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PRELIMINARY INVESTIGATION IN CRIMINAL CASES

At the outset, lets remove any possibility of misunderstanding that may be caused by the title of this post.
The reference to a preliminary investigation in criminal cases does not imply that theres a preliminary
investigation in civil cases theres none. Preliminary investigation is a part of the rules of criminal
procedure. Simply stated, its available ONLY in criminal cases.
What is Preliminary Investigation?
Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.
What is the Nature and Purpose of preliminary investigation?
The determination of probable cause during a preliminary investigation is an executive function, the
correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled
to pass upon.
In a preliminary investigation, the investigating prosecutor makes a determination if theres a probable cause,
which is the existence of such facts and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime
for which he was prosecuted. It has been explained as a reasonable presumption that a matter is, or may be,
well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not
mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged, as there is a trial for the reception of evidence of the
prosecution in support of the charge.
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense
and anxiety of a public trial, and also to protect the state from useless and expensive trials. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of the guarantees of
freedom and fair play which are birthrights of all who live in our country. It is therefore, imperative upon the
fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. The judge or fiscal, therefore, should not go on with the
prosecution in the hope that some credible evidence might later turn up during trial for this would be in
flagrant violation of a basic right which the courts are created to uphold. (Salonga vs. Cruz Pao)
When is preliminary investigation required?
A preliminary investigation is required to be conducted before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day,
without regard to the fine.
A preliminary investigation is not required in cases of warrantless arrests. When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. However, after the filing of the complaint or information in court
without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing,
ask for a preliminary investigation.
Who are the officers authorized to conduct preliminary investigations?
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
What are the basic steps in preliminary investigation?
The basic steps (further discussed in the subsequent paragraphs) in preliminary investigation are:

1. Filing of the Complaint-Affidavit.


2. Issuance of subpoena by the investigating prosecutor to the respondent.
3. Filing of Counter-Affidavit by the respondent.
4. If allowed by the prosecutor, filing of Reply-Affidavit (by the complainant) and Rejoinder-Affidavit (by
the respondent).
5. Resolution.
What are the requirements in filing the Complaint-Affidavit?
The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall
be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
The complaint is also generally required to pay filing fees.
What actions are taken by the investigating prosecutor after the complaint is raffled to him/her?
Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds
no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of
the complaint and its supporting affidavits and documents.
I havent encountered any case where the investigating prosecutor dismissed the case prior to the issuance of
the subpoena. Moreover, in practice, the complaint and the annexes are not usually attached to
the subpoena, but are provided to the respondent during the initial stage.
How is the Counter-Affidavit submitted by the respondent?
Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified
before the investigating prosecutor (which means that the respondent must generally be present during the
submission of the counter-affidavit), with copies furnished to the complainant. The respondent is not be
allowed to file a motion to dismiss in lieu of a counter-affidavit.
Can the investigating prosecutor resolve the complaint if the respondent does not appear?
Yes. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits, the
investigating office shall resolve the complaint based on the evidence presented by the complainant. Within
ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
This is the reason why, even in cases where a preliminary investigation is required, its entrely possible that a
warrant of arrest may be isued without the respondent/accused being informed about or having participated
in a preliminary investigation. So, dont disregard a subpoena in a preliminary investigation.
How is the resolution prepared?
If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such action.
Can the Information be filed without the written authority of the proper authorities?
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman
or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on

the ground that a probable cause exists, the latter may, by himself, file the information against the
respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation.
An Information filed in court may be quashed, among other reasons, if it does not contain the approval or
authority of the aforementioned superiors.
What is the procedure if the preliminary investigation is conducted by a judge?
The procedure is basically the same as described above. Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and
the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the
arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the
parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the
proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his
deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable
cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties
shall be furnished with copies thereof. They shall order the release of an accused who is detained if no
probable cause is found against him.

Criminal Procedure Memory Aid


JAN 24
Posted by Magz

CRIMINAL PROCEDURE
Rule 110 PROSECUTION of Offenses
1. General Rule: MTC and RTC courts gain jurisdiction over the offense upon the filing of complaint by a
complainant or an information by the prosecuting officer
Court gains jurisdiction over the person of the accused upon arrest or surrender; such jurisdiction once
gained cannot be lost even if accused escapes (Gimenez vs. Nazareno)
Jurisdiction of the court over the offense is determined at the time of the institution of the action and is
retained even if the penalty for the offense is later lowered or raised (People vs. Lagon)
2. Complaint sworn written statement charging a person with an offense, subscribed by the offended party,
any peace officer or other public official charged with the enforcement of the law violated
Information accusation in writing charging a person with an offense, subscribed by the fiscal and filed with
the court
3.

Complaint and Information distinguished:

Complaint

Information

A sworn statement

Need not be sworn to

Subscribed by the offended party, any


peace officer or other officer charged
with the enforcement of the law
violated

Subscribed to by the fiscal

May be filed either with the court or


in the fiscals office generally to
commence the preliminary
investigation of the charges made

Filed with the court

4.

Cases where civil courts of equal rank are vested with concurrent jurisdiction:
1.

Features stated in Art. 2, RPC

Cognizable by proper court in which charge is first filed

i.

1.

Continuing crimes committed in different judicial regions

2.

Offenses wherein any of the essential elements were committed in different territorial jurisdictions

3.

Offenses committed aboard a train, vehicle, aircraft or vessel (see R110, 15)

Railroad, train, aircraft

(1) Territory or municipality where vehicle passed


(2) Place of departure
(3) Place of arrival
ii.

Vessel

(1) First port of entry


(2) Thru which it passed during voyage
e. Libel and written defamation
5. Remedies of offended party when fiscal unreasonably refuses to file an information or include a person
therein as an accused
1.

In case of grave abuse of discretion, action for mandamus

2.

Lodge a new complaint against the offenders

3.

Take up matter with the Secretary of Justice

4.

Institute administrative charges against the erring fiscal

5.

File criminal charges under Art. 208, RPC (prosecution of offenses)

6.

File civil action under Art. 27, NCC for damages (PO refuses or neglects to perform official duty)

7.

Secure appointment of another fiscal

8.

Institute another criminal action if no double jeopardy is involved

6. Writs of injunction or prohibition to restrain a criminal prosecution are not available, EXCEPT
1.

To afford adequate protection to constitutional rights of accused

2.

Necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions

3.

Pre-judicial question which is sub judice

4.

Acts of the officer are without or in excess of authority

5.

Prosecution is under an invalid law, ordinance or regulation

6.

Double jeopardy is clearly apparent

7.

Court has no jurisdiction over the case

8.

Case of persecution rather than prosecution

9.

Charges are manifestly false and motivated by lust for vengeance

10.

Clearly no prima facie case against the accused and MTQ on that ground had been denied

7.

Institution of Criminal Actions:

a.

In RTC:

By filing a complaint with the appropriate officer for the purpose of conducting requisite preliminary
investigation therein.
b. In Municipal Trial Courts and Municipal Circuit Trial Courts:
By filing the complaint or information directly with said courts, or a complaint with the fiscals office
c. In Metropolitan Trial Courts

