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PRELIMINARIES
1. Jurisdiction is determined by the extent of the penalty
which the law imposes, on the basis of the facts as recited
in the complaint or information constitutive of the offense
charged.
• Not determined by:
 what may be meted out to the offender after
trial
 the result of the evidence that would be
presented during the trial
• Jurisdiction is retained regardless of:
 whether the evidence proves a lesser offense
than that charged in the information,
 the subsequent happening of events,
although of a character which would have
prevented jurisdiction from attaching in the
first instance.
2. General Rule: Jurisdiction of a court to try criminal action
is to be determined by the law at the time of the institution of
the action.
• Exception: where the statute expressly provides, or is
construed that it is intended to operate to actions
pending before its enactment, in which case, the court
where the criminal action is pending is ousted of
jurisdiction and the pending action will have to be
transferred to the other tribunal which will continue
the proceeding.
3. Venue is jurisdictional.
• Thus: Action must be instituted and tried in the
municipality or territory where the offense has been
committed or where any one of the essential
ingredients thereof took place.
4. General Rule: the question of jurisdiction may be raised at
any stage of the proceedings.
• Exception: may not be raised for the first time on
appeal, where there has been estoppel and laches on
the party who raises the question.
RULE 110 PROSECUTION OF OFFENSES
Institution of Criminal Actions
1. For offenses which require preliminary investigation:
• By filing the complaint with the proper officer for
preliminary investigation.
 Refers to a complaint-affidavit, and is different
from the complaint defined in Section 3 of Rule
110.
 These offenses are those where the penalty
prescribed by law is at least 4 years, 2 months
and 1 day of imprisonment without regard to the
fine.
2. For all other offenses, or for offenses which are
penalized by law with lower than at least 4 years, 2 months
and 1 day without regard to the fine:
• Instituted directly with the MTC and MCTC, or the
complaint is filed with the Office of the Prosecutor.
• In Manila and other chartered cities, the complaint
shall be filed with the Office of the Prosecutor unless
otherwise provided in their charters.
3. Take Note: A complaint for offenses cognizable by the
RTC is NOT filed directly with the RTC either for purposes of
preliminary investigation or for commencement of the
criminal prosecution.
4. The institution of the criminal action interrupts the
running of the period of prescription of the offense
charged
• Unless: otherwise provided in special laws.
• Act No. 3323 governs the prescriptive periods of
violations of special laws, or offenses other than
those penalized under the Revised Penal Code.
5. The filing of a complaint for purposes of preliminary
investigation starts the prosecution process.
The complaint or information
1. Requisites:
• in writing
• in the name of the People of the Philippines
• Against all persons who appear to be responsible for
the offense involved.
2. Who is the real offended party? The People of the
Philippines, but since the crime is also an outrage against the
offended party, he is entitled to intervene in its prosecution in
cases where the civil action is impliedly instituted therein.
Complaint
1. Definition: 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.
2. The complaint as defined under Section 3 is different from
the complaint filed with the Prosecutor’s Office.
3. The complaint filed with the Prosecutor’s Office, from
which the latter may initiate a preliminary investigation,
refers to:
• any written complaint
• filed by an offended party or not
• not necessarily under oath, except in 2 instances:
 complaint for commission of an offense which
cannot be prosecuted de officio or is private in
nature
 where the law requires that it is to be started by a
complaint sworn to by the offended party, or
when it pertains to those which need to be
enforced by specified public officers.
4. Under the Rule on Summary Procedure:
• a complaint may be directly filed in the MTC,
provided that in Metro Manila and in chartered cities,
the criminal action may only be commenced by the
filing of information, which means by the prosecutor,
except when the offense cannot be prosecuted de
officio as in private crimes.
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Information
1. Definition: An accusation in writing a person with an
offense, subscribed by the prosecutor and filed with the court.
2. How is an Information different from a Complaint?
Unlike a complaint, which requires that it be under oath and is
filed either in the MTC or with the provincial/city prosecutor’s
office, the information does not have to be under oath and is
always filed in court. All that is required is that it be
subscribed or signed by the fiscal or prosecutor, which is an
indispensable requirement.
Who must prosecute criminal actions
1. May a criminal prosecution be restrained by injunction?
• General Rule: No.
• Reason: Public interest requires that criminal acts be
immediately investigated and prosecuted for the
protection of society.
• Exceptions:
 where injunction is justified by the necessity
to afford protection to the constitutional
rights of the accused
 when necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions
 when there is a prejudicial question which is
sub judice
 when the acts of the officer are without or in
excess of authority
 where the prosecution is under an invalid
law, ordinance or regulation
 when double jeopardy is clearly apparent
 where the court has no jurisdiction over the
offense
 where it is a case of persecution rather than
prosecution
 where the charges are manifestly false and
motivated by the lust for vengeance
 when there is clearly no prima facie case
against the accused and the motion to quash
on that ground has been denied
 preliminary injunction has been issued by
the Supreme Court to prevent the threatened
unlawful arrest of petitioners.
2. Prior to the filing of the information in court, the prosecutor
has full control of the case. He decides who should be
charged in court and who should be excluded from the
information.
• However: His decision on the matter is subject to
review by:
 the Secretary of Justice who exercises
supervision and control over his actions and
who may sustain, modify or set aside his
resolution on the matter
 in appropriate cases, by the courts when he
acts with grave abuse of discretion
amounting to lack of jurisdiction.
3. Private Prosecutor Participation:
• May a public prosecutor allow a private prosecutor
to actively handle the conduct of the trial? Yes,
where the civil action arising from the crime is
deemed instituted in the criminal action.
• Public Prosecutor must be present during the
proceedings and must take over the conduct of the
trial from the private prosecutor at any time the cause
of the prosecution may be adversely affected.
 Thus, where the prosecutor has turned over
the active conduct of the trial to the private
prosecutor who presented testimonial
evidence even when the public prosecutor
was absent during the trial, the evidence
presented could not be considered valid
evidence of the People.
 However: this rule applies only to courts
which are provided by law with prosecutors,
and not to municipal courts which have no
trial prosecutors, in which case the evidence
presented by the private prosecutor can be
considered as evidence for the People.
*However, under an amendment made by the SC
effective May 1, 2002, Rule 110 Section 5 now provides that
“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 the end even in the absence of a public prosecutor,
unless the authority is revoked or otherwise withdrawn."
4. General Rule: In appeals, the Sol. Gen. has control. He
may abandon or discontinue the prosecution of the case in the
exercise of his sound discretion and may even recommend the
acquittal of an accused when he believes that the evidence
does not warrant his conviction.
• Exception: provided for in RA 8249 which states in
part that “in all cases elevated to the Sandiganbayan
and from the SB to the SC, the Office of the
Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in
cases filed pursuant to EO Nos. 1, 2, 14 and 14-A,
issued in 1986.”
5. When it is said that the requirement of Art. 344 of RPC is
jurisdictional, what is meant is that it is the complaint that
starts the prosecutory proceeding. It is not the complaint
which confers jurisdiction on the court to try the case.
6. Once the complaint is filed, does death of the
complainant in a crime of adultery extinguish the criminal
liability of the accused? No. The participation of the
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offended party in private crimes is essential not for the
maintenance of the criminal action but solely for the initiation
thereof. Any pardon given by the complainant or her death
after the filing of the complaint would not deprive the court of
the jurisdiction to try the case.
7. The desistance of complainant:
• Does not bar the People from prosecuting the
criminal action
• But: it does operate as a waiver of the right to pursue
civil indemnity.
Sufficiency of complaint or information
1. A complaint is sufficient if it states:
• the name of the accused
• the designation of the offense by a statute
• the acts or omission complained of as constituting the
offense
• the name of the offended party
• the approximate time of the commission of the
offense
• the place where the offense was committed.
2. Purpose: to safeguard the constitutional right of an accused
to be informed of the nature and cause of the accusation
against him.
Name of the accused
1. If name is known: the name and surname of the accused or
any appellation or nickname by which he has been or is
known.
2. If name cannot be ascertained: a fictitious name with a
statement that his true name is unknown.
• If true name thereafter disclosed: such true name
shall be inserted in the complaint or information and
record.
3. While one or more persons, along with specified and named
accused, may be sued as “John Does,” an information against
all accused described as “John Does” is void, and an arrest
warrant against them is also void.
Designation of the offense
1. In case of a conflict between the designation of the crime
and the recital of facts constituting the offense, the latter
prevails over the former.
2. The real question is not, did he commit a crime given in the
law some technical and specific name, but did he perform the
acts alleged in the body of the information. If he did, it is of
no consequence to him, either as a matter of procedure or of
substantive right, how the law denominates the crime.
Cause of accusation
1. If one or more elements of the offense have not been
alleged in the information, the accused cannot be convicted of
the offense charged, even if the missing elements have been
proved during the trial.
• Even the accused’s entering a plea of guilty to such
defective information will not cure the defect, nor
justify his conviction of the offense charged.
2. Important: The new rule requires that the qualifying and
aggravating circumstances be alleged in the information.
3. Where the law alleged to have been violated:
• prohibits generally acts therein defined
• is intended to apply to all persons indiscriminately,
• but prescribes certain limitations or exceptions from
its violation
the information is sufficient if it alleges facts which the
offender did as constituting a violation of law, without
explicitly negating the exception, as the exception is a matter
of defense which the accused has to prove.
4. Where the law alleged to have been violated…
• applies only to specific classes of persons and special
conditions
• the exemptions from its violation are so incorporated
in the language defining the crime that the ingredients
of the offense cannot be accurately and clearly set
forth if the exemption is omitted,
the information must show that the accused does not fall
within the exemptions.
5. Where what is alleged in the information is a complex
crime and the evidence fails to support the charge as to one of
the component offenses, the defendant can only be convicted
of the offense proven.
Place of commission of the offense
May conviction be had even if it appears that the crime
was committed not at the place alleged in the information?
Yes, provided the place of actual commission was within the
jurisdiction of the court.
• Unless: the particular place of commission is an
essential element of the offense charged.
Date of the commission of the offense
What is the determinative factor in the resolution of the
question involving a variance between the allegation and
proof in respect of the date of the crime? The element of
surprise on the part of the accused and his inability to defend
himself properly.
Name of the offended party
To constitute larceny, robbery, embezzlement, obtaining
money by false pretenses, malicious mischief, etc., the
property obtained must be that of another person, and
indictment for such offense must name the owner and a
variance in this respect between the indictment and the proof
will be fatal.
Duplicity of the offense
1. Waiver:
• When the accused fails, before arraignment, to move
for the quashal of the information which charges 2 or
more offenses, he thereby waives the objection and
may be found guilty of as many offenses as those
charged and proved during the trial.
2. Where the law with respect to an offense may be committed
in any of the different modes provided by law, the indictment
in the information is sufficient if the offense is alleged to have
been committed in one, two or more modes specified therein.
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The various ways of committing the offense should be
considered as a description of only one offense and the
information cannot be dismissed on the ground of
multifariousness.
3. Exceptions to the rule on duplicity: continuous crimes and
complex crimes
Amendment or substitution
1. Before the accused enters his plea, the prosecutor may:
• upgrade the offense
• allege qualifying and aggravating circumstances or
• change the offense charged
without leave of court, provided there is evidence thereon
which has been presented during the preliminary
investigation.
2. However, prosecutor cannot:
• downgrade the offense charged
• exclude from the information a co-accused
without filing a motion to that effect, with notice to the
offended party, and subject to the approval of the court. The
court shall state the reasons in resolving the motion and
copies thereof furnished all parties, especially the offended
party.
3. Technically, paragraph 2 of Section 14 does not refer to
amendment, but to substitution of the complaint or
information by a new one. If the substitution is made before
the accused enters his plea, the question of double jeopardy
does not arise. If the filing of new information is done after
the plea and before judgment on the ground that there has been
a mistake in charging the proper offense, the filing thereof
may only be allowed if it will not place the accused twice in
jeopardy.
4. Test as to whether a defendant is prejudiced by an
amendment:
• whether a defense under the information as it
originally stood would be available after the
amendment is made, and
• whether any evidence defendant might have would
be equally applicable to the information in the new
form as in the other.
5. General Rule: after arraignment, the prosecutor may no
longer amend the information which changes the nature of the
crime, as it will prejudice the substantial rights of the accused.
• Exception: when a fact supervenes which changes
the nature of the crime charged in the information or
upgrades it to a higher crime, the prosecutor, with
leave of court, may amend the information to allege
such supervening fact and upgrade the crime charged
to the higher crime brought about by such
supervening fact.
• However: if the supervening event which changes the
nature of the crime to a more serious one occurred
after the accused has been convicted, which makes
the amendment of the information no longer the
remedy of the prosecution, the prosecution can and
should charge the accused for such more serious
crime, without placing the accused in double
jeopardy, there being no identity of the offense
charged in the first information and in the second
one.
6. Section 14 applies only to original case and not to appealed
case.
Place where action is to be instituted
1. Venue in criminal case is jurisdictional, being an essential
element of jurisdiction.
2. General Rule: Penal laws are territorial; hence Philippine
courts have no jurisdiction over crimes committed outside the
Philippines.
• Exceptions: those provided in Article 2 of the
Revised Penal Code. Those who commit any of the
crimes contemplated therein can be tried by
Philippine courts.
Intervention of the offended party in criminal action
1. Where the offended party withdrew a reservation to file a
separate civil action, the private prosecutor may still intervene
in the prosecution of the criminal case, by conducting the
examination of witnesses under the control of the prosecutor.
• However: once the offended party has filed a
separate civil action arising from the crime, he may
not withdraw such civil case in order to intervene in
the criminal prosecution. He loses the right to
intervene. He no longer has any standing in the
criminal case, except to be a prosecution witness.
2. Where a criminal action has been provisionally
dismissed upon motion of the prosecutor, can the case be
revived upon motion of the offended party? No, because the
offended party or complaining witness cannot act for the
prosecutor.
RULE 111 PROSECUTION OF CIVIL ACTION
Institution of criminal and civil actions
1. General Rule: the institution or filing of the criminal action
includes the institution therein of the civil action for recovery
of civil liability arising from the offense charged.
• Except in the following instances:
 the offended party waives the civil action;
 he reserves his right to institute the civil
action separately; or
 he institutes the civil action prior to the
criminal action.
2. The employer may not be held civilly liable for quasi-delict
in the criminal action as ruled in Maniago v. Court of Appeals
since quasi-delict is not deemed instituted with the criminal.
If at all, the only civil liability of the employer in the criminal
action would be his subsidiary liability under the Revised
Penal Code.
3. Two instances where no reservation shall be allowed:
• a criminal action for violation of BP 22
 unless a separate civil action has been filed
before the institution of the criminal action,
no such civil action can be instituted after
the criminal action has been filed as the
same has been included therein.
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• A claim arising from an offense which is cognizable
by the Sandiganbayan.
 a civil action filed prior to the criminal
action has to be transferred to the
subsequently filed criminal action for joint
hearing (Sec. 4 of PD1606 as amended by
RA 8249)
4. When the reservation of the right to institute the
separate civil actions shall be made: before the prosecution
starts to present its evidence and under circumstances
affording the offended party a reasonable opportunity to make
