCE?
Yes, the provision which requires that the sureties must be a
resident householder or freeholder within the Philippines is but a
minimum requirement
And where this requirement would not prejudice the petitioner,
the judge has the power to add such requirement
Sec. 14. Deposit of cash as bail. The accused or any person
acting in his behalf may deposit in cash with the nearest
collector of internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or recommended
by the prosecutor who investigated or filed the case. Upon
submission of a proper certificate of deposit and a written
undertaking showing compliance with the requirements of section
2 of this Rule, the accused shall be discharged from custody. The
money deposited shall be considered as bail and applied to the
payment of fine and costs while the excess, if any, shall be
returned to the accused or to whoever made the deposit.
Sec. 15. Recognizance. Whenever allowed by law or these Rules,
the court may release a person in custody on his own
recognizance or that of a responsible person.
Sec. 16. Bail, when not required; reduced bail or recognizance.
No bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more
than the possible maximum imprisonment prescribed for the
offense charged, he shall be released immediately, without
prejudice to the continuation of the trial or the proceedings on
appeal. If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days
of preventive imprisonment.

A person in custody for a period equal to or more than the

minimum of the principal penalty prescribed for the offense
charged, without application of the Indeterminate Sentence Law or
any modifying circumstance, shall be released on a reduced bail or
on his own recognizance, at the discretion of the court.
Sec. 17. Bail, where filed. (a) Bail in the amount fixed may be
filed with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge in the province, city or municipality. If the accused is
arrested in a province, city, or municipality other than where the
case is pending, bail may also be filed with any regional trial court
of said place, of if no judge thereof is available, with any
metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application may
only be filed
in
the court where the case is
pending,
whether on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may
apply for bail with any court in the province, city, or municipality
where he is held.
AS A GENERAL RULE, WHERE SHOULD BAIL BE
FILED?
It may be filed with the court where the case is pending. In the
absence of the judge thereof, bail may be filed with any RTC or
MTC judge in the province, city or municipality.
If the accused is arrested in a province, city or municipality other
than where the case is pending, bail may also be filed with the
RTC of said place, or if no judge is available, with any MTC judge
therein
But where bail is a matter of discretion or where the accused
seeks to be released on recognizance, bail may only be filed in the
court where the case is pending
Any person in custody not yet charged may apply for bail with any
court in the province, city or municipality where he is held
WHERE SHOULD ONE POST BAIL IF HE HASN'T BEEN CHARGED
YET?
In the RTC of the place where he is in custody. In the absence of
RTC, in the MTC.

WHAT
SITUATIONS
ARE
CONTEMPLATED
UNDER THIS
SECTION?
First, the accused is arrested in the same province, city or
municipality where his case is pending
Second, the accused is arrested in the province, city or
municipality other than where his case is
pending
MAY A JUDGE ISSUE A BAIL BOND FOR CASES NOT PENDING IN
HIS SALE OR ARE OUTSIDE HIS JURISDICTION CONTENDING
THAT IT
WAS
DONE
MAINLY
IN
GOOD
FAITH
INTERPRETATION AND APPLICATION OF THE RULES?
No, a judge cannot shield himself from the consequence of his
persistent deviant activities by the simple invocation of good fatih
and the supplication that he was only moved by pity for the poor
and forsaken accused
A judges jurisdiction is confined to that over which he presides
Therefore to approve bail applications and issue corresponding
release order in cases pending in courts outside his territorial
jurisdiction, particularly so where the accused are detained
thereat and not in his jurisdiction and therefore cannot personally
appear before him as required, constitute ignorance of the law so
gross as to amount to incompetence and even corruption
Sec. 18. Notice of application to prosecutor. In the application
for bail under section 8 of this Rule, the court must give
reasonable notice of the hearing to the prosecutor or require him
to submit his recommendation.
WHY
IS
NOTICE
TO
THE
PROSECUTOR
REQUIRED?
Such notice is required because the burden of showing that the
evidence of guilt is strong is on the prosecution
Sec. 19. Release on bail. The accused must be discharged upon
approval of the bail by the judge with whom it was filed in
accordance with section 17 of this Rule.
When bail is filed with a court other than where the case is
pending, the judge who accepted the bail shall forward it, together
with the order of release and other supporting papers, to the court
where the case is pending, which may, for good reason, require a
different one to be filed.
WHAT ARE THE PREREQUISITES FOR A JUDGE TO ISSUE THE
RELEASE OF THE ACCUSED UPON FILING OF A BOND?

The application for bail must be filed in the court where the case is
pending. In the absence or unavailability of the judge thereof, the
application for bail may be filed with another branch of the same
court within the province or city
If the accused is arrested in a province, city or municipality other
than where the case is pending, bail may be filed with any RTC of
the place. If no judge thereof is available, then with the MTC
judge therein.

Sec. 20. Increase or reduction of bail. 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
amount within a reasonable period. An accused held to answer a
criminal charge, who is released without bail upon filing of the
complaint or information, may, at any subsequent stage of the
proceedings and whenever a strong showing of guilt appears to
the court, be required to give bail in the amount fixed, or in
lieu thereof, committed to custody.
Sec. 21. Forfeiture of bail. When the presence of the accused is
required by the court or these Rules, his bondsmen shall be
notified to produce him before the court on a given date and time.
If the accused fails to appear in person as required, his bail
shall be declared forfeited and the bondsmen given thirty (30)
days within which to produce their principal and to show why no
judgment should be rendered against them for the amount of their
bail.
Within the said period, the bondsmen
must:
(a) produce the body of their principal or give the reason for his
non-production; and
(b) explain why the accused did not appear before the court when
first required to do so.
Failing in these two requisites, a judgment shall be rendered
against the bondsmen, jointly and severally, for the amount of the
bail. The court shall not reduce or otherwise mitigate the liability
of the bondsmen, unless the accused has been surrendered or
is acquitted.
WHAT DO BONDSMEN UNDERTAKE TO DO UNDER THE
BOND?

When the appearance of the accused is required, the sureties shall

be notified to produce the accused before the court on a given
date
If the accused fails to appear as required, the bond is declared
forfeited and the bondsmen are given 30 days within which to
produce the accused and show cause why judgment shouldn't be
rendered against them for the amount of the bond
Within the period of 30 days, the bondsmen must:
1. Produce the body of the accused
2. Explain satisfactorily why the accused didn't appear when
first required to do so
o
If they fail to comply with these requisites, the court shall
render judgment against them on the bond.

WHAT IS THE EFFECT OF ASSUMING THE OBLIGATION OF BAIL?

The sureties become in law the jailers of the principal
Their custody of him is the continuation of the original
imprisonment and though they cannot actually confine him, they
are subrogated to all other rights and means which the
government possesses to make their control of him effective when
the accused jumps bail and the trial shall continue and the
bondsman held to their undertaking and sureties
UNDER WHOSE DISCRETION IS THE REDUCTION OF THE
LIABILITY OF A BONDSMAN UNDER THE FORFEITED BOND?
It is wholly subject to the discretion of the trial court
To be refused or granted according to the merits of the particular
case before the court, and the exercise of such discretion will not
be disturbed on appeal unless grave abuse of discretion was
committed or that there are circumstances which the trial court
failed to consider
WHAT IS THE DUTY OF THE BONDSMAN WHEN ACCUSED IS
REQUIRED TO APPEAR?
Notice alone to the accused is insufficient.
The bondsman is duty bound to produce the person of the accused
when his appearance is required by the court, which shows that
mere notice is not sufficient but the bondsman must make every
effort to see that he actually makes his appearance
Failure to do so, trial court may consider it negligent in the
performance of his duties which the SC cannot disturb
WHAT ARE THE REQUISITES TO JUSTIFY
BONDSMANS EXEMPTION FROM LIABILITY?

THE

Within the period of 30 days, the bondsmen must:

1. Produce the body of the accused
2. Explain satisfactorily why the accused didn't appear when
first required to do so
Failure of the bondsman to produce the accused when required by
the court and subsequent presentment will not exonerate the
bondsmans liability unless he gives satisfactory reason why he
failred to appear when first required to do so
SATISFACTORY EXPLANATIONact of God, act of the obligee, act
of the law exonerates the sureties. If the accused died, the fact of
death must be before the breach and the fact of death must be
established by competent evidence for the sureties to be
exonerated from liability.

Sec. 22. Cancellation of bail. Upon application of the bondsmen,

with due notice to the prosecutor, the bail may be cancelled upon
surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of
the accused, dismissal of the case, or execution of the judgment of
conviction.
In all instances, the cancellation shall be without prejudice to any
liability on the bail.
HOW
IS
BAIL
CANCELLED?
The same principles and procedure governing hearings on an
application for bail applies to cancellation of bail
The same issue as in an application for bail confronts the judge in
proceedings for cancellation of bail. Hence, the similarity of the
nature and procedure for application for bail and cancellation are
the same
Sec. 23. Arrest of accused out on bail. For the purpose of
surrendering the accused, the bondsmen may arrest him or, upon
written authority endorsed on a certified copy of the undertaking,
cause him to be arrested by a police officer or any other person of
suitable age and discretion.
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the
Philippines without permission of the court where the case is
pending.

CAN THE BONDSMEN ARREST THE ACCUSED FOR GOOD CAUSE

EVEN IF THE LATTER IS OUT ON BAIL?
Yes
For the reason of surrending the defendant, the bondsman may
arrest him or cause a written authority indorsed on a certified
copy of the undertaking, may cause him to be arrested by any
police officer or any other person of suitable age and discretion
When bail is given, the principal is regarded as delivered to the
custody of his sureties; their dominion is a continuance of the
original imprisonment.
Whenever they choose to do so, they may seize him and deliver
him up; if that cannot be done at once, they may imprison him
until it can be done
They may exercise their rights in person or his agent; they may
pursue him into another State; they may arrest him on Sabbath;
and if necessary, they may break into and enter his house for that
purpose
Sec. 24. No bail after final judgment; exception. No bail shall be
allowed after a judgment of conviction has become final. If before
such finality, the accused applies for probation, he may be allowed
temporary liberty under his bail. When no bail was filed or the
accused is incapable of filing one, the court may allow his release
on recognizance to the custody of a responsible member of the
community. In no case shall bail be allowed after the accused has
commenced to serve sentence.
Sec. 25. Court supervision of detainees. The court shall exercise
supervision over all persons in custody for the purpose of
eliminating unnecessary detention. The executive judges of the
Regional Trial Courts shall conduct monthly personal inspections of
provincial, city, and municipal jails and the prisoners within their
respective jurisdictions. They shall ascertain the number of
detainees, inquire on their proper accommodation and health and
examine the condition of the jail facilities. They shall order the
segregation of sexes and of minors from adults, ensure the
observance of the right of detainees to confer privately with
counsel, and strive to eliminate conditions inimical to the
detainees.
In cities and municipalities to be specified by the Supreme Court,
the municipal trial judges or municipal circuit trial judges shall
conduct monthly personal inspections of the municipal jails in
their

respective municipalities and submit a report to the executive

judge of the Regional Trial Court having jurisdiction therein.
A monthly report of such visitation shall be submitted by the
executive judges to the Court Administrator which shall state the
total number of detainees, the names of those held for more than
thirty (30) days, the duration of detention, the crime charged, the
status of the case, the cause for detention, and other pertinent
information.
Sec. 26. Bail not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation. An application for or
admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued
therefore, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court
shall resolve the matter as early as practicable but not later
than the start of the trial of the case.
DOES AN APPLICATION FOR BAIL BAR THE ACCUSED FROM
QUESTIONING THE VALIDITY OF THE WARRANT, OR THE MANNER
OF CONDUCTING THE PRELIMINARY INVESTIGATION
No, provided that he raises these questions before plea.
The ruiing modifies the previous ruling that an application for bail
by the accused shall be considered as a waiver of his right to
challenge the validity of his arrest or the absence of a preliminary
investigation
There is nothing inconsistent with posting bail and filing a motion
to quash information
RULE 115 - RIGHTS OF ACCUSED
Section 1. Rights of accused at trial. In all criminal prosecutions,
the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed
accusation against him.

of

the

nature

and

cause

of

the

(c) To be present and defend in person and by counsel at every

stage of the proceedings, from arraignment to promulgation of the

judgment. The accused may, however, waive his presence at the

trial pursuant to the stipulations set forth in his bail, unless his
presence is specifically ordered by the court for purposes of
identification. The absence of the accused without justifiable cause
at the trial of which he had notice shall be considered a waiver of
his right to be present thereat. When an accused under custody
escapes, he shall be deemed to have waived his right to be present
on all subsequent trial dates until custody over him is regained.
Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can
properly protect his rights without the assistance of counsel.

3.
4.
5.
6.

(d) To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence
shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against
himself.
(f) To confront and cross-examine the witnesses against him at
the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not with due
diligence be found in the Philippines, unavailable, or otherwise
unable to testify, given in another case or proceeding, judicial or
administrative, involving the same parties and subject matter, the
adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of
witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public
trial.
(i) To appeal in all cases allowed and in the manner prescribed by
law.
WHAT ARE THE 9 RIGHTS OF AN ACCUSED IN CRIMINAL
PROCEEDINGS?
The following are the rights accorded the accused:
1. To be presumed innocent until the contrary is proved beyond
reasonable doubt.
2. To be informed of the nature and cause of the accusation
against him.

7.
8.
9.

To be present and defend in person and by counsel at every

stage of the proceedings, from arraignment to promulgation
of the judgment.
To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His
silence shall not in any manner prejudice him.
To be exempt from being compelled to be a witness against
himself.
To confront and cross-examine the witnesses against him at
the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not
with due diligence be found in the Philippines, unavailable, or
otherwise unable to testify, given in another case or
proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the
opportunity to cross-examine him.
To have compulsory process issued to secure the attendance
of witnesses and production of other evidence in his behalf.
To have speedy, impartial and public trial.
To appeal in all cases allowed and in the manner prescribed
by law.

DUE PR OCESS
IS IT NECESSARY TO HAVE TRIAL-TYPE PROCEEDINGS IN ORDER
TO SATISFY THE REQUIREMENT OF DUE PROCESS?
No, there is no need for trial-type proceedings in order to satisfy
due process
The important thing is that there was an opportunity to be heard
Notice and hearing are the two minimum requirements of due
process
IN GENERAL, WHAT ARE THE REQUIREMENTS OF PROCEDURAL
DUE PROCESS?
1. The requirements of procedural due process are as follows:
1. There must be an IMPARTIAL AND COMPETENT COURT with
judicial power to hear and determine the matter before it
2. Jurisdiction MUST HAVE BEEN LAWFULLY ACQUIRED over the
person of the defendant or over the property subject of the
proceeding
3. The defendant must be given an OPPORTUNITY TO BE HEARD
4. Judgment must be RENDERED UPON LAWFUL HEARING

IN CRIMINAL CASES, WHAT ARE THE

REQUIREMENTS OF
1. Unlawful aggression
PROCEDURAL DUE PROCESS?
2. Reasonable means employed
prevent
or repelprovocation
it
1. The accused must be heard by a
court of COMPETENT
3. to
Lack
of sufficient
on the part of the person
JURISDICTION
himself
2.
He must have been proceeded against under
ORDERLY
PROCESSES OF THE LAW
WHAT IS A REVERSE TRIAL?
He may be punished only after INQUIRY AND INVESTIGATION
Usually in most cases, the prosecution first
3.
presents
its evidence
4.
There must be NOTICE to the accused
to establish
the guilt of the accused, and the
defense follows
5.
The accused must be given an OPPORTUNITY TO BE HEARD
thereafter
6.
Judgment must be rendered WITHIN THE AUTHORITY
But this is reversed when the accused admits the
of
killing but claims
constitutional law
A reverse trialself-defense
happens
The accused must first establish the elements of self-defense in
PRESU MP TION O F INNOCENCE
order to overturn the presumption that he was guilt of the offense
WHAT IS THE MEANING OF THE RIGHT OF PRESUMPTION OF
INNOCENCE?
WHAT IS THE PURPOSE OF HAVING TO BE INFORMED OF THE
The right means that the presumption must be overcome by
NATURE AND CAUSE OF THE ACCUSATION?
evidence of guilt beyond reasonable
To know if he is truly the guilty party
doubt
To know the charge against him
1. Guilt beyond reasonable doubt means that there is moral
certainty as to the guilt of the accused
2.
Accusation is not synonymous to guiltconviction should
RIGHT TO BE PRESENT IN TRIAL
then
be based on the strength of the evidence of the prosecution
WHAT ARE THE REQUISITES OF A VALID TRIAL IN ABSENTIA?
and not the weakness of the defense
1. The accused has been already arraigned
2. He has been duly notified of the trial
WHAT IS THE RATIONALE FOR THE PRESUMPTION OF INNOCENCE?
3. He fails to appear at the trial but his non-appearance at the trial is
unjustifiable
There ought to be a balance between the machineries of the State
and the accused
CAN THE RIGHT TO BE PRESENT BE WAIVED?
Yes, except in the following situations where the presence of the
WHAT ARE
THE
EXCEPTIONS TO
THE
accused at the trial is required
CONSTITUTIONAL PRESUMPTION OF INNOCENCE?
1. During arraignment
1. If there is a REASONABLE CONNECTION between the fact
2. During promulgation of judgment, except if it is for a light
presumed and the fact ultimately proven from such fact.
For
offense
example, an accountable public officer who fails to account for
3. When the presence of the accused at the trial is required for
funds or property that should be in his custody is presumed to be
purposes of identification, unless he admits beforehand that
guilty of malversation of public funds; or that persons in
he is the same person charged
possession of recently stolen goods are presumed guilty of the
offense in connection with the goods
RIGHT TO COUNSEL
2. In cases of SELF-DEFENSE, the person who invokes the selfdefense is presumed guilty. The burden of proving the elements
of self-defense is incumbent upon the accused.
ARTICLE 3, SECTION 12 OF THE
CONSTITUTION (RIGHTS DURING CUSTODIAL
WHAT ARE THE ELEMENTS OF SELF-DEFENSE?
INVESTIGATION)

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 4 9 4 9 of 120

1. Any person under investigation for the commission of an

offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
2. No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar
forms
of
detention
are
prohibited.
3. Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against
him.
4. The law shall provide for penal and civil sanctions for
violations of this Section as well as compensation to the
rehabilitation of victims of torture or similar practices, and
their
families.

WHAT KIND
OF
COUNSEL
PURPOSE OF
COUNSEL

CHOICE OF
ACCUSED

CUSTODIA
L
INVESTIGAT
Presence
of
a competent
and
independent
Protect the
accused from
being forced to
confess

Counsel of his
own choice

ARRAIGNMEN
T
Presence
of
a competent
counsel
Informing
the
accused
of
the
consequences
of
his plea and the
nature
and
cause
the
Court canof

TRIAL
Presence of an
effective
counsel
Defend
the
accused

appoint a
counsel
for
the
accused

IS THERE A DIFFERENCE BETWEEN THE RIGHT TO COUNSEL

DURING THE CUSTODIAL INVESTIGATION AND THE RIGHT TO
COUNSEL DURING TRIAL?
Yes. During the trial, the right to counsel means the right to
effective counsel. During trial, the purpose of the counsel is not
so much to protect the accused from being forced to confess, but
rather is to defend the accused.

BY: MA. ANGELA LEONOR C. AGUINALDO

ATENEO LAW 2010

On the other hand, a custodial investigation has stricter

requirements. A custodial investigation requires the presence of a
competent and independent counsel, who is preferably the
accuseds own choice. Furthermore, the right to counsel could
only be waived in writing and in the presence of counsel.
A custodial investigation take note is not done in public, hence the
danger that confessions will be extracted against the will of the
defendant during the custodial investigation. This danger doesn't
really exist during trial since the latter is done in public.

WHY IS THE RIGHT TO COUNSEL AFFORDED DURING TRIAL?

The right to counsel afforded during trial because this right is
embraced in ones right to be heard
WHEN SHOULD THE RIGHT TO COUNSEL BE INVOKED?
The right to counsel can be invoked at any stage of the
proceedings, even on appeal
However, it can also be waived
The accused is deemed to have waived his right to counsel when
he voluntarily submits himself to the jurisdiction of the Court and
and proceeds with his defense
But in two cases, the Court held that the defendant cannot raise
for the first time on appeal his right to have an attorney. If the
question is not raised in the trial court, the prosecution may go to
trial. The question will not be considered in the appellate court for
the first time when the accused fails to raise it in the lower court.
IS IT THE DUTY OF THE COURT TO APPOINT COUNSEL DE
OFFICIO MANDATORY AT ALL TIMES?
No, the duty to appoint counsel de officio is mandatory only up to
the time of arraignment
DOES THE MISTAKE OF COUNSEL BIND THE CLIENT?
As a rule, the mistake of counsel binds the client
Therefore, the client cannot question a decision on the ground
that his counsel was an idiot
However, an exception to this if counsel misrepresents himself as
a lawyer, and he turns out to be a fake lawyer. In this case, the
accused is entitled to new trial because his right to be
represented by a member of the bar was violated. He was thus
denied of his right to counsel and due process.
IS THE RIGHT TO COUNSEL ABSOLUTE?

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 5 0 5 0 of 120
No since the right of choice must be exercised in a reasonable
manner within reasonable time.
The accused cannot insist on counsel that he cannot afford, one
who is not a member of the bar, or one who declines for a valid
reason.
Also the right of the accused to choose counsel is subject to the
right of the state to due process and adequate justice.

SUPPOSE THAT THERE IS A HOLE IN A DOOR TO WHICH IF IT IS

FOUND OUT THAT THE HAND OF THE ACCUSED FITS THE HOLE, HE
IS MOST PROBABLE GUILTY OF THE ACCUSATION. CAN HE INVOKE
THE RIGHT AGAINST SELF-INCRIMINATION?
No, what is being asked of him is mechanical in nature. The
inserting of his hand into the hole will not involve intelligence on
his part to fulfill the task.

WHEN CAN THE ACCUSED DEFEND HIMSELF IN

PERSON?
The accused can defend himself in person only if the court is
convinced that he can properly protect his rights even without the
assistance of counsel.

IS THERE AN EXCEPTION TO THE RIGHT AGAINST SELFINCRIMINATION?

The right cannot be invoked when the State has the rights to
inspect documents under its police power, such as documents of
corporations.

R I GH T T O BE A
BEHALF

ON WHAT KIND OF PROCEEDINGS CAN THE RIGHT AGAINST SELFINCRIMINATION BE INVOKED?

The right against self-incrimination can be invoked in all
proceedings instituted by the government

WITNE SS

ON

HIS O WN

WHAT IS THE WEIGHT OF THE TESTIMONY OF THE ACCUSED WHO

TESTIFIES ON HIS OWN BEHALF BUT REFUSES TO BE CROSSEXAMINED?
The testimony will not be given any weight
It will not have probative value because the prosecution was not
given the chance to test the credibility of the testimony through
cross-examination
R I GH T
A G A I NS T
INCRIMINA TION

S E L F-

WHAT IS
THE SCOPE OF THE
RIGHT AGAINST SELFINCRIMINATION?
The right against self-incrimination covers testimonial compulsion
only and the compulsion to produce real or physical evidence
using the body of the accused
Physical or moral compulsion to extort communication
WITH WHAT KIND OF TESTIMONY OR INSTANCES CAN THE RIGHT
BE INVOKED?
It applies to commutative testimony and not
mechanical
testimony
Commutative testimony involves the use of intelligence on the
part of the accused or witness. Corrorarily, on cases on selfincrimination, the following are permissiblesubstance from the
body, morphine from mouth, put on pants, physical exam, wallet,
picture taking, etc.
The following on the other hand are not
permissiblehandwriting, signature, and similar incidents which
involve the use of intelligence.

WHAT IS THE RATIONALE FOR PROTECTING THE RIGHT AGAINST

SELF-INCRIMINATION?
1. FOR HUMANITARIAN REASONSto prevent the State with all its
coercive powers from extracting testimony that may convict the
accused
2. FOR PRACTICAL REASONSthe accused is likely to commit
perjury if he were compelled to testify against himself
SUPPOSE THAT X WAS A WITNESS IN A JUDICIAL PROCEEDING.
THE COUNSEL ASKED HIM ABOUT HIS WHEREABOUTS DURING A
CERTAIN DATE. X WAS ACTUALLY TOGETHER WITH A WOMAN IN
A MOTEL DURING THAT DATE.
REVEALING HIS WHEREABOUTS
WOULD RESULT TO A DOMESTIC TURBULENCE.
CAN X
RIGHTFULLY INVOKE HIS RIGHT AGAINST SELF-INCRIMINATION?
X cannot invoke the right. He can only invoke the right if there is
only a possibility of criminal prosecution but not in cases of
possible embarrassment.
WHO MAY INVOKE THE RIGHT AGAINST SELF-INCRIMINATION
AND WHEN CAN SUCH PERSON INVOKE THE RIGHT?
An ordinary witness may invoke the right but he may only do so
as each incriminating question is asked
The accused himself may invoke the right, but unlike the ordinary
witness, he may altogether refuse to take the witness stand and
refuse to answer any and all questions.

But once the accused waives his

right and chooses to testify on his
own behalf, he may be crossduring
cross-examination
by claiming
examined
on matters covered
in his that
the answer that he will
could if
incriminate
him for
the crime
give
However,
the question
during
cross-he
examination relates to a
crime
different
from to
that
which he was
the right
and refuse
answer.

Before the case is filed in court but after he has

been taken into custody or otherwise deprived of
his liberty, the accused has the following rights
1. The right to be informed of the nature and
cause of the
2. accusation
The right toagainst
remainhim
silent and to counsel
3. The right not to be subjected to any force,
violence,
threat,means which vitiate free will
intimidation,
or any other
The right have evidence obtained in violation of these rights

4.

CAN AN ACCUSED OR WITNESS INVOKE THE

INCRIMINATION
IF HE IS ASKED ABOUT PAST
RIGHT AGAINST SELFCRIMINALITY?
It depends
If he can still be prosecuted for it,
questions
about
the are
paststill covered by the
criminal
liability
protection against selfincrimination
But if he cannot anymore be prosecuted for it anymore, he
cannot
invoke the right
SUPPOSE X WAS A WITNESS ASKED ABOUT BEING CHARGED
WITH PERJURY TWO YEARS AGO.
HE INVOKES HIS RIGHT
AGAINST SELF-INCRIMINATION. CAN THIS BE TAKEN AGAINST
HIM?
It depends. If in the prior charge of perjury against him, the case
has already been terminated through his acquittal, conviction, or
dismissal of the complaint, he couldn't invoke the right anymore.
But if it is the case that he could still be charged with this past
criminality, then he could invoke said right.
SUPPOSE X WAS A WITNESS ASKED ABOUT BEING A PAID
WITNESS IN THE PAST. X REFUSED TO ANSWER INVOKING THE
RIGHT AGAINST SELF-INCRIMINATION.
CAN THIS BE TAKEN
AGAINST X?
Again, it depends. If he could still be charged for rendering false
testimony, then he could invoke the right. If he cannot anymore
be charged for past criminality, then it could not invoke the right.
X ACCUSED WAS ASKED TO BE A HOSTILE WITNESS. HE REFUSED
TO DO SO. CAN THIS BE TAKEN AGAINST X?
No, X cannot be prejudiced whatsoever as a result of his refusal
to be a hostile witness.
To prejudice X as a result of his
refusal
would render his right against self-incrimination useless and
nugatory.
WHAT ARE THE RIGHTS OF THE ACCUSED IN THE MATTER OF
TESTIFYING OR PRODUCING EVIDENCE?

rejected
After the case is filed in court, the accused
has the following
rights
1. The right to refuse to be a witness
2. The right not to have any prejudice
whatsoever
by such result
refusalto him
The right to testify in his own behalf subject to crossexamination by the prosecution

3.

USE IMMUNITY
TRANSACTIONAL IMMUNITY
Prohibits the use of the witness Immunity to the witness from
compelled testimony and its fruits in prosecution for an offense to which
any manner in connection with the his compelled testimony relates
criminal prosecution of the witness
The witness can still be prosecuted The witness cannot be prosecuted
but his compelled testimony may at all
not be used against him
WHAT IS THE EFFECT OF THE REFUSAL OF THE ACCUSED
TO REFUSE TO TESTIFY IN HIS BEHALF?
GENERAL RULEthe silence of the accused should not prejudice
him
EXCEPTIONSthe following cases draw an unfavorable inference
from the failure of the accused to testify:
o
If the prosecution has already established a prima facie
case, the accused must present proof to overturn the
evidence of the prosecution
o
If the defense of the accused is an alibi and he doesn't
testify, the inference is that the alibi is not believable
IS DNA TESTING
INCRIMINATION?

COVERED

BY

THE

RIGHT

AGAINST

SELF-

No, obtaining DNA samples from an accused in a criminal case or

from the respondent in a paternity case will not violate the right
against self-incrimination
This privilege applies only to evidence that is commutative in
essence taken under duress

RIGHT OF CON FRONTA TION

WHAT IS THE MEANING OF THE RIGHT OF CONFRONTATION?
It means that the accused can only be tried using those witnesses
that meet him face to face at the trial who give testimony in his
presence, and who may be subject to cross-examination
WHAT ARE THE REASONS FOR THE RIGHT?
The right to confrontation is afforded the accused to allow the
court to observe the demeanor of the witness while testifying and
to give the accused the opportunity to cross-examine the witness
in order to test their recollection and credibility
CAN THE RIGHT OF CONFRONTATION BE WAIVED?
Yes, it can be waived either expressly or impliedly
It is waived impliedly when an accused waives his right to be
present at trial
It is waived also by conducting amounting to a renunciation of the
right to cross-examine
When the party was given an opportunity to confront and crossexamine an opposing witness but failed to take advantage of it for
reasons attributable to the party alone, he is deemed to have
waived his right
WHAT HAPPENS TO THE TESTIMONY OF A WITNESS WHO DIES
OR BECOMES UNAVAILABLE?
If the other party had the opportunity to cross-examine the
witness before he died or became unavailable, the testimony may
be used as evidence
However, if the other party did not have the opportunity to crossexamine before the subsequent death or unavailability of the
witness, the testimony will have no probative value.
What suffices to be able to use the testimony of a witness as
evidence is the opportunity to cross-examine and there need not
be an actual cross-examination
RIGHT TO COMPU LSORY PROCE SS

WHAT
IS
THE
RIGHT
TO
COMPULSORY
PROCESS?
It is the right of the accused to have a subpoena and/or a
subpoena duces tecum issued in his behalf in order to compel the
attendance of witnesses and the production of evidence
WHAT HAPPENS IF A WITNESS REFUSES TO TESTIFY WHEN
REQUIRED?
The court should order the witness to give bail or even order his
arrest, if necessary
Failure to obey a subpoena amounts to contempt of court
MAY A WITNESS BE EXCUSED FROM APPEARING AT TRIAL FOR THE
REASON THAT HIS RESIDENCE EXCEEDS 50 KILOMETERS FROM
THE PLACE OF TRIAL?
The provision in the Rules of Court providing for this exemption of
excusing a witness from appearance before a Court, judge or
officer of the province in which he is resides to the place of trial by
the usual course of travel applies only to CIVIL CASES and not to
criminal cases
RIGHT TO SPEEDY, PUBLIC AND I MPAR TIAL
TR IAL HOW SHOULD THE TRIAL BE CONDUCTED?
The trial should be speedy, public and impartial
WHAT IS THE MEANING OF THE RIGHT TO SPEEDY
TRIAL?
The right means that the trial should be conducted according to
the law of criminal procedure and the rules and regulations and it
should be free from vexatious, capricious and oppressive delays
WHEN SHOULD THE ARRAIGNMENT AND PRE-TRIAL BE
HELD?
According to the Speedy Trial Act of 1988, and Circular 38-98, if
the accused pleads not guilty, arraignment and pre-trial should be
held within 30 days from the time the court acquires jurisdiction
over the accused
WITHIN HOW MANY DAYS SHOULD THE TRIAL BE
COMPLETED?
In no case shall the entire period exceed 180 days from the first
day of trial, except as otherwise authorized by the Court
Administrator
WHAT FACTORS MAY BE CONSIDERED IN DETERMINING
WHETHER THE ACCUSED HAS BEEN DEPRIVED OF HIS RIGHT
TO SPEEDY

TRIAL AND SPEEDY DISPOSITION OF HIS CASE? (ACCORDING TO

CORPUZ V. SANDIGANBAYAN)
1. Length of delay
2. Reason for the delay
3. The defendants assertion of his right
4. Prejudice to the defendant
WHAT ARE THE REMEDIES AVAILABLE TO THE ACCUSED WHOSE
RIGHT TO SPEEDY TRIAL HAS BEEN VIOLATED?
1. Motion to dismiss on the ground of violation of right to speedy
trialmust be filed before trial. This has the same effect as an
acquittal for purposes of double jeopardy.
2. File for mandamus to compel a dismissal of the information
3. If he is restrained of his liberty, file for habeas corpus
4. Ask for the trial of the case and move to dismiss
WHAT IS THE LIMITATION ON THE RIGHT OF THE ACCUSED TO A
SPEEDY TRIAL?
The limitation is that the State shouldn't be deprived of its day in
court
The right of the State and the prosecution to due process should
be respected
THE PROSECUTION AND THE COMPLAINANT FAIL TO ATTEND THE
FIRST HEARING.
THE COURT POSTPONES THE HEARING TO
ANOTHER DATE.
IS THERE A VIOLATION TO THE RIGHT TO
SPEEDY TRIAL?
No, the right to speedy trial is violated when there are unjustified
postponements of the trial and a long period of time is allowed to
elapse without the case being tried for no unjustifiable reason
NOTA BENE: Corollary to the right to speedy trial is the right to speedy
disposition of cases.
WHAT IS THE MEANING OF THE RIGHT TO A PUBLIC
TRIAL?
It means that anyone interested in observing the manner that a
judge conducts the proceedings in his courtroom may do so
WHY SHOULD A TRIAL BE CONDUCTED IN
PUBLIC?
The trial should be public in order to prevent abuses that may be
committed by the court to the prejudice of the defendant
Moreover the accused is entitled to the moral support of his
friends and relatives

IS THERE AN EXCEPTION TO THE REQUIREMENT OF PUBLICITY?