By filing the complaint ONLY with the office of the fiscal


In all 3 above cases, such institution shall interrupt the period of prescription of the offense charged (Rule
110, 1)
d. Offenses subject to summary procedure
[i.e. (1) violation of traffic laws; (2) violation of rental laws; (3) violation of municipal or city ordinances;
and (4) criminal cases where the penalty does not exceed 6 months or fine of P1000 or both, irrespective of
other imposable penalties and civil liabilities]
The complaint or information shall be filed directly in court without need of a prior preliminary
examination or preliminary investigation.
Zaldivia vs. Reyes since a criminal case covered by the Rules of Summary Procedure shall be deemed
commenced only when it is filed in court, then the running of the prescriptive period shall be halted on the
date the case is actually filed in court and not on any date before that.
Reodica vs. CA [clarifies Zaldivia above] Under Art. 91 of the RPC, the period of prescription shall be
interrupted by the filing of the complaint or information. It does not distinguish whether the complaint is
filed for preliminary examination or investigation only, or for an action on the merits. Thus, the filing of the
complaint even with the fiscals office should suspend the running of the Statute of Limitations. The ruling
in Zaldivia is not applicable to all cases subject to the Rules on Summary Procedure, since that particular
case involved a violation of an ordinance. Therefore, the applicable law therein was not Art. 91 of the RPC,
but Act No. 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide when Prescription Shall Begin to Run), 2 of which provides that period
of prescription is suspended only when judicial proceedings are instituted against the guilty party.
8. Contents of information
a. Name of the accused
Information may be amended as to the name of the accused, but such amendment cannot be questioned for
the first time on appeal (People vs. Guevarra)
Error of name of the offended party: if material to the case, it necessarily affects the identification of the
act charged. Conviction for robbery cannot be sustained if there is a variance between the allegation and the
proof as to the ownership of the property stolen.
b. Designation of offense by statute (or of section/subsection of statute violated)
Only one offense charged, EXCEPT where law prescribes a single punishment for various offenses.
If facts do not completely allege all the elements of the crime charged, the info may be quashed; however,
the prosecution is allowed to amend the info to include the necessary facts (People vs. Purisima)
c. Acts or omissions complained of constituting the offense
Information need only allege facts, not include all the evidence which may be used to prove such facts
(Balitaan vs. CFI)
d. Name of offended party
e. Approximate time of commission
Approximation of time is sufficient; amendment as to time is only a formal amendment; no need to dismiss
case (People vs. Molero)
A significant discrepancy in the time alleged cannot be sustained since such would allow the prosecution to
prove an offense distantly removed from the alleged date, thus substantially impairing the rights of the
accused to be informed of the charges against him (People vs. Reyes)
f.

Place of commission

Conviction may be had even if it appears that the crime was committed not at the place alleged, provided
that the place of actual commission was within the courts jurisdiction and accused was not surprised by the
variance between the proof and the information
Qualifying and inherent aggravating circumstances need to be alleged as they are integral parts of the
crime. If proved, but not alleged, become only generic aggravating circumstances.
9. Amendment of information and Substitution of information, distinguished

Amendment

Substitution

Involves either formal or substantial


changes

Necessarily involves a substantial change

Without leave of court if before plea

Needs leave of court as original


information has to be dismissed

Where only as to form, there is no


need for another preliminary
investigation and retaking of plea of
accused

Another preliminary investigation is


entailed and accused has to plead anew

Refers to the same offense charged or


which necessarily includes or is
necessarily included in original
charges, hence, substantial
amendments to info after plea taken
cannot be made over objections of
accused for if original info is
withdrawn, accused could invoke
double jeopardy

Requires or presupposes that new info


involves a different offense which does
not include or is not included in the
original charge, hence, accused cannot
claim double jeopardy

10. After plea, amendment only as to matters of form, provided


1.

Leave of court is obtained; and

2.

Amendment is not prejudicial to rights of accused

11. When amendment is only as to form


1.

Neither affects or alters nature of offense charged

2.

Charge does not deprive accused of a fair opportunity to present his defense

3.

Does not involve a change in basic theory of prosecution

12. Exceptions to rule on venue


1.

Felonies in Art. 2, RPC (cognizable by proper court in which charge is first filed)

2.

Continuing offenses

3.

Piracy which is triable anywhere

4.

Libel (residence; or where first published)

5.

In exceptional cases, to ensure fair trial and impartial inquiry

13. Special cases (who may prosecute)


a. Adultery and concubinage

Only offended spouse can be complainant


Both guilty parties must be included in complaint
b. Crimes against chastity
With consent of the offended party, offended spouse, grandparents, guardian, or state asparens patriae, in
that order
Offended party, even if minor, has right to initiate the prosecution of the case independently of parents,
grandparents or guardian, unless she is incompetent/incapable on grounds other than minority.
If offended party who is a minor fails to file the complaint, her parents, grandparents or guardian may do
so.
In crimes against chastity, the consent of the victim is a jurisdictional requirementretraction renders the
information void (People vs. Ocapan)
If complexed with a public crime, the provincial fiscal may sign the complaint on his own
c. Defamation (consisting of imputation of offenses in [a] or [b])
Complainant must be offended party
The offended party may intervene in the prosecution of the criminal case because of her interest in it
(Banal vs. Tadeo)
14. Procedure
1.

Complaint filed in MTC or info filed in RTC where an essential ingredient of the crime took place (territorial
jurisdiction)
1.

Amendment as a matter of right before plea

2.

Amendment upon discretion of the court after plea

Inclusion of other accused is only a formal amendment which would not be prejudicial to the accused and
should be allowed (People vs. CA)
d. After plea and before judgment, if it appears there was a mistake in charging proper offense, court shall
dismiss original info upon the filing of a corrected one, provided that the accused will not be placed in double
jeopardy (substitution)
Fiscal determines direction of prosecution; complainant must ask fiscal if he wants to dismiss the case; the
motion to dismiss must be addressed to the court which has discretion over the disposition of the case
(Republic vs. Sunga)
Objection to the amendment of an information or complaint must be raised at the time the amendment is
made; otherwise, deemed to have consented thereto.
15. Remedies
a. Motion to quash
May be filed after arraignment but before plea on the grounds provided by the rules (generally, a flaw in
the info)
If duplicity of offense charged is not raised in trial through a motion to quash info, the right to question it is
waived (People vs. Ocapan)
b. Motion to dismiss
May be filed after plea but before judgment on most of grounds for motion to quash
16. Duplicity of Offense (in information or complaint)

Defined as the joinder of separate and distinct offenses in one and the same information/complaint
Remedy: file a motion to quash; failure is equivalent to a waiver
Exception: when existing laws prescribe a single punishment (complex crimes)
Rule 111 Prosecution of Civil Action
1. General Rule: The injured party may file a civil action independent of the criminal proceeding to recover
damages from the offender.
Article 32 is a valid cause of a civil action for damages against public officers who impair the Constitutional
rights of citizens (Aberca vs. Ver)
Even if the private prosecutor participates in the prosecution, if he is not given the chance to prove
damages, the offended party is not barred from filing a separate civil action
2. Civil action for recovery of civil liability impliedly instituted, EXCEPT
1.

Waiver

2.

Reservation of right to institute separate action

3.

Institution of civil action prior to criminal action

NOTE: Under SC Circular 57-97, all criminal actions for violations of BP Blg. 22 shall be deemed to
necessarily include the corresponding civil action, and no reservation to file such civil action separately shall
be allowed or recognized.
San Ildefonso Lines vs. CA past pronouncements of the SC that the requirement in Rule 111 that a
reservation be made prior to the institution of an independent civil action is an unauthorized amendment
to substantive law is now no longer controlling. Far from altering substantive rights, the primary purpose of
the reservation requirement is to avoid multiplicity of suits, to prevent delays, to clear congested dockets, to
simplify the work of the trial court, and in short, the attainment of justice with the least expense and
vexation to parties-litigants.
3. Civil action suspended when criminal action filed, EXCEPT
1.

Independent civil action (Arts. 32, 33, 34 and 2176 of NCC)

2.

Prejudicial civil action

3.

Civil case consolidated with criminal action


Civil action not one intended to enforce civil liability arising from the offense (e.g., action for legal separation

4.

against a spouse who committed concubinage)

4. Prejudicial question arises when


1.

The civil action involves an issue similar or intimately related to the issue raised in the criminal action

2.

The resolution of such issue will determine whether the criminal action will proceed or not

Requisites for a prejudicial question:


1.

The civil action involves an issue similar or intimately related to the issue raised in the criminal action: and

2.

The resolution of such issue determines whether or not the criminal action may proceed

Petition for suspension of criminal action is to be filed at any time before prosecution rests.
5. Remedies
a. Reservation of right to institute separate civil proceedings to recover civil liability arising from crime
Must be made before prosecution presents evidence
Action instituted only after final judgment in criminal action
b. Petition to suspend the criminal action

May be filed upon existence of a prejudicial question in a pending civil action


Filed at any time before the prosecution rests
6. Extinction of penal action does not carry with it extinction of the civil unless the extinction proceeds
from a declaration in a final judgment that the fact from which the civil might arise did not exist.
Final judgment in civil absolving defendant from civil liability not a bar to criminal action
7.

Filing fees:
1.