such a reservation.
5. The rule requiring reservation to file a separate civil action
does not apply to civil actions which can be filed and
prosecuted independently of the criminal action, namely, those
provided in Arts. 32, 33, 34 and 2176 of the Civil Code.
6. Although the criminal and civil actions may be joined in the
criminal case, they are distinct from each other. The plaintiffs
in the two actions are different.
• Thus: even if the accused started serving his sentence
within the 15-day period from the promulgation of
the judgment of conviction by the lower court,
thereby making the judgment against him final, the
complainant may, within the 15-day reglementary
period, still ask that the civil liability be fixed by the
court, if the judgment does not adjudicate any civil
liability, as the judgment regarding civil liability has
not become final and the court still has jurisdiction to
adjudge the civil liability.
7. Rules on Filing Fees:
• No filing fees are required for amounts of actual
damages.
 Exception: criminal action for violation of
BP 22 which is deemed to include the
corresponding civil action. The offended
party shall, upon the filing of the criminal
and civil actions, pay in full the filing fees
based on the face value of the check as the
actual damages.
 Purpose of Exception: to prevent the
offended party from using the prosecutor’s
office and the court as vehicles for recovery
of the face value of the check, without
paying the corresponding filing fees
therefor.
• With respect to damages other than actual, if these
damages are specified in the complaint or
information, the corresponding filing fees should be
paid, otherwise, the trial court will not acquire
jurisdiction over such other damages.
• Where moral, exemplary and other damages are not
specified in the complaint or information, the grant
and amount thereof are left to the sound discretion of
the trial court, the corresponding filing fees need not
be paid and shall simply constitute a first lien on the
judgment.
8. In an appeal of a criminal case:
• The appellate court may impose additional damages
or increase or decrease the amounts of damages upon
the accused-appellant.
• However, additional penalties cannot be imposed
upon a co-accused who did not appeal, but
modifications of the judgment beneficial to him are
considered in his favor.
9. The offended party in a criminal case may appeal the civil
aspect despite the acquittal of the accused.
Where the trial court convicted the accused, but dismissed the
civil action instituted therein, the offended party may appeal
the dismissal to the CA.
10. Compromise on civil aspect:
• The offended party may compromise the civil aspect
of a crime, provided that it must be entered before or
during the litigation, and not after final judgment. A
compromise on the civil aspect is valid even if it
turns out to be unsatisfactory either to one or both of
the parties.
11. Important!: Section 1, Rule 111 now expressly provides
that 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 subject thereof may be
litigated in a separate civil action.
• Reasons:
 the counterclaim of the accused will
unnecessarily complicate and confuse the
criminal proceedings;
 the trial court should confine itself to the
criminal aspect and the possible civil
liability of the accused arising out of the
crime.
When separate civil action is suspended
Take Note: Article 29 of the Civil Code merely emphasizes
that a civil action for damages is not precluded by the acquittal
of an accused for the same criminal act or omission. It does
not state that the remedy can be availed of only in a separate
civil action.
When civil action may proceed independently
1. Prior reservation is not necessary to file separate civil
action under Arts. 32, 33, 34 and 2176 of the Civil Code. The
phrase “which has been reserved” that has caused conflicting
rulings in the past has now been deleted.
2. Actions based on quasi-delict may be filed independently of
the criminal action regardless of the result of the criminal
action, except that a plaintiff cannot recover damages twice
for the same act or omission of the defendant.
Effect of death of the accused on civil actions
1. After arraignment and during the pendency of the
criminal action:
• General Rule: death extinguishes the civil liability
arising from delict or the offense
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• Except: where civil liability is predicated on other
sources of obligations such as law, contract, quasi-
contract and quasi-delict.
 If such civil action which survives is
impliedly instituted in the criminal action,
the legal representative or heir of the
deceased shall be substituted for the
deceased. The criminal case is reduced to a
civil action.
 However, if the civil action has been
reserved and subsequently filed or such civil
action has been instituted, when the accused
died, then such civil action will proceed and
substitution of parties shall be ordered by the
court pursuant to Sec.16 Rule 3 of the Rules
of Court.
2. Before arraignment:
• The civil action impliedly instituted in the criminal
action shall be dismissed without prejudice to the
offended party’s filing a civil action against the
administrator of the estate of the deceased.
3. Pending appeal of his conviction:
• extinguishes his criminal liability as well as the civil
liability based solely thereon.
4. Prior to final judgment:
• terminates his criminal liability and only the civil
liability directly arising from and based solely on the
offense committed.
Judgment in civil action not a bar
The judgment in civil actions based on Arts. 32, 33, 34 and
2176 absolving the defendant from civil liability does not bar
the criminal action.
Prejudicial question
1. The prejudicial question may be raised during the
preliminary investigation of the offense or in court before the
prosecution rests its case.
2. The suspension of the criminal case due to a prejudicial
question is only a procedural matter, and is subject to a waiver
by virtue of prior acts of the accused.
3. There is no prejudicial question where one case is
administrative and the other is civil.
RULE 112 PRELIMINARY INVESTIGATION
Preliminary investigation defined; when required
1. Preliminary investigation is:
• not part of the trial of the criminal action in court.
Nor is its record part of the record of the case in the
RTC.
• subject to the requirements of both substantive and
procedural due process.
 The right of an accused to a preliminary
investigation is not a constitutional but
merely a statutory right. Nonetheless, it is a
component part of due process in criminal
justice and is a substantive right.
• a personal right and may be waived expressly or by
implication.
 Lack of PI is not a ground to quash or
dismiss a complaint or information, nor does
it affect the court’s jurisdiction. When there
is no preliminary investigation, the accused
must invoke it at the first opportunity and
the court should hold in abeyance or suspend
proceedings and remand the case to the
office of the prosecutor for him to conduct
PI.
2. The refusal of the court to remand the case for PI can be
controlled by certiorari and prohibition to prevent trial.
Officers authorized to conduct preliminary investigation
1. No longer authorized to conduct PI:
• By implication, MTC judges in Manila and in
chartered cities have not been granted the authority
to conduct PI, as the officers authorized to do so are
the prosecutors.
• Judges of RTCs
2. Two types of offenses may be filed in the MTC for
preliminary investigation:
• a case cognizable by the RTC may be filed with the
MTC for PI;
• even if it is cognizable by the MTC because it is an
offense where the penalty prescribed by law is at
least 4 years 2 months and 1 day.
3. Regarding offenses falling within the original jurisdiction
of the Sandiganbayan:
• Prosecutors or municipal trial court judges
conducting PI of offenses falling within the original
jurisdiction of the Sandiganbayan shall, after their
conclusion, transmit the records and their resolutions
to the Ombudsman or his deputy for appropriate
action.
• Moreover, the prosecutor or judge cannot dismiss the
complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor file
an information with the Sandiganbayan without being
deputized by, and without prior written authority of,
the Ombudsman or his deputy.
4. Regarding election offenses:
• The exclusive jurisdiction of the Comelec to
investigate and prosecute election offenses inheres
even if the offender is a private individual or public
officer or employee, and in the latter instance,
irrespective of whether the offense is committed in
relation to his official duties or not. In other words, it
is the nature of the offense, namely, an election
offense as defined in the Omnibus Election Code and
in other election laws, and not the personality of the
offender that matters.
5. Regarding the Ombudsman:
• The power of the Ombudsman to make investigation
extends to any illegal act or omission of any public
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official, whether or not the same is committed in
relation to his office.
• Preliminary investigation by the Ombudsman is
limited to cases cognizable by the Sandiganbayan and
must be conducted pursuant to Rule 11 of the Rules
of Procedure of the Office of the Ombudsman.
• Section 4(d) of Administrative Order No. 07
disallows the filing of a motion to quash or dismiss a
complaint filed with the Ombudsman, except on the
ground of lack of jurisdiction.
• Which remedy may an aggrieved party avail of
against resolutions of the Ombudsman in criminal
or non-administrative cases? The law is silent.
Hence, appeal is not available as a remedy because
the right to appeal is a statutory privilege and may be
availed of only if there is a statute to that effect.
However, an aggrieved party is not without remedy,
as he can resort to the special civil action of certiorari
under Rule 65.
• The Ombudsman does not have the power:
 to prosecute before the Sandiganbayan any
impeachable officers with any offense which
carries with it the penalty of removal from office,
or any penalty service of which would amount to
removal from office because by constitutional
mandate, they can only be removed from office
on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or
betrayal of public trust
 to prosecute public officers or employees who
have committed election offenses.
 to file an information for an offense cognizable
by the regular courts.
6. Effect of an incomplete PI:
• does not warrant the quashal of the information
• does not affect the court’s jurisdiction or the validity
of the information.
Procedure
1. By reason of the abbreviated nature of PI, a dismissal of the
charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal.
2. The accused or respondent in a criminal prosecution may
avail himself of discovery remedies either during preliminary
investigation or when the information has already been filed in
court.
3. A motion to dismiss is now a prohibited pleading during
preliminary investigation.
4. The respondent is now required to submit counter-affidavits
and other supporting documents relied upon by him for his
defense.
5. The respondent now has the right to examine the evidence
submitted by the complainant of which he may not have been
furnished and to obtain copies thereof at his expense.
Resolution of investigating prosecutor and its review
1. After having filed the information, the prosecutor is called
upon to prosecute the case in court. It has been said that at
this stage, unlike judges who are mandated to display cold
neutrality in hearing cases, the prosecutors are not required to
divest themselves of their personal convictions and refrain
from exhibiting partiality. But while he may strike hard
blows, he is not at liberty to strike foul ones.
2. Effect of exclusion of other persons from the
information:
• If during the trial, evidence is shown that such
persons should have been charged, the fact that they
were not included in the information does not relieve
them of criminal liability, and they can be
subsequently prosecuted.
• The accused who has been charged with the offense
is not allowed to escape punishment merely because
it develops in the course of the trial that there were
other guilty participants in the crime.
• It does not vitiate the validity of the information.
Neither is the same a ground for a motion to quash.
3. Role of Secretary of Justice:
• The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from the
offended party even after the information has been
filed and the trial court has arraigned the accused.
Section 4 of DOJ 223 should be construed as merely
enjoining the Secretary of Justice to refrain, as far as
practicable, from entertaining a petition for review or
appeal from the action of the prosecutor once the
complaint or information is filed in court. If the
Secretary reverses the ruling of the prosecutor, the
latter has to file the necessary motion to dismiss the
complaint or information, the grant or denial of
which is subject to the discretion of the trial court.
4. Effect if the information is filed by someone not
authorized by law:
• The court does not acquire jurisdiction. The
accused’s failure to assert lack of authority on the
part of the prosecutor in filing the information does
not constitute a waiver thereof.
5. The prosecutor is required to resolve the complaint based on
the evidence presented by the complainant in the event that the
respondent cannot be subpoenaed or the respondent, if
subpoenaed, does not submit a counter-affidavit within the 10-
day period.
Resolution of investigating judge and its review
Non-judicial function:
• When a municipal judge conducts PI, he performs a
non-judicial function. Consequently, the findings of
the investigating judge are subject to review by the
provincial prosecutor whose findings in turn may also
be reviewed by the Secretary of Justice in appropriate
cases.
When warrant of arrest may issue
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1. Invalid: A warrant issued by the judge solely on the basis
of the report and recommendation of the investigating
prosecutor, without personally determining the existence of
probable cause by independently examining sufficient
evidence submitted by the parties during the PI
2. Effect of a finding of probable cause:
• merely binds over the suspect to stand trial. It is not
a pronouncement of guilt.
3. What the accused who believes that there is no probable
cause to hold him for trial may do:
• to file with the trial court a motion to dismiss on such
ground or for the determination of probable cause.
• if the warrant of arrest has been issued, the accused
may file a motion to quash the arrest warrant or to
recall the same on the ground of lack of probable
cause.
4. Where an information has already been filed in court,
and the Secretary of Justice reversed the prosecutor’s
finding of probable cause, what should the trial court do
upon the prosecutor’s motion to dismiss? He must make his
own assessment of the evidence and not just rely on the
conclusion of the prosecutor, otherwise the court becomes a
mere rubber stamp.
5. Regarding reinvestigation:
• Once the complaint or information is filed in court,
any motion for reinvestigation is addressed to the
sound discretion of the court.
• While the trial court judge has the power to order the
reinvestigation of the case by the prosecutor, he may
not, before the prosecutor concluded the
reinvestigation, recall said order, set the case for
arraignment and trial, without gravely abusing his
discretion.
6. Municipal judge may issue arrest warrant before
conclusion of preliminary investigation if:
• he finds that probable cause exists and
• there is a necessity of placing respondent under
immediate custody.
7. Important: The rule is now that the investigating judge’s
power to order the arrest of the accused is limited to instances
in which there is a necessity for placing him in custody in
order not to frustrate the ends of justice. Thus, even if the
judge finds probable cause, he cannot, on such ground alone,
issue a warrant of arrest. He must further find there is a
necessity of placing the accused under immediate custody in
order not to frustrate the ends of justice.
8. The investigating judge has no power to reduce or
change the crime charged in order to justify the grant of
bail to the accused. The power belongs to the prosecutor.
9. After the conclusion of his PI, the judge has to transmit to
the provincial prosecutor his resolution and entire records of
the case, regardless of whether he finds a probable cause or
sufficient ground to issue a warrant of arrest.
When accused lawfully arrested without warrant
1. General Rule: No complaint or information shall be filed
for an offense which is penalized by imprisonment of not less
than 4 years, 2 months and 1 day without PI.
• Exception: when the accused has been lawfully
arrested without warrant, in which case, an inquest
must be conducted by an inquest prosecutor who will
determine whether his arrest without warrant is
lawful. The inquest prosecutor may order the release
of the arrested person if he finds no sufficient ground
to hold him without prejudice to conducting further
investigation, or file complaint or information within
the period specified in Art. 125 of the RPC.
2. In case a person is arrested without a warrant, a
complaint or information may only be filed after an
inquest conducted in accordance with existing rules.
• Provided: that 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.
3. Before the filing of a complaint or information, the person
arrested without a warrant may ask for a preliminary
investigation by a proper officer, but he must sign a waiver of
the provisions of Art. 125 of the RPC.
4. If the accused allows himself to be arraigned without
asking for a preliminary investigation, he is deemed to have
waived the right to such PI.
Cases not requiring preliminary investigation nor covered
by the Rule on Summary Procedure
The respondent or accused is not entitled to preliminary
investigation in the following cases:
• cases governed by the Rules on Summary Procedure;
• cases where the punishment does not exceed 4 years
2 months and 1 day.
RULE 113 ARREST
Definition of arrest
Application of actual force, manual touching of the body,
physical restraint or formal declaration of arrest is not
required. Arrest includes submission to the custody of the
person making the arrest.
Execution of warrant
1. The judge issues a warrant of arrest in 2 instances:
• (1) Upon the filing of the information by the
prosecutor.
 In issuing this kind of warrant, the judge does
not personally examine the complainant and the
witnesses he may produce, but he merely
evaluates personally the report and supporting
documents and other evidence adduced during
the preliminary investigation and submitted to
him by the prosecutor, and if he finds probable
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REMEDIAL LAW (CRIMINAL PROCEDURE)
cause on the basis thereof he issues the warrant
for the arrest of the accused.
• (2) Upon application of a peace officer.
 In this kind of warrant, the judge must personally
examine the applicant and the witnesses he may
produce, to find out whether there exists
probable cause, otherwise the warrant issued is
null and void. He must subject the complainant
and the witnesses to searching questions. The
reason for this is there is yet no evidence on
record upon which he may determine the
existence of probable cause.