Yes, the court may bar the public in certain cases, such as when
the evidence to be presented may be offensive to decency or
public morals, or in rape cases, where the purpose of some
persons in attending is merely to ogle at the parties
IS IT ALRIGHT TO HOLD THE TRIAL IN THE CHAMBERS OF THE
JUDGE?
Yes, there is no violation of the right to a public trial since the
public isnt excluded from attending the trial
IN SO-CALLED TRIALS BY PUBLICITY, WHEN CAN THE PUBLICITY
BE CONSIDERED PREJUDICIAL TO THE ACCUSED?
To warrant a finding of prejudicial publicity, there must be
allegations and proof that the judges have been unduly
influenced, not simply that they might be by the barrage of
publicity
RIGHT TO APPEAL, WHEN ALLOWED
IS THE RIGHT TO APPEAL A FUNDAMENTAL RIGHT?
No, the right to appeal is a statutory right, except in the case of
the minimum appellate jurisdiction of the SC granted by the
Constitution. Anyone who seeks to exercise the right to appeal
must comply with the requirements of the rules. Otherwise the
right to appeal is lost.
CAN THE RIGHT TO APPEAL BE WAIVED?
Yes it can be waived expressly or impliedly
WHAT IS THE EFFECT OF THE FLIGHT OF THE ACCUSED ON HIS
RIGHT TO APPEAL?
When the accused flees after the case has been submitted to the
court for decision, he will be deemed to have waived his right to
appeal from the judgment rendered against him
ARTICLE 8, SECTION 5 (2)MINIMUM APPELLATE JURIDICTION
1. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
2. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto.
3. All cases in which the jurisdiction of any lower court is in issue.

4.

All criminal cases in which the penalty imposed is

reclusion perpetua or higher.
5. All cases in which only an error or question of law is
involved. xxx
RULE 116 - ARRAIGNMENT AND
PLEA Section 1. Arraignment and plea; how made.
(a) The accused must be arraigned before the court where the
complaint or information was filed or assigned for trial.
The
arraignment shall be made in open court by the judge or clerk
by
furnishing the accused with a copy of the complaint or
information, reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not guilty. The
prosecution may call at the trial witnesses other than those
named in the complaint or information.
(b) The accused must be present at the arraignment and must
personally enter his plea. Both arraignment and plea shall be made
of record, but failure to do so shall not affect the validity of the
proceedings.
(c) When the accused refuses to plead or makes a conditional plea,
a plea of not guilty shall be entered for him.
(d) When the accused pleads guilty but presents exculpatory
evidence, his plea shall be deemed withdrawn and a plea of not
guilty shall be entered for him.
(e) When the accused is under preventive detention, his case shall
be raffled and its records transmitted to the judge to whom the
case was raffled within three (3) days from the filing of the
information or complaint. The accused shall be arraigned within
ten (10) days from the date of the raffle. The pre-trial conference
of his case shall be held within ten (10) days after arraignment.
(f) The private offended party shall be required to appear at the
arraignment for purposes of plea bargaining, determination of civil
liability, and other matters requiring his presence. In case of
failure of the offended party to appear despite due notice, the
court may allow the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the offense charged with
the conformity of the trial prosecutor alone.

(g) Unless a shorter period is provided by special law or Supreme

Court circular, the arraignment shall be held within thirty (30)
days from the date the court acquires jurisdiction over the person
of the accused. The time of the pendency of a motion to quash or
for a bill or particulars or other causes justifying suspension of the
arraignment shall be excluded in computing the period.
PURPOSE OF ARRAIGNMENT AND
PLEA
1. Double jeopardy to attach
2. Court can proceed trial in absentia in case accused absconds
WHERE
SHOULD
THE
ACCUSED
BE
ARRAIGNED?
The accused must be arraigned before the court where the
complaint was filed or assigned for trial
HOW
IS
ARRAIGNMENT
MADE?
Arraignment is made
1. In open court
2. By the judge or clerk
3. By furnishing the accused with a copy of the complaint or
information
4. Reading it in the language or dialect known to him
5. Asking him whether he pleads guilty or not guilty
WHAT IS THE IMPORTANCE AND SIGNIFICANCE OF THE
REQUIREMENT UNDER SECTION 1(A)?
It must be strictly complied with as it is intended to protect the
constitutional right of the accused to be informed of the nature
and cause of the accusation against him
The constitutional protection is part of due process
Failure to observe the rules necessarily nullifies the arraignment
X IS CHARGED WITH HOMICIDE.
HE PLEADS GUILTY BUT
PRESENTS EVIDENCE TO ESTABLISH SELF-DEFENSE.
WHAT
SHOULD THE COURT DO?
The court should withdraw the plea and enter a plea of not guilty
WHEN SHOULD THE ARRAIGNMENT BE
HELD?
The general rule is that the accused should be arraigned within 30
days from the date the court acquires jurisdiction over the person
of the accused.

The time of pendency of a motion to quash or

identity of the accused, to inform him
a bill of particulars or other cause justifying
of the charge, and to him an
suspension of the arraignment shall be
opportunity to plead.
However
the following
DURING THE ARRAIGNMENT, IS THE

excluded in computing
thecases,
period.the accused
should be arranged
JUDGE DUTY-BOUND TO
within
a shorter
period, as required
POINT
AN has
INFORMATION
1. Where
the complainant
is aboutby
to law:
depart from
OUT
No, THAT
the judge
no obligation IS
to
the Philippines
point out that an information is
with
no definite
date and
of return,
duplicitous
or to point out any other
arraigned
without delay
his trial the
should
during arraignment
commence within
The obligation to move to quash a
3 days from arraignment
defective information belongs to the
accused, whose failure to do so
trial of cases under the Child right
Abuse
trial should be commenced within 3 days 2.
fromThe
arraignment
toAct
object
3. When the accused is under preventive detention, his case
X WAS TRIED FOR MURDER WITHOUT HAVING BEEN ARRAIGNED.
shall be raffled and its records transmitted to the judge to
AT THE TRIAL, XS COUNSEL PRESENTED WITNESSES AND CROSSwhom the case is raffled within 3 days from the filing of the
EXAMINED THE PROSECUTION WITNESSES. IT WAS ONLY AFTER
information or complaint.
The accused shall be arraigned
THE CASE WAS SUBMITTED FOR DECISION THAT X WAS
within 10 days from the date of raffle.
ARRAIGNED. X WAS CONVICTED. CAN X INVOKE THE FAILURE OF
N.B:
THE COURT TO ARRAIGN HIM BEFORE TRIAL FOR QUESTIONING
1. Rearraignment needed for substitution
THE CONVICTION?
2. Substantial amendment needs rearraignment but formal
No, the failure of the court to arraign X before trial was conducted
amendment doesnt
didnt prejudice the rights of X since he was able to present
evidence and cross-examine the witnesses of the prosecution
PRESENCE OF OFFENDED PARTY
The error was cured by the subsequent arraignment
1. Plea bargaining
2. Civil liability
IS THE ACCUSED PRESUMED TO HAVE BEEN ARRAIGNED IN THE
3. Identification of accused
ABSENCE OF PROOF TO THE CONTRARY?
Yes
WHAT IF PRIVATE OFFENDED PARTY FAILED TO ATTEND
In view of the presumption of regularity in the performance of
DESPITE DUE NOTICE?
official duties, it can be presumed that a person accused of a
The accused may be allowed by the court to plea guilty to a lesser
crime was arraigned, in the absence of proof to the contrary
offense which is necessarily included in the offense charged with
However, the presumption of regularity is not applied when the
the conformity of the prosecutor alone
penalty imposed is death
When the life of a person is at stake, the court cannot presume
CAN THE LAWYER OF THE ACCUSED ENTER THE PLEA FOR HIM?
that there was an arraignment, it has to be sure that there was
No, the accused must enter the plea himself
one

WHAT IS THE IMPORTANCE OF ARRAIGNMENT?

Arraignment is the means for bringing the accused into court and
informing him of the nature and cause of the accusation against
him.
During arraignment, he is made fully aware of possible loss of
freedom or of life. He is informed why the prosecuting arm of the
State is mobilized against him. It is necessary in order to fix the

IS THE ACCUSED ENTITLED TO KNOW IN ADVANCE THE NAMES OF

ALL PROSECUTION WITNESSES?
Under the same amended rules on pre-trial, this would be up to
the trial judges discretion
X WAS CHARGED WITH HOMICIDE. HE ENTERED A PLEA OF NOT
GUILTY. HE WAS LATER ALLOWED TO TESTIFY IN ORDER TO
PROVE THE MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-

DEFENSE. AT THE TRIAL, HE PRESENTED EVIDENCE TO PROVE

THAT HE ACTED IN COMPLETE SELF DEFENSE.
THE COURT
ACQUITTED HIM. LATER, X WAS AGAIN CHARGED WITH PHYSICAL
INJURIES.
X INVOKED DOUBLE JEOPARDY.
CAN X BE
PROSECUTED AGAIN FOR PHYSICAL INJURIES?

3.
4.

Offended party and prosecutor must consent to such plea

If offended party is absent despite due notice, the court
may allow accused to plead to a lesser offense
After arraignment and before trial
1. Withdraw the plea of not guilty

Yes. There was no double jeopardy. In

2. Private offended party and
order for double jeopardy to attach, there
prosecutor must give consent
must
have
been
plea to the
plea offended
to lesser offense

In
this
case,
thea valid
presentation
by first
X of
3. to
If the
private
party is
evidence to prove selfabsent despite due notice,
defense
had
the
of vacating
the
plea
of guilt
accused
to plea

When the
plea
ofeffect
guilt was
vacated,
the
court
4. court
Enter may
plea allow
for the
lesser offense
should have ordered
When the penalty imposable for the
him to plead again, or at least should
offense is at least 6 years and
have directed that a new plea of not guilty
1 day or a fine exceeding P12000,

be entered for him

the prosecutor must first submit his
Because the court didnt do this, at the time of
recommendation
to
the
City
or

the acquittal, there

Provincial or the Chief State Prosecutor
was actually no standing plea for X.
foroffense;
approval.reception
If the recommendation
CAN A PERSON WHO PLEADED GUILTY STILL BE
Sec. 3. Plea of guilty to capital
of evidence.
ACQUITTED?
When
the
accused
pleads
guilty
to
a
capital
offense,
the court shall
Yes, when an accused pleads guilty, it doesnt necessarily follow
conduct a searching inquiry into the voluntariness and full
that he is convicted
comprehension of the consequences of his plea and shall require
Additional evidence independent of the guilty plea may be
the prosecution to prove his guilt and the precise degree of
considered by the judge to ensure that the plea of guilt was
culpability. The accused may present evidence in his behalf.
intelligently made
The totality of evidence should determine whether the accused
WHAT SHOULD THE COURT DO WHEN THE ACCUSED PLEADS
should be convicted or acquitted
GUILTY TO A CAPITAL OFFENSE?
When the accused pleads guilty to a capital offense, the court
WHAT HAPPENS IF THE ACCUSED REFUSES TO ENTER ANY
should
PLEA?
1. Conduct a searching inquiry into the voluntariness and
The court may validly enter a plea of guilty for the accused who
full comprehension of the consequences of the plea
refuses to plead
2. Require the prosecution to present evidence to prove the
guilt and the precise degree of culpability of the accused
Sec. 2. Plea of guilty to a lesser offense. At arraignment, the
for the purpose of imposing the proper penalty
accused, with the consent of the offended party and prosecutor,
3. Ask the accused if he desires to present evidence in his
may be allowed by the trial court to plead guilty to a lesser offense
behalf and allow him to do so if he desires
which is necessarily included in the offense charged. After
Mandatory for the court to conduct the searching inquiry
arraignment but before trial, the accused may still be allowed to
otherwise, there would be an improvident plea
plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is
WHAT
IS
AN
IMPROVIDENT
necessary.
PLEA?
Plea involuntarily made and without consent
WHAT SHOULD BE DONE IF THERE IS A PLEA TO A LESSER
It would be considered if there was failure to conduct searching
OFFENSE?
inquiry, failure of prosecution to present evidence, no rational
WHEN CAN THE ACCUSED PLEAD GUILTY TO A LESSER
basis between testimony and guilt
OFFENSE?
During arraignment
1. Offended party and prosecutor must be present
2. Lesser offense must necessarily be included in the
original offense charged

DOES A PLEA OF GUILTY MEAN AN ADMISSION EVEN OF THE

AGGRAVATING CIRCUMSTANCES?
Yes
A plea of guilty results in the admission of all the material facts in
the complaint or information, including the aggravating
circumstances
It is tantamount to a judicial confession of guilt
Because of this, the court should only accept a clear, definite, and
unconditional plea of guilt
WHEN CAN THE PLEA OF GUILTY BE CONSIDERED A
MITIGATING CIRCUMSTANCE?
It is mitigating if made before the prosecution starts to
present
evidence
WHAT IS THE MEANING OF THE DUTY OF THE JUDGE TO
CONDUCT A SEARCHING INQUIRY?
In all cases, the judge must convince himself
1. That the accused is entering the plea of guilty voluntarily
and intelligently
2. That he is truly guilty
3. That there exists a rational basis for a finding of guilt
based on his testimony
In addition, the judge must inform the accused of the exact length
of imprisonment and the certainty that he will serve it at the
national penitentiary or a penal colony. The judge must dispel
any false notion that the accused may have that he will get off
lightly because of his plea of guilty
IS IT MANDATORY FOR THE PROSECUTION TO PRESENT PROOF OF
AGGRAVATING CIRCUMSTANCES?
Yes, it is mandatory in order to establish the precise degree of
culpability and the imposable penalty
Otherwise, there is an improvident plea of guilty
CAN A COURT VALIDLY CONVICT AN ACCUSED BASED ON AN
IMPROVIDENT PLEA OF GUILTY?
Yes
If there is adequate evidence of the guilt of the accused
independent of the improvident plea of guilty, the court may still
convict the accused
The conviction will be set aside only if the plea of guilt is the sole
basis of the judgment

N.B: there could only be a valid conviction with a valid plea

Sec. 4. Plea of guilty to non-capital offense; reception of evidence,
discretionary. When the accused pleads guilty to a non-capital
offense, the court may receive evidence from the parties to
determine the penalty to be imposed.
WHAT SHOULD THE COURT DO WHEN THE ACCUSED PLEADS
GUILTY TO A NON-CAPITAL OFFENSE?
The court may receive evidence from the parties to determine the
penalty to be imposed
Unlike in a plea of guilty to a capital offense, the reception of
evidence in this case is not mandatory
It is merely discretionary on the court
WHEN CAN THE VALIDITY OF PLEA OF GUILTY BE
ATTACKED?
Generally, a plea of guilty cannot be attacked if it is made
voluntarily and intelligently
It can only be attacked if it was induced by threats,
misrepresentation, or bribes
When the consensual character of the plea is called into question
or when it is shown that the defendant was not fully apprised of
the consequences, the plea can be challenged
Sec. 5. Withdrawal of improvident plea of guilty. At any time
before the judgment of conviction becomes final, the court may
permit an improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty.
NOTE:
The tenor of above provision is clear.
There should be a
categorical declaration from the accused that he is withdrawing his plea of
guilty and substituting it with a plea of not guilty.
CAN AN IMPROVIDENT PLEA OF GUILTY BE WITHDRAWN AS A
MATTER OF RIGHT?
No, the withdrawal of the plea of guilty is not a matter of strict
right to the accused but is within the discretion of the court.
The reason behind this is that trial has already commenced and
will put all of the past proceedings to waste. Therefore, the plea
may only be withdrawn with permission of the court.
Moreover, there is presumption that the plea was made
voluntarily. The court must decide whether the consent of the
accused was in fact vitiated when he entered his plea.

X IS CHARGED WITH HOMICIDE. HE PLEADS GUILTY, BUT TELLS

THE JUDGE HINDI NIYA SINASADYA. IS HIS PLEA VALID?
No. In order to be valid, the plea of guilty must be unconditional.
In this case, X said hindi niya sinasadya. This is not a valid plea
of guilty. A plea of not guilty should be entered instead.

Sec. 8. Time for counsel de officio to prepare for arraignment.

Whenever a counsel de office is appointed by the court to defend
the accused at the arraignment, he shall be given a reasonable
time to consult with the accused as to his plea before proceeding
with the arraignment.

MAY AN ACCUSED BE ALLOWED TO CHANGE HIS PLEA OF NOT

GUILTY EVEN AFTER THE PROSECUTION HAD RESTED ITS CASE?
The trial court may allow the accused to plead guilty to a lesser
offense

WHAT
IS
A
COUNSEL
DE
OFFICIO?
A counsel de officio is the counsel appointed by the court to
represent and defend the accused in case he cannot afford to
employ one himself

Sec. 6. Duty of court to inform accused of his right to counsel.

Before arraignment, the court shall inform the accused of his right
to counsel and ask him if he desires to have one. Unless the
accused is allowed to defend himself in person or has employed
counsel of his choice, the court must assign a counsel de officio to
defend him.
WHAT IS THE FOUR-FOLD DUTY OF THE
COURT?
1. It must inform the defendant that he has a right to an attorney
before being arraigned
2. After informing him, the court must ask the defendant if he
desires to have the aid of an attorney
3. If he desires and is unable to employ an attorney, the court must
assign an attorney de officio to defend him
4. If the accused desires to procure an attorney of his own, the court
must grant him a reasonable time to procure one
WHAT IS THE REASON FOR THE FOUR-FOLD
DUTY?
The right to be heard would be of little avail if it doesnt include
the right to be heard by counsel
WHAT IS THE EFFECT OF THE FAILURE OF THE COURT TO COMPLY
WITH THESE DUTIES?
It is a violation of due process
Sec. 7. Appointment of counsel de officio. The court, considering
the gravity of the offense and the difficulty of the questions that
may arise, shall appoint as counsel de officio such members of the
bar in good standing who, by reason of their experience and
ability, can competently defend the accused. But in localities
where such members of the bar are not available, the court may
appoint any person, resident of the province and of good repute
for probity and ability, to defend the accused.

WHO CAN BE APPOINTED COUNSEL DE

OFFICIO?
The court, considering the gravity of the offense and the difficulty
of the questions that may arise shall appoint as counsel de officio
1. A member of the bar in good standing
2. And such member, by reason of his/her experience and
ability, can competently defend the accused
ONLY DURING TRIAL: But, in localities where such members of
the bar are not available, the court may appoint any person who
is
1. A resident of the province
2. And of good repute for probity and with ability to defend
the accused
WHAT IS THE DIFFERENCE BETWEEN THE DUTY OF THE COURT TO
APPOINT COUNSEL DE OFFICIO DURING ARRAIGNMENT AND
DURING TRIAL?
During arraignment, the court has the affirmative duty to inform
the accused of his right to counsel and to provide him with one in
case he cannot afford it
The court must act on its own volition unless the right is waived
by the accused
On the other hand, during trial, it is the accused who must assert
his right to counsel. The court will not act unless the accused
invokes his rights.
CAN A NON-LAWYER REPRESENT THE ACCUSED DURING
ARRAIGNMENT?
No, during the arraignment, it is the obligation of the court to
ensure that the accused is represented by a lawyer because it is
the first time when the accused is informed of the nature and
cause of the accusation against him.
This is a task which only a lawyer can do.

But during trial, there is no such duty. The accused must ask for
a lawyer, or else, the right is deemed waived.
He can even
defend himself personally.

MAY AN ACCUSED BE VALIDLY REPRESENTED BY A NONLAWYER AT THE TRIAL?

If the accused knowingly engaged the service of the non-lawyer,
he is bound by the non-lawyers actions
But if he didnt know that he was represented by a non-laywer,
the judgment is void because of the misrepresentation
N.B: In MTCs, one can defend himself or by a non-lawyer.
WHAT ARE THE CONSEQUENCES IF REPRESENTED BY A NONLAWYER?
1. He is bound by the rules
2. He cannot raise right to counsel
SUPPOSE X DEFENDS HIMSELF. IS THIS CONSIDERED A
PRACTICE OF LAW UNDER THE DOCTRINE IN CAYETANO V.
MONSOD?
No, this is an exercise of a constitutional right.
Sec. 9. Bill of particulars. The accused may, before arraignment,
move for a bill of particulars to enable him properly to plead and
prepare for trial. The motion shall specify the alleged defects of
the complaint or information and the details desired.
WHAT
IS
A
BILL
OF
PARTICULARS?
It is a more specific allegation
A defendant in a criminal case who believes that he is not
sufficiently informed of the crime with which he is charged and is
not in a position to defend himself properly and adequately could
move for a bill of particulars or specifications
WHAT
IS
THE
PURPOSE
OF
A
BILL
OF
PARTICULARS?
It is to allow the accused to prepare for his defense
WHEN CAN AN ACCUSED MOVE FOR A BILL
PARTICULARS?
The accused must move for a bill of particulars before
arraignment
Otherwise, the right is deemed waived

OF

WHAT SHOULD BE CONTAINED IN THE MOTION FOR A BILL OF

PARTICULARS?

It should specify the alleged defects of the complaint or

information and the details desired

Sec. 10. Production or inspection of material evidence in

possession of prosecution. Upon motion of the accused showing
good cause and with notice to the parties, the court, in order to
prevent surprise, suppression, or alteration, may order the
prosecution to produce and permit the inspection and copying or
photographing of any written statement given by the complainant
and other witnesses in any investigation of the offense conducted
by the prosecution or other investigating officers, as well as any
designated
documents,
papers,
books,
accounts,
letters,
photographs, object, or tangible things not otherwise privileged,
which constitute or contain evidence material to any matter
involved in the case and which are in the possession or under the
control of the prosecution, police, or other law investigating
agencies.
WHAT
IS
THE
RIGHT
TO
MODES
OF
DISCOVERY?
It is the right of the accused to move for the production or
inspection of material evidence in the possession of the
prosecution
It authorizes the defense to inspect, copy, or photograph any
evidence of the prosecution in its possession after obtaining
permission of the court
WHAT IS THE PURPOSE OF THIS
RIGHT?
The purpose is to prevent surprise to the accused and the
suppression or alteration of evidence
IS
THIS
RIGHT
AVAILABLE
DURING
PRELIMINARY
INVESTIGATION?
Yes
When indispensable to protect his constitutional right to life,
liberty and property
Sec. 11. Suspension of arraignment. Upon motion by the proper
party, the arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand
the charge against him and to plead intelligently thereto. In such
case, the court shall order his mental examination and, if
necessary, his confinement for such purpose;

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 6 0 6 0 of 120

(b) There exists a prejudicial question;

and
(c) A petition for review of the resolution of the prosecutor is
pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not exceed
sixty (60) days counted from the filing of the petition with the
reviewing office.
WHAT
ARE
THE
GROUNDS
FOR
SUSPENDING
ARRAIGNMENT?
1. The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand
the charge against him and to plead intelligently thereto. In such
case, the court shall order his mental examination and, if
necessary, his confinement for such purpose;
2. There exists a prejudicial question; and
3. A petition for review of the resolution of the prosecutor is pending
at either the Department of Justice, or the Office of the President;
provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing
office.
WHAT IS THE TEST TO DETERMINE WHETHER THE INSANITY OF
THE
ACCUSED SHOULD WARRANT THE
SUSPENSION OF
PROCEEDINGS?
The test is whether the accused will have a fair trial with the
assistance of counsel, in spite of his insanity
Not every aberration of the mind or exhibition of mental deficiency
is sufficient to justify suspension
RULE 117 - MOTION TO QUASH
Section 1. Time to move to quash. At any time before entering
his plea, the accused may move to quash the complaint or
information.
WHEN CAN THE ACCUSED FILE A MOTION TO
QUASH?
At any time before entering the plea, the accused may move to
quash the complaint or information
AN INFORMATION WAS FILED AGAINST X. X FILED A MOTION TO
QUASH AS THE FACTS IN THE INFORMATION DIDNT CONSTITUTE
AN OFFENSE. THIS WAS FILED TOGETHER WITH AN APPLICATION
FOR BAIL. IS THIS VALID?

Yes. There is no inconsistency that exists between an application

of an accused for bail and his filing of a motion to quash.

Sec. 2. Form and contents. The motion to quash shall be in

writing, signed by the accused or his counsel and shall distinctly
specify its factual and legal grounds. The court shall consider no
ground other than those stated in the motion, except lack of
jurisdiction over the offense charged.
WHAT IS THE FORM REQUIRED FOR A MOTION TO
QUASH?
1. It must be in writing
2. It must be signed by the accused or his counsel
3. It must specify its factual and legal grounds
Sec. 3. Grounds. The accused may move to quash
complaint or information on any of the following grounds:

the

(a) That the facts charged do not constitute an

offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;
(c) That the court trying the case has no jurisdiction over the
person of the accused;
(d) That the officer who filed the information had no authority to
do so;
(e) That it does not conform substantially to the prescribed
form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
(g) That the
extinguished;

criminal

action

or

liability

has

been

(h) That it contains averments which, if true, would constitute a

legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
WHAT ARE THE GROUNDS THAT THE ACCUSED MAY INVOKE TO
QUASH A COMPLAINT OR INFORMATION?

1.
2.

That the facts charged dont constitute an offense

matters of defenses, which are not in
That the court trying the case doesnt have
be
theconsidered
information should not
jurisdiction over the
The exceptions to the rule are when the
offense
grounds invoked to quash the
3.
information
are extinction
of criminal
That the court trying the case doesnt have
accused
and
former jeopardy.
In these
cases,
additional facts are allowed.
4.
That the officer who filed the information didnt
have authority to
CAN THE ACCUSED MOVE TO QUASH ON
do
soit doesnt conform substantially to the form
5.
That
DENIED
DUE PROCESS?
THE GROUND
THAT HE IS
subscribed
6.
That
more than one offense is charged except
No, denial of due process is not one of
the grounds for a motion to
punishment for various offenses is prescribedwhen
by lawa single
quash
7.
That criminal liability or action has been
extinguished
8.
That
it contains averments which, if true, would
WHAT IS THE TEST TO DETERMINE THE
constitute a legal
VALIDITY OF A MOTION TO
excuse
or accused
justification
QUASH
ON THEDONT
GROUND THAT THE
9.
That
the
has been previously convicted
INFORMATION
or acquitted of
AMOUNT TO AN
OFFENSE?
the offense charged, or the case against him
has been dismissed or otherwise terminated
The test is whether the facts alleged
without
the consent
would establish the essential elements
CAN THE COURT DISMISS THE CASE BASED ON
GROUNDS
THATof the accused
X FILED A MOTION TO QUASH ON THE FOLLOWING GROUNDS:
ARE
THAT THE COURT LACKED JURISDICTION OVER THE PERSON OF
NOT ALLEGED IN THE MOTION TO
THE ACCUSED AND THAT THE COMPLAINT CHARGED MORE THAN
QUASH?
ONE OFFENSE. CAN THE COURT GRANT THE MOTION ON THE
The general rule is no, the court cannot consider any ground
GROUND OF LACK OF JURISDICTION?
other than those stated in the motion to quash.
In the past, the answer would have been no since the SC ruled in
The exception is the lack of jurisdiction over the offense charged.
several cases then that the motion to quash on the ground of lack
If this is the ground for dismissing the case, it need not be alleged
of jurisdiction over the person of the accused must be based only
in the motion to quash since it goes into the very competence of
on this ground. If other grounds are included, there is waiver,
the court to pass upon the case.
and the accused is deemed to have submitted himself to the
X FILED A MOTION TO QUASH AN INFORMATION ON THE GROUND
jurisdiction of the court.
THAT HE WAS IN THE US WHEN THE CRIME CHARGED WAS
The new rule, based on the decisions of the SC on Section 20 of
COMMITTED. SHOULD THE MOTION BE GRANTED?
Rule 14 of the 1997 Rules of Civil Procedure, the inclusion of other
The motion should be denied
grounds aside from lack of jurisdiction over the person of the
The accused is already making a defense
defendant in a motion to dismiss shall not be considered as a
Matters of defense are generally not a ground for a motion to
voluntary appearance.
quash they should be presented at the trial
WHAT IS THE EFFECT OF AN INFORMATION THAT WAS SIGNED BY
WHAT IS MEANT BY THE STATEMENT THAT A MOTION TO QUASH
AN UNAUTHORIZED PERSON?
HYPOTHETICALLY ADMITS ALLEGATIONS OF FACT IN THE
A valid information must be signed by a competent officer, which,
among other requisites, confers jurisdiction over the person of the
INFORMATION?
accused and the subject matter of the accusation
It means that the accused argues that assuming that the facts
Thus, an infirmity in the information such as the lack of authority
charged are true, the information should still be dismissed based
of the officer signing it cannot be cured by silence, acquiescence,
on the ground invoked by the defendant.
express consent, or even amendment.
Therefore, since the defendant assumes that the facts in the
information are true, only these facts should be taken into account
and the court resolves the motion to quash. Other facts, such as

It is an invalid information and cannot be the basis of criminal

proceedings.
A motion to quash would prosper

WHAT HAPPENS IF THE DEFENDANT ENTERS HIS PLEA BEFORE

FILING A MOTION TO QUASH?
By entering his plea before filing the motion to quash, the
defendant waives the formal objectives to the complaint or
information
But if the ground for the motion is any of the following below,
there is no waiver. The following grounds may be raised at any
stage of the proceeding:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense
3. Extinction of criminal liability
4. Double jeopardy
Note: if it is a formal objection, it is deemed waived upon plea
HOW
IS
CRIMINAL
LIABILITY
EXTINGUISHED?
Under Article 89 of the RPC, criminal liability is extinguished by
1. The death of the convict
2. Service of sentence
3. Amnesty
4. Absolute pardon
5. Prescription of the crime
6. Prescription of the penalty
7. Marriage by the offended woman as provided in Article
344 of the RPC
X AND Y WERE CHARGED WITH ADULTERY. WHILE THE CASE IS
BEING TRIED, X DIED.
WHAT HAPPENS TO THE CRIMINAL
LIABILITY OF Y?
The criminal liability of X is extinguished.
The criminal liability of Y subsists
The death of one of several accused will not be a cause for
dismissal of the criminal action as against the other accused
WHAT IS THE EFFECT OF THE DEATH OF THE OFFENDED PARTY ON
THE CRIMINAL LIABILITY OF THE ACCUSED?
Where the offense charged in a criminal complaint or information
is one against the state, involving peace and order, the death of
the offended party before final conviction of the defendant will not
abate the prosecution.