Actual or compensatory damages filing fees not required

2.

Moral, temperate and exemplary filing fees required

1.

If alleged, fees must be paid by offended party upon filing of complaint or information
1.

If not alleged, filing fees considered a first lien on the judgment

Rule 112 Preliminary Investigation


1. Preliminary investigation inquiry or proceeding to determine if there is sufficient ground to engender a
well-founded belief that a crime cognizable by the RTC has been committed, and that the respondent is
probably guilty thereof, and should be held for trial
A preliminary investigation is only necessary for an information to be filed with the RTC; complaints may be
filed with the MTC without need of an information, which is merely recommendatory (Tandoc vs. Resultan)
Absence of a preliminary investigation is NOT a ground for a motion to quash the information; an
information filed without a preliminary investigation is defective but not fatal; in its absence, the accused
may ask for one; it is the fiscals refusal to conduct a preliminary investigation when the accused demands
one which is a violation of the rights of the accused (Doromal vs. Sandiganbayan). Court should not dismiss
the info, but hold the case in abeyance and either: (1) conduct its own investigation; or (2) require the fiscal
to hold a reinvestigation.
2. GENERAL RULE: The fiscal conducts the preliminary investigation before filing an information with the
RTC, EXCEPT where the accused is lawfully arrested without a warrant and an inquest is conducted.
3. Right to Preliminary Investigation
A personal right and may be waived
Waived by failure to invoke the right prior to or at least at the time of the plea
4.

Who conducts Preliminary Investigation


1.

Provincial or city fiscals and their assistants

2.

Judges of MTC and MCTC

3.

National and regional state prosecutors

4.

Such other officers as may be authorized by law

5.

Duly authorized legal officers of COMELEC


1.

The Ombudsman

2.

The PCGG, in cases of ill-gotten wealth

5. Procedure
a. If conducted prior to arrest
i.

Complainant files complaint with

(a) Provincial or city fiscal


(b) Regional or state prosecutor
(c) MTC or MCTC judge, excluding MTC judge of Metro Manila or chartered cities
(d) Other offices authorized by law

1.

Investigating officer either dismisses complaint or asks by subpoena complainant and respondent to submit
affidavits and counter-affidavits
1.
If the investigating officer finds prima facie evidence, he prepares an information and a resolution

i.e., if fiscal finds reasonable ground to believe that a crime has been committed and accused is probably
guilty thereof
Prima facie evidence is that evidence which, standing alone, unexplained and uncontradicted, would be
enough to merit a conviction of the accused
iv. Otherwise, he recommends the dismissal of the complaint
If the investigating officer is an MTC judge, and he finds that probable cause exists and that there is a need
to place the accused under custody, then he may issue a warrant of arrest
Flores vs. Sumaling What differentiates the present rule from the previous one is that while before, it was
mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found probable
cause, the rule now is that the investigating judges 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. It is therefore error for the investigating judge to order the issuance of a warrant of arrest solely on
his finding of probable cause, without making any finding of a necessity to place the accused in immediate
custody to prevent a frustration of justice.
1.

Investigating officer forwards records to the city fiscal or chief state prosecutor
1.

City fiscal or state prosecutor either dismisses the complaint or files the information in court

Decision prevails over decision of the MTC judge


vii. Records will not form records of the case proper
Court on its own or on motion may order production of record
b. If conducted after warrantless arrest
1.

If accused waives Art. 125, RPC and asks for a preliminary investigation, with the assistance of counsel, then the
procedure for one prior to arrest is followed
1.

Inquest conducted as follows

(a) Fiscal determines the validity of the arrest


(b) Fiscal determines existence of prima facie evidence based on the statements of the complainant,
arresting officer and witnesses
(c) Fiscal either dismisses the complaint and orders the immediate release of the accused, OR prepares and
files an information
While fiscal has quasi-judicial discretion whether or not to file an information, once it is filed with the
court, the court acquires jurisdiction giving it discretion over the disposition of the case and the Sec. of
Justice should refrain from entertaining petitions for review or appeals from the decision of fiscal (Crespo vs.
Mogul; Velasquez vs. Undersecretary of Justice)
NOTE: Information may be filed by offended party, peace officer or fiscal without preliminary investigation.
6. Remedies
a. Motion for preliminary investigation
Filed when accused is arrested without warrant
Must be with assistance of counsel and after waiving Art. 125, RPC
b. Motion for preliminary investigation
Filed within 5 days after accused learns an information against him has been filed without a preliminary
investigation

c. Motion for re-investigation


d. Appeal to DOJ
Filed upon denial of his motion for a preliminary investigation, on the ground that his rights to due process
of law were violated, ousting the court of jurisdiction
e. Petition for prohibition
Filed with appellate court to stop the criminal proceedings
Ordinarily, injunction will not lie but may be granted in certain cases
When prohibition proper to restrain criminal proceedings:
1.

When strong-arm tactics are used for vindictive purposes (Salonga vs. Cruz-Pano)

2.

When the accused is deprived of his rights

3.

When the statute on which the charge is based is null and void

4.

When it will aid the administration of justice (Tatad vs. Sandiganbayan)

5.

When multiplicity of suits will be avoided (Guingona vs. City Fiscal)

Rule 113 Arrest


1. Arrest taking a person into custody in order that he may be bound to answer for the commission of some
offense, made by an actual restraint of the person or by his submission to custody
2.

General Rule: No person may be arrested without a warrant.

Not all persons detained are arrested; only those detained to answer for an offense.
Invitations are not arrests and are usually not unconstitutional, but in some cases may be taken as
commands (Babst vs. NBI); however, the practice of issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have committed is considered as placing him under custodial
investigation. (RA 7438)
Warrants of arrest remain valid until arrest is effected, or the warrant is lifted
Arrest may be made at any time of the day or night
3. Warrantless arrests by a peace officer or a private person
a. When person to be arrested is committing, attempting or has committed an offense
b. When an offense has just been committed and the person making the arrest has personal knowledge that
the person to be arrested committed it
Warrantless arrest anytime for a continuing offense like rebellion, subversion (Umil vs. Ramos)
The continuing crime, not the crime finally charged, needs only be the cause of the arrest (Umil vs. Ramos)
c. When person to be arrested is an escaped detainee (either serving sentence or with case pending)
1.

When a person lawfully arrested escapes

2.

Bondsman, for purpose of surrendering the accused

3.

Accused attempts to leave country without court permission

4. Procedure
a. With warrant
1.

2.

Complainant files application with affidavits attached


Judge conducts ex parte preliminary examination to determine probable cause

In determining probable cause, judge must:

(1) Personally examine witness


(2) Witness must be under oath
(3) Examination must be reduced to writing (Luna vs. Plaza)
In determining probable cause, the judge may rely on findings by responsible officer (Lim vs. Felix)
iii. Judge issues warrant of arrest
If without preliminary examination, considered irregular (Bagcal vs. Villaraza)
iv. If peace officer is unable to serve warrant 10 days after issuance, he must file a report and explanation
with judge within 10 days
v. If warrant served
(1) Person informed that he is being arrested
(2) Informed of cause of his arrest
(3) Officer may break door or window if admission to building is refused
(4) Person physically restrained
For private citizens making an arrest
May not do so except to do some service to humanity or justice
(5) No violence or unnecessary force may be used
(6) Officer may summon assistance
(7) Person who escapes after arrest may be immediately pursued
vi.

Person arrested is brought to nearest police station or jail

b. Without warrant:
1.

Person is arrested
1.

Person arrested may waive right to Art. 125, RPC and ask for preliminary investigation or inquest

Fiscal is not judicial authority contemplated under Art. 125 (Sayo vs. Chief of Police)
1.

5.

Fiscal files info

Requisites for a warrant of arrest:


1.

Probable cause

2.

Signed by judge

3.

Specifically naming or particularly and sufficiently describing person to be arrested

John Doe warrants are void for being general warrants (Pangandaman vs. Cesar)
6. Remedies
a. Petition for writ of habeas corpus
Filed with any court, to effect immediate release of the person detained
Filed when a person is being illegally detained (without judicial process), or was illegally arrested (void
warrant or unlawful warrantless arrest, or warrantless arrest beyond period with no information filed)
Habeas corpus is not allowed when:
1.

