The law on criminal procedure intersects and interweaves with constitutional la f the inherent clash between the interest

of the State to preserve public order, and the interest of the individual to have his rights protected. A discussion of criminal procedure would therefore be incomplete without a discussion of the Bi ll of Rights. This reviewer therefore integrates the important points of the Bill of Rights t h the details of remedial criminal procedure in order to give the reader a more holistic understanding of criminal procedure. Substantive law, particularly crimin al law, is likewise discussed when necessary. RIGHTS OF THE ACCUSED CONSTITUTIONAL BASIS Art. III, Sec. 14, 1987 Constitution: "(1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself a nd counsel, to be informed of the nature and cause of the accusation against him , to have a speedy, impartial, and public trial, to meet the witnesses face to f ace, and to have compulsory process to secure the attendance of witnesses and th e production of evidence in his behalf. However, after arraignment, trial may p roceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable."

Art. III, Sec. 16, 1987 Constitution: "All persons shall have the right to a speedy disposition of their cases be fore all judicial, quasi-judicial or administrative bodies." Art. III, Sec. 17, 1987 Constitution: "No person shall be compelled to be a witness against himself." Although the rights of the accused as enumerated under Rule 115, Sec. 1 pertain al stage of the criminal prosecution, they are discussed here at the start of th is reviewer in order to set the subsequent discussion of criminal procedure with in the perspective of protection of the rights of the accused. Right to be presumed innocent Right to be informed of the nature and cause of the accusation Right to be heard personally or by counsel Right to speedy, impartial and public trial Right to confront witnesses Right to compulsory process Right to discovery Is there a right of discovery for the accused in criminal cases? See the following provisions: Rule 119, Sec. 12 -- Conditional examination of witnesses on behalf of accuse Rule 116, Sec. 10 -- Production or inspection of material evidence in possessio ution Rule 116, Sec. 9 -- Motion for bill of particulars Rule 112, Sec. 3(b), par. 2 -- Issuance of subpoena by prosecutor to accused at it a copy of the complaint and its supporting affidavits and documents (Note however that this is during preliminary nvestigation.) It was held in the case of People v. Webb that a denial of discovery procedure ed in a criminal case is tantamount to a deprivation of the accused s right to com pulsory process which is guaranteed in the Constitution. Is there a right of discovery for the prosecution in criminal cases? Yes. See Rule 119, Sec. 15 (examination of witnesses for the prosecution) Why is it that the right of discovery cannot be the same for both prosecution an d accused? It might violate the accused s right against self-incrimination. Right against self-incrimination Scope of the privilege The scope of the privilege against self-incrimination covers compulsory testimo ncrimination, i.e. that which will entail use of mental processes and/or communi

cative faculties. It has since been extended to include any evidence communicativ e in nature, acquired under circumstances of duress. (People v. Olvis, 154 SCRA 5 25) Effect of violation When the privilege against self-incrimination is violated outside of court (e.g. , by the police), then testimony is not admissible under the exclusionary rule. When the privilege is violated by the court itself, i.e. by the judge, the court is ousted of its jurisdiction, and all its proceedings are null and void, and i s as if no judgment has been rendered. (See Chavez v. CA, 34 SCRA 663) CUSTODIAL INVESTIGATION INTRODUCTION Constitutional basis Art. III, Sec. 2, 1987 Constitution: "(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competen t and independent counsel preferably of his own choice. If the person cannot af ford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means w hich vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 1 7 (the right against self-incrimination) shall be inadmissible in evidence again st him." Custodial investigation defined Custodial investigation involves any questioning initiated by law enforcement r a person has been taken into custody or otherwise deprived of his freedom of a ction in any significant way. It is only after the investigation ceases to be a g eneral inquiry into an unsolved crime and begins to focus on a particular suspec t, the suspect is taken into custody, and the police carries out a process of in terrogations that lends itself to eliciting incriminating statements that the ru le begins to operate. (People v. Marra, 236 SCRA 565) As provided for in Sec. 2, R.A. 7438, custodial investigation includes the prac uing an "invitation" to a person who is investigated in connection with an offen se he is suspected to have committed. This shall be without prejudice to the liab ility of the "inviting" officer for any violation of law. Rights of person under custodial investigation (1) Right against arbitrary detention (Art. 125 RPC) (2) Right against torture, inhumane treatment (Art. 3, Sec. 12 #2 Consti) (3) Right to remain silent (Art. 3 Sec. 12 #1 Consti) (4) Right against solitary confinement (Art. 3 Sec. 12 #2 Consti) (5) Right to be assisted by counsel at all times (RA 857) or by a national/intern GO duly accredited by the Office of the President (EO 155) see RA 7438 (6) Right to be informed that anything he says may and will be used against him ( ights) (7) Right to privacy of correspondence and communication (Art. 3 Sec. 3 #1 Consti (8) Right against unreasonable searches and seizures (Art 3 Sec. 2 Consti) (9) Right to competent and independent counsel preferably of his own choice and b d with one if he can t afford the services of counsel (Art. 3 Sec. 12 #1 Consti) (10) Right to waive assistance of counsel provided it be done intelligently and with ssistance of counsel (ibid) 1. Is there a right to conjugal visits? No such right in custodial investigation, but see RA 7438, Sec. 2f. 2. Must the suspect be informed that his silence will not be used against him? Must be given a mini-lecture on Crim. Pro? Nowhere in the consti or ROC is it provided that the suspect must be informed tha t his silence does not bear any adverse consequence. However, it is believed that for a suspect to be considered as truly informed of his constitutional right to

silence, he must be advised that such silence will not be taken against him. Thi s is due to the fact that in many instances, persons arrested feel that it looks worse for them if they remain absolutely silent. 3. Is the right to be informed of the above rights satisfied if they are typewritten? No. In People vs. Galit, it was held that each right must be explained to the acc used in simple words in his own dialect/language. Such is the requirement for war nings to be valid and effective. Police line-ups IS A POLICE LINE-UP DEEMED PART OF CUSTODIAL INVESTIGATION? In the case of Gamboa v. Cruz (162 SCRA 642), the petitioner had not yet been h er for a criminal offense when he was identified by the complainant at the polic e line-up. The Court held that in this case, the police line-up was not part of cu stodial investigation and therefore the right to counsel did not attach at that time. The Court held that when the process has not yet shifted from the investiga tory to the accusatory as when police investigation does not elicit a confession , the accused may not yet avail of the services of his lawyer. The Gamboa ruling was reiterated in the case of People v. Santos (236 SCRA 686; rein the Court noted that there was nothing in the records of the case that woul d show that in the course of the line-up, the police investigators sought to ext ract any admission or confession from the accused. In the US case of US v. Wade (908 U.S. 218; 1957) however, which involved a pos t line-up, it was held that the absence of counsel during the line-up was violat ive of the accused's rights. The Court held that the post-indictment line-up was a critical stage of the prosecution at which the accused was as much entitled to the aid of counsel as at the trial itself. Miranda Doctrine Rights embodied in the Miranda doctrine a. right to remain silent b. right to counsel c. right to be informed of the above rights Constitutional changes in the Miranda doctrine d. Waiver of assistance of counsel must now be in writing and in the presence of coun el e. Persons under investigation are not only entitled to counsel, they are entitled to ompetent and independent counsel 4. Harmonize the ruling in Galman v. Pamaran with People v. Ayson In Galman v. Pamaran, the court opined that the incriminatory testimonies given in the investigation conducted by the Agrava Board were not admissible in eviden ce by reason of non-compliance with the Miranda warnings. This ruling was made de spite its acknowledgment that said testimonies were given before an administrati ve body, not in a criminal case, and that the suspects weren t in custody at the t ime they gave their testimonies. The reason given was that the protection granted under the Phil. Consti was wider in scope than in the US because the word custod ial was not included in our constitution, which extends its protection to any pers on under investigation for the commission of an offense. In Pp vs. Ayson, the Court held that the constitutionally mandated Miranda warni ngs of the accused s right to silence and counsel are applicable only to police incustody interrogation as the commencement of adversarial proceedings against the suspect. To harmonize the 2 cases, Prof. Tadiar commented that although the proceedings be fore the Agrava Board were certainly not police investigations, they undoubtedly were an integral part of a criminal investigation looking in the double murder. As such, the Agrava proceedings could be held as the commencement of the adversa rial criminal process that mandates the right to counsel. This is inapplicable to the Ayson case which involved an administrative investigation by PAL management of a ticket clerk for alleged irregularities in the sale of tickets.

5. When do the Miranda rights apply? From the moment of arrest. 6. Are Miranda rights available in checkpoints and Stop and Frisk situations? No. There is as yet no arrest. The fact that one consents to the search in the fac e of armed military men does not constitute waiver of the right against Illegal Search (the person searched may still question the legality of the search). 7. Police ran after a suspect who later hid himself in a building. The police sealed f all points of ingress and egress and later talked to the suspect by megaphone. The police used the information given against him later. Was the suspect deprived of Miranda rights? When is a person considered under detention? Bautista said: A DOJ circular stated that when the questioning is already removed from in-field questioning, one the person is restricted in his physical movemen ts in any significant way, then the rights arise already There s no need to put the persons in a cell for him to be considered under detention. Going by the said def inition, it is submitted that in the problem above, the suspect is effectively u nder detention as he is already surrounded by the police with no possible means of escape. 8. Bautista says: Not that the scope of exclusion regarding the Privilege against Self-Incriminati on and Miranda Rights is not as broad as that afforded when there is a violation of the Right against Privacy of Correspondence and Communication. In the latter, any evidence obtained in violation of said right will be inadmissible for any p urpose in any proceeding. 9. Is there any presumption regarding statements given under police custody? Yes. The presumption is that such statements were involuntarily made. 10. Is the taping of Bautista s lectures a violation of the Anti-Wiretapping law? No, since it is with his consent and involves communication that is not the priv ate one contemplated by law. 11. An illegal wiretap was made on the telephone of the accused and from listening to the wiretap, the police came to know of the name and address of a witness wh o they later got to testify against the accuse. Can such testimony be suppressed on the ground that the name and address of the witness was obtained by an illega l wiretap? No. The fact the he voluntarily testified in court does not make it the fruit of a poisonous tree and though it may have an effect of attenuating the testimony o f a witness; not however Sec. 4 of RA 4200: any communicated/spoken word, or the e xistence of contents, substance, purport, or meaning of the same or any part the reof, or any info therein contained and obtained/secured by any person in violat ion of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative/administrative investigation/hearing. 12. If the suspect is a lawyer, do the Miranda warning still have to be made? Yes, because educational attainment is immaterial. 13. Is videotaping a film shown in the theater a violation of RA 4200? No, that s not a private communication although said act may be a violation of the Copyright law. Waiver of Miranda rights What may be waived The right to remain silent and to counsel may be waived, but never the right to be given the Miranda warnings. Requirements for a valid waiver (1) The waiver must be in writing. (2) The waiver must made in the presence of counsel. Burden of proving voluntariness of waiver The burden of proving the voluntariness of the waiver of the Miranda warnings li es with the prosecution. (People v. Jara, 144 SCRA 516; 1986) Exclusionary rule What is the so-called exclusionary rule ? Any confession or admission obtained from the accused in violation of Sec. 12 (c