2. A warrant of arrest has no expiry date. It remains valid
until arrest is effected or the warrant is lifted.
• However, Sec. 4 of Rule 113 requires the head of
the office who applied for warrant to execute the
same within 10 days from receipt thereof and for the
arresting officer assigned to execute the same to
submit, within 10 days from the expiration of the first
10-day period, a report to the judge who issued the
warrant.
Arrest without warrant; when lawful
1. In a citizen’s arrest, the person may be arrested and
searched of his body and of his personal effects or belongings,
for dangerous weapons or anything which may be used as
proof of the commission of an offense, without need of a
search warrant.
2. Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b)
refers to hot pursuit.
3. Sec. 5(b) authorizes warrantless arrest “when an offense has
in fact just been committed.” The word “just” implies
immediacy in point of time.
4. Delivery of the detained person to the proper judicial
authorities means the filing of the complaint or information
with the municipal trial court or with the inquest fiscal or
prosecutor who shall then decide either to order the release of
the detained person or to file the corresponding information in
court.
Method of arrest by officer without warrant
1. Custodial investigation
• Involves any questioning initiated by law
enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way.
• It is only after investigation ceases to be a
general inquiry into an unsolved crime and begins to
focus on a particular suspect, the suspect is taken into
custody, and the police carries out a process of
interrogations that lends itself to eliciting
incriminating statements that the rule begins to
operate.
• Embraced in custodial investigation:
 invited for questioning
 re-enactment
• Not embraced in custodial investigation:
 police line-up
 ultraviolet ray examination
 normal audit examination by the COA of the
accountability of a public officer
2. When the threat or promise was made by, or in the presence
of, a person in authority, who has, OR is supposed by the
accused to have power or authority to fulfill the threat or
promise, the confession of the accused is inadmissible.
3. Presumption of regularity in the performance of duties:
• Does not apply during in-custody investigation, nor
can it prevail over the constitutional right of the
accused to be presumed innocent.
4. The arresting officer may be held civilly liable for damages
under Art. 32 of the Civil Code. The very nature of Art. 32 is
that the wrong may be civil or criminal. It is not necessary
that there should be malice or bad faith.
5. On Civil Procedure:
• Section 20 Rule 14 of the 1997 Rules of Civil
Procedure provides in part that the inclusion in a
motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.
• Section 8 Rule 15 provides that subject to the
provisions of Section 1 Rule 9, a motion attacking a
pleading, order, judgment or proceeding shall
include all objections then available, and all
objections not so included shall be deemed waived.
• These changes in the 1997 Rules of Civil Procedure
are applicable to criminal cases as Section 3 Rule 1
thereof provides that “these rules shall govern the
procedure to be observed in actions, civil or criminal,
and special proceedings.” Moreover, the omnibus
motion rule applies to motions to quash.
6. Section 26 of Rule 114 of the New Rules of Criminal
Procedure provides that bail is not a bar to objection on
illegal arrest, lack of or irregular preliminary
investigation. This is an abandonment of the Cojuangco, Jr.
v. Sandiganbayan ruling.
RULE 114 BAIL
Bail defined
1. Purpose:
• to honor the presumption of innocence until his guilt
is proven beyond reasonable doubt
• to enable him to prepare his defense without being
subject to punishment prior to conviction.
2. Upon assumption of the obligation of bail, the sureties
become in law the jailers of their principal.
3. As bail is intended to obtain or secure one’s provisional
liberty, the same cannot be posted before custody over him
has been acquired by the court.
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• Rationale: it discourages and prevents resort to the
pernicious practice whereby an accused could just
send another in his stead to post his bail, without
recognizing the jurisdiction of the court by his
personal appearance therein and compliance with the
requirements thereof.
Conditions of the bail; requirements
1. The surety’s liability covers all these 3 stages:
• trial
• promulgation
• the execution of the sentence.
Unless the court directs otherwise, the bail bond posted by an
accused remains in force at all stages of the case until its final
determination.
2. If the accused presents his notice of appeal, the trial court
will order the accused to be taken into custody in the absence
of a new bail bond on appeal duly approved by the court. If
the accused does not appeal, the bondsman must produce the
accused on the 15th day from promulgation of sentence for
service of sentence.
Bail, as a matter of right; exception
1. When bail is a matter of right:
• before or after conviction by the MTC
• before conviction, for all offenses punishable by
lower than reclusion perpetua
 prosecution does not have the right to
oppose or to present evidence for its denial.
2. When bail is a matter of discretion:
• before conviction, in offenses punishable by death,
reclusion perpetua or life imprisonment
• after conviction by the RTC of a non-capital offense
 prosecution is entitled to present evidence
for its denial.
3. Right to bail may be waived.
4. Bail in court-martial offenses:
 The right to bail of an accused military personnel
triable by courts-martial does not exist, as an
exception to the general rule that an accused is
entitled to bail except in a capital offense where
the evidence of guilt is strong.
 Rationale: The unique structure of the military
justifies exempting military men from the
constitutional coverage on the right to bail.
5. Notice of hearing required:
• Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given to
the prosecutor or fiscal or at least he must be asked
for his recommendation because in fixing the amount
of bail, the judge is required to take into account a
number of factors such as the applicant’s character
and reputation, forfeiture of other bonds or whether
he is a fugitive from justice.
6. Summary of the evidence for the prosecution
• The court’s order granting or refusing bail must
contain a summary of the evidence for the
prosecution, otherwise the order granting or denying
bail may be invalidated because the summary of the
evidence for the prosecution which contains the
judge’s evaluation of the evidence may be considered
as an aspect of procedural due process for both the
prosecution and the defense.
7. It would be premature, not to say incongruous, to file a
petition for bail for someone whose freedom has yet to be
curtailed.
Bail, when discretionary
1. Not entitled to bail:
• An accused who has been convicted of an offense
which carries a penalty of more than 20 years is not
entitled to bail during the pendency of his appeal.
• An accused who is convicted of a capital offense is
no longer entitled to bail on appeal since his
conviction imports that the evidence of guilt is
strong.
2. Trial court may grant bail before appeal is perfected
• Whether bail is a matter of right or discretion, the
trial court may grant bail and approve the amount of
the bail bond before the accused has perfected his
appeal, appeal being perfected upon filing of a
written notice of appeal and furnishing the adverse
party copy thereof.
• However 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 with and resolved by the appellate court.
• Even if there is no notice of appeal, if the decision of
the TC convicting the accused changed the nature of
the offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved by the appellate court.
3. After appeal is perfected, the trial court loses
jurisdiction to grant bail and to approve bail bond.
• However, the accused may apply for bail or
provisional liberty with the appellate court.
Capital offense defined
The capital nature of an offense is determined by the penalty
prescribed by law, and not by the penalty that may be imposed
after trial and on the basis of the evidence adduced and the
presence of aggravating or mitigating circumstance.
Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable
1. Distinction between life imprisonment and reclusion
perpetua, insofar as bail is concerned, is not important.
• Why? because in both cases, the grant of bail before
conviction by the trial court is a matter of discretion
when evidence of guilt is strong.
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REMEDIAL LAW (CRIMINAL PROCEDURE)
2. The constitutional mandate makes the grant or denial of
bail in capital offenses hinge on the issue of whether or not
the evidence of guilt is strong.
3. Meaning of “conviction”
• The word “conviction” in Section 13, Article III of
the 1987 Constitution refers to conviction by the trial
court, which has not become final, as the accused still
has the right to appeal. After conviction by the trial
court, the accused convicted of a capital offense is no
longer entitled to bail, and can only be released when
the conviction is reversed by the appellate court.
Burden of proof in bail application
1. “Evidence of guilt” in the Constitution and the Rules refers
to a finding of innocence or culpability, regardless of the
modifying circumstances.
2. Regarding minors charged with a capital offense:
• If the person charged with a capital offense, such as
murder, admittedly a minor, which would entitle him,
if convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to flee.
This reason does not hold where the accused has been
established without objection to be minor who by law
cannot be sentenced to death.
3. Duty of judge to conduct hearing:
• Where the prosecution agrees with the accused’s
application for bail or foregoes the introduction of
evidence, the court must nonetheless set the
application for hearing.
• It is mandatory for the judge to conduct a hearing
and ask searching and clarificatory questions for the
purpose of determining the existence of strong
evidence against the accused; and the order, after
such hearing, should make a finding that the evidence
against the accused is strong.
Corporate surety
The term of the bail bond is not dependent upon faithful
payment of the bond premium.
Justification of sureties
Before accepting a surety or bail bond, the following
requisites must be complied with:
• photographs of the accused;
• affidavit of justification;
• clearance from the Supreme Court;
• certificate of compliance with Circular No. 66 dated
September 19, 1996;
• authority of the agent; and
• current certificate of authority issued by the
Insurance Commissioner with a financial statement
showing the maximum underwriting capacity of the
surety company.
Deposit of cash as bail
The trial judge has no authority to strictly require that only
cash bond, instead of a surety bond, be deposited for the
provisional release of the accused.
Recognizance
1. The release of the accused may be on his own recognizance,
which means that he has become his own jailer. It may be to a
responsible person. Persons charged with offenses falling
under the Rule on Summary Procedure may be released either
“on bail or on recognizance of a responsible citizen acceptable
to the court.”
2. In Espiritu v. Jovellanos (280 SCRA 579, 1997), the Court
held that the release on recognizance of any person under
detention may be ordered only by a court and only in the
following cases:
• when the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or P2000 fine, under the
circumstances provided in RA No. 6036
• where a person has been in custody for a period equal
to or more than the minimum of the imposable
principal penalty, without application of the
Indeterminate Sentence Law or any modifying
circumstance, in which case the court, in its
discretion, may allow his release on his own
recognizance
• where the accused has applied for probation, pending
resolution of the case but no bail was filed or the
accused is incapable of filing one
• in case of a youthful offender held for physical and
mental examination, trial, or appeal, if he is unable to
furnish bail and under circumstances envisaged in PD
No. 603 as amended.
Bail, where filed
A judge presiding in one branch has no power to grant bail to
an accused who is being tried in another branch presided by
another judge who is not absent or unavailable, and his act of
releasing him on bail constitutes ignorance of law which
subjects him to disciplinary sanction.
Forfeiture of bail
1. When bail bond forfeited:
• only in instances where the presence of the accused is
specifically required by the court or the Rules of
Court and, despite due notice to the bondsmen to
produce him before the court on a given date, the
accused fails to appear in person as so required.
2. To justify exemption from liability on a bail bond or
reduction thereof, two requisites must be satisfied:
• production or surrender of the person of the accused
within 30 days from notice of the order of the court to
produce the body of the accused or giving reasons for
its non-production
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• satisfactory explanations for the non-appearance of
the accused when first required by the trial court to
appear.
 Compliance with the first requisite without
meeting the second requisite will not justify non-
forfeiture of a bail bond or reduction of liability.
Arrest of accused out on bail
1. The bondsmen who put the bail bond for the accused
become the jailers and they or the police officer to whom
authority is endorsed may arrest the accused for the purpose of
surrendering him to the court. The accused cannot leave the
country without the permission of the bondsmen and the court.
2. Regarding hold-departure orders:
• Supreme Court Circular No. 39-97 dated June 19,
1997 limits the authority to issue hold departure
orders to the RTCs in criminal cases within their
exclusive jurisdiction. Consequently, MTC judges
have no authority to issue hold-departure orders,
following the maxim, express mention implies the
exclusion. Neither does he have authority to cancel
one which he issued.
No bail after final judgment; exception
General Rule: no bail shall be allowed after the judgment has
become final, as what is left is for him to serve the sentence.
• Exception: when he has applied for probation before
commencing to serve sentence, the penalty and the
offense being within the purview of the Probation
Law.
• Exception to the exception: the accused shall not be
allowed to be released on bail after he has
commenced to serve his sentence.
Bail is not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation
Important: An application for 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 observe
the matter as early as practicable but not later than the start of
the trial of the case.
RULE 115 RIGHTS OF ACCUSED
Rights of the accused at the trial
1. Is the constitutional presumption of innocence violated
by the presumption of guilt established by law arising from
certain facts proved and by shifting to the accused the
burden of proof to show his innocence? No. The state
having the right to declare what acts are criminal, within
certain defined limitations, has a right to specify what act or
acts shall constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt. The constitutional
presumption of innocence will not apply as long as there is
some rational connection between the fact proved and the
ultimate fact presumed, and the inference of one fact from
proof of another shall not be so unreasonable as to be purely
arbitrary.
2. Equipoise rule:
• If the inculpatory facts and circumstances are capable
of two or more explanations, one of which is
consistent with the innocence of the accused and the
other with his guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to
support a conviction of the accused. Hence, where
the evidence of the parties in a criminal case are
evenly balanced, the constitutional presumption of
innocence should tilt the scales in favor of the
accused and he must be acquitted.
3. If the judgment of conviction had become final and
executory, it may still be recalled, and the accused afforded
the opportunity to be heard by counsel, where he has been
denied the right to counsel during the hearing.
4. Where an accused was represented in the RTC by a person
who claimed to be a lawyer and was thereafter convicted, but
it was later discovered that his counsel was not really a lawyer,
he is entitled to have his conviction set aside and a new trial
undertaken.
5. Transactional and Use immunity distinguished:
• Transactional immunity is broader in the scope of its
application. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of
the act or transaction.
• In contrast, by the grant of use-and-derivative-use
immunity, a witness is only assured that his or her
particular testimony and evidence derived from it will
not be used against him or her in a subsequent
prosecution.
6. The right against self-incrimination is a protection only
against testimonial compulsion.
7. The accused’s right to meet the witnesses face to face is
limited to proceedings before the trial court, during trial, and
not during custodial or preliminary investigation.
8. Requests by a party for the issuance of subpoenas do not
require notice to other parties to the action.
9. The sanctions of arrest and contempt in respect to
disobedience to subpoena are not applicable to a witness who
resides more than 100 kilometers from the residence to the
place where he is to testify, or if he is a detention prisoner no
permission of the court in which his case is pending was
obtained.
10. Public trial should not be confused with trial by publicity
which is proscribed.
11. Requisites for valid waiver of right:
• existence of right
• knowledge of existence thereof
• intention to relinquish such right, which must be
shown clearly and convincingly
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• where the law or the Constitution so provides, the
waiver must be with the assistance of counsel, to be
valid.
RULE 116 ARRAIGNMENT AND PLEA
Arraignment and plea; how made
1. Definition: Arraignment is the stage where the issues are
joined in criminal action and without which the proceedings
cannot advance further or, if held, will otherwise be void.
2. No trial in absentia can be validly held without first
arraigning the accused, and he cannot be arraigned
without his personal appearance in court.
3. Presence of offended party required
• The presence of the offended party is now required at
the arraignment and also to discuss the matter of
accused’s civil liability. In case the offended party
fails to appear despite due notice, the trial court may
allow the accused to plead guilty to a lower offense
with solely the conformity of the trial prosecutor.
4. Accused under preventive detention
• While RA 8493, or the Speedy Trial Act, provides
that the accused shall be arraigned within 30 days
from the time a court acquires jurisdiction over his
person, Rule 116 section 1(e) provides for a shorter
time within which an accused who is under
preventive detention should be arraigned. When an
accused is detained, his case should be raffled within
3 days from the filing of the information or complaint
against him, and the judge to whom his case is raffled
shall have him arraigned within 10 days from receipt