Neither does the death of the offended party in private crimes

abate the prosecution.

WHAT ARE THE MEANS BY WHICH CRIMINAL LIABILITY IS

PARTIALLY EXTINGUISHED?
Criminal liability is partially extinguished by any of the following
o
Conditional pardon
o
Commutation of sentence
o
For good conduct, allowances which the culprit may earn
while he is serving his sentence
WHAT ARE THE DISTINCTIONS BETWEEN PARDON AND AMNESTY?
AMNESTY
PARDON
As to type of offense
Public crimes
Infractions
of
the
peace or private crimes
Grantee
Classes of persons
An individual
As to the need of Necessary
Not necessary
Congress concurrence
Act of grantee
The grantee need not Distinct
acts
of
accept
acceptance
by
the
grantee is needed
As to judicial notice
Courts take judicial Courts
dont
take
notice because it is a judicial notice because
public act
it is a private act of the
president.
Therefore,
the
fact
of
being
granted pardon must
be proved in court.
As to effect
Abolishes the offense
Relieves the offender
from the consequences
of the offense
When
it
may
be Before
or
after Only after conviction
granted
conviction
by final judgment
WHAT IS THE EFFECT OF PARDON BY THE OFFENDED PARTY UPON
CRIMINAL LIABILITY?
As a general rule, pardon by the offended party doesnt extinguish
criminal liability
Only civil liability is extinguished by express waiver of the
offended partyTHERE IS NO EXTINCTION OF CRIMINAL
LIABILITY SINCE IN CRIMES, THERE ARE TWO OFFENDED
PARTIES

However, pardon granted before the institution of the criminal

proceedings in cases of adultery, concubinage, seduction,
abduction, and acts of lasciviousness shall extinguish criminal
liability
WHY IS THERE NO EXTINCTION OF CRIMINAL
LIABILITY?
Remember that in a criminal case, there are two offended
parties.
The pardon given by the offended party would relate only to the
civil liability and not the criminal aspect.

WHAT IS THE EFFECT OF MARRIAGE OF THE OFFENDED WITH THE

OFFENDED PARTY IN PRIVATE CRIMES?
It shall extinguish the criminal action or remit the penalty
already
imposedthis implies to co-principals, accomplices, and
accessories
However, where multiple rape is committed, marriage of the
offended party with one defendant extinguishes the latters
liability and that of his accessories or accomplices for a single
crime of rape cannot extend to the other acts of rape
IF THE OFFENDED IN RAPE IS THE LEGAL HUSBAND OF THE
OFFENDED PARTY, HOW CAN THE HUSBANDS CRIMINAL LIABLITY
BE EXTINGUISHED?
The subsequent forgiveness by the wife shall extinguish the
criminal action or the penalty
But the penalty shall not be abated if the marriage is void ab
initio
WHY IS PRESCRIPTION A GROUND FOR A MOTION TO
QUASH?
This is meant to exhort the prosecution not to delay; otherwise,
they will lose the right to prosecute
It is also meant to secure the best evidence that can be obtained
WHAT ARE THE PRESCRIPTIVE PERIODS OF CRIMES?
OFFENSE
PRESCRIPTIVE PERIOD
Those
punishable
by
death, 20 years
reclusion
perpetua,
reclusion
temporal
Those punishable by other afflictive
penalties

10 years

Those punishable by arresto mayor

5 years

Libel or other similar offenses

2 years

Oral defamation or slander by deed

1 year

Light offenses

6 months

FOR CRIMINAL OFFENSES, WHEN DOES THE PERIOD

FOR PRESCRIPTION COMMENCE?
The period of prescription with respect to criminal offenses or run
from the day on which the crime is discovered by the offended
parties, the authorities, or their agents
CAN THE ACCUSED STILL RAISE PRESCRIPTION AS A
DEFENSE EVEN AFTER CONVICTION?
The accused can still raise prescription as a defense even after
conviction
The defense cannot be waived
This is because the criminal action is totally extinguished by the
expiration of the prescriptive period
The state thereby loses or waives the right to prosecute and
punish it
WHAT IS THE PROPER ACTION OF THE COURT WHEN THE
ACCUSED RAISES THE DEFENSE OF PRESCRIPTION?
The proper action for the court is to exercise its jurisdiction and to
decide the case upon the merits, holding the action to have
prescribed
and
absolving
the
defendant
The court should not inhibit itself because it doesnt lose
jurisdiction over the subject matter or the person of the accused
by prescription
WHAT IS THE EFFECT OF PRESCRIPTION OF THE OFFENSE ON
THE CIVIL LIABILITY OF ACCUSED?
The extinction of the criminal action doesnt carry with it the
extinction of the civil action to enforce civil liability arising from
the offense charged, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the civil
liability might arise didnt exist
WHEN IS IT POSSIBLE FOR THE PRIVATE OFFENDED PARTY BE
NOT ABLE TO RECOVER FROM CIVIL LIABILITY?
When the civil action has prescribed
Quasi-delicts: 4 years
Obligation from law: 10 years

Sec. 4. Amendment of complaint or information. If the motion to

quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall
order that an amendment be made.
If it is based on the ground that the facts charged do not
constitute an offense, the prosecution shall be given by the court
an opportunity to correct the defect by amendment. The motion
shall be granted if the prosecution fails to make the amendment,
or the complaint or information still suffers from the same defect
despite the amendment.
WHAT SHOULD THE COURT DO IF THE ACCUSED MOVES TO QUASH
THE COMPLAINT OR INFORMATION ON GROUNDS THAT CAN BE
CURED BY AMENDMENT?
The court should order that the amendment be made
WHAT SHOULD THE COURT DO IF THE ACCUSED MOVES TO QUASH
ON
THE
GROUND
THAT
THE
FACTS
CHARGED
DONT
CONSTITUTE AN OFFENSE?
The court should give the prosecution the opportunity to correct
the defect by amendment
If the prosecution fails to make the amendment, or if, after it
makes the amendment, the complaint or information still suffers
from the same defect, the court should grant or sustain the
motion to quash
Sec. 5. Effect of sustaining the motion to quash. If the motion to
quash is sustained, the court may order that another complaint or
information be filed except as provided in section 6 of this rule. If
the order is made, the accused, if in custody, shall not be
discharged unless admitted to bail. If no order is made or if having
been made, no new information is filed within the time specified in
the order or within such further time as the court may allow for
good cause, the accused, if in custody, shall be discharged unless
he is also in custody of another charge.
Sec. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception. An order sustaining the motion to quash
is not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in section 3 (g) and (i)
of this Rule.

WHAT IS THE EFFECT IF A MOTION TO QUASH IS

SUSTAINED?
The court may order that another complaint or information be
filed against the accused for the same offense except if the
ground forn sustaining the motion to quash is either the
extinguishment of the criminal liability or double jeopardy.
The grant of motion to quash on these 2 grounds is a bar to
another prosecution for the same offense. If the order is made,
the accused, if in custody, shall not be discharged unless admitted
to bail. If no order is made, or if no new information was filed
within the time specified by the court, the accused, shall be
discharged
IF THE MOTION TO QUASH IS DENIED, CAN THE ACCUSED APPEAL
THE ORDER?
The accused cannot appeal an order overruling his motion to
quash because an order denying a motion to quash is
interlocutory
It doesnt dispose of the case upon its merits
WHAT
DOES
INTERLOCUTORY
MEAN?
Case has not been dispensed with
WHAT IS THE REMEDY OF THE ACCUSED IF THE COURT DENIED
HIS MOTION TO QUASH?
1. Accused should plead
2. Proceed to trial without prejudice to present the special defenses
he invoked in his motion
3. If after trial on the merits an adverse decision is rendered, he can
appeal from the judgment of conviction, and interpose the denial
of the motion as an error
Sec. 7. Former conviction or acquittal; double jeopardy. When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by
a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had
pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the
former complaint or information.

However, the conviction of the accused shall not be a bar to

another prosecution for an offense which necessarily includes the
offense charged in the former complaint or information under any
of the following instances:
(a) the graver offense developed due to supervening facts arising
from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or
were discovered only after a plea was entered in the former
complaint or information; or
(c) the plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except as
provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited with
the same in the event of conviction for the graver offense.
WHAT IS JEOPARDY AND WHAT IS THE RULE ON DOUBLE
JEOPARDY?
Jeopardy is the peril in which a person is placed when he is
regularly charged with a crime before a tribunal properly
organized and competent to try him
The rule on double jeopardy means that when a person is charged
with an offense and the case is terminate either by conviction or
acquittal, or in any other manner without the consent of the
accused, the latter cannot again be charged with the same or
identical offense
WHAT
ARE
THE
2
KINDS
OF
JEOPARDY?
1. That no person shall be put twice in jeopardy for the same
offense
2. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution
for the same act
WHAT ARE THE REQUISITES FOR THE ACCUSED TO RAISE THE
DEFENSE OF DOUBLE JEOPARDY?
1. A first jeopardy must have validly attached prior to the second
2. The first jeopardy must have been validly terminated
3. The second jeopardy must be for the same offense or the second
offense includes or is necessarily included in the offense charged

in the first information or is an attempt to commit the offense or a

frustration thereof
WHAT ARE THE REQUISITES FOR THE FIRST JEOPARDY TO
ATTACH?
1. There is a valid complaint or information
2. Court of competent jurisdiction
3. Arraignment
4. Plea
5. The defendant is acquitted, convicted, or the case was dismissed
or terminated without his express consent
N.B: The judgment should not only be final and executory but also be
promulgated before there could be a valid jeopardy.
IS THERE AN EXCEPTION TO THE FOREGOING
RULE?
There are two exceptions to the foregoing rule, and double
jeopardy may attach even if the dismissal of the case was with the
consent of the accused
1. If there is insufficiency of evidence to support the charge
against him, and
2. Where there has been an unreasonable delay in the
proceedings, in violation of the accuseds right to speedy
trial
A CRIME WAS COMMITTED IN MAKATI. THE CASE WAS FILED IN
PASAY.
WHEN THE PROSECUTION REALIZED THAT THE
COMPLAINT SHOULD HAVE BEEN FILED IN MAKATI, IT FILED THE
CASE IN MAKATI. CAN THE ACCUSED INVOKE DOUBLE JEOPARDY?
No, the court in Pasay has no jurisdiction, therefore, the accused
was in no danger of being placed in jeopardy
The first jeopardy didnt validly attach
FOR PURPOSES OF DOUBLE JEOPARDY, WHEN IS A COMPLAINT OR
INFORMATION VALID?
A complaint or information is valid if it can support a judgment of
conviction
If the complaint or information is not valid, it would violate the
right of the accused of the nature and cause of the accusation
against him
If he is convicted under this complaint or information, the
conviction is null and void and hence there is no first jeopardy

X WAS CHARGED WITH QUALIFIED THEFT. X MOVED TO DISMISS

ON THE GROUND OF INSUFFICIENCY OF INFORMATION.
THE
CASE WAS DISMISSED.
SUBSEQUENTLY, THE PROSECUTION
FILED A CORRECTED INFORMATION. CAN X PLEAD DOUBLE
JEOPARDY?
No, the first jeopardy didnt attach because the first information
was not valid
X WAS CHARGED WITH THEFT. DURING THE TRIAL, THE
PROSECUTION WAS ABLE TO PROVE ESTAFA. X WAS ACQUITTED
OF THEFT. CAN X BE PROSECUTED FOR ESTAFA LATER WITHOUT
PLACING HIM IN DOUBLE JEOPARDY?
Yes
For jeopardy to attach, the basis is the crime charged in the
complaint or information, and the one proved at the trial
In this case, the crime charged in the first information was theft.
X was therefore placed in jeopardy of being convicted of theft.
Since estafa is not an offense which is included or necessarily
includes theft, X can still be prosecuted for estafa without placing
him in double jeopardy
THE ESTAFA CASE AGAINST C WAS DISMISSED BUT THE
DISMISSAL CONTAINED A RESERVATION OF THE RIGHT TO FILE
ANOTHER ACTION. CAN ANOTHER ESTAFA CASE BE FILED
AGAINST X WITHOUT PLACING HIM IN DOUBLE JEOPARDY?
Yes
To raise the defense of double jeopardy, the first jeopardy must
have been validly terminated\
This means that there must have been either a conviction or
acquittal, or an unconditional dismissal of the case
A provisional dismissal, such as this one, doesnt validly terminate
the first jeopardy
NOTE: in the second kind of jeopardy, the first jeopardy can validly only
be terminated either by conviction or acquittal and not by the dismissal of
the case without the express consent of the accused.
X WAS CHARGED WITH THEFT. ON THE DAY OF THE TRIUAL, THE
PROSECUTOR AND THE WITNESSES FAILED TO APPEAR. COUNSEL
FOR ACCUSED MOVED TO DISMISS THE CASE.
THE COURT
DISMISSED THE CASE PROVISIONALLY. SUBSEQUENTLY X WAS
CHARGED WITH THEFT AGAIN. CAN X INVOKE JEOPARDY?
No, the case was dismissed upon motion of counsel for the
accused, so it wasnt dismissed without the express consent

Moreover, the dismissal was only provisional, which is not a valid

termination of the first jeopardy
In order to validly terminate the jeopardy, the dismissal must
have been unconditional

X WAS CHARGED WITH SLIGHT PHYSICAL INJURIES.

ON HIS
MOTION, THE CASE WAS DISMISSED DURING TRIAL. ANOTHER
CASE FOR ASSAULT UPON A PERSON IN AUTHORITY WAS FILED
AGAINST HIM. CAN X INVOKE DOUBLE JEOPARDY?
No, the first jeopardy wasnt terminated through either
conviction, acquittal, or dismissal without the express consent of
X
The first case was dismissed upon the motion of X himself
Therefore, he cannot invoke double jeopardy
X WAS CHARGED WITH THEFT.
DURING TRIAL, THE EVIDENCE
SHOWED THAT THE OFFENSE COMMITTED WAS ACTUALLY ESTAFA.
WHAT SHOULD THE JUDGE DO?
The judge should order the substitution of the complaint for theft
with a new one charging estafa
Upon filing of the substituted complaint, the judge should dismiss
the original complaint. If it appears at any time before judgment
that a mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense
WHAT ARE THE REQUISITES FOR A VALID SUBSTITUTION OF A
COMPLAINT OR INFORMATION?
1. No judgment has been rendered
2. The accused cannot be convicted of the offense charged or any
other offense necessarily included in the offense charged
3. The accused will not be placed in double jeopardy
X WAS CHARGED WITH HOMICIDE. ON THE FIRST DAY OF TRIAL,
THE PROSECUTION FAILED TO APPEAR. THE COURT DISMISSED
THE CASE ON THE GROUND OF VIOLATION OF THE RIGHT OF THE
ACCUSED TO SPEEDY TRIAL.
X WAS LATER CHARGED WITH
MURDER. CAN X INVOKE DOUBLE JEOPARDY?
No, the first jeopardy was not validly terminated
The judge who has not dismissed the case on the ground of
violation of the right of X to speedy trial committed grave abuse of
discretion in dismissing the case after the prosecution failed to
appear once
This is not a valid dismissal because it deprives the prosecution of
due process

When the judge gravely abuses the discretion in dismissing a

case, the dismissal is not valid
Therefore, X cannot invoke double jeopardy

DISTINGUISH
ACQUITTAL
AND
DISMISSAL
Acquittal is a discharge after a trial, or an attempt to have one,
upon the merits. It is always on the merits. The accused is
acquitted because the evidence doesnt show his guilt beyond
reasonable doubt.
On the other hand, dismissal is when the case is terminated
otherwise upon the merits thereof, as when the dismissal is based
on the allegation that the court has no jurisdiction, either upon
the subject matter or the territory, or that the complaint or
information is not valid or sufficient, or upon any ground that
doesnt decide the merits of the issue as to whether the accused is
or isnt guilty of the offense charged
WHEN IS A DISMISSAL OF THE CASE, EVEN WITH EXPRESS
CONSENT OF THE ACCUSED, EQUIVALENT TO AN ACQUITTAL,
WHICH WOULD CONSTITUTE A BAR TO A SECOND JEOPARDY?
For a dismissal to be a bar under double jeopardy, it must have
the effect of acquittal
As a general rule, dismissal upon motion of the accused or his
counsel negates the application of double jeopardy because the
motion of the accused amounts to an express consent
However, such a dismissal even with the express consent of the
accused may constitute a bar to double jeopardy in the following
cases
1. Where there is insufficiency of evidence given by the
prosecution to support the charge against him
2. Where there has been an unreasonable delay in the
proceedings, in violation of the accuseds right to speedy
trial
Consequently, the dismissal amounts to an acquittal and would
bar a second jeopardy in the cases below
1. Where the dismissal is based on a demurrer to evidence
filed by the accused after the prosecution has rested,
which has the effect of a judgment on the merits and
operates as an acquittal
2. Where the dismissal is made, also on motion of the
accused, because of the denial of his right to a speedy
trial, which is in effect a failure to prosecute

WHAT IS MEANT BY NOLLE PROSEQUI? IS IT THE SAME AS AN

ACQUITTAL?
It is the discontinuance of a criminal procedure by the prosecuting
officer, with the consent of the owner
A nolle prosequi or dismissal entered before the accused is placed
on trial and before he is called on to plead is not equivalent to an
acquittal and doesnt bar a subsequent prosecution for the same
offense
It is not a final disposition of the case
Rather it partakes of the nature of a non-suit or discontinuance in
a civil suit and leaves the matter in the same condition in which it
was before the commencement of the prosecution
MAY THE COURT DISMISS THE CASE ON MOTION
NOLLE PROSEQUI?
The trial court may dismiss a case on a motion nolle prosequi if
the accused is not brought to trial within the prescribed time and
is deprived of his right to speedy trial or disposition of the case on
account of unreasonable or capricious delay caused by the
prosecution
People v. Espidol doctrine
WHY IS THERE A REQUIREMENT FOR IT TO BE CAPRICIOUS AND
UNREASONABLE?
There are some delays of the prosecution which are not capricious
and unreasonable
It may be caused by some other valid reasonsprejudicial
question, new evidence or witnesses, etc.
WHEN A CASE IS DISMISSED UPON MOTION OF THE ACCUSED,
MAY HE STILL BE PROSECUTED FOR THE SAME OFFENSE?
While there have been conflicting rulings of the SC, the prevailing
doctrine is that the accused can still be prosecuted for the same
offense if he moves to dismiss on the grounds of lack of
jurisdiction, or insufficiency of complaint or information because
he is deemed to have waived his right against a second jeopardy,
or that he is estopped from maintaining that the court had no
jurisdiction or that the complaint wasnt sufficient
WHEN WILL DISMISSAL OR TERMINATION OF THE FIRST CASE
NOT BAR A SECOND JEOPARDY?
1. The dismissal must be sought by the defendant personally or
through his counsel

2.

Such dismissal must not be on the merits and must not

necessarily amount to an acquittal

BEFORE
THE
PROSECUTION
COULD
FINISH
PRESENTING
EVIDENCE, THE ACCUSED FILED A DEMURRER TO EVIDENCE. THE
COURT GRANTED THE MOTION AND DISMISSED THE CASE ON THE
GROUND OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION.
CAN THE ACCUSED BE PROSECUTED FOR THE SAME OFFENSE
AGAIN?
Yes.
There was no double jeopardy because the court has
exceeded its jurisdiction in dismissing the case even before the
prosecution could finish presenting evidence
It denied the prosecution of its right to due process. Because of
this, the dismissal is null and void and cannot constitute a proper
basis for a claim of double jeopardy
THE PROSECUTOR FILED AN INFORMATION AGAINST X FOR
HOMICIDE. BEFORE X COULD BE ARRAIGNED, THE PROSECUTOR
WITHDREW THE INFORMATION WITHOUT NOTICE TO X.
THE
PROSECUTOR THEN FILED AN INFORMATION AGAINST X FOR
MURDER. CAN X INVOKE DOUBLE JEOPARDY?
No, there was no arraignment yet under the first information
Therefore, the first jeopardy didnt attach. The withdrawal or
dismissal of the case before arraignment is not a bar to the filing
of a new information for the same offense.
There is no double jeopardy where there is yet no arraignment
A nolle prosequi or dismissal entered before the accused is placed
on trial and before he pleads is not equivalent to an acquittal and
doesnt bar a subsequent prosecution for the same offense
IF THE ACCUSED FAILS TO OBJECT TO THE MOTION TO DISMISS
THE CASE FILED BY THE PROSECUTION, IS HE DEEMED TO HAVE
CONSENTED TO THE DISMISSAL? CAN HE STILL INVOKE DOUBLE
JEOPARDY?
No, silence doesnt mean consent to the dismissal
If the accused fails to object or acquiesces to the dismissal of the
case, he can still invoke double jeopardy, since the dismissal was
still without his express consent.
He is deemed to have waived his right against double jeopardy if
he expressly consents to the dismissal
X WAS CHARGED WITH MURDER. THE PROSECUTION MOVED TO
DISMISS THE CASE.
COUNSEL FOR X WROTE THE WORDS
NO

OBJECTION AT THE BOTTOM OF THE MOTION TO DISMISS AND

SIGNED IT. CAN X INVOKE DOUBLE JEOPARDY LATER ON?
No, X is deemed to have expressly consented to the dismissal of
the case when his counsel wrote no objection at the bottom of
the motion to dismiss
Since the case was dismissed with his express consent, X cannot
invoke double jeopardy
X WAS CHARGED WITH MURDER.
AFTER THE PROSECUTION
PRESENTED ITS EVIDENCE, X FILED A MOTION TO DISMISS ON
THE GROUND THAT THE PROSECUTION FAILED TO PROVE THAT
THE CRIME WAS COMMITTED WITHIN THE TERRITORIAL
JURISDICTION OF THE COURT.
THE COURT DISMISSED THE
CASE.
THE PROSECUTION APPEALED? CAN X INVOKE DOUBLE
JEOPARDY?
No, X cannot invoke double jeopardy
The dismissal was upon his own motion so it was with his express
consent
Since the dismissal was with his express consent, he is deemed to
have waived his right against double jeopardy
The only time when a dismissal, even with the express consent of
the accused, will bar a double jeopardy is if it is based either on
insufficiency of evidence or denial of the right to speedy trial
These are not grounds invoked by X so he cannot claim double
jeopardy
X WAS CHARGED WITH HOMICIDE. X MOVED TO DISMISS ON THE
GROUND THAT THE COURT HAD NO JURISDICTION. BELIEVING IT
HAD NO JURISDICTION, THE JUDGE DISMISSED THE CASE. SINCE
THE COURT, IN FACT, HAD JURISDICTION OVER THE CASE, THE
PROSECUTION FILED ANOTHER CASE IN THE SAME COURT. CAN X
INVOKE DOUBLE JEOPARDY?
No, X is estopped from claiming that he was in danger of being
convicted during the first case, since he had himself earlier alleged
that the court had no jurisdiction
X WAS CHARGED WITH HOMICIDE. THE COURT, BELIEVED IT HAD
NO JURISDICTION, MOTU PROPIO DISMISSED THE CASE. THE
PROSECUTION APPEALED, CLAIMING THAT THE COURT, IN FACT
HAD JURISDICTION. CAN X INVOKE DOUBLE JEOPARDY?
Yes, when the trial court has jurisdiction but mistakenly dismisses
the complaint or information on the ground of lack of it, the
dismissal wasnt at the request of the accused, the dismissal is
not appealable because it will place the accused in double
jeopardy

X WAS CHARGED WITH RAPE. X MOVED TO DISMISS ON THE

GROUND THAT THE COMPLAINT WAS INSUFFICIENT BECAUSE IT
DID NOT ALLEGE LEWD DESIGNS.
THE COURT DISMISSED THE
CASE. LATER, ANOTHER CASE FOR RAPE WAS FILED AGAINST X.
CAN X INVOKE DOUBLE JEOPARDY?
No, X is estopped from claiming that he could have been
convicted under the first complaint
He himself moved for the dismissal on the ground that the
complaint was insufficient
He cannot change his position and now claim that he was in
danger of being convicted under the complaint
X WAS CHARGED WITH MURDER, ALONG WITH THREE OTHER
PEOPLE. X WAS DISCHARGED AS A STATE WITNESS. CAN X BE
PROSECUTED AGAIN FOR THE SAME OFFENSE?
It depends
As a general rule, an order discharging an accused as state
witness amounts to an acquittal, and he is barred from being
prosecuted again for the same offense
However, if he fails or refuses to testify against his co-accused in
accordance with his sworn statement constituting the basis for the
discharge, he can be prosecuted again
CAN A PERSON ACCUSED OF ESTAFA BE CHARGED WITH
VIOLATION OF BP22 WITHOUT PLACING HIM IN DOUBLE
JEOPARDY?
Yes. Even if the same transaction is involved, the same act may
violate two or more provisions of criminal law and the prosecution
under one will not bar the prosecution under another
Where 2 different laws defines 2 crimes, prior jeopardy as to one
of them is no obstacle to a prosecution of the other, although both
offenses arise from the same facts, if each crime involves some
important act which is not an essential element of the other
X INSTALLED A JUMPER CABLE WHICH ALLOWED HIM TO REDUCE
HIS
ELECTRICITY
BILL.
HE
WAS
PROSECUTED
AND
SUBSEQUENTLY CONVICTED FOR A MUNICIPAL ORDINANCE
AGAINST UNAUTHORIZED INSTALLATION OF A DEVICE. CAN HE
STILL BE PROSECUTED FOR THEFT?
No, under the second type of jeopardy, when an act is punished
by law and an ordinance, conviction or acquittal under one will bar
a prosecution under the other
The constitutional protection against double jeopardy is available
as long as the acts which constitute or have given rise to the first

offense under a municipal ordinance are the same acts which

constitute or have given rise to the offense charged under the
statute
WHAT ARE THE EXCEPTIONS TO DOUBLE JEOPARDY? WHEN CAN
THE ACCUSED BE CHARGED WITH A SECOND OFFENSE WHICH
NECESSARILY INCLUDES THE OFFENSE CHARGED IN THE FORMER
COMPLAINT OR INFORMATION?
The conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense
charged in the former complaint or information under any of the
following circumstances:
o
The graver offense developed due to supervening facts
arising from the same act or omission constituting the
former charge
o
The facts constituting the graver charge became known
or were discovered only after a plea was entered in the
former complaint or information
o
The plea of guilty to a lesser offense was made without
the consent of the prosecutor or offended party except if
the offended party fails to appear at arraignment
WHAT IS THE DOCTRINE OF SUPERVENING
EVENT?
Where after the first prosecution a new fact supervenes for which
the defendant is responsible, which changes the character of the
offense and, together with the facts existing at the time,
constitutes a new and distinct offense, the accused cannot be said
to be in second jeopardy if indicted for the second offense.
X WAS CHARGED WITH FRUSTRATED HOMICIDE.
THERE WAS
NOTHING TO INDICATE THAT THE VICTIM WAS GOING TO DIE. X
WAS ARRAIGNED. BEFORE TRIAL, THE VICTIM DIED. CAN X BE
CHARGED WITH HOMICIDE?
It depends.
If the death of the victim can be traced to the acts of X, and the
victim didnt contribute to his death with his negligence, X can be
charged with homicide
This is a supervening fact
But if the act of X wasnt the proximate cause of death, he cannot
be charged with homicide
X WAS CHARGED WITH RECKLESS IMPRUDENCE RESULTING TO
HOMICIDE AND WAS ACQUITTED. THE HEIRS OF THE VICTIM
APPEALED THE CIVIL ASPECT OF THE JUDGMENT. X CLAIMS THAT

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 7 0 7 0 of 120
THE APPEAL WILL PLACE HIM IN DOUBLE JEOPARDY.
IS X
CORRECT?
No, there was no second jeopardy. What was elevated on appeal
was the civil aspect of the case, not the criminal aspect.
The extinction of criminal liability whether by a prescription or by
the bar of double jeopardy doesnt carry with it the extinction of
civil liability arising from the offense charged
X IN A CRIMINAL CASE WAS SENTENCED AND REQUIRED TO PAY
CIVIL LIABILITY. CAN THE OFFENDED PARTY APPEAL THE CIVIL
LIABILITY?
Yes, if there would be appeal for a criminal case, it must pertain
solely on the civil liability.
An appeal with regard the criminal aspect would violate the
accuseds right against double jeopardy.
The reason why the offended party can appeal the civil aspect is
that double jeopardy only attaches to the criminal aspect and not
the civil aspect. The victim or offended party in the criminal case
is the State while in its civil aspect, the private offended party.
X WAS CHARGED WITH MURDER AND WAS ACQUITTED. CAN THE
PROSECUTION APPEAL THE ACQUITTAL?
No, the prosecution cannot appeal the acquittal, since it would
place the accused in double jeopardy.
A judgment of acquittal in criminal proceedings is final and
unappealable whether it happens at the trial court level or before
the Court of Appeals
Even if the decision of acquittal was erroneous, the prosecution
cannot still appeal the decision as it would put the accused in
double jeopardy.

1.

2.
3.

If the dismissal of the first case was made upon motion

or with the express consent of the defendant, unless the
grounds are insufficiency of evidence or denial of the
right to speedy trial
If the dismissal is not an acquittal or based upon
consideration of the evidence or of the merits of the case,
And the question to be passed upon by the appellate
court is purely legal so that should the dismissal be found
incorrect, the case would have to be remanded to the
court of origin for further proceedings to determine the
guilt or innocence of the accused

WHAT IS THE EFFECT OF THE APPEAL OF THE

ACCUSED?
If the accused appeals, he waives his right against double
jeopardy
The case is thrown wide open for review and a penalty higher than
that of the original conviction could be imposed upon him
WHAT SHOULD THE ACCUSED DO IF THE COURT DENIES THE
MOTION TO QUASH ON THE GROUND OF DOUBLE JEOPARDY?
He should plea not guilty and reiterate his defense of former
jeopardy
In case of conviction, he should appeal from the judgment on the
ground of double jeopardy
CAN AN ACCUSED RAISE THE DEFENSE OF DOUBLE JEOPARDY IN
CONTEMPT PROCEEDINGS?
No, jeopardy doesnt attach.
Remember the requisites for
jeopardy. Jeopardy only attaches in criminal proceedings.

A JUDGMENT OF ACQUITTAL IN CRIMINAL PROCEEDINGS IS

FINAL AND UNAPPEALABLE WHETHER IT HAPPENS AT THE TRIAL
COURT LEVEL OR BEFORE THE COURT OF APPEALS

Sec. 8. Provisional dismissal. A case shall not be provisionally

dismissed except with the express consent of the accused and with
notice to the offended party.

WHEN
CAN
THE
PROSECUTION
APPEAL
DESPITE
THE
DISMISSAL OR TERMINATION OF THE CASE?
As a general rule, the dismissal or termination of the case after
arraignment and plea of the defendant to a valid information shall
be a bar to another prosecution for the same offense, an attempt
or frustration thereof, or one which necessarily includes or is
included in the previous offense.
However, the prosecution may appeal the order of dismissal in the
following instances:

The
provisional
dismissal
of
offenses
punishable
by
imprisonment not exceeding six (6) years or a fine of any amount,
or both, shall become permanent one (1) year after issuance of the
order without the case having been revived. With respect to
offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years
after issuance of the order without the case having been revived.
WHAT IS THE TIME-BAR RULE?
DISMISSAL BECOME FINAL?

WHEN DOES A PROVISIONAL

The provisional dismissal of offenses punishable by imprisonment

exceeding 6 years or a fine of any amount shall become
permanent after one year without the case having been revived
For offenses punishable by imprisonment of more than 6 years,
the provisional dismissal shall become permanent after 2 years
without the case having been revived.
After the provisional dismissal becomes final, the accused cannot
be prosecuted anymore

WHEN CAN A CASE BE PROVISIONALLY DISMISSED?