2.

The person is in custody of an officer under process of law, and


The court had jurisdiction to issue the process (Luna vs. Plaza)

If an arrest is improper, the remedy is a motion for quashal of the warrant of arrest and/or a motion to
quash the information, not habeas corpus (Ilagan vs. Enrile)
Habeas corpus is no longer available after an information has been filed, the information being the judicial
process required by law (Ilagan vs. Enrile)
Habeas corpus is proper when a person is being restrained illegally, e.g., imprisoned past maximum penalty
allowed by law (Gumabon vs. Director of Prisons)
b. Quashal of warrant of arrest
Filed with court which issued the warrant of arrest when the warrant of arrest is fatally flawed
c. Motion to quash information
Filed with court when information against the person arrested has been filed
Must be made in a special appearance before the court questioning only its lack of jurisdiction over the
person of the accused
Otherwise, the voluntary appearance of the person arrested by filing a motion before the court would be
deemed a submission to the authority of the court, thus granting it whatever jurisdiction it lacked over the
person
Any irregularity in the arrest is cured when the petitioner submits himself to the jurisdiction of the
court, e.g., by filing for bail (Bagcal vs. Villaraza)
7. V.V. Mendoza, Rights to Counsel in Custodial Investigation
Evolution of rights of the accused under custodial investigation
1.

All involuntary confession were inadmissible; accused had to prove involuntariness


1.

Involuntary confessions were inadmissible only if they were false

2.

Revert to exclusionary rule: any involuntary confession is inadmissible


1.

Miranda rule: the accused must be informed of his rights


1.

To remain silent

2.

Against self-incrimination

3.

To counsel

4.

Definition of custodial investigation questioned


1.

It begins only after arrest

2.

Police investigations prior to arrest are not covered

3.

The rights may be waived, but the rights to be informed of these rights,i.e.,
to warning, may not be waived

4.

Warning must not only be said, officer must make sure the person arrested
understands them specifically

5.

Present rules
1.

Voluntary confessions are admissible

2.

Test of voluntariness determined on a case-to-case basis

3.

Waiver of rights must not only be with counsel but must be in


writing

Confessions made without assistance of counsel are inadmissible as evidence to incriminate the accused,
but they may be used to impeach the credibility of the accused, or they may be treated as verbal admission of
the accused through the testimony of the witnesses (People vs. Molas)
Rule 114 Bail
1. Bail security given for the release of a person in custody of law, furnished by him or a bondsman,
conditioned upon his appearance before any court as required under the following conditions:
1.

Undertaking effective upon approval and remains in force at all stages until promulgation of judgment, unless
sooner cancelled

2.

3.

Accused shall appear before court when required


Failure to appear despite notice to him or the bondsman will waive his right to be present and trial shall
proceed in absentia

4.

Bondsman shall surrender accused for execution of judgment

Bail applies to all persons detained, not just to those charged with the offense (Herras vs. Teehankee)
Court has power to prohibit person out on bail from leaving the country (Manotoc, Jr. vs. CA)

Bail implies delivery of the accused to the sureties who, though not holding him prisoner, may seize him
and imprison him until they can deliver him to court (US vs. Bonoan)
2. General Rule: All persons are entitled to bail as a matter of right, except those charged with capital
offenses.
Right to bail traditionally unavailable to military personnel facing court martial, who are not in the same
class as civilians (Comendador vs. de Villa)
Bail should be available regardless of other circumstances or the merits of the case, if the health or the life
of the detainee is in danger (Dela Rama vs. Peoples Court)
Excessive bail is tantamount to denial of bail, which is unconstitutional (Dela Camara vs. Enage)
3. When bail is a matter of right
Before or after conviction by MTC, MCTC, MJC
Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment
4.

When bail is discretionary (application filed with court where case is pending)
1.

Upon conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment

2.

Provisional liberty under same circs. but during period to appeal subject to consent of bondsman

3.

In case he has applied for probation after final judgment, he may be allowed temporary liberty under his bail or
recognizance

5. Procedure
a.

Offense charged is not capital:

i.

Accused applies for bail

(1) Where information against him was filed or where case is pending
(2) Absent (1), in another branch of the same court within the province or city where he is held
(3) If arrested in another province, city or municipality, file with the RTC
(4) Absent (3), with the MTC
1.

Judge sets bail


1.

Accused may move to reduce bail, and hearing will be set

2.

Accused posts bail and deposits the same with the Municipal/City/Provincial Treasurer or, if cash, with
the Collector of Internal Revenue

3.

Accused is released

b. Offense charged is capital:


1.

Accused petitions for bail

2.

Judge sets hearing to determine whether evidence of guilt is strong

Ex-parte hearing on bail is arbitrary and unacceptable (Herras vs. Teehankee)


1.

Prosecution presents evidence


1.

Court may not force fiscal to produce evidence (Herras vs. Teehankee)

2.

If evidence is strong, bail is denied


1.

Otherwise, judge sets bail and procedure for non-capital offense is followed

In capital crimes, judges discretion is limited to determining strength of evidence and does not cover
determining whether bail should be allowed (Herras vs. Teehankee)
Evidence must be strong that the accused is guilty of the capital offense charged, not just of any offense
(Bernardez vs. Valera)
6. Bail bond an obligation under seal given by accused with one or more sureties and made payable to
proper officer with the condition to be void upon performance by the accused of such acts as he may legally
be required to perform
7. Recognizance

1.

Obligation of record entered into before some court of magistrate duly authorized to take it, with the condition to
do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial

2.

Does not require signature of accused for trial

3.

Does not require signature of accused to be valid

8. Prosecution witnesses may be required to post bail to ensure their appearance at the trial,except:
1.

Substitution of info (see R110, 14)

2.

Court believes that material witness may not appear at the trial

9. When bail required under RA 6036 (violation of ordinance, light felony, criminal offense not higher that
6 month imprisonment and/or P2000 fine, or both)
1.

a.

2.

Confessed to commission of offense unless repudiated (force and intimidation)

Caught in flagrante

3.

Previously escaped, evaded sentence or jumped bail

4.

Violation of Sec. 2 (fails to report to clerk of court periodically under his recognizance)

5.

Recidivist, habitual delinquent previously convicted for an offense to which the law or ordinance attaches an
equal or greater penalty or for 2 or more offenses to which it attaches a lighter penalty

6.

Committed offense while on parole or under conditional pardon

7.

Previously pardoned by municipal or city mayor for violation of ordinance for at least 2 times

10. Instances when accused may be released on recognizance:


1.

Offense charged is a violation of an ordinance, a light felony or criminal offense the imposable penalty to which
does not exceed 6 months and or P2000 fine

2.

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

3.

Accused has applied for probation and before the same has been resolved, but NO BAIL was filed or accused is
incapable of filing one

4.

Youthful offender held for physical and mental examination, trial or appeal, if unable to furnish bail

11. Cancellation of bail


a. Upon application with the court and due notice to the fiscal
1.

Accused surrenders back to custody


1.

Accused dies

b. Automatic cancellation
1.

Case is dismissed
1.

Accused is acquitted

2.

Accused is convicted and surrenders for execution of judgment

12. When bail cancelled or denied: after RTC imposes imprisonment exceeding 6 years, but not more than 20
years, and:
1.

Accused is a recidivist, quasi-recidivist, habitual delinquent or guilty of the aggravating circumstance of


reiteration;

2.

Provisionally escaped, evaded sentence, violated provisions of bail;

3.

Committed offense while on probation, parole, or conditional pardon;

4.

Probability of flight; or

5.

Undue risk that during appeal, he may commit another crime

13. When bail is forfeited


a. Accused fails to appear before court when required
30 days for bondsman to show cause why judgment should not be rendered against him
b. Bondsman fails to produce him within 30 days
c. Bondsman fails to satisfactorily explain to the court why accused did not appear when first required to do
so

Sureties guarantee only appearance of the accused, not his conduct (US vs. Bonoan)
Sureties exonerated if appearance made impossible by an act of God, the obligee or the law (US vs. Bonoan)
14. Provisional forfeiture
1.

Within 30 days, produce the body or give reason for non-production AND

2.