by the judge of the records of the case. The pre-trial
conference shall be held within 10 days after the
arraignment.
5. The arraignment shall be held within 30 days from the date
the court acquires jurisdiction over the person of the accused,
unless a shorter period is provided by special law or by SC
Circular.
• Certain laws and SC Circulars provide for a shorter
time within which the accused should be arraigned:
 RA 4908 – in criminal cases where the
complainant is about to depart from the
Philippines with no definite date of return, the
accused should be arraigned without delay and
his trial should commence within 3 days from the
arraignment and that no postponement of the
initial hearing should be granted except on the
ground of illness on the part of the accused or
other grounds beyond the control of the court.
 RA 7610 (Child Abuse Act) – the trial shall be
commenced within 3 days from arraignment
 Dangerous Drugs Law
 SC AO 104-96, i.e., heinous crimes, violations
of the Intellectual Property Rights Law – these
cases must be tried continuously until terminated
within 60 days from commencement of the trial
and to be decided within 30 days from the
submission of the case
Plea of guilty to a lesser offense
1. The new rule provides that the accused may be allowed by
the trial court to plead guilty to a lesser offense which is
necessarily included in the offense charged, and deleted the
phrase, “regardless of whether or not it is necessarily included
in the crime charged, or is cognizable by a court of lesser
jurisdiction than the trial court.”
• It should be noted, however, that the amendment did
not say that an accused may be allowed to plead to a
lesser offense only if the same is necessarily included
in the offense charged. The provision employs the
word “may,” which is permissive and implies that the
court may still allow an accused to plead guilty to a
lesser offense, even if the latter is not included in the
offense charged.
2. Consent of offended party required:
• The consent of the offended party to allowing the
accused to plead guilty to a lesser offense is
necessary. It has been held that if the plea of guilty
to a lesser offense is made without the consent of the
prosecutor and the offended party, the conviction of
the accused shall not be a bar to another prosecution
for an offense which necessarily includes the offense
charged in the former information.
3. Change of plea
• After the prosecution has rested its case, a change of
plea to a lesser offense may be granted by the judge,
with the approval of the prosecutor and the offended
party and only when the prosecution does not have
sufficient evidence to establish the guilt of the crime
charged. The judge cannot on its own grant the
change of plea.
Plea of guilty to capital offense; reception of evidence
1. An improvident plea means a plea without proper
information as to all the circumstances affecting it; based upon
a mistaken assumption or misleading information or advice.
2. Conviction in a capital offense cannot rest alone on a plea
of guilty, a free and intelligent plea. It is mandatory for the
trial court to require the prosecution to present its evidence
and, if the accused so desires, to allow him to submit his
evidence. This is so even if the accused formally manifests
that he waives presentation of evidence by the prosecution.
Plea of guilty to non-capital offense; reception of evidence,
discretionary
1. What a plea of guilty includes:
• The plea of guilty covers both the crime as well as its
attendant circumstances alleged in the complaint or
information, qualifying and/or aggravating the crime.
Such plea removes the necessity of presenting further
evidence and for all intents and purposes the case is
deemed tried on its merits and submitted for decision.
It leaves the court with no alternative but to impose
the penalty prescribed by law.
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2. Mitigating circumstances:
• The trial court may allow an accused to plead guilty
and at the same time allow him to prove other
mitigating circumstances. However, if what the
accused would prove is an exempting circumstance,
which would amount to a withdrawal of his plea of
not guilty, the trial court may not allow him to take
the witness stand.
3. If the accused is permitted to present evidence after his plea
of guilty to a non-capital offense and such shows that the
accused is not guilty of the crime charged, the accused must be
acquitted, for there is no rule which provides that simply
because the accused pleaded guilty to the charge that his
conviction automatically follows. Additional evidence
independent of the plea may be considered to convince the
judge that it was intelligently made.
Withdrawal of improvident plea of guilty
1. When it may be done:
• at any time before the judgment of conviction
becomes final.
2. Effect:
• change of the accused’s plea from guilty to that of not
guilty is the setting aside of the judgment of
conviction and the re-opening of the case for new
trial.
3. The withdrawal must at least have a rational basis. The
accused should state that he has a meritorious defense to the
charge. The motion should be set for hearing and the
prosecution heard thereon.
Time for counsel de officio to prepare
Express demand:
• Counsel for the accused must expressly demand the
right to be given reasonable time to consult with the
accused. Only when so demanded does denial
thereof constitute reversible error and a ground for
new trial.
Bill of particulars
1. Rule 12 of Civil Procedure on bill of particulars is
applicable in criminal proceedings.
2. It is not the office of the bill of particulars to:
• Supply material allegation necessary to the validity of
a pleading
• Change a cause of action or defense stated in the
pleading, or to state a cause of action or defense other
than the one stated.
• Set forth the pleader’s theory of his cause of action or
a rule of evidence on which he intends to rely
• Furnish evidentiary information whether such
information consists of evidence which the pleader
proposes to introduce or of facts which constitute a
defense or offset for the other party or which will
enable the opposite party to establish an affirmative
defense not yet pleaded.
3. The filing of a motion for bill of particulars suspends the
period to file a responsive pleading.
• If the motion is granted, the moving party has the
remaining period or at least 5 days to file his answer
from service of the bill of particulars.
• If the motion is denied, he has the same period to file
his responsive pleading from receipt of the order
denying the motion.
Suspension of arraignment
Tests to determine insanity:
• the test of cognition (which is used in this
jurisdiction) or the complete deprivation of
intelligence in committing the criminal act
• the test of volition or that there be a total deprivation
of freedom of the will.
RULE 117 MOTION TO QUASH
Time to move to quash
1. Quashal and nolle prosequi distinguished:
• The quashal of complaint or information is different
from a nolle prosequi, although both have one result,
which is the dismissal of the case.
• A nolle prosequi is initiated by the prosecutor while a
quashal of information is upon motion to quash filed
by the accused.
• A nolle prosequi is a dismissal of the criminal case by
the government before the accused is placed on trial
and before he is called to plead, with the approval of
the court in the exercise of its judicial discretion. It
partakes of the nature of a nonuser or discontinuance
in a civil suit and leaves the matter in the same
condition in which it was before the commencement
of the prosecution. It is not an acquittal; it is not a
final disposition of the case; and it does not bar a
subsequent prosecution for the same offense.
2. General Rule: A MTQ may be filed by the accused at any
time before the accused enters his plea. Thereafter, no MTQ
can be entertained by the court.
• Exception: under the circumstances mentioned in
Sec. 9, Rule 117, which adopts the omnibus motion
rule. This means that a MTQ may still be filed after
arraignment on the ground that the facts alleged in
the information charge no offense, that the offense or
penalty has prescribed, or that the doctrine of double
jeopardy precludes the filing of the information.
3. The right to file a MTQ belongs only to the accused.
There is nothing in the rules which authorizes the court or
judge to motu propio initiate a MTQ by issuing an order
requiring why the information may not be quashed on the
ground stated in said order.
Form and contents
“Factual and legal grounds” must be stated
• This provision requiring that the “factual and legal
grounds” be stated in the motion allows that facts
outside the information itself may be introduced to
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prove any of the grounds of a MTQ, enumerated in
Sec. 3. Such inquiry into outside facts may also be
allowed even when the ground invoked is that the
allegation in the information does not constitute the
offense charged.
Grounds
1. In a MTQ based on the ground that the facts alleged in
the information do not constitute the offense charged, the
trial court should limit its inquiry to:
• the averments in the information, as hypothetically
admitted;
• facts admitted by the prosecution; and
• indubitable facts.
2. Where ground for MTQ is illegal arrest:
• If the accused believes that the arrest, with or
without warrant, is illegal, he should move to quash
the information on such ground, along with other
grounds as otherwise such other grounds will be
deemed waived if not included in the MTQ, except
no offense charged, lack of jurisdiction over the
offense, prescription of offense or liability, or double
jeopardy.
3. The prosecutor who signed the information must have
territorial jurisdiction to conduct the preliminary
investigation of the offense, otherwise the information filed by
him would be invalid and can be quashed on such ground.
4. The fact that the allegations in the complaint or information
are vague or broad, is not generally a ground for a motion to
quash, the remedy being to file a motion for bill of particulars.
6. The period of prescription of violation of special laws or
offenses not penalized by the Revised Penal Code but by
special laws, and municipal ordinances is governed by Act No.
3326 which took effect on December 4, 1926.
7. Doctrine of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, 317 SCRA 272
(1999):
• If the commission of the crime is known, the
prescriptive period shall commence to run on the day
it was committed, otherwise on the date of its
discovery.
• In the very nature of things, acts made criminal by
special laws are frequently not immoral or obviously
immoral in themselves. For this reason, the
applicable statute requires that if the violation of the
special law is not known at the time, the prescriptive
period begins to run only from the discovery thereof,
that is, discovery of the unlawful nature of the
constitutive act or acts, in connection with which
there should be evidence.
8. Regarding prescriptive periods:
• Where an accused has been found to have committed
a lesser offense includible within the offense charged,
he cannot be convicted of the lesser offense if it has
already prescribed. To hold otherwise would be to
sanction the circumvention of the law on prescription
by the simple expedient of accusing the defendant of
the graver offense.
• The rule that if the last day falls on a Sunday or a
holiday, the act can still be done the following day
does not apply to the computation of the period of
prescription of a crime, in which the rule is that if the
last day in the period of prescription of a felony falls
on a Sunday or legal holiday, the information
concerning said felony cannot be filed on the next
working day, as the offense has by then already
prescribed.
• The period of a continuing crime’s prescription is
counted from the latest or last act constituting the
series of acts continuing the single crime.
• The prescriptive period of offenses penalized by
special laws and ordinances is interrupted only by
the filing of complaint or information in court. This
is without distinction as to whether the cases are
covered by the Rule on Summary Procedure.
• The period of prescription does not run when the
offender is absent from the Philippines.
9. Regarding pardon:
• Unless grounded on the person’s innocence, a pardon
by the President cannot bring back lost reputation for
honesty, integrity and fair dealing. The pardoned
offender regains his eligibility for appointment to
public office which was forfeited by reason of the
conviction of the offense. But since pardon does not
necessarily result in automatic reinstatement because
the offender has to apply for reappointment, he is not
entitled to back wages.
10. Contentious motions:
• Contentious motions in criminal cases must comply
with the requirements that they be set for hearing at a
specified date with prior notice to the adverse party
or the prosecutor at least 3 days before the hearing,
the notice of hearing should be addressed to adverse
counsel or the prosecutor, and proof of service of the
motion upon the adverse party or prosecutor at least 3
days prior to such hearing. This is mandatory.
11. Remedy of aggrieved party
• While an order granting a motion to quash, unlike a
denial thereof, is appealable, as the proper remedy,
this rule does not preclude the aggrieved party from
filing a special civil action of certiorari, as a
substitute for the remedy of a lost appeal, where there
is a patent, capricious and whimsical exercise of
discretion by a trial judge or where an appeal will not
promptly relieve the aggrieved party from the
injurious effect of the disputed order, as in the
quashal of an information for incomplete preliminary
investigation.
Amendment of complaint or information
1. An information does not charge an offense if one or more of
its essential elements have not been alleged therein. The
amendment of the information to allege the element(s) not
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stated in the information is a material amendment, but the
same can be done because the accused has not been arraigned,
nor can a dismissal of the information on such ground put the
accused twice in jeopardy.
2. A good tactical move may require that the accused should
first plead to the information and thereafter file a motion to
quash either before or after the prosecution has presented its
evidence. Pursuant to Sec. 9 of Rule 117, an accused, even
after he has entered his plea, may still move to quash the
information on the ground that it does not charge an offense.
If the case is dismissed on such ground, the prosecution may
not be permitted to correct the information because the
accused has already pleaded and to allow such amendment
may place the accused twice in jeopardy.
Former conviction or acquittal; double jeopardy
1. Double jeopardy will apply...
• …when the complaint or information is dismissed by
a court of competent jurisdiction after the prosecution
has presented its evidence even if the dismissal is in
the mistaken ground of lack of jurisdiction.
• …even if the dismissal is made with the express
consent of the accused, or upon his own motion, if it
is predicated on insufficiency of the prosecution
evidence or denial of the right to a speedy trial. In
both instances, the dismissal has the effect of
acquittal.
2. Double jeopardy will not apply…
• … in case of a conviction of a crime under a special
law, which also constitutes an offense under the
Revised Penal Code.
 Reason: the former is malum prohibitum, while
the latter is malum in se.
 Thus, it has been held that conviction for the
crime of illegal recruitment under the Labor
Code does not preclude punishment for the
offense of estafa under the RPC.
• where 2 informations are filed charging the same
accused with 2 different elements, as in the issuance
of bouncing check for estafa under the RPC and
violation of BP 22.
• where after trial of a charge of serious physical
injuries, the municipal trial court dismissed the case
to give way to the filing of a complaint for frustrated
murder, as it believed that what was proved was
frustrated murder, the dismissal was null and void
because the trial court should have rendered
judgment based on the charge alleged in the
information and the evidence adduced during the
trial. Since the dismissal was null and void, it did not
place the accused twice in jeopardy for the
continuation of the proceedings for serious physical
injuries.
• where the accused has been sentenced to suffer a
wrong penalty by the trial court, the petition for
certiorari filed by the prosecutor to correct the
penalty which should be lower than that imposed
does not place the accused twice in jeopardy because
it would shorten the penalty and is favorable to the
accused.
• where one case is administrative in nature and the
other criminal. Neither does it apply in preliminary
investigations.
Provisional dismissal
1. Important!: A trial court may not order a provisional
dismissal of the case without the express consent of the
accused and prior notice to the offended party. The trial court,
cannot, on its own, provisionally dismiss the case, nor can it
dismiss it provisionally without the express consent of the
prosecutor.
2. Important!: The provisional dismissal of offenses
punishable by imprisonment not exceeding 6 years or a fine of
any amount, or both, shall become permanent 1 year after
issuance of the order without the case having been revived.
With respect to offenses punishable by imprisonment of more
than 6 years, their provisional dismissal shall become
permanent 2 years after issuance of the order without the case
having been revived.
Failure to move to quash or to allege any ground therefor
The accused may still file a motion to dismiss the information
based on the following grounds even if he has already pleaded
not guilty:
• the information charges no offense;
• the trial court has no jurisdiction over the offense
charged;
• the penalty or the offense has been extinguished; and
• double jeopardy has attached.
RULE 118 PRE-TRIAL
1. Pre-trial Conference is mandatory in
criminal cases.
2. In such pre-trial, the following are
considered:
a. Plea bargaining
b. Stipulation of facts
c. Identification of evidence
d. Waiver of objections to
admissibility of evidence
e. Modification of order of trial if
accused admits the charge but interposes
lawful defense
f. Other matters which will promote a
fair and expeditious trial
3. What are the requisites of pre-trial
agreements and admissions (stipulation of
facts)?
a. In writing
b. Signed by the accused and counsel
• The agreements covering matters referred
to in section 1 of this Rule (plea
bargaining, etc.) need to be approved by
the court.
• The purpose of requiring the accused to
sign the stipulation of facts is to further
safeguard his rights against improvident
or unauthorized agreement or admission
which his counsel may have entered into
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without his knowledge. (People vs. Uy,
2000)
4. If the counsel for the accused or the
prosecutor does not appear at the pre-trial
and does not offer an acceptable excuse, he
may be penalized by the court.
require the presence of the accused for purposes
of identification by the witnesses which is vital for
conviction of the accused, except where he
unqualifiedly admits in open court after his
arraignment that he is the person named as
defendant in the case on trial.

