Criminal Procedure the offended party to make the reservation of his right to
(Atty. Daniel D. Mangallay) file a separate action. (In other words, pleading guilty to a
Rule 111. Prosecution of Civil Action
General Rule. When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the
offense shall be deemed instituted with the criminal
action.
Reason for the Rule: Every person criminally liable is also
civilly liable (Art. 100, Revised Penal Code). A criminal
action has two aspects- the criminal and the civil aspect.
One source of obligation is delict or acts or omissions
punishable by law. The law abhors splitting the criminal and
civil aspect of a criminal action since it goes against efficient
and speedy disposition of cases.
Exceptions to the General Rule:
1. When the offended party waives the civil action.
2. When the offended party reserves the right to
institute a separate action.
3. When the offended party institutes civil action
prior to the institution of a criminal action.
In the civil aspect of the criminal action, the real parties
in interest are the offended party and the accused. As a
consequence, both the offended party and the accused
may file an appeal in relation to the civil aspect of the case.
While the law and rules prohibit double recovery, there is
no violation of the right of an accused against double
jeopardy if the offended party files an appeal to seek an
increase in the award of an accused’s civil liability. The right
against double jeopardy applies only to criminal cases.
Reservation of the Right to Institute a Separate Civil
Action
When may an offended party reserve the right to file a
separate action?
At anytime before the prosecution starts
presenting its evidence but always under such
circumstances that afford the offended party a reasonable
opportunity to make such reasonable opportunity to make
such reservation (Rule 111 Section 1).
(Note that it is not enough to simply answer “at anytime
before the prosecution starts presenting its evidence”. It
must be complete as to include the phrase “under such
circumstances that afford the offended party a reasonable
opportunity to make such reservation. The relevance of this
phrase will be shown below)
What is the reason for the inclusion of the phrase “under
such circumstances that afford the offended party a
reasonable opportunity to make such reservation”?
This rule is added to address a situation where the
accused pleads guilty to a non-capital offense in order to
escape civil liability (as shown by some cases that have
reached the Supreme Court). In such instance, no trial shall
be made and the prosecution cannot present its evidence.
Nonetheless, a reasonable opportunity shall be given for
1
non-capital offense in order to escape civil liability arising
from the offense is not allowed.)
Case: A makes a valid plea of guilty for the crime of
Homicide. The prosecution no longer presents evidence to
prove A’s guilt. B, the offended party, chooses to reserve
the right to institute a separate civil action. A objected on
the ground that he may not do so because there will be no
presentation of evidence by the prosecution. Will A’s
contention prosper? (Menses v. Luat 12 SCRA 454: Reyes
v. Simpio 141 SCRA 208)
No, A is incorrect. B must be afforded reasonable
opportunity to reserve his right to institute a separate civil
action.
What if the accused pleads guilty to a capital offense?
The prosecution still needs to prove the guilt of
the accused along with his civil liability. There is no rule
requiring automatic conviction for a capital offense upon a
valid guilty plea.
Are there cases where the offended party cannot reserve
his right to institute a separate civil action?
Yes. These are criminal actions for violation of BP
22 and those that fall within the jurisdiction of the
Sandiganbayan. In cases for violation of BP 22, the liability
is essentially civil. On the other hand, in cases falling within
the jurisdiction of the Sandigandbayan, the offended party
is the State.
In criminal actions for violation of BP 22, may the
offended party still waive the civil liability arising from the
offense or institute a prior civil action to recover it?
Yes. Only reservation of the right to file a separate
civil action is prohibited by the rules.
Case: A killed her spouse, B. A was subsequently charged
with parricide for which she was found guilty. A and B had
common children who are still minors. Prior to the
presentation of evidence by the prosecution, B’s heirs
never made any reservation to file a separate civil action
to enforce the civil liability arising from the offense.
Considering that the children are still minor, the judge
ordered a reservation of their right to institute a separate
action until a guardian for them has been appointed.
Nonetheless, despite its prior order, the trial court
awarded damages in favor of A and B’s common children.
A assailed the award on the ground that the right to
institute a separate civil action has been reserved.
Is A correct? (People v. Samson, 7 SCRA 478)
No, A is incorrect. The reservation to institute a
separate action is personal. It may only be done by the
offended party. Not even the court can make such
reservation on behalf of the offended party.
 Independent Civil Actions
What is an independent civil action? (Rule 111 Sec. 3, Art.
32, 33, 34 and 2176 of the Civil Code)
They are civil actions that may proceed
independently of the criminal action. They are totally
distinct and separate from the civil liability arising from the
criminal action. They are characterized by the separability
of their juridical cause/cause of action. As a consequence,
the right to bring these actions need not be reserved, and
the institution of a prior civil action or waiver of the civil
liability does not extinguish the right to file an independent
civil action.
What are the different independent civil actions?
The following are the different independent civil actions:
1. Civil actions arising from Art. 32 of the Civil Code -
Violation of Political and Civil Liberties.
2. Civil actions arising from Art. 33 of the Civil Code -
Defamation, Fraud (including estafa as fraud is used
in its generic sense) and Physical Injuries (still in
generic sense- includes all offenses resulting to
physical injuries)
3. Civil actions arising from Art. 34 of the Civil Code –
Failure to render aid by a Peace Officer, Mayor,
municipality
4. Civil Actions arising from Art. 2176 of the Civil Code –
Quasi-delicts
Waiver of Civil Liability
What is needed to make a valid waiver?
A waiver of the civil liability arising from the
offense charged needs a positive action and must also be
personal.
Institution of a Prior Civil Action
General Rule. Criminal action takes precedence over civil
actions. This means that all earlier instituted civil actions
will have to be suspended to await judgment on the
criminal actions.
Exceptions to the General Rule:
1. Independent civil actions
2. Civil Actions that involve prejudicial questions
3. Consolidation of the prior instituted civil action with
the criminal action
4. Civil Actions that do not enforce liability arising from
the offense charged
Independent civil actions and civil actions that do not
enforce liability arising from the offense charged shall
proceed unaffected by the criminal action.
If there is a consolidation of the prior instituted civil action
with the criminal action, there shall be a joint trial on the
civil and criminal aspects of the criminal case.
The existence of a prejudicial question in an earlier
instituted civil action will suspend the criminal action. In
this case, it is the civil action that truly takes precedence
over the criminal action.
2
If a civil action has been instituted prior to the criminal
action, what happens now to the civil aspect of the
criminal action?
The criminal action no longer has a civil aspect. It is
a purely criminal case.
What happens to the prior instituted civil action upon the
commencement of the criminal action? (Rule 111 Sec. 2)
It shall be suspended in whatever stage it may be
found until judgment on merits to await final judgment to
be rendered in the criminal action.
Upon a motion for consolidation, there shall be a
joint trial for the civil and criminal action for a joint
judgment. The civil action shall be consolidated in the same
criminal action. It may happen that the civil action is in a
different court. Upon consolidation, the civil action shall be
transferred to where the criminal action is.
Is a consolidation of the prior instituted civil action and
the criminal action mandatory?
No. It is not a ministerial duty of the court trying
the criminal action to grant application for consolidation of
an earlier instituted civil action.
Is the earlier instituted civil action deemed abandoned for
failure to consolidate it with the criminal action?
Yes if the civil action is one to recover civil liability
arising from a criminal action committed by government
officials in relation to their office. For all other cases, there
is no abandonment of the civil action by reason of failure to
consolidate it with the criminal action.
*Effect of failure to consolidate an earlier instituted civil
action for crimes committed by public officials in relation to
their office = Abandonment of the Civil Action
Prejudicial Question
What is a prejudicial question? (Rule 111 Sec. 5)
A prejudicial question is an issue involved in a civil
case which is similar or intimately related to the issue
raised in the criminal action, the resolution of which
determines whether or not the criminal action may
proceed.
What are the elements of a prejudicial question? (Rule
111 Sec. 5)
The following are the elements of a prejudicial question.
1. The previously instituted civil action involves an issue
similar to or intimately related to the issue raised on
the subsequent criminal action.
2. The resolution of such issue determines whether or
not the criminal action may proceed.
In what cases does a prejudicial question apply?
A prejudicial question applies only to a criminal
action and not to civil or administrative cases. For it to
apply, it is a strict requisite that there must be a prior
instituted civil action and a criminal action filed thereafter.
What is the effect of a prejudicial question? (Rule 111 Sec.
6)
When a prejudicial question exists in an earlier
instituted civil action, the criminal action shall be
suspended until judgment on the civil action.
What must be done in order to suspend the proceedings
in a criminal case due to a prejudicial question? (Rule 111
Sec. 6)
The accused must file a motion to suspend before
preliminary investigation and if the criminal action is on
trial, the motion to suspend must be filed anytime before
the prosecution rests. The court or the investigating
prosecutor cannot suspend the proceedings of criminal
action or the preliminary investigation on their own.
What kind of issue is needed for prejudicial question?
(Rule 111 Sec. 5)
For prejudicial question to exist, the issues
involved in a prior instituted civil action and the criminal
action must be so intimately related as to determine
whether the criminal action may proceed or whether the
accused is guilty or not.
Case: A and B are husband and wife, respectively. B filed a
case for concubinage against A. Thereafter, A filed a
petition to declare his marriage with B as void ab initio. B
now files a motion to suspend the proceedings of the
criminal action on the grounds of the existence of a
prejudicial question. Is there a prejudicial question in this
case?
No. There is no prejudicial question. Foremost, for
prejudicial question to exist, there must be a prior
instituted civil action and a criminal case filed thereafter. In
this case, it is the reverse. The civil case is filed after the
commencement of the criminal action.
What if in the above case, the petition for declaration of
nullity of marriage was filed earlier prior to the institution
of the criminal action for concubinage. Will there be a
prejudicial question?
There is still no prejudicial question even if the civil
case has been filed earlier. The outcome of a civil case for
annulment of marriage or declaration of a marriage as void
ab initio does not determine the guilt of the accused in
concubinage.
Suppose the petition for declaration of nullity was filed
prior to the institution of a criminal case for bigamy. Will
there be a prejudicial question?
There is still no prejudicial question. As a rule, the
validity of either the first and second marriage is not a
prejudicial question in the case of bigamy. But if the validity
of the second marriage is in question due to vitiation of or
absence of consent, such as when the accused was made to
contract the second marriage against his will by force,
threat, or duress, it now becomes a prejudicial question.
(GR No. L-15315; GR No. L-14534)
3
Effect of Acquittal on Civil Liability
General Rule. Dismissal of the criminal action does not bar
the civil action/The extinction of the criminal action does
not carry with it the extinction of the civil action unless
(exception clause) the civil action is based on the delict
and there is a finding in the criminal action that the act or
omission from which the civil liability may arise did not
exist. Such finding may not be exactly worded as such but
it could be impliedly stated. (Rule 111 Sec. 2)
Dismissal of the criminal action is still not a bar to the Civil
Action in the following cases.
1. Acquittal is based on reasonable doubt.
2. Finding by the court that the accused’s liability is civil
3. If the civil liability is not based on the crime that is
the subject matter of the criminal action.
Effect of Death of the Accused
Before Arraignment.
The criminal action must be dismissed but the
offended party may file the proper civil action against the
estate of the deceased.
After Arraignment and During the Pendency of the
Criminal Action.
The criminal liability and its corresponding civil
liability are extinguished. However, the civil liability arising
from independent civil actions and other sources obligation
aside from the delict may proceed against the estate, legal
representative or heirs of the accused.
After Conviction but During the Pendency of an Appeal
The criminal liability is extinguished. The civil
action based on the delict is also extinguished but if it is not
based on delict, it is not extinguished.
RULE 112. Preliminary Investigation
Nature of preliminary investigation
It is not a judicial function but an executive one. It
is generally inquisitorial.
While it is an executive function, it is considered a
judicial inquiry, a judicial proceeding, as it involves
opportunity to be heard for both parties, the production
and weighing of evidence and decision thereon and the
prosecutor, in the discharge of this function, acts as a quasi-
judicial officer. (Arula v. Espino, 28 SCRA 226 (1990) As
such, he must exhibit the cold neutrality of an impartial
judge.(Cruz v. People, 52 SCAD 516, 233 SCRA 439 (1994).
Purpose of preliminary investigation
The principal purpose is to determine whether a
crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof.(Drilon v.
CA, 256 SCRA 280 (1996).
Salonga v. Cruz Pano, 134 SCRA 438 (1985), sums
up the purpose and nature of PI and the duty of the
prosecutor in connection therewith, thus:
“The purpose of a PI is to secure the innocent
against hasty, malicious and oppressive prosecution and to
protect him from an open and public accusation of crime,
from trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. The
right to a PI is a statutory grant, and to withhold it would be
to transgress constitutional due process.xxx It is a part of
the guarantees of freedom and fair play which are
birthrights of all who live in our country. xxx”
Right to preliminary investigation
The right to a PI is not a constitutional but merely
a statutory right. Nonetheless it is a component part of due
process in criminal justice. It is not a mere formal or
technical right; it is a substantive right. (Go v. CA, 206 SCRA
138 (1992).
Waiver of right; when is there or no waiver.
It being a personal right, it can be waived expressly
or by implication. (People v. Lazo, 198 SCRA 274 (1991)
Nonetheless, lack of PI is not a ground to quash or dismiss
an information, nor does it affect the court’s jurisdiction.
Where there is no PI, the accused must invoke it before or
at the time of entering a plea or arraignment.
An accused who after his arrest filed bail and
proceeded to trial without previously raising the issue or
claiming lack of PI waived the same; however, it is not
waived if he also asked for PI before the bail is approved.
(Go. V. CA, 206 SCRA 138 (1992).
The refusal of the court to remand the case for PI
can be controlled by certiorari and prohibition to prevent
trial. (Romualdez v. Sandiganbayan, 244 SCRA 152 (1995).
Who are not entitled to PI?
General rule: a person accused of a crime punishable by at
least 4 years, 2 months and 1 day is entitled to PI.
Exceptions:
1. Those with lower penalty;
2. Special laws provide otherwise;
3. Cities whose charter require PI;
4. Person arrested lawfully without warrant. Inquest or
a summary investigation is conducted to determine
whether he should remain under custody and then
be charged in court if there is probable cause. The
person arrested may ask for PI, but he has to sign a
waiver of Art. 125 of RPC. This, however, does not
preclude him from applying for bail.
If prosecutors says that arrest was not lawful:
a). Recommend release;
b). Note down the disposition;
c). Prepare brief memorandum of the reasons
for the action taken; and
d). Forward to city or prov’l pros. for action.
If recommendation for release is
approved but the evidence warrants conduct of PI,
release order shall be served by officer having
custody and shall direct the officer to serve upon
detainee the subpoena or notice of PI.
4
Who may conduct PI and determine probable cause:
Provincial or city prosecutors and their assistants;
1. National and Regional State Prosecutors;
2. Other officers as maybe authorized by law.
Judges of the 1st level courts are no longer allowed
to conduct PI (Sibulo v. Toledo-Mupas, A.M. No.
MTJ-07-1686, June 12, 2008)
3. COMELEC-legal officers have concurrent (by virtue
of RA 9369) powers with other prosecuting arms of
the gov’t re: election offenses under the Omnibus
Election Code; (Art. IX, Sec. 20, Constitution)
4. Ombudsman-on its own or on complaint by any
person, any act or omission of any public officer or
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan.
5. PCGG with the assistance of the Sol Gen and other
gov’t agencies may investigate, file and prosecute
cases investigated by it. (EO No. 14, May 7, 1986)
Procedure of PI must be strictly followed
1. Filing of complaint with prosecutor;
Hierarchy before whom affidavits may be
subscribed:
- Prosecutor
- Government official
- Notary public
2. Dismissal or issuance of subpoena
a) Dismiss if no ground to conduct investigation
b) Issue subpoena if there is ground
3. Filing of counter-affidavit
4. Not in the rules but REPLY and REJOINDER may be
filed;
5. If no counter-affidavit, pros to resolve
6. Clarificatory hearing, if necessary; no right of
cross-examination (NOT INDISPENSABLE).
Questions should be coursed through the
prosecutor.
7. Determination by prosecutor-within 10 days from
termination of investigation-whether there is
ground to hold respondent for trial.
8. Resolution:
-there is ground for trial- prepare both the
resolution and information with certification that:
a) he has examined the complainant and witnesses
b) there is ground to say that a crime was
committed; c) accused probably guilty; accused
informed; d) given opportunity to controvert
-there is no ground-recommend dismissal. BUT the
absence of certification does not invalidate the
information as it is not an essential part of the it.
9. Forwarding of records for action/approval before
filing or dismissal
-10 days to approve or reverse SINCE no complaint
or information may be filed or dismissed by
investigating prosecutor without the prior written
authority of the provincial or city prosecutor.
 Rule 113. Arrest
What is arrest? (Rule 113, Sec. 1)
Arrest is the taking of a person into custody in
order that he may be bound to answer for the commission
of an offense
How is arrest made? (Rule 113, Sec. 2)
An arrest is made by an actual restraint of a person
to be arrested, or by his submission to the custody of the
person making the arrest.
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be subject
to a greater restraint than is necessary for his detention.
In the issuance of a warrant of arrest, is a judge required
to personally examine the complainant and witnesses he
may produce?
No. He only has to personally evaluate the
resolution (from the prosecutor) and the supporting
evidence.
What is the lifetime of a warrant of arrest?
There is no definite lifetime of a warrant of arrest.
It remains valid and effective until it has been executed or
otherwise recalled by the court issuing it.
What is the lifetime of a search warrant?
A search warrant has a definite 10-day lifetime
from its date of issue.
What is the remedy of a peace office if the warrant of
arrest was lost?
An arresting officer shall apply for an alias warrant
if the warrant of arrest is lost.
Duties and Rights of an Arresting Officer
Note: for the Duties and Rights of a Peace Officer – Just
read the codal.
Duties of an Arresting Officer.
1. Duty to execute warrant of arrest within 10 days
from receipt.
2. Duty to make a report to the judge within 10 days
from the expiry of the 10 day period to execute
the warrant.
3. A) In case of arrest by virtue of a warrant – duty by
the arresting officer to inform the accused of his
authority and the fact that a warrant has been
issued for his arrest.
B) In case of warrantless arrest - duty by the
arresting officer to inform the accused of his
authority and the cause for the arrest.
4. Duty to apprise the accused of his Constitutional
Rights.
5. Duty to deliver the accused to the nearest police
station or jail without necessary delay.
5
Rights of an Arresting Officer.
1. Summon assistance in effecting arrest.
2. Right to break into a building or enclosure.
3. Right to break out from a building or
enclosure.
What is the duty of an officer executing a warrant? (Rule
113, Sec. 3)
It shall be the duty of the officer executing the
warrant to arrest the accused and deliver him to the
nearest police station or jail without unnecessary delay.
This is also the same duty of a person making a valid
warrantless arrest in case of under Sec. 5, of this rule,
paragraphs a and b.
*If a question asks for the duty of an officer executing a
warrant, simply state this. But if it is asking for the duties of
an arresting officer in a generic sense, enumerate the list
above.
Is there a duty by the arresting officer not included by the
Rules?
Yes. It is the duty to apprise/inform the accused of
his Constitutional Rights.
What must an arresting officer inform the accused upon
his arrest? (People v Mahinay, 1999)
Under the Mahinay doctrine, an arresting officer
must inform the accused of his expanded Miranda rights as
follows.
1. The person arrested, detained, invited or under
custodial investigation must be informed in a language
known to and understood by him of the reason for the
arrest and he must be shown the warrant of arrest, if any;
Every other warnings, information or communication must
be in a language known to and understood by said person;
2. He must be warned that he has a right to
remain silent and that any statement he makes may be
used as evidence against him;
3. He must be informed that he has the right to be
assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own
choice;
4. He must be informed that if he has no lawyer or
cannot afford the services of a lawyer, one will be provided
for him; and that a lawyer may also be engaged by any
person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his
behalf;
5. That whether or not the person arrested has a
lawyer, he must be informed that no custodial investigation
in any form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at
any time, he has the right to communicate or confer by the
most expedient means – telephone, radio, letter or
messenger – with his lawyer (either retained or appointed),
any member of his immediate family, or any medical
doctor, priest or minister chosen by him or by any one from
his immediate family or by his counsel, or be visited
by/confer with duly accredited national or international
non-government organization. It shall be the responsibility
of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to
waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood
the same;
8. In addition, if the person arrested waives his
right to a lawyer, he must be informed that it must be done
in writing AND in the presence of counsel, otherwise, he
must be warned that the waiver is void even if he insist on
his waiver and chooses to speak;
9. That the person arrested must be informed that
he may indicate in any manner at any time or stage of the
process that he does not wish to be questioned with
warning that once he makes such indication, the police may
not interrogate him if the same had not yet commenced, or
the interrogation must ceased if it has already begun;
10. The person arrested must be informed
that his initial waiver of his right to remain silent, the right
to counsel or any of his rights does not bar him from
invoking it at any time during the process, regardless of
whether he may have answered some questions or
volunteered some statements;
11. He must also be informed that any
statement or evidence, as the case may be, obtained in
violation of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be inadmissible in
evidence.
Warrantless Arrests
Never forget Rule 113 Sec. 5.
Arrest without warrant; when lawful. — A peace officer or
a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraph (a) and (b) above,
the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112
Remedies
1) If no case has been filed against the arrested person and
he remains detained, his remedy is to file a petition for
habeas corpus on the ground that his arrest and detention
is illegal. Bail may also be posted.
6
2) If a case has been filed against the arrested person, his
remedy is to file a motion to quash the complaint or
information on the ground that the court has no jurisdiction
over his person.
3) If a person has not yet been arrested or detained, but
there is a standing warrant for his arrest, his remedy is to
file a motion to quash the warrant of arrest on the ground
that it was improperly issued.
4) If a person has already been arrested by virtue of a
warrant of arrest yet he claims that the warrant was
improperly issued, his remedy is to file a motion to quash
the complaint or information on the ground that the court
has not acquired jurisdiction over his person.
In all these cases, the accused must claim that the arrest
and detention is illegal.
When must the accused assail the validity of his arrest?
Any objection involving the arrest or the
procedure in the court’s acquisition of jurisdiction over the
person of an accused must be made before he enters his
plea. Otherwise, the objection is deemed waived.
Rule 114. Bail
What is bail? (Rule 114 Sec. 1)
