Posted by: Elmer Brabante | June 1, 2011

Reviewer in Criminal Procedure


 PART III.

RULES OF CRIMINAL PROCEDURE

Rules 110 – 127

 General Matters

Requisites for exercise of criminal jurisdiction

 

  1. The court is clothed with jurisdiction over the offense by virtue of the imposable penalty and its nature; and

  2. The action has been filed within the territorial jurisdiction of the court.

 

Jurisdiction of Criminal courts

Court

Original

Exclusive Appellate

Supreme Court

Exclusive:Petitions for certiorari, prohibition and mandamus against the CA and Sandiganbayan.

Concurrent:

a) with CA: petitions for certiorari, prohibition and mandamus against RTC;

b) with CA and RTC: petitions for certiorari, prohibition and mandamus against lower courts;

c) with Sandiganbayan: petitions for mandamus, prohibition, certiorari, habeas corpus, injunction and ancillary writs in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto arising or that may arise in cases filed or which may be filed under EO Nos. 1, 2, 14 and 14-A.

By Appeal:a) from the RTC in all criminal cases involving offenses for which the penalty is reclusion perpetua or life imprisonment, and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion;

b) Automatic review where death penalty is imposed.

By Petition for Review on Certiorari:

a) from the Court of Appeals;

b) from the Sandiganbayan;

c) from the RTC where only an error or question of law is involved.

Court of Appeals

Exclusive:Actions for annulment of judgments of the RTC

Concurrent:

a) with the SC: petitions for certiorari, prohibition and mandamus against RTC;

b) with SC and RTC: petitions for certiorari, prohibition and mandamus against lower courts.

By Appeal:From the RTC in cases commenced therein, except those appealable to the SC or the Sandiganbayan;

By Petition for Review:

From the RTC in cases appealed thereto from the lower courts and not appealable to the Sandiganbayan

Sandiganbayan

Exclusive:a) Violations of RA 3019, as amended, RA 1379, and bribery and corruption offenses under the Revised Penal Code, where one or more of the accused are officials occupying positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense;

b) Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned in Sec. 4[a], PD 1606, as amended by RA 7075;

b) Criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14, and 14-A,

By Appeal:

 

a) from the RTC in cases under PD 1606, as amended by PD 1861, whether or not the cases were decided b them in the exercise of their original or appellate jurisdictions;

 

Regional Trial Courts

All criminal cases which are not within the exclusive jurisdiction of any court, tribunal or body.

All cases decided by lower courts in their respective territorial jurisdictions.

Metropolitan, Municipal and Municipal Circuit Trial Courts

Original:a) Violations of city or municipal ordinances committed within their respective territorial jurisdictions;

b) All offenses punishable with imprisonment of not more than 6 years irrespective of the amount of fine, and in all cases of damage to property through criminal negligence, regardless of other penalties and the civil liabilities arising therefrom; and

c) All offenses (except violations of RA 3019, RA 1379 and Arts. 210 to 212, RPC) committed by public officers and employees in relation to their office, including those employed in GOCCs, and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment of not more than 6 years or where none of the accused holds a position of salary Grade 27 and higher.

Summary Procedure

a) Traffic violations;

b) Violations of the rental law;

c) Violations of city or municipal ordinances; and

d) All other offenses where the penalty does not exceed 6 months imprisonment and/or P1,000 fine, irrespective of other penalties or civil liabilities arising therefrom, and in offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000.

 

 

When injunction may be issued to restrain criminal prosecution

 

(1) General Rule: Criminal prosecution may not be restrained or stayed by injunction.

(2) Exceptions:

  1. To afford adequate protection to the constitutional rights of the accused;

  2. Then necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

  3. When there is a pre-judicial question which is sub judice;

  4. When the acts of the officer are without or in excess of authority;

  5. Where the prosecution is under an invalid law, ordinance or regulation;

  6. When double jeopardy is clearly apparent;

  7. Where the court has no jurisdiction over the offense;

  8. Where it is a case of persecution rather than prosecution;

  9. Where the charges are manifestly false and motivated by the lust for vengeance;

  10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and

  11. To prevent the threatened unlawful arrest of petitioners (Brocka v. Enrile, 192 SCRA 183 (1990).

 

Prosecution of Offenses Rule 110)

Criminal actions, how instituted

(1) Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.

(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor, unless otherwise provided in their charters.

The institution of the criminal action shall interrupt the period of prescription of the offense charged unless otherwise provided in special laws (Sec. 1).

  1. Preliminary investigation is required for offenses punishable by at least 4 years, 2 months, and 1 day, unless the accused was lawfully arrested without a warrant, in which case, an inquest must have been conducted (Secs. 1 and 7, Rule 112).

Who may file them, crimes that cannot be prosecuted de oficio 

All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in the Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if they are both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.

The offenses of seduction, abduction, and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.

The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph.

No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.

The prosecution of complaints for violation of special laws shall be governed by their provisions thereof (Sec. 5).

Art. 344 of the Revised Penal Code refers to crimes which cannot be prosecuted de oficio: These are private crimes, namely:

  1. Adultery and concubinage – to be prosecuted upon a complaint filed by the offended spouse, impleading both guilty parties, if both alive, unless he shall have consented or pardoned the offenders;

  2. Seduction, abduction, or acts or lasciviousness – to be prosecuted upon a complaint filed by the offended party or her parents, grandparents, or guardian, unless expressly pardoned by the above named persons (in such stated order);

  3. Defamation – to be prosecuted at the instance of and upon complaint expressly filed by the offended party (Art. 360, RPC).

 

Criminal actions, when enjoined

Control of prosecution

  1. Whenever a criminal case is prosecuted and the State is the offended party, the case must always be prosecuted under control and guidance of the State through the government prosecutors. Whenever there is acquittal or dismissal of the case and the private complainant intends to question such acquittal or dismissal, the same must likewise be undertaken by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may question such acquittal or dismissal or appeal therefrom only insofar as the civil aspect is concerned, in the name of the petitioner or appellant and not in the name of the People of the Philippines (Metropolitan Bank and Trust Co. vs. Veridiano II, 360 SCRA 359).

  2. The prosecution determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information. It is basically the prosecutor’s function to determine what degree of complicity to the commission of a crime a person should be charged with, whether as principal, accomplice or accessory (People vs. Pajo, 348 SCRA 493).

  3. The rule that the Solicitor General is the lawyer of the People in appellate courts admits an exception, namely, that which is provided for in RA 8249, which states in part that “in all cases elevated to the Sandiganbayan and fro the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO 1, 2, 14 and 14-A, issued in 1986.”

 

Sufficiency of Complaint or Information

  1. A complaint or information is sufficient if it states:

(a) The name of the accused;

(b) The designation of the offense given by the statute;

(c) The acts or omissions complained of as constituting the offense;

(d) The name of the offended party;

(e) The approximate date of the commission of the offense; and

(f) The place wherein the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information (Sec. 6).

  1. If the prosecutor refuses to include one accused, the remedy is mandamus. The procedure for state witness allows for initial inclusion of the accused in the information.

 

Designation of Offense

  1. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it (Sec. 8).

