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RULE 112 PRELIMINARY INVESTIGATION  Is the lack of a preliminary investigation a ground

for dismissing a complaint?

 What is preliminary investigation?
No. The absence of a preliminary investigation does not
Preliminary investigation is an inquiry or proceeding to affect the jurisdiction of the court but merely the
determine whether there is sufficient ground to engender regularity of the proceedings. The court cannot dismiss
a well-founded belief that a crime has been committed the complaint on this ground, and it should instead
and the respondent is probably guilty thereof, and should conduct the investigation or order the fiscal or lower court
be held for trial. to do it.

 When is it required?  What is the effect of the absence of a certification

that a preliminary investigation was conducted?
Before a complaint or information is filed, preliminary
investigation is required for all offenses punishable by It is of no consequence. What is important is that there
imprisonment of at least 4 years, 2 months, and 1 day, was actually an investigation, that the accused was
regardless of the fine, except if the accused was arrested informed thereof and was allowed to present controverting
by virtue of a lawful arrest without warrant. In such a evidence.
case, the complaint or information may be filed without a
preliminary investigation unless the accused asks for a  When should the right to preliminary
preliminary investigation and waives his rights under investigation be invoked?
Article 125 of the RPC.
The accused should invoke it before plea, or else, it is
 What is the purpose of a preliminary deemed waived.
 What if the court denies the invocation of the
1. To determine if there is sufficient ground to right to a preliminary investigation, what is the
engender a well-founded belief that a crime has remedy of the accused?
been committed and the respondent is probably
guilty thereof, and should be held for trial. He must immediately appeal it to the appellate court. He
2. To protect the accused from the inconvenience, cannot later raise the issue for the first time on appeal.
expense, and burden of defending himself in a
formal trial unless the reasonable probability of  If the complaint or information is amended,
his guilt shall have been first ascertained in a should a new preliminary investigation be
fairly summary proceeding by a competent conducted?
3. To secure the innocent against hasty, malicious No.
and oppressive prosecution, and to protect him
from an open and public accusation of a crime,  If the complaint or information is substituted,
from the trouble, expenses and anxiety of a should a new preliminary investigation be
public trial. conducted?
4. To protect the state from having to conduct
useless and expensive trials. Yes.

 What is the scope of preliminary investigation?  Who may conduct a preliminary investigation?

Preliminary investigation is merely inquisitorial and it is 1. Provincial or city prosecutors and their assistants
often the only means of discovering whether the offense 2. Judges of the MTCs
has been committed and the persons responsible for it to 3. National and Regional State Presecutors
enable the fiscal to prepare his complaint or information. 4. Comelec with respect to election offenses
It is not a trial on the merits and has no purpose but to 5. Ombudsman with respect to Sandiganbayan
determine whether there is probable cause to believe that offenses and other offenses committed by public
an offense has been committed and that the accused is officers
probably guilty of it. It does not place the accused in 6. PCGG with respect to ill-gotten wealth cases
 Can RTC judges conduct a preliminary
 Is the right to a preliminary investigation a investigation?
fundamental right?
No. Although this should not be confused with the
No, it is a statutory right and may be waived expressly or authority of the RTC to conduct an examination for the
by silence. It is also not an element of due process, purpose of determining probable cause when issuing a
unless it is expressly granted by law. warrant of arrest.

 Can an accused demand the right to confront and  What is the procedure in conducting a preliminary
cross-examine his witnesses during the preliminary investigation?
1. The complaint shall state the address of the
No. The preliminary investigation is not part of the trial. respondent and shall be accompanied by the
It is summary and inquisitorial in nature, and its function affidavits of the complainants and his witnesses
is not to determine the guilt of the accused but merely to as well as other documents to establish probable
determine the existence of probable cause. cause. The affidavits must be subscribed and
sworn before the prosecutor or government
official authorized to administer oath or notary 1. If he finds probable cause to hold the respondent
public. for trial, he shall prepare the resolution and
2. Within 10 days from the filing of the complaint, certify under oath in the information that:
the investigating officer shall either:
a. he or an authorized officer has
a. dismiss it if he finds no ground to personally examined the complainant
continue the investigation; or and his witnesses;
b. issue a subpoena to the respondent b. that there is reasonable ground to
accompanied by the complaint and believe that a crime has been committed
affidavits. and that the accused is probably guilty
 The respondent shall have the right to thereof;
examine the evidence, etc, etc. c. that the accused was informed of the
complaint and of the evidence against
3. Within 10 days from receipt of the subpoena, the him;
respondent shall submit his counter-affidavit, the d. that he was given an opportunity to
affidavits of his witnesses, and other documents submit controverting evidence.
in his defense. Affidavits should also be sworn
and subscribed. The respondent cannot file a 2. If he finds no probable cause, he shall
motion to dismiss in lieu of a counter-affidavit. recommend the dismissal of the complaint.
4. If the respondent cannot be subpoenaed or if he 3. Within 5 days from his resolution, he shall
fails to file his counter-affidavit within 10 days, forward the record of the case to the provincial or
the investigating officer shall resolve the city prosecutor of chief state prosecutor of the
complaint based on the evidence submitted by Ombudsman. They shall act on the resolution
the complainant. within 10 days from receipt and shall
5. If there are facts and issued which need to be immediately inform the parties of such action.
clarified, the investigating officer may set a 4. No complaint of information may be filed or
hearing. The parties can be present, but they dismissed by an investigating prosecutor without
cannot cross-examine. The hearing shall be held the prior written authority or approval of the
within 10 days from the submission of the provincial or city prosecutor or chief state
counter-affidavits or from the expiration of the prosecutor or the Ombudsman.
period of their submission. It shall be terminated 5. If the investigating prosecutor recommends the
within 5 days. dismissal of the complaint, but his
6. Within 10 days from the termination of the recommendation is disapproved by the provincial
investigation, the investigating officer shall or city prosecutor or chief state prosecutor or
determine whether or not there is probable cause Ombudsman on the ground that probable cause
to hold the respondent for trial. exists, the latter may either:

 Is a preliminary investigation a judicial a. by himself, file the information; or

proceeding? b. direct another assistant prosecutor to file the
Yes because there is an opportunity to be heard and the information without need for a new preliminary
production and weighing of evidence upon which a investigation.
decision is rendered. Since it is a judicial proceeding, the 6. The Secretary of Justice may, upon petition by a
requirement of due process in judicial proceedings is also proper party or by itself, reverse or modify the
required in preliminary investigations. resolution of the provincial or city prosecutor, the
chief state prosecutor, or the ombudsman. In
 What is the difference between criminal such a case, he shall direct the prosecutor
investigation and preliminary investigation? concerned to either file the information without
need for a new preliminary investigation or to
Criminal investigation is a fact-finding investigation carried dismiss or move for its dismissal if already filed in
out by law-enforcement officers for the purpose of court.
determining whether they should file a complaint for  If there was no preliminary investigation
preliminary investigation. Preliminary investigation is conducted, what is the remedy of the accused?
conducted for the purpose of determining if there is (RICAP)
probable cause to hold a person for trial. 1. Refuse to enter plea
2. Insist on a preliminary investigation
 What is probable cause? 3. File certiorari if refused
Probable cause is the existence of such facts and 4. Raise it as an error on appeal
circumstances as would excite the belief in a reasonable 5. File a petition for prohibition
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the  What should the Secretary of Justice do if an
crime for which he was prosecuted. information that has already been filed in court is
appealed to him?
 Is the presence of counsel in the preliminary He should, as far as practicable, refrain from entertaining
investigation mandatory? the appeal. The matter should be left to the
No. Preliminary investigation is a summary proceeding determination of the Court.
and is merely inquisitorial in nature. The accused cannot
yet invoke the full exercise of his rights.  If the Secretary of Justice gives due course to the
appeal, what should the trial judge do?
 How does the investigating prosecutor resolve the He should suspend proceedings and defer arraignment
findings after preliminary investigation? pending the resolution of the appeal.
 Is the determination of probable cause a judicial Ombudsman shall review the resolution of the
or executive function? judge.
It depends. If it is made in a preliminary investigation for 4. They shall act on the resolution, expressly and
the purpose of determining whether there is reasonable clearly stating the facts and the law on which it is
ground to believe that the accused has committed the based.
offense and should be held for trial, it is an executive 5. The parties shall be furnished with copies thereof.
function. If it is made for the issuance of a warrant of 6. They shall order the release of an accused who is
arrest by a judge, it is a judicial function. detained if no probable cause is found against
 Can the accused file a motion to quash based on
insufficiency of evidence?  What happens if the judge fails to resolve the
case within 10 days from the termination of the
No. He cannot pre-empt trial by filing a motion to quash investigation?
on the ground of insufficiency of evidence. Whether the This constitutes dereliction of duty and is a ground for
function of determining probable cause has been correctly dismissal of the judge.
discharged by the prosecutor is a matter that the trial
court itself does not and may not pass upon.  What is the difference between preliminary
investigation conducted by the prosecutor and one
 Is the finding of a judge that probable cause conducted by the judge?
exists for the purpose of issuing a warrant of arrest The prosecutor is not bound by the designation of the
subject to judicial review? offense in the complaint. After preliminary investigation,
No. It would be asking the court to examine and assess he may file any case as warranted by the facts. The judge
such evidence as has been submitted by the parties cannot change the charge in the complaint but must make
before trial and on the basis thereof, make a conclusion as a finding on whether or not the crime charged has been
whether or not it suffices to establish the guilt of the committed.
 If the investigating judge did not issue a warrant
 What is the remedy of the complainant if the for the arrest of the accused during the preliminary
Secretary of Justice does not allow the filing of a investigation, what is the remedy of the prosecutor
criminal complaint against the accused because of if he believes that the accused should be
insufficiency of evidence? immediately placed under custody?
He can file a civil action for damages against the offender He should file the information in court, so that the RTC
based on Article 35 of the Civil Code. This would require a may issue the warrant of arrest. He should not file for
mere preponderance of evidence. mandamus because that could take two years to resolve.

 What are the remedies of a party against whom a  What is a warrant of arrest?
warrant of arrest has been issued? A warrant of arrest is a legal process issued by competent
1. post bail authority, directing the arrest of a person or persons upon
2. ask for reinvestigation grounds stated therein.
3. petition for review
4. motion to quash the information  When may a warrant of arrest be issued?
5. if denied, appeal the judgment after trial
(no certiorari) By the RTC

 What is the procedure in resolving a complaint 1. Within 10 days from the filing of the complaint or
when the preliminary investigation is conducted by information, the judge shall personally evaluate
a judge? the resolution of the prosecutor and its
supporting evidence.
1. Within 10 days after the termination of the 2. He may immediately dismiss the case if the
preliminary investigation, the investigating judge evidence fails to establish probable cause.
shall transmit the resolution of the case to the 3. If he finds probable cause, he shall issue a
provincial or city prosecutor, or to the warrant of arrest or a commitment order if the
Ombudsman for appropriate action. accused has already been arrested by virtue of a
2. The resolution shall state the findings of fact and warrant issued by the MTC judge who conducted
law supporting his action together with the record the preliminary investigation or if he was
of the case which shall include: arrested by virtue of a lawful arrest without
a. the warrant if the arrest is by virtue of a 4. In case of doubt on the existence of probable
warrant cause, the judge may order the prosecutor to
b. the affidavits, counter-affidavits, and present additional evidence within 5 days from
supporting evidence notice and the issue must be resolved within 30
c. the undertaking or bail and the order of days from the filing of the complaint or
release information.
d. the transcripts of the proceedings
e. the order of cancellation of the bail bond By the MTC
if the resolution is for the dismissal of
the complaint 1. If the preliminary investigation was conducted by
a prosecutor, same procedure as above
3. Within 30 days from the receipt of the records, 2. If the preliminary investigation was conducted by
the provincial or city prosecutor or the the MTC judge and his findings are affirmed by
the prosecutor, and the corresponding
information is filed, he shall issue a warrant of The complaint or information may be filed by a prosecutor
arrest. without need for a preliminary investigation provided an
3. However, without waiting for the conclusion of inquest proceeding has been conducted in accordance with
the investigation, he may issue a warrant of existing rules. In the absence of an inquest prosecutor,
arrest if he finds after: the offended party or any peace officer may file the
complaint directly in court on the basis of the affidavit of
a. an examination in writing and under the offended party or peace officer.
oath of the complainant and his
witnesses  What is the remedy of the person arrested
b. in the form of searching questions and without warrant if he wants a preliminary
answers that probable cause exists AND investigation?
that there is a necessity of placing the
accused under immediate custody in Before the complaint or information is filed, he may ask
order not to frustrate the ends of for one provided that he signs a waiver of his rights under
justice. Article 125 of the RPC in the presence of counsel. He may
still apply for bail in spite of the waiver. The investigation
 What are the kinds of offenses that may be filed must be terminated within 15 days.
with the MTC for preliminary investigation?
1. Those which are cognizable by the RTC After the complaint of information is filed but before
2. Those cognizable by the MTC where the penalty arraignment, the accused may, within 5 days from the
is at least 4 years, 2 months, and 1 day time he learns of his filing, ask for a preliminary
regardless of the fine investigation.

 When is a warrant of arrest not necessary?  What is an inquest?

1. When the accused is already under detention An inquest is an informal and summary investigation
issued by the MTC conducted by a public prosecutor in a criminal case
2. When the accused was arrested by virtue of a involving persons arrested and detained without the
lawful arrest without warrant benefit of a warrant of arrest issued by the court for the
3. When the penalty is a fine only purpose of determining whether said persons should
remain under custody and correspondingly charged in
 Are “John Doe” warrants valid? court.

Generally, John Doe warrants are void because  What are the guidelines to safeguard the rights of
they violate the constitutional provision that requires that an accused who has been arrested without a
warrants of arrest should particularly describe the person warrant?
or persons to be arrested. But if there is sufficient
description to identify the person to be arrested, then the 1. The arresting officer must bring the arrestee
warrant is valid. before the inquest fiscal to determine whether
the person should remain in custody and charged
 What are the principles governing the finding of in court or if he should be released for lack of
probable cause for the issuance of a warrant of evidence or for further investigation.
arrest? 2. The custodial investigation report shall be
reduced to writing, and it should be read and
1. There is a distinction between the objective of adequately explained to the arrestee by his
determining probable cause by the prosecutor counsel in the language or dialect known to him.
and by the judge. The prosecutor determines it
for the purpose of filing a complaint or  What is the procedure in cases not requiring a
information, while the judge determines it for the preliminary investigation?
purpose of issuing a warrant of arrest – whether
there is a necessity of placing him under 1. If filed with the prosecutor, the prosecutor shall
immediate custody in order not to frustrate the act on the complaint based on the affidavits and
ends of justice. other supporting documents submitted by the
2. Since their objectives are different, the judge complainant within 10 days from its filing.
should not rely solely on the report of the 2. If filed with the MTC:
prosecutor in finding probable cause to justify the
issuance of a warrant of arrest. The judge must a. If within 10 days from the filing of the
decide independently and must have supporting complaint or information, the judge finds
evidence other than the prosecutor’s bare report. no probable cause after personally
3. It is not required that the complete or entire examining the evidence in writing and
records of the case during the preliminary under oath of the complainant and his
investigation be submitted to and examined by witnesses in the form of searching
the judge. He must have sufficient supporting questions and answers, he shall dismiss
documents upon which to make his independent the complaint or information.
judgment. b. He may require the submission or
additional evidence, within 10 days from
 How should the complaint or information be filed notice. If he still finds no probable
when the accused is lawfully arrested without cause, he shall dismiss the case.
warrant? c. If he finds probable cause, he shall issue
a warrant of arrest or a commitment
order and hold him for trial. If he thinks
that there is no necessity for placing the  What if the officer merely peeks through the
accused under custody, he may issue window of the house and sees the drugs – can he
summons instead. confiscate them? Can he use them as evidence?

RULE 113 ARREST He can confiscate them, without prejudice to his liability
for violation of domicile. He cannot use them as evidence
 What is arrest? because the seizure cannot be justified under the plain
Arrest is the taking of a person into custody in order that view doctrine, there being no previous valid intrusion.
he may be bound to answer for the commission of an
offense.  When should an arrest be made?

 How is an arrest made? It can be made on any day and at any time of the day and
Arrest is made by an actual restraint of the person to be night.
arrested or by his submission to the custody of the person
making the arrest.  Can an officer arrest a person against whom a
warrant has been issued even if he does not have
 What does it mean when jurisprudence says that the warrant with him?
the officer, in making the arrest, must “stand his
ground”? Yes, but after the arrest, if the person arrested requires, it
It means that the officer may use such force as is must be shown to him as soon as practicable.
reasonably necessary to effect the arrest.
 What is the duty of the arresting officer who
arrests a person?  What is bail?
He must deliver the person immediately to the nearest jail Bail is the security given for the release of a person in
or police station. custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required.
 Within what period must a warrant of arrest be
served?  What are the forms of bail?
There is no time period. A warrant of arrest is valid until Bail may be in the form of:
the arrest is effected or until it is lifted. The head of the
office to whom the warrant was delivered must cause it to 1. corporate surety
be executed within 10 days from its receipt, and the 2. property bond
officer to whom it is assigned for execution must make a 3. cash deposit
report to the judge who issued it within 10 days from the 4. recognizance
expiration of the period. If he fails to execute it, he
should state the reasons therefor.  What is recognizance?