Bail is the security given for the release of a person under
the custody of law to guarantee his appearance when
required by the rules of court or the court.
What are the forms of Bail?
Bail may be given in the following forms.
1. Cash deposit
2. Property Bond
3. Corporate Surety
4. Recognizance
May the court insist that bail shall only be cash bond?
No. The court can never insist that only one type
or form of bail shall be posted. Doing so violates the right of
the accused to bail.
What is recognizance? When is one allowed to be released
on recognizance?
Recognizance is allowed in the following instances.
1. If the charge against the accused is for violation of a
city or municipal ordinance, light offense, or if the
penalty does not exceed 6 months of imprisonment.
2. If the accused is detained for a period equal to or
more than the minimum imposable penalty. In such
case, the accused must be released immediately
even without recognizance.
3. If the accused is a youthful offender.
4. If accused files application for probation and he is
unable to post bail
What are the Conditions of Bail? (Rule 114, Sec. 2)
The following are the conditions of bail.
1. Once approved, the bail shall be effective and
remain in force at all stages of the case unless
cancelled or until promulgation of the RTC whether
the case was originally filed in or appealed to it.
2. That the accused shall appear in court whenever
required by court or the rules of court.
3. Failure to appear in court notwithstanding any
waiver shall constitute trial in absentia.
4. That accused shall surrender him self to court for
execution.
When is appearance by the accused required by the Rules
of Court?
The presence of the accused is required by the
rules in his arraignment and entry of plea. (and
promulgation of judgment as opined by other authors.)
a) Arraignment and Entry of Plea – Accused must
personally enter his plea. Without a valid plea, any
subsequent proceedings are void. Nonetheless, an
invalid plea will bar the application of Double
Jeopardy.
b) Promulgation – Some authors insist that the
presence of the accused is important in
promulgation. The absence of the accused during
promulgation will not invalidate the proceedings.
However, it will cause him to lose his remedies
against a judgment of conviction such as
reconsideration, appeal, and new trial.
When is appearance by the accused required by the
Court?
Appearance by the accused is required by the court in the
following.
a) In-court Identification – In a criminal action, the
identity of the accused just like the crime itself must
be proven beyond reasonable doubt.
b) Trial in absencia – trial in absencia may proceed
provided the accused was given due notice for the
date of trial.
*Therefore, if a question is asked calling for the
instances when the accused’s presence is
essential, enumerate arraignment and entry of
plea, in-court identification, trial in absencia.
(promulgation may be included)
Procedure Application for Bail and Determination of
Strength of Evidence of Guilt
1. Accused applies for bail.
2. The court notifies the prosecution.
3. Bail hearing - The prosecution presents evidence in
opposition to bail.
4. The court makes a resolution whether the evidence
of guilt is strong or not. If the evidence of guilt is
strong, the application is denied. Otherwise, the
application is granted.
7
What is the remedy when the application for bail is
denied?
The remedy is to file a petition for certiorari under
Rule 65 on the ground that the court committed a grave
abuse of its discretion amounting to excess or lack of
jurisdiction in denying the application for bail.
What is the quantum of proof for bail application?
The quantum of proof to show that the evidence
of guilt for the accused is strong is clear and convincing
evidence. The burden of proof belongs to the prosecution.
Bail as Matter of Right, Court Discretion, or Neither
Bail as a Matter of Right (Rule 114, Sec. 4)
The accused’s application for bail will always be granted by
the court.
Bail is a matter of right in the following instances:
1. Before or after judgment of conviction by the MTC.
*thus all light offenses and correccional offenses are
bailable.
2. Before judgment of conviction by the RTC of offenses
not punishable by death, reclusion perpetua or life
imprisonment.
*thus, during trial or before conviction of all offenses
punishable by prision mayor and reclusion temporal
are bailable.
3. Before judgment of conviction by RTC for an offense
punishable by death, reclusion perpetua, or life
imprisonment when the evidence of guilt is not
strong.
Bail as a Matter of Discretion (Rule 114, Sec. 5)
The accused’s application for bail may or may not
be granted by the court upon its discretion.
Bail is a matter of discretion in the following instances:
1. After judgment of conviction by the RTC and the
penalty is less than death, reclusion perpetua, and
life imprisonment provided judgment has not
become final.
*An application for bail when it is a matter of
discretion must be filed with the RTC before the records
has been transmitted to the appellate court. If the records
of the case were transmitted to the appellate court, the
application for bail must be filed with it.
*Thus, perfection of an appeal for offenses punishable
by prision mayor and reclusion temporal will make the case
bailable upon the court’s discretion.
Bail is Neither a Matter of Right nor Discretion
There is no bail allowed as it is not a matter of right or
within the court’s discretion.
1. After judgment of conviction by the RTC of an
offense punishable by death, reclusion perpetua, or
life imprisonment and the evidence of guilt is strong.
 2. After judgment of conviction by the RTC and the
penalty imposed is death, reclusion perpetua, or life
imprisonment.
3. After judgment of conviction by the RTC and the
penalty imposed is more than 6 years but less than
death, reclusion perpetua, or life imprisonment and
the following bail negating circumstances are
present:
a. The accused is a recidivist, quasi-recidivist,
habitual delinquent or that he committed the
offense with the aggravating circumstance of
reiteracion.
b. The accused has escaped confinement, evaded
sentence, or violated any of the conditions of his
bail without justifiable reasons.
c. The accused is under probation, parole, or
conditional pardon.
d. The accused has undue risk of committing
another offense.
e. The accused has probability of flight if released
on bail.
Bail negating circumstances determine bail as a
matter of discretion from total denial of bail.
Is the absence of any bail negating circumstance an
assurance for the grant of bail?
No. A finding that none of the said circumstances
is present will not automatically result in the grant of bail.
Such finding will simply authorize the court to use the less
stringent sound discretion approach.
Where to post bail (Rule 114, Sec. 7)
1. Bail may be filed in the court where the case is
pending and if the judge of that court is absent or
unavailable, then the bail may be filed in the RTC or
MTC of the same place. If the accused is arrested in
another place other than in which the case is
pending, then bail may be filed in the RTC or MTC of
that place.
Eg. A is charged with Homicide. An information was
filed before the RTC Branch 5 in Baguio. If the judge
of Branch 5 is absent or unavailable, the accused
may file bail in other MTC’s or RTC’s of Baguio City. If
A is arrested in Cebu, he may also post bail in the
RTC (first) or MTC (secondarily) of Cebu.
2. If bail is a matter of discretion or the accused desires
recognizance, then the application therefrom must
be filed with the court where the case is pending.
3. If the accused is arrested or held without any charge
having been brought against him, then the accused
shall file bail in any court of the city or province
where he is detained. He may choose this remedy
aside from petition for habeas corpus.
4. If bail is a matter of discretion, then bail may be filed
with the RTC that rendered the decision/judgment of
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conviction notwithstanding that a notice of appeal
has been filed, provided the records of the case has
not yet been transferred/filed with the appellate
court.
Note: Perfection of an appeal.
An appeal is deemed perfected if a notice
of appeal has been filed within the time period for
perfecting an appeal, which is 15 days from the
date of judgment by the RTC and the
corresponding docket fees were paid.
Significance of Perfecting an Appeal.
The moment the records of the case have
been transmitted to the appellate court, the court
loses its jurisdiction over the case. Once that
happens, the trial court has no authority to rule
upon the bail application of the accused.
5. Where the judgment of conviction changes the
nature of the offense from non-bailable to bailable,
the bail may only be filed with the appellate court.
Is bail a bar to objections on illegal arrest or lack of or
irregular of preliminary investigation? (Rule 114, Sec. 26)
No, bail is not a bar to objections on the validity of
an arrest, warrant of arrest, or lack of or irregular
preliminary investigation. This is a deviation from the old
rule where posting bail cures all defects in the arrest,
warrant of arrest, and preliminary investigation. However,
all of those must be assailed before the accused enters his
plea, otherwise their defects are deemed waived.
Other instances where Bail is Available
Deportation Proceedings.
For aliens undergoing deportation proceedings,
bail is discretionary upon the Commissioner of
Immigrations.
Extradition Proceedings.
An extradite must apply for bail. He must prove
that he is not a flight risk by clear and convincing evidence.
The Extradition Court decides whether or not to grant the
bail.
Note: No bail is allowed for cases pending in Military
Tribunals.
Forfeiture of Bond (Rule 114, Sec. 21)
What happens if the accused fails to appear in court when
required?
If the accused fails to appear in court when
required by the court or by the rules of court, the bail is
ordered forfeited in favor of the government but his
bondsmen are given 30 days to present the accused’s body
in court and to explain why no final judgment shall be
rendered against the bond and why the accused failed to
appear when first required to do so. If the bondsmen do
not comply, the bail is confiscated in favor of the
government.
Procedure:
1. The accused fails to appear in court.
2. The court orders forfeiture of the bond though such
order is not yet final.
3. The bond shall be forfeited in favor of the
government.
4. The bondsmen is given 30 days within which to:
a) Produce the body of their principal
b) Explain why the accused did not appear
before the court when required to do so.
5. If the bondsman complies, the order of forfeiture is
set aside.
6. If the bondsman does not comply, the court will
issue an order of confiscation which makes the
earlier order final.
Cancellation of Bail (Rule 114, Sec. 22)
Cancellation by Application of bondsman:
Upon application of the bondsman with due notice
to the prosecution, bail may be cancelled by motion or
petition upon surrender of the accused or proof of his
death.
Automatic Cancellation:
Cancelation of Bail is automatic upon the following:
1. Acquittal of the accused
2. Dismissal of the case
3. Execution of the judgment of conviction
2014 UPDATES IN CRIMINAL PROCEDURE - BAIL
APPLICATION and MODES OF SERVICE OF SUBPOENA
What are the requirements for motion for bail in offenses
punishable by death, reclusion perpetua, or life
imprisonment? (Section 6, A.M. No. 12-11-2-SC, March 14,
2014)
As provided for in Section 6, A.M. No. 12-11-2-SC,
March 14, 2014, but took effect May 1, 2014 (Guidelines for
Decongesting Holding Jails by Enforcing the Rights of
Accused Persons to Bail and to Speedy Trial), the
requirements are:
a) the hearing of the motion for bail shall be summary;
b) the prosecution has the burden of showing that the
evidence of guilt is strong;
c) if the accused wants the court to consider his
evidence, he may submit the affidavits of his
witnesses attesting to his innocence;
d) at the hearing of the motion for bail, the prosecution
shall present its witnesses with the option of
examining them on direct or adopting the affidavits
they executed during the preliminary investigation as
their direct testimonies;
e) the court shall examine the witnesses on their direct
testimonies or affidavits to ascertain if the evidence
of guilt is strong;
f) the court shall then allow counsel from both sides to
examine the witnesses as well;
g) afterwards, the court shall hear the oral arguments
of the parties on whether the evidence of guilt is
strong;
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h) within 48 hours after hearing, the court shall issue an
order containing a brief summary of the evidence
adduced before it, followed by its conclusion of
whether the evidence of guilt is strong.
What are the modes of service of subpoena?
Under Section 6, Rule 21 of the 1997 Rules of Civil
Procedure, service of subpoena shall be made in the same
manner as personal or substituted service of summons.
However, in criminal cases, the following are the
additional modes of service of subpoena as provided for in
Section 11, A.M. No. 12-11-2-SC, March 14, 2014:
a) electronic mail (e-mail);
b) mobile phone, either through phone calls or through
short messaging service.
How may service of subpoena be proved?
When served by electronic mail or mobile phone,
service of subpoena may be proved by:
a) printouts of sent email and the acknowledgment of
the recipient;
b) printouts of electronic messages transmitted
through the court’s equipment or device and the
acknowledgment of the recipient; or
c) reports of phone calls made by the court.
Rule 115. Rights of the Accused.
Note: Be sure to cite the Proper Rights. Just simple changes
in the use of articles will change the concept of the Rights-
eg. The proper right is “Right Against Double Jeopardy” and
not “Right to Double Jeopardy”; “Right Against Self-
Incrimination and not Right to Self-Incrimination; Freedom
from Arbitrary Detention not Freedom to Arbitrary
Detention; “Right to Confront and Cross-examine Witnesses
against him” and not “Right against Confrontation and
Cross-examination of Witnesses presented against him”;
etc.
For purposes of Criminal Procedure, focus on the
order or reverse order of trial, right against double
jeopardy, the right to appeal, the right to be informed of
the charges and accusations against the accused, freedom
from arbitrary detention, and the right to bail. The other
rights are better discussed in political and constitutional
law subjects and evidence and other remedial law subjects
– validity of extrajudicial admission, admissibility of
evidence, qualification of witnesses to testify, etc.
Presumption of Innocence and Order of Trial
The constitutional presumption of innocence
dictates the order of trial. It is the prosecution that has the
burden of proof to show the guilt of the accused beyond
reasonable doubt. Consequently, it is the prosecution that
starts presenting its witnesses and evidence first. There can
only be a reverse order of trial once the accused claims any
of the justifying, exempting, or any extenuating
circumstances. All of these are in the nature of confession
and avoidance.
Right to Be Informed of the Nature of the Charges;
Complaint/Information, Arraignment, and Plea
The right of an accused to be informed of the
nature of the charges against him dictates the rules
regarding the validity of a complaint or information,
arraignment, and plea.
The Right Against Double Jeopardy.
Two kinds under 1987 Constitution Article III, Section 21:
1. 1st kind- No person shall be twice put in jeopardy of
punishment for the same offense.
2. 2nd kind- If an act is punished by a law and an
ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same
act.
Requisites to validly invoke Double Jeopardy:
1. A first jeopardy must have validly attached prior to the
second
2. The first jeopardy must have been validly terminated
3. The second jeopardy must be for the same offense or
the second offense includes or is necessarily included in the
offense charged in the first information or is an attempt to
commit the offense or a frustration thereof
Requisites for first kind:
1. There is valid complaint or information
2. The complaint is filed in a court of competent
jurisdiction.
3. The accused is validly arraigned and has entered his
plea
4. The accused was either acquitted, convicted, or the
case against him was dismissed without his express
consent.
Note: For purposes of criminal procedure, always check the
first 3 requisites when a question on double jeopardy is
raised. The fourth requisite is a better focus in political law
as it may involve the accused’s right to a speedy disposition
of his case. In criminal procedure, just remember that the
granting of a demurrer to evidence and discharge of an
accused as a state witness is equivalent to acquittal.
Note: IVLER DOCTRINE: A 2014 Bar Question on Remedial
Law is based on this case. This is a rich source of questions
in Criminal, Remedial, and Political Law.
Facts: Jason Ivler while carelessly driving his car rammed
another car, wrecking it and killing its passenger A while
seriously injuring another passenger, B. Upon the victim’s
complaints, the prosecutor filed two criminal informations
– first, one for Reckless Imprudence Resulting In Damage to
Property and second, one for Reckless Imprudence
Resulting In Homicide and Serious Physical Injuries. Ivler
pleaded guilty to the first charge upon arraignment. He was
meted the penalty of public censure, and ordered to pay
damages. When Ivler was arraigned for the second charge,
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he invoked his right against double jeopardy and moved for
the dismissal of the case. Ivler argued that the two crimes
charged against him before the court arose from only one
act. The State Prosecutor argued that the crimes of Damage
to Property, Homicide, and Serious Physical Injury are
different and distinct from each other.
May the second case proceed?
Answer: No, the second case may not proceed. There is
only one crime of Reckless Imprudence or Negligence no
matter how many resulting crimes may be produced. In a
case for imprudence or negligence, the complaint or
information is for the act of negligence or imprudence and
not for its effects. Allowing charges to prosper based on its
effects effectively splits a single cause of action. This
violates the accused’s right against double jeopardy.
(2014 Bar Question) McJolly Bee Do is a trouble-maker of
sorts, always getting into brushes with law. In one incident,
he drove his Humvee recklessly, hitting a pedicab which
sent its driver and passengers into different directions. The
pedicab driver died while two of his passengers suffered
slight physical injuries. Two (2) informations were then filed
against McJolly. One, for Reckless Imprudence resulting in
Homicide and Damage to Property, and two, for Reckless
Imprudence resulting in Slight Physical Injuries. The latter
case was scheduled for arraignment earlier, on which
occasion, McJolly pleaded guilty. He was meted out the
penalty of public censure. A month later, the case for
Reckless Imprudence Resulting in Homicide was also set for
arraignment. Instead of pleading, McJolly interposed the
defense of Double Jeopardy. Resolve.
Answer: Same as the earlier question.
Note: The focus of the answer depends on what subject
this question was asked. If the question is asked in
Remedial Law, the focus is on the splitting of cause of
action. If the question is asked in Criminal and Political Law,
focus on Double Jeopardy, its concept and requisites.
By way of another example take, this question – May one
foreclose a mortgage and at the same time, file an action to
recover sum of money based on the mortgage?
Answer: (Civil Law) No, one may not avail of the aforesaid
remedies simultaneously. Availing of one is a waiver of the
other. These remedies are in the alternative and not
cumulative.
Answer: (Remedial Law) No, one may not avail of the
aforesaid remedies simultaneously. Both actions are based
on a single cause of action, which is the indebtedness
secured by the mortgage. Splitting a single cause of action
is not allowed.
Judgment of Acquittal Attained Through Errors of Law Will
Attain Finality
What if the judgement of acquittal is erroneous?
Double Jeopardy sets in. Errors or irregularities,
which do not render the proceedings a nullity, will not
defeat the judgement of acquittal. These are errors of law
and not errors of jurisdiction.
Case: (People vs Judge Hernando, 108 scra 121) The
accused were charged and convicted of frustrated murder.
When a new evidence and witness was allegedly found out
which would prove the accuseds’ innocence, a new trial
was held. The prosecution then contended that the facts
sought to be established by the proposed testimonies of
new witnesses were not newly discovered evidence, having
been known to the accused even during the trial, and that
they would not in any way alter the judgment of conviction.
Under the facts of the case, the Court should have
sustained the prosecutor’s argument and never had a new
trial. The court proceeded to acquit the accused. On the SC
level, the SC dismissed the judge but the judgement of
acquittal, though erroneous, was deemed valid.
Rule 116. Arraignment and Plea
Rationale for Arraignment: To comply with the
Constitutional Right of the Accused to be informed of the
nature and cause of accusations against him. This right may
not be waived. Arraignment is the stage where the accused
is formally informed of the charges against him. Due to this,
strict compliance with the rules on arraignment is needed.
Rule 116. Sec. 1: Arraignment and plea; how made.
a) The accused must be arraigned before the court
where the complaint or information was filed or
assigned for trial. The arraignment shall be made in
open court by the judge or clerk by furnishing the
accused with a copy of the complaint or information,
reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses
other than those named in the complaint or
information.
b) The accused must present at the arraignment and
must personally enter his plea. Both arraignment and
plea shall be made of record, but failure to do so
shall not affect the validity of the proceedings.
c) When the accused refuses to plead or makes a
conditional plea, a plea of not guilty shall be entered
for him.
d) When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
withdrawn, and a plea of not guilty shall be entered
for him.
e) When the accused is under preventive detention, his
case shall be raffled and its records transmitted to
the judge to whom the case was raffled within three
11
(3) days from the filing of the information or
complaint. The accused shall be arraigned within ten
(10) days from the date of raffle. The pre-trial
conference of his case shall be held within ten (10)
days after arraignment.
f) The private offended party shall be required to
appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other
matters requiring his presence. In case of failure of
the offended party to appear despite due notice, the
court may allow the accused to enter a plea of guilty
to a lesser offense which is necessarily included in
the offense charged with the conformity of the trial
prosecutor alone.
g) Unless a shorter period is provided by special law or
Supreme Court circular, the arraignment shall be
held within thirty (30) days from the date of the
court acquires jurisdiction over the person of the
accused. The time of the pendency of a motion to
quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be
excluded in computing the period.
Note: Always remember that a valid arraignment and plea
will cure defects in the complaint or information,
preliminary investigation, and illegality of arrest. These
issues must be raised before the accused is arraigned and
enters his plea.
What are the two parts of arraignment? / How is
arraignment done? (Rule 116 Sec. 1)
The two parts of arraignment are the following: /
Arraignment is done in the following manner:
1. The complaint or information furnished and read
to the accused in an open court in a language or dialect
known by him.
*This may not be waived. Any defect may be a ground
to impugn the validity of arraignment.
2. The accused personally enters his plea.
*The presence of the accused during arraignment is
required by the Rules of Court.
Case: The accused was charged with 20 counts of estafa.
Upon his arraignment, the first information was read in its
entirety, and the accused was asked whether he pleads
guilty or not to the charge. The accused pleaded not guilty.
To save time, as the other informations were all
substantially the same, the accused was simply asked
whether he pleads guilty or not to the charge of estafa
while referring to the 19 other criminal case docket
numbers. The contents of the subsequent 19 criminal
informations were never read to the accused. In all of the
charges, the accused pleaded not guilty. Is the arraignment
and plea valid?
Suggested Answer which is in conformity with the rules:
(There is no Supreme Court Decision on this matter yet, but
this is a prevailing practice to save the time of Courts.) The
arraignment and plea as to the first charge is valid while
that of the succeeding 19 charges for estafa are void.
Arraignment shall be made by furnishing the accused with a
copy of the complaint or information, reading the same the
language and dialect known to him, and asking whether he
pleads guilty or not. Strict compliance with the Rules on
Arraignment is needed since this is the stage where the
accused is formally informed of the nature and cause of
accusations against him.
Strict Compliance with the Rules on Arraignment and Plea
is Needed
Note: *Any defect in the arraignment and plea will make
the subsequent proceedings void. But even so, without a
valid plea and arraignment, the right against double
jeopardy may not set in.
Note: *In order to have a valid trial in absencia, the accused
must have been validly arraigned and his plea validly
entered.
But an Accused’s Constitutional Right to Due Process and
Right to be Informed of the Nature and Cause of
Accusation Against Him May be Satisfied even without
Strict Compliance to the Rules of Arraignment and Plea.
Note: *While as a rule, strict compliance with the rules of
arraignment and plea is required, there are exceptional
instances when the Supreme Court ruled that compliance
with the Constitutional Right of the Accused to be informed
of the nature and cause of accusation against him and to
due process has been sufficient despite errors in the
arraignment and plea.
Case: The accused is arraigned after trial when the
prosecution has rested its case and the defense presented
is evidence. In this case, the defense counsel actively
participated in the trial and the Supreme Court ruled that
by such act, the accused was aware of the nature and
charges against him and he was given his day in Court.
(People v Pangilinan, 518 SCRA 358)
This is a very exceptional case so caution must be
taken in answering questions presenting situations where
one is required to look into the validity of the arraignment
and plea. Wait for the circumstances justifying the