ustodial investigation) or Sec. 17 (right against self-incrimination) of the Con stitution shall be inadmissible in evidence against the accused. Implications: (1) The confession / admission can be used against the co-accused. (2) It can be used in impeachment cases. (3) It can be used in rebuttal. When is the exclusionary rule not applicable? The Miranda rule, and therefore the exclusionary rule, are not applicable in th situations: (1) Confessions executed before Jan. 17, 1973; (2) Res gestae statements (People v. Dy, 158 SCRA 111; 1988) The declaration of the accused acknowledging guilt made to the police desk offic er after the crime was committed may be given in evidence against him by the pol ice officer to whom the admission was made, as part of the res gestae. (People v. Dy) (3) Statements given in administrative investigations (People v. Ayson, 175 SCRA 216 ; 1989) (4) Official forms prepared and accomplished in the normal course of audit regularly conducted by the Commission on Audit (Kimpo v. Sandiganbayan, 235 SCRA 53); (5) X-ray examinations of the body (People v. Tranca, 235 SCRA 455) Doctrine of fruit of the poisonous tree Any evidence obtained pursuant to an illegal search or seizure shall be inadmiss ible against him. And any evidence obtained pursuant to such illegally-obtained e vidence shall likewise be inadmissible. Qualification to the rule: If the evidence could have been discovered even without the poisonous tree, then it is admissible. Doctrine of attenuated taint What is the doctrine of attenuated taint? If the taint is so diffused or remote, then the evidence need no longer be exclu ded. For example, if the name of a witness is obtained through an illegal wiretap , but such witness voluntarily agrees to testify. If the suspect in police custody voluntarily starts answering questions without aid of counsel, are the statements given admissible? No, unless before doing so he had waived the right to remain silent and to couns el in writing and in the presence of counsel. The theory in Miranda v. Arizona is that the atmosphere in police interrogation is inherently coercive, therefore, statements given under police custody are pre sumptively involuntary and the burden of showing voluntariness is on the prosecu tion. ARREST NOTES: The 2000 Rules changed the power of an RTC judge to issue warrants of arr est. See Rule 112, Sec. 6 of the old and new rules. In general Arrest defined A warrant of arrest is an order addressed to a law enforcement officer commandin g him to physically restrain a person to make him answer for the commission of a n offense. (Rule 113, Sec. 1) Kinds of arrests With warrant Without warrant When arrest takes place When arrest takes place: What is the importance of knowing when? Why is it important to know the precise time of arrest? To determine whether or not there has been violation of the law against Arbitrar y Detention.

 Arrest with warrant Grounds for issuance of warrant The only ground for issuance of a warrant of arrest is probable cause. Probable c ause refers to such facts and circumstances which would lead a reasonably discre et and prudent man to believe that an offense had been committed by the person s ought to be arrested. Who may issue Who may issue (not effect) a warrant of arrest in our jurisdiction? According to Harvey v. Santiago: a. Judge if the purpose of the arrest is to enable the suspect to answer for a char b. CID Commissioner if the purpose is to execute a decision/order Procedure for issuance Executing the warrant How arrest is made An arrest is made by an actual restraint of a person to be arrested, or by his s ubmission to the custody of the person making the arrest. (Rule 113, Sec. 2) Who may serve a warrant of arrest Can anybody be authorized to serve a warrant of arrest? No. R.113 S.3 says the arresting officer (although it was not expounded who these arresting officers are). Duty of arresting officer It is the duty of the officer executing the warrant to arrest the accused and de liver him to the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3) Time of arrest An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6) Method of arrest No violence of unnecessary force shall be used in making an arrest. The arrested shall not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, 2nd paragraph) Warrantless arrests Grounds Who may effect; how effected By peace officer By private person When is a warrant of arrest not necessary? (1) When the accused is already under detention pursuant to a warrant issued by the MTC judge in Rule 112, Sec. 6 (b); (2) When the complaint or information was filed pursuant to Rule 112, Sec. 7, i.e. a valid warrantless arrest; (3) When the offense is penalized by fine only. (Rule 112, Sec. 6 (c)) (4) When the accused lawfully arrested escapes or is rescued (Rule 113, Sec. 13) Consequences of an unlawful arrest Modes of attacking the validity How can you attack an unlawful arrest? (1) Motion to quash (Alimpoos v. CA) (2) Habeas Corpus (See Rule 102) (3) Bail (but then you don t really go into the validity of the arrest here Note that under the new rules, an application for or admission to bail is no longer a bar to challenge the validity of an arrest) Standing to challenge Time to challenge Sanctions

What are the consequences of an unlawful arrest? Illegal arrest is a crime. How much time between the commission of the offense and the arrest, a week ago? I N determining whether a warrantless arrest is valid or not do we inquire into wh ether there was adequate opportunity to obtain a warrant? Is the existence of opp ortunity and time a consideration in determining the validity of a warrantless a rrest? No. See People v. Amundin. Bautista: take note of the crimes referred to in R. 113 Sec. 5a as continuing cri mes laid down by Umil v. Ramos: rebellion, subversion, conspiracy/proposal to com mit such crimes, and crimes/offenses committed in furtherance thereof or in conn ection therewith. Does a warrant of arrest have to state the name of the person? No. If unknown name, a sufficient description will do. If you only have a picture of the suspect, is that enough? It is submitted that there still has to be a sufficient description. Does the warrant of arrest have a lifetime? No, although after 10 days from receipt of the warrant of arrest, the head of th e office to whom the warrant was delivered for execution must report to the issu ing judge in case of failure to execute the same. Can the warrant of arrest be served anywhere in the Phil? Yes. Anytime? Yes. Do you know what a reliable asset is? Police informer. Q. Mobil car 1 calls police in Mobil car 2 and says that they have a warrant of arre st for B who is now in Mobil car 2 s area. Mobil car 1 says please assist us in arre sting him . Police in car 2 sees B. Can they arrest him? A. Yes. R113 S7. The officer need not have the warrant of arrest in his possession e time of the arrest, but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. Q. Recently, I had a client, a collector of customs. An importer complained to him th t a collector was hustling for a bribe in consideration for something. The matter was referred to the NBI who set an entrapment. The NBI officer posted himself out side of Alfredo s. There was a meeting between the Chinese and the collector of cus toms and according to the collector, they handed some envelopes containing marke d money. After that they arrested him without warrant. Is the arrest valid? A. Yes. The person arrested has actually committed a crime in his presence. Arrested rson can be said to have been caught in flagrante, hence arrest in valid. [US v. Fortaleza] An offense is committed in the presence of within the view of an offic er within the meaning of the rule authorizing an arrest without a warrant when t he officer sees the offense, although at a distance, or hears the disturbance cr eated. On what grounds may a warrant of arrest be issued? Only one ground: probable cause. On what ground may a warrantless arrest be made? Probable cause. Q. There is this Chinese importer who complained to the Commissioner of Customs that this customs official is trying to extort money from him. You are the legal advis er of the commissioner of customs. You advise him to get a warrant first. How do y ou go about getting a warrant for the arrest of this customs official? A. Commissioner of Customs executes a complaint under oath, brings it and the Chinese to a judge who shall personally examine him and the Chinese to determine probab le cause. If he determines probable cause exists, he issues a warrant of arrest.

 Can the NBI agent make a warrantless arrest on the basis of information of a ver y reliable asset who proves to be correct? No. But can it be the basis of obtaining a warrant of arrest? No, if on the basis of that information only. Spouse was charged with an offense cognizable by the RTC and the information is filed. You are arrested without a warrant and there was no preliminary investigatio n. What should you do? Before entering a plea, file a motion for preliminary investigation [People v. M onteverde]. Q. Does the filing of the complaint in the fiscal s office interrupt the prescriptive period for the offense? A. Yes. R110 S1 last paragraph SEARCH & SEIZURE Constitutional basis Art. III, Sec. 2, 1987 Constitution: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for a ny purpose shall be unviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he m ay produce, and particularly describing the place to be searched and the persons or things to be seized." A. Scope of Constitutional Restraint B. Scope of Protection C. Requisites of a Valid Warrant D. Grounds for Issuance E. Form of Search Warrant Scope of the prohibition The prohibition against unreasonable searches and seizures is imposed only upon ment and its agencies tasked with the enforcement of the law. It does not extend to acts committed by private individuals. Nature of right against unreasonable searches & seizures The right against unreasonable searches and seizures is personal; it may be inv y the person entitled to it. Waiver of right Waiver of the right against unreasonable searches and seizures may be express or but only by the person whose right is invaded, not by one who is not duly autho rized to effect such waiver. SEARCHES WITH WARRANT Search Warrant defined A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him t o search for personal property described therein and bring it before the court. ( Rule 126, Sec. 1) Requirements of a valid search warrant (1) Probable cause Probable cause refers to such facts and circumstances which would lead a reasona bly discreet and prudent man to believe that an offense has been committed and t hat the objects sought in connection with the offense are in the place sought to be searched. (2) Personally determined by the judge Only a judge can determine probable cause to justify the issuance of a search wa rrant. In doing so, he cannot rely on the prosecutor's findings or certification. Note: This is to be distinguished from the determination of probable cause by a j

udge in the issuance of a warrant of arrest. With warrants of arrest, a judge can issue a warrant on the basis of the information filed by the fiscal and the cer tification of probable cause. (See Rule 112, Sec. 6) (3) One specific offense Generally, a search warrant can be issued only in relation to one specific offen se. However, when existing laws prescribe a single punishment for various offenses, then one search warrant may be validly issued for several violations of the same law, as in the case of PD 1866 (See Prudente v. Dayrit, 180 SCRA 69) and R.A. 6 425 or the Dangerous Drugs Act (See People v. Dichoso, 223 SCRA 174). (4) After an examination under oath and in writing of facts personally known to t he complainant and the witnesses he may produce; The judge must take depositions and attach them to the record of the case. (Mata v. Bayona) (5) Particularity of description PURPOSE: To leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not b e made and abuses may not be committed. SUFFICIENCY: The description of the place to be searched is sufficient if the off icer with the warrant can, with reasonable effort, ascertain and identify the pl ace intended to be searched. (Prudente v. Dayrit) Failure to state with particularity the place to be searched and items to be sei zed makes the warrant used for fishing evidence a general warrant which is void. However, it was held in the case of Kho v. Judge Makalintal (April 21, 1999) tha t the failure to specify detailed descriptions in the warrant does not necessari ly make the warrant a general warrant. The description of the property need not b e technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property or its character is a con cern. Further, the description is required to be specific only insofar as circums tances will allow. Procedure for Issuance of a Search Warrant Where filed Examination How Search is effected Period of Validity of search warrant Time Property to be seized The personal property that may be seized pursuant to the search warrant are: (1) Subject of the offense; (2) Stolen or embezzled and other proceeds, or fruits of the offense; or (3) Used or intended to be used as the means of committing an offense. (Rule 126, Sec . 3) It is not necessary that the property to be searched or seized should be owned b y the person against whom the warrant is issued; it is sufficient that the prope rty is within his control or possession. (Burgos v. Chief of Staff, 133 SCRA 800) Procedure (1) Admittance to the place of directed search The officer, upon reaching the place of directed search, must give notice of his purpose and authority to conduct the search to the lawful occupant of the place . If the officer is refused admittance, he may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the w arrant or liberate himself or any person lawfully aiding him when unlawfully det ained therein. (Rule 126, Sec. 7) (2) Conduct of search Upon admittance, the officer must conduct the search in the presence of the lawf ul occupant of the premises or any member of his family, or in the absence of th