 When is an arrest without warrant lawful? Recognizance is an obligation of record, entered into
before a court or magistrate duly authorized to take it,
A peace officer or private person may arrest without with the condition to do some particular act, the most
warrant: usual condition in criminal cases being the appearance of
the accused for trial.
1. When in his presence, the person to be arrested
has committed, is actually committing, or is  When is bail a matter of right and when is it a
about to commit an offense; matter of discretion?
2. When an offense has just been committed, and
he has probable cause based on personal In the MTC, it is a matter of right before or after
knowledge of facts and circumstances that the conviction, regardless of the offense.
person to be arrested has committed it; and
3. When the person to be arrested is a prisoner who In the RTC, it is a matter of right before conviction, except
has escaped from a penal establishment or place for offenses punishable by death, reclusion perpetua, or
where he is serving final judgment or is life sentence and the evidence of guilt is strong, in which
temporarily confined while his case is pending or case it is discretionary. After conviction, bail is a matter
has escaped while being transferred from one of discretion regardless of the offense. The application for
confinement to another. bail may be filed and acted upon by the trial court as long
as the original record of the case has not been transmitted
 A police officer was chasing a person who had to the appellate court. However, if the decision of the trial
just committed an offense. The person went inside court changed the nature of the offense from non-bailable
a house, so the police officer followed. Inside the to bailable, the application should be addressed and
house, the police officer saw drugs lying around. resolved by the appellate court.
Can he confiscate the drugs? Can he use them as
evidence?  When can the prosecution move for the
cancellation or denial of bail of the accused?
Yes. The plain view doctrine is applicable in this case
because there was a prior valid intrusion, the police officer If the penalty imposed by the trial court is imprisonment
inadvertently discovered the evidence, he had a right to greater than 6 years, the prosecution may move for denial
be there, and the evidence was immediately apparent. or cancellation of the bail of the accused, with notice to
the accused, upon showing of the following
1. That he is a recidivist, quasi-recidivist, habitual 10. Pendency of other cases where the accused is on
delinquent, or committed the offense with the bail
aggravating circumstance of reiteracion.
2. The he has previously escaped from legal  Where should bail be filed?
confinement, evaded sentence, or violated the
conditions of his bail without valid justification. It may be filed with the court where the case is pending.
3. That he committed the offense while on In the absence of the judge thereof, bail may be filed with
probation, parole or conditional pardon any RTC or MTC judge in the province, city, or
4. That the circumstances of his case indicate the municipality. If the accused is arrested in a province, city,
probability of flight if released on bail; or or municipality other than where the case is pending, bail
5. That there is undue risk that he may commit may also be filed with and RTC of said place, or if no
another crime during the pendency of the appeal. judge is available, with any MTC judge therein.

 When is a bail hearing necessary? But where bail is a matter of discretion or where the
Bail hearing is mandatory when bail is a matter of accused seeks to be released on recognizance, bail may
discretion. It is incumbent upon the prosecution to show only be filed in the court where the case is pending.
that the evidence of guilt is strong. Even if the
prosecution is absent or refuses to present evidence, the Any person in custody who is not yet charged may apply
court cannot grant bail without conducting a hearing. The for bail with any court in the province, city or municipality
court must first be convinced that the evidence does not where he is held.
warrant the denial of bail.
 What is the remedy of the accused if he is denied
 What is required of the judge who denies an bail?
application for bail? He should file a special civil action in the CA, not the SC
The order should contain a summary of the evidence within 60 days.
presented and the reason for the denial, otherwise it shall
be void. This is in order to safeguard the constitutional  Does an application for bail bar the accused from
right to presumption of innocence and also because there questioning the validity or his arrest, the validity of
is a need for clear grounds before a person can be denied the warrant, or the manner of conducting the
of his liberty. preliminary investigation?

 If there is a likelihood that the accused would No, provided that he raises these questions before plea.
jump bail, what should the court do?

1. Increase the amount of bail

2. Require periodic reports of the accused to court
3. Warn him that the trial may proceed in absentia RULE 115 RIGHTS OF THE ACCUSED

 What is a capital offense?

A capital offense is an offense which, under the law
existing at the time of its commission and of the
application for admission to bail, may be punished with  What are the rights of the accused in criminal prosecutions?

 What are the duties of the trial judge in case an

application for bail is filed? 1. To be presumed innocent until the contrary is proved beyond
reasonable doubt;
1. Notify the prosecutor of the hearing or require 2. To be informed of the nature and cause of the accusation
him to submit his recommendation against him;
2. Conduct a hearing 3. To be present and defend in person and by counsel at every
3. Decide whether the evidence of guilt is strong stage of the proceedings, from arraignment to promulgation
based on the summary of evidence of the of judgment;
prosecution 4. To testify as a witness in his own behalf but subject to cross-
4. If the guilt of the accused is not strong, discharge examination on matters covered by direct examination;
the accused upon the approval of the bailbond. 5. To be exempt from being compelled to be a witness against
If evidence of guilt is strong, the petition should himself;
be denied. 6. To confront and cross-examine the witnesses against him at
the trial;
 What are the guidelines in setting the amount of 7. To have compulsory process issued to secure the attendance
bail? of witnesses and production of other evidence in his behalf;
8. To have a speedy, impartial, and public trial;
1. Financial ability of the accused 9. To appeal in all cases allowed and in the manner prescribed
2. Nature and circumstances of the offense by law.
3. Penalty for the offense
4. Character and reputation of the accused
5. Age and health of the accused Due Process
6. Weight of evidence against the accused
7. Probability of the accused appearing at the trial
8. Forfeiture of other bail
 What are the two aspects of the right to due process?
9. The fact that he was a fugitive from the law when
 What are the exceptions to the constitutional
presumption of innocence?
1. Substantive due process – this refers to the intrinsic validity
of the law 1. Presumptions – If there is a reasonable
2. Procedural due process – one that hears before it condemns, connection between the fact presumed and the
proceeds upon inquiry, and renders judgment only after trial fact ultimately proven from such fact
and based on the evidence presented therein. Examples:
a. When an accountable public officer fails
to account for funds or property that
 Is it necessary to have trial-type proceedings in order to satisfy the should be in his custody, he is presumed
to be guilty of malversation;
requirement of due process?
b. Persons in possession of recently stolen
goods are presumed guilty of the
offense in connection with the goods.

No. There is no need for trial-type proceedings in order to 2. Self-Defense – One who invokes self-defense is
satisfy due process. What is important is that there was presumed guilty. The burden of proving the
an opportunity to be heard. Notice and hearing are the elements of self-defense (unlawful aggression,
minimum requirements of due process. reasonable necessity of the means used to
prevent or repel it; lack of sufficient provocation
on the part of the one defending himself) belongs
 In general, what are the requirements of procedural due process? to the accused.

 What is a “reverse trial”?

Usually, the prosecution presents its evidence to establish
1. There must be an impartial and competent court with judicial the guilt of the accused first. But a reverse trial happens
power to hear and determine the matter before it; if the accused admits the killing but claims self-defense.
2. Jurisdiction must be lawfully acquired over the person of the He must first establish the elements of self-defense in
defendant or over the property subject of the proceeding; order to overturn the presumption that he was guilty of
the offense.
3. The defendant must be given an opportunity to be heard;
Right to be present at the trial
4. Judgment must be rendered upon lawful hearing.
 What are the requisites of a valid trial in
 In criminal cases, what are the requirements of procedural due
process? 1. The accused has already been arraigned;
2. He has been duly notified of the trial
3. His failure to appear at the trial is unjustifiable.

The requirements in criminal cases are more stringent.  Can the right to be present at the trial be waived?
They are:
Yes, except in the following situations, where the presence
of the accused at the trial is required:
1. The accused must have been heard by a court of competent
jurisdiction; 1. Arraignment;
2. He must have been proceeded against under orderly 2. During promulgation of judgment, except if it is
processes of the law; for a light offense;
3. He may be punished only after inquiry and investigation; 3. When the presence of the accused at the trial is
4. There must be notice to the accused; necessary for purposes of identification, unless
5. The accused must be given an opportunity to be heard; he admits beforehand that he is the same person
6. Judgment must be rendered within the authority of a charged.
constitutional law.
Right to Counsel

 Is there a difference between the right to counsel

Presumption of Innocence during custodial investigation and the right to
counsel during the trial?

 What is the meaning of the right of presumption of innocence? Yes. In custodial investigation, the right to counsel can
only be waived in writing AND with the assistance of
counsel. The counsel required in custodial investigation is
competent and independent counsel, preferably of his own
The right means that the presumption must be overcome (the suspect’s) choice.
by evidence of guilt beyond reasonable doubt. Guilt
beyond reasonable doubt means that there is moral During the trial, the right to counsel means the right to
certainty as to the guilt of the accused. Conviction should effective counsel.
be based on the strength of the prosecution and not on
the weakness of the defense. The significance of this is The requirement is stricter during custodial investigation
that accusation is not synonymous with guilt. because a trial is done in public, while custodial
investigation is not. The danger that confessions will be
extracted against the will of the defendant during  What is the scope of the right against self-
custodial investigation does not really exist during trial. incrimination?

During trial the purpose of counsel is not so much to The right against self-incrimination covers testimonial
protect him from being forced to confess but to defend the compulsion only and the compulsion to produce
accused. incriminating documents, papers, and chattels. It does
not cover the compulsion to produce real or physical
Why is the right to counsel afforded during trial? evidence using the body of the accused.
The right to counsel is embraced in the right to be heard.
 Is there an exception to the right against self-
 When should the right to counsel be invoked? incrimination?

The right to counsel may be invoked at any stage of the The right cannot be invoked when the State has the right
proceedings, even on appeal. However, it can also be to inspect documents under its police power, such as
waived. The accused is deemed to have waived his right documents of corporations.
to counsel when he voluntarily submits himself to the
jurisdiction of the Court and proceeds with his defense.  What is the rationale for protecting the right
against self-incrimination?
But in US v. Escalante and People v. Nang Kay (p. 532 of
Herrera Textbook), the Court held that the defendant There are two reasons:
cannot raise the question of his right to have an attorney
for the first time on appeal. If the question is not raised 1. For humanitarian reasons: To prevent the State,
in the trial court, the prosecution may go to trial. The with all its coercive powers, from extracting
question will not be considered in the appellate court for testimony that may convict the accused.
the first time when the accused fails to raise it in the 2. For practical reasons: The accused is likely to
lower court. commit perjury if he were compelled to testify
against himself.
Is the duty of the court to appoint counsel-de-
oficio mandatory at all times?  Who may invoke the right against self-
No. The duty to appoint counsel-do-oficio is mandatory incrimination, and when can they invoke the right?
only up to arraignment.
1. An ordinary witness may invoke the right, but he
 Does the mistake of counsel bind the client? may only do so as each incriminating question is
As a rule, the mistake of counsel binds the client. 2. The accused himself may invoke the right, and
Therefore, the client cannot question a decision on the unlike the ordinary witness, he may altogether
ground that counsel was an idiot. However, an exception refuse to take the witness stand and refuse to
to this is if counsel misrepresents himself as a lawyer, and answer any and all questions.
he turns out to be a fake lawyer. In this case, the
accused is entitled to a new trial because his right to be But, once the accused waives his right and
represented by a member of the bar was violated. He was chooses to testify in his own behalf, he may be
thus denied of his right to counsel and to due process. cross-examined on matters covered in his direct
examination. He cannot refuse to answer
 Is the right to counsel absolute? questions during cross-examination by claiming
that the answer that he will give could
No. The right of choice must be reasonably exercised. incriminate him for the crime with which he was
The accused cannot insist on counsel that he cannot charged.
afford, one who is not a member of the bar, or one who
declines for a valid reason, such as conflict of interest. However, if the question during cross-
Also, the right of the accused to choose counsel is subject examination relates to a crime different from that
to the right of the state to due process and to speedy and with which he was charged, he can still invoke
adequate justice. the right and refuse to answer.

 When can the accused defend himself in person?  Can the accused or witness invoke the right
The accused can defend himself in person only if the court against self-incrimination if he is asked about past
is convinced that he can properly protect his rights even criminality?
without the assistance of counsel.
Right to be a Witness on His Own Behalf It depends. If he can still be prosecuted for it, questions
about past criminal liability are still covered by the
 What is the weight of the testimony of an accused protection of the right against self-incrimination. But if he
who testifies on his own behalf but refuses to be cannot be prosecuted for it anymore, he cannot invoke the
cross-examined? right.

The testimony will not be given weight. It will not have

probative value because the prosecution was not given a  What are the rights of the accused in the matter of testifying or
chance to test the credibility of the testimony through producing evidence?

Right Against Self-Incrimination

1. Before the case is filed in Court but after he has been taken 2. If the defense of the accused is alibi and he does not testify,
into custody or otherwise deprived of his liberty the inference is that the alibi is not believable.

a. the right to be informed of  Is DNA testing covered by the right against self-incrimination?
b. his right to remain silent and to counsel
c. the right not to be subjected to force, violence, threat, No (recent SC ruling).
intimidation, or any other means which vitiate free will
d. the right to have evidence obtained in violation of
these rights rejected Right of Confrontation

2. After the case is filed in court  What is the meaning of the right of confrontation?

a. to refuse to be a witness
b. not to have any prejudice whatsoever result to him by
It means that the accused can only be tried using those
such refusal
witnesses that meet him face to face at the trial who give
c. to testify in his own behalf subject to cross-
testimony in his presence, with the opportunity to cross-
examination by the prosecution
examine them.
d. while testifying, to refuse to answer a specific question
 What are the reasons for the right?
which tends to incriminate his for some crime other
than that for which he is being prosecuted.

 What are immunity statutes? 1. To allow the court to observe the demeanor of the witness
while testifying.
2. To give the accused the opportunity to cross-examine the
witness in order to test their recollection and credibility.

The immunity statutes are classified into two – use

immunity statutes and transactional immunity statutes.
 Can the right of confrontation be waived?

Use immunity prohibits the use of a witness’ compelled testimony and

its fruits in any manner in connection with the criminal prosecution of
Yes, it can be waived either expressly or impliedly. It is
the witness. (Therefore, the witness can still be prosecuted, but the
waived impliedly when an accused waives his right to be
compelled testimony cannot be used against him.) present at the trial. The right of confrontation may also
be waived by conduct amounting to a renunciation of the
right to cross-examine. When the party was given an
opportunity to confront and cross-examine an opposing
Transactional immunity grants immunity to the witness from witness but failed to take advantage of it for reasons
prosecution for an offense to which his compelled testimony relates. attributable to himself alone, he is deemed to have waived
(Here, the witness cannot be prosecuted at all.) Examples are state the right.
witnesses and those who furnish information about violations of the
 What happens to the testimony of a witness who
Internal Revenue Code, even if they themselves offered bribes to the dies or becomes unavailable?
public official.
It depends. If the other party had the opportunity to
cross-examine the witness before he died or became
unavailable, the testimony may be used as evidence.
 What is the effect of the refusal of the accused to refuse to testify in However, if the other party did not even have the
his behalf? opportunity to cross-examine before the subsequent death
or unavailability of the witness, the testimony will have no
probative value. (An opportunity to cross-examine is all
that is necessary in order to allow the use of the
testimony of the witness. There need not be an actual
As a general rule, the silence of the accused should not cross-examination, as long as there was an opportunity to
prejudice him. do so.)

Right to Compulsory Process

However, in the following cases, an unfavorable inference is drawn from
the failure of the accused to testify:  What is the right to compulsory process?
It is the right of the accused to have a subpoena and/or a
subpoena duces tecum issued in his behalf in order to
compel the attendance of witnesses and the production of
other evidence.
1. If the prosecution has already established a prima facie case,
the accused must present proof to overturn the evidence of
 What happens if a witness refuses to testify when
the prosecution.
The court should order the witness to give bail or even The trial should be public in order to prevent abuses that
order his arrest, if necessary. Failure to obey a subpoena may be committed by the court to the prejudice of the
amounts to contempt of court. defendant. Moreover, the accused is entitled to the moral
support of his friends and relatives.
Right to Speedy, Public, and Impartial Trial

 How should the trial be conducted?  Is there an exception to the requirement of publicity?
The trial should be speedy, public, and impartial.
Yes. The court may bar the public in certain cases, such
 What is the meaning of the right to speedy trial? as when the evidence to be presented may be offensive to
The right means that the trial should be conducted decency or public morals, or in rape cases, where the
according to the law of criminal procedure and the rules purpose of some persons in attending is merely to ogle at
and regulations, free from vexations, capricious, and the parties.
oppressive delays.

 When should the arraignment and pre-trial be

 Is it okay to hold the trial in the chambers of the judge?
According to the Speedy Trial Act and Circular 38-98,
arraignment and pre-trial if the accused pleads not guilty Yes. There is no violation of the right to a public trial,
should be held within 30 days from the date the court since the public is not excluded from attending the trial.
acquires jurisdiction of the person of the accused.
 In so-called trials by publicity, when can the publicity be considered
 Within how many days should the trial be prejudicial to the accused?
In no case shall the entire period exceed 180 days from To warrant a finding of prejudicial publicity, there must be allegations
the first day of trial, except as otherwise authorized by the and proof that the judges have been unduly influenced, not simply that
Court Administrator. they might be, by the barrage of publicity.

 What is the remedy of an accused whose right to

speedy trial is violated?

The accused has the following remedies: Right to Appeal, When Allowed
1. File a motion to dismiss on the ground of
violation of his right to speedy trial. (For
purposes of double jeopardy, this has the same  Is the right to appeal a fundamental right?
effect as an acquittal.) This must be done prior
to trial, or else, it is deemed a waiver of the right
to dismiss.
2. File for mandamus to compel a dismissal of the No. The right to appeal is a statutory right, except in the
information. case of the minimum appellate jurisdiction of the Supreme
3. If he is restrained of his liberty, file for habeas Court granted by the Constitution. Anyone who seeks to
corpus. exercise the right to appeal must comply with the
4. Ask for the trial of the case. requirements of the rules.

 What is the limitation on the right of an accused

to a speedy trial?
 Can the right to appeal be waived?
The limitation is that the State should not be deprived of
its day in court. The right of the State/the prosecution to
due process should be respected. Yes, it can be waived expressly or impliedly.

The prosecution and the complainant fail to attend the first hearing.  What is the effect of the flight of the accused on his right to appeal?
The court postpones the hearing to another date. Is there a violation
of the right to speedy trial?