 

Cause of the Accusation

  1. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment (Sec. 9).

 

Duplicity of the Offense; Exception

  1. A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses (Sec. 13).

  2. Exception: The law prescribes a single punishment for various offenses, such as in continuing and complex crimes.

 

Amendment or Substitution of complaint or information

  1. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, Rule 119, provided the accused would not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial (Sec. 14).

  1. The test as to whether the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information (People vs. Montenegro, 159 SCRA 236).

  2. Amendment and substitution distinguished:

  1. Amendment may involve either formal or substantial changes; substitution necessarily involves a substantial change from the original charge;

  2. Amendment before plea has been entered can be effected without leave of court; substitution of information must be with leave of court, as the original information has to be dismissed;

  3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and

  4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge; hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. Substitution requires or presupposes that the new information involves different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy (Teehankee vs. Madayag, 207 SCRA 685).

  5. In substitution under the second paragraph of Sec. 14, where the new information charges an offense distinct and different from the one initially charged, due to mistake in charging the proper offense, there is need for a new preliminary investigation and another arraignment (People vs. Jaralba, 226 SCRA 602).

 

Venue of criminal actions

  1. Place where action is to be instituted:

(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred.

(b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where said train, aircraft or other vehicle passed during its trip, including the place of its departure and arrival.

(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law.

(d) Crimes committed outside of the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed (Sec. 15).

 

Intervention of offended party

  1. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense (Sec. 16).

 

Prosecution of Civil Action (Rule 111)

Rule on implied institution of civil action with criminal action 

  1. The general rule is that the institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged, except in the following cases:

  1. The offended party waives the civil action;

  2. He reserves his right to institute the civil action separately; or

  3. He institutes the civil action prior to the criminal action.The exception to the reservation requirement is a claim arising out of a dishonored check under BP 22, where no reservation to file such civil action separately shall be allowed, which means that the filing of the criminal action for violation of BP 22 shall be deemed to include the corresponding civil action and that unless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein.

  1. Another instance where no reservation shall be allowed and where a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing is a claim arising from an offense which is cognizable by the Sandiganbayan.

 

When civil action may proceed independently

 

  1. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action (Sec. 3).

  2. Civil Code provisions on the matter:

 

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant

 

When separate civil action is suspended

 

  1. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict may be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which civil liability may arise did not exist (Sec. 2).

 

(2) Effect of criminal action on separate civil action

  1. If criminal action has been commenced earlier – separate civil action cannot be instituted until final judgment has been entered in the criminal action.

  2. If the criminal action is filed after the separate civil action has already been instituted –

Civil action suspended, in whatever stage it may be found before judgment on the merits, until final judgment is rendered in the criminal action.

Civil action may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action

Evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action

Without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and the parties to present additional evidence.

The consolidated criminal and civil actions shall be tried and decided jointly.

  1. During the pendency of the criminal action, the running of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

 

Effect of the death of accused or convict on civil action

 

  1. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased (Sec. 4).

 

Rule 3, Sec. 16. Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

Rule 3, Sec. 20. Action on contractual money claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Rule 87, Sec. 1. Actions which may and which may not be brought against executor or administrator. – No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Rule 39, Sec. 7. Execution in case of death of party. — In case of the death of party, execution may issue or be enforced in the following manner:

(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest;

(b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon;

(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.

 

Prejudicial Question

 

  1. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests (Sec. 6).

  2. The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed (Sec. 7).

  3. General Rule: Criminal action takes precedence of civil actions.

Exceptions:

independent civil actions

prejudicial question

Even a preliminary investigation may be suspended by a prejudicial question.

To suspend a criminal action, the move to suspend should be filed before the prosecution rests.

  1. Prejudicial question which arises in a case the resolution of which is a logical antecedent of the issues involved in said cases, and the cognizance of which pertains to another tribunal (Lu Hayco vs. CA, Aug. 26, 1985).

  2. The test in determining the existence of a prejudicial question: It must appear not only that the civil case involves the same facts upon which the criminal prosecution is based, but also that the resolution of the issues in said civil action would be necessarily determinative of the guilt or innocence of the accused (Yap vs. Paras, GR 101236, Jan. 30, 1992).

  3. A prejudicial question can be interposed at the Office of the Prosecutor, but;

  1. The question can also be raised in court;

  2. If raised, the court should merely suspend the criminal case;

  3. The court must wait for a motion, otherwise, that is a waiver;

  4. The court cannot motu propio suspend the criminal case (Yap vs. Paras, supra).

  1. A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations is in effect a question on the merits of the criminal charge through a non-criminal suit (NIñal vs. Badayog, GR 133778, March 14, 2000).

 

Rule on Filing Fees in civil action deemed instituted with the criminal action

 

  1. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages (Sec. 1).

 

Preliminary Investigation (Rule 112)

 

 

Nature of right

 

  1. The preliminary investigation as defined in Sec. 1 is the preliminary investigation proper, which is not a judicial function, but a part of the prosecution’s job, a function of the executive. Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information (Paderanga vs. Drilon, 196 SCRA 86).

  2. The right to preliminary investigation is not a constitutional grant; it is merely statutory and may be invoked only when specifically created by statute (People vs. Carlos, 78 Phili. 535). While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial of a criminal offense and hence formally at risk of incarceration of some other penalty is not a mere formal or technical right; it is a substantive right…to deny petitioner’s claim to a preliminary investigation would be to deprive him of the full measure of his right to due process (Go vs. CA, 206 SCRA 138).

  3. Preliminary investigation is a function that belongs to the public prosecutor. It is an executive function, although the prosecutor, in the discharge of such function, is a quasi-judicial authority tasked to determine whether or not a criminal case must be filed in court.

  4. The right to preliminary investigation may be waived by the accused either expressly or impliedly. The posting of a bond by the accused constitutes such a waiver, such that even if the warrant was irregularly issued, any infirmity attached to it is cured when the accused submits himself to the jurisdiction of the court by applying for bail (In Re: Letter of Freddie Manuel, 54 SCAD 97, Aug. 4, 1994). It is also cured by submitting himself to arraignment (People vs. Hubilo, 220 SCRA 389).

 

Purposes of preliminary investigation

 

  1. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial (Sec. 1).

  2. The basic purpose of preliminary investigation is to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Cruz, Jr. vs. People, 52 SCAD 516 , June 17, 1994).

  3. Generally, preliminary investigation has a three-fold purpose:

  1. To inquire concerning the commission of crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial;

  2. To preserve the evidence and keep the witnesses within the control of the state; and

  3. To determine the amount of bail, if the offense is bailable (Arula vs. Espino, 28 SCRA 540 [1969]).

 

Who may conduct determination of existence of probable cause

 

  1. On basis of the evidence before him, the investigating office must decide whether to dismiss the case or to file the information in court. This involves the determination of probable cause. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the municipal trial judge or prosecutor conducting the examination, such a finding should not disregard the facts before him nor run counter to the clear dictates of reasons (Ortiz vs. Palaypayon, 234 SCRA 391).