e latter, two witnesses of sufficient age and discretion residing in the same lo cality. (Rule 126, Sec. 8) Failure to comply with this requirement invalidates the search. (People v. Gesmundo) (3)Seizure of property and issuance of receipt for the property seized Once the property described in the warrant has been found and seized, the office r must give a detailed receipt for such property to the lawful occupant of the p remises. In the absence of such occupant, the officer must leave a receipt in the place in which he found the seized property in the presence of at least two wit nesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 11) (4) Delivery of property and inventory to the court The officer must then make a return on the warrant and deliver forthwith the pro perty seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. The judge shall ascertain whether the seizing officer complied with Rule 126, Sec. 11 (as regards issuance of the detailed rec eipt). The return on the search warrant shall be filed and kept by the custodian of the log book on search warrant s who shall enter therein the date of the return, th e result, and other actions of the judge. (Rule 126, Sec. 12) A violation of these requirements shall constitute contempt of court. (Rule 126, Sec. 12) WARRANTLESS SEARCHES When may a valid warrantless search be made? 1. Search incident to a lawful arrest 2. Search of moving vehicles (But what about mobile homes?) 3. Customs searches or seizure of goods concealed to avoid duties [Uykhetin v. V illareal, Papa v. Magno] 4. Seizure of evidence in plain view 5. Consented searches, or when there is a waiver of the right [De Garcia v. Loci sin] 6. Administrative searches 7. Border searches 8. Checkpoints 9. Stop-and-frisk 10. Private searches (People v. Marti) Search incident to a lawful arrest As a general rule, as an incident of an arrest, the place of premises where the arrest was made can also be searched without a search warrant. (Nolasco v. Cruz-P ano) PERMISSIBLE AREA OF SEARCH: (1) Person of the accused; (2) premises or surroundings within the accused's immediate control PURPOSE:(1) A weapon held by the arrested person may be turned against his captor; and (2) The accused may destroy the proof of the crime if the arrested off earch warrant. You arrested a person without a warrant in the first floor of his house. Can you search the second floor without a search warrant? No. The Nolasco v. Pano [ 139 SCRA 152] ruling was reconsidered in Nolasco v. Pan o [147 SCRA 509] which held that a warrantless search made as an incident to a l awful arrest is to be strictly applied and absolutely limited only to a search of the person and of the place where the arrest was made. Consensual / Consented Searches The requisites for a valid waiver or consented search are as follows: (1) The Constitutional right exists; (2) The person involved had either actual or constructive knowledge of such right; a

nd (3) There was an actual intention to relinquish the right. Q. You stay in a room at Philippine Plaza. Scenario: NBI: [knocks] A girl from the room: Sino sila? NBI: NBI ho. Ito ho ba ang kwarto ni Mr. B? Girl: Opo. NBI: Nandyan ba siya? Girl: Wala ho, nasa ibaba, baka nagdisco. NBI: Pwede bang pumasok? Girl: Pwede ho. [opens door] NBI: [enters] Pwede bang tumingin-tingin? Girl: Kahit ano ho pwede. [NBI finds shabu and dirty pictures] Valid warrantless search? A. Yes. [Lopez v. Commissioner of Customs 68 SCRA 320] Under the circumstances, th at was the most prudent course of action (for the woman). It would save her and e ven petitioner Velasco himself from any gossip or innuendo. Nor could the officer s of the law be blamed if they would act on the appearances. There was a person i nside who from all indications was ready to accede to their request. Even ordinar y courtesy would preclude them from inquiring too closely as to why she was ther e. Bernas comment: If the right against unreasonable search and seizure is a personal right, may it be waived by somebody other than the person himself? Bautista: Why, is the girl authorized to give consent? Plain View Requisites for a valid warrantless search under the plain view doctrine: (1) Prior valid intrusion based on the valid warrantless arrest in which the police a re legally present in the pursuit of their official duties; (2) The evidence was inadvertently discovered by the police who have the right to be where they are; (3) The evidence must be immediately apparent; (4)Plain view justified the seizure of the evidence without any further search; (5) The thing itself is illegal or prohibited. The plain view doctrine is not applicable in cases wherein the subject items are not illegal per se, e.g. boy scout uniforms that are suspected to be counterfei t items. Suppose there is a warrant for the search of the premises of B for shabu but the y find betamax tapes which are pirated. Can they seize the tapes which are displa yed? No. Plain view doctrine presupposes that the criminal nature of the articles is c lear at that point without further search. Perhaps, if they were armalites, yes, because B cannot possibly be licensed to have an armalite as he is not a soldier . Checkpoints and Roadblocks In the case of Valmonte v. De Villa (178 SCRA 211; 1989), it was held that a warr antless search at a checkpoint or roadblock is valid for as long as the vehicle is subjected to a mere visual search, and the occupants are not subjected to a b ody search. Private Searches In the case of People v. Marti (193 SCRA 57; 1991), it was held that if a search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authori ties, the right against unreasonable searches and seizures cannot be invoked. Remedies against unlawful searches and seizures (1) Suppression of the evidence through either

(a) quashal of the search warrant - available only when there is a search warrant (b) motion to suppress evidence - available whether or not there is a search warrant (2) Criminal actions for illegal search (3) Civil actions against those responsible (4) Administrative actions What is the remedy to an illegal search? A motion to quash the search warrant and/or to suppress evidence. (See Rule 126, Sec. 14) Search only up to the point within the immediate control of arrestee. If you arre sted him in the front lawn of his house, you cannot go inside. Dorm matron, UP security. Matron is very well trained, well equipped and said ok when security asked to search premises. Search valid? Consent given by the matron is valid with respect to the general areas of the do rmitory but with respect to the individual rooms, consent is not validly given u nless the residents themselves would give consent. PRELIMINARY INVESTIGATION INTRODUCTION PRELIMINARY INVESTIGATION I.PURPOSE II.ENTITLEMENT AS OF RIGHT A.Effect of denial III.WHO MAY CONDUCT IV.PROCEDURE: Differences between: A.By MTC judge B.By prosecutor / Ombudsman V.REMEDIES FOR LACK OF / IRREGULAR P.I. Preliminary investigation defined Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been co mmitted and the respondent is probably guilty thereof, and should be held for tr ial. (Rule 112, Sec. 1) Purpose of preliminary investigation The primary objective of preliminary investigation is to free the respondent fro m the inconvenience, expense, ignominy and stress of defending himself in the co urse of a formal trial, until the reasonable probability of his guilt has been p assed upon in a more or less summary proceeding by a competent officer designate d for that purpose. Preliminary investigation serves as a sieve, funnel, in which you can filter cas es which cannot stand the rigorous test of proof beyond reasonable doubt. The ov erriding consideration is that the accused should not be subjected to hasty, ill -considered or malicious prosecution. (Bautista) ENTITLEMENT AS OF RIGHT Is P.I. part of due process? What about those not entitled to P.I.? Are they denie d of due process? If it is granted by statute but denied, then there is violation of due process. If not granted by statute, then there is no denial of due process. Is P.I. a constitutional right? No, it is only a statutory right. When required to be conducted Preliminary invesitgation is required to be conducted before the filing of a com plaint or information for offenses where the penalty prescribed by law is at lea st 4 years, 2 months and 1 day (Prision correccional in its maximum period, upwa rds. Please check this, though.), regardless of the fine. (Rule 112, Sec. 1) Note tha t this is to be taken together with Rule 112, Sec. 7 (which deals with warrantle ss arrests). Effect of denial of preliminary investigation

Preliminary investigation if denied can be demanded, but only before arraignment . Once a plea has been entered, PI can no longer be availed of. (Rule 114, Sec. 26 ) Note that the ruling in Go v. CA is exceptional owing to the circumstances in th at case. WHO MAY CONDUCT The following are authorized by law to conduct preliminary investigations: 1.Provincial or city prosecutors and their assistants 2.Judges of the MTC and MCTC judges (note that Metropolitan Trial Court judges ar e not included) 3.National and regional state prosecutors 4.Such other officers as may be authorized by law Ombudsman; Metropolitan Trial Court judges of chartered cities where their charter allows them to do so; COMELEC (Verify this!) SEC (Verify this!) SSS (Verify this!) Suppose the MTC judge conducts the P.I. and he finds no probable cause. What will he do? Transmit to the fiscal the records of the case and recommend dismissal. Suppose the fiscal disagrees with the judge, and he thinks that a case should be filed. Can he base a review of the records sent up to him by the judge to file a n information? No, fiscal has to conduct his own preliminary investigation. PROCEDURE In what instances can an MTC judge issue summons instead of a warrant of arrest? See Rule 112, Sec. 9 (b), last sentence: If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. Compare the procedure for the conduct of preliminary investigation by an MTC jud ge and by a prosecutor or the Ombudsman. Differences: (1) MTC judge still has to submit his findings to the provincial / city osecutor for approval. (2) MTC judge can issue warrants of arrest. (Rule 112, Sec. 6 (b)) In what instances is the reviewing prosecutor required to make a written ruling / resolution on the findings being reviewed? See Rule 112, Sec. 5, par. 2: In all cases. Can the respondent file a motion to dismiss in a preliminary investigation? NO. Rule 112, Sec. 3 (c) explicitly provides that no motion to dismiss shall be f iled in lieu of a counter-affidavit. REMEDIES FOR LACK OF / IRREGULAR PI What is the remedy for lack of / or irregular preliminary investigation? Certiorari, prohibition, mandamus. Prohibition to prohibit arraignment. Mandamus to compel preliminary investigation . JURISDICTION INTRODUCTION VENUE INTRODUCTION COMPLAINT & INFORMATION Comparison of the old and new rules Rule RULES COMMENTARY 2000110, OLD RULES Sec. 1. How instituted. -- For offenses not subject to the rule on summar y procedure in special cases, the institution of criminal actions shall be as fo

llows: (a) For offenses falling under the jurisdiction of the Regional Trial Courts, by fil ing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein; (b) For offenses falling under the jurisdiction of the MTCs and MCTCs, by filing the complaint or information directly with the said courts, or a complaint with the fiscal's office. However, in Metro Manila and other chartered cities, the complai nt may be filed only with the office of the fiscal. In all cases, such institution shall interrupt the period of prescription of the of Rule charged. fense110, Sec. 1. Institution of criminal actions - Criminal actions shall be ins tituted as follows: (a) FOR OFFENSES WHERE A PRELIMINARY INVESTIGATION IS REQUIRED PURSUANT TO SECTION 1 OF RULE 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation (b) For all other offenses, by filing the complaint or information directly with the MTCs and MCTCs, or the complaint with the office of the prosecutor. In Manila an d other chartered cities, the complaint shall be filed with the office of the pr osecutor UNLESS OTHERWISE PROVIDED IN THEIR CHARTERS. The institution of the criminal action shall interrupt the running of the period of The phraseof theoffenses charged UNLESS OTHERWISEon summaryIN SPECIAL LAWS. prescription "for offense not subject to the rule PROVIDED procedure in special c ases" was deleted. Thus, under the new rules, the institution of all criminal act ions shall be the same. Under Sec. 1 of Rule 112, preliminary investigation is required for offenses punish able by imprisonment of at least 4 years, 2 months and 1 day (subject to the exc eption in Sec. 7 of Rule 112, i.e. lawful warrantless arrests) This amendment is pursuant to the ruling in Zaldivia v. Reyes (211 SCRA 277), where the Supreme Court held that the Rules of Court cannot amend special laws. Rule 110, Sec. 8. Designation of the offense. - Whenever possible, a complaint or information should state the designation given to the offense by the statute, be sides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection o f the statute punishing it.