exceptions to arise before ruling that the arraignment is
valid.
In what court must arraignment be made?/ Where is
arraignment made? (Rule 116 Sec. 1)
The accused must be arraigned before the court
where the complaint or information was filed or assigned
for trial.
Effect of Accused’s Nonappearance During Arraignment
on his Bail Bond.
Question: May his bond be forfeited if the accused does
not appear during trial?
Answer: Not necessarily. The accused may waive the right
to be present at court so that failure to appear in court
does not automatically lead to forfeiture of bail.
12
Question: May his bond be forfeited if the accused does
not appear during arraignment?
Answer: Yes. The presence of the accused is required by
the Rules during Arraignment. As such, he may not waive
his right to be present at all stages of the proceedings.
*Refer to earlier discussions on when is the accused’s
presence required by Court or by the Rules of Court.
The Offended Party’s Presence is Needed During
Arraignment and Plea
Note: It is not just the accused that must be present during
the arraignment and plea. The offended party must also be
present during arraignment and plea for purposes of plea
bargaining, determination of the accused’s civil liability, and
other matters requiring his presence. When an accused
pleads not guilty, it constitutes a joinder of issues in the
criminal action.
But absence of the Offended Party during
Arraignment and Plea will not render subsequent
proceedings void.
Accused Must Personally Enter His Plea
General Rule: The accused must personally enter his plea.
Instances where the Court enters a plea of not guilty.
1) The accused refuses to enter a plea, such as in cases
where the accused wants to quash the information
or hold in abeyance the proceedings to conduct
preliminary investigation.
2) The accused enters a conditional plea of guilty. A
conditional plea of guilty is not a valid plea.
Eg. of a conditional plea - I admit raping the victim
but she seduced me.
- I killed the victim but it was in self-defense.
- Pleading guilty to an offense charged but
asking for a lesser penalty to be imposed.
3) The accused pleads guilty but presents exculpatory
evidence.
Eg.- The accused admits the killing but the defense
asks that the court allow them to prove the
circumstance of incomplete self-defense.
Case: Accused was charged with homicide wherein he
pleaded guilty with condition to prove incomplete self
defense. The judge found evidence for complete self
defense and thus acquitted the accused. In the present
case, it is true, the accused had first entered a plea of
guilty. Subsequently, however, he testified, in the course of
being allowed to prove mitigating circumstances that he
acted in complete self-defense. Said testimony, therefore
— as the court a quo recognized in its decision — had the
effect of vacating his plea of guilty and the court a quo
should have required him to plead anew on the charge, or
at least direct that a new plea of not guilty be entered for
him. Acquittal in such manner deprives the prosecution of
due process. If a subsequent case is filed, it may proceed.
There will be no double jeopardy as he was not validly
arraigned. (People v Balisacan, 17 SCRA 1119)
 Effect of Entering Plea
*Entering a plea of not guilty constitutes joinder of issues in
the criminal case.
*Entering a plea of guilty is a judicial confession of guilt. All
the material facts alleged in the information, including
aggravating circumstances are admitted. However,
conclusions of law are not admitted. (Note: This is the same
effect as that of filing a demurrer to evidence.)
Voluntary Plea and Involuntary Plea
Voluntary Plea: A voluntary plea will always cure defects in
the complaint or information, preliminary investigation, or
illegality of arrest.
Involuntary Plea: The plea was not made by the accused
but by the Court.
The accused, who claims that he was illegally arrested,
refused to enter a plea when arraigned; whereupon, the
court entered a plea of not guilty for him. May he still
question the validity of his arrest? (Dean Agra’s lectures
and 2014 Q and A)
Yes. The principle that the accused is precluded
from questioning the legality of his arrest after arraignment
is true only if he voluntarily enters his plea and participates
during the trial, without previously invoking his objections
thereto. (Borlongan Jr. v. Pena, et al. G.R. No. 143591, Nov.
23, 2007). Thus, the accused may still question the legality
oh his arrest, etc. where, at the arraignment, it is the court
that entered the plea of not guilty for him.
Plea of Guilty in a Capital Offense
Note: (Rule 116 Sec. 3) *There is no rule requiring
automatic conviction upon plea of guilty for a capital
offense. Instead, the court shall conduct a searching inquiry
into the voluntariness and full comprehension of the
consequences of his plea and shall require the prosecution
to prove his guilt and the precise degree of culpability. The
accused may present evidence in his behalf.
Plea of Guilty to a Non-Capital Offense
(Rule 116 Sec. 3) When the accused pleads guilty
to a non-capital offense, the court may receive evidence
from the parties to determine the penalty to be imposed.
Plea Bargaining
In a plea bargaining, the accused pleads guilty to a
lesser offense necessarily included in the offense charged
or pleads guilty to an account involved in multiple accounts.
Eg. An accused is charged of rape. He pleads guilty
to seduction or acts of lasciviousness.
What are the requisites of a valid plea bargain? (Sec. 2,
Rule 116)
The requisites of a valid plea bargain are the following.
a. Consent of the offended party.
b. Consent of the prosecutor.
c. Approval of the court.
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May a plea for a lesser offense with the consent of the
prosecutor be valid even without the consent of the
offended party? (Rule 116 Sec. 1 [f])
Yes, provided the offended party is duly notified of
the arraignment but notwithstanding the notice, he failed
to appear for arraignment.
When is plea bargaining allowed?
Plea bargaining is allowed in the following instances.
1. During arraignment, and
2. After arraignment but before trial
May plea bargain be allowed even after the trial has
begun? (Daan v. Sandiganbayan GR No. 163972-77, March
28, 2008 citing People v. Villarama, GR No. 99287, June 23,
1992, 210 SCRA 4266)
Yes, plea bargaining is valid even after the
prosecution rested its case provided that the prosecution
does not have sufficient evidence to convict the accused of
the crime charged. This is an exception to the rule that plea
bargaining is only allowed during arraignment or after
arraignment but before trial.
Is there Double Jeopardy in Plea Bargaining?
None.
Is there a need to amend the complaint or information in
Plea Bargaining? (Rule 116 Sec. 2)
No, amendment of the complaint or information is
not necessary.
Suspension of Arraignment
May arraignment be suspended? (Rule 116 Sec. 11)
Yes, arraignment may be suspended on the following
grounds.
a. The accused appears to be suffering from an
unsound mental condition which effectively renders
him unable to fully understand the charge against
him and to plead intelligently thereto.
b. Existence of a prejudicial question
c. Pendency of a petition for review of the resolution of
the prosecutor either at the DOJ of the Office of the
President. The period of suspension shall not exceed
sixty (60 days) counted from the filing of the petition
with the reviewing office.
Bill of Particular (Rule 116 Sec. 9)
If the complaint or information is vague, the
accused may move/file a motion for bill of particulars to
enable himself to properly plead and prepare for trial.
When may a bill of particular be filed?
A Bill of particular is filed before arraignment.
What is the ground for filing a bill of particular?
A bill of particular is filed when the complaint or
information is vague, or any matter is not averred with
sufficient definiteness or particularity to enable the accused
to properly plead and prepare for trial.
*Note: The material matter is averred but it is not averred
with sufficient definiteness or particularity. In other words,
the material averment is complete but unclear. If the
material matter is not averred, the complaint or
information may or may not be defective.
What is the purpose of a Bill of Particular in a Criminal
Case?
A bill of particular in a criminal case enables the
accused to properly plead and prepare for trial. In civil case,
its purpose is to enable a party to properly prepare his
responsive pleading.
Is a bill of particular a mode of discovery?
No, a bill of particular is not mode of discovery.
May a bill of particular cure any defects in the complaint
or information?
No. It is not the office of a bill of particulars to
supply material allegations necessary to the validity of a
pleading, or to 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.
Mode of Discovery in Criminal Case: Production or
Inspection of Material Evidence in Possession of the
Prosecution. (Rule 116 Sec. 10)
Upon motion of the accused showing good cause
and with notice to the parties, the court, in order to
prevent surprise, suppression or alteration, may order the
prosecution to produce and permit the inspection and
copying or photographing of any written statement given
by the complainant and other witnesses in any
investigation of the offense conducted by the prosecution
or other investigating officers as well as any designated
documents, papers, books, accounts, letters, photographs,
objects or other tangible things, not otherwise privileged,
which constitute or contain evidence material to any
matter involved in the case and which are under the
possession or control of the prosecution, police, or other
law investigating agencies.
Is it necessary that the accused allege that he intends to
use as evidence the material evidence in possession of the
prosecution, police, or other law investigating agencies?
No. There is no rule requiring that the accused
must aver and intend to use the pieces of evidence he
intends to be produced by the prosecution. In fact, he may
not even use or copy any of the material evidence that he
moves to be produced by the prosecution.
Are there evidence that the prosecution, police, or other
law investigating agencies may not produce despite
motion by the accused and order of the court?
Yes. These are documents, papers, books,
accounts, letters, photographs, objects, or tangible things
which are privileged. The prosecution, police, or other law
investigating agency though must show the nature of such
evidence as privileged.
14
Note: The other modes of discovery available in a civil case
may be availed of in a criminal case.
Rule 117 – Motion to Quash
*Note: When to file a motion to quash and effect of not
filing a motion to quash (refer to earlier discussions)
What is the form of a motion to quash? (Rule 117, Sec. 2)
It is in writing.
Who files it? (Rule 117, Sec.2)
It is only the accused or his counsel who files the
motion.
What is the nature of a motion to quash?
A motion to quash is a class by itself/sue generis. It
is filed only upon the grounds mentioned in Rule 117, Sec.
3. There can never be any other grounds for a motion to
quash criminal informations except those provided under
Rule 117, Sec. 3.
Grounds for Filing a Motion to Quash (Rule 117, Sec. 3)
*Note: These grounds are exclusive.
1) The facts charged do not constitute an offense;
2) The court trying the case has no jurisdiction over the
offense; (Lack of jurisdiction over the offense)
3) The court trying the accused has no jurisdiction over the
person of the accused; (Lack of jurisdiction over the person
of the accused)
4) The officer who filed the information had no authority to
do so.
5) The complaint or information does not conform
substantially to the prescribed form.
6) More than one offense is charged except when a single
punishment for various offenses is prescribed by law.
7) The criminal action or liability has been extinguished.
(Extinction of penal action)
8) The complaint or information contains averments which,
if true, would constitute a legal excuse or justification, and;
Eg. The information avers that the accused is
insane or a minor.
9) The accused has been previously convicted or acquitted
of the offense charged, or the case against him was
dismissed or otherwise terminated without his express
consent. (Double jeopardy)
Test for Sufficiency of the Complaint or Information
By way of Jurisprudence: An information is sufficient if its
averments, if hypothetically admitted, whether the facts
alleged would establish the essential elements of the
offense as defined by law without considering matters
aliunde.
Note: This is very similar to the test to determine the
sufficiency of a petition or complaint in a civil action.
Only the ultimate, and not evidentiary facts are
considered. Ultimate facts are those that allege the cause
of action or elements of a crime. Evidentiary facts are those
that support the allegations of the ultimate facts.
 Eg. In a petition for declaration of nullity of
marriage for absence of essential requisites, the following
will be the ultimate facts:
a) The parties were married.
b) At the time the parties were married, either or both
of them do not possess all the essential elements for
marriage – ie consent, contracting capacity such as
legal age, former marriage that has not been nullified
or annulled, etc.
If applicable, the following are added:
c) Allegations as to having children and their custody;
d) Allegations as to acquisition of property;
The evidentiary facts will be the following:
a) How the parties met;
b) Making allegations as to psychological incapacity;
c) Describing their life and feelings before and after the
marriage;
Simply said:
Sufficiency of Criminal Information: A criminal
information is complete, if by just looking at it, a judgment
of conviction may be had. / It can sustain a judgment of
conviction. Sufficiency of a Complaint/Petition in a Civil
Action/ Special Proceeding: A complaint is sufficient, if just
by itself, judgment may be rendered in favor of the plaintiff
and granting the prayers therein.
Are there grounds for a motion to quash that may not be
waived?
Yes. As a rule, failure to file a motion to quash
constitutes a waiver over its grounds. However, the
following grounds may not be waived:
1) The facts averred do not constitute an offense.
2) Jurisdiction over the offense is absent.
3) Extinction of Criminal Liability
4) Double Jeopardy
Is a court mandated to grant a motion to quash?
No. A court may always grant or deny a motion to
quash upon its discretion.
Denial of a Motion to Quash
What is the implication of a court’s denial of a motion to
quash?
The Court is not persuaded by the accused’s
argument.
What is the remedy of an accused whose motion to quash
has been denied?
The accused whose motion to quash has been
denied must enter his plea and go for trial.
What if the accused still wants to question the order of
the Court denying his Motion to Quash?
The accused must resort to a Rule 65 petition/
Petition for Certiorari under Rule 65.
15
Note: Appeal is not the proper remedy in case the motion
to quash is denied. There being no appeal, if the accused
still wants to question the order denying the motion to
quash, he must resort to a Rule 65 Petition/Petition for
Certiorari under Rule 65. Nonetheless, before such petition
may be acted upon, two things need to be alleged and
shown:
a) first, there is no appeal, or any other plain, adequate,
and speedy remedy provided for by law and;
b) second, the grounds for the petition must be alleged
and shown – grave or abuse of discretion resulting to lack
or excess of jurisdiction or lack or excess of jurisdiction.
Note: Courts are given a wide array of discretion. It is only
grave abuse of discretion amounting to lack or excess or
jurisdiction that is condemned by the rules.
By simply alleging and invoking the grounds and requisites
for a Rule 65 petition, is the Court mandated to entertain
such petition?
No. Claiming that the court acted with grave abuse
of discretion amounting to lack or excess of jurisdiction,
lack or excess of jurisdiction, or invoking substantial justice,
liberal application or rules are never magic words that will
automatically warrant the Courts to review its findings.
Granting a Motion to Quash
What is the prosecution’s remedy in case a motion to
quash is granted?
The following are the remedies available to the
prosecution when a motion to quash has been granted.
1) Amend the complaint or information if such cures
the defect.
Eg. Duplicity of complaint or information; The facts
charged do not constitute an offense.
2) Refile the complaint or information.
Eg. Lack of jurisdiction over the offense.
3) Appeal from the order granting the motion to quash.
This is applicable only if the motion to quash is
sustained on the grounds of extinction of criminal
liability and double jeopardy. Sustaining a motion to
quash over the said grounds constitutes a final order
or an adjudication over the merits of the case, which
is the proper subject of an appeal. Appeal is available
only for a final order or an adjudication by merits,
and not for interlocutory orders.
Void and Defective Information
A void information may be assailed anytime while
a defective information may only be assailed before
arraignment. A void information does not confer any
jurisdiction to the courts over the offense while the defects
in a defective information may be waived and the courts
may still acquire jurisdiction over the offense.
 Rule on Supervening Facts (Rule 117 Sec. 7)
*Rule 117 Sec 7 is otherwise known as the Supervening
Fact Doctrine
The conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily
includes the offense charged in the former complaint or
information under any of the following instances.
a) The graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge.
b) The facts constituting the graver charge become
known or were discovered only after a plea was
entered in the former complaint of information; or
c) The plea of guilty
Note: that this is an exception to the general rule on
Double Jeopardy.
Note: Where after the first prosecution, a new fact
supervenes for which the defendant is responsible,
which changes the character of the
offense and, together with the facts existing at the tim
e,
constitutes a new and distinct offense, the accused cannot
be said to be in second jeopardy if indicted for the second
offense.
A new fact supervenes which, would change the
nature of the crime.
Origin of the Rule
(P vs. Tarok, 73 Phil. 260; P vs. Villasis, 46 O.G. 268; Melo
vs. People, 85 Phil. 766; P vs. Buling, 107 Phil. 712; P vs.
Adil, 76 SCRA 462; P. vs. Tac-an, 182 SCRA 601; and P vs.
City Court of Manila, 121 SCRA 637)
This present rule was brought about as a result of
jurisprudence.
Prior to this rule, there is this case where a former
charge of grave physical injuries was not allowed to be
amended to Homicide. In this case, the charge for Grave
Physical Injuries was filed while the victim is still in the
hospital. The accused was arraigned, and he entered a plea
of not guilty.
Subsequently, the victim died of his injuries. When
the prosecutor expressed his desire to upgrade the former
charge, the Court ruled that it may not be allowed as
Double Jeopardy has set in.
In another case, an accused was charged with
serious physical injuries, for which he was convicted. When
the victim, who happens to be his own wife, died from
meningitis contracted from her injuries, the Court did not
allow the second charge of parricide to prosper (People v
Taroc, 73 Phil 260).
These doctrines were later abandoned, wherein in
one case, the accused was initially charged with frustrated
homicide. After his arraignment, the victim died, and the
information was amended into one for consummated
homicide. The Court abandoned its former rulings and
allowed the second charge to prosper (Melo v People, 85
Phil 766).
16
In another similar case, an accused was charged
for Grave Physical Injuries. His arraignment was scheduled
in the afternoon. On the morning of the day of his
arraignment, the victim died and the accused was informed
of it. The accused kept silent and never informed the
prosecutor or the court. The prosecutor and court were
unaware that the victim died. Arraignment and plea
proceeded as scheduled. Upon learning that the victim
died, the prosecutor expressed his desire to upgrade the
offense from Grave Physical Injuries to Homicide. This time,
the Court allowed it. It pointed out that the accused
knowingly pleaded to the lesser offense. (People v Espino,
69 Phil 471)
This was reiterated in another case (People v City
Court of Manila 121 SCRA 637 – compare this with the Ivler
Doctrine). The accused was charged with Reckless
Imprudence Resulting In Serious Physical Injuries and the
accused pleaded to such.
However, the victim died on the day that the first
information was filed. The information was amended into a
charge for Reckless Imprudence Resulting In Homicide.
On the issue whether double jeopardy has set in
preventing the amended charge to prosper, the Court ruled
that there will be double jeopardy if the accused is unaware
that the victim is dead while entering the plea. But if the
accused is aware that the victim died and still he entered a
guilty plea, there will be no double jeopardy. (People v City
Court of Manila, 121 SCRA 637)
The victim died on the day that the first
information for Reckless Imprudence Resulting in Serious
Physical Injuries was filed. 2 days later, the accused was
arraigned, pleaded guilty, and was sentenced. The
prosecutor though, received information that the victim
died. He moved to hold in abeyance the arraignment and
proceedings in the first charge to allow amendment of the
information.
The court did not allow it. When the amended
information was filed, the Court dismissed it. It made this
pronouncement, “the accused was arraigned, pleaded
guilty and sentenced accordingly. Thus, jeopardy had
attached and no new fact supervened after the
arraignment and conviction of the accused.”
Provisional Dismissal (Rule 117 Sec. 8)
A provisional dismissal is one where the dismissal
is merely temporary.
What are the requisites of a valid provisional dismissal?
A case shall not be provisionally dismissed except
with the express consent of the accused and with notice to
the offended party.
Why is the express consent of the accused needed?
(People v Lacson GR No. 149453, April 1, 2003)
The raison d’ etre for the requirement of the
express consent of the accused to a provisional dismissal of
a criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in double
jeopardy for the same offense or for an offense necessary
included therein.
 May the Offended Party oppose the granting of a Doctrines in Lacson:
Provisional Dismissal? - A motion to determine probable cause filed by
No. In fact, provisional dismissal is favorable to the the accused is not equivalent to his express consent.
offended party especially for purposes of locating witnesses - The State may revive a criminal case beyond the
for the prosecution. Provisional Dismissal is designed to one-year or two-year periods (of the time bar rule)
counter the possibility of an accused invoking his provided that there is a justifiable necessity for the delay.
Constitutional Right to Speedy Trial. - Lacson construed the phrase “after the issuance
of the order of provisional dismissal” to mean as “after
May a provisional dismissal become permanent? service of the order of dismissal on the public prosecutor
Yes, provided the case has not been revived and who has control of the prosecution without the criminal
after the lapse of one or two years from the issuance of the case being revived.
order granting provisional dismissal, as the case may be.
(This is known as the Time Bar rule) Note: In another case involving Lacson, (Secretary v Lacson,
1999) it was held that Criminal Laws may not be given
Penalty of the Offense Number of Years before retroactive effect even if they favor the accused who is not
Charged provisional dismissal a habitual delinquent, and even if the law does not prohibit
becomes final retroactive effect if doing so will result into grave injustice.
Imprisonment of not 1 year
more than 6 years Some authors and reviewers actually say that
Fine only 1 year Lacson is one single person who can change the legal
Imprisonment of more 2 years landscape of criminal laws.
than 6 years
Motion to Quash Warrant of Arrest
Distinctions Between Motion to Quash and Provisional Note: Refer to earlier discussions on the finding of probable
Dismissal cause to issue warrant of arrest and the remedies for an
Motion to Quash Provisional accused who claims to be illegally arrested or detained.
Dismissal Note: There is no rule requiring that the accused must
Form Should be in May be in any surrender, be arrested or be placed under the custody of
writing form law before his motion to quash the warrant of arrest may
Who Files Filed by the Either filed by be acted upon.
Accused the accused, But in a petition for bail, the accused needs to
prosecution, or surrender before the court, be arrested, or be placed under
both. the custody of law before his petition will be acted upon.
When to File Before Entering Anytime
Plea 2014 Bar Question: A was charged before the
Sandiganbayan with a crime of plunder, a non-bailable
Grounds for Exclusive- only Any ground will
offense, where the court had already issued a warrant for
Filing those found in do
Rule 117, Sec. 3 his arrest.
Without A being arrested, his lawyer filed a Motion to
Effect Bars Continuation Shortens the
Quash Arrest Warrant and to Fix Bail, arguing that the
of Proceedings period of
allegations in the information did not charge the crime of
Prescription
plunder but a crime of malversation, a bailable offense.
The court denied the motion on the ground that it
*Note: Another exceptional case of People v. Lacson, GR
had not yet acquired jurisdiction over the person of the
No. 149453, April 1, 2003 (When the Ivler case was penned
accused and that the accused should be under the custody
in 2010, reviewers and authors all claimed that it will be
of the court since the crime charged is non-bailable.
asked sooner or later. It has been asked in the 2014 Bar.
The accused’s lawyer counter-argued that the
The Lacson case is considered as a potential bar question as
court can rule on the matter even if the accused was at
well ever since it was penned.
large because it had jurisdiction over the case.
In Lacson, Lacson filed a motion to determine
According to the said lawyer, there was no need
probable cause in the arrest warrants and information filed
for the accused to be under the custody of the court
against him in connection with the Kuratong Baleleng Shoot
because what was filed was a Motion to Quash Warrant of
outs. The prosecution moved for provisionary dismissal of
Arrest and to Fix Bail, not a Petition for Bail.
the cases. No notices of the court orders were given to the
victims’ heirs.
A) If you are the Sandiganbayan, how will you rule on
the motion?
(Patalastas- Allegedly, the heirs were paid blood money
amounting to 400 thousand pesos each, a huge sum at the
B) If the Sandiganbayan denies the motion, what
time the shootout took place. Hehe)
judicial remedy should the accused undertake?