5. What is a pre-trial order? It is an order Exclusions in the Computation of Time

issued by the court reciting the actions taken,
the facts stipulated and the evidence marked 1. The following periods shall not be
during the pre-trial conference. Such order included in the computation of time of
binds the parties and limits the trial to those trial:
matters not disposed of.
a. Delay resulting from other
6. What if the accused believes that the pre- proceedings concerning the accused
trial order contains mistakes or matters which including but not limited to:
were not taken up during the pre-trial? He i. Delay resulting from
must move to correct the mistake or modify physical or mental examination
the pre-trial order, otherwise, he will be ii. Delay resulting from other
deemed to have waived, and be barred from criminal proceedings against accused
questioning the same later. iii. Delay resulting from
extraordinary remedies against
RULE 119 TRIAL interlocutory orders
iv. Delay resulting from pre-
1. From the day when the accused pleads trial proceedings provided not
not guilty upon arraignment, he shall have 15 exceeding 30 days
days to prepare for trial which includes pre- v. Delay resulting from orders
trial. The trial shall commence within 30 days of inhibition or proceedings for change
from receipt of pre-trial order. of venue
vi. Delay resulting from the
2. The trial shall be continuous (day to day existence of a prejudicial question
as far as practicable) and the entire trial vii. Delay attributable to any
period shall not exceed 180 days except as period not exceeding 30 days and the
otherwise authorized by the Supreme Court. accused is under advisement

3. The trial may be postponed for a b. Delay resulting from absence or

reasonable period of time and for good cause
as may be granted by the court.
4. The trial judge does not lose jurisdiction to
try the case after the 180-day limit. He may,
however, be penalized with disciplinary
sanctions for failure to observe the prescribed
limit without proper authorization by the
Supreme Court.
Trial in Absentia
1. Requisites of Trial in Absentia (if not
present, there’s denial of due process)
a. The accused has been arraigned
b. He has been notified of the trial
c. His failure to appear is unjustified
2. The purpose of trial in absentia is to
speed up the disposition of criminal cases.
(People vs. Agbulos, 1993)
unavailability of an essential witness
c. Delay resulting from 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. Reasonable period of delay when
accused is joined for trial with co-accused
f. Delay resulting from continuance
granted by the court motu propio
Factors for Granting Continuance