 Rule 110, Sec. 9. Cause of accusation. The acts or omissions complained of as con stituting the offense must be stated in ordinary and concise language without re petition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce prope Rule 110, Sec. 8. Designation of the offense - The complaint or information shall r judgment. state the designation of the offense given by the statute, aver the acts or omis sions constituting the offense, and SPECIFY ITS QUALIFYING AND AGGRAVATING CIRCU M-STANCES. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Rule 110, Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the QUALIFYING AND AGGRAVA-TING CIRCUMSTANCES mu st be stated in ordinary and concise language and not necessarily in the languag e used in the statute but in terms sufficient to enable a person of common under standing to know what offense is being charged as well as its QUALIFYING AND AGG RA-VATING CIRCUMSTANCES and for the court to pronounce judgment. The Rules now require the information to allege the qualifying and aggravating circ Rule 110, umstances.Sec. 5. Who must prosecute criminal actions. Rule 110, Sec. 5. Who must Refer to codal for text.prosecute criminal actions. Referis no longer considered a private offense since it is now classified as a crim Rape to codal for text. e against persons under R.A. 8353. Thus, it may be prosecuted by any person and n ot just upon a complaint filed by the offended party or her parents, grandparent Rule 110, Sec. s or guardian. 14. Amendment. - The information or complaint may be amended, in s ubstance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at t he discretion of the court, when the same can be done without prejudice to the r ights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or informatio n upon the filing of a new one charging the proper offense in accordance with Ru

le 119, Sec. 11, provided the accused shall not be placed in double jeopardy, an d may also require the witnesses to give bail for their appearance at the trial. ule 110, Sec. 14. Amendment OR SUBSTITUTION. - A Complaint Or Information May Be R Amended, In Form Or In Substance, Without Leave Of Court, At Any Time Before Th e Accused Enters His Plea. After The Plea And During The Trial, A Formal Amendmen t May Only Be Made With Leave Of Court And When It Can Be Done Without Causing P rejudice To The Rights Of The Accused. HOWEVER, ANY AMENDMENT BEFORE PLEA WHICH DOWNGRADES THE NATURE OF THE OFFENSE CHARG ED IN OR EXCLUDES ANY ACCUSED FROM THE COMPLAINT OR INFORMATION, CAN BE MADE ONL Y UPON MOTION BY THE PROSECUTOR, WITH NOTICE TO THE OFFENDED PARTY AND WITH LEAV E OF COURT. THE COURT SHALL STATE ITS REASONS IN RESOLVING THE MOTION AND COPIES OF ITS ORDER SHALL BE FURNISHED ALL PARTIES, ESPECIALLY THE OFFENDED PARTY. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or informatio n upon the filing of a new one charging the proper offense in accordance with se c. 19, rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. This is self-explanatory. I. Definition of complaint and information II. How and where instituted III. Who must prosecute IV. Requisites of a complaint or information V. Amendment of complaint or information VI. Effect of filing on interruption of prescriptive period VII. Remedies against a defective complaint or information Definition of complaint and information How and where instituted Jurisdiction is determined by the extent of the penalty which the law imposes on the basis of the facts as recited in the complaint or information. Note that it is the imposable penalty that governs; not the penalty which the court may impose or actually imposes. (People v. Lagon, 185 SCRA 442) Who must prosecute Generally, the fiscal. However, in MTCs, MeTCs or MCTCs where the fiscal is not a vailable, the offended party or a peace officer or public officer may prosecute. Note that once the complaint or information has been filed in court, the fiscal loses jurisdiction to dispose of the case as he deems fit. (Republic v. Sunga, 16 2 SCRA 191) Requisites of a complaint or information Name of accused Designation of offense Acts / Omissions constituting offense Name of offended party Date of Commission of Offense Place of Commission Amendment of complaint or information Before arraignment: If amendment is either in substance or form, without need for le of Court

After arraignment, during trial:Amendment in form only, with leave of court at its discretion, provided that such amendment does not prejudice the rights of the ac cused. Formal amendment: one that does not prejudice any essential right of the accused, nor affect the essence of the crime charged. Substantial amendment: one that would change the basic theory of the prosecution by alleging a new way of committing the offense. What is the test to determine whether an amendment is substantial or formal? (1) If the amendment changes the nature of the information; (2) Eliminates a defense; (3) Increases quantum of evidence Note: Conspiracy is neither formal nor substantial per se. It depends on the circu mstances of the case. Effect of filing on interruption of prescriptive period Remedies against a defective complaint or information THE CIVIL ASPECT Comparison of old and new rules Rule RULES COMMENTARY 2000111, OLD RULES Sec. 1. Institution of criminal and civil actions. - When a criminal act ion is instituted, the civil action for the recovery of civil liability is impli edly instituted with the criminal action, unless the offended party waives the c ivil action, reserves his right to institute it separately, or institutes the ci vil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Art. 32, 33, 34 and 2176 of the Civil Code of the Philippines aris ing from the same act or omission of the accused. A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of the said civil actions separately waives the others. The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances af fording the offended party a reasonable opportunity to make such reservation. In no case may the offended party recover damages twice for the same act or omissio n of the accused. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civ il action as provided in these Rules shall constitute a first lien on the judgme nt except in an award for actual damages. In cases wherein the amount of damages, other than actual, is alleged in the compla int or information, the corresponding filing fees shall be paid by the offended Rule upon the 1. Institution of criminal and civil actions. - (a) When a criminal party111, Sec. filing thereof in court for trial.

action is instituted, the civil action for the recovery of civil liability arisi ng from the offense charged shall be deemed impliedly instituted with the crimin al action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the crimina l action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances a ffording the offended party a reasonable opportunity to make such reservation. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (Sec. 3) When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitut e a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or in formation, the corresponding filing fees shall be paid by the offended party upo n the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for a ctual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused i n the criminal case, but any cause of action which could have been the subject t hereof may be litigated in a separate civil action. (b) The criminal action for violation of BP 22 shall be deemed to include the corres ponding civil action. No reservation to file such civil action separately shall b

e allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party s hall pay in full the filing fees based on the amount of the check involved, whic h shall be considered as the actual damages claimed. Where the complaint or infor mation also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amount s alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet comm enced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both a ctions shall proceed in accordance with Sec. 2 of this Rule governing consolidat Under the 2000 criminal action. ion of the civil andRules, only the civil liability arising from the offense charged is deemed instituted. This means that recovery of damages for civil liability under Art. 32, 33, 34 and 2176 of the Civil Code is not impliedly instituted in the cr iminal case, and may therefore be prosecuted separately even without a reservati on. This is in contrast to the old Rules where all civil liability was deemed ins tituted in the criminal case. Under the former rule, a waiver of any of the civil actions extinguishes the others . The institution of, or the reservation of the right to file, any of the civil a ctions separately waives the others. This is no longer provided for. The reservati on and waiver referred to pertain only to the civil action for the recovery of c ivil liability arising from the offense charged. This does not include recovery u nder Art. 32, 33, 34 and 2176 of the Civil Code arising from the same act or omi ssion, which may be prosecuted separately even without a reservation. This provision was moved to Sec. 3 of Rule 111 of the 2000 Rules. The change is mere ly one of style and not of substance.

 The exceptions are BP 22 cases, those civil actions not instituted within the prope r time, and cases before the Sandiganbayan. The 2000 rules have repealed the rulings in Shafer v. Judge, RTC of Olongapo (167 S CRA 376), Javier vs. IAC (171 SCRA 376) and Cabaero v. Cantos (citation unknown) which previously allowed the filing of third-party complaints as well as counte rclaims. Now, under the 2000 Rules, these pleadings are no longer allowed. Any cla im which could have been the subject thereof may be litigated in a separate civi l action. The 2000 Rules have incorporated Supreme Court Circular 57-97 on the filing of acti ons for violation of BP 22 mandating the inclusion of the corresponding civil ac tion for which the filing fee shall be paid based on the amount of the check inv olved. Note that in other cases (non-BP 22 cases), no filing fees are required for actual damages. No counterpart provision. Rule 111, Sec. 2, paragraph 2. During the pendency of the criminal action, the running of the period of prescripti on of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. The action contemplated herein is a civil action arising from the offense charged. I f such civil action is either reserved, or filed separately ahead of the crimina l case, the period of prescription does not run. However, the period of prescription for civil actions under Art. 32, 33, 34 and 217 6 of the Civil Code is not suspended because such actions can be instituted sepa Rule 111, No counterpart 4. Effect rately. Sec. provision. of death on civil actions - The death of the accused aft er arraignment and during the pendency of the criminal action shall extinguish t he civil liability arising from the delict. However, the independent civil action instituted under Sec. 3 of this Rule or which thereafter is instituted to enfor ce liability arising from other sources of obligation may be continued against t he estate or legal representative of the accused after proper substitution or ag ainst said estate, as the case may be. The heirs of the accused may be substitute d for the deceased without requiring the appointment of an executor or administr ator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to app ear and be substituted within a period of 30 days from notice. A final judgment entered in favor of the offended party shall be enforced in the ma nner especially provided in these rules for prosecuting claims against the estat e of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudi ce to any civil action the offended party may file against the estate of the dec ule 111, Sec. 5. Elements of prejudicial question. - The 2 essential elements of eased. R a prejudicial question are: (a) the civil action involves an issue similar or i ntimately related to the issue raised in the criminal action; and (b) the resolu tion of such issue determines whether or not the criminal action may proceed. ule 111, Sec. 7. Elements of prejudicial question. - The elements of a prejudici R al question are: (a) the previously instituted civil action involves an issue si milar or intimately related to the issue raised in the subsequent criminal actio

n; and (b) the resolution of such issue determines whether or not the criminal a ction may proceed. The 2000 Rules expressly state that for a civil action to be deemed a prejudicial qu estion, it must have been instituted prior to the criminal action. IMPLIED INSTITUTION OF THE CIVIL ASPECT Note that under the 2000 Rules, the only civil action deemed impliedly institute e criminal action is that for civil liability arising from the offense charged. A ll other civil actions arising from sources other than the delict are not implie dly instituted. Note that under both the old and new rules, the exceptions to the general rule o f the implied institution of the civil aspect are: (1) When the offended party waives the civil action; (2)When the offended party reserves his right to institute it separately; and (3) When he institutes the civil action prior to the criminal action. Does the offended party have the absolute right to institute a civil action ex d elicto separately? YES, except in the following cases: (1) BP 22 cases (Rule 111, Sec. 1 (b)); (2) When not instituted within the proper time; (3) Cases before the Sandiganbayan. RESERVATION OF CIVIL ACTION EFFECT OF DEATH OF THE ACCUSED What is the effect of death of the accused on the civil actions? It depends: (1) If the accused dies before arraignment, the case shall be dismissed without prej udice to any civil action the offended party may file against the estate of the deceased. (2) If the accused dies after arraignment and during pendency of the criminal action , civil liability arising from the delict shall be extinguished. HOWEVER, an inde pendent civil action instituted under Rule 111, Sec. 3 or from other sources of obligation may be continued against (a) the estate or (b) legal representative o f the accused after proper substitution, as the case may be. (Rule 111, Sec. 4) FILING FEES Must filing fees be paid every time a criminal case is filed? It depends on whether the claim is only for actual damages, or if there is an ad ditional claim for moral, nominal, temperate or exemplary damages. If only actual damages are claimed? Generally, no filing fees are required. However, if the case is one involving BP 22, filing fees must be paid basd on the amount of the check involved, which sha ll be considered as the actual damages claimed. (Rule 111, Sec. 1b) If the complaint or information seeks to also recover liquidated, moral, nominal , temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. (Rule 111, Sec. 1 (b)) PREJUDICIAL QUESTIONS As a general rule, criminal actions are preferred over civil actions, i.e. the c ivil action shall be suspended when the criminal action has been filed. However, there are exceptions to this rule of preference, namely: (1) Independent civil actions, i.e. Art. 32, 33, 34 and 2176 of the Civil Code; (2) When the civil case is subsequently consolidated with the criminal action (Sec. 2, Rule 111); and (3) A civil action involving a prejudicial question What is a prejudicial question? A prejudicial question is understood in law as that which must precede the crimina l action and which requires a decision before a final judgment can be rendered i n the criminal action with which said question is closely connected. (Berbari v. Concepcion, 40 Phil. 837) A civil question is prejudicial when it refers to a fac