When the accused flees after the case has been submitted
No. The right to speedy trial is violated when there are
to the court for decision, he will be deemed to have
unjustified postponements of the trial, and a long period
waived his right to appeal from the judgment rendered
of time is allowed to elapse without the case being tried
against him.
for no justifiable reason.


What is the meaning of the right to a public trial?
 Where should the accused be arraigned?
It means that anyone interested in observing the manner The accused must be arraigned before the court where the
that a judge conducts the proceedings in his courtroom complaint was filed or assigned for trial.
may do so.
 How is arraignment made?

 Why should a trial be conducted in public? Arraignment is made:

No. The judge has no obligation to point out the
1. in open court duplicitousness or any other defect in an information
2. by the judge or clerk during arraignment. The obligation to move to quash a
3. by furnishing the accused with a copy of the defective information belongs to the accused, whose
complaint or information failure to do so constitutes a waiver of the right to object.
4. reading it in the language or dialect known to
him, and  X was tried for murder without having been
5. asking him whether he pleads guilty or not guilty. arraigned. At the trial, X’s counsel presented
witnesses and cross-examined the prosecution
 Can there be an arraignment without the presence witnesses. It was only after the case was submitted
of the accused? for decision that X was arraigned. X was convicted.
No. The accused must be present at the arraignment and Can X invoke the failure of the court to arraign him
must personally enter his plea. before trial as a ground for questioning the
 What is the effect of the refusal of the accused to conviction?
enter a plea?
If the accused refuses to plead or makes a conditional No. The failure of the court to arraign X before trial was
plea, a plea of not guilty shall be entered for him. conducted did not prejudice the rights of X since he was
able to present evidence and cross-examine the witnesses
 X is charged with homicide. He pleads guilty but of the prosecution. The error was cured by the
presents evidence to establish self-defense. What subsequent arraignment.
should the court do?
The court should withdraw the plea and enter a plea of not  Is the accused presumed to have been arraigned
guilty. in the absence of proof to the contrary?

 When should the arraignment be held? Yes. In view of the presumption of regularity in the
performance of official duties, it can be presumed that a
The general rule is that the accused should be arraigned person accused of a crime was arraigned, in the absence
within 30 days from the date the court acquires of proof to the contrary. However, the presumption of
jurisdiction over the person of the accused. The time of regularity is not applied when the penalty imposed is
the pendency of a motion to quash or for a bill of death. When the life of a person is at stake, the court
particulars or other causes justifying suspension of the cannot presume that there was an arraignment; it has to
arraignment shall be excluded in computing the period. be sure that there was one.

However, in the following cases, the accused should be  Is the accused entitled to know in advance the
arraigned with a shorter period: names of all of the prosecution witnesses?
No. The success of the prosecution might be endangered
1. Where the complainant is about to depart from if this right were granted to the accused. The witnesses
the Philippines with no definite date of return, the might be subjected to pressure or coercion. The right
accused should be arraigned without delay and time for the accused to know their identities is when they
his trial should commence within 3 days from take the witness stand.
2. The trial of cases under the Child Abuse Act  Can the prosecution call witnesses that are not
requires that the trial should be commenced listed in the information?
within 3 days from arraignment. Yes. The prosecution may call at the trial witnesses other
3. When the accused is under preventive detention, than those named in the complaint or information.
his case shall be raffled and its records
transmitted to the judge to whom the case was  X was charged with homicide. He entered a plea
raffled within 3 days from the filing of the of guilty. He was later allowed to testify in order to
information or complaint. The accused shall be prove the mitigating circumstance of incomplete
arraigned within 10 days from the date of the self-defense. At the trial, he presented evidence to
raffle. prove that he acted in complete self-defense. The
court acquitted him. Later, X was again charged
 Can the lawyer of the accused enter a plea for with physical injuries. X invoked double jeopardy.
him? Can X be prosecuted again for physical injuries?
No. The accused must personally enter his plea. Yes. There was no double jeopardy. In order for double
jeopardy to attach, there must have been a valid plea to
 What is the importance of arraignment? the first offense. In this case, the presentation by X of
evidence to prove complete self-defense had the effect of
Arraignment is the means for bringing the accused into vacating his plea of guilt. When the plea of guilt was
court and informing him of the nature and cause of the vacated, the court should have ordered him to plead
accusation against him. During arraignment, he is made again, or at least should have directed that a new plea of
fully aware of possible loss of freedom or life. He is not guilty be entered for him. Because the court did not
informed why the prosecuting arm of the State is do this, at the time of the acquittal, there was actually no
mobilized against him. It is necessary in order to fix the standing plea for X. Since there was no valid plea, there
identity of the accused, to inform him of the charge, and can be no double jeopardy.
to give him an opportunity to plead.  Can a person who pleaded guilty still be
 During the arraignment, is the judge duty-bound
to point out that an information is duplicitous? Yes. When an accused pleads guilty, it does not
necessarily follow that he will be convicted. Additional
evidence independent of the guilty plea may be
considered by the judge to ensure that the plea of guilt  Is it mandatory for the prosecution to present
was intelligently made. The totality of evidence should proof of aggravating circumstances?
determine whether the accused should be convicted or Yes. It is mandatory in order to establish the precise
acquitted. degree of culpability and the imposable penalty.
Otherwise, there is an improvident plea of guilty.
 When can the accused plead guilty to a lesser
offense?  Can a court validly convict an accused based on
an improvident plea of guilty?
At arraignment, the accused may plead guilty to a lesser Yes. If there is adequate evidence of the guilt of the
offense which is necessarily included in the offense accused independent of the improvident plea of guilty, the
charged, provided that the offended party and the court may still convict the accused. The conviction will be
prosecutor give their consent. set aside only if the plea of guilt is the sole basis of the
After arraignment BUT BEFORE TRIAL, the accused may
still be allowed to plead guilty to a lesser offense, after he  What should the court do when the accused
withdraws his plea of not guilty. In such a case, the pleads guilty to a non-capital offense?
complaint or information need not be amended. The court may receive evidence from the parties to
determine the penalty to be imposed. Unlike in a plea of
When the penalty imposable for the offense is at least 6 guilty to a capital offense, the reception of evidence in this
years and 1 day or a fine exceeding P12,000, the case is not mandatory. It is merely discretionary on the
prosecutor must first submit his recommendation to the court.
City or Provincial Prosecutor or to the Chief State
Prosecutor for approval. If the recommendation is  When can the validity of a plea of guilty be
approved, the trial prosecutor may then consent to the attacked?
plea of guilty to a lesser offense. Generally, a plea of guilty cannot be attacked if it is made
voluntarily and intelligently. It can only be attacked if it
 What should the court do when the accused was induced by threats, misrepresentation, or bribes.
pleads guilty to a capital offense? When the consensual character of the plea is called into
question or when it is shown that the defendant was not
The court should: fully apprised of its consequences, the plea can be
1. conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of  Can an improvident plea of guilty be withdrawn as
the plea. a matter of right?
2. require the prosecution to present evidence to No. The withdrawal of the plea of guilty is not a matter of
prove the guilt and the precise degree of strict right to the accused but is within the discretion of
culpability of the accused for the purpose of the court. The reason for this is that trial has already
imposing the proper penalty. commenced; withdrawal of the plea will change the theory
3. ask the accused if he desires to present evidence of the case and will put all of the past proceedings to
in his behalf and allow him to do so if he desires. waste. Therefore, it may only be withdrawn with
permission of the court.
 Does a plea of guilty mean an admission even of
the aggravating circumstances? Moreover, there is a presumption that the plea was made
Yes. A plea of guilty results in the admission of all the voluntarily. The court must decide whether the consent of
material facts in the complaint or information, including the accused was, in fact, vitiated when he entered his
the aggravating circumstances. Because of this, the court plea.
should only accept a clear, definite, and unconditional plea
of guilty.  X is charged with homicide. He pleads guilty, but
tells the judge “hindi ko sinasadya.” Is his plea
 When can the plea of guilty be considered a valid?
mitigating circumstance? No. In order to be valid, the plea of guilty must be
It is mitigating if made before the prosecution starts to unconditional. In this case, when X said “hindi ko
present evidence. sinasadya,” he made a qualified plea of guilty. This is not
a valid plea of guilty. A plea of not guilty should be
 What is the meaning of the duty of the judge to entered instead.
conduct a “searching inquiry”?  When a defendant appears without an attorney
during arraignment, what should the court do?
In all cases, the judge must convince himself: (1) that the The court has a four-fold duty:
accused is entering the plea of guilty voluntarily and 1. It must inform the defendant that he has a right
intelligently; and (2) that he is truly guilty and that there to an attorney before being arraigned;
exists a rational basis for a finding of guilt based on his 2. After informing him, the court must ask the
testimony. defendant if he desires to have the aid of an
In addition, the judge must inform the accused of the 3. If he desires and is unable to employ an
exact length of imprisonment and the certainty that he attorney, the court must assign an attorney de
will serve it at the national penitentiary or a penal colony. oficio to defend him;
The judge must dispel any false notion that the accused 4. If the accused desires to procure an attorney of
may have that he will get off lightly because of his plea of his own, the court must grant him a reasonable
guilt. time therefor.

 What is the reason for this four-fold duty?

The right to be heard would be of little avail if it does not informs his custodian that he demands such trial,
include the right to be heard by counsel. the latter shall cause notice to that effect to be
sent promptly to the public attorney.
 What is the effect of the failure of the court to 3. Upon receipt of such notice, the public attorney
comply with these duties? shall promptly seek to obtain the presence of the
It is a violation of due process. prisoner for trial.
4. When the person having custody of the prisoner
 What is a counsel de oficio? receives from the public attorney a properly
Counsel de oficio is counsel appointed by the court to supported request for the availability of the
represent and defend the accused in case he cannot afford prisoner for purposes of the trial, the prisoner
to employ one himself. shall be made available accordingly.

 Who can be appointed as counsel de oficio?  What is a bill of particulars?

The court, considering the gravity of the offense and the It is a more specific allegation. A defendant in a criminal
difficulty of the questions that may arise shall appoint as case who believes or feels that he is not sufficiently
counsel de oficio: informed of the crime with which he is charged and not in
1. such members of the bar in good standing a position to defend himself properly and adequately could
2. who by reason of their experience and ability, move for a bill or particulars or specifications.
can competently defend the accused.  What is the purpose of a bill of particulars?
It is to allow the accused to prepare for his defense.
But, in localities where such members of the bar are not
available, the court may appoint any person who is:  When can the accused move for a bill of
1. a resident of the province particulars?
2. and of good repute for probity and ability to The accused must move for a bill of particulars before
defend the accused. arraignment. Otherwise, the right is deemed waived.

 What is the difference between the duty of the  What should be contained in the motion for a bill
court to appoint counsel de oficio during or particulars?
arraignment and during trial? It should specify the alleged defects of the complaint or
During arraignment, the court has the affirmative duty to information and the details desired.
inform the accused of his right to counsel and to provide
him with one in case he cannot afford it. The court must  What is the right to modes of discovery?
act on its own volition, unless the right is waived by the It is the right of the accused to move for the production or
accused. inspection or material evidence in the possession of the
prosecution. It authorizes the defense to inspect, copy, or
On the other hand, during trial, it is the accused who must photograph any evidence of the prosecution in its
assert his right to counsel. The court will not act unless possession after obtaining permission of the court.
the accused invokes his rights.
 What is the purpose of this right?
 Can a non-lawyer represent the accused during The purpose is to prevent surprise to the accused and the
arraignment? suppression or alteration of evidence.
No. During arraignment, it is the obligation of the court to
ensure that the accused is represented by a lawyer  Is this right available during preliminary
because it is the first time when the accused is informed investigation?
of the nature and cause of the accusation against him. Yes, when indispensable to protect his constitutional right
This is a task which only a lawyer can do. to life, liberty, and property. (Webb v. de Leon)

But during trial, there is no such duty. The accused must  What are the grounds for suspending
ask for a lawyer, or else, the right is deemed waived. He arraignment?
can even defend himself personally.
1. If the accused appears to be suffering from an
 May an accused be validly represented by a non- unsound mental condition, which renders him
lawyer at the trial? unable to fully understand the charge against him
If the accused knowingly engaged the services of the non- and to plead intelligently thereto. The court
lawyer, he is bound by the non-lawyer’s actions. But if he should order his mental examination and his
did not know that he was being represented by a non- confinement, if necessary.
lawyer, the judgment is void because of the 2. If there exists a prejudicial question.
misrepresentation. 3. If a petition for review of the resolution of the
prosecutor is pending either at the DOJ or the
 What are the duties of the pubic attorney if the Office of the President. However, the period of
accused assigned to him is imprisoned? suspension shall not exceed 60 days counted
from the filing of the petition for review.
1. He shall promptly undertake to obtain the
presence of the prisoner for trial, or cause a  What is the test to determine whether the
notice to be served on the person having custody insanity of the accused should warrant the
of the prisoner, requiring such person to advise suspension of the proceedings?
the prisoner of his right to demand trial. The test is whether the accused will have a fair trial with
2. Upon receipt of that notice, the person having the assistance of counsel, in spite of his insanity. Not
custody of the prisoner shall promptly advise the every aberration of the mind or exhibition of mental
prisoner of the charge and of his right to demand deficiency is sufficient to justify suspension.
trial. It at anytime thereafter, the prisoner
this rule are when the grounds invoked to quash the
information are extinction of criminal liability, prescription,
RULE 117 MOTION TO QUASH and former jeopardy. In these cases, additional facts are
 When can the accused file a motion to quash?  Can the accused move to quash on the ground
At any time before entering his plea, the accused may that he was denied due process?
move to quash the complaint or information. No. Denial of due process is not one of the grounds for a
motion to quash.
 What is the form required for a motion to quash?
 X filed a motion to quash on the following
1. It must be in writing. grounds: that the court lacked jurisdiction over the
2. It must be signed by the accused or his counsel. person of the accused and that the complaint
3. It must specify its factual and legal grounds. charged more than one offense. Can the court grant
the motion on the ground of lack of jurisdiction over
 Can the court dismiss the case based on grounds the person of the accused?
that are not alleged in the motion to quash? No. A motion to quash on the ground of lack of
As a general rule, no. The court cannot consider any jurisdiction over the person of the accused must be based
ground other than those stated in the motion to quash. only on this ground. If other grounds are included, there
The exception is lack of jurisdiction over the offense is a waiver, and the accused is deemed to have submitted
charged. If this is the ground for dismissing the case, it himself to the jurisdiction of the court.
need not be alleged in the motion to quash since it goes
into the very competence of the court to pass upon the  What is the effect of an information that was
case. signed by an unauthorized person?
It is a VALID information signed by a competent officer
 What are the grounds that the accused may which, among other requisites, confers jurisdiction over
invoke to quash a complaint or information? the person of the accused and the subject matter of the
accusation. Thus, an infirmity in the information such as
1. That the facts charged do not constitute an lack of authority of the officer signing it cannot be cured
offense; by silence, acquiescence, express consent, or even
2. That the court trying the case has no jurisdiction amendment.
over the offense charged;
3. That the court trying the case has no jurisdiction  What happens if the defendant enters his plea
over the person of the accused; before filing a motion to quash?
4. That the officer who filed the information had no By entering his plea before filing the motion to quash, the
authority to do so; defendant waives FORMAL objections to the complaint or
5. That it does not conform substantially to the information.
prescribed form;
6. That more than one offense is charged except But if the ground for the motion is any of the following,
when a single punishment for various offenses is there is no waiver. The ground may be raised at any
prescribed by law (duplicitous); stage of the proceeding:
7. That the criminal action or liability has been 1. failure to charge an offense
extinguished; 2. lack of jurisdiction over the offense
8. That it contains averments which, if true, would 3. extinction of criminal liability
constitute a legal excuse or justification; 4. double jeopardy
9. That the accused has been previously convicted
or acquitted of the offense charged, or the case  How is criminal liability extinguished?
against him was dismissed or otherwise Under Article 89 of the RPC, criminal liability is
terminated without his express consent. (double extinguished by:
jeopardy) 1. death of the convict, and as to pecuniary
penalties, liability therefor is extinguished only
 X filed a motion to quash an information on the when the death of the offender occurs before
ground that he was in the US when the crime final judgment;
charged was committed. Should the motion be 2. service of sentence;
granted? 3. amnesty;
The motion should be denied. The accused is already 4. absolute pardon;
making a defense. Matters of defense are generally not a 5. prescription of the crime;
ground for a motion to quash. They should be presented 6. prescription of the penalty;
at the trial. 7. marriage of the offended woman, as provided in
Article 344 of the RPC.
 What is meant by the statement that “a motion to
quash hypothetically admits allegations of fact in  X and Y were charged with adultery. While the
the information”? case was being tried, X died. What happens to the
criminal liability of X and Y?
It means that the accused argues that assuming that the The criminal liability of X is extinguished. The criminal
facts charged are true, the information should still be liability of Y subsists. The death of one of several accused
dismissed based on the ground invoked by the defendant. will not be a cause for dismissal of the criminal action as
Therefore, since the defendant assumes that the facts in against the other accused.
the information are true, only these facts should be taken
into account when the court resolves the motion to quash.  What is the effect of the death of the offended
Other facts, such as matters of defense, which are not in party on the criminal liability of the accused?
the information should not be considered. Exceptions to
Where the offense charged in a criminal complaint or However, where multiple rape is committed, marriage of
information is one against the state, involving peace and the offended party with one defendant extinguishes the
order, the death of the offended party before final latter’s liability and that of his accessories or accomplices
conviction of the defendant will not abate the prosecution. for a single crime of rape cannot extend to the other acts
Neither does the death of the offended party in private of rape.
crimes abate the prosecution.
 If the offender in rape is the legal husband of the
 What are the means by which criminal liability is offended party, how can the husband’s criminal
partially extinguished? liability be extinguished?
1. Conditional pardon The subsequent forgiveness by the wife shall extinguish
2. Commutation of sentence the criminal action or the penalty. But the penalty shall
3. For good conduct, allowances which the culprit not be abated if the marriage is void ab initio.
may earn while he is serving his sentence
 Why is prescription a ground for a motion to
 What are the distinctions between pardon and quash?
amnesty? This is meant to exhort the prosecution not to delay;
otherwise, they will lose the right to prosecute. It is also
AMNESTY PARDON meant to secure the best evidence that can be obtained.
TYPE OF OFFENSE Political Infractions of the
offenses peace (common  What are the prescriptive periods of crimes?
persons Punishable by death, 20 years
CONCURRENCE Necessary Not necessary reclusion perpetua, or
OF CONGRESS reclusion temporal
ACCEPTANCE Beneficiary Need for distinct Punishable by other 10 years
need not acts of afflictive penalties
accept acceptance on Punishable by arresto 5 years
the part of the mayor
pardonee Libel or other similar 2 years
JUDICIAL NOTICE Courts take Courts do not offenses
judicial notice take judicial Oral defamation and 6 months
because it is a notice because it slander by deed
public act is a private act of Light offenses 2 months
the President.
Therefore, it  Can the accused still raise prescription as a
must be proved defense even after conviction? Can the defense of
in court. prescription be waived?
EFFECT Abolishes the Relieves the The accused can still raise prescription as a defense even
offense (looks offender from the after conviction. The defense cannot be waived. This is
backward) consequences of because the criminal action is totally extinguished by the
the offense expiration of the prescriptive period. The State thereby
(looks forward) loses or waives its right to prosecute and punish it.
WHEN IT MAY BE Before or after Only after
GRANTED prosecution conviction by  What is the proper action of the court when the
final judgment accused raises the defense of prescription?
 What is the effect of absolute pardon upon The proper action for the court is to exercise its
criminal liability? jurisdiction and to decide the case upon the merits,
Absolute pardon blots out the crime. It removes all holding the action to have prescribed and absolving the
disabilities resulting from the conviction, such as the defendant. The court should not inhibit itself because it
political rights of the accused. does not lose jurisdiction over the subject matter or the
person of the accused by prescription.
 What is the effect of pardon by the offended party
upon criminal liability?  What is the effect of prescription of the offense on
As a general rule, pardon by the offended party does not the civil liability of the accused?
extinguish criminal liability. Only civil liability is The extinction of the penal action does not carry with it
extinguished by express waiver of the offended party. the extinction of the civil action to enforce civil liability
arising from the offense charged, unless the extinction
However, pardon granted before the institution of the proceeds from a declaration in a final judgment that the
criminal proceedings in cases of adultery, concubinage, fact from which the civil liability might arise did not exist.
seduction, abduction, and acts of lasciviousness shall
extinguish criminal liability.  What should the court do if the accused moves to
quash the complaint or information on grounds that
 What is the effect of marriage of the offender with can be cured by amendment (ex: duplicitous)?
the offended party in private crimes? The court should order that the amendment be made.
It shall extinguish the criminal action or remit the penalty
already imposed. This applies even to co-principals,  What should the court do if the accused moves to
accomplices, and accessories. quash on the ground that the facts charged do not
constitute an offense?
The court should give the prosecution the opportunity to the complaint should have been filed in Makati, it
correct the defect by amendment. If the prosecution fails filed the case in Makati. Can the accused invoke
to make the amendment, or if, after it makes the double jeopardy?
amendment, the complaint or information still suffers from
the same defect, the court should grant/sustain the No. The court in Pasay had no jurisdiction; therefore, the
motion to quash. accused was in no danger of being placed in jeopardy.
The first jeopardy did not validly attach.
 What is the effect if a motion to quash is
sustained?  For purposes of double jeopardy, when is a
The court may order that another complaint or complaint or information valid?
information be filed against the accused for the same
offense, except if the ground for sustaining the motion to A complaint or information is valid if it can support a
quash is either: judgment of conviction. It the complaint or information is
1. extinguishment of the criminal liability of the not valid, it would violate the right of the accused to be
accused, or informed of the nature and cause of the accusation
2. double jeopardy. against him. If he is convicted under this complaint or
information, the conviction is null and void. If the
The grant of a motion to quash on these two grounds is a conviction is null and void, there can be no first jeopardy.
bar to another prosecution for the same offense.
If the order is made, the accused, if in custody, shall not  X was charged with qualified theft. X moved to
be discharged unless admitted to bail. dismiss on the ground of insufficiency of the
information. The case was dismissed.
If no order is made, or if no new information was filed Subsequently, the prosecution filed a corrected
within the time specified by the court, the accused, if in information. Can X plead double jeopardy?
custody, shall be discharged.
No. The first jeopardy did not attach because the first
 What is the remedy of the accused if the court information was not valid.
denies his motion to quash?
The accused cannot appeal an order overruling his motion  X was charged with theft. During the trial, the
to quash. This is because an order denying a motion to prosecution was able to prove estafa. X was
quash is interlocutory; it does not dispose of the case acquitted of theft. Can X be prosecuted for estafa
upon its merits. The accused should go to trial and raise later without placing him in double jeopardy?
it as an error on appeal later.
Yes. For jeopardy to attach, the basis is the crime
 What are the two kinds of jeopardy? charged in the complaint or information, and not the one
proved at the trial. In this case, the crime charged in the
1. No person shall be twice put in jeopardy for the first information was theft. X was therefore placed in
same offense. jeopardy of being convicted of theft. Since estafa is not
an offense which is included or necessarily includes theft,
2. When an act is punished by a law and an X can still be prosecuted for estafa without placing him in
ordinance, conviction or acquittal under either double jeopardy.
shall constitute a bar to another prosecution for
the same act.  The estafa case against X was dismissed, but the
dismissal contained a reservation of the right to file
 What are the requisites for the accused to raise another action. Can another estafa case be filed
the defense of double jeopardy? against X without placing him in double jeopardy?