A case can only be dismissed provisionally if the accused
expressly consents, such consent given in writing or viva voce.
It must be positive, direct, unequivocal consent requiring no
inference or implication to supply its
meaning
The mere inaction or silence of the accused to a provisional
dismissal of the case or his failure to object to a provisional
dismissal doesnt amount to express
consent.
WHAT ARE THE CONDITIONS FOR SECTION 8 TO APPLY?
WHAT ARE THE REQUISITES LAID DOWN BY PEOPLE V. LACSON?
1. The prosecution, with the express conformity of the accused or
the latters counsel moves for a provisional dismissal of the case;
or both the prosecution or accused move for a provisional
dismissal of the case
2. The offended party is notified of the motion for a provisional
dismissal of the case
3. The court issues an order granting the motion and dismissing the
case provisionally
4. The public prosecutor is served with a copy of the order of
provisional dismissal of the case
WHAT DOES IT MEAN WHEN THE TIME BAR RULE WILL NOT
APPLY?
Provisional dismissal will not become permanent, even after one
year or two years depending on the offenses nature
HOW CAN A CASE BE REVIVED?
1. Re-filing the information or filing of a new information for the
same offense necessarily included therein without need of a new
preliminary investigation unless the original witnesses of the
prosecution or some of them may have recanted their testimonies
or may no longer be available and new witnesses for the State
have emerged

2.
3.
4.

A new preliminary investigation is also required if aside from the

original accused, other persons are charged under a new criminal
complaint for the same offense or necessarily included therein
Under a new criminal complaint, the criminal liability of the
accused is upgraded from that of an accessory to that of a
principal
Under a new criminal complaint, the charge has been upgraded

Sec. 9. Failure to move to quash or to allege any ground

therefore.
The failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either
because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of any objections
except those based on the grounds provided for in paragraphs (a),
(b), (g), and (i) of section 3 of this Rule.
RULE 118 - PRE-TRIAL
Section 1. Pre-trial; mandatory in criminal cases. In all criminal
cases cognizable by the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall, after
arraignment and within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars of the
Supreme Court, order a pre-trial conference to consider the
following:
(a) plea bargaining;
(b)
stipulation
facts;

of

(c) marking for identification of evidence of the

parties; (d) waiver of objections to admissibility of
evidence;
(e) modification of the order of trial if the accused admits the
charge but interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the
criminal and civil aspects of the case.
WHAT IS THE PURPOSE OF A PRETRIAL?
The purpose is to expedite proceedings

WHEN IS PRE-TRIAL REQUIRED?

Pre-trial is mandatory in all criminal cases cognizable by the
Sandiganbayan, RTC, MTC and
MCTC
WHEN SHOULD IT BE CONDUCTED?
After arraignment, and within 30 days from the date the court
acquires jurisdiction over the person of the accused
An exception to the rule is when the accused is under preventive
detention. The case shall be raffled within 3 days. Arraignment
shall be done within 10 days after the raffle. Ten days thereafter,
the pre-trial.
WHAT SHOULD THE ORDER FOR PRE-TRIAL
CONFERENCE CONTAIN?
1. The presence of the accused and more importantly the offended
party, for purposes of plea bargaining and determination of civil
liability. Remember that plea bargaining isnt allowed in cases
involving violations of the Dangerous Drugs Act.
2. Referring the matter for preliminary conference to the clerk of
court.
3. Warning that evidence not offered during preliminary conference
shall be inadmissible except if because of good cause and under
the discretion of the court
WHO SHOULD PRESIDE IN A PRELIMINARY CONFERENCE?
Clerk of court will preside the preliminary conference

8.

In case the accused gives a lawful defense, he will indicate that

there would be a modification of the order of trial

1.

A preliminary conference precedes a pre-trial. It is officiated by

the clerk of court. The clerk of court plays a vital role in the
speedy disposition of cases.
Often times, there would be no pre-trial anymore but the trial
would commence and the judge would issue the decision for the
disposition of the case.
The pre-trial conference is conducted for the expeditious
disposition of the case. What happens in the conference is more
than what meets the eye. (Comment: TRANSFORMERS!)
There is now an amendment in the new rules providing for the
parties to talk with each other absent their lawyers.
Lawyers
often times are stumbling blocks in the speedy disposition of
cases.
In the pre-trial and preliminary conference, there is narrowing of
conflict between the parties. In furtherance of this, the judge is
sanctioned to allow the number of witnesses to be presented, limit
the trial days, etc.
Remember that any evidence not presented or marked during the
pre-trial conference shall not be admitted during the trial.
This
is done to make the presentation of evidence mandatory for the
parties to the case. Additional evidence shall only be allowed if
there is good cause and for furtherance of justice
Evidence is genuine and duly executedin relation to notarial law
when the lawyer admits to the genuineness and due execution of
the documentary evidence presented.
The preliminary conference is to minimize the things to be
discussed during the pre-trial conference that would be conducted
by the judge. After the pre-trial conference, a pre-trial order shall
be issued.
This will serve as the bible for the rest of the
proceedings.
See the Revised Rules on Pre-trial issued during August 2004.

N.B

2.
3.
4.

5.

6.

7.

WHAT SHOULD THE CLERK OF COURT DO IN PRESIDING OVER THE

8.
PRELIMINARY CONFERENCE?
1. The clerk of court is given a vital role in the speedy disposition of
cases
2. He shall serve as the mediator or arbitrator between the accused
and offended party for the two parties to reach a settlement as to
the civil liability of the accused
9.
3. He shall serve as mediator between the parties with regard plea
bargaining
4.
He shall serve as mediator in the stipulation of
accused
and offended
party
facts between
the
5.
He shall oversee the introduction and marking
of documentary
evidence
6.
He shall see that the evidence is genuine and duly
executed
7.
He
shall oversee the conference if there will
be
any waiver
to
objections
over admissibility
of evidence

WHEN WILL THE JUDGE PRESIDE?

During the pre-trial
Sec. 2. Pre-trial agreement. All
agreements or admissions made
or
entered
pre-trial
writing
and during
signed the
by the
accused and
counsel,beotherwise,
they
cannot
used against
the accused. The
agreements covering the

matters referred to in section 1 of this Rule shall be approved

by the court.
WHAT
HAPPENS
DURING
PRETRIAL?
The following things are considered
1. Plea bargaining
2. Stipulation of facts
3. Marking for identification of evidence of the parties
4. Waiver of objections to admissibility of evidence
5. Modification of the order of trial if the accused admits the
charge but interposes a lawful defense
6. Other matters that will promote a fair and expeditious
trial of the criminal and civil aspects of the case
WHAT IS THE FORM REQUIRED FOR THE PRE-TRIAL
AGREEMENT?
Any agreement or admission entered into during the pre-trial
conference should be
1. In writing
2. Signed by the accused
3. Signed by counsel
A pre-trial agreement that doesnt follow this form cannot be used
against the accused
Sec. 3. Non-appearance at pre-trial conference. If the counsel
for the accused or the prosecutor does not appear at the pretrial conference and does not offer an acceptable excuse for his
lack of cooperation, the court may impose proper sanctions or
penalties.
Sec. 4. Pre-trial order. After the pre-trial conference, the court
shall issue an order reciting the actions taken, the facts stipulated,
and evidence marked. Such order shall bind the parties, limit the
trial to matters not disposed of, and control the course f the
action during the trial, unless modified by the court to prevent
manifest injustice.
A.M. No. 03-1-09SC
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL
COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRETRIAL AND USE OF DEPOSITION-DISCOVERY
MEASURES RESOLUTION
The use of pre-trial and the deposition-discovery measures are undeniably
important and vital components of case management in trial courts. To
abbreviate court proceedings, ensure prompt disposition of cases and

decongest court dockets, and to further implement the pre-trial guidelines

laid down in Administrative Circular No. 3-99 dated January 15, 1999 and
except as otherwise specifically provided for in other special rules, the
following guidelines are issued for the observance and guidance of trial
judges and clerks of court:
I.

PRE-TRIAL

B. Criminal Cases
1. Before arraignment, the Court shall issue an order directing the
public prosecutor to submit the record of the preliminary
investigation to the Branch COC for the latter to attach the same to
the record of the criminal case.
Where the accused is under preventive detention, his case shall be
raffled and its records transmitted to the judge to whom the case
was raffled within three days from the filing of the complaint or
information. The accused shall be arraigned within ten days from
the date of the raffle. The pre-trial of his case shall be held within
ten days after arraignment unless a shorter period is provided for
by law.
2. After the arraignment, the court shall forthwith set the pre-trial
conference within thirty days from the date of arraignment, and
issue an order:
(a) requiring the private offended party to appear thereat for
purposes of plea-bargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002, and for
other
matters
requiring
his
presence;
(b) referring the case to the Branch COC, if warranted, for a
preliminary conference to be set at least three days prior to the
pre-trial to mark the documents or exhibits to be presented by the
parties and copies thereof to be attached to the records after
comparison and to consider other matters as may aid in its
prompt disposition; and
(c) informing the parties that no evidence shall be allowed to be
presented and offered during the trial other than those identified
and marked during the pre-trial except when allowed by the court
for good cause shown. A copy of the order is hereto attached as
Annex "E". In mediatable cases, the judge shall refer the parties

and their counsel to the PMC unit for purposes of mediation if

available.
3. During the preliminary conference, the Branch COC shall assist
the parties in reaching a settlement of the civil aspect of the case,
mark the documents to be presented as exhibits and copies
thereof attached to the records after comparison, ascertain
from the parties the undisputed facts and admissions on the
genuineness and due execution of documents marked as exhibits
and consider such other matters as may aid in the prompt
disposition of the case. The proceedings during the preliminary
conference shall be recorded in the Minutes of Preliminary
Conference to be signed by both parties and counsel. (Please see
Annex "B")
The Minutes of Preliminary Conference and the exhibits shall be
attached by the Branch COC to the case record before the pre-trial.
4. Before the pre-trial conference the judge must study the
allegations of the information, the statements in the affidavits of
witnesses and other documentary evidence which form part of the
record of the preliminary investigation.
5. During the pre-trial, except for violations of the Comprehensive
Dangerous Drugs Act of 2002, the trial judge shall consider pleabargaining arrangements. Where the prosecution and the
offended party agree to the plea offered by the accused, the court
shall:
a. Issue an order which contains the plea bargaining arrived
at;
b. Proceed to receive evidence on the civil aspect of the case;
and
c. Render and promulgate judgment of conviction, including the
civil liability or damages duly established by the evidence.
6.
When plea bargaining fails, the Court
shall:
a. Adopt the minutes of preliminary conference as part of the pretrial
proceedings,
confirm
markings
of
exhibits
or
substituted
photocopies and admissions on the genuineness and due
execution
of documents and list object and testimonial
evidence;
b.
Scrutinize every allegation of the information and the
statements in the affidavits and other documents which form part
of the record of the preliminary investigation and other
documents identified
and
marked
as
exhibits
in
determining
farther admissions of facts, documents and in
particular as to the following:
1.
the
identity
of
the
accused;

2. court's territorial jurisdiction relative to the offense/s

charged;
3.
qualification
of
expert
witness/es;
4.
amount
of
damages;
5.
genuineness
and
due
execution
of
documents;
6. the cause of death or injury, in proper
cases;
7. adoption of any evidence presented during the preliminary
investigation;
8. disclosure of defenses of alibi, insanity, self-defense, exercise
of
public authority and justifying or exempting circumstances;
and
9. such other matters that would limit the facts in
issue.
c. Define
issues;

factual

and

legal

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
promulgation of decision and use the time frame for each stage in
setting the trial dates;
e. Require the parties to submit to the Branch COC the names,
addresses and contact numbers of witnesses that need to be
summoned by subpoena; and
f. Consider modification of order of trial if the accused admits the
charge but interposes a lawful defense.
7. During the pre-trial, the judge shall be the one to ask questions
on issues raised therein and all questions must be directed to him
to avoid hostilities between parties.
8. All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by
the accused and counsel, otherwise, they cannot be used against
the accused. The agreements covering the matters referred to in
Section 1 of Rule 118 shall be approved by the court. (Section 2,
Rule 118)
9. All proceedings during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed by the parties and/or
their counsels.
10. The trial judge shall issue a Pre-trial Order within ten (10)
days after the termination of the pre-trial setting forth the actions
taken during the pre-trial conference, the facts stipulated, the

admissions made,
be

evidence marked, the number of witnesses to

presented and the schedule of trial. Said Order shall bind the
parties, limit the trial to matters not disposed of and control the
course the action during the trial.

2.

WHAT
IS
A
PRE-TRIAL
ORDER?
It is an order issued by the court after the pre-trial conference
containing:
o
A recital of the actions taken
o
The facts stipulated
o
The evidence marked
The pre-trial order binds the parties, limits the trial to matters not
disposed of, and controls the course of action during the trial,
unless modified by the court to prevent manifest injustice
WHAT IS PLEA BARGAINING?
It is the disposition of criminal charges by agreement between the
prosecution and the accused
The accused and the prosecutor in a criminal case work out a
mutually satisfactory disposition of the case subject to court
approval
It usually involves the defendants pleading guilty to a lesser
offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver
charge
It is encouraged because it leads to prompt and final disposition
of most criminal cases. It shortens the time between charge
and
disposition and enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately imprisoned
WHEN
IS
PLEA
BARGAINING
NOT
ALLOWED?
It is not allowed under the Dangerous Drugs Act where the
imposable penalty is reclusion perpetua to death.
WHAT IF THERE IS A PLEA BARGAINING ARRIVED
AT?
1. Issue an order which contains the plea bargaining arrived at;
2. Proceed to receive evidence on the civil aspect of the case; and
3. Render and promulgate judgment of conviction, including the civil
liability or damages duly established by the evidence.
WHAT HAPPENS IF THERE WAS NO PLEA BARGAINING
AGREEMENT? WHAT WOULD THE COURT DO?
1. Adopt the minutes of preliminary conference as part of the pretrial proceedings, confirm markings of exhibits or substituted

3.
4.

5.
6.

photocopies and admissions on the genuineness and due

execution of documents and list object and testimonial evidence;
Scrutinize every allegation of the information and the statements
in the affidavits and other documents which form part of the
record of the preliminary investigation and other documents
identified and marked as exhibits in determining farther
admissions of facts, documents and in particular as to the
following:
a. The identity of the accused;
b. Court's territorial jurisdiction relative to the offense/s
charged;
c. Qualification of expert witness/es;
d. Amount of damages;
e. Genuineness and due execution of documents;
f.
The cause of death or injury, in proper cases;
g. Adoption of any evidence presented during the
preliminary investigation;
h. Disclosure of defenses of alibi, insanity, self-defense,
exercise of public authority and justifying or exempting
circumstances; and
i.
Such other matters that would limit the facts in issue.
Define factual and legal issues;
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
promulgation of decision and use the time frame for each stage in
setting the trial dates;
Require the parties to submit to the Branch COC the names,
addresses and contact numbers of witnesses that need to be
summoned by subpoena; and
Consider modification of order of trial if the accused admits the
charge but interposes a lawful defense.

REVIEW OF WHAT WE HAVE SO FAR

1.
2.
3.
4.
5.

File an affidavit-complaint with the prosecutor

The prosecutor will determine the nature of the offense. Why?
To determine if there must be a preliminary investigation or not.
If the preliminary investigation is not mandatory, require the
respondent to file a counter-affidavit
There will be a need to determine if an information will be filed
If more than 6 years penalty, require the counter-affidavit of the
accused
and
then
do
the
preliminary
investigation

6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

During the preliminary investigation, secure the affidavits of

witnesses, probable cause, etc.
File with the clerk of court the information. If the court has
multiple branches, the case will be raffled
Assign to the judge who would then issue an order for the
transmittal of the records of the preliminary investigation
Determine probable cause for the issuance of warrant of arrest or
commitment order
If there is no probable cause, order the dismissal of the case.
Otherwise, order the arrest.
The accused is brought to custody. The accused can post bail, if
denied, detention.
Arraignmentwithin 10 days after the preliminary investigation or
when the accused is detained, within 10 days when the case was
raffled
Pre-trial after 10 days from arraignment
Preliminary conference
Pre-trial
RULE 119 - TRIAL

Section 1. Time to prepare for trial. After a plea of not guilty is

entered, the accused shall have at least fifteen (15) days to
prepare for trial. The trial shall commence within thirty (30) days
from receipt of the pre-trial order.
IS THE CONCEPT OF TRIAL THE SAME AS
HEARING?
According to jurisprudence, they are not the same concepts
The words hearing and trial have different meaning and
connotations
Trial may refer to the reception of evidence and other
processes.
It embraces the period for the introduction of evidence by both
parties
Hearing, as known in law, is not confined to trial but embraces the
several stages of litigation, including the pre-trial stage.
A
hearing doesnt necessarily mean presentation of evidence. It
doesnt necessarily imply the presentation of oral or documentary
evidence in open court but that the parties are afforded an
opportunity to be heard.
HOW MUCH TIME DOES THE ACCUSED HAVE TO PREPARE FOR
TRIAL?

After he enters his plea of not guilty, the accused shall have at
least 15 days to prepare for trial
The trial shall commence within 30 days from receipt of the pretrial order

HOW LONG SHOULD THE TRIAL

LAST?
The entire trial period should not exceed 180 days from the first
day of trial, except if authorized by the SC
ARTICLE
8,
CONSTITUTION

SECTION

15

OF

THE

1. All cases or matters filed after the effectivity of this Constitution must
be decided or resolved within twenty-four months from date of submission
for the Supreme Court, and, unless reduced by the Supreme Court, twelve
months for all lower collegiate courts, and three months for all other lower
courts.
2. A case or matter shall be deemed submitted for decision or resolution
upon the filing of the last pleading, brief, or memorandum required by the
Rules of Court or by the court itself.
3. Upon the expiration of the corresponding period, a certification to this
effect signed by the Chief Justice or the presiding judge shall forthwith be
issued and a copy thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why a decision or
resolution has not been rendered or issued within said period.
4. Despite the expiration of the applicable mandatory period, the court,
without prejudice to such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the case or matter submitted
thereto for determination, without further delay.
Sec. 2. Continuous trial until terminated; postponements. Trial
once commenced shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable
period of time for good cause.
The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trail on a weekly or other
short-term trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial period exceed
one hundred eighty (180) days from the first day of trial, except
as otherwise authorized by the Supreme Court.

The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the
Supreme Court provide for a shorter period of trial.
WHAT PROCEDURE IS USED TO AVAIL HIS RIGHT TO SPEEDY
TRIAL?
Continuous trial systema tool for the early and expeditious
disposition of a case
WHAT
IS
THE
CONTINUOUS
TRIAL
SYSTEM?
Trial once commenced shall continue from day to day as far as
practicable until terminated.
It may be postponed for a reasonable period of time for good
cause.
The court shall, after consultation with the prosecutor and
defense counsel, set the case for continuous trail on a weekly
or other
short-term trial calendar at the earliest possible time so as to
ensure speedy trial.
In no case shall the entire trial period exceed one hundred eighty
(180) days from the first day of trial, except as otherwise
authorized by the Supreme Court.
HOW DO YOU ENSURE CONTINUOUS TRIAL
SYSTEM?
There must be a time limit within which the case should be
terminated
WHAT ARE THE DUTIES OF THE PRESIDING JUDGE UNDER
THE CONTINUOUS TRIAL SYSTEM?
1. Adhere faithfully to the session hours prescribed by laws
2. Maintain full control of the proceedings
3. Efficiently allocate and use time and court resources to avoid
court delays
IS
THE
ABSOLUTE?
No

TIME

LIMIT

IN WHICH CASES IS THE TIME LIMITATION NOT

APPLICABLE?
1. CRIMINAL CASES COVERED BY THE RULES ON SUMMARY
PROCEDURE OR THOSE WHERE THE PENALTY DOESNT EXCEED 6
MONTHS IMPRISONMENT OR A FINE OF P1000: governed by the
rules on summary procedure
2. WHEN THE OFFENDED PARTY IS ABOUT TO DEPART WITH NO
DEFINITE DATE OF RETURNtrial shall commence within 3 days

3.
4.
5.

from the date of arraignment, and cannot be postponed except on

grounds over which the accused has no control
CHILD ABUSE CASEStrial shall commence within 3 days from
arraignment and cannot be postponed except on grounds of
illness of the accused or other grounds beyond his control
VIOLATIONS OF DANGEROUS DRUGS LAWtrial shall be finished
within 3 months from the filing of the information
KIDNAPPING, ROBBERY IN A BAND, ROBBERY AGAINST A
BANKING OR FINANCIAL INSTITUTION, VIOLATION OF THE
CARNAPPING ACT, AND OTHER HEINOUS CRIMEStrial shall be
finished within 60 days from the first day of trial

WHAT IS HABEAS CORPUS?

Habeas corpus means having it brought plus body
To inquire into the legality of the detention of a person
A writ or order requiring that a prisoner be brought before a judge
or into court to decide whether he is being held lawfully.
WHY IS HABEAS CORPUS CONSIDERED AN EXCEPTION TO THE
EXCEPTION?
Because it is a prerogative writ and therefore must be decided
upon immediately by the court
The habeas corpus proceeding must take precedence over all
other cases because it involves the liberty of the person
WITHIN HOW MANY HOURS SHOULD A JUDGE RESOLVE A HABEAS
CORPUS PROCEEDING?
Within 48 hours or 2 days
WHAT ARE THE DUTIES OF THE PUBLIC ATTORNEY IF THE
ACCUSED ASSIGNED TO HIM IS IMPRISONED?
1. He shall promptly undertake to obtain the presence of the prisoner
for trial, or cause a notice to be served on the person having
custody of the prisoner, requiring such person to advise the
prisoner of his right to demand trial
2. Upon receipt of that notice, the person having custody of the
prisoner shall promptly advise the prisoner of the charge and his
right to demand trial. If at anytime thereafter, the prisoner
informs the custodian that he demands such trial, the latter shall
cause notice to that effect to be sent promptly to the public
attorney
3. Upon receipt of such notice, the public attorney shall promptly
seek to obtain the presence of the prisoner for trial

4.

When the person having custody of the prisoner receives from the
public attorney a properly supported request for the availability of
the prisoner for purposes of trial, the prisoner shall be made
available accordingly.

Sec. 3. Exclusions. - The following periods of delay shall

be excluded in computing the time within which trial must
commence:
(a) Any period of delay resulting from other
proceedings concerning the accused, including but not limited to
the following:
(1) Delay resulting from an examination of the physical
and mental condition of the accused;
(2) Delay resulting from proceedings with respect to other
criminal charges against the accused;
(3) Delay resulting from extraordinary remedies against
interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided,
that the delay does not exceed thirty (30) days;
(5)
Delay resulting from orders of inhibition, or
proceedings relating to change of venue of cases or
transfer from other courts;
(6) Delay resulting from a finding of existence of a
prejudicial question; and
(7) Delay reasonably attributable to any period, not to
exceed thirty (30) days, during which any proceeding
concerning the accused is actually under advisement.
(b) Any period of delay resulting from the absence or
unavailability of an essential witness.
For purposes of this subparagraph, an essential witness shall be
considered absent when his whereabouts are unknown or his
whereabouts cannot be determined by due diligence. He shall be
considered unavailable whenever his whereabouts are known but
his presence for trial cannot be obtained by due diligence.

(c) Any period of delay resulting from the mental incompetence

or physical inability of the accused to stand trial.
(d) If the information is dismissed upon motion of the
prosecution and thereafter a charge is filed against the accused for
the same offense, any period of delay from the date the charge
was dismissed to the date the time limitation would commence
to run as to the subsequent charge had there been no previous
charge.
(e) A reasonable period of delay when the accused is joined for
trial with a co-accused over whom the court has not
acquired jurisdiction, or, as to whom the time for trial has not run
and no motion for separate trial has been granted.
(f) Any period of delay resulting from a continuance granted by
any court motu proprio, or on motion of either the accused or his
counsel, or the prosecution, if the court granted the continuance
on the basis of its findings set forth in the order that the ends of
justice served by taking such action outweigh the best interest of
the public and the accused in a speedy trial.
WHAT ARE THE PERIODS THAT SHOULD BE EXCLUDED IN
COMPUTING THE TIME WITHIN WHICH TRIAL MUST COMMENCE?
1. Any period of delay resulting from other proceedings concerning
the accused.
2. Any period of delay resulting from the absence or unavailability of
an essential witness.
3. Any period of delay resulting from the mental incompetence or
physical inability of the accused to stand trial.
4. If the information is dismissed upon motion of the prosecution
and thereafter a charge is filed against the accused for the
same
offense, any period of delay from the date the charge was
dismissed to the date the time limitation would commence to run
as to the subsequent charge had there been no previous
charge.
5. A reasonable period of delay when the accused is joined for trial
with a co-accused over whom the court has not acquired
jurisdiction, or, as to whom the time for trial has not run and no
motion for separate trial has been
granted.
6. Any period of delay resulting from a continuance granted by any
court motu proprio, or on motion of either the accused or his
counsel, or the prosecution, if the court granted the continuance
on the basis of its findings set forth in the order that the ends of
justice served by taking such action outweigh the best interest of
the public and the accused in a speedy trial.

WHAT ARE EXAMPLES OF OTHER PROCEEDINGS CONCERNING THE

ACCUSED WHICH SHOULD BE EXCLUDED FROM THE COMPUTATION
OF TIME?
1. Delay resulting from an examination of the physical and mental
condition of the accused;
2. Delay resulting from proceedings with respect to other criminal
charges against the accused;
3. Delay resulting from extraordinary remedies against interlocutory

diligent preparation or failure to obtain available witnesses on

the part of the prosecutor.
WHAT IS A CONTINUANCE?
A continuance is a postponement of trial
WHAT
ARE
THE
FACTORS
FOR
GRANTING
A
CONTINUANCE/POSTPONEMENTS?
1. Whether or not the failure to grant a continuance in the

4.
5.
6.
7.

orders;
Delay resulting from pre-trial
proceedings;
that(30)
the
delay
does notprovided,
exceed thirty
days;
Delay
resulting
from
of
to
change
of venue
of orders
cases or
transfer from other courts;
Delay resulting
from a finding of
question;
and
Delay reasonably attributable to any
period,
notduring
to exceed
thirty
(30)
days,
which
any
proceeding concerning the accused is
actually under advisement (careful
WITNESS CONSIDERED

WHEN IS AN ESSENTIAL
ABSENT?
An essential witness shall be
whereabouts are unknown or
determined by due diligence

considered absent when his

his whereabouts cannot be

WHEN
IS
AN
ESSENTIAL
WITNESS
CONSIDERED
UNAVAILABLE?
He shall be considered whenever his whereabouts are known but
his presence for trial cannot be obtained by due diligence
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 section 3(f) of this Rule.
(a) Whether or not the failure to grant a continuance in the
proceeding would likely make a continuation of such proceeding
impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel,
unusual and complex, due to the number of accused or the nature
of the prosecution, or that it is unreasonable to expect adequate
preparation within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall
be granted because of congestion of the courts calendar or lack of

proceeding would likely make a

continuation of such proceeding
impossible
result
in a miscarriage
2. Whether
oror
not
the case
taken as a
whole is so novel, unusual and
complex, dueorto that
the number
of
prosecution,
it is
unreasonable to expect adequate
preparation
within
the periods
time
No
continuance
under
section of3(f)

of this Rule shall be granted

because of congestion
the courts
preparation
or failure toofobtain
available witnesses on the part of
the prosecutor.
IS THE GRANT OF A MOTION FOR CONTINUANCE OR
POSTPONEMENT A MATTER OF RIGHT?
It is a matter of discretion on the part of the court
Sec. 5. Time limit following an order for new trial. If the accused
is to be tried again pursuant to an order for a new trial, the trial
shall commence within thirty (30) days from notice of the order,
provided that if the period becomes impractical due to
unavailability of witnesses and other factors, the court may extend
but 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 order for new trial.
Sec. 6. Extended time limit. - Notwithstanding the provisions of
section 1(g), Rule 116 and the preceding section 1, for the first
twelve-calendar-month period
following
its
effectivity
on
September 15, 1998, the time limit with respect to the period from
arraignment to trial imposed by said provision shall be one
hundred eighty (180) days. For the second twelve-month period,
the time limit shall be one hundred twenty (120) days, and for the
third twelve-month period, the time limit shall be eighty (80) days.
WHEN SHOULD THE TRIAL COMMENCE AFTER THE ISSUANCE OF
ORDER FOR NEW TRIAL?

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 8 0 8 0 of 120

The trial shall commence within 30 days from the notice of the
order, provided that if the period becomes impractical due to
unavailability of witnesses and other factors, the court may
extend it
It is not to exceed 180 days from notice of said order for new trial

HOW SHOULD THE SECOND 12-MONTH PERIOD BE COUNTED IN

CASE OF A NEW TRIAL?
The time limit shall be 180 days from notice of said order for new
trial
WHAT IS
TRIAL?

MEANT

BY

NEW

HOW LONG SHOULD THE TIME LIMIT

BE?
General rule is 180 days from arraignment to trial
For the second 12-month period, the time limit shall be 120 days
For the third 12-month period, the time limit shall be 80 days
Sec. 7. Public attorneys duties where accused is imprisoned. If
the public attorney assigned to defend a person charged with a
crime knows that he latter is preventively detained, either
because he is charged with a bailable crime but has no means to
post bail, or, is charged with a non-bailable crime, or, is serving a
term of imprisonment in any penal institution, it shall be his duty
to do the following:
(a) Shall promptly undertake to obtain the presence of the
prisoner for trial or cause a notice to be served on the person
having custody of the prisoner requiring such person to so advise
the prisoner of his right and demand trial.
(b) Upon receipt of that notice, the custodian of the prisoner
shall promptly advise the prisoner of the charge and of his right to
demand trial. If at anytime thereafter the prisoner informs his
custodian that he demands such trial, the latter shall cause notice
to that effect to be sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney shall
promptly seek to obtain the presence of the prisoner for trial.
(d) When the custodian of the prisoner receives from the public
attorney a properly supported request for the availability of the
prisoner for purpose of trial, the prisoner shall be made available
accordingly.

WHAT ARE THE DUTIES OF THE PUBLIC ATTORNEY IF THE

ACCUSED ASSIGNED TO HIM IS IMPRISONED?
1. He shall promptly undertake to obtain the presence of the prisoner
for trial, or cause a notice to be served on the person having
custody of the prisoner, requiring such person to advise the
prisoner of his right to demand trial
2. Upon receipt of that notice, the person having custody of the
prisoner shall promptly advise the prisoner of the charge and his
right to demand trial. If at anytime thereafter, the prisoner
informs the custodian that he demands such trial, the latter shall
cause notice to that effect to be sent promptly to the public
attorney
3. Upon receipt of such notice, the public attorney shall promptly
seek to obtain the presence of the prisoner for trial
4. When the person having custody of the prisoner receives from the
public attorney a properly supported request for the availability of
the prisoner for purposes of trial, the prisoner shall be made
available accordingly.
Sec. 8. Sanctions. In any case in which private counsel for
the accused, the public attorney, or the prosecutor:
(a) Knowingly allows the case to be set for trial without
disclosing that a necessary witness would be unavailable for trial;
(b) Files a motion solely for delay which he knows is totally
frivolous and without merit;
(c) Makes a statement for the purpose of obtaining
continuance which he knows to be false and which is material to
the granting of a continuance; or
(d) Willfully fails to proceed to trial without justification
consistent with the provisions hereof, the court may punish such
counsel, attorney, or prosecutor, as follows:
(1) By imposing on a counsel privately retained in connection
with the defense of an accused, a fine not exceeding twenty
thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel de officio, public
attorney, or prosecutor a fine not exceeding five thousand pesos
(P5,000.00); and

(3) By denying any defense counsel or prosecutor the right to

practice before the court trying the case for a period not exceeding
thirty (30) days. The punishment provided for by this section shall
be without prejudice to any appropriate criminal action or other
sanction authorized under these rules.
WHAT ARE THE ACTS TO WHICH THE PRIVATE COUNSEL FOR THE
ACCUSED, THE PUBLIC ATTORNEY OR PROSECUTOR CAN BE MADE
TO ANSWER FOR?
1. Knowingly allows the case to be set for trial without disclosing
that a necessary witness would be unavailable for trial;
2.
3.
4.