t separate and distinct from the offense but intimately connected with it, which question determines the guilt or innocence of the accused. (De Leon v. Mabanag, 70 Phil. 202) The doctrine of prejudicial question comes into play generally in a situation w vil and criminal actions are pending and in the former an issue must be preempti vely resolved before the criminal action may proceed. This does not apply where n o civil, but only an administrative, case is involved. (Manikad, et al. v. Tanodb ayan, G.R. No. 65097, Feb. 20, 1984) What are the elements of a prejudicial question? (1) The previously instituted civil action involves an issue similar or intimately re lated to the issue raised in the subsequent criminal action, and (2) The resolution of such issue determines whether or not the criminal action may pr oceed. (Rule 111, Sec. 7) In cases of prejudicial questions, is reservation required? No. See the cases of Maniago v. CA and San Ildefonso Lines. Where can a petition for suspension of the criminal action based on a prejudicia l question in a civil action be filed? (1) If the criminal action has not yet been filed in court for trial, it may be file n the office of the prosecutor or the court conducting the preliminary investiga tion. Note that this is the earliest time. (2) If the criminal actions has already been filed in court, it may be filed in the e criminal action at any time before the prosecution rests. (Rule 111, Sec. 6) Not e that this is the latest time. In case of prejudicial question, which action is suspended? Criminal action. This is because the issue in a civil action is intimately connec ted to the issue in the criminal action and thus needs to be determined first be fore the criminal action may proceed. Examples of prejudicial questions: Civil action for annulment of marriage filed by the woman, where there is a crimi ion for abduction and filed by her against he male contracting party. The dismiss al of said action and the consequent declaration of the validity of said marriag e constitutes a defense or mode of extinction of said criminal case under Art. 3 44 of the Revised Penal Code. (Montilla v. Yatco, 61 O.G. 8376) Civil action brought by plaintiff to annul the sale of land by defendant to a 3rd , and a criminal case for estafa, where plaintiff alleged that the same land was previously sold by defendant to him but where defendant raised the defense that his signature appearing on the deed of sale to the plaintiff was falsified. (Ras v. Rasul, Sept. 18, 1980) Examples of actions not deemed to be prejudicial questions: Civil action for dissolution of the conjugal partnership on the ground of mismana by the husband, where the criminal offense is concubinage (Cabahug-Mendoza v. Va lera, 92 Phil 1001) Civil action for the annulment of a certificate of title issued upon the basis of ified affidavit of adjudication, where the criminal offense is falsification (De la Cruz v. City Fiscal of Dagupan, 106 Phil. 851) Civil case for quieting of title to property alleged to have been the subject of a falsified deed of sale, where the criminal offense is falsification (Dasalla, e t al. v. City Attorney of Quezon City, May 30, 1962) Civil case for annulment of the second marriage brought by the second wife, where rst wife has filed a criminal case against the husband for bigamy (People v. Ara gon, 94 Phil. 357; Landicho v. Relova, Feb. 23, 1968) - However, where the husband was charged with bigamy by the second wife and the husba nd filed a civil action against the second wife for the annulment of the marriag e on the ground that he was forced to contract said subsequent marriage, such ci vil action is prejudicial since annulment on that ground would establish that hi s act in contracting the second marriage was involuntary, and hence, no criminal liability would attach. (Zapanta v. Montesa, Feb. 28, 1962) Validity of a receipt, impugned in a civil action as having been obtained by frau e the criminal case is one for estafa. Such defense may be passed upon in said cr iminal case or conviction may be based on other grounds. (Jimenez v. Averia, et a

l., Mar. 29, 1968) EFFECT OF ACQUITTAL ON CIVIL LIABILITY Is it possible for the accused to be acquitted, and yet to be civilly liable for the act charged to be criminal? Yes, if the court made no finding in the final judgment in the criminal action t hat the act or omission from which the civil liability may arise did not exist. E xtinction of the penal action generally does not carry with it extinction of the civil action. (Rule 111, Sec. 2) Said query whether an action for breach of contract arising from the same act or omission as the basis of the criminal charge, is impliedly instituted you think that the express mention of the articles of the CC excludes culpa contractual? The way I read it, the 2nd paragraph amplifies the general statement in the firs t paragraph. The civil liability in the first paragraph consists of the 5 mention ed in the 2nd par. That may be so because of the wording. I think you are right. However, it may be a failure to consider the intention really is to assimilate all the civil actions based on the same act or omission. I think the express enumeration may have left open the matter of culpa contractual. In fact, culpa contractual is not mentione d among those actions, which may be prosecuted independently and separately and concurrently with the criminal action. But it can. That also pulls the rug under y our expressio unios argument. I think that this one can also be prosecuted separa tely. It should be impliedly instituted. Sir: We have a private prosecutor in a criminal proceeding and have a civil litig ation together with a criminal case. The accused has a right to refuse to take the witness stand. Can the private prosecu tor call him to the stand as an adverse party witness in respect to the civil lia bility? Since we have fused/merged trial. You notice the provision which speaks of the civil action being consolidated if it was already pending before, it would be consolidated with the criminal action although you can ask additional evidenc e and also in defining the jurisdiction of the Sandiganbayan. What is the peculiarity in cases before the Sandiganbayan about the civil aspec es being tried by the Sandiganbayan? All cases bearing on the civil aspect of the crime should be jointly tried in the Sandiganbayan proceeding and if not so tri ed, then it should be waived. Cannot be expressly reserved, be separately instituted. Perhaps Apple s point e added validity when reckoned with the Sandiganbayan decree ecause in those cas es, it would be extremely unfair for an accused who has a cause of action for br each of contract not to be able to institute an independent action for breach of contract because there s a criminal case filed in Sandiganbayan because in that c ase, there is absolute prohibition for a separate action. What is the rationale f or giving priority to this criminal aciton over the civil action? Why do we say, go ahead first with the criminal action and let us suspend the civil action exce pt in those cases where an independent civil action may be prosecuted. You remember the Seneris doctrine? A: There could be a finding in the criminal action that the fact from which the civ ability might arise did not exist. Sir: Good. But also what if there could be a finding? So you save time so there is ed for a civil case. You may be able to save the time and expenditure for a civil case. You may be able to save the time and expenditure for a civil case. Give me an instance of a case where such a finding may be made that he basis for civil l iability does not exist. A: 2 women claiming to be wife of one person. The first files criminal charge of b but in a civil case, the issue of validity of the first marriage comes up. Sir: The right to reserve the institution of a separate civil action is given in all ases. True or false? A: True, except Sandiganbayan. Sir: R 111, S 1, 2nd par. When you have the right to independent action, you have a ht to reserve. What does that mean? They can be instituted concurrently?

 These are the different concepts. One is the right to reserve. That is given in a s. Now, the right to proceed concurrently is limited to those 4 cases in 2nd para graph, without having to wait. In all cases, you have the right to reserve. It s onl y a question if you can do it at the same time or you have to wait. Sir: Is there a deadline for making a reservation in a criminal action? A: Yes, before prosecution starts to present its evidence. Sir: Unless? In other words, there might be a time even after the prosecution has sta ted its evidence, still you may be allowed to make your reservation. Example? A: If fiscal instituted action without intervention of offended party. After arrai proceeded to present its evidence without the private party having the chance t o reserve. Sir:Possible. Or more commonly if the accused pleads guilty right away. Sir: An action based on contract may proceed independently. So, our conclusion a whi ago that only civil actions based on 32, 33, 34 and 2176 CC may proceed independ ently is not completely correct. A: Yes, in that sense. Sir: A court in criminal case may issue a writ of preliminary attachment. How about ? The civil liability arising from the offense on civil action impliedly institut ed in the criminal action in the MTC might involve more than P 20,000. May MTC is sue writ of preliminary attachment to secure claim for more than? A: Yes. Sir:So it has larger civil jurisdiction in a criminal case than it has in a civil case. BAIL INTRODUCTION Constitutional basis Art. III, Sec. 13, 1987 Constitution: "All persons, except those charged with offenses punishable by reclusion pe rpetua when evidence of guilt is strong, shall, before conviction, be bailable b y sufficient sureties, or be released by recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." I.Definition and purpose II.Kinds III.Rules for when bail may be availed of A.When Allowed (1)Matter of Right (2) Matter of Discretion B.When not allowed C.When not required IV.Conditions V.Entitlement VI.Application (includes who may grant) VII.Posting VIII.Forfeiture Definition and purpose The right to bail flows from the presumption of innocence in favor of the accuse d. (De la Camara v. Enage, 41 SCRA 1) When right may be invoked Rules for when bail may be availed of When bail is a matter of right Bail is a matter of right in the following instances: In criminal cases before the MTC: Before or after conviction In criminal cases before the RTC: Before conviction, where the penalty i petua, death or life imprisonment When bail is a matter of discretion (1) Matter of Discretion Bail is a matter of discretion in the following instances:

In criminal cases before the RTC: After conviction, where the penalty is less th n perpetua, death or life imprisonment When bail is not allowed Bail is not allowed when the crime involved is a capital offense where evidence of guilt is strong. (Note that it is the prosecution which has the burden of show ing that evidence of guilt is strong.) Bail is likewise not allowed after final judgment. The exception to this is when the accused applies for probation before the judgement becomes final. (Note that the Probation Law must be applicable to both the penalty and the offense.) When bail is not required Kinds A. Surety Bond B. Property Bond C. Cash Bond D.Recognizance - Personal underwriting by accused or good citizen of community. Conditions At what stages of the criminal action is the accused required to be present? 1. arraignment 2. for identification 3.promulgation of judgment, except if the case is one involving a light offense Right to bail and the right to travel abroad Standards for fixing bail Entitlement Application (includes who may grant) Where does one apply for bail? (Rule 114, Sec. 17) As a general rule, bail is applied for / filed with the court where the case is pending. Exceptions: 1. judge where case is pending is not available 2. Accused arrested in a place other than where case is pending 3. Accused has not yet been charged Until when is bail good? Unless cancelled, bail remains in force at all stages of the case until promulga tion of judgment by RTC. (Rule 114, Sec. 2) Posting Forfeiture What is the effect of failure of the accused out on bail to attend a hearing des pite due notice? (1) Bond -- If the hearing is one wherein the accused s presence is mandatory, the bo is forfeited. (However, if his presence is not required, there will be no effect on the bond.) Moreover, the Court will give the sureties 30 days within which to pr oduce their principal (or to give the reason for his non-production), and to sho w cause why no judgment should be rendered against them for the amount of their bail (i.e., explain why the accused did not appear before the court when first r equired to do so). (2) Trial -- Trial in absentia, provided that accused has already been arraigned. Question: Is the accused s presence waived for that date only or for all other dates thereafter? Waiver of the right to bail Who are NOT entitled to bail as of right? 1.reclusion perpetua, life imprisonment, death when evidence of guilt is strong 2.after conviction by the RTC imposing penalty of imprisonment exceeding 6 years but not more than 20 years and any of the grounds enumerated 3. conviction reclusion perpetua, life imprisonment, death * Sir s view If you are convicted and penalty is more than 6 years, not as a matte r of right but discretionary if any of the 5 conditions * Matter of right

a. before or after conviction by MTC Bail MTC RTC; still good upon appeal b. before conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment 6 years and above 20 + 5 grounds = no discretion SEC 24. If there is final judgment no bail because convicted, but can apply for p robation before finality What are the stages of bail? (1) applying (2) fixing (3) posting Where to apply not the same as where to post look at type of bond see sec 11 and sec 14 Court where you apply fixes amount of bail but this is NOT necessarily the court which will release you but where you post bail e.g. charged in RTC Manila. Fix b ail at P30,000. Can you post bail in RTC QC? Yes, 2nd paragraph sec 19 If post with treasurer get receipt and go to courtyou want the warrant to be reca lled by the court Applying v. Fixing v. Posting just because court approves bail does not equate to posting after approval of bail get ? then post posting= where? any where case is pending or arrested? there s no provision where to post bail can post bail anywhere Must forward what? e.g. issue warrant Manila release Q.C. ( can t approve application but once Manila approves, QC can release) Bail = confusing = as to applying, fixing and posting When is the liability of surety extinguished? 1. acquitted 2. dismissal 3. death 4. convicted and surrenders Sec 21 = appeared as required * There used to be a letter of instruction waiving presence of accused * Bail fixed at P100,000 if surety or P10,000 if cash. Is this valid? Yes. * Bail if in cash can it be applied to fine and civil damages fine Yes Civil liability No, might not be his money * What if explain why cant produce produce body OR give reason for his non-production possibility that liability of bondsman will be reduced * If out on bail, can he travel abroad? No, unless with court permission may lose jurisdiction impairs contract of bondsman Is this not impairment of liberty? Still in jail although out on bail bondsman is his jailer = bondman can arrest (no need for warrant) sec 23 * practice notice to the bondsman is notice to the accused Sir: Who is not entitled to bail? Is there anyone not entitled to bail? A: No. Sir: Everybody is entitled to bail. There is no one not entitled to bail. Everybody ntitled even those charged with reclusion perpetua and where evidence of guilt i s strong. (?) Sir: Even after conviction but pending appeal, they are entitled to bail? A: Yes. Sir: What is the difference of (1) those accused with offenses punishable by lesser p nalties or RP where evidence of guilt is not strong; and (2) those accused with RP evidence is strong? A: (1) Bail is a matter of right. (2) Bail is discretionary upon court