  2. The Court has maintained the policy of non-interference in the determination of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. The rule is based not only upon respect for the investigatory and prosecutor powers of prosecutors upon practicality as well (Rodrigo, Jr. vs. Sandiganbayan, 303 SCRA 309).

  3. Officers authorized to conduct preliminary investigation:

  1. Provincial or city prosecutors and their assistants:

  2. National and Regional State Prosecutors; and

  3. Other officers as may be authorized by law (COMELEC, PCGG, Ombudsman)

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions (Sec. 2, as amended by AM 05-8-26-SC, Oct. 3, 2005).

 

Resolution of investigation prosecutor

 

  1. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If, upon petition by a proper party under such Rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in the preliminary investigations conducted by the officers of the Office of the Ombudsman (Sec. 4).

 

Review

 

  1. A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to direct and control criminal actions. He is, however, subject to the control of the Secretary of Justice, which the latter may exercise motu propio or upon petition of the proper party. In reviewing resolutions of state prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court (Joaquin, Jr. vs. Drilon, 302 SCRA 225).

  2. Decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice. The Secretary of Justice exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify, reverse or modify their rulings. Supervision and control include the authority to act directly whenever specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials. Sec. 37 of RA 3783 provides that any specific power, authority, duty, function or activity entrusted to a chief of a bureau, office, division or service shall be understood as also conferred upon the Secretary of Justice who shall have the authority to act directly in pursuance thereof, or to review, modify, revoke any decision or action of said chief of bureau, office, division or service (Dimatulac vs. Villon, 297 SCRA 679).

 

When warrant of arrest may issue

 

(1) (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.

(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.

(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the Municipal Trial Court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction (Sec. 5, as amended by AM 05-8-26-SC).

 

Cases not requiring a preliminary investigation

 

  1. No preliminary investigation is required in the following cases:

(a) If filed with the prosecutor. – If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within (10) days from its filing.

(b) If filed with the Municipal Trial Court. – If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court, for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of the said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest (Sec. 8).

Remedies of accused if there was no preliminary investigation

 

  1. One remedy if there was no preliminary investigation is to hold in abeyance the proceedings and order the prosecutor to hold preliminary investigation (Pilapil vs. Sandiganbayan, April 7, 1993).

  2. Section 7, last paragraph thereof, provides that if the case has been conducted, the accused may within five (5) days from the time he learns of its filing ask for a preliminary investigation. The five-day period to file the motion for preliminary investigation is mandatory, and an accused is entitled to ask for preliminary investigation by filing the motion within the said period. The failure to file the motion within the five-day period amounts to a waiver of the right to ask for preliminary investigation. Apart from such waiver, posting bail without previously or simultaneously demanding for a preliminary investigation justifies denial of the motion for investigation (People vs. CA, 242 SCRA 645).

 

Arrest (Rule 113)

  1. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec 1).

 

Arrest, how made

  1. An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall he used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2).

 

Arrest without warrant, when lawful

(1) A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112 (Sec. 5).

 

Method of arrest

  1. Method of arrest by officer by virtue of warrant. – When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable (Sec. 7). 

  1. Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest (Sec. 8).

  1. Method of arrest by private person. – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest (Sec. 9).

 

Requisites of a valid warrant of arrest

  1. (1) Requisites for arrest warrant issued by a RTC judge under Sec. 5, Rule 112:

    1. Within 10 days from the filing of the complaint or information

    2. The judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.

    3. If he finds probable cause, he shall issue a warrant of arrest

    4. In case of doubt on the existence of probable cause

      1. The judge may order the prosecutor to present additional evidence within 5 days from notice; and

      2. The issue must be resolved by the court within 30 days from the filing of the complaint of information.

  1. (2) Requisites for issuing search warrant under Sec. 4, Rule 126:

    1. It must be issued upon probable cause in connection with one specific offense;

    2. The probable cause must be determined by the judge himself and not by the applicant or any other person;

    3. In the determination of probable cause, the judge must examine under oath or affirmation, the complainant and the witness he may produce; and

    4. The warrant issued must particularly describe the place to be searched and the things to be seized which may be anywhere in the Philippines.

 

Determination of Probable Cause for issuance of warrant of arrest

  1. It is the judge alone who determines the probable cause for the issuance of warrant of arrest. It is not for the provincial fiscal or prosecutor to ascertain (People vs. Inting, 187 SCRA 788).

 

Distinguish probable cause of fiscal from that of a judge

  1. The determination by the prosecutor of probable cause is for the purpose of either filing an information in court or dismissing the charges against the respondent, which is an executive function. The determination by the judge of probable cause begins only after the prosecutor has filed the information in court and the latter’s determination of probable cause is for the purpose of issuing an arrest warrant against the accused, which is judicial function (People vs. CA, 301 SCRA 475).

  2. Probable cause to hold a person for trial refers to the finding of the investigating prosecutor after the conduct of a preliminary investigation, that there is sufficient ground to hold a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. Based on such finding, the investigating prosecutor files the corresponding complaint or information in the competent court against the accused. The determination of probable cause to issue a warrant of arrest is a judicial function. A judge cannot be compelled to issue a warrant of arrest if he or she believes honestly that there is no probable cause for doing so (People vs. CA, 102 SCAD 375, Jan. 21, 1999).

 

Bail (Rule 114)

Nature

  1. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required (Sec. 13, Art. III, The Constitution).

  2. Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance (Sec. 1).

  3. Bail is the security required by the court and given by the accused to ensure that the accused appear before the proper court at the scheduled time and place to answer the charges brought against him. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction (Cortes vs. Catral, 279 SCRA 1. Its main purpose is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial (Paderanga vs. CA, 247 SCRA 741).

  4. The person seeking provisional release need not wait for a formal complaint or information to be filed against him as it is available to all persons where the offense is bailable, so long as the applicant is in the custody of the law (Paderanga vs. CA, 247 SCRA 741).

  5. Kinds of bail:

  1. Corporate bond — one issued by a corporation licensed to provide bail subscribed jointly by the accused and an officer duly authorized by its board of directors (Sec. 10).

  2. Property bond — an undertaking constituted as a lien on the real property given as security for the amount of the bond (Sec. 11).

  3. Recognizance — an obligation of record entered into usually by the responsible members of the community before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual act being to assure the appearance of the accused for trial (People vs. Abner, 87 Phil. 566).

  4. Cash deposit — the money deposited by the accused or any person acting on his behalf, with the nearest collector of internal revenue, or provincial, city or municipal treasurer. Considered as bail, it may be applied to the payment of any fees and costs, and the excess, if any, shall be returned to the accused or to whoever made the deposit (Sec. 14).

When a matter of right; exceptions

  1. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114).

  2. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all, both are administrative proccedings where the innocence or guilt of the person detained is not in issue (Govt. of Hongkong vs. Olalia, GR 153675, April 19, 2007).

  3. Bail is a matter of right before final conviction, but the rule is not absolute. The exception is when a person is charged with a capital offense when the evidence of guilt is strong, or when the offense for which on is charged is punishable by reclusion perpetua. The exception to this rule, however, is even if a person is charged with a capital offense where the evidence of guilt is strong, if the accused has failing health, hence, for humanitarian reasons, he may be admitted to bail, but that is discretionary on the part of the court (De La Ramos vs. People’s Court, 77 Phil. 461; Catiis vs. CA, 487 SCRA 71).