3. What are the effects of trial in
absentia? The accused waives the right to
present evidence and cross-examine the
witnesses against him. (People vs. Landicho,
1996)
The accused’s waiver does not mean, however,
that the prosecution is deprived of the right to
1. Whether the failure to grant continuance
would make a continuation of the proceeding
impossible or result in a miscarriage of
justice.
2. The case, as a whole, is novel, unusual
and complex, or it is unreasonable to expect
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adequate preparation within the periods of
time established therein.
Time Limit Following an Order for New Trial
• General Rule: After an order for new trial
is issued, the trial commences within 30 days
from notice of the order.
• Exception: If the 30-day period becomes
impractical due to unavailability of the
witnesses and other factors, it may be
extended by the court but in no case should it
exceed 180 days from notice of said order for
new trial.
Public Attorney’s Duties Where Accused is Imprisoned
1. If the accused is imprisoned, the public
attorney has a duty to obtain the presence of
the prisoner for trial or cause 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. The custodian will then inform the prisoner
of the latter’s right to demand trial. If the
prisoner demands trial, the custodian should
then inform the public attorney of such
demand.
3. Upon notification, the public attorney
should then seek to obtain the presence of
the prisoner for trial.
Sanctions Imposed on Private Counsel, Public Attorney or
the Prosecutor
• Acts which will evoke the sanctions:
1. Knowingly allowing the case to be set
on trial without disclosing that a
necessary witness would be
unavailable;
2. Files a motion solely for delay,
knowing it to be frivolous and without
merit;
3. Knowingly makes a false statement in
order to obtain continuance;
4. Willfully fails to proceed to
without justification.
• The Sanctions:
1. Private Defense Counsel – fine
not exceeding P20, 000 + criminal
sanctions, if any.
2. Counsel de officio, Public
Attorney or Prosecutor – fine not
exceeding P5, 000 + criminal
sanctions, if any.
3. Defense Counsel or Prosecutor
– denial of the right to practice before
the court trying the case for a period
not exceeding 30 days + criminal
sanctions, if any.
• The sanctions are designed to speed up
the trial and disposition of the cases and
to encourage the lawyers to go to court
ready for trial and not “ready to
postpone.”
Speedy Trial
1. The accused should be brought to trial within
30 days from the date the court acquires
jurisdiction over the person of the accused
(Rule 116, Section 1g). If he is not brought to
trial within the period specified, he may quash
the information on the ground of denial of his
right to speedy trial. Failure to move for
dismissal prior to trial shall constitute a
waiver of the right to dismiss under Section 9,
Rule 120.
2. Arraignment must be set within 30 days
from the date the court acquires jurisdiction
over the person of the accused, and within
the same period, the court must set the case
for pre-trial, and within 30 days from the
receipt of the pre-trial order, the trial must be
commenced.
Order of Trial
1. Order of Trial
• Prosecution presents evidence to prove
the charge and, in the proper case, the
civil liability.
• The accused presents evidence to prove
his defense and damages, if any.
• The prosecution, then the defense, may
present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice,
permits them to present additional
evidence.
• Upon admission of the evidence by the
parties, the case is deemed submitted for
decision.
trial
2. The order of the trial may be modified, at the
discretion of the judge, if the accused admits
the act or omission charged in the complaint
or information but interposes a lawful
defense.
3. The order of trial is intended to safeguard the
right of the accused to be presumed innocent
until the contrary is proved.
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4. The accused has the right to demand from
the prosecution the list of prosecution
witnesses, but the prosecution may call
witnesses other than as listed even when the
latter heard the testimonies of other
witnesses. Furthermore, the prosecution has
the discretion to choose the order of its
witnesses.
5. Due Process
• The prosecution is entitled to due
process. This means that it must be
allowed to completely present its
evidence.
• Pervasive and prejudicial publicity may
deprive an accused of his right to a fair
trial. To warrant such a finding, however,
there must be allegation and proof that
the judge has been unduly influenced.
• Judges must not only be impartial, but
must also appear impartial. However, this
does not mean that the judge must
remain passive during the proceedings.
It’s the judge’s prerogative and duty to
ask clarificatory questions to ferret out the
truth.
6. Undue Interference
• There is undue interference by the
judge if he propounds questions to the
witnesses which will have the effect of or
will tend to build or bolster the case for
one of the parties.
Application for Examination of Witness for
Accused Before Trial
• The accused may have witnesses
conditionally examined in his behalf. The
motion shall state:
 Name and residence of the witness
 Substance of his testimony
 The witness is sick and cannot
attend trial or he resides more than
100 km from the place of trial and
has no means to attend the same
• The motion should be supported by
affidavit of the accused and such other
evidence as the court may require.
Examination of Defense Witnesses
Deposition
• Definition: Deposition is the
testimony of a witness taken upon oral
questions or written interrogatories, in
open court, but in pursuance of a
commission to take testimony issued by a
court, or under a general law or court rule
on the subject, and reduced to writing and
duly authenticated, and intended to be
used in preparation and upon the trial of a
civil or criminal prosecution.
• Purpose: The purpose of taking
depositions are to:
i. Greater assistance to the
parties in ascertaining the
truth and checking and
preventing perjury
ii. Provide an effective means
of detecting and exposing
false, fraudulent claims and
defenses
iii. Make available in a simple,
convenient and inexpensive
way, facts which otherwise
could not be proved except
with greater difficulty
iv. Educate the parties in
advance of trial as to the
real value of their claims
and defenses thereby
encouraging settlements
v. Expedite litigation
vi. Prevent delay
vii. Simplify and narrow the
issues
viii. Expedite and facilitate both
preparation and trial
• The court shall issue an order directing
that the witness for the accused be
examined at a specific date, time and
place.
• The said order should be served on the
prosecutor at least 3 days before the
scheduled examination.
• Who should make the examination? The
examination should be taken before a
judge or a member of the Bar in good
standing so designated by the judge. It
may also be made before an inferior court
designated in the order of a superior
court.
Bail to Secure the Appearance of Material Witness
• If the court is satisfied upon proof
or oath that a material witness will not
testify when required, it may order the
witness to post bail in such sum as may
be deemed proper. If the witness refuses
to post bail, the court shall imprison him
until he complies or is legally discharged
after his testimony has been taken.
Examination of Witness for the Prosecution
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1. The witness for the prosecution may be
conditionally examined by the court where
the case is pending if said witness is:
• Too sick to appear at the trial; or
• Has to leave the Philippines with no
definite date of return.
2. Such examination should be in the
presence of the accused or in his absence
after reasonable notice to attend the
examination has been served on him.
3. Examination of child witnesses is
tackled under the Rule on Examination of a
Child Witness which took effect on December
15, 2000.
Joint Trial
1. When two or more defendants are jointly
charged with any offense, they shall be tried
jointly, unless the court in its discretion upon
motion of the prosecution or any of the
defendants orders a separate trial.
2. Where the conditions are fulfilled, joint
trial is automatic, without need for the trial
court to issue an order to that effect.
3. The grant of separate trial rests in the
sound discretion of the court and is not a
matter of right to the accused, especially
where it is sought after the presentation of
the evidence of the prosecution. In such
separate trial, only the accused presenting
evidence has to be present. And the
evidence to be adduced by each accused
should not be considered as evidence against
the other accused.
State Witness
1. Requisites to be a state witness:
a. Two or more persons are jointly charged
with the commission of an offense
b. The application for discharge is
filed by the prosecution before it rests its
case
c. Absolute necessity for the
testimony of the accused
d. There is no other direct evidence
available for the proper prosecution of the
offense
e. Testimony of the accused can be
substantially corroborated in its material
points
f. Accused does not appear to be the
most guilty
• Means that he does not appear to
have the highest degree of culpability
in terms of participation in the
commission of the offense and not
necessarily in the severity of the
penalty imposed.
• The fact that there was conspiracy
does not preclude one from being
discharged as a state witness. What
the court takes into account is the
gravity or nature of acts committed by
the accused to be discharged
compared to those of his co-accused,
and not merely the fact that in law the
same or equal penalty is imposable on
all of them.
g. Accused has not been convicted of
any offense involving moral turpitude.
2. The defense should be afforded
opportunity to oppose the motion to
discharge an accused to be a state witness.
3. Any question against the order of the
court to discharge an accused to be used as
state witness must be raised in the trial court;
it cannot be considered on appeal. Where
there is, however, a showing of grave abuse
of discretion, the order of the trial court may
be challenged in a petition for certiorari and
prohibition.
4. Two types of witness immunity
a. Transactional immunity –
witness can no longer be prosecuted for
any offense whatsoever arising out of the
act or transaction.
b. Use-And-Derivative-Use-
Immunity – witness is only assured that
his or her particular testimony and
evidence derived from it will not be used
against him or her in a subsequent
prosecution.
5. The discharge of an accused to be a state
witness amounts to an acquittal and is a bar
to future prosecution for the same offense.
• Where an accused
has been discharged to be utilized as
state witness and he thus testified, the
fact that the discharge was erroneous as
the conditions for discharge were not
complied with did not thereby nullify his
being precluded from re-inclusion in the
information or from being charged anew
for the same offense or for an attempt or
frustration thereof, or for crimes
necessarily included in or necessarily
including those offense.
Mistake in Charging the Proper Offense
1. When, at any time before judgment, it
becomes manifest 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 said accused shall not
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be discharged if there appears to be good
cause to detain him.
2. If there appears to be good cause to
detain the accused, the court shall commit
the accused and dismiss the original case
upon the filing of the proper information.
Appointment of Acting Prosecutor
• When a prosecutor, his assistant or
deputy is disqualified to act, the judge or the
prosecutor shall communicate with the
Secretary of Justice in order that the latter
may appoint an acting prosecutor.
Exclusion of the Public
• The public may be excluded from
the courtroom when evidence to be produced
is offensive to decency or public morals.
Consolidation of Trials of Related Offenses
1. Charges for offenses founded on the same
facts or forming part of a series of offenses or
similar character may be tried jointly at the
court’s discretion.
2. The purpose of consolidation is to avoid
multiplicity of suits, guard against oppression
or abuse, prevent delay, clear congested
dockets, simplify the work of the trial court,
and save unnecessary cost or expense; in
short, the attainment of justice with the least
expense and vexation to the parties litigant.
3. While consolidation of cases and joint trial of
related offenses and the rendition of a
consolidated decision are allowed, the court
cannot convict an accused of a complex crime
constitutive of the various crimes alleged in
the consolidated cases.
Demurrer to Evidence
1. Definition: Demurrer to evidence is an
objection by one of the parties in an action, to
the effect that the evidence which his
adversary produced is insufficient in point of
law, whether true or not, to make out a case
or sustain the issue.
2. After the prosecution shall have rested its
case, the case may be dismissed in any of the
following manner:
a. Court on its own initiative can
dismiss the case after giving prosecution
opportunity to be heard
b. Accused files demurrer with or
without leave of court
c. If the demurrer is denied:
• With leave of court,
accused can present his
evidence
• Without leave of court,
accused waives right to
present evidence
3. With or Without Leave of Court
• With leave – if the
motion is denied, he can still present
evidence
• Without leave – if the
motion is denied, he loses the right to
present evidence and the case will be
deemed submitted for decision
4. If there are two or more accused and only
one of them presents a demurrer to evidence,
without leave of court, the trial court may
defer resolution thereof until the decision is
rendered on the other accused.
5. An order denying the motion for leave of
court to file a demurer shall not be reviewable
by appeal or by certiorari before judgment.
This is because demurrer is merely
interlocutory.
Reopening of Case
• At any time before finality of judgment of
conviction, judge may, motu proprio or upon
motion, with hearing in either case reopen to
avoid miscarriage of justice.
RULE 120 JUDGMENT
Judgment
1. Definition: Adjudication by the court that
the accused is guilty or not guilty of the
offense charged and the imposition of the
proper penalty and civil liability, if any. It is a
judicial act which settles the issues, fixes the
rights and liabilities of the parties, and
determines the proceeding, and is regarded
as the sentence of the law pronounced by the
court on the action or question before it.
2. Requisites:
a. Written in official language
b. Personally and directly prepared by
the judge
c. Signed by him
d. Contains clearly and distinctly a
statement of the facts and the law upon
which it is based
• A verbal order does not
meet the requisites. As such, it can be
rescinded without prejudicing the
rights of the accused. It has no legal
force and effect.
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• Article VIII, Section 14,
par. 1 of the Constitution requires that
the decisions of the court shall contain
the facts and the law on which they
are based. The rationale is that the
losing party is entitled to know why he
lost, so he may appeal to a higher
court.
3. The judge who penned the decision need
not be the one who heard the case. The
judge can rely on the transcript of
stenographic notes taken during the trial.
Contents of Judgment
1. Legal qualification of the offense constituted
by the acts committed by the accused, and
the aggravating or mitigating circumstances
attending the commission.
2. Participation of the accused in the commission
of the offense, whether as principal,
accomplice or accessory
3. The penalty imposed upon the accused
4. Civil liability or damages caused by the
wrongful act to be recovered from the
accused by the offended party, if there is any,
unless the enforcement of the civil liability by
a separate civil action has been reserved or
waived.
Acquittal and Dismissal
1. Acquittal is a finding of not guilty based on
the merits, that is, the accused is acquitted
because the evidence does not show that his
guilt is beyond reasonable doubt, or a
dismissal of the case after the prosecution has
rested its case and upon motion of the
accused on the ground that the evidence
produced fails to show beyond doubt that the
accused is guilty.
2. Acquittal vs. Dismissal
• Acquittal is always based on the merits
while in dismissal, there is termination not
on the merits and no finding of guilt is
made either because the court is not a
court of competent jurisdiction, or the
evidence does not show that the offense
was committed within the territorial
jurisdiction of the court, or the complaint
or information is not valid or sufficient in
form and in substance.
3. Dismissal may amount to a acquittal:
a. Here the dismissal is based on a
demurrer to evidence
b. Where the dismissal is based on the
denial of the right to a speedy trial
4. Acquittal of an accused based on
reasonable ground does not bar the offended
party from filing a separate civil action based
on a quasi-delict. In fact, the court may hold
an accused civilly liable even when it acquits
him.
Judgment for Two or More Offenses
• A complaint or information must
charge only one offense. However, if the
accused does not object to the duplicity
before he enters his plea, he is deemed to
have waived the defect. He may be found
guilty for as many offenses as alleged in the
complaint or information as may have been
duly proved.
Variance Between Allegation and Proof
1. General Rule: If the prosecution proves
an offense included in the offense charged in
the information, the accused may be validly
convicted of such offense proved.
2. Exception: The general rule does not
apply where facts supervened after the filing
of the information which changes the nature
of the offense.
3. An offense charged necessarily includes
the offense proved when some of the
essential elements or ingredients of the
former constitute the latter.
4. 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.
Promulgation of Judgment
1. Definition:
Promulgation of judgment in criminal cases is
the reading of the judgment or sentence in
the presence of the accused and the judge of
the court who rendered it.
2. It is the filing of the
decision or judgment with the clerk of court
which gives it validity and binding effect.
3. General Rule:
Promulgation should be made in the presence
of the accused and the judge of the court who
rendered the decision.
4. Exception to the
Mandatory Presence of the Accused:
a. Where the
conviction is for a light offense, in which
case the accused may appear through
counsel or representative
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REMEDIAL LAW (CRIMINAL PROCEDURE)
5. If judgment is one of conviction and the
accused is absent without justifiable cause,
the court shall order his arrest and he shall
lose the remedies available in the Rules
against the judgment.
6. When the judge is
absent or outside the province or city, the
judgment may be promulgated by the clerk of
court.
7. A judgment
promulgated at a time when the judge who
rendered and signed it had ceased to hold
office is null and void.
Modification of Judgment
1. A judgment of conviction may be modified
or set aside before it becomes final or before
appeal is perfected.
2. General Rule: A judgment becomes
final:
a. after the lapse of the period for
perfecting an appeal; or
b. when the sentence has been
partially or totally satisfied or served; or
c. when the accused has waived in
writing his right to appeal; or
d. accused has applied for probation.
3. Exception: When the Death Penalty is
imposed by the trial court, the SC
automatically reviews the decision.
Probation
1. The period to file an application for
probation is after the accused shall have been
convicted by the trial court and within the
period for perfecting an appeal.
2. Probation is a mere privilege and is
revocable before final discharge of the
probationer by the court.
RULE 121 NEW TRIAL OR RECONSIDERATION
Filing of New Trial or Reconsideration
1. Filed by the accused.
2. Before final judgment of conviction or during
appeal.
Grounds for New Trial
1. Errors of law or irregularities prejudicial
to the substantial rights of the accused
a. errors of law
or irregularities committed during trial
b. errors/irregula
rities are prejudicial to the substantial
rights of the accused
The following are not considered as
irregularities:
- Loss of records (remedy is
reconstitution of missing evidence)
- Loss of stenographic notes (remedy
is reconstruction of the testimony
of the witness)
2. New and material evidence has been
discovered
a. evidence
discovered after trial
b. evidence
could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence
c. evidence is
material and would probably change the
judgment if admitted
The following are not considered as
newly discovered evidence:
- Affidavit of desistance/recantation.
- Proposed testimonies of witnesses.
- Merely forgotten evidence.
Although the Rules of Court enumerates
only the above two as the grounds for new
trial, the case of Navarra vs. CA states that
if the negligence or mistake of counsel is
so gross as to deprive the client of his
right to due process of law, the accused
may be entitled to a new trial.
Grant of a New Trial is not Appealable;
Relief
• The grant of a New Trial is not
appealable since it is not a final judgment. To
challenge such grant, a petition for certiorari
and prohibition may be filed.
Grounds for Reconsideration
1. Errors of law in the judgment
2. Errors of fact in the judgment
Form of Motion and Notice to Prosecutor
• The motion must:
a. Be in writing
b. State the grounds on which it is
based
c. Supported by affidavits of
witnesses (if based on the ground of
newly discovered evidence)
d. Be given to the prosecutor
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Effects of Granting a New Trial or Reconsideration b. when RTC exercised