To raise the defense of double jeopardy, the following Yes. To raise the defense of double jeopardy, the firs
requisites must be present: jeopardy must have been validly terminated. This means
1. a first jeopardy must have attached prior to the that there must have been either a conviction or an
second; acquittal, or an unconditional dismissal of the case. A
2. the first jeopardy must have been validly provisional dismissal, such as this one, does not validly
terminated; terminate the first jeopardy.
3. the second jeopardy must be for the same
offense or the second offense includes or is Note, however, that in the second kind of jeopardy (one
necessarily included in the offense charged in act punished by a law and an ordinance), the first
the first information, or is an attempt or a jeopardy can only be terminated either by conviction or
frustration thereof. acquittal, and not by dismissal of the case without the
express consent of the accused.
 What are the requisites for the first jeopardy to
attach?  X was charged with theft. On the day of the trial,
1. Valid complaint or information the prosecution could not go to trial because
2. Court of competent jurisdiction important witnesses were unable to appear.
3. Arraignment Counsel for the accused moved to dismiss the case.
4. Valid plea The court dismissed the case provisionally.
5. The defendant was acquitted, convicted, or the Subsequently, X was charged with theft again. Can
case was dismissed without his express consent. X invoke double jeopardy?
No. The case was dismissed upon motion of counsel for
 A crime was committed in Makati. The case was the accused, so it was not dismissed without his express
filed in Pasay. When the prosecution realized that consent. Moreover, the dismissal was only provisional,
which is not a valid termination of the first jeopardy. In
order to validly terminate the first jeopardy, the dismissal 1. if the ground is insufficiency of evidence of the
must have been unconditional. prosecution (demurrer to evidence), or
2. denial of the right to speedy trial.
 X was charged with slight physical injuries. On
his motion, the case was dismissed during the trial. In these two cases, even upon motion of the accused, the
Another case for assault upon a person in authority dismissal amounts to an acquittal and would bar a second
was filed against him. Can X invoke double jeopardy.
No. The first jeopardy was not terminated through either But if the accused moves to dismiss on the following
conviction, acquittal, or dismissal without the express grounds, he can still be prosecuted for the same offense
consent of X. The first case was dismissed upon motion of because he is deemed to have waived his right against a
X himself. Therefore, he cannot invoke double jeopardy. second jeopardy:
1. Lack of jurisdiction (Why? Because if you move
 X was charged with theft. During trial, the to dismiss on the ground of lack of jurisdiction, it
evidence showed that the offense committed was means that you could not have been validly
actually estafa. What should the judge do? The convicted by that court. You are later estopped
judge should order the substitution of the complaint for from claiming that you were in danger of
theft with a new one charging estafa. Upon filing of the conviction).
substituted complaint, the judge should dismiss the 2. Insufficiency of complaint or information (Same
original complaint. reason. You could not have been validly
convicted under that defective information, so
If it appears at any time before judgment that a mistake you are estopped from claiming that there was a
has been made in charging the proper offense, the court first jeopardy).
shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense.  When will dismissal or termination of the first
case not bar a second jeopardy?
 What are the requisites for a valid substitution of The conditions when dismissal or termination will not
a complaint or information? place the accused in double jeopardy are:
1. No judgment has been rendered; 1. The dismissal must be sought by the defendant
2. The accused cannot be convicted of the offense personally or through his counsel; and
charged or any other offense necessarily included 2. Such dismissal must not be on the merits and
in the offense charged; must not necessarily amount to an acquittal.
3. The accused will not be placed in double
jeopardy.  Before the prosecution could finish presenting its
evidence, the accused filed a demurrer to evidence.
 X was charged with homicide. On the first day of The court granted the motion and dismissed the
trial, the prosecution failed to appear. The court case on the ground of insufficiency of evidence of
dismissed the case on the ground of violation of the the prosecution. Can the accused be prosecuted for
right of the accused to speedy trial. X was later the same offense again? Yes. There was no double
charged with murder. Can X invoke double jeopardy because the court exceeded its jurisdiction in
jeopardy? No. The first jeopardy was not validly dismissing the case even before the prosecution could
terminated. The judge who dismissed the case on the finish presenting evidence. It denied the prosecution of
ground of violation of the right of X to speedy trial its right to due process. Because of this, the dismissal is
committed grave abuse of discretion in dismissing the null and void and cannot constitute a proper basis for a
case after the prosecution failed to appear once. This is claim of double jeopardy.
not a valid dismissal because it deprives the prosecution
of due process. When the judge gravely abuses his  The prosecutor filed an information against X for
discretion in dismissing a case, the dismissal is not valid. homicide. Before X could be arraigned, the
Therefore, X cannot invoke double jeopardy. prosecutor withdrew the information, without notice
to X. The prosecutor then filed an information
 Distinguish between dismissal and acquittal. against X for murder. Can X invoke double
Acquittal is always based on the merits. The accused is jeopardy? No. X has not yet been arraigned under the
acquitted because the evidence does not show his guilt first information. Therefore, the first jeopardy did not
beyond reasonable doubt. Dismissal does not decide the attach. A nolle prosequi or dismissal entered before the
case on the merits, nor does it determine that the accused accused is placed on trial and before he pleads is not
is not guilty. Dismissals terminate the proceedings, either equivalent to an acquittal and does not bar a subsequent
because the court is not a court of competent jurisdiction prosecution for the same offense.
or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or  If the accused fails to object to the motion to
the complaint or information is not valid or sufficient in dismiss the case filed by the prosecution, is he
form and substance. deemed to have consented to the dismissal? Can he
still invoke double jeopardy? No. Silence does not
 When is a dismissal of the case, even with the mean consent to the dismissal. If the accused fails to
express consent of the accused, equivalent to an object or acquiesces to the dismissal of the case, he can
acquittal, which would constitute a bar to a second still invoke double jeopardy, since the dismissal was still
jeopardy? When is it not a bar to a second without his express consent. He is deemed to have
jeopardy? waived his right against double jeopardy if he expressly
A dismissal upon motion of the accused or his counsel consents to the dismissal.
negates the application of double jeopardy because the
motion of the accused amounts to express consent,  X was charged with murder. The prosecution
EXCEPT: moved to dismiss the case. Counsel for X wrote the
words “No objection” at the bottom of the motion to  Can a person accused of estafa be charged with
dismiss and signed it. Can X invoke double jeopardy violation of BP22 without placing him in double
later on? jeopardy?
No. X is deemed to have expressly consented to the Yes. Where two different laws define two crimes, prior
dismissal of the case when his counsel wrote “No jeopardy as to one of the is no obstacle to a prosecution
objection at the bottom of the motion to dismiss. Since of the other although both offenses arise from the same
the case was dismissed with his express consent, X cannot facts, if each crime involves some important act which is
invoke double jeopardy. not an essential element of the other. Other examples:
Illegal recruitment and estafa, illegal fishing and illegal
 X was charged with murder. After the possession of explosives, alarm and scandal and illegal
prosecution presented its evidence, X filed a motion discharge of firearms, brigandage and illegal possession of
to dismiss on the ground that the prosecution failed firearms, consented abduction and qualified seduction.
to prove that the crime was committed within the
territorial jurisdiction of the court. The court But take note of the following:
dismissed the case. The prosecution appealed. Can
X invoke double jeopardy? No. X cannot invoke double Possession of a shotgun and a revolver by the same
jeopardy. The dismissal was upon his own motion, so it person at the same time is only one act of possession, so
was with his express consent. Since the dismissal was there is only one violation of the law.
with his express consent, he is deemed to have waived his Conviction for smoking opium bars prosecution for illegal
right against double jeopardy. The only time when a possession of the pipe. He cannot smoke the opium
dismissal, even upon motion of the accuse, will bar a without the pipe.
second jeopardy is if it is based either on insufficiency of Theft of 13 cows at the same time and in the same place
evidence or denial of the right of the accused to speedy is only one act of theft.
trial. These are not the grounds invoked by X, so he Conviction for less serious physical injuries bars
cannot claim double jeopardy. prosecution for assault upon a person in authority.

 X was charged with homicide. X moved to dismiss Reckless imprudence resulting in damage to property and
on the ground that the court had no jurisdiction. serious or less serious physical injuries is only one
Believing that it had no jurisdiction, the judge offense. If it is slight physical injuries, it can be broken
dismissed the case. Since the court, in fact, had down into two offenses, since a light offense cannot be
jurisdiction over the case, the prosecution filed complexed.
another case in the same court. Can X invoke
double jeopardy? No. X is estopped from claiming that  X installed a jumper cable which allowed him to
he was in danger of being convicted during the first case, reduce his electricity bill. He was prosecuted for
since he had himself earlier alleged that the court had no violating a municipal ordinance against
jurisdiction. unauthorized installation of the device. He was
convicted. Can he still be prosecuted for theft?
 X was charged with homicide. The court, No. Under the second type of jeopardy, when an act is
believing that it had no jurisdiction, motu propio punished by a law and an ordinance, conviction or
dismissed the case. The prosecution appealed, acquittal under once will bar a prosecution under the
claiming that the court, in fact, had jurisdiction. other. (But remember, that there has to be either
Can X invoke double jeopardy? conviction or acquittal. Dismissal without the express
Yes. When the trial court has jurisdiction but mistakenly consent of the accused is not sufficient).
dismisses the complaint or information on the ground of
lack of it, and the dismissal was not at the request of the  What are the exceptions to double jeopardy?
accused, the dismissal is not appealable because it will When can the accused be charged with a second
place the accused in double jeopardy. offense which necessarily includes the offense
charged in the former complaint or information?
 X was charged with rape. X moved to dismiss on The conviction of the accused shall not be a bar to another
the ground that the complaint was insufficient prosecution for an offense which necessarily includes the
because it did not allege lewd designs. The court offense charged in the former complaint or information
dismissed the case. Later, another case for rape under any of the following circumstances:
was filed against X. Can X invoke double jeopardy?
No. Like the previous problem, X is estopped from 1. the graver offense developed due to
claiming that he could have been convicted under the first supervening facts arising from the same act or
complaint. He himself moved to dismiss on the ground omission constituting the former charge;
that the complaint was insufficient. He cannot change his 2. the facts constituting the graver charge became
position and now claim that he was in danger of being known or were discovered only after a plea
convicted under that complaint. was entered in the former complaint or
 X was charged with murder, along with three 3. the plea of guilty to the lesser offense was
other people. X was discharged as a state witness. made without the consent of the prosecutor
Can X be prosecuted again for the same offense? It and the offended party except if the offended
depends. As a general rule, an order discharging an party fails to appear at the arraignment.
accused as a state witness amounts to an acquittal, and
he is barred from being prosecuted again for the same  What is the doctrine of supervening fact?
offense. However, if he fails or refuses to testify against If, after the first prosecution, a new fact supervenes on
his co-accused in accordance with his sworn statement which the defendant may be held liable, altering the
constituting the basis for the discharge, he can be character of the crime and giving rise to a new and
prosecuted again. distinct offense, the accused cannot be said to be in
second jeopardy if indicted for the new offense.
Provisional dismissal does not place the accused in double
 X was charged with frustrated homicide. There jeopardy. But, ff the accused objects to the provisional
was nothing to indicated that the victim was going dismissal, a revival of the case would place him in double
to die. X was arraigned. Before trial, the victim jeopardy.
dies. Can X be charged with homicide?  When does the provisional dismissal become
It depends. If the death of the victim can be traced to the final?
acts of X, and the victim did not contribute to his death The provisional dismissal of offenses punishable by
with his negligence, X can be charged with homicide. This imprisonment exceeding 6 years or a fine of any amount
is a supervening fact. But if the act of X was not the shall become permanent after 1 year without the case
proximate cause of death, he cannot be charged with having been revived.
For offenses punishable by imprisonment of more than 6
 X was charged with reckless imprudence resulting years, the provisional dismissal shall become permanent
in homicide and was acquitted. The heirs of the after 2 years without the case having been revived.
victim appealed the civil aspect of the judgment. X
claims that the appeal will place him in double After the provisional dismissal becomes final, the accused
jeopardy. Is X correct? cannot be prosecuted anymore.
No. There was no second jeopardy. What was elevated on appeal was
the civil aspect of the case, not the criminal aspect. The extinction of J. PRE-TRIAL (RULE 118)
criminal liability whether by prescription or by the bar of double 1. MATTERS TO BE CONSIDERED DURING PRE-TRIAL
jeopardy does not carry with it the extinction of civil liability arising from Q: When is pre-trial held?
the offense charged. A: After arraignment & within thirty (30) days from the date the
court acquires jurisdiction over the person of the accused unless
a shorter period isprovided by special laws or circulars of the
 X was charged with murder and was acquitted. Supreme Court (Sec. 1, Rule 118).
Can the prosecution appeal the acquittal? Note: When the accused is under preventive detention, wherein his
No. The prosecution cannot appeal the acquittal, since it case shall be raffled & records transmitted within 3 days from the
would place the accused in double jeopardy. filing of the complaint or information. The accused shall be
Even if the decision of acquittal was erroneous, the
arraigned within 10 days from the date of the raffle [Sec. 1(d), Rule
prosecution still cannot appeal the decision. It would still
116]. Pre-trial in criminal cases is mandatory.
place the accused in double jeopardy.