When a matter of discretion

  1. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or under conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case (Sec. 5, Rule 114).

  1. Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal (Sec. 17[a]).

  2. The discretion lies in the determination of whether the evidence of guilt is strong. If it is determined that it is not strong, then bail is a matter of right. There is no more discretion of the court in denying the bail, the moment there is a determination that the evidence of guilt is not strong.

Hearing of application for bail in capital offenses

  1. A bail application in capital offense does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements. Accordingly, the prosecution must be given ample opportunity to show that the evidence of guilt is strong, because, by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt is strong is a matter of judicial discretion. Though not absolute nor beyond control, the discretion within reasonable bounds (People vs. Antona, GR 137681, Jan. 31, 2002).

  2. A hearing in an application for bail is absolutely indispensable before a judge can properly determine whether the prosecution’s evidence is weak or strong. In receiving evidence on bail, while a court is not required to try the merits of the case, he must nevertheless conduct a summary hearing which is “such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is to determine the weight of the evidence for purposes of the bail (In re complaint against Judge Elma, AM RTJ-94-1183, Feb. 8, 1994).

  3. A judge should not hear a petition for bail in capital offenses on the same day that the petition was filed. He should give the prosecution a reasonable time within which to oppose the same. Neither is he supposed to grant bail solely on the belief that the accused will not flee during the pendency of the case by reason of the fact that he had even voluntarily surrendered to the authorities. Voluntary surrender is merely a mitigating circumstance in decreasing the penalty that may eventually be imposed upon the accused in case of conviction but is not a ground for granting bail to an accused charged with a capital offense (Sule vs. Judge Bitgeng, 60 SCAD 341,April 18, 1995).

Guidelines in fixing amount of bail

(1) The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required (Sec. 9).

Bail when not required

  1. No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court (Sec. 16).

Increase or Reduction of Bail

  1. After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody (Sec. 20).

Forfeiture and Cancellation of bail

(1) When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:

(a) produce the body of their principal or give the reason for his non-production; and

(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted (Sec. 21).

  1. Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail (Sec. 22).

Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation

  1. The posting of the bail does not constitute a waiver of any question on the irregularity attending the arrest of person. He can still question the same before arraignment, otherwise, the right to question it is deeme3d waived. It was also said that posting bail is deemed to be a forfeiture of a habeas corpus petition which becomes moot and academic (Arriba vs. People. `07 SCRA 191; Bagcal vs. Villaroza, 120 SCRA 525).

  2. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case (Sec. 26).

  3. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender (Mendoza vs. CFI of Quezon, 51 SCAD 369). an accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. CA, 324 SCRA 321, it was held that in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. This pronouncement should be understood in the light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. It was explained that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between: (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held; and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or information sufficient to charge him with a crime and his right to bail. It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment (Serapio vs. Sandiganbayan, GR Nos. 148468-69, 149116, Jan. 28, 2003).

Hold Departure Order & Bureau of Immigration Watchlist

  1. Supreme Court Cir. No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the RTCs in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue hold-departure orders, following the maxim, express mention implies the exclusion. Neither does he have authority to cancel one which he issued (Huggland vs. Lantin, AM MTJ-98-1153, Feb. 29, 2000).

  2. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is necessary consequence of the nature and function of a bail bond. Where it appears that the accused had the propensity to evade or disobey lawful orders, the issuance of a hold departure order is warranted (Santos vs. CA, 116 SCAD 575, Dec. 3, 1999).

  3. The fact that the accused surreptitiously left for Hongkong, after getting a clearance for purposes of leaving the country but without permission of the trial court, and thereafter could not return for trial as she was imprisoned in Hongkong for a criminal offense, does not relieve the bondsman of liability.

 

Rights of the Accused (Rule115)

Rights of accused at the trial

(1) In all criminal prosecutions, the accused shall be entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without any justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him;

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law (Sec. 1).

 

Rights of persons under Custodial Investigation

  1. The rights of an accused person under in-custody investigation are expressly enumerated in Sec. 12, Art. III of the Constitution, viz:

  1. Any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel;

  2. No torture, force, violence, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited;

  3. Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof shall be inadmissible in evidence against him;

  4. The law shall provide for penal and civil sanctions for violation of this section as well as compensation to aid rehabilitation of victims of torture or similar practice, and their families.

  1. Under RA 7834, the following are the rights of persons arrested, detained or under custodial investigation:

  1. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel;

  2. Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer;

  3. The custodial investigation report shall be reduced to writing by investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever;

  4. Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding;

  5. Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code or under custodial investigation, shall be in writing signed by such person in the presence of his counsel; otherwise such waiver shall be null and void and of no effect;

  6. Any person arrested or detained or under custodial investigation shall be allowed visits by his or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by his counsel, or by any national NGO duly accredited by the Office of the President. The person’s “immediate family” shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward.

  1. Three rights are made available by Sec. 12(1):

  1. The right to remain silent — Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminatory question. Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him (People vs. Alegre and Gordoncillo, 94 SCRA 109);

  2. The right to counsel — Example of those who are not impartial counsel are (1) Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to that of the accused; (2) a mayor, unless the accused approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose interest may be adverse to that of the accused (People vs. Tomaquin, GR 133188, July 23, 2004);

  3. The right to be informed o his rights — the right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card; he must also explain their effects in practical terms (People vs. Rojas, 147 SCRA 169). Short of this, there is a denial of the right, as it cannot then truly be said that the person has been informed of his rights (People vs. Nicandro, 141 SCRA 289).

  1. Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody otherwise deprived of his freedom of action in any significant way. The right to custodial investigation begins only when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements (Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however, however, that although the scope of the constitutional right is limited to the situation in Escobedo and Marra, RA 7438 has extended the guarantee to situations in which an individual has not been formally arrested but has merely been “invited” for questioning (People vs. Dumantay, GR 130612, May 11, 1999; People vs. Principe, GR 135862, May 2, 2002).

 

Arraignment and Plea (Rule 116)

  1. Arraignment is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him.

  2. Some rules on arraignment:

  1. Trial in absentia is allowed only after arraignment;

  2. Judgment is generally void if the accused has not been arraigned;

  3. There can be no arraignment in absentia;

  4. If the accused went to trial without arraignment, but his counsel had the opportunity to cross-examine the witnesses of the prosecution and after prosecution, he was arraigned, the defect was cured (People vs. Atienza, 86 Phil. 576).

  1. Arraignment is important because it is the mode of implementing the constitutional right to be informed of the nature of the accusation against him, and to fix the identity of the accused. It is not a mere formality, but an integral part of due process, it implements the constitutional right of the accused to be informed and the right to speedy trial (Lumanlaw vs. Peralta, 482 SCRA 396).

 

Arraignment and Plea, how made

  1. Section 1, Rule 116 provides:

(a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

(e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment.