17

Answers:
A) As the Sandiganbayan, I will entertain the motion,
denying or granting it as the case maybe depending on
whether the ground sought for is meritorious. I may not
deny it solely on the basis the court has yet to acquire
jurisdiction over the person of the accused. There is no rule
requiring that the accused must surrender, be arrested, or
be placed under the custody of law before his motion to
quash may be acted upon.
B) The accused should prepare for trial or resort to a
petition for Certiorari under Rule 65 of the Revised Rules of
Court. The remedy of appeal is not available in an order
denying a motion to quash a warrant of arrest. Without
appeal, or any other plain, adequate, and speedy remedy
available, a petition under Rule 65 is appropriate but only
upon the grounds of grave abuse of discretion resulting to
lack or excess of jurisdiction, or lack or excess of
jurisdiction.
Rule 118: Pre-Trial
What is the nature of a pre-trial? (Rule 118, Sec. 1)
-A pre-trial, whether in a criminal or civil case is always
mandatory. It may never be dispensed with.
-In criminal cases cognizable by the Sandiganbayan,
Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court and Municipal
Circuit Trial Court.
Purpose of Pre-trial (Rule 118, Sec. 1)
Pre-trial considers the following:
a) Plea bargaining
b) Stipulation of Facts
c) Marking for Identification of evidence of the parties
d) Waiver of objections to admissibility of evidence
e) Modification of the order of trial if the accused
admits the charge but interposes a lawful defense;
f) Such matters as will promote a fair and expeditious
trial of the criminal and civil aspects of the case.
Note: Plea bargaining is proper in Pre-trial.
Facts stipulated upon are among those that need
not be proved during trial. Evidence that were not
presented and marked during the pre-trial, and
subsequently are not included in the pre-trial order, may be
objected to when presented and offered during trial.
*Waiving objections over the admissibility of the opposing
party’s evidence is probably the most useless purpose of
pre-trial. Neither the prosecutor nor defense, in his right
mind would waive his objections over the opposing party’s
evidence.
When is pre-trial held?
Pre-trial shall be held after arraignment and within
thirty (30) days from the date the court acquires jurisdiction
over the person of the accused, unless a shorter period is
18
provided for in special laws or circulars of the Supreme
Court.
Note: A pre-trial needs a Notice of Pre-trial.
Note: AM No. 12-8-8-SC or Judicial Affidavit Rule (JAR)
To speed up court proceedings, the Supreme Court
through its rule making power issued the Judicial Affidavit
Rule.
Judicial Affidavits take the place of direct
testimonies of the parties to a case and their witnesses.
Instead of a party or a witness going to court and being
asked questions by the counsel for his testimony, their
direct testimonies are now being taken outside of the court
through their judicial affidavits.
Contents of Judicial Affidavits:
Section 3. Contents of Judicial Affidavit- A judicial
affidavit shall be prepared in the language known to the
witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the
following:
(a) The name, age, residence or business address, and
occupation of the witness;
(b) The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
(c) A statement that the witness is answering the
questions asked of him, fully conscious that he does so
under oath, and that he may face criminal liability for false
testimony or perjury;
(d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
(1) Show the circumstances under which the witness
acquired the facts upon which he testifies;
(2) Elicit from him those facts which are relevant to
the issues that the case presents; and
(3) Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the Rules Of Court;
(e) The signature of the witness over his printed name;
and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law
to administer the same.
Attestation Clause:
Section 4. Sworn Attestation of the Lawyer. –
(a) The judicial affidavit shall contain an attestation at the
end, executed by the lawyer who conducted or supervised
the examination of the witness, to the effect that:
(1) He faithfully recorded or caused to be recorded
the questions he asked and the corresponding
answers that the witness gave; and
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the
latter’s answer;
(b) A false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment.
Application of JAR in criminal proceedings:
In criminal cases the application of the Judicial Affidavit
Rule as well as the time for its submission are all provided
for in Sec. 9 of the Rule or AM No. 12-8-8-SC.
Sec. 9. Application of the Rule to all criminal actions. –
(a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty
does not exceed six years;
(2) Where the accused agrees to the use of judicial
affidavit irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
(b) The prosecution shall submit the judicial affidavits of its
witnesses not later than five (5) days before pre-trial,
serving copies of the same upon the accused. The
complainant or the public prosecutor shall attach to the
affidavits such documentary or object evidence as he may
have, marking them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or object evidence
shall be admitted at the trial.
(c) If the accused desires to be heard on his defense after
receipt of the judicial affidavits of the prosecution, he shall
have the option to submit his judicial affidavits as well as
those of his witnesses to the court within ten (10) days
from receipt of such affidavits and serve a copy of each on
the public and private prosecutor, including his
documentary and object evidence previously marked as
Exhibits 1, 2, 3, and so on. These affidavits shall serve as the
direct testimonies of the accused and his witnesses when
they appear before the court to testify.
What is the effect of non-compliance with the Judicial
Affidavit Rule?
This is answered by Section 10 of the Rule.
Sec. 10. Effect of Non-compliance with the Judicial
Affidavit Rule.
(a) A party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to have
waived their submission. The court, may, however, allow
only once the late submission of the same provided, the
delay is for a valid reason, would not unduly prejudice the
opposing party, and the defaulting party pays a find of not
less than P 1,000.00 nor more than P 5,000.00, at the
discretion of the court.
(b) The court shall not consider the affidavit of any
witness who fails to appear at the scheduled hearing of the
case as required. Counsel who fails to appear without valid
cause despite due notice shall be deemed to have waived
his client’s right to confront by cross-examination the
witnesses there present.
The court shall not admit as evidence judicial affidavits that
do not conform to the content requirements of Section 3
and attestation requirement of Section 4 above. The court,
may, however allow only once the compliant replacement
19
affidavits before the hearing or trial provided the delay is
for a valid reason and would not unduly prejudice the
opposing party and provided further, that public or private
counsel responsible for their preparation and submission
pays a fine of not less than P 1,000.00 nor more than P
5,000.00, at the discretion of the court.
Pre-trial Agreement (Rule 118, Sec. 2)
All agreements or admissions made or entered
during pre-trial conference shall be reduced in writing and
signed by the accused and counsel, otherwise, they cannot
be used against the accused. The agreements covering the
matters referred to in section 1 of this Rule shall be
approved by the court.
What are the requisites of a valid pre-trial agreement?
The following are the requisites of a valid pre-trial
agreement.
a) It must be in writing.
b) It must be signed by the accused and counsel.
Note: Absent any of the above requisites, any admission
made by the accused during pre-trial, may not be used
against him.
General Rule: Allegations must be proven.
Exception/ (What need not be proven):
1) Judicial admission entered at the pre-trial signed by the
accused and counsel.
2) Matters that can be taken judicial notice of.
*Judicial Notice connotes that a matter is considered
as fact without any proof. Judicial notice may be
mandatory or discretionary but these are better taken
in the subject of evidence.
Eg of Judicial Notice.
Witness (W): I saw the accused at 10 am in the
morning.
Prosecutor (P): Is the sun up when you saw him?
 Instead of the asking whether the sun is
up or is it daytime during 10am, the court
may simply take judicial notice of it.
W: I’m a student at UP.
P: Is UP a market?
*Again, instead of adducing evidence that UP is
school or university, the court may simply take
judicial notice of it.
Doctrine of Processual Presumption/ Presumed Identity
Approach
May courts take judicial notice of foreign laws?
No. Foreign laws are never the subject of judicial
notice. They must be properly alleged in a pleading and
duly proved. In case a foreign law is not alleged or it is not
duly proven, it is presumed to be identical with the local
law.
How are foreign laws proven? (Rule 132 Sec. 24)
Foreign laws may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the Pre-trial in Civil Cases Compared to Pre-trial in Criminal
office in which the record is kept is in a foreign country, the Cases
certificate may be made by a secretary of the embassy or Civil Case Criminal Case
legation, consul-general, consul, vice-consul, or consular The Court moto The court moto
agent or by any officer in the foreign service of the How proprio or upon an proprio
Philippines stationed in the foreign country in which the initiated: ex-parte motion
record is kept, and authenticated by the seal of his office. by the plaintiff
After all pleadings After arraignment
have been served and within thirty (30)
Alternative Dispute Resolution (ADR)
When and filed. days from the date
What are the modes of alternative dispute resolution? the court acquires
The following are the modes of alternative dispute held:
jurisdiction over the
resolution. person of the
a) Mediation accused.
b) Conciliation Possibility of Plea bargaining,
c) Mini trial Amicable stipulation of facts,
d) Early Neutral Evaluation Settlement or marking of evidence,
e) Arbitration submission to the waiver of objections
Purpose:
alternative modes to admissibility of
f) Proceedings before the Philippine Mediation Center
of dispute evidence,
g) Any combination of the foregoing resolution modification of the
order of trial, other
Proceedings before the Philippine Mediation Center (PMC) matters that will
/ Court Annexed Mediation (CAM) promote a fair and
Before pre-trial and trial, criminal cases that may expeditious trial
be the subject of mediation are brought before the PMC for The If the counsel for the
CAM. nonappearance of accused or the
The purpose of CAM is settlement. the plaintiff prosecutor does not
warrants the appear during pre-
Proceedings before the CAM are unrecorded and Imposition
dismissal of his trial conference and
confidential. It lasts for a 30-day period which may be of
action. The does not offer an
extended for another 30-day period. If no settlement will Sanctions nonappearance by acceptable excuse for
be arrived at, the case is brought back to the Courts for for Failure the defendant his lack of
Judicial Dispute Resolution. to Appear warrants the cooperation, the
during presentation of court may impose
What crimes may be the subject of mediation? Pre-trial: evidence by the proper sanctions or
The civil aspect of following crimes may be the subject of plaintiff, ex-parte. penalties. (It is the
mediation. (It is the party who accused’s counsel or
is sanctioned) prosecutor who is
a) Estafa
sanctioned)
b) Violation of BP 22
The parties are Pre-trial briefs are
c) Theft required to file not mandated by the
Necessity
d) Malicious Mischief and serve their rules. The rules are
of Pre-trial
e) Slander or Libel respective pre-trial silent as to its
Brief
f) Quasi-offenses except those that result to briefs. necessity.
physical injuries or death There is no such There is strict
rule requiring that requirement that all
Over-all Diagram of Mediation and Court Proceedings Record admissions or agreements and
agreements be in admissions made by
During
writing and signed the accused be in
Pre-trial.
by the parties writing and signed by
otherwise they him and his counsel,
cannot be used otherwise, they
against them. cannot be used
against him.