 When can the prosecution appeal despite the Q: Give three distinctions between a pre-trial in a criminal case
dismissal or termination of the case? & a pre-trial in a civil case.
As a general rule, the dismissal or termination of the case A: Pre-trial in Civil Cases Pre-trial in Criminal Cases
after arraignment and plea of the defendant to a valid The presence of the The accused is merely required to sign
information shall be a bar to another prosecution for the defendant is required the written agreement arrived at in
same offense, an attempt or frustration thereof, or one unless he is duly the pre-trial conference, if he is in
included or which includes the previous offense. The represented at the pre- conformity therewith. Unless
exceptions are: trial conference by his otherwise required by the court, his
1. if the dismissal of the first case was made upon
counsel with the requisite presence therefore is not
motion or with the express consent of the
authority to enter into a indispensable.
defendant, unless the grounds are insufficiency of
evidence or denial of the right to speedy trial; compromise agreement. Note: This is aside from the
2. if the dismissal is not an acquittal or based upon Failing in either of which, consideration that the accused may
consideration of the evidence or of the merits of the case shall proceed as if waive his presence at all stages of the
the case; and the defendant has been criminal action, except at the
3. the question to be passed upon by the appellate declared in default. arraignment, promulgation of
court is purely legal so that should the dismissal judgment or when required to appear
be found incorrect, the case would have to be for identification.
remanded to the court of origin for further The presence of the The presence of the private offended
proceedings to determine the guilt or innocence plaintiff is required unless party is not required. Instead, he is
of the accused. excused therefrom for priorly required to appear at the
valid cause or if he is arraignment of the accused for
 What is the effect of the appeal by the accused? represented therein by a purpose of plea bargaining,
If the accused appeals, he waives his right against double
person fully authorized in determination of civil liability & other
jeopardy. The case is thrown wide open for review and a
writing to perform the acts matters requiring his presence.
penalty higher than that of the original conviction could be
imposed upon him.
specified in Sec. 4, Rule 18. Should he fail to appear therein & the
Absent such justification, accused offers to plead guilty to a
 What should the accused do if the court denies the case may be dismissed lesser offense necessarily included in
the motion to quash on the ground of double with or without prejudice. the offense charged, the accused may
jeopardy? be allowed to do so with the
He should plead not guilty and reiterate his defense of conformity of the trial prosecutor
former jeopardy. In case of conviction, he should appeal alone.
from the judgment, on the ground of double jeopardy.

 When can a case be provisionally dismissed?

A case can only be dismissed provisionally if the accused
expressly consents, and with notice to the offended party.
A pre-trial brief is required The filing of a pre-trial brief is not usually involves the defendant’s pleading guilty to a lesser
with the particulars & the required. It only requires attendance offense or to only one or some of the counts of a multi- count
sanctions provided by Sec. at a pre-trial conference to consider indictment in return for a lighter sentence than that for the
6, Rule 18. the matters stated in Sec. 1, Rule 118. graver charge.
(1997 Bar Question)
Q: When is plea bargaining not applicable?
A: Violations of the Dangerous Drugs Act regardless of the
Q: What must the order for pre-trial conference contain? imposable penalty.
A: It must contain orders:
1. Requiring the private offended party to appear thereat for Q: What shall the court do if the plea bargaining fails?
purposes of plea-bargaining & for other matters requiring his A: The court shall:
presence; 1. Adopt the minutes of preliminary conference as part of the
2. Referring the case to the branch clerk of court, if warranted, pre-trial proceedings, confirm markings of exhibits or
for a preliminary conference to be set at least three (3) days substituted photocopies & admissions on the genuineness & due
prior to the pre-trial to mark the documents or exhibits to be execution of documents & list object & testimonial evidence;
presented by the parties & copies thereof to be attached to the 2. Scrutinize every allegation of the information & the
records after comparison & to consider other matters as may aid statements in the affidavits & other documents which form part
in its prompt disposition; & of the record of the preliminary investigation & other
3. Informing the parties that no evidence shall be allowed to be documents identified & marked as exhibits in determining
presented & offered during the trial other than those identified farther admissions of facts, documents & in particular as to the
& marked during the pre-trial except when allowed by the court following:
for good cause shown. In mediatable cases, the judge shall refer a. The identity of the accused;
the parties & their counsel to the Philippine Mediation Center b. Court’s territorial jurisdiction relative to the offense/s
unit for purposes of mediation if available (A.M. No. 03-1-09-SC). charged;
c. Qualification of expert witness;
Q: What is the form of a valid pre-trial agreement? d. Amount of damages;
A: The pre-trial agreement must be in writing & signed by both e. Genuineness & due execution of documents;
the accused & his counsel. If the required form is not observed, f. The cause of death or injury, in proper cases;
the pre-trial agreement cannot be used against the accused (Sec. g. Adoption of any evidence presented during the
2, Rule 118). preliminary investigation;
Note: The agreements covering the matters in the pre-trial h. Disclosure of defenses of alibi, insanity, self-defense,
conference shall be approved by the court.
exercise of public authority & justifying or exempting
circumstances; &
Q: What are the matters considered during pre-trial?
i. Such other matters that would limit the facts in issue.
3. Define factual & legal issues;
1. Plea bargaining;
4. Ask parties to agree on the specific trial dates & adhere to the
2. Stipulation of facts;
flow chart determined by the court which shall contain the time
3. Marking for identification of evidence of parties;
frames for the different stages of the proceeding up to
4. Waiver of objections to admissibility of evidence;
promulgation of decision & use the time frame for each stage in
5. Modification of the order of the trial if one of the accused
setting the trial dates;
admits the charge but interposes a lawful defense (reverse trial);
5. Require the parties to submit to the Branch COC the names,
addresses & contact numbers of witnesses that need to be
6. Such other matters as will promote a fair & expeditious trial of
summoned by subpoena; &
the civil & criminal aspects of the case (Sec. 1).
6. Consider modification of order of trial if the accused admits
the charge but interposes a lawful defense (A.M. No. 03-1-09-
Note: During the preliminary conference, the branch clerk of court
shall assist the parties in reaching a settlement of the civil aspect of
the case, mark the documents to be presented as exhibits & copies
thereof attached to the records after comparison, ascertain from 2. WHAT THE COURT SHOULD DO WHEN PROSECUTION &
the parties the undisputed facts & admissions on the genuineness & OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE
due execution of documents marked as exhibits & consider such ACCUSED
other matters as may aid in the prompt disposition of the case. The Q: What is the effect if the prosecution & the offended party
proceedings during the preliminary conference shall be recorded in agree to the plea offered by the accused?
the minutes of preliminary conference to be signed by both parties & A: The court shall:
counsel. 1. issue an order which contains the plea bargaining arrived at;
The minutes of preliminary conference & the exhibits shall be 2. proceed to receive evidence on the civil aspect of the case; &
attached by the branch clerk of court to the case record before the 3. render & promulgate judgment of conviction, including the
pre-trial (A.M. No. 03-1-09-SC). civil liability or damages duly established by the evidence (A.M.
No. 03-1-09-SC).
Q: What is plea bargaining?
A: Plea bargaining is the process whereby the accused, the 3. PRE-TRIAL AGREEMENT
offended party & the prosecution work out a mutually Q: What is pre- trial agreement?
satisfactory disposition of the case subject to court approval. It
A: All agreements or admissions made or entered into during the 1.The first stage is the Court-Annexed Mediation (CAM) where
pre- trial conference shall be reduced to writing & signed by the the judge refers the parties to the Philippine Mediation Center
accused & counsel, otherwise the same shall not be used un (PMC) for the mediation of their dispute by trained & accredited
evidence against the accused. mediators.
2. Upon failing to secure a settlement of the dispute during the
Q: What are the requisites before a pre- trial agreement may first stage, a second attempt is made at the JDR stage. There, the
be used as evidence? JDR judge sequentially becomes a mediatorconciliator- early
A: 1. They are reduced to writing; neutral evaluator in a continuing effort to secure a settlement.
2. The pre-trial agreement is signed by the accused & his counsel Still failing that second attempt, the mediator-judge must turn
over the case to another judge (a new one by raffle or
4. NON- APPEARANCE DURING PRE-TRIAL nearest/pair judge) who will try the unsettled case. The trial
judge shall continue with the pre-trial proper and, thereafter,
Q: What is the effect of non-appearance of counsel for the proceed to try & decide the case.
accused or the prosecutor during the pre-trial without valid 3. The third stage is during the appeal where covered cases are
justification? referred to the PMC-Appeals Court Mediation (ACM) unit for
A: The court may impose proper sanctions or penalties in the mediation.
form of reprimand, fines or imprisonment if he does not offer an
acceptable excuse for his lack of cooperation (Sec. 3, Rule 118). Q: What are the cases covered by Court Annexed Mediation &
Note: These sanctions are not applicable on the accused, because to Judicial Dispute Resolution?
include him among the mandatory parties to appear might violate A: The following cases shall be 1) referred to Court-Annexed
his constitutional right to remain silent. Mediation (CAM) & 2) be the subject of Judicial Dispute
Resolution (JDR) proceedings:
5. PRE-TRIAL ORDER 1. All civil cases & the civil liability of criminal cases covered by
Q: What is pre-trial order? the Rule on Summary Procedure, including the civil liability for
A: It is an order issued by the court reciting the actions taken, violation of B.P. 22, except those which by law may not be
the facts stipulated & the evidence marked during the pre-trial compromised;
conference. Such order binds the parties & limits the trial to 2. Special proceedings for the settlement of estates;
those matters not disposed of (Sec. 4). 3. All civil & criminal cases filed with a certificate to file action
Q: When shall the trial judge issue a pre-trial order & what are issued by the Punong Barangay or the Pangkat ng
its contents? Tagapagkasundo under the Revised Katarungang Pambarangay
A: It must be issued within ten (10) days after the termination of Law;
the pre-trial. It shall set forth the following: 4. The civil aspect of Quasi-Offenses under Title 14 of the
1. Actions taken during the pre-trial conference; Revised Penal Code;
2. Facts stipulated; 5. The civil aspect of less grave felonies punishable by
3. Admissions made; correctional penalties not exceeding 6 years imprisonment
4. Evidence marked; & where the offended party is a private person;
5. Number of witnesses to be presented & the schedule of trial 6. The civil aspect of estafa, theft & libel;
(Sec. 4). 7. All civil cases & probate proceedings, testate & intestate,
brought on appeal from the exclusive & original jurisdiction
6. REFERRAL FOR SOME CASES FOR COURT ANNEXED granted to the first level courts under Section 33, par. (1) of the
MEDIATION & JUDICIAL DISPUTE RESOLUTION Judiciary Reorganization Act of 1980;
(A·M. No, 11-1-6-SC-PHILJA) 8. All cases of forcible entry & unlawful detainer brought on
Q: What is the purpose of Court Annexed Mediation & Judicial appeal from the exclusive & original jurisdiction granted to the
Dispute Resolution? first level courts under Section 33, par. (2) of the Judiciary
A: The diversion of pending court cases both to Court-Annexed Reorganization Act of 1980;
Mediation (CAM) & to Judicial Dispute Resolution(JDR) is plainly (9) All civil cases involving title to or possession of real property
intended to put an end to pending litigation through a or an interest therein brought on appeal from the exclusive &
compromise agreement of the parties & thereby help solve the original jurisdiction granted to the first level courts under
ever-pressing problem of court docket congestion. It is also Section 33, par.(3) of the Judiciary Reorganization Act of 1980;
intended to empower the parties to resolve their own disputes 13 &
& give practical effect to the State Policy expressly stated in the (10) All habeas corpus cases decided by the first level courts in
ADR Act of 2004 (R.A. No. 9285), to wit: the absence of the Regional Trial Court judge, that are brought
“to actively promote party autonomy in the resolution of up on appeal from the special jurisdiction granted to the first
disputes or the freedom of the parties to make their own level courts under Section 35 of the Judiciary Reorganization Act
arrangement to resolve disputes. Towards this end, the of 1980.
State shall encourage & actively promote the use of
Alternative Dispute Resolution (ADR) as an important Q: What are those cases which cannot be referred to Court
means to achieve speedy & impartial justice & de-clog Annexed Mediation & Judicial Dispute Resolution?
court dockets.” A: The following cases shall not be referred to CAM & JDR:
1. Civil cases which by law cannot be compromised (Article 2035,
Q: What are the three stages of diversion of cases to Court New Civil Code);
Annexed Mediation & Judicial Dispute Resolution?
2. Other criminal cases not covered under paragraphs 3 to 6 proceedings shall be conducted at the station where the case
above; was originally filed. The result of the JDR proceedings shall be
3. Habeas Corpus petitions; referred to the court of origin for appropriate action, e.g.
4. All cases under Republic Act No. 9262 (Violence against approval of the compromise agreement, trial, etc.
Women & Children); & Notwithstanding the foregoing, before the commencement of
5. Cases with pending application for Restraining the JDR proceedings, the parties may file a joint written motion
Orders/Preliminary Injunctions. However, in cases covered requesting that the court of origin conduct the JDR proceedings
under 1, 4 & 5 where the parties inform the court that they have & trial.
agreed to undergo mediation on some aspects thereof, e.g., 3. FAMILY COURTS- Unless otherwise agreed upon as provided
custody of minor children, separation of property, or support below, the JDR proceedings in areas where only one court is
pendent lite, the court shall refer them to mediation. designated as a family court, shall be conducted by a judge of
another branch through raffle. However, if there is another
Q: What is the duration of mediation in the Philippine family court in the same area, the family court to whom the case
Mediation Center? was originally raffled shall conduct JDR proceedings & if no
A: The Mediator shall have a period of not exceeding thirty (30) settlement is reached, the other family court shall conduct the
days to complete the mediation process. Such period shall be pre-trial proper & trial.
computed from the date when the parties first appeared for the Notwithstanding the foregoing, before commencement of the
initial conference as stated in the Order to appear. An extended JDR proceedings, the parties may file a joint written motion
period of another thirty (30) days may be granted bythe court, requesting that the family court to which the case was originally
upon motion filed by the Mediator, with the conformity of the raffled shall conduct the JDR proceedings & trial.
parties. Despite the non-mediatable nature of the principal case, like
annulment of marriage, other issues such as custody of children,
Q: What is the effect of the referral of the case to CAM & JDR? support, visitation, property relations & guardianship, may be
A: The period during which the case is undergoing mediation referred to CAM & JDR to limit the issues for trial.
shall be excluded from the regular & mandatory periods for trial 4. COMMERCIAL, INTELLECT PROPERTY & ENVIRONMENTAL
& rendition of judgment in ordinary cases & in cases under COURTS- Unless otherwise agreed upon as provided below, the
summary proceedings. JDR proceedings in areas where only one court is designated as
commercial/intellectual property/environmental court,
Q: What is the procedure after the parties reached a hereafter referred to as special court, shall be conducted by
settlement? another judge through raffle & not by the judge of the special
A: If full settlement of the dispute is reached, the parties, court. Where settlement is not reached, the judge of the special
assisted by their respective counsels, shall draft the compromise court shall be the trial judge. Any incident or motion filed before
agreement which shall be submitted to the court for judgment the pre-trial stage shall be dealt with by the special court that
upon compromise or other appropriate action. shall refer the case to CAM.
Where compliance is forthwith made, the parties shall instead Notwithstanding the foregoing, before commencement of the
submit a satisfaction of claims or a mutual withdrawal of the JDR proceedings, the parties may file a joint written motion
case and, thereafter, the court shall enter an order dismissing requesting that the special courts to which the case was
the case. If partial settlement is reached, the parties shall, with originally raffled shall conduct the JDR proceedings & trial.
the assistance of counsel, submit the terms thereof for the
appropriate action of the court, without waiting for resolution of Q: May a case be referred to JDR even during trial?
the unsettled part. A: YES. Cases may be referred to JDR even during the trial stage
In relation to the unsettled part of the dispute, the court shall upon written motion of one or both parties indicating
proceed to conduct JDR proceedings in accordance withPART willingness to discuss a possible compromise. If the motion is
THREE where JDR is available. granted, the trial shall be suspended & the case referred to JDR,
which shall be conducted by another judge through raffle in
Q: What is the remedy if the case is not resolved during JDR? multiple sala courts.
1. MULTIPLE SALA COURT- If the case is not resolved during the Q: What is the duty of the court if settlement is reached during
JDR, the case shall be raffled to another branch for the pre- trial the JDR?
proper up to judgement. A: If settlement is reached during JDR, the JDR court shall take
For cases with pending applications for restraining appropriate action thereon, i.e. approval/disapproval of the
orders/preliminary injunctions, the judge to whom the case was compromise agreement. If settlement is not reached at JDR, the
raffled shall rule on the said applications. During the pre-trial case shall be returned to the referring court for continuation of
stage, the judge refers the case to CAM, but if the parties do not trial.
settle at CAM, the case will be raffled to another branch for JDR. In single sala courts, the JDR shall be conducted by the nearest
If the parties do not settle at JDR, the case will be returned to court (or pair court, if any) regardless of the level of the latter
the branch that ruled on the applications for the pre-trial proper court. The result of the JDR proceedings shall be referred to the
& up to judgment. court of origin for appropriate action, e.g. approval of the
2. SINGLE SALA COURT- Unless otherwise agreed upon as compromise agreement, trial, etc.
provided , the JDR proceedings will be conducted by the judge of The parties may, by joint written motion, despite confidential
the pair court, if any, otherwise, by the judge of the nearest information that may be divulged during JDR proceedings, file a
court as determined by the concerned Executive Judge. The JDR request that their case be not transferred to other courts for JDR
& that they agree to have the trial judge continue the trial 1. INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED
should the case not be settled through JDR. Q: What are the instances when the presence of the accused is
required by law?
A: The only instances when the presence of the accused is
K. TRIAL (RULE 119) required:
Q: What is a trial? 1. Upon arraignment & in entering plea;
A: Trial is the examination before a competent tribunal 2. During trial when his presence is necessary for the purpose of
according to the laws of the land, of facts put in issue in a case identification;
for the purpose of determining such issue. 3. Upon promulgation of judgment except for light offenses
After a plea of not guilty is entered, the accused shall have at 4. When the court with due notice requires so.
least fifteen (15) days to prepare for trial. The trial shall
commence within 30 days from receipt of pre-trial order. Q: Is there a time limit for the trial of criminal cases?
Note: Denial of right to prepare is reversible error; the proper A: GR: Trial shall not exceed 180 days from the first day of trial.
remedy from a judgment of conviction under such case is appeal & XPNs:
not certiorari nor habeas corpus(Montilla v. Arellano, G.R. No. 1. Those governed by the rules on summary procedure;
123872, Jan. 30, 1998). 2. Those where the penalty prescribed by law does not exceed 6
months imprisonment or a fine of P1,000 or both; &
Q: What is a hearing? A: Hearing is not confined to trial, but
3. Those authorized by the Chief Justice of the SC. (Sec. 6, R.A.
embraces several stages of litigation including the pre- trial
8493, Speedy Trial Act)
stage. A hearing does not necessarily imply the presentation of
Note: Commencement of trial may be extended based on the
oral or documentary evidence in open court but that the parties following conditions:
are afforded an opportunity to be heard. (Republic v. 1. For the 180 days, for the first 12 calendar month period from the
Sandiganbayan, 416 SCRA 133, 2003). effectivity of the law.
2. 120 days for the second 12 month period.
Q: In a criminal proceeding, when is the presence of the 3. 80 days for the third 12 month period. (Sec. 9, R.A. 8493)
accused required?
A: Q: What is the effect if the court failed to comply with the
1. During arraignment; mandates of the Speedy Trial Act to terminate the case within
2. Promulgation of judgment except when the conviction is for a the 180 day period?
light offense, in which case, it may be pronounced in the A: The judge may be charged administratively, or may be fined,
presence of his counsel or a representative; & suspended or removed unless his failure to comply with the
3. When ordered by the court for purposes of identification. speedy trial act is for reasons not attributable to him.