Files a motion solely for delay which he knows is totally frivolous

and without merit;
Makes a statement for the purpose of obtaining continuance which
he knows to be false and which is material to the granting of a
continuance; or
Willfully fails to proceed to trial without justification consistent
with the provisions hereof, the court may punish such counsel,
attorney, or prosecutor

WHAT ARE THE SANCTIONS THAT MAY BE IMPOSED UPON AN

ATTORNEY FOR THE AFOREMENTIONED?
1. By imposing on a counsel privately retained in connection with the
defense of an accused, a fine not exceeding twenty thousand
pesos (P20,000.00);
2. By imposing on any appointed counsel de officio, public attorney,
or prosecutor a fine not exceeding five thousand pesos
(P5,000.00); and
3. By denying any defense counsel or prosecutor the right to
practice before the court trying the case for a period not
exceeding thirty
(30) days. The punishment provided for by this section shall be
without prejudice to any appropriate criminal action or other
sanction authorized under these rules.
Sec. 9. Remedy where accused is not brought to trial within the
time limit. If the accused is not brought to trial within the time
limit required by Section 1(g), Rule 116 and Section 1, as
extended by Section 6 of this Rule, the information may be
dismissed on motion of the accused on the ground of denial of his
right to speedy trial. The accused shall have the burden of proving
the motion but the prosecution shall have the burden of going
forward with the

evidence to establish the exclusion of time under section 3 of this

rule. The dismissal shall be subject to the rules on double
jeopardy.
Failure of the accused to move for dismissal prior to trial
shall constitute a waiver of the right to dismiss under this section.
IF THE ACCUSED ISNT BROUGHT TO TRIAL WITHIN THE
TIME LIMIT REQUIRED, WHAT IS THE REMEDY?
The accused should move to dismiss the information, on a motion
nolle prosequi, on the ground of denial of his right to speedy trial
He shall have the burden of proving the motion, but the
prosecution shall have the burden or proving that the delay was
covered by the allowed exclusions of time
If the complaint or information is dismissed, the accused can
plead double jeopardy to a subsequent prosecution
The accused must move to dismiss before actually going to trial.
Otherwise, it is a waiver of the right to dismiss
Sec. 10. Law on speedy trial not a bar to provision on speedy
trial in the Constitution. No provision of law on speedy trial
and no rule implementing the same shall be interpreted as a bar
to any charge of denial of the right to speedy trial guaranteed by
Section
14(2),
Article
III,
of
the
1987
Constitution.
N.B: The constitutional provision is broad while the law on speedy trial is
more specific and gives effectivity to the constitutional provision.
Sec. 11. Order of trial. The trial shall proceed in the following
order:
(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense and
damages, if any, arising, from the issuance of a provisional
remedy in the case.
(c) The prosecution and the defense may, in that order, present
rebuttal and sur-rebuttal evidence unless the court, in furtherance
of justice, permits them to present additional evidence bearing
upon the main issue.

reasonable doubt
(d) Upon admission of evidence of the parties, the case shall be
deemed submitted for decision unless the court directs them to
argue orally or to submit written memoranda.

Accused claims that one of the

elements of the offense charged is
not present.

(e) When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the
order of trial may be modified.
WHAT IS THE ORDER OF TRIAL?
1. The prosecution shall present evidence to prove the charge and,
in the proper case, the civil liability.
2. The accused may present evidence to prove his defense and
damages, if any, arising, from the issuance of a provisional
remedy in the case.
3. The prosecution and the defense may, in that order, present
rebuttal and sur-rebuttal evidence unless the court, in furtherance
of justice, permits them to present additional evidence bearing
upon the main issue.
4. Upon admission of evidence of the parties, the case shall be
deemed submitted for decision unless the court directs them to
argue
orally
or
to
submit
written
memoranda.
5. When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the
order of trial may be modified.

It
is
incumbent
upon
the
prosecution to prove the existence
of this element.

WHY DOES THE TRIAL BEGIN WITH THE PROSECUTION?

Prosecution begins because it has the burden of proving the guilt
of the accused relying on the strength of its own evidence and not
on the weakness of the defense
WHAT IF THERE IS NOT ENOUGH EVIDENCE TO PROVE GUILT
BEYOND REASONABLE DOUBT?
If there is not enough evidence to prove the accuseds
guilt
beyond reasonable doubt, then the defense should file a demurrer
to evidence. The accused need not present evidence on his
behalf.
Unless there is a reverse trial, there is no need to prove the
commission of the offense because the crime is admitted
DISTINGUISH BETWEEN A NEGATIVE DEFENSE AND AFFIRMATIVE
DEFENSE
NEGATIVE DEFENSE
AFFIRMATIVE DEFENSE
Requires the prosecution to prove The accused admits the act or
the guilt of the accused beyond omission but interposes a defense,

which if proven, would exculpate

him

Sec. 12. Application for examination of witness for accused before

trial. When the accused has been held to answer for an offense,
he may, upon motion with notice to the other parties, have
witnesses conditionally examined in his behalf. The motion shall
state: (a) the name and residence of the witness; (b) the
substance of his testimony; and (c) that the witness is sick or
infirm as to afford reasonable ground for believing that he will not
be able to attend the trial, or resides more than one hundred (100)
kilometers from the place of trial and has no means to attend
the same, or that other similar circumstances exist that would
make him unavailable or prevent him from attending the trial. The
motion shall be supported by an affidavit of the accused and such
other evidence as the court may require.
Sec. 13. Examination of defense witness; how made. If the court
is satisfied that the examination of a witness for the accused is
necessary, an order shall be made directing that the witness be
examined at a specific date, time and place and that a copy of the
order be served on the prosecutor at least three (3) days
before the scheduled examination. The examination shall be taken
before a judge, or, if not practicable, a member of the Bar
in good standing so designated by the judge in the order, or if the
order be made by a court of superior jurisdiction, before an
inferior court to be designated therein. The examination shall
proceed notwithstanding the absence of the prosecutor provided
he was duly notified of the hearing. A written record of the
testimony shall be taken.
Sec. 14. Bail to secure appearance of material witness. When the
court is satisfied, upon proof of oath, that a material witness will
not testify when required, it may, upon motion of either party,
order the witness to post bail in such sum as may be deemed
proper. Upon refusal to post bail, the court shall commit him to

prison until he complies

testimony has been taken.

or

is

legally

discharged

after

his

Sec. 15. Examination of witness for the prosecution. When it is

satisfactorily appears that a witness for the prosecution is too
sick or infirm to appear at the trial as directed by the court, of has
to leave the Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court where the
case is pending. Such examination, in the presence of the accused,
or in his absence after reasonable notice to attend the examination
has been served on him, shall be conducted in the same manner as
an examination at the trial. Failure or refusal of the accused to
attend the examination at the trial. Failure or refusal of the
accused to attend the examination after notice shall be considered
a waiver. The statement taken may be admitted in behalf of or
against the accused.
WHO MAY EXAMINE A DEFENSE WITNESS?
WHAT ABOUT A
PROSECUTION WITNESS?
A defense witness may be examined by any judge, or by any
member of the bar in good standing designated by the judge, or
before an inferior court
On the other hand, a prosecution witness may only be examined
before the judge of the court where the case is pending
ARE MODES OF DISCOVERY AVAILABLE IN CRIMINAL
CASES?
Modes of discovery such as the taking of deposition, may be
allowed in criminal cases, but it is subject to the sound discretion
of the court
WHAT IS THE REMEDY OF A PARTY IN CASE OF AN
UNAVAILABILITY OF A WITNESS?
The party can avail of the modes of discovery,
particularly
depositionin the manner of questions and answers to be
answered by the witness
The examination shall be CONDITIONAL
WHO
WILL
CONDUCT
THE
DEPOSITION?
It depends if its a witness for the prosecution or defense
If the witness is for the defense, the deposition can by done by
the judge, if impracticable, by a member of the bar in good
standing designated, or by an inferior court
If the witness is for the prosecution, the deposition can only be
done by the judge

WHY
ARE
MODES
OF
DISCOVERY
ALLOWED?
The purpose is not to frustrate the ends of justice
Purpose also is to obviate proceedings
A party may have a witness for his behalf but due to reasonable
circumstances, the witness essential to his case would be
unavailable and will not be able to attend
WHY
IS
EXAMINATION
OF
THE
WITNESSES
PROSECUTION CONDUCTED BEFORE THE JUDGE?
To examine the deportment of the witness

FOR

THE

Sec. 16. Trial of several accused. When two or more accused are
jointly charged with an offense, they shall be tried jointly
unless the court, in its discretion and upon motion of the
prosecutor or any accused, orders separate trial for one or more
accused.
IF THERE ARE 2 OR MORE ACCUSED, SHOULD THEY BE TRIED
JOINTLY OR SEPARATELY?
As a general rule, when 2 or more accused are jointly charged
with an offense, they should be tried jointly
However, the court in its discretion and upon motion of the
prosecutor or any accused, may order separate trial for one of the
accused
WHAT HAPPENS TO THE EVIDENCE PRESENTED IN THE TRIAL OF
THE OTHER ACCUSED IF A SEPARATE TRIAL IS GRANTED?
When a separate trial is demanded and granted, it is the duty of
the prosecution to repeat and produce all its evidence at each and
every trial, unless it has been agreed by the parties that the
evidence for the prosecution wouldnt have to be repeated at the
second trial and all the accused had been present during the
presentation of the evidence of the prosecution and their attorney
had the opportunity to cross-examine the witnesses for the
prosecution
X IS A PUBLIC OFFICER. HE WAS CHARGED WITH MALVERSATION
OF PUBLIC FUNDS IN CONSPIRACY WITH Y, A CIVILIAN. SHOULD
THEY BOTH BE TRIED IN SANDIGANBAYAN?
Yes
In case private individuals are charged as co-principals,
accomplices, or accessories with public officers, they shall be tried
jointly with said public officers in the proper courts which shall
exercise exclusive jurisdiction over them.

Sec. 17. Discharge of accused to be state witness. When two or

more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case,
the court may direct one or more of the accused to be discharged
with their consent so that they may be witnesses for the state
when, after requiring the prosecution to present evidence and the
sworn statement of each proposed state witness at a hearing in
support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused
whose discharge is requested;

2.
3.
4.
5.

The court will require the prosecution to present evidence and the
sworn statement of the proposed state witness at a hearing in
order to support the discharge
The court will determine if the requisites of giving the discharge
are present. Evidence adduced in support of the discharged shall
automatically form part of the trial
If the court is satisfied, it will discharge the state witness. The
discharge is equivalent to an acquittal, unless the witness later
fails or refuses to testify
The court denies the motion for discharge, his sworn statement
shall be inadmissible as evidence

(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

WHAT ARE THE REQUISITES IN ORDER FOR A PERSON TO BE

DISCHARGED AS A STATE WITNESS?
1. The discharge must be WITH THE CONSENT OF THE ACCUSED
sought to be a state witness
2. There is ABSOLUTE NECESSITY for the testimony of the accused
whose discharge is requested;
3. There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper
prosecution of the offense committed, except the testimony of
said accused;
4. The testimony of said accused can be SUBSTANTIALLY
CORROBORATED in its material points;
5. Said accused DOES NOT APPEAR TO BE THE MOST GUILTY; and
6. Said accused has not at any time been convicted of any offense
involving MORAL TURPITUDE.

Evidence adduced in support of the discharge shall automatically

form part of the trial. If the court denies the motion for
discharge of
the
accused as
state
witness, his
sworn
statement shall be inadmissible in evidence.

CAN THE COURT GRANT THE DISCHARGE BEFORE THE

PROSECUTION HAS FINISHED PRESENTING ALL ITS EVIDENCE?
No. As a general rule, the court should resolve any motion to
discharge only AFTER the prosecution has presented all of its

(b) There is no other direct evidence available for the proper

prosecution of the offense committed, except the testimony of said
accused;
(c) The testimony of said accused
corroborated in its material points;

can

be

substantially

(d) Said accused does not appear to be the most guilty;

and

WHAT
IS
WITNESS?

STATE

A state witness is one of two or more

persons jointly charged with the
commission
of a so
crime
as
such accused
thatbut
he who
may is
be a
witness for the State
WHEN SHOULD THE APPLICATION FOR
DISCHARGE OF THE STATE
WITNESS
MADE?
It BE
should
be made upon motion of the prosecution before resting
its case

WHAT IS THE PROCEDURE FOR DISCHARGING A PERSON AS A

STATE WITNESS?
1. Before resting its case, the prosecution should file a motion to
discharge the accused as a state witness with his consent

evidence since it is at this time when the court

shall determine the presence of the requisites
above

In
some cases, HOWEVER, the SC held that the
prosecution is not
required
to present
all of its
other
evidence before
discharged.
The accused
may
be discharged
at
any time before
the defendants have entered upon their defense.
IS A HEARING OF THE MOTION TO DISCHARGE MANDATORY?
So long as the motion is able to receive evidence for and against
the discharge of an accused to become a state witness, its
subsequent order granting or denying the motion for discharge is
in order notwithstanding the lack of actual hearing on the motion

WHAT IS THE MEANING WHEN THE TESTIMONY OF THE ACCUSED

CAN BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL
POINTS?
There is presence of indirect testimony or evidence that could
corroborate with the truthfulness of the testimony of the accused
WHAT HAPPENS IF THERE IS LACK OF REQUISITES PRESENT IN
THE MOTION FOR THE DISCHARGE OF THE ACCUSED?
There is no need to allege all the requisites in the motion. What
is
required is that the court is satisfied that the requisites are
present for the discharge.
The evidence for the discharge may be presented during the
hearing on the motion
WHAT IS THE MEANING OF ABSOLUTE NECESSITY OF THE
TESTIMONY OF THE PROPOSED STATE WITNESS?
It means that there is no other evidence to establish the offense
other than the testimony of the accused
For example, where an offense is committed in conspiracy and
clandestinely, the discharge of one of the conspirators is
necessary in order to provide direct evidence of the commission of
the crime
No one else other than one of the conspirators can testify on what
happened among them
DOES ABSOLUTE NECESSITY MEAN THAT TESTIMONY WOULD
RESULT IN ABSOLUTE CERTAINTY OF CONVICTION?
No
CAN THERE BE
DISCHARGED?
Yes

MORE

THAN

ONE

ACCUSED

WHO

CAN

BE

WHAT IS THE REMEDY OF THE PROSECUTION IF THE COURT

DENIES THE MOTION OF THE PROSECUTION?
The State can file a petition for certiorari
THE ACCUSED PLEADED GUILTY TO THE CRIME CHARGED AND/OR
ALREADY TESTIFIED AS AN ACCUSED, CAN HE STILL BE
DISCHARGED?
Yes
CAN A CO-CONSPIRATOR
WITNESS?

BE

DISCHARGED

AS

STATE

RULEa co-conspirator cannot be discharged as a state witness

against a co-conspirator
EXCEPTIONif the crime was committed clandestinely and there
is no way to prove the crime

WHAT
IS
AN
IRREGULAR
DISCHARGE?
Irregular discharge is a discharge where one or all of the
conditions required for discharge didnt really exist
IF THE STATE WITNESS REFUSES TO TESTIFY, WILL HIS SWORN
STATEMENT BE ADMISSIBLE AGAINST HIM?
No, his sworn statement will not be admissible against him
Otherwise, it violates his right against self-incrimination
LECTURE
NOTES
(JUSTICE
SABIO):
The accused must first be charged before he can be discharged as
a state witness.
There is a difference between a witness of the state and a state
witness. If you are a state witness, you are originally part of the
crime. If you are a witness for the state, you are not originally
part of the crime.
The section contemplates that the information is already filed, the
accused has been arraigned, there is trial and the prosecution
hasnt rested its case.
Sec. 18. Discharge of accused operates as acquittal. The order
indicated in the preceding section shall amount to an acquittal of
the discharged accused and shall be a bar to future prosecution for
the same offense, unless the accused fails or refuses to testify
against his
co-accused in
accordance with
his
sworn
statement constituting the basis for his discharge.
WHAT
ARE
THE
EFFECTS
OF
THE
DISCHARGE?
1. Evidence in support of the discharge forms part of the trial. But if
the court denies the motion to discharge, his sworn statement
shall be inadmissible as evidence
2. Discharge of the accused operates as an ACQUITTAL and bar to
further prosecution for the same offense, except if he fails or
refuses to testify against his co-accused in accordance with his
sworn statement constituting the basis of the discharge. In this
case, he ca n be prosecu ted again and his admis sion can b e used
against him.

WHAT DOES IT MEAN WHEN HE FAILS OR REFUSES TO TESTIFY IN

ACCORDANCE WITH HIS SWORN STATEMENT?
It means that the accused makes substantial changes in
his
testimony that would naturally affect the proceedings and would
be prejudicial to the prosecution of the offense charged
WHAT IF IN THE SWORN STATEMENT OF X, HE MENTIONED ONLY
THAT 3 OF HIS COMPANIONS WERE IN CONSPIRACY WITH EACH
OTHER. DURING HIS TESTIMONY, HE TESTIFIED THAT ALL 10 OF
HIS COMPANIONS WERE IN CONSPIRACY. IS THIS PROPER?
Yes
This doesnt fall within the ambits of refusing to testify in
accordance with his sworn statement
It will be proper as long as it will help further the prosecution in
prosecuting the offense charged against the accused
WHAT HAPPENS IF THE COURT IMPROPERLY OR ERRONEOUSLY
DISCHARGES AN ACCUSED AS STATE WITNESS, AS WHEN FOR
EXAMPLE, THE ACCUSED HAS BEEN CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE?
The improper discharge will not render inadmissible his testimony
nor detract from his competency as a witness
Neither will it invalidate his acquittal because the acquittal
becomes ineffective only if he fails or refuses to
testify
WHAT IF AFTER AN ACCUSED HAS BEEN DISCHARGED TO BECOME
A STATE WITNESS, IT WAS FOUND OUT DURING THE TRIAL THAT
THE FACTS HE ATTESTED TO IN HIS SWORN STATEMENT WERE ALL
LIES? DOES THE COURT HAVE ANY RECOURSE IF THERE WAS A
WRONGFUL DISCHARGE?
The discharge of the accused wouldnt be affected. His discharge
would still amount to an acquittal and is a bar for further
prosecution for the same offense. First, the grounds mentioned
in
the rule as exceptions to the general rule are exclusive in
character. The discharge will not be a bar to further prosecution
and not amount to acquittal is when the accused refuses or fails
to testify in accordance with his sworn statement. Second, what
the rules require is ABSOLUTE NECESSITY and not ABSOLUTE
CERTAINTY. Third, what transpired was an error of judgment on
the part of the court.
If the court has a recourse, it would be to detain the discharged
accused, following Section 19 of this Rule, and file a case against
him but not for the same offense but for perjury

WHAT HAPPENS WHEN THE ORIGINAL INFORMATION UNDER

WHICH AN ACCUSED WAS DISCHARGED IS LATER AMENDED?
A discharge under the original information is just as binding upon
the subsequent amended information, since the amended
information is just a continuation of the original
MUST THE ACCUSED TO BE DISCHARGED FIRST BE CHARGED IN
THE COMPLAINT OR INFORMATION?
No.
Note: the filing of the motion in court gives the court jurisdiction
over the persons
CAN THE OTHER CONSPIRATORS BE SOLELY CONVICTED ON THE
BASIS OF THE DISCHARGED STATE WITNESS?
No, there must be other evidence to support his testimony
The testimony of a state witness comes from a polluted source
and must be received with caution
It should be substantially corroborated in its material points
As an exception however, the testimony of a co-conspirator, even
if uncorroborated, will be considered sufficient if given in a
straightforward manner and it contains details which couldnt have
been a result of deliberate afterthought.
Sec. 19. When mistake has been made in charging the proper
offense. When it becomes manifest at any time before judgment
that a mistake has been made in charging the proper offense and
the accused cannot be convicted of the offense charged or any
other offense necessarily included therein, the accused shall not
be discharged if there appears good cause to detain him. In such
case, the court shall commit the accused to answer for the
proper offense and dismiss the original case upon the filing of the
proper information.
WHAT IF THERE WAS A MISTAKE MADE IN CHARGING THE
PROPER OFFENSE?
When it becomes manifest at any time before judgment that a
mistake has been made in charging the proper offense and the
accused cannot be convicted of the offense charged or any other
offense necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him
The accused shall not be discharged if there appears good cause
to detain him

In such case, the court shall commit the accused to answer for the
proper offense and dismiss the original case upon the filing of the
proper information.

Sec. 20. Appointment of acting prosecutor. When a

prosecutor, his assistant or deputy is disqualified to act due to
any of the grounds stated in section 1 of Rule 137 or for any other
reason, the judge or the prosecutor shall communicate with the
Secretary of Justice in order that the latter may appoint an acting
prosecutor.
WHAT IS SECTION 1 OF RULE
137?
IS IT ONLY SECTION 1 OF RULE 137 THAT PROVIDES FOR THE
DISQUALIFICATION OF PROSECUTORS?
No
Section 20 of this present rule provides for any other reason
WHAT COULD
REASON?

BE

EXAMPLES

OF

FOR

ANY

OTHER

Sec. 21. Exclusion of the public. The judge may, motu proprio,
exclude the public from the courtroom if the evidence to be
produced during the trial is offensive to decency or public morals.
He may also, on motion of the accused, exclude the public from the
trial except court personnel and the counsel of the parties.
WHEN CAN THE PUBLIC BE EXCLUDED FROM THE
TRIAL?
1. If the evidence to be produced during the trial is offensive to
decency or public morals
2. On motion of the accused, exclude the public from the trial except
court personnel and the counsel of the parties
Sec. 22. Consolidation of trials of related offenses. Charges for
offenses founded on the same facts or forming part of a series of
offenses of similar character may be tried jointly at the discretion
of the court.
WHEN CAN DIFFERENT OFFENSES BE TRIED
JOINTLY?
When the offenses are founded on the same facts or from part of
a series of offenses of similar character, the court has the
discretion to consolidate and try them jointly
WHAT
IS
THE
CONSOLIDATION?

PURPOSE

OF

It is to avoid multiplicity of suits, guard against oppression or

abuse, prevent delay, clear congested dockets, simplify the work
of the trial court, save unnecessary costs and expenses

WHAT IS THE REMEDY IF THE MOTION FOR CONSOLIDATION IS

DENIED?

CAN THOSE RELATED TO CIVIL LIABILITY ARISING FROM A CRIME

BE CONSOLIDATED?
Yes. As a general rule, every person criminally liable is also
civilly liable. Any criminal action generally is consolidated with
the civil action unless there is a positive action coming from the
offended party or the accused.
CAN THOSE RELATED TO CIVIL LIABILITY NOT ARISING FROM A
CRIME BE CONSOLIDATED?
As a general rule, independent civil actions are not constituted
with the criminal action. They proceed independently from the
criminal action.
X MADE A RESERVATION TO FILE AN INDEPENDENT CIVIL ACTION
BASED ON QUASI-DELICT. DURING THE TRIAL OF THE CRIMINAL
ACTION, X CHANGES HIS MIND AND DECIDES TO HAVE HIS
INDEPENDENT CIVIL ACTION CONSOLIDATED? IS THIS PROPER?
It will not be proper if it will cause any prejudice to either the
offended party or the accused.
Sec. 23. Demurrer to evidence. After the prosecution rests its
case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon demurrer to
evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a nonextendible period of five (5) days after the prosecution rests its

case. The prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days
from notice. The prosecution may oppose the demurrer to
evidence within a similar period from its receipt.

WHAT DOES IT MEAN WHEN THE PROSECUTION WOULD BE GIVEN

THE RIGHT TO BE HEARD BEFORE THE COURT DISMISSES THE
CASE?
The prosecution is given the chance to explain itself of
circumstances that may have lead to its failure to adduce enough
evidence to support its case
HOW DO YOU
EVIDENCE?

FILE

DEMURRER

TO

The order denying the motion for leave

of court to file demurrer to evidence or
the
demurrer
itself
shall
not
be
reviewable by appeal or by certiorari
AFTER THE PROSECUTION RESTS ITS
CASE, WHAT
ARE
THE
OPTIONS
OF THE
ACCUSED?
THE ACCUSED MAY DO THE FOLLOWING:
1. File a demurrer to evidence with leave or
without leave of court
2. Adduce his evidence unless he waives the
WHAT
IS
A
DEMURRER
TO
EVIDENCE?
It is a motion to dismiss the case filed by the defense after the
prosecution rests on the ground of insufficiency of the evidence
of the prosecution
It has been said that a motion to dismiss under the Rules of Court
takes place of a demurrer, which pleading raised questions of law
as to sufficiency of the pleading apparent on the face thereof
In the same manner as a demurrer, a motion to dismiss presents
squarely before the court a question as to the sufficiency of the
facts alleged therein to constitute a cause of action
WHAT ARE THE WAYS BY WHICH A CASE MAY BE DISMISSED ON
THE
BASIS
OF
INSUFFICIENCY
OF
EVIDENCE
OF
THE
PROSECUTION?
1. The court may dismiss the case on its own initiative after giving
the prosecution the right to be heard
2. Upon demurrer to evidence filed by the accused with or without
leave of court
THE PROSECUTION RESTS ITS CASE.
THE COURT THINKS THAT
THERE IS INSUFFICIENCY OF EVIDENCE PRESENTED. WHAT DOES
IT NEED TO DO IN CASE IT WISHES TO DISMISS THE CASE?
The court may dismiss the case on its own initiative after giving
the prosecution the right to be heard

Within 5 days after the prosecution rests, the

accused should file a motion for leave of court to
file a demurrer to evidence, stating in such motion

The
prosecution
shall have 5 days within which
his grounds
for such
to oppose the
motion
If the motion is granted, the accused shall file

the demurrer to
evidence
within 10
days
from the
notice
of granttoof
The prosecution
may
oppose
demurrer

evidence within 10
days from its receipt of the demurrer
WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE
WITH LEAVE OF COURT?
The effect of its filing is that if the court grants the demurrer, the
case will be dismissed
If the court denies the demurrer to evidence filed with leave of
court, the accused may still adduce evidence on his behalf

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE

WITHOUT LEAVE OF COURT?
If the court denies the demurrer to evidence which was filed
without leave of court, the accused is deemed to have waived his
right to present evidence and submits the case for judgment on
basis of the evidence of the prosecution
This is because demurrer to evidence is not a matter of right but
is discretionary on the court
Permission of the court has to be obtained before it is filed,
otherwise the accused loses certain rights
THE ACCUSED FILED A DEMURRER OF EVIDENCE WITHOUT LEAVE
OF COURT. THE DEMURRER OF EVIDENCE IS DENIED. IS THERE
ABSOLUTE WAIVER OF PRESENTATION OF EVIDENCE BY THE
COURT?
No
The general rule is that filing of a demurrer of evidence without
leave of court, which is subsequently denied, is a waiver of
presentation of evidence

Nonetheless, if the demurrer of evidence is filed before the

prosecution rests its case, there would be no waiver to present
evidence.
As the prosecution hasnt finished presenting its
evidence, there is still insufficiency of evidence.

WHAT IF THE ACCUSED FILES A DEMURRER OF EVIDENCE BEFORE

THE PROSECUTION RESTS ITS CASE.
CAN THE DEFENSE BE
ALLOWED TO PRESENT EVIDENCE?

IF THE PROSECUTION HAS ALREADY RESTED ITS CASE AND A

DEMURRER OF EVIDENCE HAS BEEN FILED.
THE COURT SEES
THERE IS BASIS BUT ORDERS THE PROSECUTION TO PRESENT
MORE EVIDENCE. IS THIS VALID?

WHAT IS THE EFFECT IF THE DEMURRER IS GRANTED AND THE

ACCUSED IS ACQUITTED?
The accused has the right to adduce evidence on the civil aspect
of the case unless the court declares that the act or omission from
which the civil liability may arise did not exist.
If the trial court issues an order or renders judgment not only
granting the demurrer to evidence of the accused and acquitting
him but also on the civil liability of the accused to the private
offended party, said judgment on its civil case would be a nullity
for violation of the rights of the accused to due process.
WHAT IS THE REMEDY OF THE ACCUSED IF THE DEMURRER TO
EVIDENCE IS DENIED?
As a general rule, there can be no appeal or certiorari on the
denial of the demurrer to evidence, since it is an interlocutory
order which doesnt pass judgment on the merits of the case
In such instance, the accused has the right to adduce evidence on
his behalf not only on the criminal aspect but also on the civil
aspect of the case
Sec. 24. Reopening. At any time before finality of the judgment
of conviction, the judge may, motu proprio or upon motion, with
hearing in either case, reopen the proceedings to avoid a
miscarriage of justice. The proceedings shall be terminated within
thirty (30) days from the order granting it.
WHEN
CAN
REOPENED?

CASE

BE

At any time before the finality of judgment of conviction, the

judge may reopen the case either on his own volition or upon
motion, with hearing on either case, in order to avoid a
miscarriage of justice
The proceedings should be terminated within 30 days from the
order granting the reopening of the case

WHEN CAN THERE BE A DENIAL OF THE REOPENING OF THE CASE,

GIVEN THAT ALL CONDITIONS REQUIRED?
It would be prejudicial to the rights of an accused
Examples of this when the accused cannot present enough
evidence, present his witnesses, etc.
RULE 120 - JUDGMENT
Section 1. Judgment; definition and form. Judgment is the
adjudication by the court that the accused is guilty or not guilty of
the offense charged and the imposition on him of the proper
penalty and civil liability, if any. It must be written in the official
language, personally and directly prepared by the judge and
signed by him and shall contain clearly and distinctly a statement
of the facts and the law upon which it is based.
WHAT
IS
A
JUDGMENT?
Adjudication by the court that the accused is guilty or not guilty of
the offense charged and the imposition on him of the proper
penalty and civil liability, if any
WHAT
IS
THE
FORM
REQUIRED
FOR
THE
JUDGMENT?
1. It must be written in the official language
2. Personally and directly prepared by the judge
3. Signed by him
4. It shall contain clearly and distinctly a statement of the facts and
the law upon which it is based.
Sec. 2. Contents of the judgment. If the judgment is of
conviction, it shall state (1) the legal qualification of the offense
constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its
commission; (2) the participation of the accused in the offense,
whether as principal, accomplice, or accessory after the fact; (3)
the penalty imposed upon the accused; and (4) the civil liability or
damages caused by his wrongful act or omission to be recovered
from the accused by the offended party, if there is any, unless the

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page 9 0 9 0 of 120
enforcement of the civil liability by a separate civil action has
been reserved or waived.

WHY SHOULD THE DECISION BE IN WRITING, SETTING FORTH

THE FACTS AND THE LAW ON WHICH IT IS BASED?

In case the judgment is of acquittal,

it shall state whether the evidence of
the
absolutely
failed
to
the prosecution
accused or merely
failed
to prove
his
guilt beyond reasonable
doubt. In either case, the judgment
shall determine if the act or omission
from which the civil liability might arise
did not exist.

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

The decision should be in writing
the120

Pageto9inform
1 9 1 of

parties the reason

for the decision so that in case any of them
appeals,
can
point
outhe
todisagrees
the
rulings onsuch
pointparty
of law
with
which
The written decision also becomes the basis of the
appellate court to pass judgment upon
Finally, it will assure the parties the judge
reached judgment by
going through the process of legal reasoning

IT UPON AN ACCUSED WHO IS GUILTY OF AN OFFENSE

PUNISHABLE
WITH
DEATH?
No, the judge must impose the proper penalty provided for by the
law, even if he is against it.
If he refuses to do so, it is grave abuse of discretion amounting to
lack of jurisdiction.