Rule 119: Trial

Trial Must Be Continuous (Rule 119 Sec. 2)
Trial once commenced, shall continue from day to
day as far as practicable until terminated. It may be
postponed for a reasonable period of time for good cause.
The court shall, after consultation with the
prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term trial

20
calendar at the earliest possible time so as to ensure
speedy trial. In no case shall the entire trial period exceed
one hundred eighty (180) days from the first day of trial,
except as otherwise authorized by the Supreme Court.
The time limitations provided under this section
and the preceding section shall not apply where special
laws or circulars of the Supreme Court provide for a shorter
period of trial.
When is a case set for trial? (Rule 119 Sec. 1)
After a plea of not guilty is entered, the accused
shall have at least fifteen (15) days to prepare for trial. The
trial shall commence within thirty (30) days from receipt
of the pre-trial order.
What is the remedy of the accused that is not brought to
trial within the prescribed period? (Rule 119 Sec 9)
If the accused is not brought to trial within the
time limit required by section 1 (g), Rule 116 and section 1,
as extended by section 6 of this Rule, the information may
be dismissed on motion of the accused on the ground of
denial of his right to speedy trial. The accused shall have
the burden of proving the motion but the prosecution shall
have the burden of going forward with the evidence to
establish the exclusion of time under section 3 of this Rule.
The dismissal shall be subject to the rules on double
jeopardy.
Failure of the accused to move for dismissal prior
to trial shall constitute a waiver of the right to dismiss
under this section.
*Note: Reasonable delays are allowed by the Constitution
and the Rules. More specifically, Rule 119 Sec. 3
enumerates these delays. This list though is not exclusive.
What types of delays are excluded from computing the
period for commencement of the trial?
The following periods of delay shall be excluded in
computing the time within which trial must commence:
a) Any period of delay resulting from other proceedings
concerning the accused, including but not limited to
the following:
1) Delay resulting from an examination of the
physical and mental condition of the accused.
2) Delay resulting from proceedings with respect to
other criminal charges against the accused.
3) Delay resulting from extraordinary remedies
against interlocutory orders.
4) Delay resulting from pre-trial proceedings;
provided that the delay does not exceed thirty (30)
days.
5) Delay resulting from orders of inhibition, or
proceedings relating to change of venue of cases
or transfer from other courts.
6) Delay resulting from a finding of the existence of a
prejudicial question; and
7) Delay reasonably attributable to any period, not to
exceed thirty (30) days, during which any
proceeding concerning the accused is actually
under advisement.
21
b) Any period of delay resulting from the absence or
unavailability of an essential witness.
For purposes of this subparagraph, an essential witness
shall be considered absent when his whereabouts are
unknown or whish whereabouts cannot be determined
by due diligence. He shall be considered unavailable
whenever his whereabouts are known but his presence
for trial cannot be obtained by due diligence.
c) Any period of delay resulting from the mental
incompetence or physical inability of the accused to
stand trial.
d) If the information is dismissed upon motion of the
prosecution and thereafter a charge is filed against the
accused for the same offense, any period of delay from
the date the charge was dismissed to the date the time
limitation would commence to run as to the
subsequent charge had there been no previous charge.
e) A reasonable period of delay when the accused is
joined for trial with a co-accused over whom the court
has not acquired jurisdiction, or, as to whom the time
for trial has not run and no motion for separate trial
has been granted.
f) Any period of delay resulting from a continuance
granted by any court motu proprio, or on motion of
either the accused or his counsel, or the prosecution, if
the court granted the continuance on the basis of its
findings set forth in the order that the ends of justice
served by taking such action outweigh the best interest
of the public and the accused in a speedy trial.
Factors in Granting Postponements or Continuance (Rule
119 Sec. 4)
Note: Granting a postponement is discretionary upon the
court.
What are the factors to be considered in granting
continuance or a postponement?
The Court considers the following in granting
continuance or postponement.
a) Whether or not the failure to grant a continuance in
the proceeding would likely make a continuation of
such proceeding impossible or result in a miscarriage of
justice; and
b) Whether or not the case taken as a whole is so novel,
unusual and complex, due to the number of accused or
the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within
the periods of time established therein.
Eg. Ampatuan trials – consider the sheer number
of all the accused, evidence against them,
availability of witnesses, etc.
What are not valid grounds for continuance?
No continuance shall be granted because of
congestion of the court’s calendar or lack of diligent
preparation or failure to obtain available witnesses on the
part of the prosecutor.
 Order of Trial (Rule 119 Sec. 11)
Trial shall proceed in the following order:
a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
b) The accused may present evidence to prove his
defense and damages, if any, arising from the issuance
of a provisional remedy in the case.
c) The prosecution and the defense may in that order,
present rebuttal and sur-rebuttal evidence unless the
court, in furtherance of justice, permits them to
present additional evidence bearing upon the main
issue.
d) Upon admission of the evidence of the parties, the case
shall be deemed submitted for decision unless the
court directs them to argue orally or to submit written
memoranda.
e) When the accused admits the act or omission charged
in the complaint or information but interposes a lawful
defense, the order of trial may be modified.
Diagram
Reverse Order of Trial
When the accused admits the act or omission
charged in the complaint or information but interposes a
lawful defense, the order of trial may be modified.
In such case, (In a strict sense) the burden of
evidence (not the burden of proof) will switch to the
accused.
*The distinctions between burden of proof and burden of
evidence are better taken in evidence.
Eg. A killed B.
In the normal order of trial, the prosecution needs
to prove that:
1) B was killed.
2) It was A, who killed B.
3) The killing was unlawful.
22
Now, if A admits the killing, but interposes a lawful
defense, the prosecution does not need to prove the list
above. It will now be A who needs to prove that the killing
is not unlawful.
Trial in Absentia
What are the requisites of a valid trial in absentia?
The following are the requisites of a valid trial in absentia.
a. The accused has been validly arraigned.
b. The accused has been duly notified of the trial or
hearings.
c. The absence of the accused or his failure to appear is
unjustified.
Discharge of an Accused as a State Witness (Rule
119 Sec. 17, 18 and 19)
Q: There are several accused jointly tried for an offense
arising from a single complaint or information. The
prosecution cannot locate witnesses and cannot obtain
pieces of evidence to secure a conviction. What remedy
may the prosecution resort to if it wants to come up with
evidence to secure conviction?
The prosecution may move/file a motion for the
discharge of one or more accused as state witness or
witnesses.
Procedure for the Discharge of an Accused as a State
Witness:
1) Two or more persons are jointly charged with the same
offense in the complaint or information.
2) Before the prosecution rests its case, it must file a
motion for the discharge of one or more accused to be
a state witness or witnesses.
3) The motion for discharge must be with the consent of
the accused.
4) There must be a hearing on the motion. It is in this
hearing that the prosecution must prove the requisites
for one to be a state witness. At the said hearing, the
prosecution must present evidence along with the
sworn statement of the accused whose discharge as a
state witness is sought. The sworn statement of the
accused must show how the crime was committed and
his and his co-accused’s participation.
5) The court is satisfied that:
a. There is absolute necessity for the testimony of
the accused whose discharge is requested.
b. There is no other direct evidence available for
the proper prosecution of the offense
committed, except the testimony of the said
accused.
c. The testimony of the said accused can be
substantially corroborated in its material points.
d. Said accused has not at anytime been convicted
of any offense involving moral turpitude.
6) After the court is satisfied of the above requisites, it
issues an order granting the motion for discharge of
the accused to be a state witness.
Q: Who may file the motion for the discharge of an
accused to be a state witness?
It is the prosecution who files the motion.
Q: What is the nature of a court order granting the motion
of an accused asking for his discharge to be a state
witness?
A court order granting the motion of an accused
asking for his discharge to be a state witness is void.
Q: When must the motion be filed?
The prosecution must file the motion before
resting its case.
Effect of Becoming a State Witness
Note: An order granting the discharge of an accused to be a
state witness operates as an acquittal for the accused. Thus
the accused cannot be reincluded in the same complaint or
information.
But if the accused fails or refuses to testify against
his co-accused in accordance with his sworn statement
constituting the basis for his discharge, he may be
prosecuted again/reincluded in the same offense.
Admissibility of the Sworn Statement by the Accused
whose, Discharge as a State Witness is being sought
Note: Evidence adduced in support of the discharge shall
automatically form part of the trial. If the court denies the
motion for discharge of the accused as state witness, his
sworn statement shall be inadmissible in evidence.
Mistake made in charging the proper offense.
When it becomes manifest at any time before
judgment that a mistake has been made in charging the
proper offense and the accused cannot be convicted of the
offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there
appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense
and dismiss the original case upon the filing of the proper
information.
Note: In case a mistake has been made in charging the
proper offense and there can be no conviction on any
offense necessarily included in the offense charged, the
accused that has been discharged as a state witness may be
prosecuted if the proper offense has been filed.
Q: The court issued an order granting the prosecutor’s
motion for the discharge of one of the accused, A, to be a
state witness. The prosecution though no longer
presented A, as it felt that it may secure a conviction even
without his testimony. Even if A was available to testify,
he was never called to do it. The prosecution then moved
to reinclude A’s name among those currently prosecuted.
May A be prosecuted?
Suggested Answer Not anymore. The accused will
not be reincluded in the same complaint or information
since it was not his fault that he could not testify.
23
Q: What are the requisites for one to be discharged as a
state witness?
In order for one to be a state witness, the court must be
satisfied of the following:
a) There is absolute necessity for the testimony of the
accused whose discharge is requested.
b) There is no other direct evidence available for the
proper prosecution of the offense committed, except
the testimony of the accused.
c) The testimony of the accused can be substantially
corroborated in its material points.
d) Said accused does not appear to be the most guilty;
and
e) Said accused has not at any time been convicted of any
offense involving moral turpitude.
Q: Is it necessary that the accused, whose discharge as a
state witness is being sought, be the least guilty in the
offense charged?
No. There is no rule requiring that the accused be
the least guilty before he may be discharged as a state
witness. All that the rules require is that the said accused
does not appear to be the most guilty.
Note: Being a State Witness is a form of immunity statute.
Some other forms of immunity statues are the following.
a) Republic Act No. 6700 or the Ombudsman Law –
Authority is granted to the Ombudsman to grant
immunity in cases involving Government Officials and
employees
b) Republic Act No. 9165 or the Dangerous Drugs Act –
Authority is given to the DOJ to grant immunity in drug
cases
c) Executive Order No. 14 – Authority is given to the
PCGG to grant immunity in cases involving ill-gotten
wealth
d) Presidential Decree 749 – Immunity may be given to
informants for certain crimes punished by the RPC,
NIRC (tax code), and Tariff and Customs Code.
e) Republic Act No. 6981 or the Witness Protection
Program.
Effect of Admission into the Witness Protection Program
Admission into the Program shall entitle such
witness to immunity from criminal prosecution for the
offense or offenses in which his testimony will be given or
used and all the rights and benefits provided.
Witness Protection Program under RA 6981 distinguished What then constitutes “opportunity to be heard for the
from Rule 119 Sec. 17 prosecution”?
Witness Discharge of an Before the court dismisses a criminal action on its
Protection Accused to be own after the prosecution rests its case, the court must
Program (WPP) State Witness issue an order directing the prosecution to explain why
Offense The offense Applies to all the case must not be dismissed on ground of insufficiency
Charged: charged must be a offenses of evidence.
grave felony whether light,
punishable by the less grave, or Note: After the prosecution has presented its evidence in
RPC or special grave. chief and rests, the court has two options – (1) dismiss the
laws. case on its own or upon demurer to evidence filed by the
Necessity of Any witness, The witness is accused or (2) allow the case to proceed.
the Witness whether a plain one or more
being an witness or the accused
Accused: accused himself testifying
may be qualified against his co-
under the WPP. accused.
Necessity of The witness need The witness is
being not be charged in necessarily
charged in court in order to charged in
court: qualify in WPP. court.
Necessity of The witness and No such
the witness his relatives by requirement Note: After the prosecution has presented its evidence in
receiving affinity or exists. chief and rests, the accused has two options – (1) File a
threats: consanguinity demurrer to evidence or (2) present its evidence.
within the second
degree is being
threatened with
bodily harm, in
order for the
witness to qualify
under WPP.
Authority The immunity is The immunity is
granting the granted by the granted by the
immunity: DOJ. courts.
Witness In order to qualify No such
being a law under the WPP, requirement Demurrer to Evidence
enforcer: the witness must exists. What is the nature of a demurrer to evidence?
not be a member A demurrer to evidence has the nature of a motion
of a law to dismiss.
enforcement
agency. When is a demurrer to evidence filed?
Benefits The witness The accused A demurrer to evidence is filed after the
Received: receives certain who has been prosecution rests.
benefits such as discharged as a
relocation and state witness What is the ground of a demurrer to evidence?
change of identity. receives no In a criminal case, the ground for filing a demurrer
such benefits. to evidence is insufficiency of evidence. In a civil case, the
ground for filing a demurrer to evidence is lack of cause of
Dismissal due to Insufficiency of Evidence (Rule 119 Sec. action.
23)
After the prosecution rests its case, the court may *Note: even if the grounds for filing a demurrer to evidence
dismiss the action on the ground of insufficiency of in a civil or criminal case are worded differently, they
evidence (1) on its own intiative after giving the actually mean the same thing.
prosecution a chance to be heard or (2) upon demurrer to
evidence filed by the accused with or without leave of Procedure for filing a demurer to evidence:
court. 1. Prosecution rests
2. Accused files a motion for leave of court to file
Note: If the court dismisses the criminal action on its own, demurrer to evidence within five (5) days after the
it must afford the prosecution a chance to be heard. prosecution rests.