Note: Such requirement has no application to the proceedings or to Q: What is continuous trial system?
the entry & promulgation of the judgments before the CA & SC. The A: Trial once commenced shall continue from day to day as far
defendant need not be present during the hearing of the appeal as practicable until terminated. It may be postponed for a
(Sec. 9, Rule 124). reasonable period of time for good cause. The entire trial period
shall in no case exceed 180 days from the first day of trial,
Q: What is the order of trial in criminal cases? except as otherwise provided by the SC (Sec. 2).
A: In criminal cases, unless the accused admits the act or The SC adopted the continuous trial system as a mode of judicial
omission charged in the complaint or information but interposes fact-finding & adjudication conducted with speed & dispatched
a lawful defense, the trial shall proceed in the following order: so that trials are held on the scheduled dates without
1. The prosecution shall present evidence to prove the charge postponement, the factual issues for a trial well defined at pre-
and, in the proper case, the civil liability. trial & the whole proceedings terminated & ready for judgment
2. The accused may present evidence to prove his defense, & within ninety (90) days from the date of initial hearing, unless for
damages, if any, arising from the issuance of a provisional meritorious reasons an extension is permitted.
remedy in the case. Note: The non-appearance of the prosecution at the trial, despite
3. The prosecution & the defense may, in that order, present due notice, justifies a provisional dismissal or an absolute dismissal
rebuttal & sur-rebuttal evidence unless the court, in furtherance depending upon the circumstances.
of justice, permits them to present additional evidence bearing
upon the main issue. Q: What are the cases where the time limitation is
4. Upon admission of the evidence of the parties, the case shall inapplicable?
be deemed submitted for decision unless the court directs them A:
to argue orally or to submit written memoranda (Sec. 11, Rule 1. Criminal cases covered by the Rule on Summary Procedure;
119). 2. When the offended party is about to depart with no definite
date of return;
Note: GR: The order in the presentation of evidence must be 3. Child abuse cases (Sec. 32, R.A. 7610 or The Child Abuse Act);
followed. The accused may not be required to present evidence first 4. Violations of Dangerous Drugs Law; &
before the prosecution adduces its own proof. 5. Kidnapping, robbery by a band, robbery against banking or
XPN: Where a reverse procedure was adopted without the objection financial institution, violation of Carnapping Act & other heinous
of the defendant & such procedure did not prejudice his substantial
crimes (Herrera, Vol. IV, p. 796, 2007 ed.).
rights, the defect is not a reversible error.
2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT A: The remedy of the accused is to file a motion to dismiss the
OF ABSENCE OF WITNESS information on the ground of the denial of his right to speedy
trial. Failure of the accused to move for dismissal prior to trial
Q: What are the requisites before a trial can be suspended on shall constitute a waiver of his right to file a motion to dismiss.
account of the absence of a witness? The accused shall have the burden of proving such denial of
A: That the: right, but the prosecution shall have the burden of going
1. witness is material & appears to the court to be so; forward with the evidence to establish the exclusion of time.
2. party who applies has been guilty of no neglect; The dismissal shall be subject to the rules on double jeopardy.
3. witnesses can be had at the time to which the trial is deferred So if the dismissal is with prejudice, the case cannot be revived
& no similar evidence could be obtained; & anymore. But if the dismissal is without prejudice, the revival of
4. affidavit showing the existence of the above circumstances the case is proper (Sec. 9, Rule 119).
must be filed.
Q: What are the remedies of the accused where a prosecuting BECOME A STATE WITNESS
officer without just cause secures postponements of the trial
against his protest beyond a reasonable period of time? Q: Who is a State witness?
A: A: He is one of two or more persons jointly charged with the
1. Mandamus to compel a dismissal of the information; or commission of a crime but who is discharged with his consent as
2. If he is restrained of his liberty, by habeas corpus to obtain his such accused so that he may be a witness for the State (People v.
freedom. Ferrer, G.R. No. 102062, Mar. 14, 1996).
Q: What are the requisites before an accused may become a
Q: May trial proceed in the absence of the accused? State witness?
A: YES. Section 14 (2), Article 3 of the Constitution provides that A:
trial may proceed notwithstanding the absence of the accused 1. There is absolute necessity for the testimony of the accused
provided that he has been duly notified & his failure to appear is whose discharge is requested;
unjustifiable. (Parada v. Veneracion, A.M. No.RTJ-96-1353. 2. There is no other direct evidence available for the proper
March 11, 1997) prosecution of the offense committed, except the testimony of
the said accused;
Q: What are the requisites for trial in absentia? 3. The testimony of said accused can be substantially
A: corroborated in its material points;
1. The accused has been arraigned; 4. Said accused does not appear to be the most guilty; &
2. He has been notified of the trial; & 5. Said accused has not at any time been convicted of any
3. His failure to appear is unjustified. offense involving moral turpitude (Sec. 17, Rule 119).

Q: What are the effects of trial in absentia? Note: All the requisites must be complied with. (Herrera, Vol. IV, p.
A: The accused waives the right to present evidence & cross- 820, 2007 ed.)
examine the witnesses against him. The accused’s waiver does Law enforcement officers, even if he would be testifying against the
not mean, however, that the prosecution is deprived of the right other law enforcement officers cannot be a State witness. In such a
to require the presence of the accused for purposes of case, only the immediate members of his family may avail
identification by the witnesses which is vital for conviction of the themselves of the protection provided for under the Witness
accused, except where he has unqualifiedly admits in open court Protection Act (Sec. 3, R.A. 6981, Witness Protection Act).
after his arraignment that he is the person named as defendant
in the case on trial. Q: When should the application for discharge of the state
witness be made?
4. REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE A: It should be made upon motion of the prosecution before
PRESCRIBED PERIOD resting its case.

Q: What is the remedy available to the accused if he is not 6. EFFECTS OF THE DISCHARGE
brought to trial within the period prescribed by the Rules of Q: What are the effects of the order discharging the accused as
Court? a State witness?
A: The information may be dismissed on motion of the accused A:
on the ground of denial of his right to speedy trial. The dismissal GR:
shall be subject to the rules on double jeopardy (Sec. 9, Rule 1. Discharge of accused operates as an acquittal & bar to further
119). prosecution for the same offense
Note: The trial of an accessory can proceed without awaiting the 2. Evidence adduced in support of the discharge shall
result of separate charge against the principal (Vino v. People, G.R. automatically form part of the trial (People v. Feliciano, G.R. No.
No. 84163, Oct. 19, 1989). 136258, Oct. 10, 2001); &
3. If the court denies the motion to discharge the accused as
Q: What is the remedy if the accused was not brought to trial
State witness, his sworn statement shall be inadmissible in
within the time limit?
evidence (People v. Feliciano, G.R. No. 136258, Oct. 10, 2001).
XPN: Q: Distinguish the effect of filing a demurrer with leave of court
1. When the accused fails or refuses to testify against his co- from filing a demurrer without leave?
accused in accordance with his sworn statement constituting the A: Demurrer With Leave of Court Demurrer Without Leave of
basis of his discharge (Sec. 18). Court
2. Failure to testify refers exclusively to defendant’s will or fault, If leave of court is denied, the If demurrer is denied, it is
3. Where an accused who turns state’s evidence on a promise of accused may proceed with tantamount to a waiver of the
immunity but later retracts & fails to keep his part of the presenting his evidence accused’s right to present
agreement, his confession of his participation in the commission evidence & as a consequence
of the crime is admissible as evidence against him. (People v. the case will be submitted for
Beberino GR No L-23213 October 28, 1977) judgment on the basis of the
Note: Discharge under this rule is only one of the modes to be a evidence for the prosecution.
State witness. Other modes are: If leave of court is granted, the If demurrer is granted, the
1. The Witness Protection Program of R.A. 6981; accused may file the demurrer to case will be dismissed, & will
2. The power of the Ombudsman to grant immunity under Sec. 17, evidence within ten (10) days. result to an acquittal of
R.A. 6770. The prosecution may however,
oppose the demurrer to evidence
Q: What are the effects if the discharged accused retracts or within a non-extendible period of
ten (10) days from the receipt of
fails to comply with his part of the agreement?
the demurrer.
A: If the retraction or failure to testify is solely his fault, his
confession of his participation in the commission of the crime is
Q: What is the purpose of leave of court in demurrer to
admissible as evidence (People v. Beberino, G.R. No. L-23092,
Oct. 28, 1977).
A: To determine whether or not the defendant in a criminal case
has filed the demurrer merely to stall the proceedings (People v.
Q: Distinguish Witness Protection Program from Sec. 17, Rule
Mahinay, G.R. No. 109613, July 17, 1995).
119 of the Rules of Court.
Note: If the demurrer is sustained by the court, the order of
A: Witness Protection Rules of Court
dismissal is tantamount to an acquittal. Hence it is NOT appealable.
The offense in which the It has no qualifications. It applies
testimony is to be used is to all felonies.
limited only to grave felony.
The immunity is granted by The immunity is granted by court.
Q: What is judgment?
The witness is automatically The witness so discharged must A: It is an adjudication by the court that the accused is guilty or
entitled to certain rights & still apply for the enjoyment of not guilty of the offense charged & the imposition of the proper
benefits. said rights & benefits in the DOJ. penalty & civil liability, if any (Sec. 1). It is a judicial act which
The witness need not be He is charged in court as one of settles the issues, fixes the rights & liabilities of the parties, & is
charged elsewhere. the accused as stated in the regarded as the sentence of the law pronounced by the court on
information. the action or question before it (Sec. 1, Rule 120).
No information may thus be The charges against him shall be
filed against the witness. dropped & the same operates as Q: What are the requisites of judgment?
an acquittal. A: It must be:
1. Written in official language;
7. DEMURRER TO EVIDENCE 2. Personally & directly prepared by the judge;
Q: What is demurrer to evidence? 3. Signed by the judge; &
A: It is an objection by one of the parties in an action to the 4. Contain clearly & distinctly a statement of the facts & the law
effect that the evidence which his adversary produced is upon which it is based (Sec. 1, Rule 120).
insufficient in point of law, whether true or not, to make out a
case or sustain the issue. Note: Decisions of the court shall contain the facts & the law on
which they are based (Sec. 14, Art. VIII, 1987 Constitution). The
Q: What is the rule on demurrer of evidence? rationale is that the losing party is entitled to know why he lost, so
he may appeal to a higher court.
A: How made
1. Court on its own initiative; or Q: How is entry of judgment made?
2. Upon filing of the accused for demurrer of evidence: A: The recording of the judgment or order in the book of entries
a. With leave of court; or of judgments shall constitute its entry. The record shall contain
b. Without leave of court the dispositive part of the judgment order & shall be signed by
When made the clerk, with a certificate that such judgment or order has
After the prosecution rests its case become final & executory(Sec. 2, Rule 36).
Insufficiency of evidence Q: What is mittimus?
Effect A: It is a process issued by the court after conviction to carry out
The court may dismiss the case (Sec. 23) the final judgment, such as commanding a prison warden to hold
the accused in accordance with the terms of judgment.
GR: An accused can be convicted of an offense only when it is
Q: What is reasonable doubt? A: Reasonable doubt is defined both charged & proved; if it is not charged although proved, or if
as the state of the case which, after full consideration of all it is not proved although charged, the accused CANNOT be
evidence, leaves the mind of the judge in such a condition that convicted thereof.
he cannot say that he feels an abiding conviction to a moral XPN: Where there is a variance between the offense charged in
certainty of the truth of the charge. the complaint or information & that proved & the offense as
charged is included in or is necessarily includes the offense
Q: What is acquittal? A: An acquittal is a finding of not guilty proved, the accused shall be convicted of the offense proved
based on the merits, that is, the accused is acquitted because which is included in the offense charged, or of the offense
the evidence does not show that his guilt is beyond reasonable charged which is included in the offense proved. (Sec. 4).
doubt, or a dismissal of the case after the prosecution has rested Note: An accused cannot be convicted of an offense not charged or
its case upon motion of the accused on the ground that the included in the information for this will be in violation of the
evidence fails to show beyond reasonable doubt that the constitutional right of the accused to be informed of the nature of
accused is guilty, the offense charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).

Note: It is well settled that acquittal, in a criminal case is Q: What happens when an offense includes or is included in
immediately final & executor upon its promulgation, & that another? A: GR: If what is proved by the prosecution evidence is
accordingly, the State may not seek its review without placing the an offense which is included in the offense charged in the
accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00- information, the accused may validly be convicted of the offense
1568, February 15, 2001). proved.
Q: Is there a maximum duration for the court’s sentence? An offense charged NECESSARILY INCLUDES the offense proved
A: YES. In the service of sentence, the maximum duration of the when some of the essential ingredients or ingredients of the
court’s sentence shall not be more than three- fold the length of former as alleged in the complaint or information constitute the
time corresponding to the most severe of the penalties imposed latter. An offense charged NECESSARILY INCLUDED in the
upon the accused, & such maximum shall in no case exceed forty offense proved when the essential ingredients of the former
years. constitute or form part of those constituting the latter.

2. CONTENTS OF JUDGMENT XPN: Where the facts supervened after the filing of information
Q: What are the contents of judgment? which changed the nature of the offense.(Sec. 5).
A: The judgment must state: Note: An accused cannot be convicted for the lesser offense
1. If of conviction necessarily included in the crime charged if at the time of the filing
a. Legal qualification of the offense constituted by the acts of the information, the lesser offense has already prescribed
committed by the accused, & the aggravating or mitigating (Francisco v. CA, G.R. No. L-45674, May 30, 1983).
circumstances attending its commission;
b. Participation of the accused whether as principal, accomplice Q: What is the effect of the judgment of conviction upon a
or accessory; minor? A: The courts shall promulgate the sentence & ascertain
c. Penalty imposed upon the accused; & any civil liability which the accused may have incurred. The
sentence, however, shall be suspended without need of
d. Civil liability or damages caused by the wrongful act or
application pursuant to P.D. 603 or the Child & Youth Welfare
omission unless a separate civil action has been reserved or
Code. In which case, the child shall have been committed under
the care of the DSWD or any other accredited government
institution until he reaches the age of twenty one (21) or until
2. If of acquittal
the court so determines (Sec. 40, R.A. 9344, Juvenile Justice &
a. Whether the evidence of the prosecution absolutely failed to
Welfare Act of 2006).
prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt; &
Q: What are the exceptions for suspension of sentence of
b. In either case, the judgment shall determine if the act or
youthful offenders?
omission from which the civil liability might arise did exist (Sec.
A: Offender:
2, Rule 120).
1. has enjoyed previous suspension of sentence;
2. is convicted of a crime punishable by death or life
Q: What is the rule regarding a judgment for two or more
offenses charged in the complaint or information?
3. is convicted by a military tribunal; or
A: The court may convict the accused of as many offenses as are
charged & proved, & impose the penalty for each offense, 4. is already of age at the time of sentencing even if he was a
setting out separately the findings of fact & law in each offense minor at the time of the commission of the crime (Declarador v.
(Sec. 3) Gubaton, G.R. No. 159208, Aug. 18, 2006).