IS
A
VERBAL
JUDGMENT
VALID?
No, a verbal judgment is incomplete because it doesnt contain
findings of fact, and it is not signed by the judge
It may however be corrected by putting it in writing and in the
prescribed form
When it is put in writing, it becomes a full blown judgment

WHAT
ARE
THE
CONTENTS
OF
THE
JUDGMENT?
1. If the judgment is of conviction, it shall state the following:
a. The legal qualification of the offense constituted by the
acts committed by the accused and the aggravating and
mitigating circumstances which attended the commission
b. The participation of the accused as principal, accomplice,
or accessory
c. The penalty imposed upon the accused
d. The civil liability or damages, if any, unless the
enforcement of the civil liability has been reserved or
waived by the offended party.
2. If the judgment is of acquittal
a. Whether the evidence of the prosecution absolutely failed
to prove the guilt of the accused or merely failed to
proved it beyond reasonable doubt
b. If the act or omission from which the civil liability might
arise doesnt exist

IS
AN
ERRONEOUS
JUDGMENT
VALID?
Yes. An error in judgment will not invalidate a decision, so long
as it conforms with the requirements of the law

IS IT NECESSARY FOR THE VALIDITY OF THE JUDGMENT THAT THE

DECISION BE PROMULGATED BY THE SAME JUDGE WHO HEARD
THE CASE?
No, a judgment promulgated by a judge other than the one who
heard the case is valid, provided that the judge who rendered the
judgment relied on the records taken during the trial as basis for
his decision

IS IT VALID FOR A JUDGE TO RENDER A JUDGMENT WHICH

IMPOSES A PENALTY THAT DOESNT EXIST OR ONE THAT IS
IMPOSSIBLE TO FULFILL?
Such judgment is void
The error goes into the very essence of the penalty and doesnt
merely arise from the misapplication thereof
DOES THE JUDGE NEED TO DESIGNATE THE PARTICULAR
PROVISION OF LAW VIOLATED?
If possible, he should
But if he fails to do so, the judgment is not void, as long as his
conclusions are based on some provision of law
CAN THE JUDGE IMPOSE AN ALTERNATIVE PENALTY OF EITHER
RECLUSION PERPETUA OR A FINE OF P10,000?
No, the judge cannot impose alternative penalties
The penalty imposed must be definite
When the judge imposes alternative penalties, giving the
defendant the right to choose which to serve, he gives discretion
belonging to the court to the accused

CAN THE JUDGE IMPOSE THE PENALTY OF RECLUSION PERPETUA

AND A FINE OF P10,000?
Yes, because in this case, the penalty is definite
The difference here with the example above is the use of the
word
and instead of or
WHAT IS THE IMPORTANCE OF USING THE PROPER
TERMINOLOGY IN THE IMPOSITION OF IMPRISONMENT
PENALTIES?
The judge should use the proper terminology of the
penalties
since each penalty has its distinct accessory penalties and effects
DOES THE FAILURE TO USE THE PROPER TERMINOLOGY IN THE
IMPOSITION OF PENALTIES RENDER THE JUDGMENT VOID?
No, this doesnt go to the essence of the penalty itself
WHAT IS THE REMEDY OF THE OFFENDED PARTY IF THE
JUDGMENT FAILS TO AWARD CIVIL LIABILITY?
The offended party can appeal (Rule 45errors of judgment,
findings of fact, and errors of law), file certiorari (Rule 65
jurisdiction), or file for mandamus
WHAT CONSTITUTES CIVIL LIABILITY ARISING FROM CRIME?
Civil liability arising from crime includes actual damages, moral
damages, exemplary damages, and loss of earning capacity
WHAT IS THE EFFECT OF A JUDGMENT OF ACQUITTAL ON THE
CIVIL ASPECT OF THE CASE?
It will not prevent a judgment against the accused on the civil
aspect of the case where
o
The acquittal is based on reasonable doubt as only
preponderance of evidence is required
o
Where the court declared that the liability of the accused
is only civil
o
Where the civil liability of the accused doesnt arise from
or isnt based upon the crime of which the accused is
acquitted
WHEN MAY ATTORNEYS FEES BE AWARDED?
Attorneys fees may be awarded only when a separate civil action
to recover civil liability has been filed or when exemplary damages
are awarded
The reason for this is that there is no attorney in a criminal case,
only a public prosecutor, who is compensated by the government

WHEN CAN ATTORNEYS FEES BE AWARDED IN CRIMINAL

CASES?
If there is award of exemplary damages
WHAT IS THE DIFFERENCE BETWEEN DAMAGE AND
DAMAGES?
Damages refers to the actionable loss resulting from another
persons act or omission. It is the detriment, loss, or injury which
is occasioned by reason of fault of another in the property or
person
Damages refer to the sum of money which can be awarded for the
damage done. These are the pecuniary consequences which the
law imposes for the breach of some duty or the violation of some
right
WHEN
ARE
EXEMPLARY
DAMAGES
AWARDED?
EXEMPLARY DAMAGES MAY BE AWARDED IN THE FOLLOWING
CASES:
1. In criminal actions, when the crime was committed with one or
more aggravating circumstances
2. In quasi-delicts, if the defendant acted with gross negligence
3. In contracts and quasi-contracts, if the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner
WHAT ARE THE MANDATORY AWARDS IN CASE OF RAPE
CASES?
In rape cases, a civil indemnity of P50000 is mandatory
An award of moral damages is also mandatory without need of
pleading or proof.
If it is qualified rape, the mandatory civil indemnity is P75,000
WHAT SHOULD THE OFFENDED PARTY PROVE IF HE WANTS TO
CLAIM ACTUAL DAMAGES OR LOSS OF EARNING CAPACITY?
The offended party must show proof of the amount of the
pecuniary loss, such as receipts
Actual damages not supported by evidence may not be awarded
However, if death results from the crime or the quasi-delict, the
heirs need only to prove the fact of death in order to claim actual
or compensatory damages
IS THERE NEED FOR PROOF OF PECUNIARY LOSS IN ORDED THAT
MORAL, NOMINAL, TEMPORATE, LIQUIDATED, OR EXEMPLARY
DAMAGES MAY BE ADJUDICATED?
No, Article 2216 of the Civil Code provides that no proof is needed
The assessment of the damage depends on the discretion of the
court
MAY
DAMAGES
APPEAL?

BE

INCREASED

ON

Yes, an appeal opens the whole case on review by the appellate

court, and this includes the award of damages

WHAT
ARE
NOMINAL
DAMAGES?
Nominal damages are awarded in recognition of a violation of a
right of the plaintiff when no actual damage was done to him
Under article 2221 of the CC, these are damages recoverable in
order to vindicate or recognize the rights of the plaintiff which has
been violated or invaded by the defendant

WHAT IS THE CIVIL LIABILITY OF ONE WHO IS GUILTY OF

ILLEGAL POSSESSION OF FIREARMS?
None.
Sec. 3. Judgment for two or more offenses. When two or more
offenses are charged in a single complaint or information but the
accused fails to object to it before trial, the court may convict
him

For example, if the offense charged is rape and the offense proved
is acts of lasciviousness, the accused can only be convicted of acts
of lasciviousness
If the offense charged is less serious physical injuries and the
offense proved is serious physical injuries, then the defendant
should only be convicted of the offense charged

X WAS CHARGED WITH WILLFUL HOMICIDE. WHAT WAS PROVED

WAS HOMICIDE THROUGH RECKLESS IMPRUDENCE.
UNDER
WHICH SHOULD X BE CONVICTED?
X should be convicted of homicide through reckless imprudence
The offense done through negligence is lesser than one done
willfully
X WAS CHARGED WITH RAPE BY FORCE AND INTIMIDATION. AT
THE TRIAL, IT WAS PROVED THAT X RAPED A MENTAL
RETARDATE. CAN X BE CONVICTED OF RAPE OF A MENTAL
RETARDATE?

of as many offenses as are charged and

proved, and impose on him the penalty
for each offense, setting out separately
the findings of fact and law in each
WHAT
IS THE EFFECT OF THE FAILURE OF THE
offense.
ACCUSED TO OBJECT
TO A COMPLAINT OR INFORMATION
THAT CHARGES MORE THAN ONE
OFFENSE BEFORE HE IS ARRAIGNED?
The court may convict him of as many
offenses as are charged
and proved and impose on
him the penalty of each
Sec. 4. Judgment in case of variance between allegation and
proof.
When there is variance between the offense charged in the
complaint or information and that proved, and the offense as
charged is included in or necessarily includes the offense
proved,
the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is
included in the offense proved.
WHAT IS THE RULE IN CASE THE OFFENSE CHARGED IS
DIFFERENT FROM THE OFFENSE PROVED?
The accused can only be convicted of the lesser offense which is
included in the graver offense either proved or charged
The reason for this is that the accused can only be convicted of
the offense which is both charged and proved

THERE ARE CONFLICTING DECISIONS

People v. Abiera says that the accused charged
with rape through one mode of commission may
still be convicted of the crime if the
evidence shows
accused
didnt another
object mode of commission,
to such evidence

People v. Padilla says on the other hand that the

accused cannot be convicted of rape of a mental
retardate if the commission of

such is not alleged in

the information
The latter ruling is a better ruling because to
convict the accused would violate his right to be
X WAS CHARGED WITH RAPE. WHAT WAS PROVED AT THE TRIAL
WAS QUALIFIED SEDUCTION.
CAN X BE CONVICTED OF
QUALIFIED SEDUCTION?
No, although qualified seduction is a lesser offense than rape, the
elements of two are different.
Qualified seduction is not included in the crime of rape.
Therefore if the court convicts him of qualified seduction, it will
violate his right to be informed of the nature and cause of the
accusation against him, since some elements
of qualified
seduction were not charged

Sec. 5. When an offense includes or is included in another. An

offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the latter. And

an offense charged is necessarily included in the offense proved,

when the essential ingredients of the former constitute or form
part of those constituting the latter.
WHEN DOES AN OFFENSE CHARGED NECESSARILY INCLUDE THE
OFFENSE PROVED?
An offense charged necessarily includes an offense proved when
some of the essential elements or ingredients of the offense
charged constitute the offense proved
For example, when the offense charged is homicide and what is
proven is physical injuries, then the offense charged necessarily
includes the offense proved
Some of the essential elements of homicide constitute physical
injuries
WHEN IS AN OFFENSE CHARGED NECESSARILY INCLUDED IN THE
OFFENSE PROVED?
An offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form
part of those constituting the latter
For example when the offense charged is acts of lasciviousness
and the offense proved is rape, the essential elements of acts of
lasciviousness is necessarily included in the crime of rape.
Therefore, the offense charged is necessarily included in the crime
proved
MAY AN ACCUSED CHARGED OF MURDER BE CONVICTED OF
RECKLESS IMPRUDENCE RESULTING IN HOMICIDE?
Quasi-offense of reckless imprudence resulting in homicide is
necessarily included in the charge of murder
Sec. 6. Promulgation of judgment. The judgment is promulgated
by reading it in the presence of the accused and any judge of the
court in which it was rendered. However, if the conviction is for a
light offense, the judgment may be pronounced in the presence of
his counsel or representative. When the judge is absent or outside
the province or city, the judgment may be promulgated by the
clerk of court.
If the accused is confined or detained in another province or city,
the judgment may be promulgated by the executive judge of the
Regional Trial Court having jurisdiction over the place of
confinement or detention upon request of the court which
rendered the judgment. The court promulgating the judgment
shall have

authority to accept the notice of appeal and to approve the bail

bond pending appeal; provided, that if the decision of the trial
court convicting the accused changed the nature of the offense
from non- bailable to bailable, the application for bail can only be
filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused
personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. If
the accused was tried in absentia because he jumped bail or
escaped from prison, the notice to him shall be served at his last
known address.
In case the accused fails to appear at the scheduled date of
promulgation of judgment despite notice, the promulgation shall
be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his
counsel.
If the judgment is for conviction and the failure of the accused to
appear was without justifiable cause, he shall lose the remedies
available in these rules against the judgment and the court shall
order his arrest. Within fifteen (15) days from promulgation of
judgment, however, the accused may surrender and file a motion
for leave of court to avail of these remedies. He shall state the
reasons for his absence at the scheduled promulgation and if he
proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from
notice.
HOW
IS
THE
JUDGMENT
PROMULGATED?
The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered.
When the judge is absent or outside the province or city, the
judgment may be promulgated by the clerk of court.
CAN THERE BE PROMULGATION OF JUDGMENT IN THE ABSENCE OF
THE ACCUSED?
As a general rule, judgment must be promulgated in the presence
of the accused.
However, if the conviction is for a light offense, the judgment may
be pronounced in the presence of his counsel or representative.
Also, if the accused fails to attend the promulgation, even if he
was notified thereof, or if he jumped bail or escaped from prison,
judgment may be validly promulgated in absentia

WHAT HAPPENS IF ONLY THE

3.
JUDGMENT
IS READ
TO THE
4.
DISPOSITIVE
PORTION
OF THE
ACCUSED?
The first jeopardy will not
5.
validly attach
The judgment must be
WHAT
in itscriminal case wouldnt have been validly
promulgated
Otherwise, the
terminated and double jeopardy as a defense cannot attach
WHERE SHOULD JUDGMENT BE PROMULGAGED IF THE ACCUSED IS
CONFINED IN A PROVINCE OUTSIDE OF THE TERRITORIAL
JURISDICTION OF THE COURT?

Parole
Motion for new trial or reconsideration
Suspension of sentence
ARE THE INSTANCES WHEN JUDGMENT MAY BE
PROMULGATED DESPITE THE ABSENCE OF ACCUSED?
1. When the accused has been convicted of a light offense.
Judgment may be promulgated in front of the counsel or
representative of the accused
2. When the trial was held in absentia because either the accused
jumped bail or escaped confinement

If the accused is confined or detained in

another province or city, the judgment may
IF THE PROMULGATION OF JUDGMENT
be promulgated
the executive
judge of
Regional
Trial by
Court
having jurisdiction
over
THEN
MEAN
THE PROMULGATION
MUST DOES
BE INIT
ITS
ENTIRETY,
the place of
OF JUDGMENT IN ERAPS
confinement
or detention upon request of
CASE
VALID?
rendered the judgment.
NOT
It is
valid
The
court
promulgating
the
judgment
can

To
clarify, the case of Quizon v. CA

also accept notices of appeal and

held that the promulgation of
applications
for bail,
theofcourt
that
judgment
notsince
because
decision
changed
theunless
nature
the offense
from
read.
It was
waswrong
wrong
what
was only
promulgated
was
bailable, in which case, the application for bail non-bailable
can only be to
filed
judgment regarding the civil
liability
when it should
have
and resolved by the appellate court.
promulgated judgment on both the civil and criminal liability
So on the question on whether or not it is invalid promulgation to
only read the dispositive portion, it is valid promulgation
WHAT HAPPENS IF THE ACCUSED FAILS TO APPEAR ON THE DATE
OF PROMULGATION OF JUDGMENT DESPITE NOTICE?
In case the accused fails to appear at the scheduled date of
LECTURE NOTES:
promulgation of judgment despite notice, the promulgation shall
1. There is a difference between judgment in criminal and civil cases.
2. Promulgation must be in its entirety.
be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his
Sec. 7. Modification of judgment. A judgment of conviction may,
counsel.
upon motion of the accused, be modified or set aside before it
If the judgment is for conviction and the failure of the accused to
becomes final or before appeal is perfected. Except where the
appear was without justifiable cause, he shall lose the remedies
death penalty is imposed, a judgment becomes final after the lapse
available in these rules against the judgment and the court shall
of the period for perfecting an appeal, or when the sentence has
order his arrest. Within fifteen (15) days from promulgation of
been partially or totally satisfied or served, or when the accused
judgment, however, the accused may surrender and file a motion
has waived in writing his right to appeal, or has applied for
for leave of court to avail of these remedies. He shall state the
probation.
reasons for his absence at the scheduled promulgation and if he
proves that his absence was for a justifiable cause, he shall be
NOTE: This provision changed the previous rulings of the SC. Whereas
allowed to avail of said remedies within fifteen (15) days from
before modification may be made upon the motion of the Fiscal, now it can
notice
only be modified or set aside upon motion of the accused.
WHAT ARE THE REMEDIES THAT THE ACCUSED CANNOT AVAIL OF
WHEN MAY A JUDGMENT OF CONVICTION BE MODIFIED OR SET
WHEN JUDGMENT IS PROMULGATED IN ABSENTIA?
ASIDE BY THE COURT THAT RENDERED IT?
1. Appeal
2. Probation

A JUDGMENT OF CONVICTION MAY BE MODIFIED OR SET ASIDE BY THE

COURT THAT RENDERED IT:
1. Upon motion of the accused
2. Before judgment has become final or appeal has been perfected
Sec. 8. Entry of judgment. After a judgment has become final, it
shall be entered in accordance with Rule 36.
WHEN DOES A JUDGMENT BECOME
FINAL?
EXCEPT IN CASES WHERE DEATH PENALTY IS IMPOSED, JUDGMENT
BECOMES FINAL:
1. After the lapse of time for perfecting an appeal
2. When the sentence has been partially or totally satisfied
3. When the accused has expressly waived in writing his right to
appeal
4. When the accused has applied for probation
WHAT ARE THE ENTRIES MADE WHEN AN ENTRY OF JUDGMENT IS
RECORDED IN THE BOOK OF CRIMINAL ENTRIES OF JUDGMENT?
IS IT ABSOLUTE WHEN THE PERIOD OF APPEAL HAS ELAPSED, THE
JUDGMENT HAS BECOME FINAL?
No
At instances when the death penalty is imposed, there is an
automatic review by the appellate court
Sec. 9. Existing provisions governing suspension of sentence,
probation and parole not affected by this Rule. Nothing in this
rule shall affect any existing provisions in the laws governing
suspension of sentence, probation or parole.
X, A 16-YEAR-OLD WAS CHARGED WITH THEFT. AFTER HEARING,
THE COURT FOUND THAT HE COMMITTED THE ACTS CHARGED.
WHAT SHOULD THE COURT DO?
The court should determine the imposable penalty including the
civil liability
However, instead of promulgating judgment of conviction, the
court should automatically suspend the sentence and commit the
minor to the DSWD or other institution until he reaches the age of
majority
The exception to the suspension of sentence in case of youthful
offenders are
1. If the offender has previously enjoyed a suspension of
sentence

2.

If the offender is convicted of an offense punishable by death

or life imprisonment
3. If the offender is convicted by a military tribunal
This doesnt apply if, at the time of sentencing, the offender is
already of age, even if he was a minor at the time of the
commission of the offense

Section 1. Section 4 of Presidential Decree No. 968 is hereby

amended to read as follows:
"Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the
trial court may, after it shall have convicted and sentenced a defendant,
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, That no application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of
conviction.
Sec. 2. Section 9 of Presidential Decree No. 968 is hereby amended to
read as follows:
"Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be
extended to those:
(a) sentenced to serve a maximum term of imprisonment of more
than six years;
(b) convicted of subversion or any crime against the national security or
the public order;
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or
a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree;
and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33
hereof."
WHEN
SHOULD
AN
ADULT
OFFENDER
APPLY
FOR
PROBATION?
The offender should apply for probation after conviction within the
period for perfecting an appeal
CAN THE DEFENDANT STILL FILE FOR PROBATION IF HE HAS
ALREADY PERFECTED AN APPEAL?
An application for probation may not be filed if the defendant has
already perfected an appeal from the judgment of conviction

Once the appeal is perfected, it

may no longer be withdrawn to
apply for probation
CAN THE DEFENDANT STILL APPEAL IF
HE HAS FILED FOR
PROBATION?
No. The filing of an application for probation is deemed a waiver
to the right to appeal.

IS THE GRANT OF PROBATION A MATTER OF RIGHT UPON

APPLICATION OF THE DEFENDANT?
No, it is a mere privilege and the grant is discretionary upon the
court
CAN THERE BE PROBATION IF THE PENALTY IS MERELY A
FINE?
Yes.
In those cases where the penalty is a fine, and the
defendant cannot pay, he has to serve subsidiary imprisonment.
In this instance, probation or suspension of sentence becomes
relevant.
CAN THE DEFENDANT APPEAL FROM AN ORDER DENYING THE
APPLICATION FOR PROBATION?
No.
WHAT IS THE COURT MANDATED TO DO BEFORE PLACING AN
ACCUSSED FOR PROBATION?
The court should order a post sentence investigation to determine
whether the ends of justice and the best interest of the public will
be served by the grant of probation
WHAT
IS
THE
SIGNIFICANCE
OF
POST
SENTENCE
INVESTIGATION?
The significance is that it serves as the informational basis for the
courts decision to grant or deny the probation to qualified
offenders
WITHIN WHAT PERIOD SHOULD THE PROBATION OFFICER SUBMIT
HIS REPORT ON A DEFENDANT IN A POST SENTENCE
INVESTIGATION?
The investigation report must be submitted with the court not
later than 60 days from receipt of the order of said court to
conduct said investigation
WHEN SHOULD
PROBATION?

THE

COURT

DENY

THE

APPLICATION

FOR

1.

The offender is in need of correctional

treatment that can be provided most effectively
2. by his commitment to an institution
There is will
undue
riskanother
that during
offender
commit
crime the period of
3. Probation will depreciate the seriousness of the
offense committed
WHEN DOES THE PROBATION
ORDER TAKE EFFECT?
A probation order shall take effect upon its issuance, at which
time the court shall inform the offender of the consequences
thereof and explain that upon his failure to comply with any of the
conditions, he shall serve the penalty imposed for the offense
WHAT IS THE EFFECT OF PROBATION ON THE CIVIL LIABILITY OF
THE ACCUSED?
Probation doesnt release civil liability
However, the court may in its discretion, provide for the manner
of payment of the civil liability by the accused during the period of
probation
WHAT IS THE DURATION OF THE PERIOD OF PROBATION?
PROBATION SHALL HAVE THE FOLLOWING PERIODS IN THE INSTANCES
BELOW:
1. If the defendant was sentenced to imprisonment of not more than
one year, probation shall not exceed 2 years
2. If the term of imprisonment is more than 1 year, probation shall
not exceed 6 years
3. If the penalty is only a fine and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of
probation shall not be less than nor be more than twice the total
number of days of subsidiary imprisonment. For example, if the
subsidiary imprisonment is 10 days, probation period should not
be less than 10 days and not more than 20 days.
CAN THE GRANT OF PROBATION BE REVOKED?
Yes. Probation is revocable before the final discharge of the
probationer by the court for violation of any of its conditions.
Once it is revoked, the court should order the arrest of the
probationer so that he can serve the sentence originally
imposed.
The period of probation is not deducted from the penalty imposed.
UPON THE LAPSE OF THE PERIOD OF PROBATION, IS THE CASE
AGAINST THE PROBATIONER AUTOMATICALLY TERMINATED?

NO. After the period of probation, the court has to order the final
discharge of the probationer upon finding that he has fulfilled the
terms and conditions of his probation.
Only upon issuance of this order is the case terminated.

WHAT
IS
THE
EFFECT
OF
THE
FINAL
DISCHARGE?
IT shall operate to restore the probationer to all civil rights lost or
suspended as a result of his conviction
He is also discharged fully of his liability for any fine imposed as
to
the offense for which probation was granted
RULE 121 - NEW TRIAL OR RECONSIDERATION
Section 1. New trial or reconsideration. At any time before a
judgment of conviction becomes final, the court may, on motion of
the accused or at its own instance but with the consent of the
accused, grant a new trial or reconsideration.
WHAT
ARE
THE
REQUISITES
FOR
THE
MOTION
FOR
RECONSIDERATION UNDER THIS RULE?
TO FILE A MOTION FOR RECONSIDERATION, THE FOLLOWING ARE THE
REQUISITES:
1. There must be judgment of conviction
2. Such judgment hasnt become final
3. The motion must be at the instance of the accused or by the court
motu proprio, with the consent of the accused
WHAT IS THE EFFECT IF NUMBERS 2 AND 3 OF THE
REQUISITES ABOVE ARE NOT ATTENDANT?
The motion should be denied outright
WHAT IS THE PURPOSE OF A NEW
TRIAL?
It is to temper the severity of a judgment or prevent the failure of
justice
DISTINGUISH BETWEEN A NEW TRIAL AND RECONSIDERATION
NEW TRIAL
MOTION FOR RECONSIDERATION
Reopens the case after judgment Doesnt open the case for further
has been rendered, in order to allow proceedings
reception of new evidence and
further proceedings
The court is merely asked to
reconsider its finding of law in order
Only proper after rendition or to make them comformable to the
promulgation of judgment
law applicable to the case

DISTINGUISH AMONG NEW TRIAL, RECONSIDERATION, AND

MOTION TO REOPEN TRIAL
NEW TRIAL
RECONSIDERATION
MOTION TO REOPEN
TRIAL
Proper
only
after No longer any new trial May
properly
be
rendition
or or hearing that will presented only after
promulgation
of take place and the either
both
parties
judgment but has not judgment will be based have formally offered
been final
on
the
pleadings and
closed
their
submitted
by
the evidence, but before
parties
judgment.
It is still
possible to have trials
or hearings. There has
been
no
judgment
rendered yet.
Section 24, Rule 119
Fraud,
accident,
mistake and excusable
negligence;
newlydiscovered
evidence
are the only grounds
There has to be a
motion that has to be
filed

Miscarriage of justice

The judge may

motu propio

act

Sec. 2. Grounds for a new trial. The court shall grant a new trial
on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial
rights of the accused have been committed during the
trial;
(b) That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and
produced at the trial and which if introduced and admitted would
probably change the judgment.
WHAT ARE THE GROUNDS FOR A NEW
TRIAL?
A PARTY MAY MOVE FOR NEW TRIAL ON THE FOLLOWING
GROUNDS:
1. Errors of law or irregularities prejudicial to the substantial rights
of the accused have been committed during the trial
2. That new and material evidence has been discovered which the
accused couldnt with reasonable diligence have discovered and

produced at the trial and which if introduced and admitted would

probably change the judgment
ARE THE MISTAKES OF COUNSEL IN CONDUCTING THE CASE
VALID GROUNDS FOR A MOTION FOR NEW TRIAL?
No
The mistakes of counsel generally bind the client, unless he
misrepresented himself as a lawyer when he was in fact not one
A new trial may also be granted where the incompetence of the
counsel is so great that the defendant is prejudiced and prevented from
fairly presenting his defense and where the error of counsel is serious
WHAT ARE THE REQUISITES FOR GRANTING A NEW TRIAL ON THE
GROUND OF NEWLY DISCOVERED EVIDENCE?
THE REQUISITES ARE THE FOLLOWING:
1. The evidence must have been discovered after trial
2. Such evidence couldnt have been discovered and produced at the
trial even with the exercise of reasonable diligence
3. The evidence is material, not merely cumulative, corroborative, or
impeaching
4. The evidence must go into the merits, such that it would produce
a different result if admitted
WHAT IS A RECANTATION? IS IT A GROUND FOR NEW TRIAL?
A recantation is the renunciation or formal and public withdrawal
of a prior statement of a witness
It isnt a ground for granting a new trial because it makes a
mockery of the court and would place the investigation of truth at
the mercy of unscrupulous witnesses. Moreover, retractions are
easy to extort out of witnesses. In contrast, their previous
statements are made under oath, in the presence of a judge, and
with the opportunity to cross-examine. Therefore, the original
testimony should be given more credence.
However, the exception to this rule is when aside from the
testimony of the retracting witness, there is no other evidence to
support the conviction of the accused. In this case, the retraction
by the sole witness creates a doubt in the mind of the judge as to
the guilt of the accused. A new trial may be granted. But if there
is other evidence independent of the retracted testimony, there
can be no new trial.
DISTINGUISH
DESISTANCE

BETWEEN

RECANTATION

AND

AFFIDAVIT

OF

RECANTATION
A witness who previously gave a
testimony subsequently declares
that his statement were not true

AFFIDAVIT OF DESISTANCE
The complainant states that he
didnt really intend to institute the
case and he is no longer interested
in testifying or prosecuting

It is only a ground for dismissing

the case only if the prosecution can
no longer prove the guilt of the
accused beyond reasonable doubt
without the testimony of the
offended party
CAN THE ACCUSED MOVE FOR A NEW TRIAL IF HE HAS FOUND
EVIDENCE THAT WOULD IMPEACH THE TESTIMONY GIVEN BY THE
PROSECUTION WITNESS?
No, evidence which merely seeks to impeach the evidence upon
which the conviction was based will not constitute grounds for
new
trial, unless it is shown that there is no other evidence sustaining
the judgment of conviction except the testimony of the retracting
witness.
It has to be material evidence
WHEN
IS
EVIDENCE
CONSIDERED
TO
BE
MATERIAL?
It is material if there is reasonable likelihood that the testimony or
evidence could have been produced a different result and the
accused would have been acquitted
NOTES:
In the case of IN RE: WRIT OF HABEAS CORPUS FOR REYNATO DE
VILLAthe court held that the DNA evidence, though was
subsequently discovered after trial, doesnt meet the criteria for
newly discovered evidence that would grant a new trial.
The
reason was that the evidence disproving paternity could have
been discovered and produced at the trial with the exercise of
reasonable diligence
Even if a particular circumstance isnt included among those
enumerated under Section 2 of Rule 121 as a specific grounds in
granting a new trial or reconsideration, Section 6 on the effects
thereof considers the interest of justice as a gauge in the
introduction of additional evidence
Sec. 3.
grant

Ground

for

reconsideration.

The

court

shall

reconsideration on the ground of errors of law or fact in the

judgment, which requires no further proceedings.

interest of justice, allow to be introduced shall be taken and

considered together with the evidence already in the record.

Sec. 4. Form of motion and notice to the prosecutor. The motion

for new trial or reconsideration shall be in writing and shall state
the grounds on which it is based. If based on a newly-discovered
evidence, the motion must be supported by affidavits of witnesses
by whom such evidence is expected to be given or by duly
authenticated copies of documents which are proposed to be
introduced in evidence. Notice of the motion for new trial or
reconsideration shall be given to the prosecutor.

(c) In all cases, when the court grants new trial or

reconsideration, the original judgment shall be set aside or
vacated and a new judgment rendered accordingly.