Sir: If you are charged with an offense in the RTC, may you apply for bail in the MTC of the same province? A: R 114, S 14, 2nd sentence, ....bail may be filed also in MTC. Sir: I said applied. Here are the concepts. The court which fixes the bail. The cou at accepts the bail, and therefore releases the accused on bail. Sir: May the MTC of QC fix and release on bail a person not charged before it? I say accept the bail. A: S 16, 2nd par. ...file xxx. Sir: But that provision presupposes that the bail was fixed. I am talking of QC-MTC ixing and accepting bail of one not charged before it. In S 16, 2nd paragraph, wh y should he file bail when it has not yet been fixed? Sir: Read provision where accused is arrested and not yet charged, and he can put up ail? A: R 114, S 14 (c) xxx apply Sir: Apply. That means is has not yet been fixed. A: But S 6 The judge who granted the application shall fix the bail. So in S 14 he person applies for bail in court, necessarily the court who approves applicatio n must also fix the bail. Thus, whoever approves application may fix the bail. Sir: But a bail already fixed may be filed in another court other than that which fix d it. A: Rules for fixing of baill and acceptance of bail is under S 14. Once bail is e court authorized t accept bail should only be pending unless branch is unavail able, or arrested somewhere else. Sir: How about if he is arrested without being charged? A: He can file it in any court where he is held. Sir: What amount if bail? Who will fix the bail? A: Where he applied. Sir: So that is different now. The court will fix the bail. Who will fix the bail o son arrested but not charged? Any court in the province where he is held. Sir: What are the kinds of bail? Can the court require of accused to fix bail at P 2 00 surety, but if case P 10,000 lang? How about: the court required that if the bail be real property bond that if b in the province and must have been owned by surety for at least 5 years. Is that reasonable bail requirement? The requirement that is must have been owned for at least 5 years has been held to be unreasonable if the property is Torrens title d. The implication was that it was reasonable if property was not titled. Sir: P 500,000 bail for homicide charge where the accused is a government clerk? Sir: Regarding problem on P 20,000 surety bond or P 10,000 cash bond. Usually, to at n a bail bond of P 20,000, you might be asked to put up collateral, even cash, s ometimes for P 10,000. But there are time like right now where there are very few bonding companies that have clearance to issue bail bonds about 5. If the accuse d is a government clerk only and he is charged with homicide, half a million bai l excessive? What is the test? What is the impact of his financial capacity? Whethe r bail is excessive or not depends on the circumstances of the accused and the c rimes charged like where some crimes are very rampant, the Court may be justifie d in fixing very stiff bail. ARRAIGNMENT & PLEA I.Nature and purpose of arraignment II.Procedure III.Plea A. Purpose B. Types (1) Guilty (2) Not Guilty (3) Refusal to enter plea (4) Qualified or Conditional admission (5) Plea Bargain IV.Pre-Arraignment Remedies V.Effects of Arraignment and Entry of Plea

VI.Availability of Provisional Remedies Nature and purpose of arraignment What is arraignment? (Rule 116, Sec. 1) Pagbabasa in Filipino. The information is read to the accused in a language which h e understands and is given a copy thereof. He is then asked to enter his plea. If h e doesn t have a lawyer, he is given a counsel de oficio. Procedure Plea Purpose of plea Types of plea (1) Guilty (2) Not Guilty (3) Refusal to enter plea (4) Qualified or Conditional admission (5) Plea Bargain What are the possible pleas? (1) Guilty (2) Not guilty (3) Conditional plea of guilty (This is considered as not guilty.) (4)Pleads guilty but presents exculpatory evidence (Considered as not guilty) (5) Plea of guilty to a lesser offense (6) Mute (This is considered as not guilty.) (7) Evasive (considered as not guilty) Plea of guilty: when is reception of evidence mandatory? discretionary? If the accused pleads guilty to a capital offense, reception of evidence as to t he voluntariness and full comprehension of the consequences of his plea, proof o f guilt, and precise degree of culpability is mandatory. This is so that the Supr eme Court will have something to review once the case goes up on automatic revie w. However, if the accused pleads guilty to a non-capital offense, reception of evi dence is merely discretionary. Is a negotiated plea or a plea to a lesser offense allowed? Yes. Under the Rules, a lesser offense is one that is necessarily included in the o ffense charged. (Rule 116, Sec. 2) It is allowed to be made either during arraignme nt, or after arraignment but before trial provided that the earlier plea of not guilty is withdrawn. It can also be made by the trial prosecutor in the event tha t the accused fails to appear during the arraignment despite due notice. (Rule 11 6, Sec. 1(f)) Note: An offense charged is deemed to be necessarily included in the offense prov ed when the essential ingredients of the former constitute or form part of those constituting the latter. (Rule 120, Sec. 5) It must be stressed, however, that a plea to a lesser offense or to one that is necessarily included in the offense charged does NOT apply to crimes covered by special laws (e.g. possession of drugs under the Dangerous Drugs Act) When is a plea deemed improvident? What are its effects? A plea is deemed improvident when the accused finds out that there was a mistake in the admission. The Court may permit an improvident plea of guilty to be withd rawn and be substituted by a plea of not guilty. (Rule 116, Sec. 5) Note: If the accused pleaded guilty because he misappreciated the penalty to be i mposed, this is not deemed an improvident plea. Can a withdrawn plea of guilty be used as an admission? No, doesn t make sense if used against him Plea Bargaining Pre-Arraignment Remedies Availability of Provisional Remedies Is it possible for the accused to waive reading of information? Generally, no. * Even if pleads guilty if later on there is evidence to show incomplete self -d efense change to not guilty

* mute not guilty evasive not guilty Who are required to be present during arraignment? (Rule 116, Sec. 1 (f)) 1. accused - Must be present. 2. offended party for plea bargaining and civil liability. If the offended party o appear despite due notice, a plea of guilty to a lesser offense which is neces sarily included in the offense charged may be entered with the conformity of the trial prosecutor alone. Effects of Arraignment and Entry of Plea What are the consequences of an entry of plea? The moment you plea, you can no longer: 1. move to quash (except on those 4 exceptional grounds); 2. question validity of the arrest; 3. question lack of preliminary investigation; 4. amend the information without leave of court; 5. move for a bill of particulars (Rule 116, Sec. 9) Moreover, Sec 7, Rule 117 (b) The conviction of the accused shall not be a bar to another ion for an offense which necessarily includes the offense charged in the former complaint or information if the facts constituting the graver charge became know n or were discovered only after a plea was entered in the former complaint or in formation. Jeopardy attaches, since one of the requirements is that the accused has been arr Trial can be conducted in absentia thereafter. Do we allow for reconsidered plea? Yes. If prosecution and offended party consents provided further that it is neces sarily included in the information. * variance can be convicted if elements of lesser offense are included * plea of guilt can be withdrawn = before conviction plea of guilty can be withdrawn before reception * Time Frame : 30 days from date court acquires jurisdiction over person What are the exceptions? Motion to quash, etc. * reserve action = reserve before prosecution starts presenting evidence (R111, sec 1 par2) * Answer as long as deny allegations in information, its up to prosecution to pr ove * at pre-trail there can be some admission (ex. reserve trial) * Plea signifies that accused understands charge a denial (like answer) jeopardy attaches * New Rules aggravating circumstances = must be alleged in the complaint (even g eneric) * Plea of guilt can be withdrawn before judgment improvident plea What if pending appeal? Yes like a withdrawal of appeal (sec 12, R122) What about withdrawal of appeal if already in appellate court? see sec 18 R 124 = Civil cases can withdraw sec 3 R50 before filing of appellee s brief as a matter of right * Can decisions of the RTC be reviewed by Sandiganbayan? Yes, if salary grade is below 27 * Negotiated Plea Bargainin like blackjack favorable to both accused and prosecu tion State conviction saves time/resources Can the accused be arraigned in absentia? No. Not even if he is going to plead guilty. May a plea of guilty be withdrawn? up to when? May a plea of not guilty be withdrawn? When is the last time you can change it? Sir: The accused plead guilty to information which does not allege any aggravating ci cumstance nor any civil liability and yet the court convicted him and sentence h im taking into consideration account of aggravating circumstance and imposed civ

il liability, is it correct? Sir: Even generic aggravating cannot be taken into account in imposing penalty to the accused who enters plea of guilty? Can the court take into account generic aggrav ating in sentencing accused who pleads guilty to an information that does not al lege any such circumstance? Sir: No, nor any civil liability which is not allege. Reason: where he pleads guilt plea of guilt means an admission of all the material allegations of the informat ion. Only those that are alleged. Accused charged with rebellion can he plead guilty to unjust vexation? Yes. He cannot plead guilty to rape because it more serious offense than rebellion. A: Yes. Sir: Even if the lesser offense is not within the jurisdiction of the Court? A: Yes. Sir: Even if the lesser offense is not necessarily included in the offense charged? A: Yes. Sir: Under what conditions can such plea to unjust vexation be accepted? A: If the offended party consents and the fiscal. Sir: Regarding aggravating circumstance and plea of guilt. In that case of plea of g t, I was assuming that no evidence was received. Remember: generic aggravating alt hough not alleged may be proved because it is not an essential element of the of fense. So, if not alleged nor proved, cannot be taken into account. However, if no t alleged nor proved, cannot be taken into account because what is the basis. Sir: So if not alleged, pleaded guilty, but proved, it can be taken into consideratio Sir: R 116, S 2. Conviction under plea is equivalent to conviction for double jeopa s it not absurd that ex. charge of murder, pleads guilty to unjust vexation, he cannot be prosecuted for murder anymore? Sir: Only absurd if you do not understand the philosophy behind plea bargaining. Sta encourages plea bargaining. Quid pro quo? The trade off? Saves time and resources o f state. Sir: What is the status of Trono doctrine promulgated by RP SC under US period and af irmed by US SC, but in recent decision of US SC now that we are no longer under US rule, was reversed implicitly? The facts are like this supposed: supposed you are charged with murder but convicted of homicide, and then you appeal, can the appellate court convict you of murder? Same facts, charged with murder. Convicted of homicide. You appeal. On appeal ordered, New trial held. Convicted of murder. Pwede ba? Under Trono case, yes. QUASHAL QUASHAL PROPER Comparison of old and new rules Rule RULES No RULES COMMENTARY 2000117, Sec. 8. Provisional dismissal. - A case shall not be provisionally dismi OLDcounterpart provision. ssed except with the express consent of the accused and with notice to the offen ded party. The provisional dismissal of offenses punishable by imprisonment not exceeding 6 ye ars or a fine of any amount, or both, shall become permanent 1 year after issuan ce of the order without the case having been revived. With respect to offenses pu nishable by imprisonment of more than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having be revived. enThe 2000 Rules finally codify the practice of the courts of granting provisional I.Concept of quashal dismissals. II.Grounds for Motion to Quash III.Concept of Double Jeopardy IV.Effect of Failure to Move to Quash V.Remedies for Denial of Motion to Quash CONCEPT OF QUASHAL Is it possible to move to quash and plead at the same time? The rule says that a motion to quash must be made before the accused enters his plea. (Rule 117, Sec. 1. Previously, in the pre- 85 Rules, you were allowed to plead