appellate jurisdiction:
1. Original judgment shall be set aside. c. follow Rule 42 on Petition
for Review
2. The case shall be tried de novo and a new
judgment be rendered accordingly.  SC
1. where RTC imposes reclusion
3. When the new trial is granted on the ground perpetua or life imprisonment
of errors of law or irregularities committed a. file a Notice of Appeal with
during trial, all proceedings and evidence the RTC.
affected thereby shall be set aside and taken b. Serve a copy of the Notice
anew. The court may allow introduction of upon the adverse party
additional evidence.
2. where RTC imposes death penalty
4. When the new trial is granted on the ground a. automatic review of SC as
of newly discovered evidence, the latter shall provided by sec. 10 of Rule
be taken and considered together with the 122
evidence already in the record.
3. for CA decisions
Erroneous Acquittal; Double Jeopardy a. file an ordinary appeal
Applies b. for questions of facts and
law
c. follow Rule 42 on Petition
• The case of People vs. Hernando states
for Review
that erroneous acquittal of the accused
d. for questions of law (all
remains as the final verdict. Errors or
other appeals)
irregularities, which do not render the
e. follow Rule 45 on Petition
proceedings a nullity, will not defeat a plea of
for Review on Certiorari
antrefois acquit.
When appeal to be taken

• Appeal is taken within 15 days from

promulgation of the judgment. This period
RULE 122 APPEAL shall be suspended from the time a motion for
new trial or reconsideration is filed until notice
of overruling the motion has been served
Who may appeal
upon the accused at which time the balance
of the period begins to run.
Any party may appeal, unless accused will be
placed in double jeopardy.
Effect of appeal by any of several accused
How to Appeal
 An appeal taken by one or more of several
accused shall not affect those who did not
 To the RTC
appeal, except if the judgment is favorable
1. file a Notice of Appeal with the
and applicable to the latter.
court which rendered the judgment
2. serve a copy of the notice upon the
adverse party  The appeal of the offended party from the
civil aspect shall not affect the criminal aspect
of the judgment.
 To the CA
When RTC exercised original
jurisdiction:  Upon perfection of the appeal, the execution
of the judgment appealed from shall be
1. File a Notice of Appeal with the RTC stayed as to the appealing party.
3. Serve a copy of the notice upon the
adverse party Withdrawal of appeal

When RTC exercised appellate • The courts may allow the appellant to
jurisdiction: withdraw his appeal before the record has
been forwarded by the clerk of court to the
- Follow Rule 42 on Petition for proper appellate court, in which case the
Review judgment shall be final.