Explain satisfactorily the absence of the accused when first required to appear

15. Remedies
1.

Application for bail, when bail can be availed of as a matter of right

2.

Petition for bail, when the offense charged is a capital offense

For judge to set hearing for the determination of strength of evidence of guilt
16. Circumstances to be considered in fixing amount of bail:
1.

Financial ability of accused to give bail;

2.

Nature and circumstances of offense;

3.

Penalty of offense charged;

4.

Character and reputation of accused;

5.

Age and health of accused

6.

Weight of evidence against accused

7.

Probability of accused appearing for trial;

8.

Forfeiture of other bonds;

9.

Fact that accused was a fugitive from justice when arrested; and

10.

Pendency of other cases in which the accused is under bond

17. Notes:
1.

Posting bail waives the right to question any irregularity attending the arrest of a person (Callanta vs.
Villanueva). However, this does not result in waiver of the inadmissibility of the articles seized incidentally to such
illegal arrest.

2.

Accused waived the right to question any irregularity in the conduct of the preliminary investigation when he
failed to do so before entering his plea (People vs. Dela Cerna)

3.

Accused out on bail may be re-arrested if he attempts to depart from the Philippines without prior court
permission (warrantless arrest allowed).

Rule 115 Rights of Accused


1. Right of the accused under the Rules
a. To be presumed innocent until proven guilty beyond reasonable doubt
In an appeal from a conviction, the accused shall again be presumed innocent until and unless his
conviction is affirmed (Castillo vs. Felix)
b. To be informed of the nature and cause of charges
The right must be substantially complied with; arraignment and later proceedings must be in a language the
accused understands (People vs. Crisologo)
c. To be present at every stage of proceedings, subject to waiver by bail
If an accused escapes, he waives this right and merits a trial in absentia; the accused forfeits his rights to
be notified of proceedings in the future and to adduce evidence in his behalf (People vs. Salas)
1.

To testify as witness on his own behalf, subject to cross-examination on matters covered by direct examination;
not to be prejudiced by his silence

2.

Not to be compelled to be a witness against himself

3.

To confront and examine the witnesses against him, including the right to use in evidence testimony of a witness

4.

Who is deceased, out of or cannot with due diligence be found in the RP


1.

Given in another proceeding

2.

With the same parties

3.

Same subject matter

4.

Opportunity to cross-examine

Prosecution has no privilege to withhold the identity of informers when such informer was crucial in the
operation itself; failure to present the informer is a denial of the right to confront the witness which merits
the reversal of the conviction (People vs. Bagano)
g. To have compulsory process to secure witnesses and evidence in his behalf
h. To have a speedy, impartial and public trial
Unreasonable postponements of trial amounts to a denial of the right to a speedy trial, entitling the
accused to mandamus to compel dismissal of the case, or to habeas corpus if he is detained
i.

To have the right of appeal

2. Rights of the accused under the Constitution


a. To due process
b. Against self-incrimination
Right is limited to testimonies; ocular inspection of the body may be allowed (Villaflor vs. Summers)
Being informed of rights means a meaningful transmission of information, without which confession made
by the accused is inadmissible (People vs. Nicandro)
Confessions obtained through coercion are inadmissible (People vs. Opida)
Right against self-incrimination and to counsel do not apply during custodial investigation (People vs. Ayson)
During trial, the right against self-incrimination takes the following form:
1.

Accused may refuse to testify

2.

If he testifies, he may refuse to answer those questions which may incriminate him in ANOTHER offense

c. Against double jeopardy


d. To be heard by himself and counsel
3. Double jeopardy
1.

First jeopardy must have attached prior to the first

2.

First jeopardy attached and terminated

3.

Valid complaint or information

c.

1.

Competent court with jurisdiction

2.

Accused had pleaded

3.

Action ended in conviction, acquittal or termination without the consent of the accused

Offense charged in later case is:


1.

Same as that in previous case


1.

Necessarily includes or is included in the previous case

2.

An attempt or frustration of the offense in previous case


1.

An offense lesser than that charged to which the accused pleaded guilty with the consent of
the fiscal and the offended party

4. Exceptions to double jeopardy


1.

The offense was made graver by supervening events

2.

The facts constituting the graver offense were only discovered after the filing of the earlier information

No double jeopardy if the new fact which justified the new charge arose only after arraignment and
conviction (People vs. City Court)
No double jeopardy where the trial was a sham since there was no competent court (Galman vs.
Sandiganbayan)
No double jeopardy if first case was dismissed with consent of the accused (Caes vs. IAC)

There is double jeopardy if a person is charged twice under different penal statutes for the same acts
(People vs. Relova)
c. Plea of guilty to a lesser offense without the consent of the fiscal and the offended party
5. Remedies
1.

Motion to quash

2.

Motion to dismiss

Both filed on the ground of violation of accuseds rights, thereby ousting the court of jurisdiction
6. NOTES:
Constitution, Art. III, Sec. 1
No person shall be deprived of life, liberty or property without due process of law, nor shall any person be
denied the equal protection of the laws.
Constitution, Art. III, Sec. 14
1.
2.

No person shall be held to answer for a criminal offense without due process of law.
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be informed of the nature and cause of the accusations against him, to have a speedy, impartial and
public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.

However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and that his failure to appear is unjustifiable.
Constitution, Art. III, Sec. 16
All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
Constitution, Art. III, Sec. 17
No person shall be compelled to be a witness against himself.
Constitution, Art. III, Sec. 21
No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law or ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.
Rule 116 Arraignment and Plea
1. Procedure
1.

2.

Court informs accused of his right to counsel and asks him if he wants one
Court appoints counsel de oficio if accused has none

If no such member of the available, any person who is a resident of the province, of good repute for probity
and ability to defend accused
c. Court gives counsel time to confer with accused at least an hour before arraignment
Period allowed for counsel de oficio to confer with accused must be substantially complied with; if not,
case may be remanded for re-arraignment (People vs. Gonzaga)
1.

Accused given a copy of the information, which is read to him in a language he understands

2.

Accused is asked whether he pleads guilty or not guilty

3.

Accused files a motion to quash or makes plea

4.

Accused personally makes his plea

5.

Plea is entered into record

6.

If accused makes plea of not guilty, counsel has at least 2 days to prepare for trial

People vs. Agbayani the right for 2 days to prepare must be expressly demanded. Only when so demanded
does denial thereof constitute reversible error and ground for new trial. Further, such right may be waived,
expressly or impliedly.
NOTE, HOWEVER, under SC Circular 38-98 (implementing Speedy Trial Act of 1997), accused must be
given at least 15 days to prepare for trial, which shall commence within 30 days from receipt of Pre-Trial
Order.
j.

Case proceeds to pre-trial, trial or hearing, depending on the plea

Statement in the judgment that the accused was arraigned and pleaded is sufficient; the manner of
statement of such fact is immaterial (People vs. Cariaga)
2. Kinds of plea
1.

No plea a plea of not guilty shall be entered

2.

Conditional plea of guilt a plea of not guilty shall be entered

3.

Not guilty case proceeds to trial or pre-trial

4.

Guilty to a lesser offense if fiscal and offended party consents, conviction under offense charged for purposes of
double jeopardy

5.

Info may be amended


1.

Case goes to trial

2.

Even if info is not amended, and even if lesser offense is not included in offense charged, court may still
find the accused guilty of that lesser offense

e. Guilty to a capital offense


Court conducts searching inquiry to determine if accused was aware of the charges, of his plea, and its
consequences
Court requires prosecution to present evidence to prove guilt of accused and determine his degree of
culpability, and accused may still establish presence of mitigating circumstances in his favor
f.

Guilty to a non-capital offense

Court receives evidence from the parties to determine penalty to impose


Plea of guilty not necessarily followed by conviction. Upon receipt of exculpatory evidence (if accused
pleaded guilty), trial court should consider the plea withdrawn and in its place, order the plea of not guilty
Plea of guilty waives only defects which may be taken advantage of by motion to quash or by plea in
abatement; cannot cure jurisdictional defects.
3. Effects
a. Entry of plea will waive
1.

Right to question illegality of the arrest

2.

Right to question any irregularity in the preliminary investigation

3.