AND file a motion to quash. This is no longer true.) What is the consequence of resorting to a motion to quash? Jeopardy will not attach since the accused will not be entering a plea. GROUNDS FOR MOTION TO QUASH The accused may move to quash the complaint or information on any of the followi ng grounds: (a) That the facts charged do not constitute an offense; In this case, the prosecution shall be given an opportunity to correct the defec t by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect de spite the amendment. (Rule 117, Sec. 4, 2nd paragraph) (b) That the court trying the case has no jurisdiction over the offense charged; The court can consider this ground even if it has not been alleged in the compla int or information. (Rule 117, Sec. 2) (c) That the court trying the case has no jurisdiction over the person of the accuse d; (d)That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; If the motion to quash is based on an alleged defect of the complaint or informa tion which can be cured by amendment, the court shall order that an amendment be made. (Rule 117, Sec. 4, 1st paragraph) (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or j ustification; and Is the insanity of the accused a ground to motion to quash? It is. The basis is in letter G Sec. 3 of Rule 117 i.e.. That it contains averment s which if found true would constitute a legal excuse or justification. (i) That the accused has been previously convicted or acquitted of the offense charge , or the case against him was dismissed or otherwise terminated without his expr ess consent What are the grounds for a motion to quash (MTQ) which are not barred even thoug h not raised before the accused pleads, in other words, grounds, which may be ra ised even after plea? (1) Lack of jurisdiction over the offence charged or the person of the accused; (2) Extinction of the criminal action or liability; Note: Prescription, pardon, and amnesty fall under extinction of criminal liabili ty. (3) Double jeopardy; and (4) The facts charged do not constitute an offense (Rule 117, Sec. 8) Is there evidentiary hearing in a motion to quash? There is, (Note: In P. v. Qadabis the SC held that matters of defense can be pro duced when the grounds for a motion to quash are extinction of criminal liabilit y; prescription and double jeopardy. In P. v. De La Rosa, the SC held that when the prosecution asks the court to present evidence; as did the other party, the accused; the court cannot close its eyes on such evidence presented. Sir: The problematical ground is where the ground for the MTQ is that the informatio n does not allege facts sufficient to constitute the offense. In civil procedure, the oft-repeated rule that motion for dismissal based on the ground that the co mplaint does not allege a sufficient cause of action shall be resolved only on t he basis of the complaint is no longer absolutely true. The court may consider al l evidence already on record as that in the case of Tan v. Bureau of Forestry. Th e case involved a boundary dispute over timber concession. During the hearing on preliminary injunction, a Map was presented wherein the boundaries were marked s o that it was clear that the allegations of the complaint has no basis. The courts may consider evidence already on record, second matters of judicial n otice, and 3rd, admissions. This is also the case where the grounds for MTQ is fa ilure to allege facts sufficient to constitute an offense. In P. v. de la Rosa, t

he famous gold bar case, a German lady was apprehended at the then Manila Intern ational Airport for bringing several gold bars. She was charged on violation of T ariff and Customs Code for bringing in dutiable items without declaring them for customs purposes. She moved to quash on the ground that the information did not charge an offense. Surprisingly, it was even the fiscal who moved for hearing whe re evidence was adduced to the effect that she was just a transit passenger and was really bound for Taipei. That s why she was book overnight long at the Hilton. T here was no connecting flight to Taipei then she had to stay overnight. These wer e considered. The court said that based on the evidence on record, together with the admissions of the fiscal, it was clear that she had no intent: to import the gold bar to the Philippines and dismissed/ Quashed the information for failure to charge an offense. * Suspension of arraignment sec 11 R116 new = petition for review pending with DOJ or Office of the President shall not exceed 60 days ---- taken from the case of Roberts 349 Pepsi case * If inadequate or lack of PI not move to quash remedy = ask for PI and move to suspend Deadline; before entering his pleas Qualification: if arrested without warrant, RPC 125 ---ask for PI (sec 7 R 112) 5 days * Can move for production of evidence even after arraignment * Insanity legal excuse or justification- ground for quashal if it contains aver ments which if true Is there evidentiary hearing on a motion to quash? General Rule NO In evaluating motion to quash on grounds court NOT limited to allegations but ma y consider all evidence already on record, matters of judicial notice CONCEPT OF DOUBLE JEOPARDY Art. III, Sec. 21, 1987 Constitution: "No person shall be twice put in jeopardy of punishment for the same offens e. If an act is punished by a law and an ordinance, conviction or acquittal und er either shall constitute a bar to another prosecution for the same act." Rule RULES COMMENTARY 2000117, OLD RULES Sec. 3. Grounds. - The accused may move to quash the complaint or inform ation on any of the following grounds: (h) That the accused has been previously convicted or in jeopardy of being convicted Rule 117, Sec. 3. Grounds. The accused may move to quash the complaint or inform , or acquitted of the offense-charged. ation on any of the following grounds: (i) That the accused has been previously convicted or acquitted of the offense charg ed, or the case against him was dismissed or otherwise terminated without his ex press consent. The 2000 Rules now expressly enumerate the 4 instances by which an accused is prote Rule 117, Sec. 7, second paragraph. cted by law from being placed under jeopardy a second time. Former conviction or acquittal; double jeopardy. - However, the conviction of the accused shall not be a bar to another prosecution fo r an offense which necessarily includes the offense charged in the former compla int or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

 (b) the facts constituting the graver charge became known or were discovered only af ter the filing of the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the fis cal and of the offended party. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of convic Rule 117, Sec. 7, offense. tion for the graversecond paragraph. Former conviction or acquittal; double jeopardy. - However, the conviction of the accused shall not be a bar to another prosecution fo r an offense which necessarily includes the offense charged in the former compla int or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only af ter a plea was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the pro secutor and of the offended party, except as provided in Sec. 1 (f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of convic tion for the graver offense. No change. The reckoning point is now date of entry of plea and no longer the date of filing o f the complaint or information. Sec. 1 (f) of Rule 116 provides that in case of failure of the offended party to ap pear despite due notice, the court may allow the accused to enter a plea of guil ty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. DOUBLE JEOPARDY DEFINED cornerstone of criminal procedure Double Jeopardy Purpose of double jeopardy

What is the purpose for the principle of double jeopardy? * Because of vast resources of the State, should give it only one chance; otherw ise, harassment Sir: Jeopardy is the pillar of our criminal justice system. How important it is ne ed not be stressed. You can imagine what kind of system we will have if we do not have that rule. Perhaps the best way to understand the provision if to quote it. Is it a long provision? It s only a sentence isn t it except for that qualification a bout the ordinance. What are the critical words or phrases in the provision? Actu ally, Jeopardy lang and same offense . So the questions to ask are: When are you put i n jeopardy of punishment first, when are you put in jeopardy at all, so that you would know that the next time you are put twice. The next question is, is it for the same offense? The rules of court in Rule 117; Sec. 7 refines and expands the constitutional provision. First it expands the meaning of same offense to includ e if frustrated and attempted; necessarily included and includes in the offense charged. The rules also define when you are put in jeopardy for the first time. W hat are the instances that create jeopardy? In other words, what acts or events i n a criminal litigation will put a person in jeopardy without which he is not in jeopardy at all? The Rules define that very clearly and enumerates several instances, which const itutes jeopardy. What are they? A. Conviction or Acquittal of the accused, dismissal or termination of the case without his express consent and after he has pleaded. (Sec. 7 R. 117) Elements of double jeopardy What are the elements of double jeopardy? (1) Court of competent jurisdiction; (2) Complaint or information sufficient in form and substance to sustain a conviction ; (3) Arraignment and plea by the accused; (4) Conviction, acquittal, dismissal or termination of the case without the express c onsent of the accused Crimes covered under double jeopardy Subsequent prosecution is barred for the following: (1) Same offense (2) Attempt of the same offense (3) Frustration of the same offense (4) Offense necessarily included in the 1st offense (5) Offense that necessarily includes the 1st offense Order of dismissal is bar to subsequent prosecution if: 1. prescription 2. extinguished 3. double jeopardy 4. without consent of accused What are the exceptions to the double jeopardy rule? (1) Doctrine of supervening facts: If the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (2) Doctrine of subsequent discovery (Prof. Barlongay s term): If the facts constitu the graver charge became known or were discovered only after the filing of the f ormer complaint or information (3) The plea of guilty to the lesser offense was made without the consent of the fis cal and the offended party What are the principles of double jeopardy? 1. No person shall be twice put in jeopardy of punishment for the SAME OFFENSE 2. If an ACT is punished by a law and an ordinance, conviction or acquittal under eit er shall constitute a bar to another prosecution for the SAME ACT. ATTACHMENT OF JEOPARDY When is a person first put in jeopardy? 1. charged with the same offense in 2 separate cases 2. accused is prosecuted after the same had been convicted or acquitted

3. prosecution appeals from a judgment in the same case CONCEPT OF "SAME OFFENSE" * same OFFENSE not equal to same ACT Except that where an act is punished by both a law and by ordinance * Basic rule act ? offense act may be several offenses * Problem A charged with direct bribery RA 3019 Code of Ethics * Important amendment to 3 and 4 Old Rules = R117 sec 3 previously convicted OR IN JEOPARDY this was omitted. Why? it implies litis pendentia. Now under New Rules no more li tis jeopardy * X charged with BP22. X moves to quash due to prescription. ISSUE: Do you count period from issuance of check or date of dishonor? * If motion to quash is granted and prosecution appeals is this jeopardy? Motion to quash= consent of accused * 1st case for estafa for selling property which is mortgaged without disclosing to buyer RPC 316 (2) NO Chattel mortgage law Jeopardy * Mr. Casis shoots clock (no intent to kill) 2 crimes: illegal discharge and alarms and scandal. Can they be prosecuted for 2 crimes? * People v del Carmen charged with malicious mischief acquitted for doing the same thing prosecuted for grave coercion Is second prosecution barred by jeopardy? R120 sec 5 * If accused is charged with rape and grave coercion, is this allowed? * Relova case electric meter and qualified theft under #2 same act * Rule on provisional dismissal accused must consent (no jeopardy since with con sent) * If prosecution is not ready with the evidence and keeps on postponing remedy = move for trial and if not ready then ask for dismissal for failure to prosecute * Accused can t say to court that jeopardy, must invoke that at the 2nd court with prejudice * If a criminal charge is dismissed by accused on ground of prescription, can th e dismissal be appealed? Yes, State can appeal. * If you are charged with murder and convicted of homicide and you appeal, can y ou be convicted of murder? Trono Case: accused charged with murder convicted of homicide. CA convicted him f or murder ---no double jeopardy * reasoning of Green Case: when the conviction for 2nd degree murder (lesser off ense), he is acquitted of the higher offense * Our theory- appeal vacates the judgment sec 11, R124 (applies to SC by virtue of R125, sec1) ---can INCREASE cant = must make a finding if there is civil liability or not * Double Jeopardy ? Res Judicata * 3 men barge into a house, robbed 4 poker players. One of the masked men, charge d for robbery of a poker player. Acquitted. Can the same robber be charged agains t other player? Theory: one chance only by State Sir: By the way, when we took up civil procedure, I don t think we discussed the Sibo ghanoy case (Tijam v. Sibonghanoy). That s a civil case where plaintiff lost after trial. Later on, he challenged the jurisdiction of the court. When a party himself invokes the jurisdiction of the court and goes as far as ju dgment, then later when he loses, turns around and wants to invalidate the judgm ent on the ground that there was no jurisdiction applying equitable principle, th e SC said in the particular situation, the party is estopped from challenging ju