 Sandiganbayan
1. when RTC exercised original RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL
jurisdiction: COURTS
2. file a Notice of Appeal with the RTC
a. serve a copy of the notice 1. General Rule
upon the adverse party
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• The procedure in the Regional Trial
Court shall be applicable to the procedure
in Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial
Court.
2. Exceptions
• Particular provision is made applicable
only to such courts
• In cases governed by the Rule on
Summary Procedure
A) - criminal case where the penalty
prescribed does not exceed 6 months
imprisonment or a fine of P1,000 or both
B) - complaint or information filed directly
in court without need of a prior
preliminary investigation or preliminary
examination
C) - case decided based on affidavits
submitted by the parties
RULE 124 PROCEDURE IN THE COURT OF APPEALS
Court of Appeals
• The Court of Appeals has no jurisdiction
without judgment of conviction.
• The Court of Appeals shall give precedence in
the disposition of appeals of accused who are
under detention. It shall hear and decide the
appeal at the earliest practicable time with
due regard to the rights of the parties.
• Judgment of the lower courts shall be
reversed or modified only when the Court of
Appeals is of the opinion that error was
committed which injuriously affected the
substantial rights of the appellant after it
examined the record and evidence adduced
by the parties.
• Although not often done in the judicial
system, the case of People vs. Calayca states
that the appellate court may reverse the trial
court’s decision on the basis of grounds other
than those that the parties raised as errors.
Power of the Court of Appeals
• The Court of Appeals may reverse, affirm, or
modify the judgment; increase or reduce the
penalty imposed; remand the case for new
trial or re-trial; or dismiss the case. It is
discretionary on its part whether or not to set
a case for oral argument.
• It 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.
Quorum and Voting of the Court of Appeals
• Three Justices constitute a quorum for the
sessions of a division
• Unanimous vote of the 3 Justices of a division
shall be necessary to pronounce a judgment
or a final resolution. In the event that there is
no unanimous vote, the Presiding Justice shall
direct the raffle committee of the Court to
designate two additional Justices in the
division hearing the case and the concurrence
of a majority of such division shall be
necessary for the pronouncement pf a
judgment or final order.
• Should the Court of Appeals impose the
penalty of death, reclusion perpetua, or life
imprisonment after discussing the evidence
and law involved, the case is certified and
immediately elevated to the Supreme Court
for review.
Accused Appellant
• An accused-appellant may change his theory
on appeal; thus the case opens the whole
action for review on any questioning including
those not raised by the parties.
• When the accused appeals a judgment of
conviction, he waives the constitutional
safeguard against double jeopardy; but every
circumstance in favor of the accused should
be considered.
• Upon the death of an accused pending appeal
from his conviction, the criminal action is
extinguished, and the civil aspect instituted
therewith for recovery of civil liability ex
delicto is ipso facto extinguished. The other
party may just file a separate civil case
against the estate of the accused who died.
Appointment of Counsel de Officio
A counsel de officio is a court appointed lawyer
to the accused.
1. He is appointed if it appears from the
record of the case that:
a. The accused is confined in prison,
b. The accused is without counsel de parte
on appeal, or
c. The accused signed the notice of appeal
himself.
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REMEDIAL LAW (CRIMINAL PROCEDURE)
2. He may be appointed upon the request of an
appellant, 10 days from receipt of the notice to file brief
and the latter establishes his right to have one.
Dismissal of Appeal for Abandonment or
Failure to Prosecute
• Requirement
a. upon motion of the appellee or motu
propio
b. with notice to the appellant
• Grounds
a. Appellant fails to file his brief within the
time prescribed, except when he is
represented by a counsel de oficio.
b. Appellant escapes from prison or
confinement, jumps bail, or flees to a foreign
country during pendency of the appeal.
• Effect
- Appealed judgment becomes final.
Judgment of the Court of Appeals/New
Trial/Reconsideration
• 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 court from which the appeal was taken.
• The appellant may move for a new trial any
time after the appeal from the lower court has
been perfected and before the judgment of
the Court of Appeals convicting him becomes
final.
• A motion for reconsideration shall be made
within 15 days after notice of the decision or
final order of the Court of Appeals.
RULE 125 PROCEDURE IN THE SUPREME COURT
1. Procedure in the SC in appealed cases is
the same as in the CA, unless otherwise
provided by the Constitution or law
2. A case may reach the SC for final
adjudication in the following manner:
• Automatic review
 In all cases where death penalty is
imposed by the trial court
 Records shall be forwarded to the
SC for automatic review and judgment
• Ordinary appeal
 Where penalty imposed is life
imprisonment
 Applicable also where a lesser
penalty is imposed but involving
offenses committed on the same
occasion or arising out of the same
occurrence that gave rise to the more
serious offense for which the penalty
of death or life imprisonment is
imposed
 In both cases, case is directly
appealable to the SC by filing a notice
of appeal
• Petition for review on certiorari
 General Rule: judgments of RTCs
may be appealed to the SC only by
petition for review on certiorari in
accordance with Rule 45 of the Rules
of Court
 Exception: Criminal cases where
penalty imposed is life imprisonment
or reclusion perpetua
3. A direct appeal to the SC on questions of
in criminal cases in which penalty
imposed is not death or life
imprisonment precludes the review of
the facts
4. Questions of law and fact come within
the jurisdiction of the CA
5. When a criminal case is appealed to the
SC, the whole case is then thrown open
for review
• It becomes the duty of the SC to
correct errors found in the judgment
appealed from
• SC may correct errors whether they
are made the subject of assignments or
error or not
6. Effect of appeal on the bail of the
accused:
• When accused is charged with offense
which under the existing law at the time
of its commission and time of application
for bail is punishable by a PENALTY
LOWER THAN RECLUSION PERPETUA and
is out on bail, and after trial is convicted
by the trial court of the offense charges or
of a lesser offenses than that charged in
the complaint or information, he is
allowed to remain free on his original
bail pending the resolution of appeal
– unless the proper court directs otherwise
• When accused is charged with CAPITAL
OFFENSE or which under the law at the
time of its commission and at the time of
the application for bail is punishable by
reclusion perpetua and is out on bail, and
after trial is convicted by the trial court of
a lesser offense than that charged in the
complaint or info – same rule set forth
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REMEDIAL LAW (CRIMINAL PROCEDURE)
in the preceding paragraph shall be
applied;
• When accused is charged with CAPITAL
OFFENSE of an offense which under the
law at the time of its commission and at
the time of the application for bail is
punishable by reclusion perpetua and is
out on bail and after trial is convicted by
the trial court of the offense charged, --
bond is cancelled and accused shall be
placed in confinement pending resolution
of his appeal
When, in criminal cases pending appeal before the SC,
accused is still on provisional liberty, the ff. rules
are laid down:
i. Court shall order the bondsman to surrender the
accused within 10 days from notice, to the court
of origin. Bondsman shall inform this court of
fact of surrender. Then the court shall cancel the
bond;
ii. RTC shall order the transmittal
of the accused to the National Bureau
of Prisons thru the PNP as the accused
shall remain under confinement
pending resolution of his appeal;
iii. If accused – appellant is not
surrendered within the aforesaid
period of ten (10) days, his bond shall
be forfeited and an order of arrest
shall be issued by this court.
• Appeal taken by the
accused shall also be dismissed
under Sec. 8 Rule 124 of Rules of
Court as he shall be deemed to
have jumped his bail
REHEARING OF CRIMINAL CASE IN THE
SUPREME COURT
1. A case is reheard when the court en banc is equally
divided in opinion or necessary majority cannot be had.
2. If rehearing en banc no decision is reached, judgment of
conviction of lower court shall be reversed and accused is
acquitted.
• If division of opinion or lack of
required votes refers to the propriety of
imposing the death penalty, the penalty
next lower in degree shall be imposed
RULE 126 SEARCH AND SEIZURE
1. Elements of a search warrant
• An order in writing;
• Signed by judge in the name of the People
of the Philippines;
• Commanding a peace officer to search for
personal property; and
• Bring it before the court
2. Nature of a search warrant
• It is in the nature of criminal processes
and may be invoked only in furtherance of public
prosecutions
• Have no relation to civil processes or
trials
• It is not available to individuals in the
course of civil proceedings; it is not for the
maintenance of any private right.
• It is INTERLOCUTORY in character – it
leaves something more to be done, the
determination of the guilt of the accused
General warrant:
• A process which authorizes the search
and seizure of things, in a general manner
• This does not specify or describe with
particularity the things searched and seized
• This kind of warrant is constitutionally
objectionable – therefore VOID
3. Object of a search warrant – to obtain the goods, and
bring the person in whose custody they are found,
either to be recognized as a witness or to be subject to
such further proceedings as the ends of justice may
require
4. A search warrant must conform strictly to the
requirements of the constitutional and statutory provisions
under which it is issued
• Otherwise, it is VOID
• The proceedings upon search warrants
must be absolutely legal
• It will always be construed strictly
without going the full length of requiring
technical accuracy.
• No presumptions of regularity are to be
invoked in aid of the process when an officer
undertakes to justify under it.
5. Search distinguished from seizure
• Search
 it is an examination of a man’s house,
buildings or other premises, or of his person,
with a view of some evidence of guilt to be
used in the prosecution of a criminal action
for some offense with which he is charged
 Ordinarily implies a request by an officer of
the law
• Seizure
 it is the physical taking of a thing into custody
 Contemplates a forcible disposition of the
owner
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REMEDIAL LAW (CRIMINAL PROCEDURE)
6. A good and practical rule of thumb to measure the
nearness of time given in the affidavit as to the date of the
alleged offense, and the time of making the affidavit –
The nearer the time at which the observation of the
offense is alleged to have been made, the more
reasonable the conclusion of establishment of probable
cause
7. PERSONAL PROPERTY TO BE SEIZED
A. Kinds of personal property to be seized:
• Subject of the offense;
• Proceeds or fruits of the offense; and
• The means used or intended to be used
for committing an offense
• Search warrants have been allowed to
search for the ff:
 Stolen goods
 Those supposed to have been
smuggled into the country in violation of
the revenue laws
 Implements of gaming and
counterfeiting
 Lottery tickets
 Prohibited liquors kept for sale
contrary to law
 Obscene books and papers kept
for sale or circulation
 Powder and other explosive and
dangerous materials so kept as to
endanger public safety
 Slot machines, being gambling
devices
B. Property seized is not
required to be owned by the person against whom the
search warrant is directed
C. It s not necessary that
there be arrest or prosecution before seizure could be
affected
D. The fact that a thing is a corpus delicti of a crime does
not justify the seizure without a warrant
8. Section 2 Article III of the 1987 Constitution is the
constitutional basis of the rule on search and seizure
9. Requisites for the issuance of a valid search warrant
a. Probable cause
• It is such facts and circumstances
antecedent to the issuance of the warrant,
that are in themselves sufficient to induce a
cautious man to believe that the person
against whom the search warrant is applied,
had committed, or is about to commit, a
crime
• Probable cause for a search is
defined as such facts and circumstances
which would lead a reasonably discreet and
prudent man to believe that an offense has
been committed and that the objects sought
in connection with the offense are in the place
sought to be searched.
• Probable cause presupposes the
introduction of competent proof that the
party against whom it is sought has
performed particular acts or committed
specific omissions violating a given provision
of our criminal laws (Stonehill v. Diokno)
• Probable cause is determined in
the light of the conditions obtaining in given
situations, but there is no general formula or
fixed rule for the determination of the
existence of probable cause.
 Existence depends of a large
degree upon the finding or of the opinion
of the judge conducting the examination.
b. Which must be determined personally by the judge
himself, and not by the applicant or any other
person;
• A judge may reverse his finding
of probable cause, provided that the
rectification is based on sound and valid
grounds
• This requirement does not extend
to deportation proceedings (Morano vs. Vivo)
• Immigration Commissioner has
authority to determine probable cause ONLY
for the purpose of issuing a warrant of arrest.
c. 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 any witness he may produce, on
facts personally known to them;
• Application for a search warrant
is heard ex-parte, there is neither a trial nor a
part of the trial
• Examination must be under oath
and may not be in public
• Examination of witnesses to
determine probable cause:
 Judge must examine witnesses
personally
 Examination must be under oath;
and
 Examination must be reduced to
writing in the form of searching
questions and answers
• The test in determining whether
the allegations in an application for a search
warrant are based on personal knowledge –
should not be based on mere hearsay, nor
mere suspicion or belief
d. The probable cause must be in connection with one
specific offense;
• This is to outlaw general
warrants
• Otherwise, this would place the
sanctity of the domicile and the privacy of
communication and correspondence at the
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mercy of the whims, caprice or passion of
peace officers.
e. The warrant issued must particularly describe the
place to be searched and the persons or things to be
seized; and
• This requirement is sufficient if the
officer to whom the warrant is directed is
enabled to locate the same definitely and with
certainty.
• This does not require the true legal
description to be given in a required form
• The constitution requires that it be a
description which particularly points to a
definitely ascertainable place, so as to exclude
all others.
• The description must be so particular that
the officer charged with the execution of the
warrant will be left with no discretion
respecting the property to be taken.
• It may be said that the person to be
searched is particularly described in the
search warrant when his name is stated in the
search warrant, or if name is unknown, he is
designated by words sufficient to enable the
officer to identify him without difficulty
f. The sworn statements together with the affidavits
submitted by witnesses must be attached to the
record.
10. If the officer follows the command of the warrant, he is
protected, but if he exceeds the command, he is not
protected by the warrant and he only assumes to act
without process
• If the officer acts within the command of his
warrant, he is protected even if the complaint is
proven to have been unfounded.
• Obeying strictly the command of his warrant, he
may break open outer or inner doors, and his
justification does not depend upon his discovering
that for which he is to make the search
• If officer is refused admittance to the place of
directed search after giving notice of his purpose
and authority, he may break open any outer or
inner door or window of a house or any part of a
house or anything to execute the warrant or
liberate himself or any person lawfully aiding him
when unlawfully detained therein.
• Demand is necessary prior to a breaking in of the
doors, only where some person is found in charge
of the building to be searched.
11. In searching a house, room or other premises, such shall
be done in the presence of a lawful occupant or any
member of his family, or in the presence of at least 2
witnesses of sufficient age and discretion, residing in the
same locality
• The searching officer should also be considerate of
the premises searched; he should mar the
premises as little as possible, and should carefully
replace anything he finds necessary to remove.
12. Warrant must be direct and served in the day time
• Exception: if affidavit asserts that the property is
on the person or in the place ordered to be
searched – here, warrant may be served anytime
of the day or night.
• The general rule prohibits search in the night
because sometimes robberies happen, under the
pretense of searches
13. A warrant is valid for ten days from its date. After such
time, it is VOID
• A search warrant cannot be used everyday for 10
days, and for a different purpose each day –
warrant used to seize one thing cannot be used as
authority to make another search
• This rule is NOT APPLICABLE when the search
for a property mentioned in the warrant was not
completed on the day when the warrant was
issued and had to be continued the next day
14. Officer seizing the property under the warrant must give a
detailed receipt for the same to the lawful occupant or any
member of the family or at least 2 witnesses of sufficient
age and discretion residing in the same locality.
15. Officer must also deliver the property seized to the judge
who issued the warrant, with the true inventory, all under
oath
16. Searches incident to lawful arrest
• This is the most important exception to the
necessity for a search warrant
• This right includes in both instances that of
searching the person who is arrested, in order to
find and seize the things connected with the crime
as its fruits or as the means by which it was
committed
• Search made without a warrant cannot be
justified as an incident of arrest unless the arrest
itself was lawful
• Search must be made at the place of the arrest and
contemporaneous with the arrest, otherwise it is
not an incident to the arrest. In other words, a
search is not incidental to the arrest unless the
search is made at the place of arrest,
contemporaneously with the arrest.
• The right is limited to the time and place of the
arrest
17. Other cases where warrantless searches and seizures are
valid
• Search of moving vehicles
 Checkpoints are valid
(Valmonte case)
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REMEDIAL LAW (CRIMINAL PROCEDURE)
 Warrantless search of
aircrafts as well as fishing vessels breaching
our fishery laws
• Consented search without a warrant
• Seizure of evidence in plain view
• Enforcement of custom laws
 Exception: in a dwelling
house
 Vessel can be quickly
moved out of the locality or jurisdiction in
which the search warrant must be sought
before such warrant could be secured
• When search is based on probable cause under
extraordinary circumstances
18. Unreasonable search and seizure is such where it is not
authorized by statute, or where the conditions prescribed
by the stature have not been met
• What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely a
judicial question
• Such is determinable from a consideration of the
circumstances involved, including the ff:
 The purpose of the search
 Presence or absence of
probable cause
 Manner in which the
search and seizure was made
 Place or thing searched
 Character of the articles
procured.
• Searches and seizure inside a home are
presumptively unreasonable
• Constitutional prohibition against unlawful
searches and seizure applies as a restraint directed
only against the government and its agencies
tasked with the enforcement of the law. It could
thus only be invoked against the State.
19. The legality of a seizure can be contested only by the
party whose rights have been impaired thereby
• The objection to an unlawful search and seizure is
purely personal and cannot be availed by third
parties
• The remedy for questioning the validity of a search
warrant can only be sought in the court that issued
it, not the sala of another judge of concurrent
jurisdiction – this is done through a motion to
quash warrant of arrest
• Objections to the legality of the search warrant and
to the admissibility of the evidence obtained are
deemed waived when no objection to the legality of
the search warrant was raised during the trial.
20. The Moncado Ruling, that illegally seized documents,
papers and things are admissible in evidence, is already
ABANDONED
• The exclusion of such evidence is the only
practical means of enforcing the constitutional
injunction against unreasonable searches and
seizures.
• The Non-exclusionary rule is contrary to the letter
and spirit of the prohibition against unreasonable
searches and seizures
21. Through RA No. 4200 or the Anti-Tapping Law, tapping
of phone wires of the premises of an accused, wherein
persons accused of violation criminal laws are engaged in
conversation constitutes a violation of the Constitutional
provision on the right of the people to secure in their
persons, papers and effects.
• RA No. 4200 was approved on 19 June 1965
• It also penalizes other acts similar to wire-tapping.
Some similar acts are taping or recording
conversations of people, by others who are not
authorized by the former to record or tape.
RULE 127 PROVISIONAL REMEDIES IN CRIMINAL
CASES
1. Provisional remedy is one
provided for present need or for the occasion that is one
adopted to meet a particular exigency;
2. The following are the
provisional remedies under the Rules of Court:
• Attachment (Rule
57)
• Injunction (Rule 58)
• Receivership (Rule
59)
• Delivery of personal
property or Replevin(Rule 60) and
• Support Pendente
Lite (Rule 61)
3. Purpose of provisional
remedies
• Provisional
remedies are applied pending litigation, to secure
the judgment or preserve the status quo
• If provisional
remedies are applied to after judgment, it is in order
to preserve or dispose of the subject matter.
4. Although civil action is
suspended until final judgment in the criminal case, the
court is not deprived of its authority to issue preliminary
and auxiliary writs which do not go into the merits of the
case.
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REMEDIAL LAW (CRIMINAL PROCEDURE)

• Preliminary writs and auxiliary writs referred to are

those such as the ff:

 Preliminary injunction

 Attachment

 Appointment of receiver

 Fixing amounts of bonds

5. Attachment is a remedy
afforded to the offended party to have the property of
the accused attached as security for the satisfaction of
any judgment that may be recovered from the accused

• This remedy is available in the following cases:

 When action for recovery

is on a cause of action arising from law,
contract, quasi-contract, delict, or quasi-
delict and 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, or any officer of a corporation,
or an attorney, factor, broker, agent, or clerk,
in the course of his employment as such, or by
any 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;

 When action is against a

party guilty of fraud in contracting the debt
upon which action is brought, or in the
performance of incurred obligation;

 When action is against a

party who removed or disposed of his
property or is about to do so, with intent to
defraud his creditors; and

 When the accused resides

outside the Philippines

• This may be filed at the commencement of a

criminal action or at any time before entry of
judgment as security for the satisfaction of any
judgment that may be recovered in the
aforementioned cases.

6. Public prosecutor has the

authority to apply for preliminary attachment as may be
necessary to protect the interest of the offended party

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