(f) The private offended party shall be required to appear at the arraignment for purposes of plea-bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (cir. 1-89)

(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

 

When should plea of NOT GUILTY be entered

  1. At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty (Sec. 5).

  2. A plea of “not guilty” should be entered where

  1. The accused so pleaded;

  2. When he refuses to plead;

  3. Where in admitting the act charged, he sets up matters of defense or with a lawful justification;

  4. When he enters a conditional plea of guilt;

  5. Where, after a plea of guilt, he introduces evidence of self-defense or other exculpatory circumstances ; and

  6. When the plea is indefinite or ambiguous (US vs. Kelly, 35 Phil 419; People vs. Sabilul, 93 Phil. 567; People vs. Balisacan; People vs. Stron, L-38626, Mar. 14, 1975).

 

When may accused enter a plea of guilty to a lesser offense

  1. At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary (Sec. 2).

  2. An accused can enter a plea to a lesser offense if there is consent of the other party and the prosecutor. If he did so without the consent of the offended party and the prosecutor and he was convicted, his subsequent conviction in the crime charged would not place him in dhouble jeopardy. It has been held that the accused can still plead guilty to a lesser offense after the prosecution has rested (People vs. Villarama, Jr., 210 SCRA 246; People vs. Luna, 174 SCRA 204). It is further required that the offense to which he pleads must be necessarily included in the offense charged (Sec. 2).

 

Accused plead guilty to capital offense, what the court should do

  1. The court should accomplish three (3) things;

  1. It should conduct searching inquiry into the voluntariness and full comprehension of the consequences of the plea;

  2. It should require the prosecution to prove the guilt of the accused and the precise degree of culpability; and

  3. It should inquire whether or not the accused wishes to present evidence on his behalf and allow him if he so desires (Sec. 3; People vs. Dayot, 187 SCRA 637).

 

Searching Inquiry

  1. Searching question means more than informing cursorily the accused that he faces a jail term. It also includes the exact lengthy of imprisonment under the law and the certainty that he will serve at the national penitentiary or a penal colony (People vs. Pastor, GR 140208, Mar. 12, 2002). It is intended to undermine the degree of culpability of the accused in order that the court may be guided in determining the proper penalty.

 

Improvident plea

  1. Conviction based on an improvident plea of guilty may set aside only when such plea is the sole basis of the judgment. But if the trial court relied on the evidence of the prosecution and convincing evidence to convict beyond reasonable doubt, not on his plea of guilty, such conviction must be sustained (People vs. Lunia, GR 128289, April 23, 2002).

  2. Courts must be careful to avoid improvident pleas of guilt and, where grave crimes are involved, the proper course is to take down evidence to determine guilt and avoid doubts (People vs. Siabilul, supra).

  3. The withdrawal of an improvident plea of guilty, to be substituted by a plea of not guilty, is permitted even after judgment has been promulgated but before the same becomes final. While this Rule is silent on the matter, a plea of not guilty can likewise be withdrawn so that the accused may instead plead guilty to the same offense, but for obvious reasons, this must be done before promulgation of judgment. In either case, however, if the prosecution had already presented its witnesses, the accused will generally not be entitled to the mitigating circumstance based on a plea of guilty (People vs. Lumague, GR 53586, Jan. 31, 1982).

 

Grounds for suspension of arraignment

(1) Upon motion by the proper party, the arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose.

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec. 11).

 

Motion to Quash (Rule 117)

  1. A motion to quash is a hypothetical admission of the facts alleged in the information, hence the court in resolving the motion cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution (People vs. Navarro, 75 Phil. 516).

  2. The motion to quash must be filed before the arraignment. Thereafter, no motion to quash can be entertained by the court, the only exceptions being those in Sec. 9 which adopts the omnibus motion rule, subject to said exceptions. Sec. 3 has been amended to separately refer to lack to jurisdiction over the offense, not over the person of the accused since, by filing a motion to quash on other grounds, the accused has submitted himself to the jurisdiction of the court.

 

Grounds

(1) The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

By the death of the convict, as to the personal penalties; as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment.

By service of the sentence;

By amnesty, which completely extinguishes the penalty and all its effects;

By absolute pardon;

By prescription of the crime;

By prescription of the penalty;

By the marriage of the offended woman in

Seduction

abduction or

acts of lasciviousness (Art. 344 RPC)

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Sec. 3).

(2) Grounds that are not waived even if not alleged:

(a) Failure to charge an offense;

(b) Lack of jurisdiction;

(c) Extinction of criminal action or liability;

(d) Double jeopardy (People vs. Leoparte, 187 SCRA 190).

 

Distinguish from demurrer to evidence

 

 

Motion to Quash

Demurer to Evidence

 

Rule 117

Section 23, Rule 119

When filed

At any time before accused enters plea

After the prosecution rests its case

Grounds

a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Sec. 3).

(1) Insufficiency of evidence

Effect if granted

If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody of another charge (Sec. 5).

The remedy of prosecution is to amend the information to correct the defects thereof, except on the grounds of (g) and (j); of the prosecution may appeal the quashal of information or complaint

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within 10 days from receipt of the motion.

 

Effect if denied

The usual course to take is for the accused to proceed with trial, and in case of conviction, to appeal therefrom and assign as error the denial of the motion to quash (Lalican vs. Vergara, 276 SCRA 518).

An accused who files a demurrer to evidence with leave of court does not lose the right to present evidence in the event his motion is denied. On the other hand, if he files the demurrer without leave of court and the same is denied, he loses the right to present evidence, in which event the case will be deemed submitted for decision (De Carlos vs. CA, 312 SCRA 397).

Remedies if denied The order denying the motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari.

The order denying the motion for leave of court to file demurrer to evidence or to demur itself shall not be reviewable by appeal or certiorari before judgment.

 

  1. A special civil action may lie against an order of denial of a motion to quash, as an exception to the general rule, in any of the following instances:

  1. Where there is necessity to afford protection to the constitutional rights of the accused;

  2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

  3. Where there is prejudicial question which is sub judice;

  4. When the acts of the officer are without or in excess of authority;

  5. Where the prosecution is under an invalid law, ordinance or regulation;

  6. When double jeopardy is clearly apparent;

  7. Where the court has no jurisdiction over the offense;

  8. Where it is a case of persecution rather than prosecution;

  9. Where the charges are manifestly false and motivated by the lust for vengeance;

  10. When there is clearly no prima facie case against the accused; and

  11. To avoid multiplicity of actions (Brocka vs. Enrile, 192 SCRA 183).

Effects of sustaining the motion to quash

  1. If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no

  2. new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody of another charge (Sec. 5).

Exception to the rule that sustaining the motion is not a bar to another prosecution

  1. An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Sec. 3(g) and (i) – that the criminal action or liability has been extinguished and that the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged (Sec. 6).

  2. An order denying a motion to quash is interlocutory and not appealable (People vs. Macandog, L-18601, Jan. 31, 1963) and generally, such denial cannot be controlled by certiorari (Ricafort vs. Fernan, 101 Phil. 575); and the denial of a motion to quash grounded on double jeopardy is not controllable by mandamus (Tiongson vs. Villacete, 55 OG 7017).

Double Jeopardy

  1. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act (Sec. 21, Art. III, Constitution).