Note: Failure of the accused to object to the duplicity of offense Q: What if the minor already reached the age of majority upon
charged in the complaint or information, is deemed a waiver thereof the promulgation of his sentence?
(Herrera, Vol. IV, p. 882, 2007 ed.). A: He is no longer entitled to the suspension of sentence.
However, the time he spent during the period of his
Q: What is the rule regarding a judgment in case of variance confinement shall be credited to his actual service of sentence.
between the offense charged & proved? Furthermore, he shall still be entitled to the privileged mitigating
circumstance of minority (People v. Francisco, G.R. No. 102976, 1. Judgment is for a light offense, in which case judgment may
Oct. 25, 1995; R.A. 9344, Juvenile Justice & Welfare Act of 2006). be promulgated in the presence of the counsel for the accused
or a representative.
Q: What is probation? A: A disposition under which a 2. Accused fails to attend the promulgation despite due notice
defendant, after conviction & sentence, is subject to conditions or if he jumped bail or escaped from prison. Notice must be
imposed by the court & under the supervision of a probation given to the bondsmen, warden, accused’s bailor & counsel (Sec.
officer (Sec. 3, PD 968, Probation Law). 6).

Q: How is promulgation in absentia conducted?

3. PROMULGATION OF JUDGMENT; INSTANCES OF A: Promulgation shall be made by:
PROMULGATION OF JUDGMENT IN ABSENTIA 1. Recording the judgment in the criminal docket; &
Q: What is promulgation of judgment? 2. Serving the accused a copy thereof at his last known address
A: It is the official proclamation or announcement of judgment. or through his counsel.
It consists of reading the judgment or sentence in the presence
of the accused & any judge of the court rendering the judgment. Q: What is the remedy if the judgment fails to award civil
Q: How is judgment promulgated? A: 1. Appeal;
A: It is promulgated by reading it in the presence of the accused 2. Certiorari; or
& any judge of the court which rendered it (Sec. 6). 3. Mandamus

Q: Is the accused required to be present during the

promulgation of judgment?
XPNs: Q: When does judgment becomes final?
1. In case of acquittal; A: Judgment becomes final:
2. Conviction of light offense wherein the judgment may be 1. After the lapse of time for perfecting an appeal
pronounced in the presence of the accused’s counsel or 2. When the sentence has been partially or totally satisfied
representative; & 3. When the accused has expressly waived in writing his right to
3. Promulgation of judgment when the accused was tried in appeal
absentia(Sec. 6). 4. When the accused has applied for probation

Q: Who promulgates the judgment? Q: When may the trial court lose jurisdiction even before the
A: GR: The judge of the court who renders the judgment. lapse of the 15 day period?
XPN: When: A: The trial court loses jurisdiction even before the lapse of the
1. The judge is absent or outside the province or city – judgment 15 day period when:
may be promulgated by the clerk of court; & 1. The defendant voluntarily submits to the execution of the
2. Accused is confined or detained in another city – judgment judgment;
may be promulgated by the executive judge of the RTC having 2. When the defendant perfects an appeal;
jurisdiction over the place of confinement or detention (Sec. 6). 3. Defendant withdraws his appeal;
4. Accused expressly waives in writing his right to appeal;
Q: Is the presence of the accused indispensable in the 5. Accused files for probation.
promulgation of judgment?
A: No. The promulgation shall still be made by recording such M. NEW TRIAL OR RECONSIDERATION (RULE 121)
judgment in the criminal docket & serving him a copy thereof in 1. GROUNDS FOR NEW TRIAL
his last known address or through his counsel. If judgment is one 2. GROUNDS FOR RECONSIDERATION
of conviction & the accused is absent without justifiable cause,
the court shall order his arrest & he shall lose the remedies Q: Distinguish new trial from reconsideration?
available in the rules against judgment & his bail shall be A: New trial Reconsideration
forfeited. Rehearing of a case already decided May be filed in order to
However, the accused may surrender & file a motion for leave of but before the judgment of conviction correct errors of law or
court to avail of these remedies within fifteen (15) days from the therein rendered has become final, fact in the judgment. It
promulgation of judgment. If such motion is granted, he may whereby errors of law or irregularities does not require any
avail of these remedies within fifteen (15) days from notice of are expunged from the record or new further proceeding.
such order granting the motion (Sec. 6). evidence is introduced, or both steps
Note: He must however, state the reasons for his absence at the are taken
promulgation & prove that his absence was for a justifiable cause. Grounds: Grounds:
1. Errors of law or irregularities 1. Errors of law; or
Q: What are the instances when judgment may be prejudicial to the substantial rights of
promulgated even if the accused is not present? the accused have been committed
2. Errors of fact (Sec. 3).
A: during the trial.
2. New & material evidence has been
Note: The principle
discovered which the accused could underlying this rule is to
not, with reasonable diligence, have
discovered & produced at the trial & afford the trial court the A: It may be granted at any time before the judgment of
which if introduced & admitted would opportunity to correct its conviction becomes final on motion of the accused or the court
probably change the judgment (Sec. own mistakes & to avoid with the consent of the accused (Sec. 1).
2). unnecessary appeals from Note: The award of new trial or taking of additional evidence rests
3.Other grounds which the court may being taken. The grant by upon the sound discretion of the court. Once the appeal is
consider in the exercise of its the court of perfected, the court a quo loses jurisdiction over it, except for the
jurisdiction : reconsideration should purpose of correcting clerical errors. In such case, the appellate
a.Negligence or incompetency of require no further court steps in. When new material evidence has been discovered,
counsel or mistake which is so gross proceedings, such as the accused may file a motion for new trial with the appellate court.
amounting to deprivation of the taking of additional proof.
substantial rights of the accused & Q: What should be the form of a motion for new trial or
due process; (Aguilar v. Court of reconsideration?
Appeals GR No. 114282, November 28, A: The motion must: 1. be in writing; 2. filed in court; 3. state the
1995) grounds on which it is based; & 4. if the motion for new trial is
b. Recantation of a witness where based on newly discovered evidence, it must be supported by
there is no evidence sustaining the
the affidavits of the witness by whom such evidence is expected
judgment of conviction other than the
to be given or duly authenticated copies of documents which it
testimony of such witness; (Tan Ang
Bun v. Court of Appeals GR No
is proposed to introduce in evidence (Sec. 4).
c. Improvident plea of guilty which Note: While the rule requires that an affidavit of merits be attached
may be withdrawn; to support a motion for new trial based on newly discovered
d. Disqualification of attorney de evidence, the rule also allows that the defect of lack of merit may be
officio to represent accused in trial. cured by the testimony under oath of the defendant at the hearing
of the motion (Paredes v. Borja, G.R. No. L-15559, Nov. 29, 1961).
Q: What is recantation? Is it a ground for new trial?
A: Recantation is the public & formal withdrawal of a witness of
his prior statement (People v. Ballabare, G.R. No. 108871, Nov. Q: What are the requisites before a new trial may be granted
19, 1996). It is not a ground for new trial because it makes a on the ground of newly discovered evidence?
mockery of the court & would place the investigation of truth at A: That:
the mercy of unscrupulous witness. Moreover, retractions are 1. the evidence was discovered after trial;
easy to extort out of witness. In contrast, their statements are 2. such evidence could not have been discovered and produced
made under oath, in the presence of judge, & with the at the trial even with the exercise of reasonable diligence;
3. it is material, not merely cumulative, corroborative or
opportunity to cross-examine.
impeaching; and
Q: Distinguish recantation from desistance.
4. the evidence is of such a weight that it would probably change
A: Recantation Affidavit of Desistance the judgment if admitted (Herrera, Vol. IV, p. 935, 2007 ed.).
A witness who previously gave a The complainant states that he
testimony subsequently declares did not really intend to Q: May errors or ignorance of counsel be a ground for new trial
that his statements are untrue institute the case & he is no or consideration?
publicly (People v. Ballabare, G.R. longer interested in testifying
No. 108871, Nov. 19, 1996). or prosecuting.
GR: Mistakes or errors of counsel in the conduct of his case are
GR: It is not a ground for granting It is not by itself a ground for
not grounds for new trial. This rule is the same whether the
a new trial & are hardly given dismissal of the action (People
mistakes are the result of ignorance, inexperience, or
weight v. Ramirez, G.R. Nos. 150079-
XPN: When there is no evidence 80, June 10, 2004). incompetence.
sustaining the judgment of It is merely an additional XPN: If the incompetence, ignorance or inexperience of counsel
conviction other than the ground to buttress the defense is so great and the error committed as a result thereof is so
testimony of the recanting & not a sole consideration for serious that the client, who otherwise has a good cause, is
witness (Tan Ang Bun v. CA, G.R. acquittal (People v. Ballabare, prejudiced and denied his day in court, the litigation may be
No. L-47747, Feb. 15, 1990). G.R. No. 108871, Nov. 19, reopened to give the client another chance to present his case
1996). (Abrajano v. CA, G.R. No. 114282, Oct. 13, 2000).
Q: When should a motion for new trial or consideration be
filed? A: It should be filedwith the trial court within 15 days 4. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION
from the promulgation of the judgment. Q: What are the effects of granting a new trial or
Note: Notice of the motion for new trial or reconsideration shall be reconsideration?
given to the prosecutor. A: In all cases, when the court grants a new trial or
reconsideration, the original judgment shall be set aside or
Q: When should a motion for reconsideration of any final order vacated and a new judgment rendered accordingly.
or order be filed in cases before the Sandiganbayan? In addition, when granted on the ground of:
A: It may be filed within fifteen (15) days from the promulgation 1. Errors of law or irregularities committed during the trial
or notice of final order or judgment (Sec. 5, R.A. 8249). a. All proceedings and evidence not affected by such errors and
Note: Such motion for reconsideration shall be decided within 30 irregularities shall stand;
days from submission (Sec. 5, R.A. 8249). b. Those affected shall be set aside and taken anew; and
c. In the interest of justice, the court may allow the introduction
Q: When may a new trial granted? of additional evidence.
substantial difference between the two provisions insofar as
2. Newly discovered evidence legal results are concerned – the appeal period stops running
a. The evidence already taken shall stand; upon the filing of a motion for new trial or reconsideration and
b. Newly discovered and other evidence as the court may, in the starts to run again upon receipt of the order denying said
interest of justice, allow to be introduced, shall be taken and motion for new trial or reconsideration. It was this situation that
considered together with the evidence already in the record Neypes addressed in civil cases. No reason exists why this
(Sec. 6). situation in criminal cases cannot be similarly addressed.

Note: The effect of granting a new trial is not to acquit the accused Third, while the Court did not consider in Neypes the ordinary
of the crime of which the judgment finds him guilty but precisely to appeal period in criminal cases under Section 6, Rule 122 of the
set aside said judgment so that the case may be tried de novo as if Revised Rules of Criminal Procedure since it involved a purely
no trial had been had before. civil case, it did include Rule 42 of the 1997 Rules of Civil
Procedure on petitions for review from the RTCs to the Court of
5. APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure
Q: What is the effect of filing a motion for new trial or governing appeals by certiorari to this Court, both of which also
reconsideration on the period of perfecting an appeal? apply to appeals in criminal cases, as provided by Section 3 of
A: A fresh period of fifteen (15) days to appeal is counted from Rule 122 of the Revised Rules of Criminal Procedure.
the denial of the motion for reconsideration or new trial (Neypes
v. CA, G.R. No. 141524, Sept. 14, 2005).
Note: Denial of a motion for reconsideration or new trial is not
appealable nor subject of certiorari; but it may be raised as an error
on appeal.
Q: Distinguish new trial from reopening of the case.
A: New Trial Re-opening of the Case
Filed after judgment is Made by the court before the Q: What are the modes of review?
rendered but before the judgment is rendered in the
A: The Rules of Court recognize four modes by which the
finality thereof. exercise of sound discretion.
decision or final order of the court may be reviewed by a higher
Made by the court on Does not require the consent of the
motion of the accused or at accused; may be at the instance of
its own instance but with the either party who can thereafter
1. Ordinary Appeal;
consent of the accused. present additional evidence. 2. Petition for Review;
3. Petition for Review on Certiorari;
4. Automatic Appeal
Q: What is the “fresh period rule” as enunciated in Neypes?
A: In Neypes, the Court modified the rule in civil cases on the Q: What is appeal?
counting of the 15-day period within which to appeal. The Court A: It is a proceeding for review by which the whole case is
categorically set a fresh period of 15 days from a denial of a transferred to the higher court for a final determination. It is not
motion for reconsideration within which to appeal. an inherent right of a convicted person. The right of appeal is
The "fresh period rule" shall also apply to Rule 40 governing statutory. Only final judgments and orders are appealable.
appeals from the Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the Regional Trial Q: Who may appeal?
Courts to the Court of Appeals; Rule 43 on appeals from quasi- A: Any party may appeal from a judgment or final order, unless
judicial agencies to the Court of Appeals and Rule 45 governing the accused will be placed in double jeopardy (Sec. 1).
appeals by certiorari to the Supreme Court. The new rule aims to
regiment or make the appeal period uniform, to be counted Q: What is the effect of an appeal?
from receipt of the order denying the motion for new trial, A: An appeal in a criminal case opens the whole case for review
motion for reconsideration (whether full or partial) or any final
and this includes the review of penalty, indemnity, and the
order or resolution (Neypes v. Court of Appeals, G.R. No. 141524,
September 14, 2005). damages involved. Consequently, on appeal, the appellate court
may increase the penalty and indemnity of damages awarded by
Q: Does the “fresh period rule” apply to criminal cases? the trial court although the offended party had not appealed
A: Yes. The Court held in the case of Yu v. Samson-Tatad(G.R. from said award, and the party who sought a review of the
No. 170979, Feb. 9, 2011) that the pronouncement of a “fresh decision was the accused.
period” to appeal should equally apply to the period for appeal
in criminal cases under Section 6 of Rule 122, for the following Note: When an appeal has been perfected, the court a quo loses
reasons: jurisdiction.
First, BP 129, as amended, the substantive law on which the
Rules of Court is based, makes no distinction between the Q: What is the difference between the appeal of a judgment nd
periods to appeal in a civil case and in a criminal case. the appeal of an order?
A: The appeal from a judgment must be perfected within 15
Second, the provisions of Section 3 of Rule 41 of the 1997 Rules days from promulgation. The appeal from an order should be
of Civil Procedure and Section 6 of Rule 122 of the Revised Rules perfected within 15 days from notice of the final order.
of Criminal Procedure mean exactly the same. There is no
3. Failure of the appellant to pay the docket and other lawful
2. WHERE TO APPEAL fees as provided in section 5 of Rule 40 and section 4 of Rule 41;
Q: When is appeal taken? 4. Unauthorized alterations, omissions or additions in the
A: An appeal must be filed within fifteen (15) days counted from approved record on appeal as provided in section 4 of Rule 44;
the promulgation or notice of the judgment or order appealed 5. Failure of the appellant to serve and file the required number
from. of copies of his brief of memorandum within the time provided
by these Rules;
Q: Where is the appeal taken? 6. Absence of specific assignment of errors in the appellant’s
A: To the: brief, or of page references to the record as required in
1. RTC, in cases decided by the MTC, MTCC, MeTC, or MCTC; section 13, paragraphs (a), (c), (d) and (f) of Rule 44;
2. CA or to the SC in the proper cases provided by law, in cases 7. Failure of the appellant to take the necessary steps for the
decided by the RTC; correction or completion of the record within the time limited
3. SC, in cases decided by the CA (Sec. 2). by the court in its order;
8. Failure of the appellant to appear at the preliminary
Q: May the prosecution appeal a judgment of acquittal? conference under Rule 48 or to comply with orders, circulars, or
A: directives of the court without justifiable cause; and
GR: No, because the accused would be subjected to double 9. The fact that the order or judgment appealed from is not
jeopardy. appealable (Rule 50 )
1. If the dismissal is made upon motion or with the express
consent of the accused. However, double jeopardy will still
attach if the dismissal is based on:
a. Insufficiency of the prosecution evidence; or 3. HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC,
b. Violation of the accused’s right to speedy trial. October 3, 2002)
2. If the dismissal is not an acquittal or based upon consideration Q: How is appeal taken?
of the evidence on the merits; Appeal From decision of How taken
3. If the question is purely legal so that should the dismissal be to
found incorrect, the case shall be remanded for further RTC MTC 1. File a notice
proceedings to determine the guilt or innocence of the accused; of appeal with
and the MTC;
4. If there is a showing of grave abuse of discretion amounting to 2. Serve a copy
lack or excess of jurisdiction, certiorari under Rule 65 may be of the notice to
available. the adverse
CA RTC 1. File a notice
1. Exercising its original jurisdiction for of appeal with
offenses with imposable penalties less the RTC;
Q: What are the effects of appeal by any of the several than reclusion perpetua or life 2. Serve a copy
accused? imprisonment of the notice to
A: the adverse
1. An appeal taken by one or more of several accused shall not party.
affect those who did not appeal, except insofar as the judgment File a petition
of the appellate court is favorable and applicable to the latter; for review
2. Exercising its appellate jurisdiction
2. The appeal of the offended party from the civil aspect shall under Rule 42.
not affect the criminal aspect of the judgment or order appealed
from; and 3. Where the imposable penalty is: 1. File a notice
3. Upon perfection of the appeal, the execution of the judgment a. life imprisonment or reclusion of appeal with
perpetua; or the RTC;
or final order appealed from shall be stayed as to the appealing
b. a lesser penalty for offenses 2. Serve a copy
party (Sec. 11).
committed on the same occasion or of the notice to
which arose from the same the adverse
Note: In People v. Fernandez (G.R. No. 80481, June 27, 1990), the SC
occurrence that gave rise to the party
applied the benefit of an acquittal handed down in an appeal to an
offense punishable reclusion perpetua
accused who jumped bail or escaped.
or life imprisonment
4. Where the imposable penalty is Automatic
death review to CA
Q: What are the grounds for the dismissal of an appeal?
A: SC RTC 1. All other appeals except: Petition for
1. Failure of the record on appeal to show on its face that the a. Decision of RTC where the review on
appeal was taken within the period fixed by these Rules; imposable penalty is life certiorari via
2. Failure to file the notice of appeal or the record on appeal imprisonment or reclusion perpetuaor Rule 45
within the period prescribed by these Rules; a lesser penalty for offenses
committed on the same occasion or
which arose from the same
occurrence that gave rise to the 3. They are not available to individuals in the course of civil
offense punishable by reclusion proceedings;
perpetua or life imprisonment; and 4. It is not for the maintenance of any mere private right;
b. Decisions of RTC imposing the 5. It is interlocutory in character- it leaves something more to be
penalty of death. done, the determination of the guilt of the accused.
2. CA
a. When it finds that death penalty a. Automatic Q: What are the requisites for issuing a search warrant?
should be imposed review (Sec. 13, A:
Rule 124)
1. The search warrant must be issued upon probable cause;
b. Where it imposes reclusion b. Notice of
2. Probable cause must be determined by the judge;
perpetua, life imprisonment or a appeal (Sec. 13,
lesser penalty Rule 124) 3. The judge must have personally examined the witness, in the
form of searching questions and answers, the applicant and his
3. Sandiganbayan
witnesses and took down their depositions;
a. Exercising its appellate jurisdiction a. File a notice
4. Must particularly describe or identify the property to be
for offenses where the imposable of appeal
seized as far as the circumstances will ordinarily allow;
penalty is reclusion perpetua or life
imprisonment 5. Must particulary describe the place to be searched and the
b. Exercising its original jurisdiction b. File a notice person or things to be seized;
for offenses where the imposable of appeal (Sec. 6. Must be in connection with one specific offense:
penalty is reclusion perpetua and life 13, Rule 124; 7. The sworn statements together with the affidavit submitted
imprisonment Sec. 5, PD 1606) by witnesses must be attached to the record. (Prudente v. Dayrit
c. Exercising its original or appellate c. Automatic GR No. 82870, December 14, 1989);
jurisdiction where it finds that the review (Sec. 13, 8. It must not have been issued more than 10 days prior to the
penalty to be imposed is death Rule 124; Sec. 5, search made pursuant thereto.
PD 1606 as
amended by Note: Two points must be stressed in connection with this mandate:
R.A. 8249) (1) that NO warrant of arrest shall issue but upon probable cause to
d. Cases not falling in paragraphs a d. Petition for be determined by the judge in the manner set forh in said provision,
and b above review on and (2) that the warrant shall particularly describe the things to be
certiorari via
seized. (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967)
Rule 45