WHAT
ARE
THE
GROUNDS
RECONSIDERATION?
Errors of law and fact in the judgment

FOR

WHAT IS THE FORM REQUIRED FOR A MOTION FOR NEW TRIAL OR

MOTION FOR RECONSIDERATION?
A MOTION FOR NEW TRIAL OR RECONSIDERATION SHOULD BE OF THE
FORM BELOW:
1. It must be in writing
2. It must state the grounds on which it is based
3. If the ground invoked for the motion for new trial is newly
discovered evidence, the motion must be supported by affidavits
of witnesses by whom such evidence is expected to be given or
authenticated copies of documents to be introduced in evidence.
4. Notice of the motion for new trial or reconsideration should be
given to the prosecutor.
Sec. 5. Hearing on motion. Where a motion for new trial calls for
resolution of any question of fact, the court may hear evidence
thereon by affidavits or otherwise.
Sec. 6. Effects of granting a new trial or reconsideration.
The effects of granting a new trial or reconsideration are the
following: (a) When a new trial is granted on the ground of
errors of law or irregularities committed during the trial, all the
proceedings and evidence affected thereby shall be set aside and
taken anew. The court may, in the interest of justice, allow
the introduction of additional evidence.
(b) When a new trial is granted on the ground of newlydiscovered evidence, the evidence already adduced shall stand and
the newly- discovered and such other evidence as the court
may, in the

WHAT IS THE EFFECT OF THE GRANT OF THE MOTION FOR NEW

TRIAL?
THE GRANT OF THE MOTION HAS THE FOLLOWING
EFFECTS:
1. If it is based on errors of law or irregularities committed during
the trial, a trial de novo ensues.
This means that all the
proceedings and evidence affected by the error or irregularity will
be set aside. The court may, in the interest of justice, allow the
introduction of additional evidence.
2. If it is based on the ground of newly discovered evidence, the
evidence already adduced will stand.
The newly discovered
evidence and whatever other evidence the court will allow to be
introduced shall be taken and considered together with the
evidence already on record
3. In all caseswhether the court grants new trial or
reconsiderationthe original judgment shall be set aside or
vacated and a new judgment rendered
WHY IS THE ACCUSED NOT SUBJECTED TO DOUBLE JEOPARDY
WHEN A NEW TRIAL OR RECONSIDERATION IS GRANTED?
First, because it is only granted upon motion of the accused
Second, the first jeopardy is never terminated, since the original
judgment is set aside and replaced with a new one
RULE 122 - APPEAL
Section 1. Who may appeal. Any party may appeal from a
judgment or final order, unless the accused will be placed in
double jeopardy.
IS
APPEAL
PART
OF
DUE
PROCESS?
Appeal is a purely statutory and isnt part of due process except
when provided by law
If the right to appeal is granted by law, it becomes part of due
process, and it must be exercised in accordance with the
procedure laid down by law. It is compellable by mandamus.
Sec. 2. Where to appeal. The appeal may be taken as
follows:

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page
1 0 0 1 0 0 1 0 0 of
(a) To the Regional Trial Court, in cases decided by the
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court, or Municipal Circuit Trial Court;
(b) To the Court of Appeals or to the Supreme Court in the proper
cases provided by law, in cases decided by the Regional Trial
Court; and
(c) To the Supreme Court, in cases decided by the Court of
Appeals. WHERE DOES ONE FILE AN APPEAL?
If the case was decided by the MTCs, the appeal should be made
with the RTC
If the case was decided by the RTCs, the appeal should be made
with the CA or SC in proper cases provided by law
If the case was decided by the CA, the appeal should be filed with
the SC
CAN
THE
PROSECUTION
APPEAL
A
JUDGMENT
OF
ACQUITTAL?
No
Judgment of acquittal becomes final immediately after
promulgation
It cannot even be subject of certiorari
Reason for the rule? An appeal would place the accused in double
jeopardy. However, the offended party may appeal the civil
aspect of the case.
This prohibition is also applicable with regard a judgment of
conviction. Again, the accused will be placed in double jeopardy.
REMEMBER THAT THE ONLY THING THAT COULD BE APPEALED
IS
THE CIVIL ASPECT.
Sec. 3. How appeal taken. (a) The appeal to the Regional Trial
Court, or to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction, shall be
taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction
shall be by petition for review under Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty
imposed by the Regional Trial Court is reclusion perpetua, or life

imprisonment, or where a lesser penalty is imposed but for

offenses committed on the same occasion or which arose out of
the same occurrence that gave rise to the more serious offense for
which the penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by filing a notice of appeal in
accordance with paragraph (a) of this section.
(d) No notice of appeal is necessary in cases where the death
penalty is imposed by the Regional Trial Court. The same shall be
automatically reviewed by the Supreme Court as provided in
section 10 of this Rule.
Except as provided in the last paragraph of section 13, Rule 124,
all other appeals to the Supreme Court shall be by petition for
review on certiorari under Rule 45.
HOW
IS
APPEAL
APPEAL TO
TAKEN?
FROM THE DECISION OF

HOW
1
RTC
MTC, from a case decided in its original jurisdiction
File a notice of appeal with the MTC and
serve a copy of the notice to the adverse
party
2
CA
RTC in the exercise of its original jurisdiction for an
imposed
penalty
less than reclusion perpetua,
life imprisonment and death
File a notice of appeal with the RTC and
serve a copy of the notice to the adverse
party
3
CA
RTC in the exercise of its appellate jurisdiction
File a petition for review with the CA in
accordance with Rule
42
4
CA
RTC where the penalty imposed
is
reclusion
perpetua
or
life
imprisonment,
or
where a lesser penalty is imposed on offenses
committed on the same
File a notice of appeal with the RTC and

CA

SC

SC

SC

occasion
or
which arose out
of
the
same
occurrence that
gave rise
to the offense
punishable
by
death,
reclusion
RTC
where
penalty imposed
is death
All other
appeals, except
the two cases
above
Sandiganbayan

Sandiganbayan
in
its original
jurisdiction
where penalty
imposed is death

Sec. 4. Service of notice of appeal. If personal service of the

copy of the notice of appeal can not be made upon the adverse
party or his counsel, service may be done by registered mail or by
substituted service pursuant to sections 7 and 8 of Rule 13.

By automatic
review
Petition for
review under
Rule 45
Petition for
review under
Rule
45
By
automatic
review

SC

Sandiganbayan
File a notice of
in
its original
appeal
jurisdiction
where penalty is
imposed
is life
imprisonment
10
SC
Sandiganbayan
File a notice of
in its appellate appeal
jurisdiction
where
penalty
imposed is
death, reclusion
perpetua, or life
imprisonment
*These changes took place in the case of People v. Mateo, ponente was
Justice Vitug.
*WASNT THIS TANTAMOUNT TO THE COURT CHANGING THE
CONSTITUTION?
No. There is no amendment to the Constitution. The SC is mandated by
the Constitution anyhow to adopt rules of procedure. This is not a
substantive right but only procedural. The accused is given another level
to review his case. He is placed in a better position.

Sec. 5. Waiver of notice. The appellee may waive his right to a

notice that an appeal has been taken. The appellate court may, in
its discretion, entertain an appeal notwithstanding failure to give
such notice if the interests of justice so require.
Sec. 6. When appeal to be taken. An appeal must be taken within
fifteen (15) days from promulgation of the judgment or from
notice of the final order appealed from. This
period for
perfecting an appeal shall be suspended from the time a motion
for new trial or reconsideration is filed until notice of the order
overruling the motion has been served upon the accused or his
counsel at which time the balance of the period begins to run.
NOTE: The period of appeal seems to have been amended by the SC
ruling in Domingo Neypes v. CA, GR 141524, September 14,
2005.
To standardize the appeal periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases, the Court deems it practical
to allow a fresh period of 15 days within which to file the notice of appeal
in the Regional Trial Court, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.
Henceforth, this fresh period rule shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule
42 on petitions for review from the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-judicial agencies[31] to the Court
of Appeals and Rule 45 governing appeals by certiorari to the Supreme
Court.[32] The new rule aims to regiment or make the appeal period
uniform, to be counted from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full or partial) or any final
order or resolution.
Although the SC has made this ruling on a civil case, it is submitted that
such if the Court has applied this rule to all other appeals involving civil
cases, with more reason should the defendant in a criminal case be given
ample time to file his appeal.
WHEN
IS
PERFECTED?

APPEAL

Appeals in criminal cases are perfected when the interested party

or parties have personally or through their attorney filed with the
clerk of court a written notice expressly stating the appeal

WHAT IS THE EFFECT OF PERFECTION OF AN

APPEAL?
When an appeal has been perfected, the court a quo loses
jurisdiction
WHAT IS THE DIFFERENCE BETWEEN THE APPEAL OF A JUDGMENT
AND THE APPEAL OF AN ORDER?
The appeal from judgment must be perfected within 15 days from
promulgation
The appeal from an order should be perfected within 15 days
from notice of final order
Sec. 7. Transcribing and filing notes of stenographic reporter upon
appeal. When notice of appeals is filed by the accused, the trial
court shall direct the stenographic reporter to transcribe his notes
of the proceedings. When filed by the People of the Philippines, the
trial court shall direct the stenographic reporter to transcribe such
portion of his notes of the proceedings as the court, upon motion,
shall specify in writing. The stenographic reporter shall certify to
the correctness of the notes and the transcript thereof, which shall
consist of the original and four copies, and shall file said original
and four copies with the clerk without unnecessary delay.
If death penalty is imposed, the stenographic reporter shall, within
thirty (30) days from promulgation of the sentence, file with the
clerk the original and four copies of the duly certified transcript of
his notes of the proceedings. No extension of time for filing of said
transcript of stenographic notes shall be granted except by the
Supreme Court and only upon justifiable grounds.
Sec. 8. Transmission of papers to appellate court upon appeal.
Within five (5) days from the filing of the notice of appeal, the
clerk of court with whom the notice of appeal was filed must
transmit to the clerk of court of the appellate court the complete
record of the case, together with said notice. The original and
three copies of the transcript of stenographic notes, together with
the records, shall also be transmitted to the clerk of the
appellate court without undue delay. The other copy of the
transcript shall remain in the lower court.

Sec. 9. Appeal to the Regional Trial Courts. (a) Within five (5)
days from perfection of the appeal, the clerk of court shall
transmit the original record to the appropriate Regional Trial
Court.
(b) Upon receipt of the complete record of the case, transcripts
and exhibits, the clerk of court of the Regional Trial Court shall
notify the parties of such fact.
(c) Within fifteen (15) days from receipt of said notice, the
parties may submit memoranda or briefs, or may be required by
the Regional Trial Court to do so. After the submission of such
memoranda or briefs, or upon the expiration of the period to file
the same, the Regional Trial Court shall decide the case on the
basis of the entire record of the case and of such memoranda or
briefs as may have been filed.
DISTINGUISH
A
BRIEF
MEMORANDUM
BRIEF
A complete statement of facts of the
case
Appellants brief: contents
1. Title of the case
2. Crime charged
3. Material datesto find out
if appeal was made within
reglementary period
a. When copy
of
judgment
is
received
b.
When appeal was
made
4. Facts upon which judgment
was based
5. Decision being appealed
from
6. Arguments in support of
appeal
7. Prayer
Appellees brief: counterstatement
of facts

FROM

A
MEMORANDUM
Summary that the party would
make at the last minute; lays down
the principles and authorities
Sometimes a case is won through a
memorandum
Disadvantage in the appellate court
cannot observe the demeanor of
the witness
Findings of fact of the trial
court are given greater
weight
Usually the appellate court
sustains the trial court
Counsel of the appellant
must highlight the error

*The brief/memorandum must point to the court that it erred in the:

Misappreciation of facts
Rulings not supported by the evidence to prove moral certainty of

guilt
Sec. 10. Transmission of records in case of death penalty. In all
cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic
review and judgment within five (5) days after the fifteenth (15)
day following the promulgation of the judgment or notice of denial
of a motion for new trial or reconsideration. The transcript shall
also be forwarded within ten (10) days after the filing thereof by
the stenographic reporter.
Sec. 11. Effect of appeal by any of several accused. (a) An appeal
taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate
court is favorable and applicable to the latter.
(b) The appeal of the offended party from the civil aspect shall
not affect the criminal aspect of the judgment or order appealed
from.
(c) Upon perfection of the appeal, the execution of the judgment
or final order appealed from shall be stayed as to the appealing
party.
A AND B WERE CONVICTED OF MURDER. ONLY A APPEALED FROM
THE
CONVICTION.
SHOULD THE
DECISION OF
THE
APPELLATE COURT BIND B?
It depends.
If the decision of the appellate court should be beneficial to B,
then it should affect him
If the decision would not benefit him, it shouldnt bind him
WHAT IS THE EFFECT OF THE APPEAL BY THE OFFENDED PARTY OF
THE CIVIL ASPECT OF THE JUDGMENT ON THE CRIMINAL ASPECT?
Nothing
Sec. 12. Withdrawal of appeal. - Notwithstanding perfection of the
appeal, the Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial Court, or Municipal
Circuit Trial Court, as the case may be, may allow the appellant to
withdraw his appeal before the record has been forwarded by the
clerk of court to the proper appellate court as provided in
section 8, in which case, the judgment shall become final. The
Regional Trial Court may also, in its discretion, allow the
appellant from the judgment

of a Metropolitan Trial Court, Municipal Trial Court in Cities,

Municipal Trial Court, or Municipal Circuit Trial Court to withdraw
his appeal, provided a motion to that effect is filed before rendition
of the judgment in the case on appeal, in which case the judgment
of the court of origin shall become final and the case shall be
remanded to the latter court for execution of the judgment.
CAN AN APPEAL THAT HAS ALREADY BEEN PERFECTED BE
WITHDRAWN BY THE APPELLANT?
If the records have not yet been transmitted to the appellate
court, the court that rendered the judgment has the discretion to
allow the appellant to withdraw the appeal
If the appeal is withdrawn, the judgment shall become final
If the records have already been transmitted to the appellate
court, only the appellate court may decide whether to grant the
motion to withdraw the appeal, and not only before the judgment
is rendered in the case of appeal
Sec. 13. Appointment of counsel de officio for accused on appeal. It shall be the duty of the clerk of court of the trial court, upon
filing of a notice of appeal to ascertain from the appellant, if
confined in prison, whether he desires the Regional Trial Court,
Court of Appeals or the Supreme Court to appoint a counsel de
officio to defend him and to transmit with the record on a form to
be prepared by the clerk of court of the appellate court, a
certificate of compliance with this duty and of the response of the
appellate to his inquiry.
IS COUNSEL DE OFFICIO STILL REQUIRED TO REPRESENT HIS
CLIENT ON APPEAL?
Yes, the duty of counsel de officio doesnt terminate upon
judgment of the case
It continues until appeal
RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL COURTS Section
1. Uniform Procedure. The procedure to be observed in
the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal
Circuit Trial Courts shall be the same as in the Regional
Trial
Courts, except where a particular provision applies only to either
of said courts and in criminal cases governed by the Revised Rule
on Summary Procedure.

WHAT
IS
SUMMARY
PROCEDURE?
Procedure wherein the court decides the case through the
evidence and affidavits presented by the parties
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15,
1991
PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE
FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS
IN
CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS.
I. Applicability
Section 1.
Scope. This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their
jurisdiction:

WHAT ARE THE CRIMINAL CASES FALLING UNDER THE RULES OF

SUMMARY PROCEDURE?
1. Violations of traffic laws, rules and regulations
2. Violations of the rental law
3. Violations of municipal or city ordinances
4. All other criminal cases where the penalty prescribed by law for
the offense charged is imprisonment not exceeding six months, or
a fine not exceeding (P1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, that in offenses involving
damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand
pesos (P10,000.00).
xxx xxx xxx

xxx xxx xxx

III. Criminal Cases

B. Criminal Cases:
(1) Violations of traffic laws, rules and
regulations; (2) Violations of the rental law;
(3)
Violations
ordinances;

Sec. 2. Determination of applicability. Upon the filing of a civil

or criminal action, the court shall issue an order declaring
whether or not the case shall be governed by this Rule. A patently
erroneous determination to avoid the application of the Rule on
Summary Procedure is a ground for disciplinary action.

of

municipal

or

city

(4) All other criminal cases where the penalty prescribed by law
for the offense charged is imprisonment not exceeding six months,
or a fine not exceeding (P1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, that in offenses involving
damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand
pesos (P10,000.00).
This Rule shall not apply to a civil case where the plaintiffs cause
of action is pleaded in the same complaint with another cause
of action subject to the ordinary procedure; nor to a criminal case
where the offense charged is necessarily related to another
criminal case subject to the ordinary procedure.

Sec. 11. How commenced. The filing of criminal cases falling

within the scope of this Rule shall be either by complaint or by
information: Provided, however, that in Metropolitan Manila and
in Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be prosecuted de
oficio.
The complaint or information shall be accompanied by the
affidavits of the compliant and of his witnesses in such number of
copies as there are accused plus two (2) copies for the court's
files. If this requirement is not complied with within five (5) days
from date of filing, the case may be dismissed.
HOW IS A CRIMINAL CASE COMMENCED IN A SUMMARY
PROCEDURE?
The filing of criminal cases falling within the scope of this Rule
shall be either by complaint or by information: Provided, however,
that in Metropolitan Manila and in Chartered Cities, such cases

Sec.

shall be commenced only by information, except when the offense

cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the
affidavits of the compliant and of his witnesses in such number of
copies as there are accused plus two (2) copies for the court's
files. If this requirement is not complied with within five (5) days
from date of filing, the case may be dismissed
12. Duty of court.

(a) If commenced by compliant. On the basis of the compliant

and the affidavits and other evidence accompanying the same, the
court may dismiss the case outright for being patently
without basis or merit and order the release of the accused if in
custody.
(b)
If commenced by information. When the case is
commenced by information, or is not dismissed pursuant to the
next preceding paragraph, the court shall issue an order
which, together with copies of the affidavits and other evidence
submitted by the prosecution, shall require the accused to submit
his counter- affidavit and the affidavits of his witnesses as well as
any evidence in his behalf, serving copies thereof on the
complainant or prosecutor not later than ten (10) days from
receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the
defense.
WHAT SHOULD THE MTC FIRST DO WHENEVER INFORMATION IS
FILED?
When the case is commenced by information, or isnt dismissed,
the court shall issue an order which, together with the affidavits
and other evidence submitted by the prosecution, SHALL
REQUIRE THE ACCUSED TO SUBMIT HIS COUNTER-AFFIDAVIT
AND THE AFFIDAVITS OF HIS WITNESSES AS WELL AS ANY
EVIDENCE IN HIS BEHALF
Copies of the above shall be served thereof to the complainant or
prosecutor not later than 10 days from receipt of said order
The prosecution may also be allowed to file reply affidavits within
10 days after receipt of the counter-affidavits of the
defense
Sec.
13.
Arraignment and trial. Should the court, upon a
consideration of the complaint or information and the affidavits
submitted by both parties, find no cause or ground to hold the

accused for trial, it shall order the dismissal of the case;

otherwise, the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
Sec. 14. Preliminary conference. Before conducting the trial,
the court shall call the parties to a preliminary conference during
which a stipulation of facts may be entered into, or the
propriety of allowing the accused to enter a plea of guilty to a
lesser offense may be considered, or such other matters may
be taken up to clarify the issues and to ensure a speedy
disposition of the case. However, no admission by the accused
shall be used against him unless reduced to writing and signed by
the accused and his counsel.
A refusal or failure to stipulate
shall not prejudice the accused.
WHEN DOES A PRELIMINARY CONFERENCE TAKE PLACE? WHAT
HAPPENS DURING A PRELIMINARY CONFERENCE?
Before conducting the trial, the court shall call the parties to a preliminary
conference during which
1. Stipulation of facts may be entered into
2. The propriety of allowing the accused to plead guilty to a lesser
offense may be considered
3. Other matters as may be taken up to clarify the issues and to
ensure a speedy disposition of the case
Sec.
15.
Procedure of trial. At the trial, the affidavits
submitted by the parties shall constitute the direct testimonies of
the witnesses who executed the same. Witnesses who testified
may be subjected to cross-examination, redirect or re-cross
examination. Should the affiant fail to testify, his affidavit
shall not be considered as competent evidence for the party
presenting the affidavit, but the adverse party may utilize the
same for any admissible purpose.
Except in rebuttal or surrebuttal, no witness shall be allowed to
testify unless his affidavit was previously submitted to the court in
accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or
counter-affidavits as part of his direct evidence, he shall so

manifest during the preliminary conference, stating the purpose

thereof. If allowed by the court, the additional affidavits of the
prosecution or the counter-affidavits of the defense shall be
submitted to the court and served on the adverse party not later
than three (3) days after the termination of the preliminary
conference. If the additional affidavits are presented by the
prosecution, the accused may file his counter-affidavits and serve
the same on the prosecution within three (3) days from such
service.
Sec. 16. Arrest of accused. The court shall not order the arrest
of the accused except for failure to appear whenever required.
Release of the person arrested shall either be on bail or on
recognizance by a responsible citizen acceptable to the court.
IF AN ACCUSED IS CHARGED IN THE MUNICIPAL TRIAL COURT,
CAN THE COURT ISSUE A WARRANT OF ARREST AGAINST THE
ACCUSED?
The court shall not order the arrest of the accused except for
failure to appear whenever required.
Release of the person arrested shall either be on bail or on
recognizance by a responsible citizen acceptable to the court.
Sec. 17. Judgment. Where a trial has been conducted, the
court shall promulgate the judgment not later than thirty (30)
days after the termination of trial.
WHEN
DOES
THE
COURT
NEED
TO
PROMULGATE
JUDGMENT?
Where a trial has been conducted, the court shall promulgate the
judgment not later than thirty (30) days after the termination of
trial.
IV.
PROVISIONS

COMMON

Sec. 18. Referral to Lupon. Cases requiring referral to the

Lupon for conciliation under the provisions of Presidential
Decree No.
1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice and may be
revived only after such requirement shall have been complied with.
This provision shall not apply to criminal cases where the
accused
was
arrested
without
a
warrant.

CAN THE MTC REFER THE CASE TO THE

LUPON?
Yes
The exception is when the accused has been arrested without
warrant.
WHAT HAPPENS WHEN THERE HAS BEEN NO COMPLIANCE WITH
THE REQUIREMENT THAT THERE SHOULD BE FIRST CONCILIATION
PROCEEDINGS IN THE LUPON?
The court may dismiss the case without prejudice
It may also revive the case only after such requirement shall have
been complied with
This provision shall not apply in criminal cases wherein the
accused has been arrested lawfully without a warrant of arrest.
Sec.
19.
Prohibited pleadings and motions. The following
pleadings, motions or petitions shall not be allowed in the cases
covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or
information except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the preceding section;
(b)
Motion
particulars;

for

bill

of

(c) Motion for new trial, or for reconsideration of a judgment,

or for opening of trial;
(d)
Petition
judgment;

for

relief

from

(e) Motion for extension of time to file pleadings, affidavits or any

other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(h) Motion to declare the defendant in
default; (i) Dilatory motions for
postponement;
(j) Reply;
(k)
Third
complaints;

party

(l) Interventions.
WHAT PLEADINGS AND MOTIONS ARE PROHIBITED IN CASES
GOVERNED BY SUMMARY PROCEDURE?
The following are not allowed
1. A motion to dismiss the complaint or to quash the complaint or
information on the ground of lack of jurisdiction over the subject
matter, or failure to refer the case to the Lupon
2. Motion for bill of particulars
3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleading, affidavits or other
paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the courts
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions
Sec.
20.
Affidavits. The affidavits required to be submitted
under this Rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence, and shall show
their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the
counsel who submits the same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit or portion thereof
from the record.
WHAT IS REQUIRED IN THE SUBMISSION OF AFFIDAVITS IN A
SUMMARY PROCEEDING?
The affidavits required to be submitted under this Rule shall state
only facts of direct personal knowledge of the affiants which are
admissible in evidence, and shall show their competence to testify
to the matters stated therein.

Sec.
21.
Appeal. The judgment or final order shall be
appealable to the appropriate Regional Trial Court which shall
decide the same in accordance with Section 22 of Batas Pambansa
Blg. 129. The decision of the Regional Trial Court in civil cases
governed by this Rule, including forcible entry and unlawful
detainer, shall be immediately executory, without prejudice to a
further appeal that may be taken therefrom. Section 10 of Rule
70 shall be deemed repealed.
Sec.
22.
Applicability of the regular rules. The regular
procedure prescribed in the Rules of Court shall apply to the
special cases herein provided for in a suppletory capacity insofar
as they are not inconsistent herewith.
RULE 124 - PROCEDURE IN THE COURT OF APPEALS
Section 1. Title of the case. In all criminal cases appealed to the
Court of Appeals, the party appealing the case shall be called the
"appellant" and the adverse party the "appellee," but the title of
the case shall remain as it was in the court of origin.
Sec. 2. Appointment of counsel de officio for the accused. If it
appears from the record of the case as transmitted that (a) the
accused is confined in prison, (b) is without counsel de parte on
appeal, or (c) has signed the notice of appeal himself, ask the clerk
of court of the Court of Appeals shall designate a counsel de
officio.
An appellant who is not confined in prison may, upon request, be
assigned a counsel de officio within ten (10) days from receipt of
the notice to file brief and he establishes his right thereto.
Sec. 3. When brief for appellant to be filed. Within thirty
(30) days from receipt by the appellant or his counsel of the notice
from the clerk of court of the Court of Appeals that the
evidence, oral and documentary, is already attached to the record,
the appellant shall file seven (7) copies of his brief with the clerk
of court which shall be accompanied by proof of service of two (2)
copies thereof upon the appellee.
Sec. 4. When brief for appellee to be filed; reply brief of the
appellant. Within thirty (30) days from receipt of the brief of the
appellant, the appellee shall file seven (7) copies of the brief of
the

appellee with the clerk of court which shall be accompanied by

proof of service of two (2) copies thereof upon the appellant.
Within twenty (20) days from receipt of the brief of the appellee,
the appellant may file a reply brief traversing matters raised in
the former but not covered in the brief of the appellant.
Sec. 5. Extension of time for filing briefs. Extension of time
for the filing of briefs will not be allowed except for good and
sufficient cause and only if the motion for extension is filed
before the expiration of the time sought to be extended.
Sec. 6. Form of briefs. Briefs shall either be printed, encoded or
typewritten in double space on legal size good quality unglazed
paper, 330 mm. in length by 216 mm. in width.
Sec. 7. Contents of brief. The briefs in criminal cases shall have
the same contents as provided in sections 13 and 14 of Rule 44. A
certified true copy of the decision or final order appealed from
shall be appended to the brief of the appellant.
Sec. 8. Dismissal of appeal for abandonment or failure to
prosecute. The Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the appellant in either
case, dismiss the appeal if the appellant fails to file his brief within
the time prescribed by this Rule, except where the appellant is
represented by a counsel de officio.
The Court of Appeals may also, upon motion of the appellee or
motu proprio, dismiss the appeal if the appellant escapes from
prison or confinement, jumps bail or flees to a foreign country
during the pendency of the appeal.

4.

The Court of Appeals may also, upon motion of the appellee or

motu proprio, dismiss the appeal if the appellant flees to a foreign
country during the pendency of the appeal
5. The Court of Appeals may also, motu propio dismiss the appeal if
the appellant fails to prosecute
6. The Court of Appeals may also, motu propio dismiss the appeal if
the appellant abandons his appeal

Sec. 9. Prompt disposition of appeals. Appeals of accused who

are under detention shall be given precedence in their disposition
over other appeals. The Court of Appeals shall hear and
decide the appeal at the earliest practicable time with due regard
to the rights of the parties. The accused need not be present in
court during the hearing of the appeal.
Sec. 10. Judgment not to be reversed or modified except for
substantial error. No judgment shall be reversed or modified
unless the Court of Appeals, after an examination of the record
and of the evidence adduced by the parties, is of the opinion that
terror was committed which injuriously affected the substantial
rights of the appellant.
WHEN
CAN
JUDGMENT
BE
REVERSED
OR
MODIFIED?
It can only be reversed or modified when there has been
substantial errors
Sec. 11. Scope of judgment. The Court of Appeals may reverse,
affirm or modify the judgment and increase or reduce the penalty
imposed by the trial court, remand the case to the Regional Trial
Court for new trial or retrial, or dismiss the case.

WHAT IS THE SCOPE OF JUDGMENT OF THE COURT OF

APPEALS?
WHEN CAN THE COURT OF APPEALS DISMISS AN
1. Reverse, affirm, or modify the judgment
APPEAL?
1. The Court of Appeals may, upon motion of the appellee or motu
2. Increase or reduce the penalty imposed by the trial court
3. Remand the case to the RTC for new trial or retrial
proprio and with notice to the appellant in either case, dismiss the
appeal if the appellant fails to file his brief within the time
4. Dismiss the case
prescribed by this Rule, except where the
WHY CANNOT THE CA REVISE THE
appellant is represented by a counsel de
JUDGMENT OF THE LOWER COURT?
officio.
2.
The
Court of Appeals may also, upon motion of
The power to revise is not given
the appellee or
because it is changing the
motu proprio,
dismiss the appeal if the
of the penning
of the
prison
or confinement
manner
It is violative
of the rule
that the
The Court of Appeals may also, upon motion of
judge must write the decision
3.
the appellee
personally
motu
proprio,or
dismiss the appeal if the appellant
jumps bail

DISTINGUISH
MODIFY
AND
REVISE
MODIFY
REVISE
The appellate court bases its The decision of the trial court judge
modification on errors in the facts or is revised merely on the manner it
laws of the case
is written

Justices to sit temporarily with them, forming a special division of

five (5) members and the concurrence of a majority of such
division shall be necessary for the pronouncement of a judgment
or final resolution. The designation of such additional Justices shall
be made strictly by raffle and rotation among all other Justices of
the Court of Appeals.

MUST ALL BE ALLEGED IN THE APPEAL IN ORDER TO REVIEW THE

CASE IN ITS ENTIRETY?
No.
An appeal in criminal proceedings throws the whole case open for
review. It is the duty of the appellate court to correct such errors
as might be found in the appealed judgment, whether they are
assigned or not.

Whenever the Court of Appeals find that the penalty of death,

reclusion perpetua, or life imprisonment should be imposed in a
case, the court, after discussion of the evidence and the law
involved, shall render judgment imposing the penalty of death,
reclusion perpetua, or life imprisonment as the circumstance
warrant. However, it shall refrain from entering the judgment and
forthwith certify the case and elevate the entire record thereof to
the Supreme Court for review.

Sec. 12. Power to receive evidence. The Court of Appeals shall

have the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual
issues raised in cases (a) falling within its original jurisdiction, (b)
involving claims for damages arising from provisional remedies, or
(c) where the court grants a new trial based only on the ground of
newly-discovered evidence.
CAN THE COURT OF APPEALS ACCEPT EVIDENCE DURING AN
APPEAL?
Generally, an appellate court doesnt accept new evidence during
an appeal.
Its decision is based on the records and other
documents forwarded to it by the lower courts
It can accept evidence though in the resolution of contentious
factual issues, which are raised in cases:
1. Falling within its original jurisdiction
2. Involving claim for damages arising from provisional
remedies
3. Where the court grants a new trial based on the ground
of newly-discovered evidence
Sec. 13. Quorum of the court; certification or appeal of cases to
Supreme Court. Three (3) Justices of the Court of Appeals shall
constitute a quorum for the sessions of a division. The unanimous
vote of the three (3) Justices of a division shall be necessary
for the pronouncement of a judgment or final resolution, which
shall be reached in consultation before the writing of the opinion
by a member of the division. In the event that the three (3)
Justices can not reach a unanimous vote, the Presiding Justice
shall direct the raffle committee of the Court to designate two
(2) additional

HOW DOES THE CA DECIDE THE

CASE?
Three (3) Justices of the Court of Appeals shall constitute a
quorum for the sessions of a division.
The unanimous vote of the three (3) Justices of a division shall be
necessary for the pronouncement of a judgment or final
resolution, which shall be reached in consultation before the
writing of the opinion by a member of the division.
In the event that the three (3) Justices can not reach a
unanimous vote, the Presiding Justice shall direct the raffle
committee of the
Court to designate two (2) additional Justices to sit temporarily
with them, forming a special division of five (5) members and the
concurrence of a majority of such division shall be necessary for
the pronouncement of a judgment or final resolution. The
designation of such additional Justices shall be made strictly by
raffle and rotation among all other Justices of the Court of
Appeals.
NB: There is tyranny of the minority. In case one of the three
justices in a division disagrees, he wins even if it is 2 against 1.
A.M. No. 00-5-03SC
RE: AMENDMENTS TO THE REVISED RULES
PROCEDURE TO GOVERN DEATH PENALTY CASES

OF

CRIMINAL

RESOLUTION
Acting on the recommendation of the Committee on Revision of the
Rules of Court submitting for this Court's consideration and
approval the Proposed Amendments to the Revised Rules of

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

Page
1 1 0 1 1 0 1 1 0 of
Criminal Procedure To Govern Death Penalty Cases, the Court
Resolved to APPROVE the same.

automatically review the judgment as provided in Section 10 of this

Rule. (3a)

The amendments shall take effect on October 15, 2004 following

its publication in a newspaper of general circulation not later than
September 30, 2004.

xxx

September
2004.

28,

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., and Tinga, JJ., concur.
Azcuna
leave.

and

Chico-Nazario,

JJ.,

on

AMENDED RULES TO GOVERN REVIEW OF DEATH PENALTY CASES

Rule 122, Sections 3 and 10, and Rule 124, Sections 12 and 13,
of
the Revised Rules of Criminal Procedure, are amended as
follows:
Rule 122
Sec. 3. How appeal taken.(a) The appeal to the Regional Trial
Court, or to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction, shall be by
notice of appeal filed with the court which rendered the judgment
or final order appealed from and by serving a copy thereof upon
the adverse party.

Sec. 10. Transmission of records in case of death penalty. In all

cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Court of Appeals for automatic
review and judgment within twenty days but not earlier than
fifteen days from the promulgation of the judgment or notice of
denial of a motion for new trial or reconsideration. The transcript
shall also be forwarded within ten days after the filing thereof by
the stenographic reporter. (10a)
xxx
Rule 124
Sec. 12. Power to receive evidence.The Court of Appeals shall
have the power to try cases and conduct hearings, receive
evidence and perform all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction,
including the power to grant and conduct new trials or further
proceedings. Trials or hearings in the Court of Appeals must be
continuous and must be completed within three months, unless
extended by the Chief Justice. 12(a)
Sec. 13. Certification or appeal of case to the Supreme Court.(a)
Whenever the Court of Appeals finds that the penalty of death
should be imposed, the court shall render judgment but refrain
from making an entry of judgment and forthwith certify the case
and elevate its entire record to the Supreme Court for review.