  2. The requirements of double jeopardy are:

  1. Valid indictment;

  2. Competent court;

  3. Valid arraignment;

  4. Valid plea entered;

  5. Case is dismissed or terminated without the express consent of the accused (People vs. Bocar, Aug. 10, 1985; Navallo vs. Sandiganbayan, 53 SCAD 294, July 18, 1994).

  1. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense (Sec. 7).

Provisional Dismissal

  1. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived (Sec. 8).

  1. Requisites for Sec. 8 to apply:

  1. The prosecution with the express conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused moves for a provisional dismissal of the case;

  2. The offended party is notified of the motion for a provisional dismissal of the case;

  3. The court issues an order granting the motion and dismissing the case provisionally;

  4. The public prosecutor is served with a copy of the order or provisional dismissal of the case.

  1. The foregoing requirements are conditions sine qua non to the application of the time-bar in the second paragraph of the Rule. The raison d’etre for the requirement of the express consent of the accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein (People vs. Bellosillo, 8 SCRA 835).

  2. The order of dismissal shall become permanent one year after service of the order of the prosecution (Sec. 5, Rule 112), without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal (People vs. Lacosn, GR 149453, April 1, 2003).

 

Pre-trial (Rule 118)

  1. The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge (Black’s Law Dictionary, 5th Ed.).

Matters to be considered during pre-trial

(1) In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case (Sec. 1).

What the court should do when prosecution and offended party agree to the plea offered by the accused

  1. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court (Sec. 2).

 

Pre-trial agreement

  1. All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court (Sec. 2).

Non-appearance during pre-trial

  1. If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties (Sec. 3).

  2. The rule is intended to discourage dilatory moves or strategies as these would run counter to the purposes of pre-trial in criminal cases, more specifically those intended to protect the right of the accused to fair and speedy trial.

 

Pre-trial order

  1. After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice (Sec. 4).

Trial (Rule119)

  1. Continuous trial is one where the courts are called upon to conduct the trial with utmost dispatch, with judicial exercise of the court’s power to control the trial to avoid delay and for each party to complete the presentation of evidence with the trial dates assigned to him (Admin. Cir. 4 dated Sept. 22, 1988).

Instances when presence of accused is required by law

  1. The only instances when the presence of the accused is required by law and when the law may forfeit the bond if he fails to appear are:

  1. On arraignment;

  2. On promulgation of judgment except for light offenses;

  3. For identification purposes;

  4. When the court with due notice requires so (Marcos vs. Ruiz, Sept. 1, 1992).

 

Requisite before trial can be suspended on account of absence of witness

  1. The following periods of delay shall be excluded in computing the time within which trial must commence: Any period of delay resulting from the absence or unavailability of an essential witness (Sec. 3[b]).

  2. To warrant postponement due to absence of a witness, it must appear:

  1. That the witness is really material and appears to the court to be so;

  2. That the party who applies for postponement has not been guilty of neglect;

  3. That the witness can be had at the time to which the trial has been deferred; and

  4. That no similar evidence could be obtained (US vs. Ramirez, 39 (Phil. 738).

  1. The non-appearance of the prosecution at the trial, despite due notice, justifies a provisional dismissal (Jaca vs. Blanco, 86 Phil. 452), or an absolute dismissal (People vs. Robles, 105 Phil. 1016), depending on the circumstances. Sec. 3, Rule 22 does not apply to criminal cases.

 

Trial in Absentia

  1. The Constitution permits trial in absentia of an accused after his arraignment who unjustifiably fails to appear during the trial notwithstanding due notice. The purpose of trial in absentia is to speed up the disposition of criminal cases. The requisites of trial in absentia are:

  1. The accused has been arraigned;

  2. He has been duly notified of the trial; and

  3. His failure to appear is justified (People vs. Agbulos, 222 SCRA 196).

  1. The waiver of the accused of appearance or trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. Such waiver does not mean a release of the accused from his obligation under the bond to appear in court whenever required. The accused may waive his right but he cannot disregard his duty or obligation to the court. He can still be subpoenaed to appear for identification purposes, without violating his right against self-incrimination as he will not take the stand to testify but merely to be present in court, where the prosecution witness may, while in the witness stand, point to him as the accused (Carredo vs. People, 183 SCRA 273).

 

Remedy when accused is not brought to trial within the prescribed period

  1. If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy.

Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section (Sec. 9).

  1. Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period (Sec. 1[g], Rule 116).

 

Requisites for discharge of accused to become a state witness

  1. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence (Sec. 17).

  1. Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the program (to be a state witness) whenever the following circumstances are present:

  1. The offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws;

  2. There is absolute necessity for his testimony;

  3. There is no other direct evidence available for the proper prosecution of the offense committed;

  4. His testimony can be substantially corroborated on its material points;

  5. He does not appear to be most guilty; and

  6. He has not at any time been convicted of any crime involving moral turpitude (Sec. 10, RA 6981, the Witness Protection Law).

Effects of Discharge of accused as state witness

  1. The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless:

  1. The accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge (Sec. 18);

  2. If he was granted immunity and fails to keep his part of the agreement, his confession of his participation in the commission of the offense is admissible in evidence against him (People vs. Berberino, 79 SCRA 694).

  1. The court shall order the discharge and exclusion of the said accused from the information. Admission into such Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used (Sec. 12, RA 6981).

Demurrer to Evidence

  1. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a)

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment (Sec. 23).

 

Judgment (Rule 120)

  1. Judgment means the adjudication by the court that the accused is guilty or is not guilty of the offense charged, and the imposition of the proper penalty and civil liability provided for by law on the accused (Sec. 1).

  2. Memorandum decision is one in which the appellate court may adopt by reference, the findings of facts and conclusions of law contained in the decision appealed from (Sec. 24, Interim Rules and Guidelines).

Requisites of a judgment

  1. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based (Sec. 1).

Contents of Judgment

  1. If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist (Sec. 2).

Promulgation of judgment; instances of promulgation of judgment in absentia

  1. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address.

  1. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice (Sec. 6).

When does judgment become final (four instances)

  1. Except where the death penalty is imposed, a judgment becomes final:

  1. After the lapse of the period for perfecting an appeal;

  2. When the sentence has been partially or totally satisfied or served;

  3. When the accused has waived in writing his right to appeal; or

  4. Has applied for probation (Sec. 7).

 

New Trial or Reconsideration (Rule 121)

MNT or MR in Criminal Cases

MNT or MR in Civil Cases

Either on motion of accused, or the court motu proprio with consent of the accused Must be upon motion of a party, can’t be motu proprio
Grounds for MNT – errors of law or irregularities committed during the trial, or newly discovered evidence Grounds for MNT – FAME, or newly discovered evidence
Ground for MR – error of law or fact Grounds for MR – Excessive damages, insufficient evidence, or decision is contrary to law
Filed any time before judgment of conviction becomes final Filed within the period for taking an appeal
  Should include all the grounds then available and those not so included shall be deemed waived.
When granted, the original judgment is always set aside or vacated and a new judgment rendered There may be partial grant

 

 

Grounds for New Trial

 

(1) The court shall grant a new trial on any of the following grounds:

(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment (Sec. 2).