Q: Distinguish Search from Seizure.

A: The term search as applied to searches and seizures is an
examination of a man’s house or other buildings or premises or
O. SEARCH AND SEIZURE (RULE 126) of his person with a view to the discovery of contraband or illicit
1. NATURE OF SEARCH WARRANT or stolen property or some evidence of guilt to be used in the
Q: What is a search warrant? prosecution of a criminal action for some offense with which he
A: A search warrant is an order in writing issued in the of the is charged.
People of the Philippines, signed by the judge and directed to a A seizure is the physical taking of a thing into custody.
peace officer, commanding him to search for personal property
described therein and bring it before the court. 2. DISTINGUISH FROM WARRANT OF ARREST
Note: The warrant MUST name the person upon whom it is to be Q: Distinguish a warrant of arrest from a search warrant.
served EXCEPT in those cases where it contains a DESCRIPTIO
PERSONAE such as will enable the officer to identify the person. The
A: Warrant of Arrest Search Warrant
description must be sufficient to indicate clearly the proper person
upon whom it is to be served. (People v. Veloso GR No L-23051, Order directed to the peace Order in writing in the name of
October 20, 1925) officer to execute the warrant the Republic of the Philippines
by taking the person stated signed by the judge and directed
therein into custody so that he to the peace officer to search
Q: What is a general warrant?
may be bound to answer for the personal property described
A: A general warrant is a search warrant which vaguely describes
commission of the offense. therein and to bring it to court.
and does not particularize the personal properties to be seized
Does not become stale. Validity is for 10 days only.
without a definite guidelines to the searching team as to what
May be served on any day and To be served only in daytime
items might be lawfully seized, thus giving the officers of the law at any time of day or night. unless the affidavit alleges that
discretion regarding what articles they should seize. the property is on the person or
NOTE: A general warrant is not valid as it infringes on the in the place to be searched.
constitutional mandate requiring particular description of the things Searching examination of Must personally conduct an
to be seized. witnesses is not necessary. examination of the complainant
and the witnesses.
Q: What is the nature of a search warrant? Judge is merely called upon to Examination must be probing.
A: examine and evaluate the Not enough to merely adopt the
1. Search warrants are in the nature of criminal process and may report of the prosecutor and questions and answers asked by
be invoked only in furtherance of public prosecutions; the evidence a previous investigator
2. Search warrants have no relation to civil process or trials; and
Note: In general, the requirements for the issuance of a search 2. The examination must be under oath; and
warrant are more stringent than the requirements for the issuance 3. The examination must be reduced in writing in the form of
of a warrant of arrest. The violation of the right to privacy produces searching questions and answers (People v. Mamaril, 420 SCRA
a humiliating effect which cannot be rectified anymore. This is why 662)
there is no other justification for a search, except a warrant. On the
other hand, in a warrant of arrest, the person to be arrested can Q: Who determines probable cause?
always post bail to prevent the deprivation of liberty.
A: GR: Probable cause must be determined personally by the
judge (Article 3, Section 2, 1987 Constitution)
Q: Why are the requirements for the issuance of a search
XPN: Deportation of illegal and undesirable aliens, whom the
warrant more stringent than the requirements for the issuance
President or the Commissioner of Immigration may order
of a warrant of arrest?
arrested following a final order of deportation for the purpose of
A: The violation of the right to privacy produces a humiliating
deportation (Harvey v. Defensor- Santiago GR No 82544, June
effect which cannot be rectified anymore. This is why there is no
28, 1988)
other justification for a search, except a warrant. On the other
Note: The requirement of probable cause, to be determined by a
hand, in a warrant of arrest, the person to be arrested can Judge, does not extend to deportation proceedings. (Tiu Chun Hai v.
always post bail to prevent the deprivation of liberty. Commissioner, G.R. No. L-10009 December 22, 1958)

3. APPLICATION FOR SEARCH WARRANT, WHERE FILED Q: What is Multi Factor Balancing Test in determining probable
Q: Where should an application for a search warrant be filed? cause? A: Multi Factor Balancing test is one which requires the
A: officer to weigh the manner and intensity of the interference on
GR: It should be filed with the court within whose territorial the right of the people, the gravity of the crime committed, and
jurisdiction the crime was committed. For compelling reasons, the circumstances attending the incident.
any court within the judicial region where the crime was
committed if the place of the commission of the crime is known, 5. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND
or any court within the judicial region where the warrant shall WITNESS
be enforced Q: What are the requisites of personal examination by the
XPNs: judge?
1. However, if the criminal action has been filed, the application A:
shall only be made in the court where the criminal action is 1. The judge must examine the witness personally;
pending (Sec. 2); 2. The examination must be under oath;
2. In case of search warrant involving heinous crimes, illegal 3. The examination must be reduced to writing in the form of
gambling, illegal possession of firearms and ammunitions as well searching questions and answers (Marinas v. Siochi, G.R. Nos. L-
as violations of the Comprehensive Dangerous Drugs Act of 25707 & 25753-25754, May 14, 1981);
2002, the Intellectual Property Code, the Anti- Money 4. It must be probing and exhaustive, not merely routinary or
Laundering Act of 2001, the Tariff and Customs Code, the pro forma (Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986);
Executive judges and whenever they are on official leave of and
absence or are not physically present in the station, the Vice- 5. It is done ex-parte and may even be held in the secrecy of
Judges of RTCs of Manila and Quezon City shall have the chambers (Mata v. Bayona, G.R. No. L-50720, Mar. 26, 1984).
authority to act on the application filed by the NBI, PNP and the
Anti- Crime Task Force (ACTAF). (Administrative Matter No. 99- 6. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO
Q: What are the kinds of personal properties to be seized by
Note: The application shall be personally endorsed by the heads of
virtue of a search warrant?
such agencies and shall particularly described therein the places to
be searched and/ or the property or things to be seized as
prescribed in the Rules of Court. The Executive Judges and the Vice-
1. Subject of the offense;
Exceutive Judges concerned shall issue the warrants if justified, 2. Stolen or embezzled and other proceeds or fruits of the
which may be served outside the territorial jurisdiction of said offense; and
courts. (Sps. Marimla v. People of the Philippines, GR No. 158467, 3. The means used or intended to be used as the means of
October 16, 2009) committing an offense (Sec. 3).

4. PROBABLE CAUSE Note: It is not required that the property to be seized should be
Q: What is probable cause? A: It refers to the facts and owned by the person against whom the search warrant is directed.
circumstances which could lead a reasonably discreet and It is sufficient that the person against whom the warrant is directed
prudent man to believe that an offense has been committed and has control or possession of the property sought to be seized
that the objects sought in connection with the offense are in the (Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984).
place sought to be searched(Burgos v. Chief of Staff, G.R. No. L-
65334, Dec. 26, 1984). Q: What are the tests to determine particularity of the place to
be searched?
Q: What are the requisites in determining the existence of A:
probable cause? 1. When the description therein is as specific as the ordinary
A: 1. The judge must examine the complainant and his witness circumstance will allow (People v. Rubio, GR No L-35500,
personally; October 27, 1932);
2. When the description express a conclusion of fact, not of law out of the jurisdiction before such warrant could be secured
which the warrant officer may be guided in making the search (People v. Lo Ho Wing, G.R. No. 88017, Jan. 21, 1991).
and seizure;
3. When the things described therein are limited to those which 4. Checkpoints; body checks in airport
bear direct relation to the offense for which the warrant is being NOTE: Searches conducted in checkpoints are valid for as long as
issued. they are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists. For as long as the
Q: What is the purpose of describing with particularity the vehicle is neither searched nor its occupants subjected to a body
place to be searched and the persons or things to be seized? search, and the inspection of the vehicle is limited to a visual search,
A: The purpose of the rule is to leave the officers of the law with said routine checks cannot be regarded as violative of an individual’s
right against unreasonable search. (People v. Vinecario, G.R. No.
not discretn regarding what articles they shall seize, to the end
141137, January 20, 2004)
that “unreasonable searches and seizures” may not be made- In body checks in airports, passengers attempting to board an
that abuses may not be committed. (Stonehill v. Diokno, G.R. No. aircraft routinely pass through metal detectors; their carry-on
L-19550, June 19, 1967) baggage as well as checked luggage are routinely subjected to x-ray
scans. Should these procedures suggest the presence of suspicious
7. PERSONAL PROPERTY TO BE SEIZED objects, physical searches are conducted to determine what the
Q: What are the kinds of personal properties to be seized by objects are. There is little question that such searches are
reasonable, given their minimal intrusiveness, the gravity of the
virtue of a search warrant?
safety interests involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are often notified
1. Subject of the offense; through airport public address systems, signs, and notices in their
2. Stolen or embezzled and other proceeds or fruits of the airline tickets that they are subject to search and, if any prohibited
offense; and materials or substances are found, such would be subject to seizure.
3. The means used or intended to be used as the means of These announcements place passengers on notice that ordinary
committing an offense (Sec. 3). constitutional protections against warrantless searches and seizures
do not apply to routine airport procedures. (People v. Johnson, G.R.
Note: It is not required that the property to be seized should be No. 138881, December 18, 2000)
owned by the person against whom the search warrant is directed.
It is sufficient that the person against whom the warrant is directed 5. Plain view situation
has control or possession of the property sought to be seized The plain view doctrine authorizes a search and a seizure
(Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984). without a warrant.
For the doctrine to apply, the following requisites must be met:
8. EXCEPTIONS TO SEARCH WARRANT REQUIREMENT a. There must have been a legal presence in the place where the
b. CONSENTED SEARCH b. The evidence was discovered inadvertently by an officer with
c. SEARCH OF MOVING VEHICLE a right to be where he is;
d. CHECK POINTS; BODY CHECKS IN AIRPORT c. The evidence is immediately apparently illegal; and
e. PLAIN VIEW SITUATION d. There is no need for any further search to obtain the evidence
f. STOP AND FRISK SITUATION (People v. Concepcion, 361 SCRA 540; People v. Sarap, 399 SCRA
g. ENFORCEMENT OF CUSTOM LAWS 503; People v. Go; 411 SCRA 81)

Q: May there be valid warrantless search? 6. Stop and frisk situations

A: Yes, the following are instances where a warrantless search is This is a limited protective search of the outer clothing of a
valid: person to determine the presence of weapons. Probable cause is
1. Search incident to lawful arrest not required but a genuine reason (not mere suspicion) must
Immediate control test – A search incidental to a lawful exist, in the light of the officer’s experience and surrounding
warrantless arrest may extend beyond the person where the circumstances, to warrant the belief that the persons has
exigencies of the situation justify a warrantless search for concealed weapons (Malacat v. Court of Appeals, 283 SCRA
dangerous weapons and to prevent the arrestee from destroying 159).
evidence of the crime within reach (People v. Musa, G.R. No. Its object is either to:
95329, Jan. 27, 1993). a. determine the identity of a suspicious individual
b. maintain the status quo momentarily while the police officer
2. Consented search (waiver of right) – Consent cannot be seeks to obtain more information.
presumed simply because the accused failed to object to the
search. To constitute a waiver, it must appear that: Note: The officer may search the outer clothing of the person in an
a. The right exists; attempt to discover weapons which might be used to assault him
b. The person involved had knowledge, actual or constructive, of (Manalili v. CA, G.R. No. 113447, Oct. 9, 1997).
the existence of such rights; and 7. Enforcement of custom laws
c. Actual intention to relinquish such rights (People v. Burgos,
Q: What are the remedies against an unlawful search?
3. Search of moving vehicle – May validly be made without a A:
search warrant because the vessel or aircraft can quickly move 1. Motion to quash the search warrant;
2. Motion to suppress as evidence the objects illegally taken A: No notice to the adverse party, or hearing on the application
(exclusionary rule – any evidence obtained through is required before a writ of preliminary attachment may issue as
unreasonable searches and seizures shall be inadmissible for any a hearing would defeat the purpose of the provisional remedy.
purpose in any proceeding); The time which such hearing would take could be enough to
3. Replevin, if the objects are legally possessed; and enable the defendant to abscond or dispose of his property
4. Certiorari, where the search warrant is a patent nullity. before a writ of attachment may issue (Mindanao Savings etc v.
Court of Appeals, 172 SCRA 480)
Note: The remedies are alternative. If a motion to quash is denied, a Note: The only requirements for the issuance of a writ of
motion to suppress cannot be availed consequently. The illegality of preliminary attachment are: the affidavit and bond of the applicant.
the search warrant does not call for the return of the things seized,
the possession of which is prohibited by law. However, those Q: When may attachment be availed?
personalities seized in violation of the constitutional immunity A: Attachment may be availed of ONLY when the civil action
whose possession is not illegal or unlawful per se ought to be arising from the crime has not been expressly waived or not
returned to their rightful owner or possessor. reserved and is limited on the following instances:
1. When the accused is about to abscond from the Philippines;
Q: In what court may a motion to quash the search warrant or 2. When the criminal action is based on a claim for money or
suppress evidence be filed? property embezzled or fraudulently misapplied or converted for
A: the use of the accused who is a public officer or a corporate
1. It may be filed and acted upon ONLY by the court where the officer or an attorney, broker, or agent or clerk in the course of
action has been instituted; employment or by a person in fiduciary capacity;
2. If no criminal action has been instituted, it may be filed in and 3. When the accused has concealed or removed or about to
resolved by the court that issued the warrant. However if such dispose of his property; and
court failed to resolve the motion and a criminal case is 4. When the accused resides abroad.
subsequently filed in another court, the motion shall be resolved
by the LATTER court.


Q: What is the nature of provisional remedies?
A: They are those to which parties may resort for the
preservation or protection of their rights or interests and for no
other purposes during the pendency of the action. They are
applied to a pending litigation for the purpose of securing the
judgment or preserving the status quo; and in some cases after
judgment, for the purpose of preserving or disposing of the
subject matter (Cala v. Roldan, G.R. No. L-252, Mar. 30, 1946).


Q: What provisional remedies are available in criminal cases?
A: As far as applicable, provisional remedies under the Civil
Procedure are available (Sec. 1) such as:
1. attachment (Rule 57);
2. preliminary Injunction (Sec. 58);
3. receivership (Rule 59);
4. delivery of personal property (Rule 60);
5. support Pendent lite (Rule 61).

Q: Who may apply for attachment?

A: The aggrieved party in whose behalf the civil aspect of the
criminal action is prosecuted may apply for the issuance of a writ
of preliminary attachment, he being the person primarily and
directly interested thereby. The prosecutor in the criminal action
may make such an application in behalf of or for the protection
of the interest of the offended party.

Note: The Public prosecutor has the authority to apply for

preliminary attachment as may be necessary to protect the interest
of the offended party.

Q: Is notice to the adverse party required before a writ of

preliminary attachment may issue?