(b) The appeal to the Court of Appeals in cases decided by the

Regional Trial Court in the exercise of its appellate jurisdiction
shall be by petition for review under Rule 42.
(c)
The appeal in cases where the penalty imposed by the
Regional Trial Court is reclusion perpetua, life imprisonment or
where a lesser penalty is imposed for offenses committed on
the same occasion or which arose out of the same occurrence that
gave rise to the more, serious offense for which the penalty of
death, reclusion perpetua, or life imprisonment is imposed, shall
be by notice of appeal to the Court of Appeals in accordance with
paragraph (a) of this Rule.
(d) No notice of appeal is necessary in cases where the Regional
Trial Court imposed the death penalty. The Court of Appeals
shall

(b) Where the judgment also imposes a lesser penalty for offenses
committed on the same occasion or which arose out of the same
occurrence that gave rise to the more severe offense for which the
penalty of death is imposed, and the accused appeals, the appeal
shall be included in the case certified for review to, the Supreme
Court.
(c) In cases where the Court of Appeals imposes reclusion
perpetua, life imprisonment or a lesser penalty, it shall render and
enter judgment imposing such penalty. The judgment may be

appealed to the Supreme Court by notice of appeal filed with the

Court
of
Appeals.
WHAT IS THE PROCEDURE WHEN THE CA FINDS THAT THE
PENALTY TO BE IMPOSED IS DEATH, RECLUSION PERPETUA, OR
LIFE IMPRISONMENT?
Whenever the Court of Appeals finds that the penalty of death
should be imposed, the court shall render judgment but refrain
from making an entry of judgment and forthwith certify the case
and elevate its entire record to the Supreme Court for review.
Where the judgment also imposes a lesser penalty for offenses
committed on the same occasion or which arose out of the same
occurrence that gave rise to the more severe offense for which the
penalty of death is imposed, and the accused appeals, the appeal
shall be included in the case certified for review to, the Supreme
Court.
In cases where the Court of Appeals imposes reclusion perpetua,
life imprisonment or a lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment may be appealed
to the Supreme Court by notice of appeal filed with the Court of
Appeals.
WHAT IF THE DECISION APPEALED TO
QUESTIONS OF LAW?
The CA may certify it to the SC directly

THE CA IS

PURELY

Sec. 14. Motion for new trial. At any time after the appeal from
the lower court has been perfected and before the judgment of the
Court of Appeals convicting the appellant becomes final, the latter
may move for a new trial on the ground of newly-discovered
evidence material to his defense. The motion shall conform with
the provisions of section 4, Rule 121.
CAN THE CA CONDUCT A NEW
TRIAL?
Yes, the ground for new trial is based on newly-discovered
evidence and the motion shall conform with the provisions of
Section 4, Rule 121
WHAT
IS
NEWLY-DISCOVERED
EVIDENCE?
This is material evidence that can change the outcome of the
judgment when admitted
WHEN
SHOULD
DISCOVERED?

THE

NEWLY-DISCOVERED

EVIDENCE

BE

The evidence must be discovered after the perfection of appeal,

but before the CA renders its judgment, because after the
perfection of the appeal, the trial court loses its jurisdiction. On
the other hand, prior perfection of an appeal, the party
discovering the new evidence may file a motion for new trial with
the trial court anyway.

INSTEAD OF FILING A MOTION FOR NEW TRIAL, CAN A PARTY FILE

A MOTION FOR RECONSIDERATION INSTEAD?
No since a motion for reconsideration only covers errors of facts
or laws
and
not
newly-discovered
evidence,
which
pertains
exclusively as a ground for new trial
WHY IS THE PERIOD FOR FILING A MOTION FOR NEW TRIAL FROM
A DECISION OF THE RTC DIFFERENT FROM THAT OF THE CA?
For the reason that at some point in time, the case must end.
Sec. 15. Where new trial conducted. When a new trial is granted,
the Court of Appeals may conduct the hearing and receive
evidence as provided in section 12 of this Rule or refer the trial to
the court of origin.
Sec. 16. Reconsideration. A motion for reconsideration shall be
filed within fifteen (15) days from notice of the decision or final
order of the Court of Appeals with copies thereof served upon the
adverse party, setting forth the grounds in support thereof. The
mittimus shall be stayed during the pendency of the motion for
reconsideration. No party shall be allowed a second motion for
reconsideration of a judgment or final order.
WHEN SHOULD A MOTION FOR RECONSIDERATION BE
FILED?
A motion for reconsideration shall be filed within fifteen (15) days
from notice of the decision or final order of the Court of Appeals
with copies thereof served upon the adverse party, setting forth
the grounds in support thereof.
The mittimus shall be stayed during the pendency of the motion
for reconsideration.
No party shall be allowed a second motion for reconsideration of a
judgment or final order.
WHAT
IS
THE
MEANING
OF
MITTIMUS?
It is the process issued by the court after conviction to carry out
the final judgment such as commanding a prison warden to hold
the accused in accordance with the terms of the judgment

Sec. 17. Judgment transmitted and filed in trial court. When the
entry of judgment of the Court of Appeals is issued, a certified
true copy of the judgment shall be attached to the original record
which shall be remanded to the clerk of the court from which the
appeal was taken.
WHAT SHOULD BE DONE AFTER THE JUDGMENT OF THE CA HAS
BECOME FINAL?
When the judgment of the CA becomes final, a certified true copy
of the judgment shall be attached to the original record which
shall be remanded to the clerk of the court from which the appeal
was taken.
Sec. 18. Application of certain rules in civil procedure to criminal
cases. The provisions of Rules 42, 44 to 46 and 48 to 56 relating
to procedure in the Court of Appeals and in the Supreme Court in
original and appealed civil cases shall be applied to criminal cases
insofar as they are applicable and not inconsistent with the
provision of this Rule.
RULE 125 - PROCEDURE IN THE SUPREME COURT
Section 1. Uniform Procedure. Unless otherwise provided by the
Constitution or by law, the procedure in the Supreme Court in
original and in appealed cases shall be the same as in the Court of
Appeals.
HOW
MANY
VOTES
ARE
NEEDED?
The rule is that the majority is needed to decide a case en banc
An exception is that when all are not present, majority of all those
present/who constitute a quorum and actually participated in the
deliberations.
o
There must be a quorum
o
Majority of those who participated and voted shouldnt be
less than 5
Division of 7: majority not less than 5; division of 5: majority not
less than 3; division of 3: unanimous decision, if the unanimous
decision couldnt be obtained, 2 justices must be temporarily
assigned to the division by raffle
Sec. 2. Review of decisions of the Court of Appeals. The
procedure for the review by the Supreme Court of decisions
in

criminal cases rendered by the Court of Appeals shall be the same

as in civil cases.
Sec. 3. Decision if opinion is equally divided. When the Supreme
Court en banc is equally divided in opinion or the necessary
majority cannot be had on whether to acquit the appellant, the
case shall again be deliberated upon and if no decision is reached
after re-deliberation, the judgment of conviction of lower court
shall be reversed and the accused acquitted.
WHY SHOULD THE JUDGMENT RESULT IN ACQUITTAL IF NO
DECISION IS REACHED AFTER RE-DELIBERATION?
Because of the presumption of innocence where all doubts should
be resolved in favor of the accused and the principle that when
inculpatory facts are susceptible of 2 or more interpretations, the
ambiguity must be decided in favor of the accused.
RULE 126 - SEARCH AND SEIZURE
Section 1. Search warrant defined. A search warrant is an
order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer,
commanding him to search for personal property described
therein and bring it before the court.
WHAT
IS
A
SEARCH
WARRANT?
A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property
described therein and bring it before the court.
WHAT IS THE CONCEPT OF A SEARCH
WARRANT?
It is a criminal process akin to a mode of discovery
It is a special and peculiar remedy, which is drastic in nature
ARE
SEARCH
AND
SEIZURES
PROHIBITED
UNDER
THE
CONSTITUTION?
No. The constitutional guarantee embodied in Article 3, Section 2
of the Constitution is not a blanket prohibition against all searches
and seizures as it operates only against unreasonable searches
and seizures
WHEN
IS
THE
UNREASONABLE?

SEARCH

OR

SEIZURE

A search and seizure is unreasonable if it is made without a

warrant, or the warrant was invalidly issued.
In all instances, what constitutes reasonable or
unreasonable
search or seizure is a purely judicial question determinable from a
consideration of the attendant circumstances.

DISTINGUISH BETWEEN A WARRANT OF ARREST AND SEARCH

WARRANT
SEARCH WARRANT
WARRANT OF
ARREST
QUANTUM
OF
The
applicant
must The
applicant
must
show
show
EVIDENCE;
PROBABLE
that the items sought probable cause that an
CAUSE;
may be seized by offense
has
virtue
been
CONCLUSIONS
of
their
being committed; and that
connected
the
with
criminal person to be arrested
activity; and that the committed it.
items will be found in
the
place
to
be Moreover, the judge
need not conduct a
searched.
personal
examination
The judge must also of the applicant and his
He may
conduct a personal, witnesses.
searching examination rely on the affidavits of
of the applicant and his the witnesses, records
of the preliminary
witnesses.
investigation, and the
WHAT ARE THE THREE SITUATIONS WHEREIN THERE MUST BE
FINDING OF PROBABLE CAUSE?
1.
Probable cause in filing of an
information
grounded belief that a crime
has been
committed
the
person
to be
charged isand
probably
guiltycause
thereof
2.
Probable
in the issuance of a
search
warrant

Facts
and circumstances that
would
lead and
a reasonable
discreet
prudent man to
believecommitted
that thereand
hasthe
been
a
crime
things
and objects
connected
the
crime
committed
are in to
the
place
to because
searched
3.
Probable
in the issuance of a
warrant
of arrest

Facts
and circumstances that
would
engender
a that
well-a crime
grounded
belief
has been
committed
and the
person
to be
arrested committed
it

WHY ARE THE REQUIREMENTS FOR THE ISSUANCE OF A SEARCH

WARRANT MORE STRINGENT THAN THE REQUIREMENTS FOR THE
ISSUANCE OF A WARRANT OF ARREST?
The right against unreasonable search and seizure is a core right
implicit in the natural right to life, liberty and property. Even in
the absence of a constitution, individuals have a fundamental and
natural right against unreasonable search and seizure under
natural law.
Moreover, the violation of the right to privacy produces a
humiliating effect that cannot be rectified anymore.
This is why there is no other justification to speak of for a search,
except for a warrant.
On the other hand, in a warrant of arrest, the person to be
arrested can always post bail to prevent the deprivation of liberty.
Sec. 2. Court where application for search warrant shall be filed.
An application for search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was
committed.
(b) For compelling reasons stated in the application, any court
within the judicial region where the crime was committed if the
place of the commission of the crime is known, or any court
within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the
application shall only be made in
the court where
the
criminal action is pending.

WHER
WARR

E SHOULD ONE FILE AN

APPLICATION FOR SEARCH
ANT?
As a general
rule, anyBUT
court
within
crime
was committed
FOR
COMPELLING
REASONS
stated
in
the
application,
any court
within
the
judicial
region where
crime
was committed
if thethe
place of
theknown,
commission
the within
crime the
is
or any of
court
judicial
where the warrant
shall be region
enforced.

For example, a drug syndicate

keeps
in a warehouse
in
Pasay his
for drugs
the reason
that it has
connections
easily
get a intipPasay
whenand
thecan
police
officers will
for the
a search
warrant.
To file
avoid
drug
syndicate
getting
a tip officers
of the
impendingfrom
search,
the police
apply for
a search
warrant in reason.
Makati
stating
the compelling

However, if the criminal action has already been filed, the

application shall only be made in the court where the criminal
action is pending.

Sec. 3. Personal property to be seized. A search warrant may be

issued for the search and seizure of personal property:
(a)
Subject
offense;

of

the

(b) Stolen or embezzled and other proceeds, or fruits of the

offense; or
(c) Used or intended to be used as the means of committing an
offense.
WHAT MAY BE THE SUBJECT OF A SEARCH
WARRANT?
1. Subject of the offense;
2. Stolen or embezzled and other proceeds, or fruits of the offense;
or
3. Used or intended to be used as the means of committing an
offense.
IS IT NECESSARY THAT THE PERSON NAMED IN THE SEARCH
WARRANT BE THE OWNER OF THE THINGS TO BE SEIZED?
No, ownership is of no consequence.
What is relevant is that the property is connected to an offense.
Sec. 4. Requisites for issuing search warrant. A search warrant
shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witness he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in
the Philippines.
WHAT ARE THE REQUISITES OF A VALID SEARCH
WARRANT?
1. There must be probable causefacts and circumstances that
would engender a well-founded belief in a reasonable prudent and
discreet man that a crime has been committed and the things and
objects to be seized can be found in the place to be searched
2. Which must be determined by the judge personally through
searching and
probing questionsquestions not
merely
answerable by yes or no but could be answered by the applicant
and the witnesses on facts personally known to them

3.
4.
5.
6.
7.

(Upon whom?) The complainant and the witnesses he may

produce are personally examined by the judge, in writing and
under oath and affirmation
(Based on what?) The applicant and the witnesses testify on facts
personally known to them
The probable cause must be in connection with the specific offense
The warrant specified describes the person and place to be
searched and the things to be seized
The sworn statement together with the affidavits of the witnesses
must be attached to the record

WHAT
IS
THE
PURPOSE
FOR
THE
PARTICULARITY
OF
DESCRIPTION OF THE PLACE TO BE SEARCHED AND THE THINGS
TO BE SEIZED?
The evident purpose and intent of this requirement is to limit the
things to be seized to those, and only those, particularly
described
in the search warrantto leave officers of the law with no
discretion regarding what articles they should seize, to the end
that unreasonable searches and seizures may not be committed,
that abuses may not be committed.
Sec. 5. Examination of complainant; record. The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements, together with the affidavits submitted.
WHEN IS THE AFFIDAVIT OR TESTIMONY OF THE WITNESS
SAID TO BE BASED ON PERSONAL KNOWLEDGE?
The test is whether perjury could be charged against the witness
WHAT ARE THE REQUISITES OF THE PERSONAL EXAMINATION
THAT THE JUDGE MUST CONDUCT BEFORE ISSUING THE SEARCH
WARRANT?
1. The judge must examine the witness personally
2. The examination must be under oath
3. The examination must be reduced into writing in the form of
searching questions and answers
Sec. 6. Issuance and form of search warrant. If the judge is
satisfied of the existence of facts upon which the application is
based or that there is probable cause to believe that they exist, he
shall issue the warrant, which must be substantially in the form
prescribed by these Rules.

WHAT
IS
A
SCATTER
SHOT
WARRANT?
It is a warrant of arrest that is issued for more than one offense
It is void for the law requires that a warrant of arrest should only
be issued in connection with one specific offense

Sec. 7. Right to break door or window to effect search. The

officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any
outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant to liberate himself or any
person lawfully aiding him when unlawfully detained therein.

A WARRANT WAS ISSUED FOR THE SEIZURE OF DRUGS

CONNECTED WITH THE VIOLATION OF THE DANGEROUS DRUGS
ACT. IS THE WARRANT VALID?
The warrant is valid
Although there are many ways of violating the Dangerous Drugs
Act, it is not a scatter shot warrant since it is in connection with
only one penal law

Sec. 8. Search of house, room, or premises to be made in presence

of two witnesses. No search of a house, room, or any other
premises shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the absence of
the latter, two witnesses of sufficient age and discretion residing
in the same locality.

POLICE OFFICERS APPLIED FOR A WARRANT TO SEARCH DOOR #1

OF AN APARTMENT COMPLEX. THE COURT ISSUED THE WARRANT.
WHEN THEY WENT TO THE APARTMENT COMPLEX, THEY REALIZED
THAT WHAT THEY THOUGHT WAS DOOR #1 WAS ACTUALLY DOOR
#7. CAN THEY SEARCH DOOR
#7?
No, what is controlling is what is stated in the warrant, and not
what the peace officers had in mind, even if they were the ones
who gave it the description to the court.
This is to prevent abuses in the service of search warrants
CAN THE POLICE OFFICER SEIZE ANYTHING THAT IS NOT
INCLUDED IN THE WARRANT?
No, anything not included in the warrant cannot be seized
EXCEPT
if its mala prohibita, in which case, the seizure is justified under
the plain view doctrine.
Even if the object was related to the crime, but it is not mentioned
in the warrant nor is it mala prohibita, it still cannot be seized
POLICE OFFICERS WENT TO THE HOUSE TO EXECUTE A SEARCH
WARRANT. THEY FOUND A PISTOL ON THE TABLE, BUT THE
PISTOL WASNT INCLUDED IN THE SEARCH WARRANT.
CAN
THEY SEIZE THE PISTOL?
No, it is not mala prohibita and they have no proof that it is
unlicensed.
WHAT SHOULD THE POLICE OFFICER OR COURT TO DO THINGS
SEIZED ILLEGALLY?
Anything seized illegally must be returned to the owner unless it is
mala prohibita. In such a case, it should be kept in custodia legis.

NOTE: The two witness rule only applies in the absence of the lawful
occupants of the premises searched
PEACE OFFICERS RAIDED A HOUSE, WHICH WAS SUSPECTED TO
BE A FACTORY FOR ILLEGAL DRUGS.
DURING THE RAID,
8
CHINESEMEN WERE FOUND INSIDE WHO COULDNT SPEAK
ENGLISH OR FILIPINO. THE CHINESE WERE LOCKED INSIDE A
ROOM AND TWO WITNESSES WHO WERE NOT OCCUPANTS WERE
USED WHILE SEARCHING THE HOUSE AND SEIZING THE
PROHIBITED
DRUGS.
VALID?
No.
The two-witness rule can only apply when there is absence of the
lawful occupants of the premises searched.
In this case, they locked the occupants in a room while doing the
search and seizure and used 2 witnesses who werent the
occupants of the premises.
Sec. 9. Time of making search. The warrant must direct that it be
served in the day time, unless the affidavit asserts that the
property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any
time of the day or night.
WHEN
SHOULD
THE
SEARCH
WARRANT
BE
EXECUTED?
If possible, it should be executed during the daytime
But in certain cases, such as when the things seized are mobile or
are in the person of the accused, it can be served during nighttime
Sec. 10. Validity of search warrant. A search warrant shall
be valid for ten (10) days from its date. Thereafter, it shall be void.

FOR HOW LONG IS THE SEARCH WARRANT

VALID?
It is valid for 10 days, after which the police officer should make a
return to the judge who issued it
If the police officer doesnt make a return, the judge
should
summon him and require him to explain why no return was made
If the return was made, the judge should determine if the peace
officer issued the receipt to the occupant of the premises from
which the things were taken.
The judge shall also order the delivery to the court of the things
seized.
IF THE WARRANT WAS EXECUTED EVEN BEFORE THE EXPIRATION
OF THE 10-DAY PERIOD, CAN THE PEACE OFFICER USE THE
WARRANT AGAIN BEFORE IT EXPIRES?
No, of the purpose for which it was issued has already been
carried out, the warrant cannot be used anymore.
The exception is if the search wasnt finished within 1 day, the
warrant can still be used the next day, provided it is still within
the 10-day period
Sec. 11. Receipt for the property seized. The officer seizing the
property under the warrant must give a detailed receipt for the
same to the lawful occupant of the premises in whose presence
the search and seizure were made, or in the absence of such
occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a
receipt in the place in which he found the seized property.
WHAT IS THE DUTY OF THE OFFICER WHEN HE SEIZES THE
PROPERTY?
The officer seizing the property under the warrant must give a
detailed receipt for the same to the lawful occupant of the
premises in whose presence the search and seizure were made,
or in the absence of such occupant, must, in the presence of at
least two witnesses of sufficient age and discretion residing in the
same locality, leave a receipt in the place in which he found the
seized property.
CAN THE OWNER OF THE THINGS SEIZED BE MADE TO SIGN THE
RECEIPT?
No since this would be tantamount to a violation of ones right
against self-incrimination.
It is a confession without the
assistance of counsel.

IS THERE PERIL TO THE OWNER OF THE THINGS SEIZED IF HE IS

MADE TO SIGN THE BOOKING SHEET?
There is no peril since he would just be made to acknowledge
that a case has been filed against him
THE ACCUSED WAS ARRESTED DURING A BUY-BUST OPERATION.
PESO BILLS WERE SEIZED FROM HIM. CAN THE ACCUSED BE
MADE TO SIGN THE BILLS?
Yes, having the bills is not a crime.
This applies even if the bills involved is marked money.
Sec. 12. Delivery of property and inventory thereof to court;
return and proceedings thereon.
(a) The officer must forthwith deliver the property seized to the
judge who issued the warrant, together with a true inventory
thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing
judge shall ascertain if the return has been made, and if none,
shall summon the person to whom the warrant was issued and
require him to explain why no return was made. If the return has
been made, the judge shall ascertain whether section 11 of this
Rule has been complied with and shall require that the property
seized be delivered to him. The judge shall see to it that
subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the
custodian of the log book on search warrants who shall enter
therein the date of the return, the result, and other actions of the
judge.
A violation of this section shall constitute contempt of
court.
WHAT IS THE DUTY OF THE OFFICER AFTER THE PROPERTY
SOUGHT UNDER THE SEARCH WARRANT HAS BEEN SEIZED?
The officer must forthwith deliver the property seized to the judge
who issued the warrant, together with a true inventory thereof
duly verified under oath.
Sec. 13. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything

which may have been used or constitute proof in the commission

of an offense without a search warrant.
IN WHAT INSTANCES WOULD A SEARCH AND SEIZURE WITHOUT A
WARRANT BE ALLOWED?
1. A warrantless search incidental to a lawful
arrest a. Arrest must be lawful
b. It must be contemporaneous with the arrest in both time
and place
c. Within the vicinity of the person arrested, immediate
control, which is the evidence of the offense or weapon
2. Search of evidence in plain view
3. Search of a moving vehicle
a. Must be cursory
b. Cant make a thorough search; just have to take a look;
not to open trunks
4. Consented warrantless searches
a. The right exists
b. Person making the consent knows that he has the right
c. In spite of the knowledge of the right, he voluntarily and
intelligently gives his consent
5. Customs searches
6. Stop and frisk
7. Exigent and emergency circumstances
8. Checkpoints
9. Republic Act requiring inspections or body checks in airports
10. Emergency
11. In times of war and within military operations
WHAT ARE THE INSTANCES OF A PERMISSIBLE
WARRANTLESS ARREST?
1. Arrest in flagrante delicto
2. Arrest effected in hot pursuit
3. Arrests of escaped prisoners
WHAT IS THE AREA OF COVERAGE OF AN OFFICERS SEARCH? IS
IT LIMITED TO THE PERSON OF THE ACCUSED?
Under this rule, the search being an incident to a lawful arrest
may extend beyond the person of the one arrested to include the
premises or surrounding under his immediate control
The search must be made after the arrest. The objective is to
make sure that the life of the peace officer will not be
endangered. It must be contemporaneous with the arrest in both
time and place.

WHEN IS THE WARRANTLESS SEARCH OF A MOVING VEHICLE

ALLOWED?
It is allowed when it is not practicable to secure a warrant
WHAT ARE THE REQUIREMENTS IN A WARRANTLESS SEARCH
INCIDENTAL TO A LAWFUL ARREST?
1. Arrest must be lawful
2. It must be contemporaneous with the arrest in both time and
place
3. Within the vicinity of the person arrested, immediate control,
which is the evidence of the offense or weapon
NOLASCO V. PAO - 147 SCRA
509
FACTS:
The case at bar is for the motion for partial reconsideration of both
petitioners and respondents of the SCs decision that the questioned
search
warrant by petitioners is null and void, that respondents are enjoined from
introducing evidence using such search warrant, but such personalities
obtained would still be retained, without prejudice to petitioner AguilarRoque. Respondents contend that the search warrant is valid and that it
should be considered in the context of the crime of rebellion, where the
warrant was based. Petitioners on the other hand, on the part of petitioner
Aguilar-Roque, contend that a lawful search would be justified only by a
lawful arrest.
And since there was illegal arrest of Aguilar-Roque, the
search was unlawful and that the personalities seized during the illegal
search should be returned to the petitioner. The respondents, in defense,
concede that the search warrants were null and void but the arrests were
not.
HELD:
"Any evidence obtained in violation of this . . . section shall be inadmissible
for any purpose in any proceeding" (Sec. 4[2]). This constitutional
mandate expressly adopting the exclusionary rule has proved by historical
experience to be the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizures by outlawing all
evidence illegally seized and thereby removing the incentive on the part of
state and police officers to disregard such basic rights. What the plain
language of the Constitution mandates is beyond the power of the courts
to change or modify. All the articles thus seized fag under the exclusionary
rule totally and unqualifiedly and cannot be used against any of the three
petitioners.
PEOPLE V. MUSA - 217 SCRA
597
FACTS:

Accused seeks the reversal of his conviction for violating the Dangerous
Drugs Act. He was found guilty of selling marijuana leaves to a police
officer in an entrapment operation.
HELD:
There is no doubt that the warrantless search incidental to a lawful arrest
authorizes the arresting officer to make a search upon the person of the
person arrested. Hence, in a buy-bust operation conducted to entrap a
drug-pusher, the law enforcement agents may seized the marked money
found on the person of the pusher immediately after the arrest even
without arrest or search warrants. Furthermore, it may extend beyond to
include the premises or surroundings under his immediate control.
PEOPLE V. BURGOS - 144 SCRA 1
FACTS:
Due to an information given by a person, who allegedly was being forcibly
recruited by accused to the NPA, the members of the Constabulary went to
the house of accused, asked about his firearm and documents connected
to subversive activities. Accused pointed to where his firearm was as well
as his other documents allegedly.
HELD:
The right of the person to be secure against any unreasonable seizure of
his body and any deprivation of liberty is a most basic and fundamental
one. The statute or rule, which allows exceptions to the requirement of
warrants of arrest is strictly construed. Any exception must clearly fall
within the situations when securing a warrant would be absurd or is
manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its application
beyond the cases specifically provided by law. To do so would infringe
upon personal liberty and set back a basic right so often violated and so
deserving of full protection.
WHO SHOULD GIVE CONSENT TO A WARRANTLESS SEARCH AND
WHAT ARE THE REQUISITES?
Only the person whose right may be violated can give the
consent; it is a personal right that cannot be availed of by third
parties. The requisites are:
1. The person has knowledge of his right against the search
2. He freely and intelligently gives his consent in spite of such
knowledge
WHAT ARE THE REQUISITES FOR THE PLAIN VIEW DOCTRINE TO
APPLY?

1.
2.
3.
4.

There must have been a prior valid intrusion based on the

warrantless arrest in which the police are legally present in the
pursuit of their official duties
The evidence was inadvertently discovered by the police who had
the right to be where they are
The evidence must be immediately apparent
There was no need for further search

WHAT IS A STOP AND FRISK SITUATION? WHEN IS IT

VALID?
It is a situation wherein there is a limited protective search of
outer clothing for weapons
While probable cause is not required to conduct a stop and frisk,
mere suspicion or a hunch will not validate such a procedure.
A genuine reason must exist, in light of the police officers
experience and surrounding conditions, to warrant the belief that
the person has detained the weapons concealed about him.
PEOPLE V. MENGOTE - 210 SCRA
174
FACTS:
Information was given about three suspicious looking persons.
A
surveillance team was then deployed. Upon seeing that the men were
looking side-by-side and one holding his abdomen, the policemen
approached the group and the latter tried to run away. The suspects were
then searched wherein a handgun and fan knife was seized. It was found
later on that the handgun was part of those stolen from a house wherein a
robbery was staged.
HELD:
A person may not be stopped and frisked in broad daylight on a busy
street on mere unexplained suspicion.
MANALILI V. COURT OF APPEALS - 280 SCRA
400
FACTS:
Narcotics officers were doing surveillance and chanced upon the accused in
a cemetery who seemed to be high on drugs. He tried to resist the police
officers and upon inquiry, found that the accused was possessing what
seemed to be crushed marijuana leaves.
HELD:
A stop-and-frisk was defined as the vernacular designation of the right of a
police officer to stop a citizen on the street, interrogate him, and pat him
for weapons. It has been held as one of the exceptions to the general rule
against
searches
without
warrant.

Sec. 14. Motion to quash a search warrant or to suppress evidence;

where to file. A motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed in and acted
upon only by the court where the action has been instituted. If no
criminal action has been instituted, the motion may be filed in and
resolved by the court that issued search warrant. However, if such
court failed to resolve the motion and a criminal case is
subsequently filed in another court, the motion shall be resolved
by the latter court.

MOVES
FOR
THE
SUSPENSION
OF
THE
PRELIMINARY
INVESTIGATION. VALID AND PROPER?
No, the preliminary investigation is of different nature from
deciding on whether to grant the motion to quash the warrant
The result of one will not affect the other. One deals on probable
cause on whether there are facts and circumstances that would
engender a well-founded belief that a crime has been committed
and the accused is probably guilty thereof. The other deals on
whether the things and objects were seized legally or not.

A POLICE OFFICER WAS GRANTED TO SEARCH THE HOUSE FOR

REBEL OFFICERS.
CAN THE POLICEMAN CONDUCT A
WARRANTLESS SEARCH?
NO, the permission didnt include the room to room search and
anything confiscated will be inadmissible

NOTE: The Motion To Quash, filed in the issuing court, or to Suppress

Evidence, filed with the court trying the case, are alternative, not
cumulative remedies. If one is filed, the other can no longer be availed of.
The court first taking cognizance of the motion does so to exclusion of the
other. The proceedings thereon are subject to the omnibus motion rule
and the rule against forum shopping.

IF AN OBJECT HAS BEEN SEIZED UPON ORDERS OF THE COURT,

MAY A COORDINATE COURT ISSUE A REPLEVIN ORDER FOR THE
RELEASE OF THE OBJECT?
No, only the court that ordered its confiscation may release the
object
IF THE ARRESTED PERSON SIGNS THE RECEIPT OF THE PROPERTY
SEIZED WITHOUT THE ASSISTANCE OF COUNSEL, IS THE RECEIPT
ADMISSIBLE?
No, because it was done without assistance of counsel
WHAT
TEST?

IS

THE

MULTI-FACTOR

BALANCING

It requires officers to weigh the manner and intensity of the

interference of the right of the people, the gravity of the crime
committed, and the circumstances attending the incident.

WHERE SHOULD ONE FILE THE NOTION TO QUASH WARRANT OR

TO SUPPRESS EVIDENCE?
1. In the court where the action has been instituted
2. If no criminal action has been filed, in the court that issued the
warrant
3. However, if said court failed to resolve the motion and a criminal
case is subsequently filed in another court, the motion shall be
filed in the latter court
A MOTION TO QUASH WAS FILED IN THE COURT WHERE THE
CRIMINAL ACTION WAS FILED.
DURING THIS TIME, THE
PRELIMINARY INVESTIGATION WAS ONGOING.
THE ACCUSED

WHAT IS THE TOTAL EXCLUSIONARY

RULE?
Things and objects seized in violation of the right against
unreasonable searches and seizures are fruits of the poisonous
tree and are inadmissible as evidence
RULE 127 - PROVISIONAL REMEDIES IN CRIMINAL CASES
Section 1. Availability of provisional remedies. The
provisional
remedies in civil actions, insofar as they are applicable, may be
availed of in connection with the civil action deemed instituted
with the criminal action.
Sec. 2. Attachment. 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 security
for the satisfaction of any judgment that may be recovered from
the accused in the following cases:
(a) When the
Philippines;

accused

is

about

to

abscond

from

the

(b) When the criminal action is based on a claim for money or

property embezzled or fraudulently misapplied or converted to the
use of the accused who is a public officer, officer of a corporation,
attorney, factor, broker, agent or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;

CRIMINAL PROCEDURE NOTES (JUSTICE SABIO)

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1 2 0 1 2 0 1 2 0 of
(c) When the accused has concealed, removed, or disposed of his
property, or is about to do so; and
(d) When
Philippines.

the

accused

resides

outside

the

WHEN CAN THE OFFENDED PARTY HAVE THE PROPERTY OF THE

ACCUSED ATTACH WHEN A CIVIL ACTION IS INSTITUTED WITH
THE CRIMINAL ACTION?
When the accused is about to abscond from the Philippines;
When the criminal action is based on a claim for money or
property embezzled or fraudulently misapplied or converted to the
use of the accused who is a public officer, officer of a corporation,
attorney, factor, broker, agent or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
When the accused has concealed, removed, or disposed of his
property, or is about to do so; and
When the accused resides outside the Philippines.

NO TE S