24
3. The prosecution files its opposition, or comment to the
motion for leave within five (5) days from its receipt of
the motion for leave.
4. The court issues an order granting or denying the
motion for leave.
5. The accused files his demurrer to evidence either with
leave or without leave of court. If the motion for leave
has been granted, the accused has ten (10) days from
notice of the order within which, to file his demurrer to
evidence.
6. The court either issues an order granting or
denying the demurrer to evidence.
Granting a demurrer to evidence operates as an
acquittal of the accused.
A court denies a demurrer to evidence if in its
mind, the evidence is sufficient.
Note: The order denying the motion for leave or the
demurrer to evidence itself is not reviewable by appeal or
certiorari before judgment.
Demurrer to evidence filed with Leave of Court.
What is the significance of obtaining prior leave of court in
filing a demurer to evidence?
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without
leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of
the evidence for the prosecution.
When is demurrer to evidence filed with leave of court?
A demurrer to evidence is filed with leave of court
if the earlier-filed motion for leave to file demurrer to
evidence is granted by the court.
What is the remedy of the accused, whose demurrer to
evidence filed with leave of court was denied?
The accused must now present his evidence.
Demurer to Evidence Filed without Leave of Court
When is a demurrer to evidence filed without leave of
court?
There is no prior leave of court to file demurrer to evidence
in the following instances:
1. The accused files a demurrer to evidence without first
filing a motion for leave of court.
2. The accused filed a demurrer to evidence
notwithstanding that his earlier filed motion for leave
of court has been denied. (the motion for leave has
been denied but the accused still filed a demurrer to
evidence)
Demurrer to Evidence and the Civil Aspect of the Criminal
Action
Case: After the prosecution has rested its case, the
accused files a demurrer to evidence. In resolving the
demurrer to evidence, should the trial court likewise
decide the civil aspect of the case and determine the civil
liability of the accused?
25
The answer should be qualified as follows:
a) If the demurrer to evidence is filed without leave of
court:
If the demurrer to evidence is filed without leave
of court, the whole case is submitted for judgment on the
basis of the evidence for the prosecution as the accused is
deemed to have waived his right to present evidence. In
this situation, the court is called upon to decide the case
including its civil aspect, unless the offended party has
waived the civil action, or has reserved his right to institute
it separately, or has instituted the civil action prior to the
criminal action.
In case of conviction, the trial court should state in
its judgment the civil liability or damages to be recovered
by the offended party from the accused.
In case of acquittal, the accused may still be
adjudged civilly liable where: (a) the acquittal is based on
reasonable doubt; (b) the court declares that the liability of
the accused is only civil; or (c) the civil liability of the
accused does not arise from or is not based upon the crime
of which the accused is acquitted.
But if the accused is acquitted and there is a
finding in the final judgment in the criminal action that the
act or omission from which the civil liability may arise did
not exist, then the civil action based on the delict is deemed
extinguished.
b) If the demurrer to evidence is filed with leave of
court:
If the court denies the demurrer to evidence
because the evidence presented by the prosecution is
sufficient, the accused may present evidence regarding
both the criminal and civil aspect of the case.
If the court grants the demurrer to evidence
because the evidence so far presented by the prosecution is
insufficient as proof beyond reasonable doubt, it does not
follow that the same evidence is insufficient to establish a
preponderance of evidence. Thus, if the court grants the
demurrer, proceedings on the civil aspect of the case shall
proceed, except if the trial court finds that the act or
omission from which the civil liability may arise did not
exist. (Hun Hyung Park v. Eung Won Choi, G.R. No. 165496,
Feb. 12, 2007)
Scenario: A filed a demurrer to evidence with leave of
court. The court granted it. How will the court proceed as
to the civil aspect of the case?
As to the civil aspect of the case, the court may
require the prosecution to prove the accused’s civil liability
by preponderance of evidence.
What if in granting the demurrer to evidence, the court
failed to resolve the civil aspect of the case?
In such instance, the remedy by the offended party
is to appeal the civil aspect of the case.
Q: Does denial of a demurrer to evidence without prior
leave of court equivalent to conviction?
No. The denial of a demurrer to evidence filed
without prior leave of court is not equivalent to conviction.
It does not even warrant an automatic conviction. The
court will still determine whether the evidence presented
by the prosecution can sustain a conviction beyond
reasonable doubt. If it does not, then the case will be
dismissed.
Q: A, the accused, filed a demurrer to evidence without
first obtaining prior leave of court. It was denied.
Nonetheless, the court ordered A to present his evidence.
Is the court correct in issuing such order?
The court is not correct. When an accused waives
his right to present evidence by filing a demurrer to
evidence without leave of court, the court may not order
him to present evidence. Doing so constitutes grave abuse
of discretion.
What is the prosecution’s remedy against an order
granting a demurrer to evidence?
The remedy is not appeal, but a petition for
certiorari under Rule 65 on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction or a
denial of due process or lack or excess of jurisdiction and
upon showing that there is no appeal, or any other plain,
adequate, and speedy remedy in the ordinary course of
law.
Depriving The Prosecution an Opportunity to Prove the
Identity of the Accused Upon Grant of a Demurrer to
Evidence Constitutes Grave Abuse of Discretion
Scenario: A was charged for murder before the RTC. The
prosecution has already presented 3 witnesses. It has one
more remaining witness, who happens to be the one to
prove the identity of A as the author of the crime. On the
day of A’s giving of testimony, he failed to appear. The
prosecution moved for a postponement but the trial court
denied it. Without any evidence to prove his identity as
the perpetrator of the crime, A filed a demurrer to
evidence. The court granted it. May the prosecution
appeal the order of the court granting the demurrer to
evidence? (Sanvicente v. People, 441 Phil. 139 (2002)
No. The prosecution cannot appeal such order
without violating the accused’s right against double
jeopardy. The order granting a demurrer to evidence is an
adjudication by merits, and it operates as an acquittal of
the accused. The remedy of the prosecution is to file a
petition for certiorari under rule 65 to set aside the court’s
order.
Q: What is the remedy of the prosecution when the court
dismissed the criminal action on its own on the ground of
insufficiency of evidence, but without first affording an
opportunity for the prosecution to be heard?
The prosecution’s remedy is to file a petition for
certiorari under Rule 65. The court acted with grave abuse
of discretion when it did not afford the prosecution an
opportunity to be heard.
*Note: Rule 15, Section 9. A motion for leave to file a
pleading or motion shall be accompanied by the pleading
or motion sought to be admitted.
26
The motion for leave to file demurrer to evidence
must then be accompanied by the demurer to evidence
itself pursuant to Rule 15.
Rule 120: Judgment
What is judgment? (Rule 120, Sec. 1)
Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged and
the imposition on him of the proper penalty and civil
liability, if any.
Requisites of a valid judgment (Rule 120, Sec. 1)
1. It must be written and in the official language.
2. It must be personally and directly prepared by the
judge.
3. It must contain clearly and distinctly a statement of the
facts and the law upon which it is based.
4. It must be signed by the judge preparing it and filed
with the Clerk of Court.
Why must the judgment state clearly and distinctly the
facts and law upon which it is based?
The parties to a litigation should be informed of
how it was decided, with an explanation of the factual and
legal reasons that led to the conclusions of the trial court.
The losing party is entitled to know why he lost, so he may
appeal to the higher court, if permitted, should he believe
that the decision should be reversed. A decision that does
not clearly and distinctly state the facts and law upon which
it is based is precisely prejudicial to the losing party, who is
unable to pinpoint to possible errors of the court for review
by a higher tribunal. (Lumanog, et. al. v. People, GR No.
182555, September 7, 2010)
Note: A judgment that fails to state clearly and distinctly
the facts upon which it is based, is called a sin perjuicio
judgment. It is void.
Memorandum Decision and Minute Resolution
What is a Memorandum decision?
A memorandum decision is a decision which
adopts by reference the findings of fact and conclusions of
law contained in the decision of an inferior tribunal. (Oil
and Natural Gas Commission v. CA GR No. 114323, July 23,
1998)
It is allowed and is not violative of the
Constitutional provision that a decision shall contain the
facts and the law upon which it is based. By its very nature,
a memorandum decision may be rendered only by an
appellate tribunal.
(In other words, nangopya lang ng decision ang appellate
court. Hehe. Note that in a memorandum decision, it is the
decision of the lower court that is adopted, not the
references, or arguments on points of facts and law made
by the parties through their pleadings, motions, position
papers, briefs, memoranda, etc. In the broad sense though,
even decisions adopting the parties’ position papers,
memoranda, and pleadings are also called memorandum
decisions.)
What is a minute resolution?
Simply put, a minute resolution is a resolution
denying petitions for review, appeal, etc., in the shortest
possible way.
Eg. “Please take notice that the Court issued a
resolution in this case, dated ______ and reads as follows:
The petition is denied for lack of merit.” No further
explanation is added. It is a one page resolution that has
nothing attached to explain why the said judgment was
arrived at.
Is a minute resolution valid?
Its validity must be qualified. It is valid for
dismissing a petition for review. It is an adjudication by
merit which becomes final.
Rationale: (As quoted from Jandy J. Agoy v. Araneta Inc.,
GR No. 196358, March 21, 2012)
Minute resolutions are issued for the prompt
dispatch of the actions of the Court. While they are the
results of the deliberations by the Justices of the Court,
they are promulgated by the Clerk of Court or his assistants
whose duty is to inform the parties of the action taken on
their cases by quoting verbatim the resolutions adopted by
the Court. Neither the Clerk of Court nor his assistants take
part in the deliberations of the case. They merely transmit
the Court’s action in the form prescribed by its Internal
Rules. As the Court explained in Borromeo v. Court of
Appeals, no law or rule requires its members to sign minute
resolutions that deny due course to actions filed before it
or the Chief Justice to enter his certification on the
same. The notices quote the Court’s actual resolutions
denying due course to the subject actions and these already
state the required legal basis for such denial. To require
the Justices to sign all its resolutions respecting its action
on new cases would be unreasonable and unnecessary.
While the Constitution requires every court to
state in its decision clearly and distinctly the fact and the
law on which it is based, the Constitution requires the
court, in denying due course to a petition for review,
merely to state the legal basis for such denial.
The Court has repeatedly said that minute
resolutions dismissing the actions filed before it constitute
actual adjudications on the merits. They are the result of
thorough deliberation among the members of the
Court. When the Court does not find any reversible error in
the decision of the CA and denies the petition, there is no
need for the Court to fully explain its denial, since it already
means that it agrees with and adopts the findings and
conclusions of the CA. The decision sought to be reviewed
and set aside is correct.
Even the Validity of a Criminal Information may be Ruled
Upon in a Minute Resolution
Jose B. Del Rosario Jr. V People of the Phil., GR No. 143419,
June 22, 2006.
Facts: At first, the Ombudsman did not find probable cause
to indict A for violation of the graft and corrupt practices
act. It held this view on review. On the motion for
27
reconsideration, it again reiterated its finding that no
probable cause exists for A’s indictment. Another motion
for supplemental reconsideration was filed, and this time,
the Ombudsman found probable cause to indict A. In other
words, the Ombudsman had a change of mind, after three
resolutions finding no probable cause for A’s indictment.
The information was filed in the Sandiganbayan. A filed a
motion to quash but the same was denied. A filed a petition
for certiorari to question the validity of the information.
When he was required to comment, A did not comply. With
nothing to support his argument, and for his failure to file a
comment, the Supreme Court denied his petition in a
minute resolution and ruled that the criminal information
was valid.
The case prospered. During the pre-trial, A again
questioned the validity of the information. The
Sandiganbayan ruled that it was valid as per the minute
resolution by the Supreme Court. A once again went to the
Supreme Court alleging that the Sandiganbayan acted with
grave abuse of discretion. A argued that the validity of the
information filed against him could not be ruled upon by
the courts in a minute resolution. The dismissal of his
previous petition was due to his failure to file a comment,
and not some other grounds.
The Supreme Court simply resolved otherwise. It
held that the dismissal of the previous petition, and their
ruling that the information is valid is an adjudication by
merits. It attained finality and res judicata may set in,
barring a relitigation on the same issue.
Error of Judgment and Error of Jurisdiction
Error of jurisdiction arises from failure to comply
with the requisites of a valid judgment. It is a void
judgment, the remedy for which is a petition for certiorari
under Rule 65.
An error of judgment arises when the wrong and
inapplicable set of facts and law was used. It is a valid
judgment though it may be wrong. Such judgment is a valid
subject of appeal. (People v. CA G.R. No. 144332, June 10,
2004, 431 SCRA 610 as cited in Almuete v People. These
cases shall be discussed later in the topics of appeal and
promulgation of judgment)
Contents of a Judgment of Conviction (Rule 119 Sec. 2)
The judgment of conviction shall state the
following.
1) The legal qualification of the offense constituted by the
acts committed by the accused;
2) The aggravating and mitigating circumstances which
attended the commission of the offense, if any;
3) The participation of the accused in the offense whether
as principal, accomplice, or accessory;
4) The penalty imposed upon the accused;
5) The civil liability or damages caused by his wrongful act
or omission to be recovered from the accused by the
offended party, if there is any, unless the enforcement
of the civil liability by a separate civil action has been
reserved or waived.
Contents of a Judgment of Acquittal (Rule 119 Sec. 2)
The judgment of acquittal shall state the following.
a. Whether or not the evidence of the prosecution
absolutely failed to prove the guilty of the accused, or
merely failed to prove his guilt beyond reasonable
doubt;
b. Determination if the act or omission from which the
civil liability might arise did not exist;
Duplicity of Complaint or Information (Rule 120, Sec. 3)
When two or more offenses are charged in a single
complaint or information but the accused fails to object to
it before trial, the court may convict him of as many
offenses as are charged and proved, and impose on him the
penalty for each, offense, setting out separately the
findings of fact and law in each offense.
*Note: Refer to earlier discussions regarding this matter.
For what offense may the accused be convicted of? (Rule
120, Sec. 4)
The accused may be convicted of the crime
charged provided it is duly proved. However, in case of
variance between the offense charged and that proved, the
accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged
which is included in the offense proved.
Note: Sec. 4 of Rule 120 is known as the Rule on Variance.
This rule also answers the question as to what offense may
an accused be convicted of in case of variance.
When does the offense charged include the offense
proved? (Rule 120, Sec. 5)
An offense charged necessarily includes the
offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or
information, constitute the latter.
When is the offense charged necessarily included in the
offense proved? (Rule 120, Sec. 5)
An offense charged is necessarily included in the
offense proved, when the essential ingredients of the
former constitute or form part of the latter.
Note: Robbery necessarily includes theft.
Murder or paricide necessarily includes homicide
and physical injuries.
Rape necessarily includes Acts of Lasciviousness,
Seduction.
Robbery with Force Upon things is different from
and does not include or is necessarily included in Robbery
with Violence, or Intimidation against Persons.
Attempted Rape Necessarily Includes Light Coercion or
Unjust Vexation (Renato Baleros Jr. V. People, GR No.
138033, January 30, 2007)
Facts: A, a lady is sleeping at her dormitory room
located at the third floor. B, a man, climbed up to her
window, stealthily opened it, and was about to place a
28
handkerchief laden with knockout gas on A’s face.
Fortunately, before A could inhale any of the fumes, she
noticed B’s presence. B hastily went on top of A and tried
his best to make A inhale the fumes. B failed. A was later
charged for attempted rape. The information alleged that B
committed preparatory acts for rape. The trial court arrived
at a judgment of conviction. When the case reached the
Supreme Court though, the judgment of conviction for
attempted rape was overturned. Instead, the Supreme
Court held that B is liable for unjust vexation, an offense
necessarily included in the charge of attempted rape. The
Court ruled that there is doubt as to the true intention of B.
Although a reasonable man would presume that B intended
nothing else but to rape A just by looking at the facts of the
case, the Court ruled that B could have had other things in
his mind aside from raping A. With his intent unkown, B
could not be held liable for attempted rape or other crimes.
Still, it is a fact that A was severely annoyed by B’s acts,
which is unlawful. The proper thing to do then is to hold B
liable for unjust vexation.
(Lesson – The gist of the decision can be translated in this
phrase - “kapag palpak ka na mangrape, nangiinsulto ka
lang”. Hehe)
From this Supreme Court decision, it may be
inferred that other crimes that bring about unjustified
insults necessary include unjust vexation as well. – Eg.
Murder, etc.
Promulgation of Judgment (Rule 119, Section 6)
How is judgment in a criminal case promulgated?
The judgment is promulgated by reading it in the
presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a
light offense, the judgment may be pronounced in the
presence of his counsel or representative. When the judge
is absent or outside the province or city, the judgment may
be promulgated by the clerk of court.
Note: Promulgation of judgment in a civil case is different.
For purposes of this subject, always note that the topics
primarily refer to criminal cases.
How is judgment promulgated if the accused is absent
during the date of promulgation?
In case the accused fails to appear at the
scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the
judgment in the criminal docket and serving him a copy
thereof at his last known address or thru his counsel.
Promulgation must be made during the incumbency of the
judge who penned the decision.
Case: Judge X prepared and signed a judgment which was
dated on June 1, 2011. The accused received the notice of
promulgation on July 1, 2011. In the said notice, the
promulgation was set on July 16, 2011. Before the
promulgation, Judge X died on July 10, 2011. Nonetheless,
the promulgation proceeded as the Clerk of Court relied
on the provision of the rules stating that “when the judge
is absent or outside the province or city, the judgment
may be promulgated by the Clerk of Court”. Is the
judgment valid?
No, the judgment is void. The said judgment may
never be promulgated. Promulgation must be made during
the incumbency of the judge who penned the decision. The
absence referred to in the said rule refers to temporary
absence. In case of a judge’s death, dismissal, resignation,
or promotion, the absence is permanent and the judge
ceases to be the judge of the court.
Note: Always remember, an earlier penned decision may
not be promulgated after the judge who prepared and
signed it becomes permanently absent – dismissed, dead,
resigned, or promoted.
What then will happen in such instances?
The court and the accused has no choice but to
wait for the next judge to review the records of the case,
prepare and sign the decision, set the promulgation, and
promulgate it.
Is a judgment void due to the reason that the judge who
prepared, signed, and promulgated it, is not the one who
heard the case?
No. The fact that the trial judge who rendered
judgment was not the one who had the occasion to observe
the demeanor of the witnesses, during trial, but merely
relied on the records of the case, does not render the
judgment erroneous, especially where the evidence on
records is sufficient to support its conclusion. (People v.
Alfredo, GR No. 188560, December 15, 2010)
Promulgation must be made where the court sits
Case: The criminal action is filed in Baguio City.
Nonetheless, after a change of venue, trial was conducted
in La Union. The judgment was promulgated in La Union.
The date of the promulgation though, falls on a Baguio
holiday. Is the promulgation valid?
Yes, the promulgation is valid. The judgment must
be promulgated where the court sits. In this case, the court
sits in La Union, and not in Baguio.
Notice of the Promulgation to the Bondsman, Warden, or
Counsel is Notice to the Accused.
The proper clerk of court shall give notice to the
accused personally or through his bondsman or warden and
counsel, requiring him to be present at the decision.
Notice in case of Trial in Absentia
If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him shall
be served at his last known address.
Accused’s absence during promulgation
What is the effect of the accused’s absence during
promulgation?
In case the accused fails to appear at the
scheduled date of promulgation of judgment despite
notice, and the judgment is one of conviction, the accused
29
shall lose his right to appeal or avail of any of the post-
conviction remedies provided his absence was without
justification.
*Note: It is for this reason that some authors state that the
presence of the accused is needed during promulgation.
Just remember that absence of the accused during
promulgation will not invalidate the proceedings, unlike in
arraignment and in-court identification.
Absence of the Accused During Promulgation
May a judgment be promulgated in a criminal case even in
the absence of the counsel for the accused? (Icdang v.
Sandiganbayan, G.R. No. 185960, Jan. 25, 2012)
Yes. The presence of counsel for the accused is
not indispensable for promulgation.
What are the post-conviction remedies of the accused?
The post-conviction remedies of the accused are the
following.
1) Motion for Reconsideration.
2) Appeal
3) Motion for New Trial
4) Motion to Reopen Trial
Note: In the above list, the remedies of Habeas Corpus and
reliance upon DNA Testing may also be added.
Are there instances when the accused does not appear
during the promulgation yet he does not lose his right to
appeal or to avail of his post-conviction remedies?
Yes. If the conviction is for a light offense, the
judgment may be pronounced in the presence of the
accused’s counsel or his representative. In such instance,
even if the accused was absent, he does not lose his right to
avail of the post-conviction remedies.
What then is the remedy of the accused who failed to
attend the promulgation of judgment?
Within fifteen (15) days from the promulgation of
judgment, the accused must surrender and file a motion for
leave of court to avail of the post-conviction remedies. He
shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a
justifiable cause, he shall be allowed to avail of the said
remedies within fifteen (15) days from notice.
Note: The accused needs to surrender, and not just file
the motion for leave.
The court shall decide whether the reason for the
absence of the accused is justified or not. If the court finds
the reasons justified, it issues an order granting the motion
and ordering the accused to avail of the remedies within 15
days from notice of the order. If the court finds the reasons
unjustified, it denies the motion.
 Diagram
Note: Prior to conviction, the accused may be on bail. It will
only be after the promulgation of the judgment that the
bail will be ordered cancelled and a warrant of arrest may
be issued as against the accused. A situation may now arise
where instead of the accused surrendering before the
court, it will be the authorities arresting him.
Q: What if, instead of surrendering, the accused was
arrested. Nonetheless, he still filed a motion for leave to
avail of the post-conviction remedies. May the court act
upon his motion?
Yes, the court must still act upon his motion. The
rules must be construed in favor of the accused. The word
surrender is synonymous with or includes the concept of
arrest. Even if he did not surrender, but he was arrested
just the same, the Court and the proper authority have
custody over his person. Thus, if he can show that his
absence during the promulgation despite due notice is
justifiable, the court may still grant his motion.
Q: What is the remedy of the accused against the court’s
order cancelling his bond?
The proper remedy is to file with the Court of
Appeals a motion to review the said order in the same
regular appeal proceedings, as an incident to his appeal –
the filing of a separate petition via a special civil action or
special proceeding questioning such adverse order before
the appellate court is proscribed. (Chua v CA, 520 SCRA 729,
April 12, 2007)
Case: In a case for Homicide, the accused failed to attend
the promulgation despite due notice. Within 15 days from
the promulgation, he filed a motion for reconsideration.
a) What must the trial court do?
b) Will the motion for reconsideration stay the
judgment?
Answer:
a) The court may deny the motion for
reconsideration, outright. It is not the proper remedy. By
the accused’s absence during the promulgation, he is
deemed to have waived his right to appeal, and avail of the
other post-conviction remedies.
b) The motion for reconsideration will not stay the
judgment. The judgment simply lapses into finality.
Note: Availing of any of the post-conviction remedies
without first filing a motion for leave to avail of the said
remedies, is the wrong remedy. The court may simply deny
the accused’s application for the said remedies, and the
judgment becomes final.
30
Promulgation by Appellate Courts; Erroneous Remedies of
Motion for Repromulgation and Petition for Certiorari
under Rule 65; Prescription of Right to Appeal
Q: A was absent during the promulgation of judgment by
the trial court. He was convicted. He claimed to be ill
alleging that he was suffering from severe stress and upon
consultation with a doctor, he was advised to take a rest.
He did take a rest on the day of the promulgation. He filed
before the RTC or trial court a motion for reconsideration
questioning the promulgation. It was denied. On appeal,
the appellate court denied his appeal. When the records
of the case were brought to the trial court for execution,
he now claims the appellate court’s decision of conviction
must be promulgated as well by the trial court. Thus he
filed a motion for repromulgation. Resolve the case.
Look into the succeeding case.
A motion for Repromulgation or Petition for Certiorari
under Rule 65 are not the proper remedies (Almuete v.
People GR No. 179611, March 12, 2013)
This is another peculiar case. This case explains how
promulgation of judgment is done by the Supreme Court or
other appellate courts.
Facts: A, B, C, and D were convicted of violation of PD 705.
They were absent during the promulgation of the
judgment. Their lawyer claimed that A, B, and C were ill
while D was not notified of the promulgation. All the
accused filed a motion for reconsideration questioning the
legality of the promulgation. The trial court denied their
motion. All the accused filed a petition for certiorari before
the CA asking for a repromulgation. The CA granted their
petition. The State through the Solicitor General appealed
the CA’s decision to the SC. The SC ruled in favor of the
State and reinstated the trial court’s judgment. The
judgment has become final and has been entered into the
entry of judgments. All of the accused still filed a 2nd and 3rd
motion for reconsideration which were still denied by the
Supreme Court. All of the accused now filed a motion for
clarification before the SC asking whether they may still
appeal the trial court’s judgment of conviction. Without any
resolution on their motion, all accused filed a motion for
repromulgation before the trial court that convicted them.
It was denied. On appeal, they argued that the trial court
ought to have repromulgated the judgment of conviction
by the Supreme Court in order for them not to lose their
right to appeal. By this reason their right to appeal still
exists.
Issue:
A) May the accused still appeal?
B) Is there a need to promulgate a decision by the
appellate court in the trial court before the said decision
becomes valid?
Ruling:
A) No, the accused’s right to appeal has already
prescribed. The judgment has long become final. In fact,
there has already been an entry of judgment.
B) No, a repromulgation of either the affirmed or
modified judgment of conviction by the trial court is not
necessary. Under Administrative Circular No. 16-93, issued
on September 9, 1993, The procedure for the promulgation
of judgments in the trial courts in criminal cases, differs
from that prescribed for the Supreme Court and the Court
of Appeals where promulgation is effected by filing the
signed copy of the judgment with the Clerk of Court who
causes true copies thereof to be served upon the parties.
The procedural consequence of this distinction
was reiterated in Jesus Alvarado, etc. Vs. The Director of
Prisons, to wit: By sections 8 and 9 of Rule 53 (now Sections
10 and 11 of Rule 51) in relation to section 17 of Rule 120
(now Section 17 of Rule 124), a judgment is entered 15 days
after its promulgation, and 10 days thereafter, the records
are remanded to the court below including a certified copy
of the judgment for execution.
In the case of People vs. Sumilang (44 Off. Gaz.,
881, 883; 77 Phil. 764), it was explained that “the certified
copy of the judgment is sent by the clerk of the appellate
court to the lower court under section 9 of rule 53, not for
the promulgation or reading thereof to the defendant, but
for the execution of the judgment against him,” it “not
being necessary to promulgate or read it to the defendant,
because it is to be presumed that accused or his attorney
had already been notified thereof in accordance with
sections 7 and 8, as amended, of the same Rules 53 (now
sections 9 and 10 of Rule 51),” and that the duty of the
court of first instance in respect to such judgment is merely
to see that it is duly executed when in their nature the
intervention of the court of first instance is necessary to
that end.
The practice of requiring the convict to appear
before the trial court for “promulgation” of the judgment of
the appellate court should, therefore, be immediately
discontinued.
Question No. 1 for the 2014 Bar Examination in Remedial
Law
Ludong, Balatong, and Labong were charged with
murder. After trial, the court announced that the case was
considered submitted for decision. Subsequently, the Court
issued the notices of promulgation of judgment which were
duly received. On promulgation day, Ludong and his lawyer
appeared. The lawyers of Balatong and Labong appeared
but without their clients and failed to satisfactorily explain
their absence when queried by the court. Thus, the judge
ordered the Clerk of Court to proceed with the reading of
the judgment convicting all the accused. With respect to
Balatong and Labong, the judge ordered that the judgment
be entered in the criminal docket and copies be furnished
to their lawyers. The lawyers of Ludong, Balatong, and
Labong, filed within the reglementary period a Joint Motion
for Reconsideration. The court favorably granted the
motion of Ludong downgrading his conviction from murder
to homicide but denied the motion as regards Balatong and
Labong.
a) Was the court correct in taking cognizance on the
Joint Motion for Reconsideration?
b) Can Balatong and Labong appeal their conviction in
case Ludong accepts his conviction for homicide?
31
Answer:
a) Yes, the court was correct in taking cognizance
on the Joint Motion for Reconsideration, but only as to
Ludong. The court should treat the motion as if it has been
filed only by Ludong. Any resolution made by the court on
the motion will only affect Ludong. Balatong and Labong
have already lost their right to avail of post conviction
remedies. (People v. Delgado, 2009)
b) No, Balatong and Labong can no longer appeal
their judgment of conviction. They are deemed to have
waived their right to appeal and other post conviction
remedies. The judgment simply lapses into finality.
Suppose, in the situation above, this question was asked.
Will the judgment downgrading the offense committed by
Ludong benefit Balatong and Labong?
No, such judgment in Ludong’s favor will not
benefit Balatong and Labong. Although the rules provide
that a favorable judgment for an accused who appealed,
will benefit his other other co-accused if the judgment is
favorable and applicable to them, this is not the case for a
motion for reconsideration. The rules do not provide for a
similar effect of rendering a favorable judgment.
Finality of Judgment. (Rule 120, Section 7)
A judgment of acquittal is immediately final and
executory. A judgment imposing the death penalty is
always subject to automatic review. (This part is better
discussed in the subject matter of appeal)
A judgment of conviction becomes final upon the
following instances.
a) After the lapse of the period for perfecting an appeal
without an appeal having been perfected.
b) When the sentence has been partially or totally
satisfied/ Total or partial service of sentence.
c) When the accused has waived in writing his right to
appeal
d) When the accused has applied for a probation.
Note: Even though the Rules of Court mention that a
judgment of conviction becomes final after the lapse of the
period for perfecting an appeal, it is understood that in
such instance, no appeal was ever perfected.
Application for probation must be filed within the
same period for perfecting an appeal.
Probation and appeal are two exclusive and
incompatible remedies. Jurisprudence dictates that they
are mutually exclusive remedies. Applying for probation
excludes the right to appeal. The former is a waiver of the
latter. In applying for probation, the accused is deemed to
have accepted the correctness of the judgment of
conviction against him. To apply for probation, the
judgment needs to become final. In the opposite side,
appealing the case excludes one from applying for
probation. Resorting to appeal is a waiver of the privilege to
apply for probation. In appeal, judgment is stayed and does
not become final. The accused does not accept the
correctness of the judgment and throws the whole case for
review.
But appealing the penalty alone and not the conviction for
a crime, may entitle one for Probation. (Colinares v.
People, GR No. 182748, December 13, 2011)
Case: A was convicted of Frustrated Homicide. He was
meted the penalty of from 2 years and 4 months of prision
correccional, as minimum, to 6 years and 1 day of prision
mayor, as maximum.
During the trial, A insisted that he is liable for Attempted
Homicide, and not Frustrated Homicide. He reiterated this
argument on appeal and at the same time claimed that he
is entitled to probation.
When the case reached the Supreme Court, it held
that A is indeed liable for Attempted Homicide. His penalty
is modified to 4 months of arresto mayor, as minimum, to 2
years and 4 months of prision correccional, as maximum,
which is now allowed for probation.
The Court also pronounced that A is qualified for
probation. In appealing his case, Colinares raised the issue
of correctness of the penalty imposed on him. In a way,
therefore, he sought from the beginning to bring down the
penalty to the level where the law would allow him to apply
for probation.
In a real sense, the SC’s finding that Colinares was
guilty, not of frustrated homicide, but only of attempted
homicide, is an original conviction that for the first time
imposes on him a probationable penalty.
Modification of Judgment (Rule 120, Section 7)
A judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes final or
before appeal is perfected.
Entry of Judgment (Rule 120, Section 8)
After a judgment has become final, it shall be
entered into the book or entry of judgments.
Applicability of the Rules governing suspension of
sentence, probation and parole.
Nothing in this Rule shall affect any existing
provisions in the laws governing suspension of sentence,
probation, or parole.
Eg. Cases of an accused that is below 18 years of
age, but over 15 years of age at the commission of
the crime. (*In other words, 16-17 years old)
The said accused is entitled to an automatic
suspension of sentence. But if the imposable penalty for
the offense is death, reclusion perpetua, or life
imprisonment, there is no automatic suspension of
sentence.
Thus, if the imposable penalty is reclusion
perpetua, but after application of the Indeterminate
Sentence Law, the penalty imposed is Reclusion Temporal,
the accused is not entitled to automatic suspension of
sentence.
32
POST CONVICTION REMEDIES
New Trial or Reconsideration (Rule 121)
At any time before a judgment of conviction
becomes final, the court may, on motion of the accused or
at its own instance but with the consent of the accused,
grant a new trial or reconsideration.
Note: The court, on its own initiative, may grant or cause
new trial or reconsideration of its judgment.
If the accused wants to avail of new trial or
reconsideration, he must file a motion before the judgment
of conviction becomes final.
Grounds for New Trial (Rule 121 Section 2)
The court shall grant a new trial on any of the following
grounds:
a) Errors of law, irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial;
Eg. The accused calls for a witness but the
court disallowed it.
The court forces a witness to testify
against himself.
The judge/court is the one conducting the
preliminary investigation, conducts trial
without notice to parties, and capriciously
denies demurrer to evidence (Gacayan v
Pamintuan)
b) New and material evidence has been discovered
which the accused could not with reasonable
diligence have discovered and produced at the trial
and which if introduced and admitted would
probably change the judgment.
Note: The rules speak of newly discovered
evidence and not forgotten evidence.
Newly Discovered Evidence
Is the discovery of new witness/es a ground for new trial?
It depends. If the testimony of the
witness pertains to new and material evidence, then it is. If
not, then it will not be a ground for new trial.
How about a witness retracting his testimony? Is it a
newly discovered evidence?
No. Recantation of testimonies is not allowed. A
recantation is the renunciation in a formal or public
withdrawal of a prior statement of a witness. This is
frowned upon by the courts. The original testimony should
be given more credence.
Note: While this is the way to answer in classroom
discussions or the bar exam, the opposite is a prevailing
practice in real life. A motion to dismiss, whether in the
preliminary investigation, trial court, or appellate court is
filed, coupled with an Affidavit of Desistance executed by
the witness/es. In the said affidavit, the witness/es recant New Trial distinguished from Reopening of Trial
their previous testimonies. The motion to dismiss bears the New Trial Reopening of Trial
consent of the public prosecutor, and asks for the dismissal When Anytime Anytime before finality
of the case on the ground of inability of the prosecutor to Filed: before of judgment of
prove beyond reasonable doubt the guilt of the accused, as judgment of conviction.
it is bereft of any evidence to prove it. conviction
becomes
But what if the sole evidence for the prosecution is a lone final.
witness’s testimony, which was later discovered to be Grounds: Limited only To avoid miscarriage of
false, is the subsequent recantation of the sole witness, to those justice.
now a newly discovered evidence? mentioned in *Note: This is a very
In that case, it is believed that it is. Rule 121, broad ground. It will
Sec. 2 warrant resorting to
What about DNA Evidence? Reopening of Trial in
DNA Testing as a Post-Conviction Remedy case the grounds for
appeal, new trial, or
What is the rule regarding Post-Conviction DNA Testing? reconsideration are not
The rule on post-conviction DNA testing is available.
expressed in A.M. No. 06-11-5-SC, Effective Oct. 15, 2007,
as follows: Note: Remember the language of the rules. In the period to
file the above remedies, they are similar yet phrased
“Sec. 6. Post-conviction DNA Testing. – Post-conviction differently.
DNA testing may be available, without need of prior court
order, to the prosecution or any person convicted by final
and executory judgment provided that (a) a biological
sample exists, (b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal or
modification of the judgment of conviction.” (Rule on DNA Habeas Corpus as a Post-conviction Remedy
Evidence, A.M. No. 06-11-5-SC, Effective Oct. 15, 2007) In what instances may habeas corpus be resorted to as
post-conviction remedy?
“Sec. 10. Post-conviction DNA Testing – Remedy if the The writ of habeas corpus may be resorted to as post-
Results Are Favorable to the Convict. – The convict or the conviction remedy in any of the following exceptional
prosecution may file a petition for a writ of habeas corpus circumstances:
in the court of origin if the results of the post-conviction a) there has been a deprivation of a constitutional right
DNA testing are favorable to the convict. In case the court, resulting in the restraint of a person;
after due hearing, finds the petition to be meritorious, it b) the court had no jurisdiction to impose the sentence;
shall reverse or modify the judgment of conviction and c) the imposed penalty is excessive, thus voiding the
order the release of the convict, unless continued detention sentence as to such excess.
is justified for a lawful cause. Under the Rule on DNA Evidence, habeas corpus
may also be resorted to as post-conviction remedy where
A similar petition may be filed either in the Court of the result of the DNA examination is favorable to the
Appeals or the Supreme Court, or with any member of said accused.
courts, which may conduct a hearing thereon or remand Thus, the writ of habeas corpus was held available
the petition to the court of origin and issue the appropriate where an accused was deprived of his right against self-
orders.” incrimination. (cited in de Villa v. The Director, New Bilibid
Prisons, G.R. No. 158802, Nov. 17, 2004).
Ground for Reconsideration (Rule 121 Section 3) But habeas corpus is not available as post-
The court shall grant reconsideration on the conviction remedy where the appeal is still pending.
ground of errors of law or fact in judgment, which requires (People v. Maquilan, G.R. No. 126170, Aug. 27, 1998).
no further proceedings.
Rule 122 (Appeal)
Reopening of trial (Rule 119, Section 24) Who may appeal?
At any time before finality of the judgment of The following may appeal.
conviction, the judge may, motu proprio or upon motion, a) The State – Any appeal made by the State must yield
with hearing in either case, reopen the proceedings to to Double Jeopardy.
avoid a miscarriage of justice. b) The Accused.
c) The Private Offended Party with respect to the civil
aspect of the case.

33
The State Questioning or Appealing a Judgment of
Acquittal
*In this particular topic, the more proper term is “The
State Questioning/Assailing/ (other similar terms) a
Judgment of Acquittal. A petition for Certiorari under Rule
65 is not, as it is never, a mode of appeal. A petition for
certiorari is an independent and a special civil action. It is
not a continuance of the proceedings of the lower court.
Note: The state may assail a judgment of acquittal only
upon the ground that it was deprived of due process. The
mode of appeal is a petition for certiorari under Rule 65
on the ground of grave abuse of discretion amounting to
lack or excess of jurisdiction or denial of due process, or
lack or excess of jurisdiction. It must clearly be shown that
the State was deprived of due process.
The Supreme Court ruled, in Ysidoro v. Hon.
Leonardo-de Castro et al., G.R. No. 171513, Feb. 6, 2012,
that the rule against double jeopardy cannot be properly
invoked in a Rule 65 petition, predicated on two
exceptional grounds, namely: in a judgment of acquittal
rendered with grave abuse of discretion by the court; and
where the prosecution had been deprived of due process.
Exceptional case of Galman v. Sandiganbayan. 228 Phil, 42
1986
This case has something to do with the Aquino-
Galman double murder case. Just to appease the public’s
hunger for speedy disposition of the case, the case was fast
tracked. In the process, everything seemed to be framed,
scripted, and the trial was later ruled out to be a sham or
mock trial. The court acquitted all the accused. The
prosecutors though were never given a decent chance to
present its evidence and witnesses. The judgment of
acquittal was appealed. Upon review, the SC ruled that the
judgment of acquittal came about as a result of grave abuse
of discretion by the courts leading to a denial or deprivation
of the State’s due process.
Grave Abuse of Discretion in Granting a Demurrer to
Evidence Deprives the State or Prosecution of its Due
Process
In Sanvicente v. People, 441 Phil. 139 (2002), the
Supreme Court upheld the decision of the CA which
reversed the acquittal of the accused upon a demurrer to
evidence, holding that the trial court committed grave
abuse of discretion in preventing the prosecution from
establishing the due execution and authenticity of a certain
letter marked as Exh. “LL” which positively identified the
accused as the perpetrator of the crime charged.
In another case, People v CA G.R. No. 144332, June
10, 2004, 431 SCRA 610 as cited in Almuete v People, 2013,
the Supreme Court reversed and set aside an order of
acquittal by the CA. In this case though, the CA acted with
grave abuse of discretion in issuing the judgment. It
entertained the case despite the wrong mode of appeal
resorted to.
34
Case: ABC is a bus company. D is one of its employees. D
in one occasion rammed the bus he was driving resulting
to loss of lives and damage to properties. D was charged
with Reckless Imprudence resulting to multiple homicide,
for which he was convicted. On the date of promulgation,
D was present. D was ordered to pay a substantial amount
to the victims. He was nowhere to be located during the
15-day period to perfect his appeal. It is now ABC Bus
Company, who perfected an appeal. It contended that as
an employer, it has an interest over the case. With D
missing, it will be the bus company which is likely to
shoulder and pay the award. May the appeal prosper?
(Philippine Rabbit Bus Lines v. Heirs of Eduardo
Mangawang and the People of the Philippines, GR No.
160355, May 16, 2005)
No. ABC Bus Company is not a party to the criminal
action. The employer’s participation is limited to providing
its employees with adequate legal defense. And if because
of his indifference or inaction the employee is convicted
and damages are awarded against him, he cannot later be
heard to complain, if brought to court for the enforcement
of his subsidiary liability, that he was not given his day in
court.
Note: The subsidiary liability of the employer may be
enforced in the same action by way of a motion.
Period for Perfection of the Appeal
Note: The accused has 15 days from the date of
promulgation to appeal.
Note: The private offended party has 15 days from actual or
constructive notice of the judgment to perfect his appeal.
What is the fresh 15-day period doctrine, or the fresh
period rule, or the Neypes doctrine? (Neypes v CA, GR No.
141524, Sept. 14, 2005)
This doctrine provides that the 15 day period to
perfect an appeal is counted not only within 15 days from
the notice of the judgment but also within 15 days from the
notice of the final order appealed from. If a motion for
reconsideration or a motion for new trial is denied, such
denial is deemed as the final order. From receipt of such
notice of denial, the movant has another “fresh period”
within which to appeal. The new 15-day period may be
availed of only if either motion is filed; otherwise, the
decision becomes final and executory after the lapse of the
original appeal period from notice of the judgment.
Illustration.
A was convicted. The Promulgation was on
October 1, 2014. Thus, A has until October 16, 2014 to
perfect an appeal. However, instead of filing an appeal, he
filed, say a motion for reconsideration or a motion for new
trial on October 15, 2014. The motion was denied. A
received the order of denial on November 15, 2014. When
will the 15-day period be reckoned from? How many days
does A have to perfect his appeal?
Applying the Neypes ruling, A’s 15-day period to
appeal is to be counted from November 15, 2014, and not
from October 1, 2014. A still has 15 days from to be
counted from November 15, 2014, or until November 30,
2014 to perfect his appeal. He does not have just one day
left, which is the remaining day of the 15-day period
counted from October 1, 2014.
Effect of Appeal
A duly perfected appeal stays the judgment.
Note: Sec. 11 of Rule 122.
Effect of appeal by any of several accused.
a) An appeal taken by one or more of several accused
shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
favourable and applicable to the latter.
b) The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from.
c) Upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be
stayed as to the appealing party.
Case: A and B are charged for murder. The RTC found
them guilty beyond reasonable doubt. Both are present
during the promulgation. A duly perfected an appeal,
while B did not.
What becomes of the judgment rendered in A and B?
The judgment becomes final as to B, the accused
who did not appeal. However, as to A, the accused who
appealed, the judgment is stayed.
What is the effect of the judgment rendered by the
appellate court on B?
As a rule, any judgment rendered by the appellate
court has no effect as to the accused who did not appeal.
However, if the judgment is favorable and applicable to the
accused who did not appeal, it will be applied to him.
Case: A and B are charged with murder. During the trial, B
claimed insanity. A raised another defense. The trial court
found both of them guilty beyond reasonable doubt. B
appealed, and the CA appreciated his defense of insanity,
thus he obtained a judgment of acquittal. Will the
judgment rendered by the CA applied to A?
No. While the judgment is favorable to A, it is not
applicable to him. The defense of B, which is insanity, is a
personal one. It is not applicable to A.
Note: Personal circumstances – imbecility, insanity,
minority, etc. cannot be appreciated in favor of the other
co-accused.
Note:
General Rule: Absconding or jumping bail during the
pendency of appeal results to abandonment of the appeal.
Exception: When the death penalty is imposed. Automatic
review is still conducted by the Supreme Court even if the
accused absconds or jumps bail during the pendency of his
appeal, if the penalty imposed is death. Automatic review
affords a second chance to life.
35
Note: Death extinguishes a criminal obligation. As a rule,
death of the accused pending appeal will result to the
dismissal of his appeal. In certain instances though, if two
or more co-accused appealed separately, death of one will
not necessarily result in the dismissal of his appeal.
ADDITIONAL DISCUSSIONS/NOTES:
C and L, who were charged as co-conspirators, were
convicted of violation of R.A. No. 3019 (Anti-Graft and
Corrupt Practices Act) in a judgment rendered by the
Sandiganbayan, imposing upon each of them the penalty of
imprisonment from six years and one month to twelve
years and one month. They filed separate appeals to the
Supreme Court by filing their respective petitions for review
on certiorari. L’s appeal was dismissed on technicality.
During the pendency of the appeal, C died.
a) Should C’s appeal be dismissed on the ground that his
death has rendered his appeal moot and academic as his
death has already extinguished his criminal liability?
No. C’s appeal should not be dismissed. The two
petitions are so intertwined that the absolution of C is
ultimately determinative of the absolution of L. The
exoneration of C will necessarily signify the injustice of
carrying out the penalty imposed on L. Thus, the SC, in this
instance, has to ascertain the merits of C’s appeal to
prevent a developing miscarriage of justice against L.
Courts must still decide cases, otherwise moot and
academic, in the following instances: (1) there is a grave
violation of the Constitution; (2) the exceptional character
of the situation and the paramount public interest is
involved; (3) when constitutional issue raised requires
formulation of controlling principles to guide the bench, the
bar, and the public; (4) the case is capable of repetition yet
evading review.
In the problem presented, the exceptional
character of the appeal of C and L in relation to each other,
as well as the higher interest of justice, requires that the
Court determine the merits of C’s petition and not dismiss it
outright on the ground of mootness.
b) Does the reversal of the decision of the Sandiganbayan
as against C benefit L whose appeal was dismissed on
technicality?
Section 11(a), Rule 122 of the Revised Rules of
Criminal Procedure provides: “An appeal taken by one or
more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate
court is favorable and applicable to the latter.” The phrase
“did not appeal” applies also to a co-accused who withdrew
his appeal, failed to file an appellant’s brief, or filed a notice
of appeal with the trial court but eventually withdrew the
same. The Supreme Court has at various times applied the
foregoing provision without regard to the filing or non-filing
of an appeal by a co-accused, so long as the judgment was
favorable to him. Thus, the foregoing provision should be
applied to L whose appeal was dismissed on technicality.
(Constantino v. Sandiganbayan, et al., G.R. No. 140656,
Sept. 13, 2007; Lindong v. People, et al., G.R. No. 154482,
Sept. 13, 2007.)

Change of Theory or Raising New Issues on Appeal for the
First time is not allowed.
As a rule, points of law, theories, issues and
arguments not adequately brought to the attention of the
trial court ordinarily will not be considered by a reviewing
court as they cannot be raised for the first time on appeal
because this would be offensive to the basic rules of fair
play, justice and due process. It is only for exceptional and
compelling reasons in the interest of substantial justice or
to avoid miscarriage of justice that the court may relax
entertain new issues on appeal.
On Appeal, a Higher Penalty may be Imposed
An appeal throws the entire case open for review.
Even the correct penalty may be increased if it is proper.
Modes of Appeal
Always remember:
Ordinary appeal under rule 41 is perfected by filing
a notice of appeal with the RTC that rendered the
judgment, and never with the appellate court.
The SC subsequently reversed the CA’s judgment of
acquittal and reinstated the judgment of conviction by the
RTC. In doing so, the SC ruled that a petition for certiorari is
only available when there is no appeal or any other plain,
adequate and speedy remedy in the ordinary course of law.
In the case of the accused, the judgment of conviction was
not tainted with grave abuse of discretion. It was a valid
judgment. The proper remedy is appeal.
Note: this case used the phrase, writ of error – it is another
term for ordinary appeal.
Modes of Appeal in Sandiganbayan Cases
1) The Sandiganbayan imposes (SB exercising original
jurisdiction) or affirms (SB exercising appellate
jurisdiction) a penalty lesser than death, reclusion
perpetua, or life imprisonment.