Grounds for Reconsideration

  1. The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings (Sec. 3).

Requisites before a new trial may be granted on ground of newly discovered evidence

  1. They are the following:

  1. The evidence was discovered after trial;

  2. The evidence could not have been discovered and produced at the trial even with exercise of reasonable diligence;

  3. The evidence is material, not merely cumulative, corroborative or impeaching;

  4. It must go to the merits as it would produce a different result if admitted (Jose vs. CA, 70 SCRA 257).

Effects of granting a new trial or reconsideration

 

(1) The effects of granting a new trial or reconsideration are the following:

(a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence.

(b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record.

(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly (Sec. 6).

Application of NeypesDoctrine in Criminal Cases

  1. If the motion is denied, the movants has a fresh period of 15 days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice to appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This fresh period rule applies only to Rule 41 governing appeals from the RTC but also to Rule 40 governing appeals from MTC to RTC, Rule 42 on petitions for review from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies to the CA, and Rule 45 governing appeals by certiorari to the SC. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41 (Neypes vs. CA, GR 141524, Sept. 14, 2005). The Neypes ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the 15-day period shall run from notice of the judgment.

  2. The fresh period rule does not refer to the period within which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 9, Rule 37. The non-appealability of the order of denial is also confirmed by Sec. 1(a), Rule 41, which provides that no appeal may be taken from an order denying a motion for new trial or a motion for reconsideration

 

Appeal (Rule 122)

  1. An appeal opens the whole case for review and this includes the review of the penalty, indemnity and the damages involved (Quemuel vs. CA, 22 SCRA 44).

Effect of an Appeal

  1. Upon perfection of the appeal, the execution of the judgment or order appealed from is stayed as to the appealing party (Sec. 11[c]). The civil appeal of the offended party does not affect the criminal aspect of the judgment or order appealed from.

  2. Upon perfection of the appeal, the trial court loses jurisdiction over the case (Syquia vs. Concepcion, 60 Phil. 186), except:

  1. To issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal;

  2. To approve compromises offered by the parties prior to the transmission of the records on appeal to the appellate court (Sec. 9, Rule 41).

Where to appeal

(1) The appeal may be taken as follows:

(a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court;

(b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and

(c) To the Supreme Court, in cases decided by the Court of Appeals (Sec. 2).

How appeal taken

  1. under Sec. 3, Rule 122:

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule.

Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

Effect of appeal by any of several accused

  1. under Sec. 11, Rule 122:

(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.

(b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from.

(c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party.

Grounds for dismissal of appeal

  1. The court, however, may dismiss the petition if it finds the same to be:

(a) Patently without merit;

(b) Prosecuted manifestly for delay; or

(c) The questions raised therein are too unsubstantial to require consideration (Sec. 8, Rule 65).

 

Search and Seizure (Rule 126)

Nature of search warrant

  1. The constitutional right against unreasonable search and seizure refers to the immunity of one’s person, whether a citizen or alien, from interference by government, included in whish is his residence, his papers and other possession (Villanueva vs. Querubin, 48 SCRA 345). The overriding function of the constitutional guarantee is to protect personal privacy and human dignity against unwarranted intrusion by the State. It is deference to one’s personality that lies at the core of his right, but it could also be looked upon as a recognition of a constitutionally protected area primarily one’s house, but not necessarily thereto confined. What is sought to be guarded is a man’s prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any intrusion of his dwelling and to respect the privacies of his life (Schmerber vs. California, 384 US 757).

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

Distinguish from warrant of arrest

Search Warrant (Rule 126)

Warrant of Arrest (Rule 113)

A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court (Sec. 1, Rule 126).

Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113).

 

 

Requisites:

A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines (Sec. 4, Rule 126).

  1. Requisites for arrest warrant issued by RTC judge under Sec. 5, Rule 112:

    1. Within 10 days from the filing of the complaint or information

    2. The judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.

    3. If he finds probable cause, he shall issue a warrant of arrest

    4. In case of doubt on the existence of probable cause

      1. The judge may order the prosecutor to present additional evidence within 5 days from notice; and

      2. The issue must be resolved by the court within 30 days from the filing of the complaint of information

Search or seizure without warrant, when lawful:

    1. Consented search;

    1. As an incident to a lawful arrest;

    2. Searches of vessels and aircrafts for violation of immigration, customs and drug laws;

    3. Searches of moving vehicles;

    4. Searches of automobiles at borders or constructive borders;

    5. Where the prohibited articles are in plain view;

    6. Searches of buildings and premises to enforce fire, sanitary and building regulations;

    7. Stop and frisk” operations;

    8. Exigent and emergency circumstances (in times of war and within the area of military operation)

 

  1. Arrest without warrant, when lawful:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113).

 

Application for search warrant, where filed 

(1) An application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending (Sec, 2).

Probable Cause

  1. Probable cause is defined as such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (20th Century Fox Film Corp. vs. CA, GR 76649-51, 08/19/88). Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a person accused is guilty of the offense with which he is charged (People vs. Aruta, 288 SCRA 626).

  2. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines (Sec. 4).

  3. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules (Sec. 6).

Personal examination by judge of the applicant and witnesses

  1. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted (Sec. 5).

Particularity of place to be searched and things to be seized

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

  2. The place specified in the search warrant, and not the place the police officers who applied for the search warrant had in mind, controls. For the police officers cannot amplify nor modify the place stated in the search warrant (People vs. CA, 291 SCRA 400). The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. Where there are several apartments in the place to be searched, a description of the specific place can be determined by reference to the affidavits supporting the warrant that the apartment to be searched is the one occupied by the accused. The searching party cannot go from one apartment to the other as the warrant will then become a general warrant (People vs. Salanguit, 356 SCRA 683).

Personal property to be seized

(1) Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense (Sec. 3).

(2) It is not necessary that the property to be searched or seized should be owned by the person against whom the search is issued; it is sufficient that the property is under his control or possession (People vs. Dichoso, 223 SCRA 174).

Exceptions to search warrant requirement

  1. In a case (People vs. Abriol, 367 SCRA 327), the Court added other exceptions to the prohibition against warrantless search, thus:

    1. Consented search;

    2. As an incident to a lawful arrest;

    3. Searches of vessels and aircrafts for violation of immigration, customs and drug laws;

    4. Searches of moving vehicles;

    5. Searches of automobiles at borders or constructive borders;

    6. Where the prohibited articles are in plain view;

    7. Searches of buildings and premises to enforce fire, sanitary and building regulations;

    8. Stop and frisk” operations;

    9. Exigent and emergency circumstances (People vs. Valez, 304 SCRA 140).

a. Search incidental to lawful arrest – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant (Sec. 13, Rule 126). The law requires that there first be a lawful arrest before a search can be made. The process cannot be reversed (People vs. Malmstedt, 198 SCRA 40). Thus, in a buy-bust operation conducted to entrap a drug pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants (People vs. Paco, 170 SCRA 681).