risdiction. Whether they will apply in criminal cases, I don t know. Now, with respect to the qualification in the constitutional provision, which is the subject of the Relova case In the Relova case, the accused was charged with tampering with the electric meter of his ice plant so that the registration of the electric consumption was less. He was charged with violating a municipal ordi nance, but was acquitted on the ground of prescription. Based on the same facts, he was charged again for theft under the Revised Penal Code. The second charge wa s dismissed on the ground of jeopardy. applying the second clause of the constit utional provision. The SC in the opinion written by Justice Feliciano claims that if an act is punished by 2 different statutes, he can be charged of as many off enses as there are statutes or sections of statutes violated. The test would be t he identity of offenses test. But if the same act constitutes a violation of the st atute and also an ordinance, the test is identity of the acts , why so? What s the re ason for the exception? Did I not tell you before that you could be convicted of estafa and BP 22 at the same time after issuing a bouncing check same way you co uld be convicted of theft of motor vehicle which is qualified theft of a motor v ehicle and violation of the anti-carnapping law(?) Why did these things happen, but not the one in Relova? What is the reason for the proviso in the constitutio n? The reason is because an ordinance and a statute are made by two different law-m aking bodies. Problem: Casino barges into his classroom He pulls his .38 calibre gun and fires at him (Jose Rizal s portrait), doing it while we are having a class. He was charge d and convicted of alarms and scandals. Then he is charged again for the same act of illegal discharge without intention to kill. Is the second charge barred by j eopardy? A. No, Since the 2 charges fall under the same law, the penal code; Casino is not being prosecuted for the same offense. Now about that famous Del Carmen case involving the media agua and banguera ? Fi rst, accused was charged in the information in the inferior court with malicious mischief for removing and destroying with resentment, hate, revenge the banguer a of complainant. He was acquitted for lack of proof. Based on the same act, he w as charged with grave coercion for allegedly having prevented complainant from k eeping his agua and banguera. Is there Double Jeopardy? A. SC: There is jeopardy, - single act giving rise to malicious mischief and grav e coercion. (Handwritten) No. There is no identity of offenses (Typewritten) See Rule 117 how it defines identity of offenses. In that case, it was held that there is jeopardy because you cannot segment an offense into integral parts and make out several, as many offenses a part of each may make. That s what the rules of court say. Otherwise, according to Justice Paras, in prosecution for rape, you can again prosecute the same act for preventing the girl from keeping her virgi nity intact. Puede mo rin gawin grave coercion yung rape. You think about that. Accused is first charge with violation of the chattel mortgage law for allegedly having sold a property, which is mortgaged, to the complainant without the writ ten consent of the mortgagee. Convicted. Thereafter, he is charged again based on the same act, for estafa for selling the same property without telling the buye r that the property is encumbered. Will the second prosecution survive an attack on the ground of jeopardy? One is under the chattel mortgage law, the other is e stafa under the Revised Penal Code. A. No. To understand jeopardy, obviously you have to know the elements of the offense. ( Draws on the board)- The violation of the chattel mortgage law is the act of sel ling the property. Also, yung violation on estafa is the act of selling. There is a common element the act of selling. (shaded area in the drawing) But they have non-common elements. In violation of the mortgage law, there is an additional el ement of not obtaining the consent of the mortgagee. Estafa is for the protection of the buyer, the additional element is not telling the buyer of prior encumbrances and selling the property and unencumbered . Whil e there is a common element, they are not the same offense in order to constitut

e necessarily includes . What is the definition of necessarily includes? A. Rule 120 Sec. 5 So it does not mean situations like this. It means those situation like Casinos. You remember the Melo doctrine (P.v. Melo)? Accused hurled a stone at complainan t, wounding the latter. On the basis of that act, information for slight physica l injuries was filed, stating that the wound took 5 to 9 days to heal. Tried, con victed. Later, found out there was going to be a deformity or a scar. The accused was charged with serious physical injuries. Is there jeopardy? This is now covere d by specific codal provision. No. Basis is Rule 117, Sec. 7 (b) PRE-TRIAL INTRODUCTION PRE-TRIAL Purpose and when proper Subject matter of pre-trial conference Requisite of pre-trial agreements Pre-Trial Order * Mandatory * must be conducted with a certain period * but no time period as to when court acquires jurisdiction --- up to law enforc ement agencies TRIAL INTRODUCTION I.Order of Trial II.Rights of the Accused at Trial A. Against self-incrimination B. Compulsory process C. Discovery D. Right to Counsel E. Presumption of Innocence F. Speedy Trial III.Discharge of Accused IV.Provisional Dismissals ORDER OF TRIAL I. Order of trial (Rule 119, Sec. 11) Note however that when the accused admits the crime but interposes a lawful defe nse, the order of trial may be modified. (Rule 119, Sec. 11 (e)) RIGHTS OF ACCUSED AT TRIAL a. against self-incrimination (i.e. handwriting) i. If he takes stand, can he be examined like any other witness? No, only covered by direct. See sec 132, sec 6 (all matters) Note that when the accused takes witness stand, the prosecution can only impeach his character as to truth telling. Failure to take stand won t prejudice him. b. compulsory process c. discovery d. right to counsel e. presumption of innocence demurrer to evidence insufficient evidence If granted, it amounts to an acquittal. When filed? After prosecution rests Is it a matter of right? with leave or without leave if without and denied= waives opportunity to present evidence deadline 10 days If motion for leave is denied, what is his remedy? present evidence, no more cer tiorari or appeal

Sir doubts constitutionality that no remedy if denied motion for leave of court It emasculates your right to test sufficiency of the prosecution s evidence * If you allow state to cross-examine accused, gives state a chance to improve o n its case * If court denies demurrer to evidence means evidence of guilt is strong (with r egard to bail) * If non-bailable offense don t ask for demurrer to evidence Right to speedy trial See Rule 119, Sec. 9-10. Burden on prosecution to prove dates excluded * Webb v. De Leon: What was sought to be discovered? Affidavit of Alfaro, lab repo rts * Webb claimed witnesses in California wanted to depose. Trial court denied. CA allowed. SC said no need since evidence is merely corroborative Davide concurring said the issue must be resolved (citing several rules) If allow ed in civil cases, all the more allowed in criminal cases Puno - alluded to Webb v De Leon, even at PI stage allowed; suppression = denial of due process * Prosecution witnesses allowed since doesn t get info from the accused DISCHARGE OF ACCUSED R119 affidavit state it in the affidavit What if unable to testify? o conditions under the law and the Rules of court (see sec 3 and sec 10) What if most guilty but discharged nonetheless or other evidence is available, wi amount to an acquittal? If not hearing = void not acquitted (Flores v Sandiganba yan) Can the prosecution withdraw the information during the pendency of the case? It depends: (1) If accused has already been arraigned and it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall di smiss the original complaint or information upon the filing of a new one chargin g the proper offense in accordance with Sec. 19, Rule 119, provided the accused shall not be placed in double jeopardy. (Rule 110, Sec. 14, last paragraph) (2) If the accused has not yet been arraigned, the complaint or information can be a mended or withdrawn without leave of court. (Rule 110, Sec. 14) Note however that double jeopardy attaches if the new information includes the o riginal information. (?) What are the 2 instances when the Court can dismiss on motion of the prosecution ? (1) Rule 110, Sec. 14, par. 2 -- An accused may be excluded from the complaint or inf ormation at any time before entry of plea (2) Rule 119, Sec. 19 -- ? In the case of Chua v. CA, it was held that an accused can be discharged at any time before the defendants have entered upon their defense, i.e. before the pros ecution rests. There is no need to complete the presentation of evidence since it is the prosecution which knows who is most guilty. As a general rule, the discharge or exclusion of a co-accused from the Informati on, in order that he may be utilized as a prosecution witness rests upon the sou nd discretion of the trial court, this discretion should be exercised by it stri ctly on the basis of the conditions set forth in Rule 119, Sec. 17. When can an accused be discharged as a state witness? See Rule 119, Sec. 17. Compare discharge of an accused under Rule 119, Sec. 17 and under the Witness Pr otection Program (RA 6981). Witness Protection Program ischarge under Rules of Court D

 Rule 119, Sec. 17 RA 6981, Sec. 10 Immunity granted Transactional immunity Transactional immunity Who may avail Only an accused Anyone, even the accused Effect of discharge Operates as an acquittal, which means that the accused is charged first then dis charged or excluded from the information. Is threat to life necessary? Witness will no longer be charged at all. No. Note Yes. that under the Rules of Court, to be discharged, there must still be a hear ing. Which is better: to be discharged under the Rules of Court or under the Witness Protection Program? The Witness Protection Program. For one, you do not need to be charged. The advant age there is that the prescriptive period runs, and you have no criminal record. Provisional Dismissals (though placed under Motion to Quash, I think it s more properly placed here) Requirements for a provisional dismissal (Rule 117, Sec. 8) (1) Express consent of the accused (2) Notice to the offended party What are the periods? If penalty of imprisonment of not more than 6 years or fine: becomes permanent aft er 1 year without case being revived If penalty of more than 6 years: becomes permanent after 2 years JUDGMENT & POST-CONVICTION REMEDIES INTRODUCTION I.Judgment defined II.General rules on Judgments III.Form and Content IV.Rules in case of variance between allegation and proof V.Promulgation of judgment VI.Modification of judgment A. Motion for Reconsideration B. Motion for New Trial C. Appeal VII. * Form = writing, signed by judge, degree of participation, finding of civil lia bility, circumstances mitigating or aggravating * promulgation what is read? Entire presence of accused = required to be there u nless light offense * If doesn t appear and convicted no remedies available: probation/appeal * Probation law If availed of, cant appeal conviction Judgment defined General rules on Judgments When judgment becomes final When does judgment in a criminal case become final? (1) Acquittal (2) Lapse of period to appeal Note the qualifications. (3) Written waiver of right to appeal (4) Probation (5) Service of sentence

Form and Content Rules in case of variance between allegation and proof Promulgation of judgment Effect of failure of the accused to appear during promulgation If accused is acquitted, no problem. If accused is convicted, and his failure to appear was without justifiable cause , he loses the remedies available in the Rules against the judgment. Also, the Co urt will order his arrest. However, should the accused surrender within 15 days from promulgation of judgme nt, he may file a motion for leave of court to avail of these remedies. (Rule 120 , Sec. 6) Modification of judgment Motion for Reconsideration Motion for New Trial Appeal Appeal v. Certiorari Appeal is resorted to when the judgment is erroneous. Certiorari when the judgmen t is void. NEW TRIAL OR RECONSIDERATION * grounds/ effect different * When is judgment Final? acquittal final immediately applies for probation waiver satisfies the sentence escapes 15 days with qualification * new evidence see R121 sec 3, R 124 sec 14 * effect of Death criminal liability extinguished, civil liability arising from crime also extinguished * certiorari from order of dismissal on legal grounds, double jeopardy, prescrip tion, jurisdiction prosecution can appeal * Acquittal can use R 65, Why? theory judgment VOID, grave abuse of discretion or no jurisdiction * Galman case: no jurisdiction because Not impartial * If certiorari is available, is habeas corpus available? Yes, 2 cases: Cruz v Dir of Prisons; People v Labriaga ?? ?? ?? ?? Criminal Procedure Outline