The decision of the MTC is always appealed by way

of ordinary appeal under Rule 40. It is perfected by filing a
notice of appeal with the MTC that rendered the judgment,
and never with the appellate court.

The only way to appeal a decision rendered by the

CA to the SC is through a petition for review under Rule 45
on pure questions of law. There are certain exceptions
though, such as in cases of automatic review.

Resorting to Wrong Mode of Appeal.

As a rule, resorting to the wrong mode of appeal
will not stay the judgment. The judgment simply becomes
final as if no appeal has ever been filed or perfected. Once
more, it is only for exceptional and compelling reasons in
the interest of substantial justice or to avoid miscarriage of
justice that the court may relax the rules on technicality of
appeals.

People v CA, G.R. No. 144332, June 10, 2004, 431 SCRA 610
A, B, C, and D, failed to appear in the promulgation *Note: This is a peculiar appeal.
of the judgment of conviction against them. They alleged
that they were ill. They never filed any motion for leave to In appealing cases from the Sandiganbayan (SB), it
avail of post conviction remedies. Instead they filed a never passes through the Court of Appeals (CA). As a rule,
motion for reconsideration questioning the validity of the cases from the SB are never appealed to the CA.
promulgation. Their motion was denied. They appealed the
decision of the RTC to the CA. Ordinarily, the decision of the RTC exercising its original
Alleging grave abuse of discretion amounting to jurisdiction is not appealed via a rule 42 petition. A Rule 42
lack or excess of jurisdiction in the conduct of the petition supposedly is the one resorted to in appealing
promulgation and in the denial of their motion for cases decided by the RTC in its appellate jurisdiction.
reconsideration, they resorted to a petition for certiorari
under Rule 65. It was granted, and the CA’s decision
reversed the trial court’s judgment of conviction.
The State through the Solicitor General appealed
the case to the SC alleging grave abuse of discretion on the
part of the CA. The proper remedy of the accused should
have been ordinary appeal, and not a petition for certiorari.

36
2) The Sandiganbayan in the exercise of its original
jurisdiction imposes the penalty of either reclusion
perpetua or life imprisonment.
3) The Sandiganbayan in the exercise of its original
jurisdiction imposes the death penalty
4) The Sandiganbayan in the exercise of its appellate
jurisdiction affirms the penalty of death, reclusion
perpetua, or life imprisonment
37
Appeal for Regular Courts
1) Appealing decision of the MTC/ Appellate jurisdiction
of the RTC (It is understood that the RTC in its
appellate jurisdiction can only impose penalties less
than death, reclusion perpetua or life imprisonment.)
2) The RTC in its original jurisdiction imposes a penalty
less than death, reclusion perpetua, or life
imprisonment.
3) The RTC in its original jurisdiction imposes the penalty
of either reclusion perpetua or life imprisonment.
4) The RTC in its original jurisdiction imposes the death
penalty.
Rules 123 - 125. Just read these rules. Note uniformity of
procedure, how judgment is promulgated in the appellate
courts, and their mode of appeals as amended by relevant
Supreme Court Circulars. (The simplified diagrams showing
the modes of appeal in criminal cases are shown in the
preceding topics.)
Search and Seizure (Rule 126)
Note: This topic is a better scope for Political law. The
presumption for students taking criminal procedure is that
they were able to pass criminal law 1 and 2 and
Constitutional law 1 and 2. For Criminal Procedure, the
focus is on the remedies such as motion to quash, and the
remedies for denial of a motion to quash. The requisites as
to probable cause, examination of witnesses, instances of
lawful warrantless searches, and others are better covered
by the subjects on Political law.
What is a search warrant? (Rule 126 Section 1)
A search warrant is an order in writing issued in
the name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search
for personal property described therein and bring it before
the court.
Where is the application for a search warrant filed? (Rule
126, Section 2)
An application for search warrant shall be filed with the
following:
a) Any court within whose territorial jurisdiction a crime
was committed.
b) For compelling reasons stated in the application, any
court within the judicial region where the crime was
committed if the place of the commission of the crime is
38
known, or any court within the judicial region where the
warrant shall be enforced.
c) However, if the criminal action has already been filed,
the application shall only be made in the court where the
criminal action is pending.
d) In cases involving heinous crimes, illegal gambling,
dangerous drugs and illegal possession of firearms, the
application may be filed with the Regional Trial Courts of
Manila and Quezon City if the application is filed by the
Philippine National Police (PNP), the National Bureau of
National Investigation (NBI), the Presidential Anti-
Organized Crime Task Force (PAOC-TF), and the Reaction
Against Crime Task Force (REACT-TF). The applications shall
be personally endorsed by the Heads of the said agencies,
for the search of places to be particularly described therein,
and the seizure of property or things as described in the
Rules of Court, and to issue the warrants of arrest, if
justified, which may be served in places outside the
territorial jurisdiction of said courts. (AM No. 99-20-09 SC
Note: Search and Arrest warrants issued pursuant to AM
No. 99-20-09 SC may be served outside the territorial
jurisdiction of the RTC of Manila or Quezon City.
Under AM No. 99-20-09 SC, who acts upon the
application?
The Executive Judge and Vice Executive Judges of
Regional Trial Courts in Manila and Quezon City act upon all
applications for search warrants involving heinous crimes,
illegal gambling, dangerous drugs and illegal possession of
firearms.
Is it necessary that the heads of the offices mentioned
under AM No. 99-20-09 SC be the ones to personally
endorse the application for search warrants?
No, nothing in AM No. 99-10-09-SC prohibits the
head of NBI and of other law enforcement agencies
mentioned from delegating their ministerial duty of
endorsing the application to their assistant heads. Besides,
under Section 31, Chapter 6, Book IV of the Administrative
Code of 1987, an assistant head or other subordinate in
every bureau may perform such duties as may be specified
by their superior or head, as long as it is not inconsistent
with law. (Sps. Marimla v People GR No. 158467, October
16, 2009)
Does an application for a search warrant partake a
criminal action or at least in the nature of a criminal
action?
No. A search warrant is not a criminal action
nor does it represent a commencement of a criminal
prosecution even if it is entitled like a criminal action. It is
not a proceeding against a person but is solely for the
discovery and to get possession of personal property. It is a
special and peculiar remedy, drastic in nature, and made
necessary because of public necessity. It resembles in some
respects with what is commonly known as John Doe
proceedings. (United Laboratories, Inc. V. Isip, 461 SCRA
574)
*Therefore, the proceedings for the application for a search
warrant need not be initiated by the state prosecutor, and
the court may not quash the application for a search
warrant or the search warrant itself due to the fact that it
does not bear the conformity of the public prosecutor.
(Worldwide Web Corporation et al. v. People of the
Philippines et al., G.R. No. 161106, Jan. 13, 2014)
Case: The applicant for a search warrant filed his
application before the court. His application does not bear
the approval or any conformity of the state prosecutor. As
a consequence, his application was quashed by the court.
To justify its ruling, it cited Rule 110, Sec. 5 providing that
“All criminal actions commenced by a complaint or
information shall be prosecuted under the direction and
control of the prosecutor.” Is the court correct?
No, the court is not correct. Sec. 5, Rule 110 does
not apply because an application for search warrant,
although it is a criminal process, is not a criminal action.
Therefore, the conformity of the public prosecutor is not
necessary to give the applicant a personality to question an
order quashing the search warrant. (Worldwide Web
Corporation et al. v. People of the Philippines et al., G.R. No.
161106, supra)
Is it necessary to furnish a notice or copy of the
application for a search warrant to the party against
whom properties will be seized?
No. An application for a search warrant is heard
ex-parte. It is neither a trial nor a part of the trial. Action on
these applications must be expedited for time is of the
essence. Great reliance has to be accorded by the judge to
the testimonies under oath of the complainant and the
witnesses. (Chemise Lacoste, S.A. v Fernandez, 214 Phil.
332; Santos v Pryce Gases, Inc., GR No. 165122, November
23, 2007)
(Just imagine the consequences if prior notice must be
given to the person against whom, personal property will
be seized – i.e. drug dealer, suspected killer, thief, robber,
carnapper, etc. All the weapons, drug paraphernalia, or any
other item that may be confiscated will easily be concealed
and the application will definitely be opposed)
Does an application for a search warrant need to have a
certification of non-forum shopping?
No, there is no rule requiring that it bears a
certification of non-forum shopping.
What property may be seized? (Rule 126, Section 3)
The property subject of a search warrant is
personal property, not real property. A search warrant may
be issued not only for the search but also for the seizure of
the following.
a) Personal property subject of the offense
b) Personal property stolen or embezzled and other
proceeds, or fruits of the offense; or
c) Personal property used or intended to be used as a
means of committing an offense.
39
What are the requisites for a search warrant under the
Rules of Court? (Rule 126, Section 4)
The following are the requisites for a search warrant under
the Rules of Court.
a) There must be probable cause in connection with one
specific offense.
b) The presence of probable cause is to be determined by
the judge personally.
c) The determination by the judge must be made after an
examination under oath or affirmation of the
complainant and the witnesses he may produce.
d) The warrant must specifically describe the place to be
searched and the things to be seized which may be
anywhere in the Philippines.
*Note: Roving or scattershot warrants are void. They are
issued for more than one offense.
Adherence to the above requisites is necessary to
prevent a fishing expedition.
*Note: The topics under this section are appropriate
subjects of Constitutional Law or Political Law.
What must a judge do before issuing a search warrant?
(Rule 126 Sec. 4)
The judge must, before issuing the warrant
personally examine in the form of searching questions and
answers, in writing and under oath, the complainant, and
the witnesses he may produce on facts personally known to
them and attaché to the record their sworn statements,
together with the affidavits submitted.
Are witnesses needed during the conduct of the search
and seizure? (Rule 126 Section)
Yes, at least two witnesses are needed. The Rules
provide that no search of a house, room, or any other
premises shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the
absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality.
How long is a search warrant valid? (Rule 126, Section 10)
A search warrant shall be valid for ten (10) days
from its date. Thereafter, it shall be void.
What time must the search be made? (Rule 126 Section 9)
The warrant must direct that it be served in the
day time, unless the affidavit asserts that the property is on
the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any
time of the day or night.
What is the remedy of an accused should he want to
question a search warrant?
The accused must file a motion to quash the
search warrant on the ground that it is improperly issued or
that it is void.
What is the issue in a motion to quash a search warrant?
In a motion to quash a search warrant, what is
assailed is the validity of the issuance of the warrant. The
manner of serving the warrant and of effecting the search
are not an issue to be resolved in said motion. (People v CFI
of Rizal, 101 SCRA 86, [1980])
Who may question a search warrant?
Any party whose interests may be adversely
affected may question the search warrant. (Dean Agra) It is
settled rule that the legality of a seizure can be contested
only by the party whose rights have been impaired thereby,
and that the objection to an unlawful search and seizure is
purely personal and cannot be availed by third parties.
(Nasiad v. CTA, 61 SCRA 238 [1974]; Santos v Pryce Gases,
Inc. GR No. 165122, November 23, 2007)
Note: The manager of an establishment is a real party-in-
interest to seek the quashal of the search warrant, for the
obvious reasons that the search warrant, if he is named as
the respondent and the place or premises to be searched is
the establishment he is managing. A corporation, being the
owner of the items seized is also a real party-in-interest
who may question the search warrant. (Santos v. Pryce
Gases, supra)
When must one file a motion to quash the search
warrant?
The motion to quash must be filed before
arraignment and entry of plea. An accused may be
estopped from questioning the defects in the issuance or
enforcement of the search warrant by failing to move to
quash the search warrant or by entering a plea and
participating in trial. (People v. Guillermo, 291 SCRA 761
[1998])
What is the remedy available as against the items seized
by virtue of an illegal or void warrant?
The following are the remedies available in
relation to the items that were seized by virtue of an illegal
or void search warrant.
1) Motion to suppress illegally obtained or seized
evidence.
2) Replevin
3) Petition for Certiorari
*Note: Motion to suppress illegally obtained or seized
evidence will prevent the presentation of these pieces of
evidence before the court.
Replevin is a remedy to regain or take possession
over personal properties.
Petition for Certiorari under Rule 65 is available
only in the instance of grave abuse of discretion amounting
to lack or excess of jurisdiction. Again, what is assailed is
the validity of the search warrant, and nothing else.
Where must one file his motion to quash a search warrant
or to suppress evidence? (Rule 126, Section 14)
A motion to quash a search warrant and/or to
suppress evidence obtained by virtue of the warrant may
40
be filed and acted upon only by the court where the action
has been instituted.
If no criminal action has been instituted the
motion may be filed in and resolved by the court that
issued the search warrant. However, if such court failed to
resolve the motion and a criminal case is subsequently filed
in another court, the motion shall be resolved by the latter
court.
Otherwise stated, the preceding question may be
answered this way.
The motion to quash a search warrant or to suppress
evidence may be filed as follows:
a) In the court where the criminal case has been filed.
*This presupposes that a criminal case has been filed.
It also contemplates a situation where the court that
issued the search warrant and the court where the
information was filed are different.
b) If no case has yet been filed, the motion is filed with
the court that issued the search warrant.
c) But if the motion to quash a search warrant filed with
a court that issued the search warrant has not yet
been resolved, and subsequently, a criminal case has
been filed, the court where the criminal case has
been filed will resolve the motion.
Case: A search warrant was obtained leading to search
and seizure of some items under X’s custody. X filed a
motion to quash the search warrant, which was
subsequently denied. May X still file a motion to suppress
illegally obtained evidence?
No, X may no longer file a motion to suppress
illegally obtained evidence. It will simply be a rehash of the
issues in the earlier filed motion to quash the warrant. In
order to resolve X’s motion to suppress, the court will dwell
once more on the issue of legality of the search, which has
already been duly tackled in denying the motion to quash.
What then is the remedy of an accused whose motion to
quash the search warrant has been denied?
It depends. It is either a petition for certiorari
under Rule 65 or an ordinary appeal. A petition for
certiorari is the remedy when the application for a search
warrant is filed incidental to a criminal action, or in
anticipation of a criminal action. In this case, the denial of
the motion to quash the search warrant is merely an
interlocutory order, which cannot be appealed. Appeal is
the remedy when the application for a search warrant is
filed independently from/of a criminal action. In such
instance, the denial of the motion to quash is a final order,
which is the proper subject of an appeal. (Worldwide Web
Corporation et al. v. People of the Philippines et al., G.R. No.
161106, Jan. 13, 2014)
When is an application for a search warrant filed
incidental to a criminal action? When is it filed
independently from/of a criminal action?
An application for search warrant may be filed as
an incident in a main criminal case already filed in court.
Or, such an application may be filed in court in anticipation
of one yet to be filed (here, the application for search
warrant is instituted as a principal proceeding prior to the
filing of the criminal action). (Wordlwide Web Corporation
et al. v. People. Supra)
If the application is filed not within the
circumstances mentioned above, it is said to be
independent from/of a criminal action. The application is
independent from/of a criminal action, if it is not incidental
thereto.
2014 Bar Essay Type Question in Remedial Law. - A search
warrant was issued for the purpose of looking for
unlicensed firearms in the house of Ass-asin, a notorious
gun for hire. When the police served the warrant, they
also sought the assistance of the barangay tanods who
were assigned to look at other portions of the premises
around the house. In an Nipa hut, thirty (30) meters away
from the house of Ass-asin, a baranggay tanod came upon
a kilo of marijuana that was wrapped in news print. Ass-
asin objected to the introduction of such evidence
claiming that it was illegally seized. Is the objection valid?
(This is originally an essay type question but suppose it is
converted into an MCQ with the following choices, how
would you answer it?)
a. No, the search was done in plain view.
b. No, the search was done pursuant to a validly issued
warrant.
c. No, the search warrant authorizes the search for
weapons. This includes the authority to search to open
closets, drawers, chests and containers in which the
weapons might be found. The structures annexed to
the place described to be searched may also be validly
searched.
d. Yes, the search warrant was for the house, and not the
nipa hut.
The correct answer is letter D. Where the warrant is
unambiguous and limited only to a particular place like a
store described in the warrant, the search does not extend
to the apartment units located at the back of the store even
if the sketch submitted to the judge include the
apartments. It is neither fair nor licit to allow the officers to
search a place not described in the warrant because the
place not described is what the officers had in mind.
*In other words, the place described in the warrant is
controlling. Letter A is not applicable. A search in plain view
needs a lawful warrantless arrest. Letter B is irrelevant.
Letter C is incorrect. It is true that a search warrant for
weapons authorizes the searching party to open closets,
drawers, chests and containers that may harbor weapons.
It is only when the place described in the warrant is a land
that the structures annexed to it may be validly searched.
At any rate, letter c may not be the answer since the
warrant is only for the house, and not the nipa hut.
*Under the facts of the case, there may also be another
reason why Ass-asin’s objection may be sustained. While
the problem dwelt on the issue of the place described in
the warrant, it never mentioned anything about compliance
with the two witness rule.
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So if I were to answer the above question in an essay
form, I will do it this way.
Yes, Ass-asin’s objection is valid. Foremost, the
search warrant is for the house, and not the nipa hut. The
place described in the warrant is controlling, and the search
party does not have any authority to search for places not
included in it. Further, under the facts of the case, there
was no compliance with the two-witness rule.
Provisional Remedies (Rule 127)
Are provisional remedies available in criminal cases?
Yes, the provisional remedies in civil actions,
insofar as they are applicable, may be availed of in
connection with the civil action deemed instituted with the
criminal action.
*Note: To avail of a provisional remedy in a criminal action,
it must be one with a corresponding civil liability. If there is
civil liability, the civil action must be one arising from the
offense charged and which action must be one arising from
the action.
What then are these provisional remedies?
The following are the provisional remedies available in a
criminal action.
a) Preliminary attachment
b) Preliminary injunction
c) Receivership
d) Replevin
e) Support Pendent elite
The reference to provisional remedies in Rule 127
is made in general terms.
When is preliminary attachment available?
When the civil action is properly instituted in the
criminal action as provided in Rule 111, the offended party
may have the property of the accused attached as security
for the satisfaction of any judgment that may be recovered
from the accused in the following cases:
a) When the accused is about to abscond from the
Philippines;
b) When the criminal action is based on a claim for money
or property embezzled or fraudulently misapplied or
converted to the use of the accused who is a public
officer, officer of a corporation, attorney, factor,
broker, agent or clerk, in the course of his employment
as such, or by any other person in a fiduciary capacity,
or for a wilful violation of a duty;
c) When the accused has concealed, removed, or
disposed of his property, or is about to do so; and
d) When the accused resides outside the Philippines.
May an Accused avail of the Writs of Preliminary or Final
Injunction, or Prohibition to restrain the criminal action
from proceeding?
As a general rule, courts will not issue writs of
prohibition or injunction, preliminary or final, to enjoin or
restrain criminal prosecution.
However, there are exceptions. In these instances,
prohibition or injunction may be availed of to restrain the
criminal action from proceeding. The exceptions are the
following.
1) When the injunction is necessary to afford adequate
protection to the constitutional rights of the accused;
2) When it is necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions;
3) When there is a prejudicial question which is sub
judice;
4) When the acts of the officer are without or in excess
of authority;
5) When the prosecution is under an invalid law,
ordinance or regulation;
6) When double jeopardy is clearly apparent;
7) When the court has no jurisdiction over the
offense;
8) When it is a case of persecution rather than
prosecution;
9) When the charges are manifestly false and
motivated by the lust for vengeance;
10) When there is clearly no prima facie case against
the accused and a motion to quash on that ground has
been denied. (Borlongan Jr. v. Pena, et al. G.R. No.
143591, Nov. 23, 2007).

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