Right to file a motion to quash

b. Improvident plea of guilty may be changed to not guilty any time before judgment is rendered
c. A plea of not guilty may not be changed to guilty, as doing so would only spare the prosecution of
presenting evidence and still result in the conviction of the accused.
4. Remedies
a. Motion for specification

May be filed any time before plea, even after a MTQ


Filed when the information is insufficient in form or is generally worded, that a Bill of Particulars is
necessary to clarify the acts for which the accused is being charged
b. Motion to quash
May be filed at anytime before plea is entered
Based on grounds provided by the rules
c. Motion to suspend arraignment
Filed when the accused seems mentally unsound or if there is a prejudicial question in a pending civil case
d. Motion to withdraw an improvident plea of guilt
May be filed at any time before judgment of conviction becomes final, when it can be shown that the
accused was not aware of the significance of pleading guilty to the charges
Rule 117 Motion to Quash
1.
Motion to quash a hypothetical admission that even if all the facts alleged were true, the accused still
cannot be convicted due to other reasons
2. When to file Motion to Quash
General Rule: Before entering plea; all grounds not raised deemed waived
Exception: The following grounds may be used in MTQ even after plea
1.

No offense charged

2.

Lack of jurisdiction over the offense charged

3.

Extinction of the offense or of the penalty

4.

Double jeopardy

3. Grounds
a. Information does not conform to prescribed form
For the info to charge a complex crime, it is not necessary that it be defined by law, only that it alleges that
one offense was necessary to commit the other (People vs. Alagao)
b. Court has no jurisdiction
1.
2.

No territorial jurisdiction
No jurisdiction over offense charged may be raised at any time; no waiver considered even upon failure to
move to quash on such ground

3.

No jurisdiction over person of the accused

The court gained jurisdiction over the person of the accused when he voluntarily appeared for the presuspension hearing (Layosa vs. Rodriguez)
c. Accused would be put in double jeopardy
Bars another prosecution
No waiver
No double jeopardy if first case was dismissed with the consent of the accused (Que vs. Cosico), unless
ground for dismissal is: (a) denial of right to speedy trial; or (b) insufficiency of evidence.
If the first case was dismissed due to a deficient information, then there was no valid information and there
could be no double jeopardy (Caniza vs. People)
Cudia vs CA it should be the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should
prepare informations for offenses committed within Pampanga but outside Angeles City. An information must

be prepared and presented by the prosecuting attorney or someone authorized by law. If not, the court does
not acquire jurisdiction. Although failure to file a motion to quash the information is a waiver of all
objections to it insofar as formal objections to pleadings are concerned, questions relating to want of
jurisdiction may be raised at any stage of the proceedings. Moreover, since the complaint or information was
insufficient because it was so defective in form or substance that conviction upon it could not have been
sustained, its dismissal without the consent of the accused cannot be pleaded as prior jeopardy, and will not
be a bar to a second prosecution.
d. More than one offense was charged, EXCEPT where law prescribes single punishment for various offenses
e. Facts alleged do not constitute an offense
May be raised at any time
No waiver
For charge to be complete, it is necessary to state that it was exempted from any amnesty existing at the
time
f.

Criminal action or liability has been extinguished

g. Information contains allegations which, if true, would be a legal excuse or justification


h. Officer who filed the information had no authority
Presentation of evidence cannot cure an invalid information (People vs. Asuncion)
NOTE: Court will consider no other grounds other than those raised, EXCEPT lack of jurisdiction over offense
charged.
4. Requisites of Double jeopardy
a. Valid information or complaint, sufficient in form and substance
b. Before court of competent jurisdiction
Doctrine of Jurisdiction by Estoppel: depends upon whether the lower court actually had jurisdiction or
not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the
parties are not barred on appeal, from assailing such jurisdiction, for the same must exist as a matter of law,
and may not be conferred by consent of the parties or by estoppel. However, if the lower court had
jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court
had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume
an inconsistent position that the lower court had jurisdiction. Here, the principle of estoppel applies. The
rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing
thereon.
c. Accused had pleaded
d. Conviction, acquittal, or dismissal or termination of case without consent of accused
e. Bar to offense charged, attempt to commit the same or necessarily includes or is necessarily included
Conviction for physical injuries through reckless imprudence constitutes double jeopardy to the charge of
damage to property through reckless imprudence.
5. Procedure
1.

MTQ filed

2.

If based on defect in info which can be cured, court shall order its amendment

3.

Quashing the info shall NOT be a bar to subsequent prosecution (accused has not pleaded yet), EXCEPT when the
ground is:
1.

Double jeopardy OR

2.

Extinction of criminal liability

6. Remedies
1.

Motion to dismiss if certain grounds were not raised or denied in a MTQ

2.

Trial

If there was really no basis for the info, then such could be proved in the trial
Upon denial of a MTQ, the proper remedy is to go on trial and later to appeal, if necessary; mandamus
or certiorari will only be granted if there is not other plain, simple and adequate remedy
7. Failure to move to quash or to allege any ground therefor deemed a waiver of such grounds, except:
1.

Failure to charge an offense

2.

Lack of jurisdiction over the offense charged

3.

Extinction of the offense or of the penalty

4.

Double jeopardy

Rule 118 Pre-Trial


1. Plea bargaining process whereby the accused and the prosecution in a criminal case work out a
mutually satisfactory disposition of the case subject to court approval. It usually involves the defendants
pleading guilty to a lesser offense or to only some of the counts of a multi-count indictment in return for a
lighter sentence than that for the greater charge.
Under Speedy Trial Act of 1997, in all criminal cases cognizable by the MTC, MCTC, MeTC, RTC and
Sandiganbayan, pretrial is mandatory.
Under SC Circular 38-98, implementing the Speedy Trial Act of 1997, an accused may plea guilty to a
lesser offense only if said offense is necessarily included in the offense charged.
2. Stipulation of facts
Facts which both parties and respective counsels agree on as evidenced by their signatures; these facts
need not be proved by evidence in trial
Stipulation is inadmissible if unsigned by either accused or counsel; a later memo of confirmation, signed
only by counsel, cannot cure defect (Fule vs. CA)
3. Pre-trial order binds the parties, limits the trial to matters not yet disposed of, and controls the course of
action during the trial
4. Procedure
1.

Judge must calendar pre-trial

2.

Either party may waive the pre-trial

3.

If court appoints counsel de oficio, counsel has at least 2 days to prepare

4.

In the pre-trial conference

5.

Plea bargaining

6.

Stipulation of facts

7.

Marking of evidence (does not imply conceding to its admissibility or credibility)

8.

Waiver of objections to admissibility of evidence

9.

Other matters which will promote a fair and expeditious trial

e. Judge issues pre-trial order


Rule 119 Trial
1. In trial, the defense tries
1.

To assail the admissibility of evidence which prove the elements of the offense charged

2.

To assail the credibility of such evidence

3.

To prove another version, possibly admitting certain evidence of the prosecution and adding other evidence to
cast reasonable doubt

Even in summary procedure, the judge cannot base his decision simply on affidavits; he must give the
defendant the chance to cross-examine (Combate vs. San Jose)
2. Procedure

a. Parties notified of date of trial 2 days before trial date (R119, 1)


HOWEVER, under SC Circular 38-98, accused must be given at least 15 days to prepare for trial, which shall
commence within 30 days from receipt of Pre-Trial Order.
1.

Accused may move that his witnesses be examined

2.

Defense witnesses examined by any judge or lawyer

3.

Prosecution witnesses, if they would be unable to attend trial, may be examined by the judge handling the case

4.

Trial continues from day to day, unless postponed for a just cause

5.

Prosecution presents evidence

Presentation
Testimonies: direct examination
Cross-examination
Re-cross
Offer
1.

Accused may move for discharge

2.

Prosecution rests

3.

Defense may, with or without leave of court, file a demurrer to evidence

4.

Defense presents evidence

5.

Defense rests

6.

Prosecution presents rebuttal evidence

7.

Defense presents rebuttal evidence

8.

Trial is closed; case is submitted for judgment

3. When mistake made in charging proper offense


1.

If Accused cannot be convicted of offense charged or offense necessarily included therein

2.

Accused detained, not discharged

3.

Original case dismissed upon filing of proper information

Example: Charged with theft. At trial, appears that offense is estafa. The prosecution can ask for the
dismissal of the info in order to file a new one for estafa. No Double Jeopardy because no valid info in the
first case.
4. Application for examination of witnesses for accused before trial

5.

1.

Sick or infirm; unable to attend trial

2.

Resides more than 100 km. from means of trial; no means to attend

Application (prosecution)
1.

Sick or infirm

2.

Has to leave the RP with indefinite date of returning

6. Requisites for postponement due to absence of a witness


1.

Witness is really material and appears to the court to be so

2.

Party who applies for postponement has not been guilty of neglect

3.

Witness can be had at the time to which the trial has been deferred

4.

No similar evidence could be obtained

7. Requisites to discharge of an accused as State Witness


1.

Testimony of accused absolutely needed

2.

No other direct evidence available EXCEPT his testimony

3.

Testimony can be corroborated on material points

4.

Accused does not appear to be most guilty

5.

Accused has never been convicted of offense involving moral turpitude

Discharge of accused, when not all the requisites were met, cannot be revoked as long as he testified
according to what was expected of him (People vs. Aninon)
8. Remedies
a. Motion for separate trials
Filed by the fiscal to try several accused separately
Granted at the courts discretion
May also be ordered by the court motu proprio
b. Motion to consolidate
Upon the courts discretion, separate charges may be tried in one single case if the offenses charged arise
form the same facts or form part of a series of similar offenses
Court allowed consolidation of rape cases substantially committed in the same manner (People vs. David)
c. Motion for continuance filed to postpone trial for just cause
d. Motion to exclude public
Excluding parties, counsels and court personnel
May also be ordered by court motu proprio
e. Motion for discharge
Filed before the prosecution rests
Hearing to determine existence of requisites for discharge
Prosecution will present evidence and the sworn statement of the proposed state witness
Evidence adduced in this said hearing automatically form part of trial; however, if court denies motion for
discharge, his sworn statement shall be inadmissible in evidence.
Discharge of the accused has the effect of acquittal, unless accused fails or refuses to testify against his coaccused in accordance with his statement (which formed the basis for his discharge)
f.

Demurrer to evidence

May be made after the prosecution rests its case


If the court finds the prosecutions evidence insufficient, the case will be dismissed
Otherwise, if demurrer denied
1.
2.

If the demurrer was made with leave of court, defense gets to present evidence
If the demurrer was made without leave of court, defense is deemed to have waived the right to present evidence
and the case is submitted for judgment

Case may also be dismissed motu proprio


g. Motion to reopen
Filed after the case is submitted for judgment but before judgment is actually rendered
To allow either side to present additional evidence, if such could not be found before
Granted on discretion of the judge

The accused cannot move to reopen the case to allow him to adduce evidence in his behalf when his failure
to adduce them during the trial was his own fault (People vs. Cruz)
Rule 120 Judgment
1. Judgment 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 provided by law on the accused
2. General Rule: If the accused is found not guilty, he will be acquitted and the acquittal immediately
becomes final and executory. If the accused is found guilty, penalty and civil liability will be imposed on him.
3. Accused may be convicted of
1.

The offense charged

2.

A lesser offense necessarily included in the offense charged

Accused cannot be convicted for an offense graver than that charged (People vs. Guevarra)
4. Contents
1.

Written in official language

2.

Personally prepared and signed by the judge

3.

Contains facts proved

4.

Contains law upon which judgment is based

In case of conviction, judgment must state:


1.

Legal qualification of offense and aggravating and mitigating circumstances

2.

Level of participation

3.

Penalty imposed

4.

Civil liability for damages, unless right to separate civil action has been reserved

In case of acquittal, judgment must state:


1.

Civil liability for damages, unless acts alleged clearly did not exist

2.

Basis of liability

5. Procedure
1.

Judge reads judgment in presence of accused

2.

If judgment is of acquittal

3.

It becomes final and executory

4.

It bars subsequent prosecution for the same offense

c. If judgment is of conviction, remedy is to file:


1.

Motion for reconsideration

2.

Motion for new trial

3.

Notice of appeal

Or else, judgment becomes final and is entered in the book of Judgments


6.

When judgment in a criminal case becomes final:


1.

After lapse of period for perfecting an appeal; or

2.

When sentence partially or totally satisfied or served; or

3.

Accused has expressly waived in writing his right to appeal, EXCEPT in cases of automatic review where death
penalty is imposed

4.

Accused has applied for probation

7. Only a judgment in conviction can be modified or set aside


1.

Before judgment had been final (otherwise double jeopardy);

2.

Before appeal had been perfected; or

3.

To correct clerical errors in the judgment

8. Remedies
a. Appeal

Filed within 15 days of promulgation of judgment


Period is interrupted by filing of a motion for new trial or reconsideration
On motion of accused or at its own instance with consent of the accused
b. Motion for reconsideration
Filed when there are errors of law or fact in the judgment
Shall require no further proceedings
Notice should be given to the fiscal
c. Motion for new trial
Notice should be given to the fiscal
Filed on the following grounds:
1.

Error of law or irregularities have been made during trial which are prejudicial to the substantial rights of the
accused

ii. New evidence has been found which could not have been found before and which could change the
judgment
9. Procedure for new trial
1.

Hearing shall be set and held

2.

All evidence not alleged to be in error shall stand

3.

New evidence will be introduced

4.

Old judgment may be set aside and a new one rendered

10. Notes:
Suspension of sentence for youthful offenders after conviction, minor is committed to custody and care of
DSWD or any training institution until reaches 21 years of age, or a shorter period
Probation disposition under which a defendant after conviction and sentences, is released subject to
conditions imposed by the court and to the supervision of a probation officer
Parole the conditional release of an offender from a penal or correctional institution after he has served
the minimum period of his prison sentence under the continued custody of the state and under conditions
that permit his reincarceration if he violated the conditions of his release
Rule 121 New Trial or Reconsideration
1. Reopening of the case
1.

Made by the court before judgment is rendered in the exercise of sound discretion

2.

Does not require consent of accused

3.

May be made at the instance of either party who can thereafter present additional evidence

2. Motion for new trial

3.

1.

Filed after judgment is rendered but before the finality thereof

2.

At the instance or with the consent of the accused

3.

The prosecution can move only for the reconsideration of the judgment but cannot present additional evidence

Motion for New Trial is denied if:


1.

Only impeaching evidence is sought to be introduced as the court had already passed upon issue of credibility

2.

Only corroborative evidence is offered

3.

Prisoner admits commission of crime with which accused is charged (facility with which such confession can be
obtained and fabricated)

4.
5.

Alleged new evidence is inherently improbable and could easily be concocted


Alleged new evidence consists of recantations of prosecution witness, due to unreliability of such recantations,
EXCEPT if no other evidence to sustain conviction aside from recanted testimony

4. New Trial vs. Reconsideration


Motion for recon is based on the grounds of errors of law in the judgment is court is not asked to reopen
the case for further proceedings, but to reconsider its findings or conclusions of law and make them
conformable to the law applicable to the case on the judgment the court has to render anew.
5. New Trial vs. Modification of Judgment
In New Trial, irregularities are expunged from the record and/or new evidence is introduced. In
modification of judgment, no new hearings or proceedings of any kind or change in the record or evidence. A
simple modification is made on the basis of what is on the record.
6. New Trial vs. Reopening of the Case
New trial presupposes that existence of a judgment to be set aside upon the granting of a new trial
In reopening, no judgment has yet been rendered, although the hearing may have already been closed
7. Motion for Reconsideration
Grounds are errors of law or fact in judgment, which require no further proceedings.
8. Effects of Granting Motion for New Trial or Reconsideration
a. Based on error of law or irregularities during trial:
Proceedings and evidence not affected by irregularities stand, and those affected are set aside. Court may
allow introduction of new evidence
b. Based on newly discovered evidence:
Evidence already taken shall stand; new evidence taken with the old
Rule 122 Appeal
1. Procedure
a. Filed with RTC, if original case was with MTC
Notice served to lower court and to adverse party
b. Filed with the CA or SC, if original case was with RTC
i.

With CA: notice of appeal with court, and with copy on adverse party

If CA is of opinion that penalty should be reclusion perpetua or higher, it shall render judgment imposing
said penalty, but refrain from entering judgment and then certify the case and the entire record thereof to
the SC for review (R124, 13)
CA may reverse, affirm, or modify judgment of RTC, or remand case for new trial or re-trial, or dismiss the
case
If RTC decided case in appellate jurisdiction: Petition for Review
ii. With SC: notice of appeal where penalty imposed is life imprisonment, or lesser penalty involving
offenses committed on the same occasion, or arising out of same occurrence where graver penalty of death is
available but life imprisonment is imposed; all other cases, by petition for review on certiorari
If death penalty, automatic review
iii. Withdrawal of appeal

May be made at any time before judgment on the appeal is rendered


Lower court judgment becomes final
Case remanded for execution of judgment
Once notice of appeal is filed, cannot be validly withdrawn to give way for a Motion for Recon or a Motion
for New Trial, since the filing of the notice perfected the appeal, and the trial court loses its power to modify
or set aside the judgment. The only valid withdrawal of an appeal is where the accused decides to serve his
sentence.
2. Effect of appeal by any of several accused
1.

Shall not affect those who did not appeal, EXCEPT if favorable and applicable to them

2.

Civil appeal by offended party shall not affect criminal aspect of judgment

3.

Execution of judgment on appellant will be stayed upon perfection of appeal

3. When appeal by prosecution from order of dismissal of criminal case will not result in double jeopardy
1.

Dismissal made upon motion or with express consent of the accused

2.

Dismissal is not an acquittal nor based upon consideration of the evidence or merits of the case

3.

Question to be passed upon by the appellate court is purely legal so that if the dismissal is found incorrect, the
case has to be remanded to the court of origin to determine the guilt or innocence of the accused

4. When serving sentence, remedy is to petition for habeas corpus


1.

Filed when the law under which the accused was convicted is repealed or declared unconstitutional

2.

When a later judgment is rendered acquitting others for similar circumstances

Otherwise, equal protection is violated


1.

When penalty is lowered and convict has already served more than the maximum period of the new penalty

Habeas corpus is available when a person is imprisoned beyond the maximum penalty imposed by law
(Gumabon vs. Dir. of Prisons)
NOTE: When dismissal is capricious, certiorari lies and no double jeopardy since validity and not correctness
of dismissal is being challenged.
Rule 126 Search and Seizure
1. Search warrant an order in writing issued in the name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search for personal property described therein and bring
it before the court
Cannot be issued to look for evidence (Uy Khetin vs. Villareal)
Seizing objects to be used as evidence is equivalent to forcing one to be a witness against himself (Uy
Khetin vs. Villareal)
For a warrant to be valid, it must meet the requirements set by law (Burgos vs. Chief of Staff)
Tapping conversations is equivalent to a search and seizure (US vs. Katz)
2. General Rule: No search or seizure can be conducted unless it is authorized by a search warrant. Evidence
gathered from an illegal search and seizure is inadmissible.
Warrantless searches are illegal, unreasonable and unconstitutional (Alvarez vs. CFI)
It is not the police action which is impermissible, but the procedure and unreasonable character by which it
is exercised (Guazon vs. de Villa)
Court gains jurisdiction over items seized by a valid search warrant and returned to it, and such is not an
unconstitutional deprivation of property (Villanueva vs. Querubin)
Evidence from an illegal search may be used as evidence, if no objection is raised (Stonehill vs. Diokno)
Right against unreasonable search and seizure may be waived, but for the waiver to be effective:
1.

The right must exist

2.

Person must be aware of the right

3.

Person clearly shows the intent to relinquish such right

No waiver against unreasonable search and seizure when one compromises the criminal proceedings
(Alvarez vs. CFI)
There is no waiver of right when evidence of coercion is present (Roan vs. Gonzales)

3. Requisites of a valid search warrant


a. Issued upon probable cause
Probable cause such facts and circumstances which would lead a reasonably prudent man to believe that a
crime has been committed and the thing to be searched for and seized is in the place to be searched
b. Probable cause is personally determined by the issuing judge
Hence, signed by him
By any RTC, to be served anywhere in the country, for an offense which occurred anywhere in the country
(Malaloan vs. CA)
c. Issuing judge personally examined, in the form of searching questions, the appellant and his witness and
took down their written depositions
d. Search warrant particularly describes or identifies the property to be seized
Property which men may lawfully possess may not be the object of a search warrant (Uy Khetin vs.
Villareal)
Nature of goods may allow description to be general or not too technical (Alvarez vs. CFI)
e. Particularly describes the place to be searched
f.

It shall issue only for one specific offense

Otherwise, cannot be said to have issued upon probable cause (Asian Surety vs. Herrera)
Absence of specific offense makes impossible determination of probable cause (Stonehill vs. Diokno)
g. Was not issued for more than 10 days prior to a search made pursuant thereto (search warrant becomes
void after 10 days)
h. Indicates time, if to be served at night
4. When a search warrant may be said to particularly describe the thing to be seized
1.

Description is as specific as circumstances allow

2.

Expresses a conclusion of fact by which the warrant officer may be guided

3.

Things described are limited to those which bear a direct relation to the offense for which the warrant is issued

5. Procedure
a. Complainant files application, attaches affidavits
Oath requires that the person taking it personally knows the facts of the case (People vs. Sy Juco)
Affidavits submitted must state that the premises is occupied by the person against whom the warrant is
issued, that the objects to be seized are fruits or means of committing a crime, and that they belong to the
same person, thus, not affecting third persons (People vs. Sy Juco)
When complainants knowledge is hearsay, affidavits of witnesses are necessary (Alvarez vs. CFI)
b. Judge conducts ex parte preliminary examination of complainant and witnesses under oath to determine
probable cause
Judge must ask probing questions, not just repeat facts in the affidavit (Roan vs. Gonzales)
c. Judge issues search warrant good for 10 days
d. Peace officer in presence of occupant, members of the family OR 2 witnesses of sufficient age and
discretion residing in the same locality
Search may last for more than a day as long as it is part of the same search for the same purpose and of the
same place (Uy Khetin vs. Villareal)

e. Peace officer leaves receipt with occupant at place searched


f. Peace officer files return of search warrant and inventory, and surrenders items seized to receiving court
(not necessarily court which issued the warrant)
Items seized illegally must remain in custodia legis pending resolution of the case (Roan vs. Gonzales)
6. Remedies from an unlawful search
1.

MTQ the warrant

2.

Motion to suppress as evidence the objects illegally taken

3.

Return of property illegally seized

7. When a search may be validly conducted without a warrant


1.

Without consent of person searched

2.

When the search is incident to a lawful arrest

3.

Personal knowledge of the arresting person (Posadas vs. CA)

4.

Limited to:

(1) Immediate time of arrest


(2) Immediate vicinity of the arrest
(3) Weapons and things which may be used as proof of offense charged (Nolasco vs. Pano)
iii. Subject in an offense which is mala prohibita cannot be summarily seized (Roan vs. Gonzales)
iv. May extend beyond arrestee to include premises and surrounding under his immediate control
1.

Border searches (customs, mail and airport)

2.

Vessels and aircrafts for violation of Tariff and Customs Code, EXCEPT dwelling houses

3.

Plain view

4.

Moving vehicle

5.

Hot pursuit

6.

Stop-and-frisk, reasonable check-points

7.

Private searches with no state action (People vs. Marti)

8.

Inspection of building and premises for enforcement of fire, sanitary and building regulations

8. Person making the arrest may take from the arrestee


1.

Properties used in the commission of the crime

2.

Fruits or proceeds thereof

3.

Property which may furnish the arrestee with a weapon against the arresting person

4.

Property which may be used as evidence at the trial

9. NOTES:
Constitution, Art. III, Sec. 2
The right of the people to be secure in their persons, papers, houses and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Constitution, Art. III, Sec. 3
1.

The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.

2.

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in the
proceeding.

Rule 127 Provisional Remedies in Criminal Cases


1. Attachment as provisional remedy in criminal cases

1.
2.

Accused is about to abscond from RP


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 a fiduciary capacity, in willful violation of duty

3.

Accused has concealed, removed or disposed of his property, or is about to do so

4.

Accused resides outside the RP