The better and established rule is a strict application of the exception provided in Sec. 12, Rule 126, and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense. Such warrantless search obviously cannot be made in any other than the place of arrest (Nolasco vs. Pano, 147 SCRA 500).

b. Consented Search – Rights may be waived, unless the waiver is contrary to law, public order, morals, or good customs, or prejudicial to a third person with a right recognized by law (Art. 6, Civil Code). To constitute a valid waiver of a constitutional right, it must appear: (1) that the right exists, (2) the person involved had knowledge either actual or constructive, of the existence of such right, and (3) said person has an actual intention to relinquish the right (People vs. Salangga, GR 100910, 07/25/94).

As the constitutional guarantee is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights, but instead they hold that a peaceful submission and silence of the accused in a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard to the supremacy of the law (People vs. Barros, 231 SCRA 557).

c. Search of moving vehicle – This is justified on the ground that the mobility of motor vehicles makes it possible for the vehicles to move out of the locality or jurisdiction in which the warrant must be sought. This, however, does not give the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause People vs. Bagista, 214 SCRA 63).

In carrying out warrantless searches of moving vehicles, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection (People vs. Barros, 231 SCRA 557). Warrantless search o moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought (People vs. Lo Ho Wong, 193 SCRA 122).

d. Check points; body checks in airport – In Aniag, Jr. vs. COMELEC, 237 SCRA 424, a warrantless search conducted at police or military checkpoints has been upheld for as long as the vehicle is neither searched nor its occupants subjected to body search, and the inspection of the vehicle is merely limited to visual search.

Routine inspections are not regarded as violative of an individual’s right against unreasonable search. The search which is normally permissible is this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car’s doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area (Caballes vs. CA, GR 136292, 01/15/02).

e. Plain view situation – The plain view doctrine recognizes that objects inadvertently falling in plain view of an officer who has the right to be in the position to have that view, are subject to seizure without warrant (Harris vs. US, 390 US 324). It may not, however, be used to launch unbridled searches and indiscriminate seizures, nor to extend a general exploratory search made solely to find evidence of a defendant’s guilt. It is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object (Coolidge vs. New Hampshire, 403 US 443). It is also been suggested that even if an object is observed in plain view, the seizure of the subject will not be justified where the incriminating nature of the object is not apparent. Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure (People vs. Musa, 217 SCRA 597).

The elements of “plain view” seizure are: (a) prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent; and (d) “plain view” justified mere seizure of evidence without further search (People vs. Aruta, 288 SCRA 626).

f. Stop and Frisk situation – This is based on the conduct of the person, who acts suspiciously, and when searched, such search would yield unlawful items in connection with an offense, such as unlicensed firearms, and prohibited drugs. Thus, it has been held that a person who was carrying a bag and acting suspiciously could be searched by police officers and the unlicensed firearm seized inside the bag is admissible in evidence, being an incident of a lawful arrest. Similarly, a person roaming around in a place where drug addicts usually are found, whose eyes were red and who was wobbling like a drunk, could be legally searched of his person and the illegal drug seized from him is admissible in evidence against him (Manalili vs. CA, 280 SCRA 400).

A stop and frisk serves a two-fold interest: (1) the general interest of effective criminal protection and detection which underlie the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against him (Terry vs. Ohio, 392 US 1).

g. Enforcement of Custom Laws – For the enforcement of the customs and tariff laws, person deputized by the Bureau of Customs can affect searches, seizures and arrests even without warrant of seizure or detention. They could lawfully open and examine any box, trunk, envelope or other container wherever found when there is reasonable cause to suspect the presence of dutiable articles introduced into the Philippines contrary to law. They can likewise stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such articles (Papa vs. Mago, 22 SCRA 857). The intention behind the grant of such authority is to prevent smuggling and to secure the collection of the legal duties, taxes and other charges (Sec. 2202, Tariff and Customs Code).

Under the Tariff and Customs Code, Customs officers are authorized to make arrest, search and seizure of any vessel, aircraft, cargo, articles, animals or other movable property when the same is subject to forfeiture or liable for any fine under the customs and tariff laws, rules and regulations (Sec. 2205) and may at any time enter, pass through or search any land or inclosure or any warehouse, store or other building without being a dwelling house 9Sec. 2208). A dwelling house may be entered or searched only upon warrants issued by judge upon sworn application showing probable cause and particularly describing the placed to be searched and person or things to be searched (Sec. 220).

Remedies from unlawful search and seizure

  1. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court (Sec. 14).

  2. If a search warrant is issued and it is attacked, a motion quash is the remedy or a motion to suppress the evidence seized pursuant to the search warrant would be available. Replevin may also be proper if the objects are legally possessed.

  3. Alternative remedies of the accused adversely affected by a search warrant are the following:

  1. Motion to quash the search warrant with the issuing court; or

  2. Motion suppress evidence with the court trying the criminal case.

The remedies are alternative, not cumulative. If the motion to quash is denied, a motion to suppress cannot be availed of subsequently.

 

Provisional Remedies (Rule 127)

Nature

  1. The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action (Sec. 1).

  2. The requisites and procedure for availing of these provisional remedies shall be the same as those for civil cases. Consequently, an application for recovery of damages on the bond posted for purposes of said provisional remedies shall be made in the same action and, generally, cannot be the subject of a separate action (Sec. 14, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60). For this reason, the order of trial now specifically provides that the accused may present evidence, not only to prove his defense, but also such damages as he may have sustained and arising from the issuance of any provisional remedy in the case (Sec. 11[b], Rule 119; Sec. 12, Rule 124).

  3. The provisional remedies under this Rule are proper only where the civil action for the recovery of civil liability ex delicto has not been expressly waived or the right to institute such civil action separately is not reserved, in those cases where such reservation may be made. A fortiori, where the civil action has actually been instituted, whether such action has been suspended by the subsequent institution of the criminal action (Se3c. 2, Rule 111) or may proceed independently of the criminal action but may be applied for in the separate civil action.

Kinds of provisional remedies

(1) Attachment. – When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases:

(a) When the accused is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and

(d) When the accused resides outside the Philippines (Sec. 2).

(2) Rule 57 on preliminary attachment applies on the procedure to secure an attachment in the cases authorize3d under Rule 127.

Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

(a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;

(e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or

(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication (Sec. 2, Rule 57).

 

About these ads

Responses

  1. THANKS

  2. hmmm…its help me alot !!!! thank u

  3. I need help, a legal opinion on the matter. The problem goes like this…A judge won’t issue a commitment order for the temporary safekeeping of an accused in a jail because the latter is said to be on BAIL for the case he is being tried at but the accused is also a convicted felon presently serving his sentence in another case. Are there any legal options that we can pursue to enjoin the judge to issue such commitment order so that the custody of the accused/inmate may be temporarily transferred to a local jail during the trial of his pending case?

  4. Enlightening discourse. Thank you for posting it. Ideal for those who review for the bar.

  5. Thank you very much Sir! Enlightening indeed!

  6. great!!! you really have a big heart. God bless you!

  7. How can I possibly download po ba????pls do reply po I badly need it…it’s a great help po….


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

Follow

Get every new post delivered to your Inbox.

Join 234 other followers

%d bloggers like this: