D2019-crimpro-reviewer.pdf

REVIEWER ON

CRIMINAL PROCEDURE Under Prof. Chrysilla Bautista D2019



REVIEWER POOL

RUTH MELICOR Pool Head Introduction, Jurisdiction, Police Investigation, Search & Seizure, Arrest

AIMEE TAN Preliminary Investigation, Venue, Complaint and Information, Civl Aspect

MIKE NATIVIDAD Compilation and Formatting Bail, Arraignment and Plea, Quashal

NATASHA FRANCIA Preliminary Conference and Pre-Trial, Trial

KYLE SUBIDO Judgment, New Trial and Reconsideration, Appeal, Post Conviction Review




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INTRODUCTION Concept of Criminal Procedure

sion based on two affidavits which were not even submitted as evidence, without giving petitioner opportunity to cross-examine.

Criminal Procedure is a “generic term to describe the network of laws and rules which governs the procedural administration of justice” (Black’s Law Dictionary)

Court: There has been an undue precipitancy in the conduct of the proceedings, which violated the right to due process and fair trial.

It treats the rules and processes by which criminal laws are enforced and by which the State prosecutes persons who violate such laws.

Requirements of due process in criminal proceedings: that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it that jurisdiction is lawfully acquired by it over the person of the accused that the accused is given opportunity to be heard judgement is rendered only upon lawful hearing

Procedural law, as applied to criminal law, provides or regulates the steps by which one who committed a crime is to be punished. Criminal procedure lays down the processes by which an offender is made to answer for the crime he committed.

Ultimate Goal of Criminal Procedure Harmonising the governmental functions of maintaining peace and order and protecting the constitutional rights of its citizens.

The Adversarial/Accusatorial System System of procedure is our jurisdiction is accusatorial or adversarial. Where two contending parties come before the court which hears them impartially and renders judgement only after trial. Court shall consider no evidence which has not been formally offered. (passive role) It is not inquisitorial, where judge is permitted to act as inquisitor, utilise evidence gathered outside court, and supervise the gathering of the evidence. (active role)

Liberal Interpretation of the Rules Rules on criminal procedure shall be “liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding.” (Sec 6, Rule 1, ROC) Rules of procedure are tools to facilitate attainment or justice, thus rigid application which result to technicalities tending to frustrate substantial justice must be avoided.

General Considerations ALONTE VS. SAVELLANO Facts: Petitioner, Mayor of Binan Laguna, was accused of raping a child in his guest house. He allegedly gave her water which made her dizzy then performed the act. In the course of the trial, complainant issued an affidavit of desistance. The evidence presented to the judge revolved around the voluntariness and validity of said affidavit. Judge deemed the case “submitted for decision,” and eventually convicted petitioner.

There can be no shortcut to the legal process, and there can be no excuse for not affording an accused his full day in court. CASE REMANDED

PEOPLE VS. MARIANO Facts: Mariano was accused as estafa, for allegedly using US excess property of electric and power cables for personal reasons, while he was a Liaison Officer. He challenged the jurisdiction of the civil court stating that Mayor Nolasco has already been found guilty of malversation before the Military Commission over the same items.Respondent Judge granted such motion, claiming that his court exercises concurrent jurisdiction w/ Military Commission, but lose jurisdiction due to the latter taking cognizance over it. Court: Jurisdiction is the power and capacity given by the law to a court or tribunal to entertain, hear, and determine certain controversies. Jurisdiction is the authority to hear and determine a cause - the right to act in a case. It is the right to put the wheels of justice into motion and proceed with a final determination of a cause upon pleadings and evidence. Criminal Jurisdiction is the authority to hear and try a particular offense and impose punishment for it. Conferment of jurisdiction is derived exclusively from the constitution and statutes. Settled rule is that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action. Judiciary Act of 1948 was not affected by Presidential issuances of Martial Law. Estafa and malversation are two separate offenses. The tribunals are not vested with concurrent jurisdiction. Estafa falls within the sole exclusive jurisdiction of the civil courts. CASE REMANDED

Petitioner claims that the decision was rendered without affording due process. Judge rendered a deciREVIEWER ON CRIMINAL PROCEDURE

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ANTIPORDA VS. GACHITORENA Facts: Petitioners were charged with the crime of kidnapping Elmer Ramos. However the original information submitted to the Sandiganbayan did not allege that one of the petitioners took advantage of his position as mayor to commit crime. Prosecution complied with Sandiganbayan’s Order to amend information. Accused filed motion to quash. W/N Sandiganabayan which had no jurisdiction over the offense charged in the original information, subsequently acquire such information by the simple expediency of amending the information to supply jurisdictional facts for the first time. W/N amended information be allowed without conducting anew a preliminary investigation Court: Three requisites for a court to acquire jurisdiction to try a criminal case: the offense is one which the court is by law authorized to take cognizance of the offense must have been committed within its territorial jurisdiction the person charged with the offense must have been to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. Sandiganbayan had territorial jurisdiction over the case. Sandiganbayan had jurisdiction over person, since filing of motion to quash was tantamount to voluntary submission to the court’s jurisdiction. No jurisdiction over offense, due to original information, however petitioners are estopped from assailing jurisdiction for they challenged RTC jurisdiction in same case, stating it was work connected. (Cannot invoke jurisdiction of court to secure affirmative relief, and later repudiate or question that same jurisdiction.) Sandiganbayan has jurisdiction due to estoppel. Reinvestigation is not necessary anymore, since there is no showing that accused would be unduly prejudiced.

Authority to hear and try a particular offense and impose the punishment for it. Offense is one which the court is by law, authorized to take cognizance of. (Antiporda Jr. vs. Garchitorena) It is law that confers such jurisdiction. It cannot be presumed. (Law at the time of commencement of action, not at the time of commission of the offense). However, it is the allegations in the complaint or information that determines jurisdiction over the criminal case. Jurisdiction is not determined by the penalty actually imposed after trial, but by the penalty imposable by law on the offense.

Principle of Adherence Once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. Ex: RTC acquired jurisdiction over offense of frustrated homicide, but evidence during trial points to less serious physical injuries, cognizable by the MTC, the RTC does not lose its jurisdiction over offense charged.

Objections of Jurisdictional Grounds Objection based on the ground that the court lacks jurisdiction over the subject matter may be raised or considered motu propio by the court at any stage of the proceedings or on appeal Right to raise the issue of jurisdiction has limitations. Cannot invoke jurisdiction of the court to secure affirmative relief against opponent, and after obtaining of failing to obtain such relief, repudiate or question that same jurisdiction. Party may be estopped from questioning jurisdiction of the court for reasons of public policy, as when he initially invokes the jurisdiction of the court, and then later on repudiates that same jurisdiction

JURISDICTION OVER TERRITORY A court is bereft of jurisdiction to try an offense committed outside its limited territory. Place where the crime was committed determined not only venue of the action, but is also an essential element of jurisdiction.

PETITION DISMISSED

Requisites for the Exercise of Criminal Jurisdiction* Jurisdiction over subject matter Jurisdiction over territory Jurisdiction over the person of the accused *basic requisites before court can acquire jurisdiction over a particular case

JURISDICTION OVER SUBJECT MATTER Refers to the authority of the court to hear and determine a particular criminal case. (Jurisdiction over the offense charged) REVIEWER ON CRIMINAL PROCEDURE

For jurisdiction to be acquired, the offense should have been committed or any of tis essential ingredients should have taken place in the territorial jurisdiction of said court.

JURISDICTION OVER THE PERSON OF THE ACCUSED Refers to the authority of the court over the person charged. Jurisdiction acquired by: (1) voluntary submission to the court or (2) arrest of the accused, with or without warrant. As a rule, one who seeks affirmative relief is deemed to have submitted to the jurisdiction of the court. Same 2

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effect if he actively participates in trial and presents evidence. Exception: If a motion to quash is filed questioning the jurisdiction of the court over the person. Custody of the law is not necessarily being under jurisdiction of the court. One can be under custody of the law, but not yet subject to the jurisdiction of the court. The former is literally custody of the body and restraint upon person.

Injunctions of Criminal Proceedings HERNANDEZ VS. ALBANO Facts: Petitioner Hernandez (Sec. of Finance and Presiding Officer of the Monetary Board of the Central Bank) was accused by respondent of using his position to obtain dollar allocations from the Central Bank for corporations he had an interest in. Petitioner sought dismissal of the charges claiming that such violations should be prosecuted at the domicile of the private enterprises (Bicol and Nueva Caceras.) Denied. Thus, petitioner filed for an injunction to restrain fiscals of Manila from investigating. W/N prosecuting arm of City of Manila should be restrained from preceding with the investigation of the charges levelled against petitioner. Court: By statute, the prosecuting officers are empowered to investigate crimes within the city’s territorial jurisdiction. Ordinarily criminal prosecution may not be blocked by a court prohibition or injunction, since administration of justice might meet undue setbacks. However, extreme cases do exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary: for the orderly administration of justice to prevent the use of the strong arm of the law in an oppressive and vindictive manner to avoid multiplicity of actions to afford adequate protection to constitutional rights when the statute relied upon is unconstitutional or held invalid. Although property rights to shares of stock may only be in enforced in the corporation’s domicile, the charges are not directed against the corporations. Petitioner was clearly in Manila when he used his position to aid his financial interests. PETITION DISMISSED

BROCKA VS. ENRILE Facts: Petitioners were charged with illegal assembly following a violent dispersal of a demonstration held in sympathy of a jeepney strike. Despite service of the order of release, petitioners remained in detention, due to preventive detention action, and subsequently charged with inciting to sedition. Petition was filed to enjoin the Quezon fiscal from investigating said charge, due to the manifest bad faith/ REVIEWER ON CRIMINAL PROCEDURE

harassment, and that the second offense charged was based on the same act. Court GR: Criminal Prosecution may not be restrained or stayed by injunction. Exceptions: to afford adequate protection of the constitutional rights of the accused when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions. when there is a pre-judicial question which is sub-judice when the acts of the officer are without or in excess of authority when the prosecution is under an invalid law, ordinance, or regulation when double jeopardy is clearly apparent when the court has no jurisdiction over the offense when it is a case or persecution rather than prosecution where the charges are manifestly false and motivated by the lust for vengeance when there is clearly no prima facie evidence against the accused and a motion to quash on the ground has been denied preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest In the present case, criminal proceedings have taken the form of persecution, undertaken in bad faith. The Preventive Dentition Action, was issued on January, but was invoked on February upon service of release order. Under guidelines, it should have been invoked within 24 hours in Metro Manila, or 48 hours otherwise. Hasty filing of the second offense betray the respondent’s bad faith and malicious intent to pursue criminal charges against petitioner. PETITION GRANTED

DEFENSOR-SANTIAGO VS. VASQUEZ Facts: Petitioner was accused of approving application for legalisation of aliens, receiving money, gifts, and other valuable things, and imputing defamatory statements against employee. She seeks to enjoin the Sandiganbayan and RTC of Manila from proceeding with 3 criminal cases, claiming that these were meant to harass her as a presidential candidate. (politically motivated) Court: Long standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. This case does not fall under any of the exceptions. Nothing to show that it was filed in a vindictive manner to oppress, harass, or discriminate her. Neither were her constitutional rights violated. Her explanation, as to the charges, are best heard during trial. PETITION DISMISSED 3

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Mandamus to Compel Prosecution Public prosecutor exercises a wide latitude of discretion in determining whether a criminal case shall be filed in court, and the courts must respect the exercise of such discretion. Mandamus is not available to control discretion. However, the moment he finds one to be so liable, it is his duty to charge and prosecute. In such a situation, the rule loses its discretionary character and becomes mandatory.

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JURISDICTION Jurisdiction of Criminal Courts CRIMINAL JURISDICTION OF THE MUNICIPAL TRIAL COURT, MUNICIPAL CIRCUIT TRIAL COURT, AND METROPOLITAN TRIAL COURT Except in cases falling within the exclusive original jurisdiction of the RTC and of the Sandiganbayan, the MTC shall exercise the following criminal jurisdiction: 1. Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction. (Sec 32(1), BP 129) 2. Exclusive original jurisdiction over all offense punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable or accessory penalties, including civil liability arising from such offenses irrespective of kind, nature, value, or amount. 3. Exclusive original jurisdiction over offenses involving damage to property through criminal negligence (Sec 32 (2), BP 129) 4. Violations of BP 22 (Bouncing Checks Law), which as per A.M. No. 00-11-01-SC, shall be governed by the rules on summary procedure. 5. Summary procedure in certain cases 6. Special jurisdiction to decide on application for bail in criminal cases in the absence of all RTC judges in a province or city. (Sec 35, BP 129)

Summary Procedure in Criminal Cases (MTC) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts and the Municipal Circuit Trial Courts shall have jurisdiction over cases falling under summary procedure committed within their jurisdiction. (Sec 1, Rev. Rules on Summary Procedure) The following cases are subject to summary procedure: 1. Violations of traffic laws, rules, and regulations 2. Violations of the rental law 3. B.P. 22 cases 4. Violations of Municipal or City Ordinances 5. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six (6) months or a fine not exceeding one thousand pesos, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; 6. Offenses involving damage to property through criminal negligence where the imposable fine does not exceed 10,000 pesos. (Sec 1(b), Rev. Rules on Summary Procedure) The filing of criminal cases under summary procedure may be either by complaint or information. In Metro Manila and other chartered cities, the filing shall be by information except when the offense is one which cannot be prosecuted de officio. (Sec 11, Revised Rules on Summary Procedure)

copies for the court’s files. This requirement has to be complied with within five (5) days from the filing of the case, otherwise the same may be dismissed. (Sec 11, Rev Rules on Summary Procedure) The affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants. The affidavit shall also show the competence of the affiants to testify to the matters stated therein. A violation of this requirement is a ground for disciplinary action against the party or counsel who submits the affidavit. It is also a ground for the inadmissible affidavit or a portion of if to be expunged from the record. (Sec 20) Should the court find no cause or ground to hold the accused for trial, it shall order a dismissal of the case. If there is a ground to hold the accused for trial, the court shall set the case for arraignment and trial. (Sec 13) If the accused is in custody for the crime charged, he shall immediately be arraigned. If he enters a plea of guilty, he shall forthwith be sentenced. (Sec 13) Before conducting the trial, the court shall call the parties to a preliminary conference during which the following may be done: 1. Entering into a stipulation of facts 2. Considering the propriety of allowing the accused to enter a plea of guilty to a lesser offense; or 3. Taking up such other matters to clarify the issues and to ensure a speedy disposition of the case. (Sec 14) If the accused refuses to stipulate or fails to do so, such refusal or failure shall not prejudice the accused. Also any admission of the accused made during the preliminary conference must be reduced to writing and signed by the accused and his counsel. If this requirement is not met, such admission shall not be used against him. (Sec 14) During the trial, an actual direct examination of the witnesses is not required because the affidavits submitted by the parties shall constitute their direct testimonies. The witnesses, however, may be subjected to cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit. However, the adverse party may utilise the same for any admissible purpose (Sec 15) The court is mandated not to order the arrest of the accused except where the ground is his failure to appear when required by court. If he is arrested, he may be released on bail or on recognizance by a responsible citizen acceptable to the court. (Sec 16) Where a trial has been conducted, the court shall promulgate the judgement not later than 30 days after the termination of the trial (Sec 17)

The complaint or information shall be accompanied by the affidavits of the complaint and his witnesses in such number of copes as there are accused plus 2 REVIEWER ON CRIMINAL PROCEDURE

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PROHIBITED PLEADINGS, MOTION, AND PETITIONS 1. Motion to quash the complaint or information or motion to dismiss the complaint except if the ground is lack of jurisdiction over the subject matter or failure to comply with barangay conciliation proceedings; 2. Motion for bill of particulars 3. Motion for new trial, or for consideration of a judgement, or for reopening of trial 4. Petition for relief from judgement 5. Motion fro extension of time to file pleadings, affidavits or any other paper; 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply 11. Third-party complaints; 12. Interventions (Sec 19)

Criminal Jurisdiction of the RTC Regional Trial Court shall exercise the following jurisdiction: 1. Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal, or body, except those now falling under the exclusive and concurrent jurisdiction the the Sandiganabayan which shall be exclusively taken cognizance by the latter (Sec 20, BP 129) 2. Original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction enforceable in any part of their respective regions. (Sec 21, par. 1, BP 129) 3. Appellate jurisdiction over all cases decided by the MTC within its territorial jurisdiction. (Sec 22) 4. Special jurisdiction of certain branches to handle exclusively criminal cases as may be determined by the Supreme Court (Sec 23) 5. Jurisdiction over criminal cases under specific laws: A. Written defamation (Art 360, RPC) B. Jurisdiction of designated special courts over cases in violation of the Comprehensive Dangerous Drugs Act of 2002 (RA 9165, Sec 90) C. Jurisdiction of designated RTC branches for violations of Intellectual property rights (A.M. No. 03-03-03-SC) D. Jurisdiction to try all cases on money laundering. However, those committed by public officers and private persons, who are in conspiracy with such public officers, shall be under the jurisdiction of the Sandiganbayan. (Sec 5, RA 9160)

Criminal Jurisdiction of the Sandiganbayan Jurisdiction of Sandiganbayan is set by P.D. 1606 Sec 4 (paraphrased) Exclusive Original Jurisdiction in all cases involving: I. Violation of RA 3019 (Anti-Graft and Corrupt Practices), RA 1379, Chapter II, Sec 2, Titile VII of Book III or RPC, where one or more of the accused are officials occupying the following posiREVIEWER ON CRIMINAL PROCEDURE

tions in government, whether in a permanent, acting or interim capacity at the time of the commission of the offense: A. Officials of the executive branch occupying the positions of Regional Director and higher, otherwise classified as Grade 27 and higher, specifically including: 1. provincial governors, vice-governors, members of the sangguiniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; 2. City mayors, vice-mayors, members of the sangguiniang panlungsod, city treasurer, assessors, engineers, and other city department heads; 3. officials of the diplomatic service occupying the position of consul and higher 4. Philippine army and air force colonels, naval captains, and all officers if higher rank 5. Officers of the Philippine National Police while occupying position of provincial director and this holding the rank of senior superintended or higher 6. city and provincial prosecutor and their assistants; and officials and prosecutors in the Office of the Ombudsman and special prosecutor. 7. Presidents, directors, or trustees, or manager of GOCCs, state universities educational institutions or foundations. B. Members of Congress and officials thereof classified as Grade 27 and up C. Members of the judiciary without prejudice to the provisions of the Constitution D. Chairmen an Members of the Constitutional Commissions, without prejudice to the provisions of the Constitution E. All other national and local officials classified as Grade 27. II. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection “a” of this section in relation to their office III. Civil and criminal cases filed pursuant to and in connection with E.O. 1, 2, 14, and 14, and 14-A.

Offenses subject to jurisdiction of the Sandiganbayan (In the meantime, refer to previous section)

Rule on Juvenile in Conflict with the Law Juvenile - who at the time of commission of the offense is below 18 years of age but not less than 9 years of age. Criminal action may be instituted by filing a complaint with the prosecutor or the municipal trial court in cases where preliminary investigation is required. May also be filed directly with the Family Court (Sec 11) Will be tried in Family Court, or nearest place offense was committed.

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Jurisdiction over the Offense Cases ALFELOR, SR. VS. INITIA Facts: Petitioner and respondent, Funtabella, were congressional candidates in the 2nd district of Camrines Sur in the 1965 elections. Respondent was proclaimed winner which led to an electoral protest. Funtabella, in turn, charged petitioner in the municipal court of Tigaon with falsification of public documents contained in the ballot box of a precinct in Parubcan, the alleged act having taken place in another municipality, Iriga. Petitioner filed motion to dismiss, due to lack of jurisdiction. This was denied by respondent judge, asserting that the jeep carrying the ballot box passed through his jurisdiction and falsification was a continuing offense. Court: The jurisdiction of municipal courts to try criminal cases are confined to such offenses committed within the limits of their territories. Place where offense was committed not only determines the venue of the action, but is an essential element of jurisdiction Crime of Falsification is consummated when such document is actually falsified with the intent to prejudice a third person, whether or not it is put to use. The place where the criminal act was committed is the place where the document was actually falsified. It’s use is not an essential element of the crime.

UY VS. CA Facts: Petitioner, Rosa Uy, was an accountant in Don Tim Shipping Company, owned by the husband of complainant, Consolacion Leong. She resigned but remained friends with Leong. They eventually formed a partnership, where Leong would contribute the capital for petitioner’s lumber business. P500,000 was allegedly given, but no receipt was issued. The partnership documents were never processed, and the friendship eventually turned sour, leading Leong to ask for her money back. The 6 checks issued by Rosa were dishonoured for insufficiency of funds. Long filed a complaint for estafa and violation of B.P. 22. RTC of Manila convicted her of BP 22, but acquitted her of estafa. Petitioner challenges the jurisdiction of said court, stating that none of the essential elements were committed in Manila. People and Sol Gen, argues however, that because RTC had jurisdiction over the estafa case, it acquired jurisdiction over the incidental BP 22 case.

Unlike in estafa, violation of BP 22 does not require elements of deceit and damage. (1) making, drawing, and issuance, of any check to apply to account or for value; (2) the maker, drawer, or issuer, knows at the time of issuance that he does not have sufficient funds; (3) check is subsequently dishonoured by the drawee bank for insufficiency of funds. Records show that business dealings were done in a restaurant in Manila, and sums of money was given there, giving the court jurisdiction over the estafa case. However, there is no proof that nay of the essential elements of BP 22 violation was done in Manila. Contention of respondent that knowledge on the part of the maker of insufficiency of funds is a continuing offense, lacks merit. Such is simultaneous to the issuance of check. PETITION GRANTED

Jurisdiction Over the Accused Case RIVERA VS. CA Facts: Petitioner, was charged with murder for allegedly having shot and killed Renato Camacho, while he was playing Mahjong. Victim’s wife testified that she saw petitioner at the window of his mother’s house aiming a gun towards the mahjong players. She ran away when the shot went off. The accused and the victim were previously heard arguing about victim allegedly stealing petitioners goat. Trial Court for petitioner guilty, and the CA affirmed such decision. Court: Alibi did not have an element of physical improbability . Witness inconsistencies were referring to minor matters Records show that when information was filed after the preliminary investigation, he voluntarily submitted himself to the jurisdiction of the trial court and posted his bail bond. PETITION DENIED

Court: For jurisdiction to be acquired by courts in criminal cases, the offense or any of its essential ingredients should have took place within the territorial jurisdiction of such court. Crimes of estafa and BP 22 are two different offesnes having different elements, and for a court to acquire jurisdiction, each of the essential elements of each crime has to be satisfied. REVIEWER ON CRIMINAL PROCEDURE

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POLICE INVESTIGATION Constitution ART III, SEC 3. The privacy of communication shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

ART III, SEC 12. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have 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 the presence of counsel. No torture, force, violence, threat, intimidation, or any other means which vitiate free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Any confession or admission obtained in violation of this or Sec 17 hereof shall be inadmissible as evidence against him. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

ART III, SEC 17. No person shall be compelled to witness against himself.

Cases MIRANDA VS. ARIZONA Facts: Law enforcement officials took defendant into custody and interrogated him for the purpose of obtaining a confession. The police did not advice him of his right to remain silent or his right to counsel. Instead they confronted him with an alleged accomplice who accused him of murder. When defendant said “I didn’t shoot Manuel, you did it.” He was handcuffed and brought info questioning for four hours until he confessed. He was denied his request to his attorney and they prevented attorney from seeing him. State used such confession against him at trial Court: Statements made were constitutionally inadmissible. Custodial Interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any way.

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Prior to any questioning, person must be warned that he has a right to remain silent, any statement he does make may be used against him as evidence, and that he has a right to the presence of an attorney. Defendant may waive these rights, provided waiver is made voluntarily, knowingly, and intelligently. If the individual indicates that he wishes to remain silent, investigation must cease If the individual cannot obtain an attorney and indicates he wants one before speaking to the police, they must respect his decision. If he cannot afford a lawyer, a lawyer will be provided for him prior to any interrogation. If interrogation continues without presence of an attorney, and a statement is taken, heavy burden rests on the government to prove that he waived his privilege. Miranda warning: Right to remain silent and Right to Counsel

U.S. VS. WADE Facts: Bank in Texas was robbed by a man with a strips of tape on both sides of his face, who forced the cashier and VP to fill pillowcase with bank money. Defendant was arrested and counsel appointed for him. 15 days later, he was arranged to participate in a line-up where strips of tape were placed on faces and everyone was told to say “Put money in the bag.” The two employees identified Wade. During trial, the employees identified Wade in a courtroom identification. Wade’s counsel moved for acquittal and to strike the employees’ identification, on the ground that the lineup was without notice and in absence of counsel. Wade was convicted. Court: The line-up did not violate Wade’s privilege to self incrimination. The prohibition of compelling a cam in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communication from him. It is not an exclusion of his body as evidence, when it may be material. It is compulsion to exhibit physical characteristics, not compulsion to disclose knowledge which he might have. There are difference which precludes stages from being characterised as critical stages, at which the accused has the right to the presence of counsel. Court admits that there are some unfair practices in police line-up and there are dangers involved. Counsel should ideally have been present. Set aside conviction pending a hearing to determine whether the in-court identification had an independent source. CASE REMANDED

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OROZCO VS. TEXAS Facts: Petitioner and deceased quarrelled outside cafe before midnight, due to the latter speaking to the former’s female companion. Deceased beat the petitioner and called him “Mexican Grease.” which led to a shot which killed deceased. Petitioner returned to his boarding house. At 4 a.m. police came to his bedroom and began to question him. He was not free to go and “was under arrest.” He was asked if he had been to the restaurant yes. He was asked if he owned a pistol - yes. He was asked where the pistol was - he said in the washing machine. Pistol was recovered and tests showed it was the gun that fired the fatal shot. Texas court convicted accused of murder without malice Court: Officers questioned petitioner about incriminating facts without first informing him of his right to remain silent, wish right to have an advice of a lawyer, and his right to have a lawyer appointed to assist him if he could not afford to hire one. The use of these admissions obtained in the absence of required warnings was a violation of the Self Incrimination Clause LOWER COURT REVERSED

US VS. BROWN Facts: Accused allegedly touched the private parts of two girls who were minors on a drive back home from a softball game. FBI agents went to look for accused. They introduced themselves and informed him of the allegations against him. He was told that he was not under arrest but they wanted to get his side of the story. Officers followed accused into his bedroom. He initially denied it, stating it may have been unintentional. Later he admitted to the crime. He was convicted of sexual abuse. He filed to have a motion to suppress his statements, since he wasn’t given the Miranda warning, but this was denied by trial court, stating the he had not been in custody. Court: Miranda warnings must be given prior to the questioning whenever an individual is in custody. He is in custody when he has been formally arrested or freedom of movement has been restrained to a degree associated with a formal arrest. Six indicia of custody: whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest whether the suspect possessed unrestrained freedom of movement during the questioning whether the suspect initiated contact authorities or voluntary acquiesced to official request to respond to questions REVIEWER ON CRIMINAL PROCEDURE

whether strong arm tactics or deceptive stratagems were employed during questioning whether the atmosphere of the questioning was police dominated whether the suspect was placed under arrest at the termination of the questioning. Presence of the first 3 mitigate the existence of custody, while the presence of the last three aggravate existence of custody. In present case, first 3 were present, and last 3 were absent. He was told that he was not under arrest and that questioning was voluntary he was free to move around during the interview; no handcuffs; door was open and unblocked. No strong arm tactics were used. District Court was correct in holding that he was not in custody CASE REMANDED, due to error in computation of sentence.

PEOPLE VS. ANDAN Rape w/ homicide; brought to SC on automatic review Facts: Accused-Appellant Bobby Andan was taken and interrogated by police under suspicion of raping AAA and killing her with concrete blocks. Initially he denied AAA’s death, however he later admitted to being a lookout, pinned the crime on two other suspect, and directed the police to victim’s 2 bags. All these without presence of counsel. Later on he admitted to the mayor that he really was the one who committed the crime. He also reiterated his confession to media men Lower Court sentenced him to death Court: Any person under investigation of an offense shall have the right to (1) remain silent; (2) have competent and independent counsel; and (3) to be informed of such rights. These rights cannot be waived except in writing and in the presence of counsel. Appellant was already under custodial investigation, yet he was not informed of his rights. His confession as lookout and the 2 bags of the victim are inadmissible as evidence. However confession to Mayor and media was admissible. Appellant spoke to the Mayor as a confidant not as a law enforcement officer. Constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities. His confession to the media was also made voluntarily, and nothing shows that news reporters acted under the direction of the police. It was not in response to question by police.

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AFFIRMED

PEOPLE VS. ENDINO Crime: Murder qualified by treachery Facts: Gerry Galgarin and his nephew Endino were accused of slaying Dennis Aquino in front of the victim’s girlfriend in Puerto Princesa. Both remained at large, until Galgarin was located in Antipolo Rizal. Before he was brought back to Palawan, police officers brought him to ABS-CBN where he was interviewed by reporters. He was taped admitting his guilt. During trial, accused disowned the confessions claiming it was done under threat of police, he also tried to invoke the exclusionary rule. Accused was convicted by lower court of murder qualified by treachery. Court: Confession does not form part of custodial investigation, as it was not given to police officers but to media men in an attempt to gain sympathy. However, trial courts are reminded that extreme caution must be taken in admitting such statements, since there is probability of collusion between the media and the police. Statements such as these are to be suspect and thoroughly examined and scrutinised.

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SEARCHES AND SEIZURES Constitution Art III Sec 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 nay 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 3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding

Nature of a Search Warrant 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) It is not a criminal action, not does it represent a commencement of a criminal prosecution. It is solely for the discovery and possession of personal property. It is not a criminal action, hence any aggrieved party may question an order quashing the same without need of conformity of the public prosecutor

Protection Against Gov’t Intrusion The rule against unreasonable searches and seizures does not extend to acts committed by private individuals and entities. It is a restraint against the government and its agents tasked with law enforcement. It is to be invoked only to ensure freedom from arbitrary and unreasonable exercise of State power.

Arrest vs. Search and Seizure An arrest involves taking of a person into custody, while a search is concerned with the seizure of personal property subject of the offense, stolen or embezzled property, fruits of the offense, or those intended to be used to commit an offense. A probable cause to arrest does not necessarily involve a probable cause to search and vice versa. Both involve different determinations. In order to determine probable cause to arrest, the judge (not the prosecutor) must have sufficient facts in his hands that would tend to show that a crime has been committed and that a particular person committed it. Whereas, probable cause to search requires facts to show that particular things connected with a crime are found in a specific location.

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An arrest with a warrant may be made on any day and at any time of the day or night, while a search warrant is generally served in the day time, unless there be direction that it may be served at any time of the day or night. (Sec 9, Rule 126) The issuance of a warrant of arrest presupposes the existence of a pending criminal case. A search warrant does not require the existence of a criminal case. (May be issued prior to filing)

Where to File Search Warrant Application for a search warrant shall be filed before any court within whose territorial jurisdiction a crime was committed (Sec 2(a), Rule 126) Exceptions: A. An application may be made before any court within the judicial region where the crime was committed if the place of the commission of the crime is known (Sec 2(b), Rule 126) B. The application may also be filed before any court within the judicial region where the warrant shall be enforced. (Sec 2(b), Rule 126)
 
 (In both exceptions, filing in such courts requires compelling reasons stated in the application) C. The application shall be made only in the court where the criminal action is pending if the criminal action has already been filed (Sec 2, last par, Rule 126)

Ex Parte Application An application for a search warrant is hear ex parte. It is neither a trial door part of one. (Time is of the essence)

Property Subject to a Search Warrant The property subject to a search warrant is personal property, and not real property. A. Personal property subject of the offense B. Personal property stolen to embezzled, and other proceeds, or fruits of the offense C. personal property used or intended to be used as a means for committing an offense Only property described in the search warrant may be seized by the authorities.

Requirements For Issuance 1. It must be issued upon probable cause 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 such witnesses he may produce 4. the warrant issued particularly describe the place to be searched and persons and things to be searched. (Sec 4, Rule 126) Absence of these requisites will cause downright nullification

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Probable Cause in Search Warrants Such facts and circumstances that would lead a reasonable and prudent man to believe that a crime has been committed and that items related to the crime may be found in the place and on the persons indicated therein.

According respect to findings of probable cause of trial courts HOW EXAMINATION CONDUCTED 1. The examination must be personally conducted by the judge 2. The examination must be in the form of searching questions and answers 3. The complainant and the witnesses shall be examined on those facts personally known to them 4. The statements must be in writing and under oath 5. The sworn statements of the complainant and the witnesses, together with the affidavits submitted shall be attached to the record.

Issuance and Form of the Search Warrant The warrant shall be issued when the judge is satisfied of the existence of facts upon which the application is based or that there is a probable cause to believe that they exist. The form of search warrants must be substantially in the form prescribed by the Rules. (Sec 6, Rule 126)

Duration of the validity of a search warrant Valid for 10 days from it's date. Thereafter it shall be void. (Sec 10, Rule 126 RTC) Time of Making the Search The warrant shall be served in the daytime and such fact must be so directed in the warrant. However, if the affidavit asserts that the property is on the person or in the place ordered to be searched, the warrant may insert a direction that it may be served at any time of the day or night. (Sec 9, Rule 126)

Manner of Making the Search The search shall be made in the presence of the lawful occupant of the house, room or any other premises, or any member of the lawful occupant’s family. In the absence of the latter, the search shall be made in the presence of 2 witnesses of sufficient age and discretion residing in the same locality. (Sec 8, Rule 126) Officer seizing the property must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of occupant, must, in the presence of at least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (Sec 11, Rule 126)

Rule If Officer Refused Admittance The officer may break open any outer or inner door or window of a house or any part of a house or anything therein provided the following requisites are complied with: 1. the officer gives notice of his purpose and authority 2. He is refused admittance to the place of directed search despite the notice

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3. The purpose of breaking is to execute the warrant or to liberate himself or any person lawfully aiding him when unlawfully detained therein. (Sec 7, Rule 126)

Duties of Officer After Search 1. He must forthwith deliver the property seized to the judge who issued the warrant 2. He must together with the delivery of the property also deliver a true inventory of the property seized. Such inventory must be duly verified under oath. (Sec 12(a), Rule 126) 3. Note: Violation of the above shall constitute contempt of court. (Sec 12, Rule 126)

Duty of Judge 1. Judge shall ascertain if the return has been made. He shall do so 10 days after the issuance of the search warrant. 2. If no return has been made, the judge shall summon the person to whom the warrant was issued and require him to explain why no return was made. 3. If the return has been made, the judge shall ascertain whether Sec 11, Rule 126 (receipt) was complied with and shall require that the property seized be delivered to him. He shall also see to it that Sec 12, Rule 126 (delivery) has been complied with

Duty of Log Book Custodian The return of the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. (Sec 12, Rule 126)

Motion to Quash A motion to quash a search warrant and/or suppress evidence obtained in virtue of a warrant may be filed and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved be the court that issued the search warrant. However, if the 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, Rule 126)

Warrantless Searches MOVING VEHICLE Rationale: Justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality of jurisdiction in which the warrant must be sought. (People vs. Que)

Requisites: 1. probable cause 2. impossible to go to court and apply for a search warrant

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PLAIN VIEW

AIRPORT SEARCHES

Rationale:

Rationale:

Recognition of the fact that when the police come across immediately recognisable incriminating evidence they should not be allowed to close their eyes to it.

Increased concern over hijacking and terrorism. 


Requisites: 1. prior valid intrusion 2. discovery of evidence is inadvertent 3. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure (MIclat Jr., vs. People)

WAIVER/CONSENTED SEARCHES Requisites: 1. the right exists 2. person had knowledge of such right 3. actual intention to relinquish the right

STOP AND FRISK Rationale: dual purpose 1. general interest of effective crime prevention 2. safety of the police officer

Requisites: 1. Police officer observed an unusual conduct, which in light of his experience leads him to believe that criminal activity is afoot and the person whom he is dealing with may be armed and presently dangerous 2. He identifies himself as a policeman 3. Nothin in the initial stages of encounter serves to dispel his reasonable fear.

SEARCH INCIDENTAL TO A LAWFUL ARREST Rationale: 1. Protect arresting officer 2. Prevent destruction of evidence

Limitation as to scope: 1. person 2. area of immediate control

Limitation as to items: 1. dangerous weapons 2. anything that may have been used in the offense 3. anything that may be used as proof to prove the offense.

CUSTOMS SEARCH Requisites: 1. persons conducting search were exercising police authority under customs law 2. search was for enforcement of customs law 3. place searched was not a dwelling

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ARREST Arrest WHAT IS AN ARREST? An 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)

HOW IS AN ARREST MADE? 1. actual restrain of a person to be arrested; or 2. his submission to the custody of the person making the arrest *No violence or necessary force shall be used. Person arrested shall not be subject to greater restraint than necessary. (Sec 2, Rule 113) It has been held that application of force or declaration of arrest is not required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit under the belief that it is necessary.

WHEN MAY ARREST BE MADE? Anytime of the day or night. (Sec 6, Rule 113)

Requisites for Issuance of Search Warrant It is constitutionally mandated that a warrant of arrest shall issue only upon a finding of probable cause to be determined personally by the judge. Probable cause such facts and circumstances which would lead a reasonably discreet and prudent man to believe than an offense has been committed by the person ought to be arrested. Personal examination by the judge judge need not examine the complainant and witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor, or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses. Judge’s personal examination of complainant and witnesses is not mandatory and indispensable for determining aptness of search warrant. It is enough that he personally evaluates the report and supporting documents, and on the basis thereof issues a warrant of arrest.

Arrest w/ Warrant DELIVERY TO LAW ENFORCEMENT AGENCY When a warrant of arrest is issued by a judge, the warrant is delivered to the proper law enforcement agency for execution. The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed wishing 10 days from its receipt. Wishing 10 days from expiration of period, the officer whom it was assigned for execution shall make a report to the judge who issued the warrant. In case REVIEWER ON CRIMINAL PROCEDURE

of his failure to execute warrant, he shall state the reasons for non-execution. (Sec 4, Rule 113)

METHOD OF ARREST Officer shall inform the person to be arrested of: 1. the cause of his arrest 2. the fact that a warrant has been issued for his arrest. The information need not be given when the person arrested: 1. flees 2. forcibly resists 3. giving of the information will imperil the arrest (Sec 7, Rule 113) The officer need not have the warrant in his possession at the time of arrest. However after the arrest the warrant shall be shown to the person arrested as soon as practicable, if the person arrested so requires. (Sec 7, Rule 113) The officer assigned to execute the warrant of arrest has, after the arrest of the accused, the duty to deliver the person arrested to the nearest police station or jail without unnecessary delay. (Sec 3, Rule 113)

RIGHT/AUTHORITY DURING ARREST Officer has authority to orally summon as many person as he deems necessary to assist him in effecting arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render assistance without detriment to himself. (Sec 10, Rule 113) Officer has right to break into any building enclosure where the person to be arrested is or is reasonably believed to be, if: (1) he is refused admittance thereto, (2) after announcing his authority and purpose. (Sec 11, Rule 113) Note: also applies to warrantless arrest under Sec 5, Rule 113

Arrest w/o Warrant GR: warrant is needed for a valid arrest. Exception: Warrantless arrest (Sec 5, Rule 113)

WHO MAY DO? A peace officer or any private person

WHAT MAY BE DONE ? may, without a warrant arrest a person

WHEN MAY IT BE DONE? 1. When in his presence, the person to be arrested: 1. has committed, 2. is actually committing, or 3. is attempting to commit an offense. (in flagrante delicto) 14

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(b) When an offense has just been committed and he has probable cause to believe, based on personal knowledge of the facts and circumstances, that the person to be arrested has committed it; (hot pursuit) (c) When the person to be arrested is a prisoner : 1. who has escaped from a 1. penal establishment or 2. place where he is serving final judgement or is temporarily confined while his case is pending, or 2. has escaped while being transferred from one confinement to another.

OTHER GROUNDS: When a person, previously lawfully arrested escapes or is rescued. Any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (Sec 13, Rule 113) When an accused released on bail attempts to depart from the Philippines without permission of the court where the case is pending, he may be re-arrested without a warrant. (Sec 23, Rule 114)

IN FLAGRANTE DELICTO mere suspicion and reliable information are not justifications. Rule requires that the person arrested has performed an over act that indicates he has committed, is actually committing, or attempting to commit an offense. Requisites: 1. person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime 2. such overt act is done in the presence or within the view of the arresting officer.

HOT PURSUIT Requirements: 1. offense has just been committed 2. person making the arrest has personal knowledge that the person to be arrested has committed it. Knowledge does not refer to actual knowledge of crime, because the officer did not witness its commission. It is knowledge that a crime has been committed, and fair observation is that the person has committed that offense.

Method of Arrest (by Officer) Officer shall inform the person to be arrested of: 1. the cause of his arrest 2. the fact that a warrant has been issued for his arrest. The information need not be given when the person arrested: 1. is engaged in the commission of an offense

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2. is in the process of being pursued immediately after its commission 3. escapes or flees 4. forcibly resists before the officer has opportunity to so inform him 5. when the giving or such information will imperil the arrest (Sec 8, Rule 113) *Right/Authority under Arrest w/ Warrant also apply (He can break in/summon assistance as well)

Method of Arrest (by Private Person) Person shall inform the person to be arrested of: 1. intention to arrest 2. cause of his arrest The information need not be given when the person arrested: 1. is engaged in the commission of an offense 2. is in the process of being pursued immediately after its commission 3. escapes or flees 4. forcibly resists before the officer has opportunity to so inform him 5. when the giving or such information will imperil the arrest (Sec 9, Rule 113) *In case of in flagrante delicto and hot pursuit arrest, person is to be brought to the nearest police station or jail.

Rights of the Person Arrested 1. 2. 3. 4.

Right to be assisted by counsel at all times Right to remain silent Right to be informed of the above rights Right to be visited by immediate members of his family, by his counsel, or by any non-governmental organization, national, or international.

Effect of An Illegal Arrest Legality of the arrest only affect the jurisdiction of the court over the accused. The illegality in itself, cannot be basis for acquittal. Even if the warrantless arrest of an accused is later proven to be invalid, such fact is not sufficient cause to set aside a valid judgement rendered upon a sufficient complain after a trial free from error.

OBJECTION Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction of the person of the accused must be made before he enters his plea, otherwise it is deemed waived. When a person fails to make a timely objection to an illegal arrest, only the right to assail the arrest is waived. He does not waive the right to question the admissibility of the evidence seized by virtue of the illegal arrest.

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Effect of Admission to bail on objections to an Illegal Arrest 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, provided that he raises the objection before he enters his plea.

Persons not subject to Arrest 1. Member of Congress for offenses punishable by not more than 6 years of imprisonment. (Privilege applies only when Congress is in session) 2. Other Chiefs of state, ambassadors, etc. (international law/relations)


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PRELIMINARY INVESTIGATION Preliminary investigation is an inquiry or a proceeding the purpose of which is to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. It is a mere inquiry or a proceeding. It is not a trial, hence no examination of witness by way of direct or cross-examinations. It only involves presentation of evidence so that the prosecutor may determine the existence of probable cause, enabling him to prepare his complaint or information. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence to justify a conviction. It does not require a full and exhaustive presentation of the parties’ evidence. It is enough that in the absence of a clear showing of arbitrariness, credence is given to the finding and determination of probable cause.

Purposes: to determine (1) w/n a crime has been committed, and (2) w/n there is probable cause to believe that the accused is guilty thereof.

ULTIMATE PURPOSES: 1. to secure the innocent against hasty, malicious and oppressive prosecution 2. to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial 3. to protect the State from useless and expensive prosecutions

PROS Parties put up an exchange of affidavits Has time to consult with lawyer Can build a well-written much longer Has more time to locate witnesses to support affidavits

CONS Proceeding is NOT summary in nature Required to sign a waiver of RPC 125, in the presence of counsel counter-affidavit Detained much longer

Nature of the right to a preliminary investigation It is of statutory character and may be invoked only when specifically created by statute. And since it has been established by statute, it becomes a component of due process in criminal justice. • It is not a mere formal or technical right, but it is a substantive right. To be denied such right is to be deprived of the full measure of the right to due process. o However, the right to a preliminary investigation may be waived for failure to invoke the right prior to or at the time of the plea. It also cannot be raised for the first time on appeal. • The prosecutor who conducts the preliminary investigation is NOT a quasi-judicial officer. The DOJ is not a quasi-judicial body. Preliminary investigation is merely inquisitorial. •

REVIEWER ON CRIMINAL PROCEDURE

PRELIMINARY INVESTIGATION Conducted by the prosecutor Executive in nature Conducted to determine probable cause for filing of information

PRELIMINARY EXAMINATION/INQUIRY Conducted by the judge Judicial in nature Conducted to determine probable cause for the issuance of a warrant of arrest

When is PI not required? 1. When the law prescribes a penalty of imprisonment of less than 4 years, 2 months and 1 day. 2. If a person is arrested lawfully without a warrant. o But the accused may still ask for a PI before the complaint is filed, but he must sign a waiver of RPC 125 (penalizes public official for failure to deliver arrested person to proper authorities) in the presence of his counsel. • In this case, person may still apply for bail to effect release from detention notwithstanding waiver of RPC 125. The application for bail must be filed in the province, city, or municipality where the person arrested is held. o In case complaint is already filed, accused may still ask for PI within 5 days from the time he learns of its filing. 3. If person is arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of PI. If inquest prosecutor is absent or unavailable, complaint may be filed directly with the proper court. An Inquest is an investigation conducted by a prosecutor in criminal cases where a person has been lawfully arrested and detained without a warrant of arrest. • It is a summary investigation and which does not follow the procedure set forth in ROC Rule 112, Sec. 3. • It is NOT a PI. It is informal and summary. • Purpose: to determine w/n the person detained should remain under custody and then charged to court. o Check if proper warrantless arrest. ♣ If not proper, recommend release of detainee. In case PI is warranted, then detainee is “released for further investigation”. ♣ If proper, ask if detainee wants PI, which may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned. • If probable cause exists, then the Inquest Prosecutor shall prepare the corresponding information with recommendation that it should be filed in court. • If no probable cause, then recommend release of detainee. • It is conducted by a public prosecutor who is assigned inquest duties as an Inquest Officer, who may discharge his duties only at the PNP police stations/headquarters, unless otherwise directed. • It commences from the time the Inquest Officer receives the complaint and the referral documents from the law enforcement authorities, including: (1) affidavit of arrest, (2) the investigation report, (3) the

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• • o o o o

statements of the complainant and the witnesses, and (4) other supporting evidence gathered. It must be conducted for the offense for which the detainee was arrested. It must be terminated within the period prescribed under (RPC 125 – 12/18/36). Thus, if after the inquest proceedings: There is no probable cause case is dismissed The accused wants a PI and is willing to waive RPC 125 conduct PI The arrest was without warrant, but there is possibly a probable cause accused is release for regular PI There is probable cause and the arrest was valid information is filed

P.I.

2. Attach affidavit of the complainant and of witnesses, and other supporting documents o the affidavits shall be subscribed and sworn to before any prosecutor (not necessarily the investigating prosecutor) or government official authorized to administer oaths, or in their absence or unavailability, before a notary public. o The person who administered the oath does not perform a mere perfunctory or mechanical duty. He must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. 3. # of copies = # of respondents + 2 copies for the official file

Questioning the absence of PI •

Full-blown proceeding, but not equivalent to a fullblown trial

•

Initiated by filing of complaint has clarificatory hearing

•

INQUEST Summary in nature Conducted in lieu of a full-blown PI; only results from warrantless arrest No hearing; one-day summary

Who may conduct PI and determine existence of probable cause? A. When NOT required 1.Prosecutor, upon filing of the complaint 2.MTC Judge, upon filing of the compliant/information ( but not allowed anymore today) B. For all crimes cognizable by the proper court: 1.Provincial or City Prosecutors and their assistants 2.National and Regional State Prosecutors 3.Other officers as may be authorized by law C. For all election offenses punishable under the Omnibus Election Code: 1.COMELEC through its duly authorized legal officers 2.Other prosecuting arms of the government (concurrent power) D. For offenses committed by any public officer or employee: 1.Office of the Ombudsman (primary jurisdiction) 2.DOJ E. For cases investigated by the PCGG: 1.PCGG with the assistance of the Office of the SolGen

2 ways to initiate criminal action when PI not required: (1) by filing the complaint directly with the prosecutor, OR (2) by filing the complaint or information with the MTC. • The prosecutor or the judge, as the case may be, shall act on the complaint within 10 days from its filing. • Procedure of filing complaint: ROC Rule 112, Sec. 3(a) 1. Address of the respondent shall be indicated in the complaint REVIEWER ON CRIMINAL PROCEDURE

It must be done before entering a plea (i.e. before arraignment). Otherwise, it will amount to a waiver. The case should then be remanded to the prosecutor so that PI may be conducted. Remedy is NOT MTQ. The court only holds in abeyance any further proceedings therein until completion of PI. The absence of PI does not affect the court’s jurisdiction over the case nor does it impair the validity of the information or otherwise render it defective. It is not a ground for a MTQ.

Procedure for PI (must be strictly followed): 1. 2. a. b. •

o a. b. c. • o 3.

• •

•

4.

Filing of complaint Within 10 days, the investigating officer may decide: To dismiss the complaint if no probable cause, OR To issue a subpoena to the respondent if probable cause exists In this case, the respondent has the right to examine the documentary and object evidence submitted by complainant and to copy them at his expense (Motion to be Furnished Copies of Evidence; Right to Access Evidence). 3 kinds of evidence: Testimonial evidence (statements of witnesses before the witnesses are presented in court) Documentary evidence (not simply affidavits; actual documents submitted) Object evidence If evidence is voluminous (= a lot), complainant may be required to specify those which he intends to present against the respondent. Rationale: so that respondent knows the charge against him; Right to be free from an oppressive investigation. Within 10 days from receipt of subpoena, respondent must submit his sworn counter-affidavit, the affidavits of his witnesses and the supporting documents for his defense. He is NOT allowed to file a MTD in lieu of a counter-affidavit. Requirement of counter-affidavit: Subscribed AND Sworn to. If no counter-affidavit or respondent cannot be subpoenaed, an ex parte investigation ensues. The investigating officer shall resolve the complaint based on the evidence presented by the complainant. BUT respondent is allowed to reopen the proceedings to allow him to comply, provided the proper motion (+ explanation) is done before the prosecutor has issued a resolution in the case. Complainant may also file a reply-affidavit in response to the counter-affidavit, and the respon18

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5.

•

• o o • 6.

•

7.

• a. b. c. d. e. •

8.

•

•

9.

dent may likewise rebut this through a rejoinderaffidavit. Within 10 days from submission of counter-affidavits and other affidavits or from expiration of the period of their submission, a clarificatory hearing may be set by the investigating officer, if there are facts and issues to be clarified either from a party or a witness. The parties may be present, but they do not have the right to examine or cross-examine each other or their witnesses. If they have questions, they submit them to the investigating officer who shall be the one to ask the question. In short, during the clarificatory hearing, the prosecutor will: On his own, have questions that he will propound on complainant / witnesses / respondents; and Ask questions from the other parties when they submit these beforehand to the Investigating Prosecutor. The hearing shall be terminated within 5 days. Within 10 days from the termination of the investigation, the investigating prosecutor shall determine w/n there is sufficient ground to hold the respondent for trial. Determination of probable cause during PI is an executive function exclusively of the prosecutor. It is only him who is primarily vested with discretion in the discharge of this function. If probable cause exists, the investigating prosecutor shall prepare both the resolution and the information. If no probable cause, he shall recommend the dismissal of the complaint. The information shall contain a certification of PI which certifies: That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses That there is a reasonable ground to believe that a crime has been committed That the accused is probably guilty thereof That the accused was informed of the complaint and of the evidence submitted against him That he was given an opportunity to submit controverting evidence If no certificate, the information is nonetheless valid since it is not an essential part of the information itself. What is NOT allowed is the filing of the information without a PI having been previously conducted. Within 5 days from his resolution, the investigating prosecutor shall forward the record of the case for action to the proper authority (i.e. Provincial/City Prosecutor or Chief State Prosecutor, or Ombudsman), who shall act (reverse or affirm) on the resolution within 10 days from their receipt thereof. Rationale: no 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. If his recommendation of dismissal is disapproved on the ground that a probable cause exists, the Provincial/City prosecutor or Chief State Prosecutor or the Ombudsman may by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so WITHOUT conducting another PI. Within 15 days from receipt of resolution, the aggrieved part may file MR. If MR denied, he may appeal within 15 days from the denial.

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The appeal is made by filing a petition for review with the Office of the Secretary of Justice, who has the ultimate authority to decide which of the conflicting theories of complainant and respondent should be believed. o He may also file a motion for the suspension of the arraignment. But if he has been arraigned after filing of petition for review, SOJ may still review. • Within 15 days from the receipt of the copy of the petition, the adverse party may file a verified comment. If no comment, the appeal is to be resolved on the basis of the petition. 10. The SOJ may reverse, affirm or modify the appealed resolution. He may also dismiss the petition motu propio or upon motion. • The SOJ has the power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the SOJ for that of the latter. 11. The party aggrieved by the decision of the SOJ may file a MR within a non-extendible period of 10 days from receipt of the resolution on appeal. No further or second MR shall be entertained. 12. If SOJ committed GAOD, CA may take cognizance of the case in a petition for certiorari under Rule 65. • The Court has adopted a policy of noninterference in the conduct of PI and leaves to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes evidence as will establish probable cause for the filing of the information. The only exception to this is GAOD. • Courts are not empowered to substitute their own judgment for that of the executive branch. ϖ Appeal to the Office of the President under Rule 43 may also be allowed under the following conditions: a. the offense involved is punishable by reclusion perpetua to death b. new and material issues are raised which were not presented before and ruled upon by the DOJ c. the prescription of the offense is not due to lapse within 6 months from notice of the SOJ resolution. d. The appeal or petition for review is filed within 30 days from notice. 13. CA or OP decision may then be appealed to SC by way of a petition for review on certiorari (Rule 45). •

Actions of the judge upon the filing of the complaint or information: 1. Within 10 days from filing personally, evaluate the resolution of the prosecutor by looking into its supporting evidence. 2. If evidence clearly fails to establish probable cause = immediate dismissal. 3. If there is probable cause = issue a warrant of arrest. If complaint was filed pursuant to a lawful warrantless arrest, issue a commitment order instead. ¬ A warrant of arrest is issued only when there is a necessity for placing the accused in custody “in order not to frustrate the ends of justice.” ¬ When warrant of arrest is NOT necessary: a. Complaint or information is filed pursuant to a lawful warrantless arrest or when a warrant has already been issued by the MTC judge b. Accused is charged for an offense punishable only by fine c. The case is subject to the Rules on Summary Procedure

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4. If there is doubt to the existence of probable cause = order to submit additional evidence within 5 days from notice. 5. The issue must be resolved by the court within 30 days from filing

Motion to dismiss or withdraw the information •

• •

Once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests with the exclusive jurisdiction, competence, and discretion of the trial court. It does not matter if MTD is filed by the prosecutor before or after arraignment. In resolving the MTD, the trial court must make an evaluation on the merits of the case independent to that of the SOJ or public prosecutor. It must be based upon the judge’s own and personal conviction that there was no case against the accused.

Remedies available from PI latest time to invoke is during trial 1. Appeal 2. Motion for Reinvestigation / PI 3. Motion for Reconsideration 4. Injunction and writs of restraint in proper cases 5. Petition for certiorari (Rule 65) 6. Motion to Bail 7. Motion to be furnished copies of evidence


REVIEWER ON CRIMINAL PROCEDURE

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VENUE It is doctrinal that in criminal cases, venue is an essential element of jurisdiction, and that the jurisdiction of a court over a criminal case is determined by the allegations in the complaint or information. • If the particular place where the offense is committed is an essential element of the offense or is necessary for its identification, the description of the place of commission of the offense must be specific. • If the information was filed with the wrong court, the court then lacks jurisdiction and has no authority over the case (quashable). • Purpose of territorial jurisdiction: not to compel the defendant to move to, and appear in, a different court from that of the province where the crime was committed as it would cause him great inconvenience in looking for his witnesses and other evidence in another place

criminal cases. In the former, general rule is that venue is based on residence of plaintiff/defendant or where the real property is located, except when the parties have expressly stipulated otherwise.

Remedies available for Venue: 1. Motion to quash 2. Petition for Certiorari (Rule 65) 3. Motion for reconsideration


General rule: In all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where: 1. The offense was committed; or 2. Any of its essential ingredients occurred. (TIP: look at offense)

Exceptions: 1. Felonies under Article 2, RPC, which are cognizable by the proper court where criminal action was first filed; 2. Those committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip, which may be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during such trip, including place of departure and arrival; 3. Those committed on board a vessel in the course of its voyage, which may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which vessel passed, subject to the generally accepted principles of international law; 4. Piracy, which has no territorial limits and may be instituted anywhere 5. Libel, which may be instituted at the election of the offended party or suing party in the province or city, subject to Article 360, RPC; 6. In cases filed under BP 22, which may be filed in the place where the check was dishonored or issued, or in case of a cross- check, in the place of the depositary or collecting bank; 7. For violations of RA 10175 (Cybercrime Prevention Act of 2012), the RTCs have jurisdiction over any violation of the provisions of the Act, including any violation committed by a Filipino national regardless of the place of commission (Sec. 21); 8. In exceptional circumstances, where, to ensure a fair trial and impartial inquiry, the SC have the power to order a change of venue or place of trial to avoid miscarriage of justice. In Lopez v City Judge, it was held that the filing of a civil action should have no impact as to where the information is properly filed. The rules on venue on civil cases are different from the rules on venue on REVIEWER ON CRIMINAL PROCEDURE

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COMPLAINT AND INFORMATION A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer, charged with the enforcement of the law violated. • It is a statement charging a person with an offense. • It is filed in the name of the People of the Philippines and is filed against all persons who appear to be responsible for the offense involved. • The private offended parties are only limited to being witnesses for the prosecution. o Thus, a private offended party may NOT appeal the dismissal of a criminal case or the acquittal of an accused because the aggrieved party is the People of the Philippines. It can only be appealed by the SolGen. o However, the offended party may appeal the civil aspect of the case and may, thus, file a special civil action for certiorari questioning the decision/action of the court on jurisdictional grounds, prosecuting the case in his own personal capacity. An information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court. • It is NOT required to be “sworn”, unlike a complaint. o Because the prosecutor is already under the oath of his office to uphold the truth; it is his duty to always swear only the truth • It is also filed in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved. • An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent. Hence, in this case, the court does not acquire jurisdiction over the accused and the subject matter of the accusation.

Complaint vs. Information

charges more than one offense. Failure to do such constitutes waiver.

Sufficiency of the complaint or information • It is deemed sufficient if it contains the following: 1. The name/s of the accused o If natural person, state the name and surname, or any appellation or nickname ♣ If name cannot be ascertained, he must be described under a fictitious name, accompanied by a statement that his true name is unknown. ♣ If late his true name becomes known, his true name shall be inserted in the complaint or information and in the records of the case. ♣ A mistake in the name of the accused is NOT

o 2. o

o a.

b. c.

COMPLAINT Must be “sworn” hence, under oath Subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated May be filed either in court or in the prosecutor’s office Usually refers to felonies which cannot be prosecuted de officio

o

♣

INFORMATION No oath required Subscribed by the prosecutor Filed with the court Usually refers to public crimes Duplicity of the offense in an information or complaint means the joinder of 2 or more separate and distinct offenses in one and the same information or complaint. • The general rule is that a complaint or an information must charge only one offense. More than one offense may however, be charged when the law prescribes a single punishment for various offenses. • An objection (MTQ) must be timely interposed (before trial) whenever a complaint or information REVIEWER ON CRIMINAL PROCEDURE

♣

equivalent, and does not necessarily amount to, a mistake in the identity of the accused, especially when sufficient evidence is adduced to show that the accused is pointed as one of the perpetrators of the crime. BUT his identity must be proven. If accused is a juridical person, state its name or any name or designation by which it is known or by which it may be identified. The designation of the offense given by statute As determined by the recital of the ultimate facts ad circumstances in the information, NOT by the caption or preamble of the information or by the specification of the provision of law alleged to have been violated In designating the offense, the following rules must be observed: The name given to the offense by statute must be stated in the complaint or information. If the statute gives no designation to the offense, then reference must be made to the section or subsection punishing it. Include an averment of the acts or omissions constituting the offense Specify the qualifying and aggravating circumstances of the offense (if not specified, cannot be considered in the imposition of the penalty because accused cannot be held liable for an offense graver than that for which he was indicted.) Even if the designation of the crime was defective, what is controlling is the allegation of facts in the information that comprises a crime and adequately describes the nature and cause of the accusation against the accused. The failure to designate the offense by the statute or to mention the specific provision penalizing the act or an erroneous specification of the law violated does NOT vitiate the information if the acts alleged clearly recite the facts constituting the crime charged. The failure to specify the correct crime committed

will NOT bar conviction of the accused. 3. The acts or omissions complained of as constituting the offense o No matter how conclusive and convincing the evidence of guilt may be during trial, an accused cannot be convicted of any offense unless it is properly charged in the information on which he is tried or is necessarily included therein. o The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. 22

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o It is not necessary to employ the words used in the statute alleged to have been violated; it is sufficient for the complaint or information to use ordinary and concise language sufficient to enable a person of common understanding to know the offense being charged, the acts and omissions complained of, and the qualifying and aggravating circumstances alleged. o The specific acts need not be described in detail; it is enough that the offense be described with sufficient particularity such that a person of ordinary intelligence immediately knows what he is being charged with. 4. The name of the offended party o The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. o In cases of offenses against property: ♣ If the name of the offended party is unknown, the

♣

5. o

6. o

•

•

•

o •

property must be described with such particularity as to properly identify the offense charged. If the name of the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. The approximate date of the commission of the offense Exact date is not necessary, except when the date is a material element of the offense. Generally, the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. The place where the offense was committed It is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification. Test: whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. Purpose: to enable the accused to suitably prepare for his defense, since he is presumed to have no independent knowledge of the facts that constitute the offense The sufficiency of an information may be assailed, but such right is NOT absolute. An accused is deemed to have waived this right if he fails to object upon his arraignment or during trial. However, evidence presented during trial can still cure the defect in the information. Objections relating to the form of the complaint or information cannot be made for the first time on appeal. The accused-appellant should file before arraignment either a Motion for bill of particulars or MTQ, otherwise he is deemed to have waived his objections to any formal defect in the information.

REVIEWER ON CRIMINAL PROCEDURE

Remedies available for Complaint and Information: 1. 2. 3. 4. 5.

Motion for bill of particulars Motion to quash the information Appeal Motion to dismiss or withdraw the information Motion to amend or substitute the complaint or information

AMENDMENT AND SUBSTITUTION OF THE COMPLAINT OR INFORMATION AMENDMENT VS. SUBSTITUTION Both may be made before or after arraignment

AMENDMENT Formal or substantial changes Can be effected without leave of court Only as to form, there is no need for another PI and retaking of plea The amended information refers to the same offense charged in the original information or to an offense which is included in the original charge Can invoke double jeopardy

SUBSTITUTION Substantial changes Must be with leave of court Another PI is entailed and accused has to plead anew Involves a different offense which does not include those provided in the original charge Cannot invoke double jeopardy

AMENDMENT of the Complaint or Information It may be amended through 2 ways: (1) Formal motion of the prosecution [done before or after plea], and (2) presentation of evidence [during trial] • Rationale: due process • If the amendment is made before the accused enters his plea, the complaint or information may be amended in form or in substance, without the need for leave of court, EXCEPT when: 1. The amendment downgrades the nature of the offense charged, OR 2. The amendment excludes any accused from the complaint or information. -- These exceptions require leave of court and a motion by the prosecutor, with notice to the offended party. -- The Court is then mandated by the rule to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order. • If the amendment is made after the plea of the accused and during the trial, any formal amendment may only be made under 2 conditions, namely: 1. Leave of court must be secured; AND 2. The amendment does not cause prejudice to the rights of the accused. -- A substantial amendment is NOT allowed at this stage, except if beneficial to the accused. -- Test as to WON a defendant is prejudiced by the amendment: •

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a. whether a defense under the information as it originally stood would be available after the amendment is made, and b. whether any evidence the defendant might have would be equally applicable to the information in the one form as in the other.

2 Kinds of Amendment: (test: Does it alter the nature of the defense?) 1. Formal Amendment merely states with additional precision something which is already contained in the original information, and which, therefore adds nothing essential for conviction for the crime charged. o Examples: a. New allegations which relate only to the range of penalty that the court might impose in the event of conviction; 
 b. One which does not charge another offense distinct from that already charged; 
 c. Additional allegation which do not alter the prosecution’s theory of the case so as to surprise the accused or affect the form of defense he has or will assume; 
 d. One which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. 2. Substantial Amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form.

SUBSTITUTION of the Complaint or Information A complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense. o In such a case, the court shall dismiss the original complaint or information once the new one charging the proper offense is filed, PROVIDED the accused will not be placed in double jeopardy. • Subject to the Section 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information. 
 •

REVIEWER ON CRIMINAL PROCEDURE

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THE CIVIL ASPECT The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order. In the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused.

Implied institution of the civil action with the criminal action •

a. b. o

o

c. •

•

• •

When a criminal action is instituted, the civil action for the recovery of the civil liability arising from the offense charged shall be deemed instituted with the criminal action, unless the offended party: Waives the civil action, Reserves the right to institute it separately, or The reservation shall be made before the prosecution starts presenting its evidence. It is to be made under circumstances that would afford the offended party a reasonable opportunity to make such reservation. No reservation of the civil action in BP 22, as the criminal action shall be deemed to include the corresponding civil action. However, it does not prohibit the waiver of the civil action or the institution of the civil action prior to the criminal action. Institutes the civil action prior to the criminal action. Generally, a criminal case has 2 aspects, the civil and the criminal. The reason for the implied institution of the criminal action is the principle that every person criminally liable for a felony is also civilly liable (RPC 100), except when no actual damage results from an offense. The law allows the merger of the criminal and the civil action to avoid multiplicity of suits, because a separate civil action would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case. However, this rule does not apply before the filing of the criminal action or information. In case of judgment of conviction, the trial court should also state the civil liability or damages caused by the wrongful act or omission to be recovered from the accused by the offended party, where it is applicable.

The real parties in the civil aspect of a decision are the offended party and the accused. Hence, either the offended party or the accused may appeal the civil aspect of the judgment despite the acquittal of the accused.

When a civil action may proceed independently •

•

Under the Rules, only civil liability arising from the crime charged is deemed instituted. Hence, the civil actions under the Civil Code, specifically Articles 32, 33, 34, and 2176, remain separate, distinct, and independent of any criminal prosecution although based on the same act. This civil action is also distinct from the civil action which is the consequence of the alleged criminal act. By the clear terms of Article 2177 of the Civil Code, the responsibility arising from a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code.

REVIEWER ON CRIMINAL PROCEDURE

•

o 1. 2. 3. •

The civil action may also proceed independently of the criminal action when reservation to institute the civil action separately is made. The reservation shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. Instances where reservation to file the civil action separately shall NOT be allowed: BP 22 cases Cases cognizable by the Sandiganbayan Tax cases No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action.

When separate civil action is suspended 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. o Preference is given to the resolution of the criminal action. ♣ This will necessarily result in a delay in the disposition of the civil action which may have been already filed or of the action the right to the filing of which has been reserved. ♣ Remedy to avoid such delay: The offended party •

may move for the consolidation of the civil action with the criminal action in the court trying the criminal action. ♣ When there is no such consolidation, and the civil action is suspended or the civil action cannot be instituted separately until after final judgment is rendered in the criminal action, the prescriptive period of the civil action shall be tolled during the pendency of the criminal action. o Only for civil action arising from the offense charged - If the civil action was commenced before the institution of the criminal action, the civil action shall be suspended in whatever stage it may be found before judgment on the merits, once the criminal action is filed. The suspension shall last until final judgment is rendered in the criminal action. • The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime.

Rule on filing fees Filing fees apply when damages are being claimed by the offended party. • There are no filing fees required for actual damages claimed, unless required by the Rules. (e.g. BP22 and estafa cases) • Filing fees shall be paid by the offended party upon the filing of the criminal action in court where he seeks for the enforcement of the civil liability of the accused by way of moral, nominal, temperate or exemplary damages but other than actual damages, and where the amount of such damages is specified in the complaint or information. o If not specified but, any of the damages is subsequently awarded, the filing fees assessed in accordance with the Rules, shall constitute a first lien on the judgment awarding such damages. •

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Effect of death of the accused on the civil action Upon the death of the accused or convict, criminal liability is extinguished. • As regards civil liability: o When death occurs before the arraignment, 
 the case is dismissed without prejudice to filing of civil action against estate of the deceased o When death occurs after arraignment and during pendency of criminal action, it 
 extinguishes civil liability arising from the delict o When death occurs during pendency of appeal extinguishes criminal liability and the civil liability based thereon • Independent civil actions instituted under Articles 32, 33, 34 and 2176, Civil Code, or those 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 his estate. • As regards the parties in the civil action, the heirs of the accused may be substituted without requiring the appointment of an executor/administrator. The court may appoint guardian ad litem for the minors. • The court shall order the legal representatives to appear and be substituted within 30 days from notice.

•

•

Effect of acquittal or the extinction of the penal action on the civil action or civil liability The extinction of the penal action does not carry with it the extinction of the civil action where: 1. The acquittal is based on reasonable doubt as only preponderance of evidence is required 2. The court declares that the liability of the accused is only civil 3. The civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted • 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 the civil liability may arise did not exist. •

Effect of payment of the civil liability • •

Payment of civil liability does not extinguish criminal liability. While there may be a compromise upon the civil liability arising from the offense, such compromise shall not extinguish the public action for the imposition of the legal penalty.

Effect of judgment in the civil case absolving the defendant •

A final judgment rendered in a civil action absolving a defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action.

Subsidiary liability of employer •

The provisions of the Revised Penal Code on subsidiary liability are deemed written into the judgments in cases to which they apply. Thus, in the dispositive portion of its decision, the trial court need not expressly pronounce the subsidiary liability of the employer.

REVIEWER ON CRIMINAL PROCEDURE

1. 2. 3. 4.

Nonetheless, before the employers' subsidiary liability is enforced, adequate evidence must exist establishing that: they are indeed the employers of the convicted employees they are engaged in some kind of industry the crime was committed by the employees in the discharge of their duties; and the execution against the latter has not been satisfied due to insolvency.

A prejudicial question is an issue involved in a civil case which is similar or intimately related to the issue raised in the criminal action, the resolution of which determines WON the criminal action may proceed. • It is that which arises in a case, the resolution of which is a logical antecedent of the issue involved in that case. • To constitute a prejudicial question, the rule also requires, aside from the related issues, that the civil action be instituted previously or ahead of the criminal action. • Rationale: to avoid 2 conflicting decisions in the civil case and in the criminal case.

REQUISITES FOR A PREJUDICIAL QUESTION: 1. The civil case involves facts intimately related to those upon which the criminal prosecution would be based 2. In the resolution of the issue/s raised in the civil action, the guilt or innocence of the accused would necessarily be determined 3. Jurisdiction to try said question must be lodged in another tribunal 4. The civil action is instituted prior to the institution of the criminal action It may NOT be invoked in any of the following situations: 1. Both cases are criminal 2. Both cases are civil 3. Both cases are administrative 4. One case is administrative and the other is civil 5. One case is administrative and the other is criminal 6. If one case is civil and the other is criminal BUT the criminal case was instituted prior to the civil case • Effect: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence, except if there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case. A petition for the suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed. • The rule authorizing the suspension of the criminal case does not prescribe the dismissal of the criminal action. It only authorizes its suspension. • The suspension shall be made upon the filing of a petition for suspension; hence, motu proprio suspension is NOT allowed. • Since a petition to suspend can be filed only in the criminal action, the determination of the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before the SC in an appeal from the civil action

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• •

•

Where there is a prejudicial question, the action to be suspended is the criminal and not the previously instituted civil action. When to file petition for suspension: It does not require that the criminal case be already filed in court; it is sufficient that the case be in the stage of PI as long as there has already been a previously instituted civil case. Where to file petition for suspension: may be filed in the office of the prosecutor or the court conducting the PI; If criminal action has been filed in court for trial, petition shall be filed in the same criminal action at any time before the prosecution rests.

Remedies available: 1. 2. 3. 4.

Motion to consolidate civil and criminal action Appeal Petition for certiorari (Rule 65) Petition for suspension of criminal case

REVIEWER ON CRIMINAL PROCEDURE

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BAIL Rule 114, Rules of Court. Define bail. The security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by Rule 114. (Rule 114, Sec. 1).

What is the purpose of bail? To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial.

What are the forms of bail? Corporate surety. Any domestic or foreign corporation licensed as a surety in accordance with law and currently authorized to act as such may provide bail by a bond subscribed jointly by the accused and an officer duly authorized by its board of directors. Property bond. An undertaking constituted as a lien on the real property given as security for the amount of the bail. Cash deposit. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue, or provincial, city or municipal treasurer. Recognizance. An obligation of record entered into before some court or magistrate duly authorized to take it, with the condition to some particular act.

Does the suspension of the writ of habeas corpus carry with it the suspension of the right to bail? No. Art. III, Sec. 13 of the 1987 Constitution mandates that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus.

What does bail guarantee? (a) Upon its approval, it shall be effective and remain in force at all stages of the case until its final determination, unless the proper court directs others; (b) The accused shall appear appear before the proper court whenever so required by the Court by the Rules; (c) The failure of the accused to appear at the trial without justification despite due notice shall be deemed an express waiver of his right to be present thereat. In such case, the trial may proceed in absentia. (d) The bondsman shall surrender the accused to the court for execution of the final judgment.

What are the contents of the original papers of the bail? (a) The full name and address of the accused. (b) The amount of the undertaking and the conditions herein required. (c) Photographs (passport size) taken within the last six months showing the face, left and right profiles of the accused.

REVIEWER ON CRIMINAL PROCEDURE

May the court vary the conditions of a bail, as prescribed by law, so as to impose additional ones upon the defendant and his bondsmen? No. Such might result in the imposition of excessive bail, which is prohibited by law. However, where the likelihood of the accused jumping bail or committing other harm to the citizenry is feared, the court may impose other conditions of granting bail: (1) It could increase the amount of the bail bond to an appropriate level. (2) To require the accused to report in person periodically to the court and make an accounting of his movements. (3) The accused might be warned that trial may proceed in absentia if his absence is unjustified.

May the court prohibit a person admitted to bail from leaving the Philippines? Yes. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature an function of a bail bond. The condition imposed upon the accused to make himself available at all times whenever the court the requires his presence operates was a valid restriction on his right to travel.

May a person under detention by legal process be released to transferred? No, except upon order of the court, or when he is admitted to bail.

What is the constitutional provision on the right to bail? All persons, except those charged with offenses punishable by reclusion perpetua when the 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 habeas corpus is suspended. Excessive bail shall not be required. (Art. III, Sec. 13, 1987 Constitution).

When does the right of bail accrue? When a person is arrested or is deprived of liberty.

When is bail a matter of right? (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.

Where the accused in entitled as a matter of right to bail, may the court refuse to grant him bail, on the ground that there exist a high degree of probability that the accused will abscond or escape? No. The right to bail may not be denied even where the accused has previously escaped detention, or by reason of his prior absconding. The only power of the court is to increase the bond to such mount as would willfully tend to secure the presence of the defendant when it is wanted, such amount to be subject to the constitutional provision that excessive bail shall not be required.

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Supposing an accused who is entitled to bail as a matter of right has previously jumped bail, may the court refuse to release him on bail the second time? No. Where bail is a matter of right, the accused is not excepted from such right and bail must be allowed irrespective of whether or not he has previously jumped bail.

What is the appropriate the remedy when an accused who is entitled to bail as matter of right, is denied that right? The appropriate remed is mandamus to compel the trial judge to admit the accused to bail. The writ of habeas corpus may also be used to procure admission to bail but is cannot be used where the accused is not entitled to bail as a matter of right.

Will habeas corpus lie when the accused is out on bail? No. A person out on bail is not so restrained of his liberty as to be entitled to a writ of habeas corpus, which is only justified by actual or physical restraint.

When is bail a matter discretion? Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. It shall be denied if the evidence of guilt is strong. The court’s discretion is limited to determine whether or not evidence of guilt is strong. Once it is determined that evidence of guilt is not strong, bail becomes a matter of right.

May an application for bail be filed and acted upon by the trial court despite the filing of a notice of appeal? Yes, provided the court has not transmitted the original record to the appellate court.

Where is the application for bail filed 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.

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

What are the circumstances where the accused shall be denied bail, or his bail shall be cancelled, if the penalty imposed by the trial court is imprisonment exceeding six years? (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 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.

REVIEWER ON CRIMINAL PROCEDURE

When may the appellate court review the resolution of the Regional Trial Court as to the application for bail? The appellate court may, motu proprio or on motion of any party after notice to the adverse party in either case.

Is the judicial discretion to grant of deny bail in capital offenses absolute? No. Discretion of inferior courts are limited by the applicable provisions of the Constitution, statutes and rules promulgated by the Supreme Court.

Is an accused charged with a capital offense or one punishable by reclusion perpetua entitled to bail as a matter of right if he appeals his conviction to the Supreme Court? No. The conviction in the lower courts clearly imports that the evidence of guilt of the offense charged is strong.

Does the prosecution have the right to present evidence fro the denial of bail? When bail is a matter of right, the prosecution does not have the right to present evidence for the denial of bail. When bail is a matter of discretion, the prosecution must be given opportunity to present all the evidence that it may desire to introduce.

When the evidence of guilt of the accused, in cases of capital offense is strong, is the fiscal always bound to oppose his application for vail? No. The fiscal may or may not oppose the application. Since the burden of showing that the evidence of guilt is strong is on the prosecution, the fiscal is free to satisfy or not to satisfy that burden.

May the right to bail be waived? Yes. The right to bail is another constitutional right that may be waived. It is a right which is personal to the accused.

Is bail a matter of right in deportation proceedings? No. Deportation proceedings do not partake the nature of a criminal action.

Is the right to bail available in the military? No. The unique structure of the military and national security measure justify the denial from the military the right to bail.

Is an order granting bail res judicata as to the state and the accused? Yes. After the right has been determined by an order in favor of the accused, the question is closed and cannot be reopened, in order to permit the prosecution to introduce new evidence.

Define a capital offense. A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

How is capital nature of an offense determined? By the penalty prescribed by law.

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What is the rule on bail in cases of capital offenses punishable by reclusion perpetua or life imprisonment, not bailable? No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

Describe the procedure to secure the release on bail of a person accused of an offense punishable by reclusion perpetua or death. (1) The accused must file an application for bail. (2) Notice of the hearing go the application must be given to the fiscal or require him to submit his recommendation. (3) There should be a hearing of the application for the purpose of enabling the court to exercise its sound discretion as to whether or not under the Constitution and the laws the accused is entitled to bail. The hearing should be summary or otherwise in the discretion of the court. (4) The fiscal has the burden of proof to show that the accused is not entitled to bail because the proof of guilt is strong. (5) The accused has the right to cross-examine and to introduce his own evidence to establish his right to bail. (6) The judges must decide whether the evidence of guilt is strong or not. This is a ministerial duty. If it is not strong, the application must be granted. (7) The accused must be discharged upon its acceptance of the bail.

When bail is a matter of discretion, who has the burden of proof in showing that the evidence of guilt is strong? The prosecution has the burden of showing that evidence of guilt is strong at the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment.

Is the evidence presented during the bail hearing reproduced at the trial? Yes. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.

When is evidence of guilt considered strong? If it is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he will probably be punished capitally is the law be administered.

What are the contents of the court order granting or refusing bail? It must contain a summary of the evidence of the prosecution followed by its conclusion whether or not the evidence of the guilt is strong.

May the application for bail waive his right to be heard? Yes. He waives it where he agrees to a joint hearing and thereafter asks for, or consent to, repeated postponements.

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What are the factors to consider in fixing the amount of bail? (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 accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail.

Is excessive bail allowed? No. Excessive bail shall not be required. The Constitution so commands. To allow such would render the right to bail meaningless.

Who may provide bail by surety bond? Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors.

May the court requires the accused to post a cash bond instead of a surety bond? No. The trial court may not reject otherwise acceptable sureties and insist that the accused post a cash bond. There should be not revenue on the part of the government.

What is a property bond and how is it posted? A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Register of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefor, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

What are the qualifications of sureties in property bond? (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surety, his real estate must be worth at least the amount of the undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

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What should the affidavit of justification of sureties contain? Every surety shall justify by affidavit taken before the judge that he possesses the qualifications of a surety. He must describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper.

Who may deposit the cash bond? The accused or any person acting in his behalf.

Where may the deposit of the cash bond be made? With the nearest collector or internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody.

What is liability of the cash deposit? The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.

In what cases is bail not required? (a) A person charged with violation of a municipal or city ordinance, a light felony with a prescribed penalty of not more than 6 months and/or fine of P2,000.00, subject to exceptions. (See RA 6036) (b) Offenders who have undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged two which he may be sentenced and his case is not yet terminated. (See Art. 29 RPC)

When shall a person in custody by released without putting bail? (1) When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribe for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. (2) In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

When shall a person in custody be released on a reduced bail or on his recognizance? 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.

Where is the venue of an application for bail? First, bail in the amount fixed may be filed — (a) with the court where the case is pending; or (b) in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial

REVIEWER ON CRIMINAL PROCEDURE

judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality; or (c) with any regional trial court of the place where he is arrested, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. Second, 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. Third, is a person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

Is notice of an application for bail to the fiscal necessary? Yes. The court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

What is reasonable notice? It means at least three days before the hearing.

When may the accused be discharged by the court. Upon approval of the bail by the judge with whom it was issued. If bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending. The latter court may, for good reason, require a different one to be filed.

May the court increase the amount of bail posted by the accused? Yes. 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.

How may a reduction of bail be obtained? Either by a simple application to the court, or by habeas corpus, where the amount thereof is clearly disproportionate to the offense or is unreasonable or excessive.

May the accused initially release without bail be subsequently required to give bail? Yes. 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 and 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.

State the procedure for the forfeiture of the bail bond? (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. (2) If the accused fails to appear in person as required, his bail shall be declared forfeited. (3) The bondsmen given thirty (30) days within which to: (a) produce the body of their principal or give the reason for his non-production; and (b) explain why

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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.

What is the duty of the bondsman over the accused? To produce the accused bodily in court when so required. It is well settled in jurisprudence that a surety is the jailer of the accused and is responsible for the latter’s custody.

Wha the is the proper remedy from a judgment of forfeiture? Appeal, or in some cases certiorari especially when the trial court had already issued a writ of execution.

When may the bail bond be cancelled? Pending trial upon application of the bondsmen, with due notice to the prosecutor and upon surrender of the accused or proof of his death.

Is the notice to the fiscal for the cancellation of the bail bond necessary. Yes. When the sureties wish to have their bond cancelled and to be discharged from liability they should file an application for such discharge with due notice to the fiscal.

For the purpose of discharge of a bondsman, is it sufficient that the produces the accused before the court? No. For a surety to be discharged it is necessary that he petitions the court for relief from liability and that the court grants the petition and cancels the bond.

What is the effect of the cancellation of the bond and the consequent arrest of the accused? The surety was discharged from the moment of cancellation and the bail bond ceased to be in force and is beyond recall.

May the bondsman apply for cancellation of the bail bond of an accused who escaped after arrest? No. It is the obligation of the bondsman to keep the accused at all times under his surveillance.

What is the effect of an acquittal of the accused or dismissal of the case on the bond? The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction.

Is the arrest of the accused on another charge while he is out on bail ipso facto discharge the bondsman of his undertaking under the bail bond? No. The bondsman is still bound to produce the accused by the undertaking. The bondsman must inform the court of the event so that it may take appropriate action and the decree the discharge of the surety,

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What is the remedy of the surety if the court denies the petition for the cancellation of the bond? An appeal against the order denying the petition because of its final character.

What are the methods by which sureties may relieve themselves from responsibilities? The bondsmen may arrest the principal and deliver him to the proper authorities or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. The sureties do not need to secure a warrant of arrest.

When may an accused released on bail be rearrested without bail? An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

May bail be allowed after final judgment? No. No bail shall be allowed after the judgment of conviction has become final. Finality of the judgment terminates the criminal proceeding. The judgment is final if the accused does not appeal the conviction or sentence, or in case of appeal, the judgment of conviction has been finally affirmed.

When may the accused be allowed temporary liberty after final judgment? Although the judgment of conviction is final, if the accused has applies for probation before finality, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community.

May bail be allowed after the accused has commenced serving sentence? No. In no case shall bail be allowed after the accused has commenced to serve sentence.

What is the purpose of the court supervision over detainees? To verify and eliminate unnecessary detention.

What is the role of the executive judges in the exercise of such supervisory authority? (a) To conduct monthly personal inspections of provincial, city, and municipal jails and their prisoners within their respective jurisdictions. (b) To ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. (c) To order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. (d) To submit a monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. 32

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What is the role of the municipal trial judges or municipal circuit trial judges on the matter? (a) To conduct monthly personal inspections of the municipal jails in their respective municipalities, (b) To submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.

Does an application for or admission to bail bars the accused from challenging the validity of his arrest or the legality of the warrant issued? No. 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. 


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ARRAIGNMENT AND PLEA What is arraignment? Arraignment consists of reading the information to the accused and asking him, in open court whether or not he is guilty of what is alleged against him. It is that stage wherein an accused, for the first time, is granted the opportunity to know the precise charge that confronts him.

What is the purpose of arraignment? To obtain from the defendant his answer — his plea to the information, and to fix his identity. It is imperative that he is made fully aware of possible loss of liberty or life.

Where must the accused be arraigned? Before the court where the complaint or information was filed or assigned for trial.

How is the arraignment made? The arraignment shall be made in open court by the judge or clerk by (a) furnishing the accused with a copy of the complaint or information, (b) reading the same in the language or dialect known to him, and (d) 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.

What is the purpose of the requirement of furnishing the accused with a list of witnesses for the prosecution upon arraignment? To advice the accused of what witnessed will be used against him during the trial and to safeguard him against surprise.

Is the accused entitled to know in advance the names of all prosecution witnesses? No. The success of the prosecution may be engendered is such right is granted. The time for the accused to know the witnesses is when they take the witness stand.

May the prosecution call at trial witnesses other than those named in the complaint or information? Yes. The prosecution may all at the trial witnesses other than those named in the complaint or information.

How should defendants jointly indicted be arraigned? They may be arraigned separately or together, although their trials may be separate.

Is the presence of the accused at the arraignment indispensable? Yes. The accused must be present at the arraignment and must personally enter his plea.

Is arraignment mandatory? Yes. Failure to arraign the defendant is fatal to the criminal action.

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Is the arraignment of the accused under the amended information mandatory? Yes. The accused has the constitutional right to be informed of the charged against him. However, if the amendment is only as to form, there is no need for the retaking of the plea of the accused.

May the accused be convicted of all the offenses alleged in the information without being arraigned for one offense charged therein? No. The accused may be sentenced for as many offenses as are charged in the information only if the accused is formally arraigned and required to plead on all the offenses charged.

Must the fact of arraignment and plea appear in the record of the case? Yes. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

When are irregularities in the arraignment deemed waived? By failing to object thereto in the trial court. Also, the moment an accused enters his plea, he is deemed to have abandoned his right to question an irregularity that surrounds it.

What is a plea? A plea is the matter which the accused, on his arraignment, alleges in answer to the charge against him. In every criminal case, there must be a plea by the defendant or the equivalent of one.

What is the purpose of a plea? To make an issue. Without an issue, there is nothing to be tried and nothing on which the judgment and sentence of a court can be properly predicated. The plea of not guilty raises an issue of fact and not of law. The effect is to put in issue the entire question of guilt.

How should the plea to a complaint or information be made? It must be made personally in open court and the plea shall be made of record.

What is the effect on the judgment of conviction when there is an absence of an opportunity to plead? It is fatal to conviction. The judgment will be reversed and the case remanded for a new trial.

How should the plea of the accused who refused to plead or makes a conditional plea be entered? When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

How should the plea of the accused who pleads guilty but presents exculpatory evidence be entered? 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.

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Describe the proceedings when the accused is under preventive suspension. (1) Within 3 days from the filing of the information or complaint, the case shall be raffled and its records transmitted to the judge to whom the case was raffled. (2) The accused shall be arraigned within 10 days from the date of the raffle. (3) The pre-trial conference of his case shall be held within 10 days after arraignment.

Is the private offended party required to appear at the arraignment? Yes. 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.

What is the effect of the failure of the offended party to appear at the arraignment. 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.

What is the period for arraignment? 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.

What is the effect of a plea of confession or avoidance? It is equivalent to a plea of not guilty — it is where a defendant, upon being arraigned, admits the allegations of the informations and avers that the criminal action or liability has been extinguished and submits the case for decision upon the question of law raised.

What is the nature of a plea of guilty? It is a judicial confession of guilt — an admission of all the material facts alleged in the information, including the aggravating circumstances.

Does the plea of guilty cure the jurisdiction defects of an an information. No. A plea of guilty waived only the defects which may be taken advantage of by motion to quash or by plea in abatement.

What is the effect of a plea of guilty induced by fear, misapprehension, persuasion, promises inadvertence or ignorance on a judgment? It will not bind the defendant. A plea of guilty must be entirely voluntary.

When may a plea of guilty be the basis for conviction? When the defendant admits absolutely and unconditionally, hid guilt and responsibility for the offense imputed to him.

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May the accused be allowed to enter a plea of guilty to a lesser offense? Yes. 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.

Is there a need to amend the complaint or information when the accused pleads guilty to a lesser offense? No amendment of the complaint or information is necessary.

What is the effect of the conviction for the lesser offense to which the accused pleaded guilty? The conviction shall be equivalent to a conviction of the offense charged for purposes of double jeopardy. But, if the plea of guilty to a lesser offense is made without the consent of the fiscal and the offended party, the conviction shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information.

What is the duty of the court when the accused pleads guilty to a capital offense? The court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.

Is it mandatory for the court to receive evidence when the accused pleads guilty to a non-capital offense? No, it is discretionary. When the accused pleads guilty to a non- capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

When may an improvidence plea of guilty be withdrawn? 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.

What are the duties of the court when the accused appears at the arraignment without counsel? Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed a counsel of his choice, the court must assign a counsel de oficio to defend him.

Who may be appointed as counsel de oficio? The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused.

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May the court admit of assign a person who is not a member of the Bar to aid the accused in his defense? Yes. In localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.

What is the time allotted to the counsel to prepare for arraignment? Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

When may an accused move for a bill of particulars? Before arraignment, the accused may move for a bill of particulars to enable him properly to plead and to prepare for trial.

What shall a motion for a bill of particulars contain? The motion shall specify the alleged defects of the complaint or information and the details desired.

When may the accused ask the court for the production or inspection of material evidence in the possession of the prosecution? Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of: (a) any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers; and (b) any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies.

When may arraignment be suspended? (a) When the accused appears to be suffering from an unsound mental condition which effective 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) When there exists a prejudicial question; and (c) When 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 60 days counted from the filing of the petition with the reviewing office.

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QUASHAL What is the function of the motion to quash? It is the proper way of objecting to a complaint or information for insufficiency on its face in the point of law, or for defects which are apparent in the face of the information, or for defects which although not apparent on the face of the information but constitutes defense of the accused.

When may a motion to quash the complaint or information be filed? At anytime before the accused enters his plea.

Are there instances where a motion to quash may be filed after plea? Yes. A motion to quash may be filed after plea on the following grounds: (a) Failure to charge an offense; (b) lack of jurisdiction over the offense charged; (c) extinction of the offense or penalty; (d) jeopardy. (Sec. 9, Rule 117.)

What are the grounds for a motion to quash a complaint or information? (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.

When may the court order the amendment of a motion to quash? If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment.

What is the effect if the motion to quash is based on the if the motion to quash is based on the ground that the facts charged do not constitute an offense? The prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

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What course of action may the court take if it sustains a motion to quash? If the motion to quash is sustained, the court may order: (a) The dismissal of the information. (b) The filing of a new information. If the accused is 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 for another charge.

In resolving a motion to quash, is the guilt or innocence of the accused involved? No. A motion to quash presents a preliminary question of law. 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 following grounds: (a) That the criminal action or liability has been extinguished; or (b) 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.

What is meant by jeopardy? Jeopardy means exposure to danger — when a person is prosecuted before a court, he is exposed to danger in that he is peril of life or liberty.

Classify the rule on double jeopardy. (1) A prohibition on double jeopardy for the same offense (the one contemplated by the Rules of Court). (2) A prohibition on double jeopardy for the same act which is a violation of both a law and an ordinance.

What are the requisites for the invocation of the protection of double jeopardy? (1) The accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent. (2) The court had competent jurisdiction. (3) The complaint or information or other formal charge was valid and sufficient in form and substance to sustain a conviction (4) The accused had pleaded to the charge. (5) There is a subsequent 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.

When does jeopardy begin? Only when the defendant has been duly arraigned before a court of competent jurisdiction and has pleaded not guilty.

When may it be said that the two offenses are identical? Where there is identity between the two offenses — when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other.

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What are the the exceptions to the identity rule? (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.

When may a case be provisionally dismissed? Only when the dismissal is with the express consent of the accused and with notice to the offended party.

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

What is the effect of the failure of the accused to file a motion to quash or allege any ground in the motion? The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information shall be deemed a waiver of any objections, except when the motion is based on 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 criminal action or liability has been extinguished; (d) 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.


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PRELIMINARY CONFERENCE WHEN? Before conducting the trial

WHAT IS IT? A stipulation of facts that may be entered into by the parties. OR the accused may be allowed to enter a plea of guilty to a lesser offense OR such other matters to clarify issues and to ensure speedy disposition of the case. - No admission by the accused shall be used against him UNLESS reduced to writing and signed by the accused and his counsel. - A refusal or failure to stipulate shall not prejudice the accused.

Difference of Pre-Trial and Preliminary Conference PRE-TRIAL After arraignment and within 30 days from the date the Court acquires jurisdiction over the person

PRELIMINARY CONFERENCE The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable by the Court. 


TRIAL WHEN? After a plea of not guilty is entered - the accused shall have at least 15 days to prepare for trial. - The trial shall commence 30 days from the receipt of the pre-trial order.

EXCEPTIONS [SEC 3] Exclusions from the computation of the time within which trial must commence (the 180 days) (A) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the ff: 1. Examination of the physical and mental condition of the accused 2. With respect to other criminal charges against the accused 3. Extraordinary remedies against interlocutory orders 4. pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; 5. orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; 6. from a finding of the existence of a prejudicial question; and 7. attributable to any period, not exceed thirty (30) days, during which any proceeding which any proceeding concerning the accused is actually under advisement. (B) Any period of delay resulting from the absence or unavailability of an essential witness. - absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. - unavailable whenever his where- abouts are known but his presence for trial cannot be obtained by due diligence. (C) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (D) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (E) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not ac- quired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted. (F) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial.

Computation for the length of trial period -

REVIEWER ON CRIMINAL PROCEDURE

Generally: the entire trial period shall not exceed 180 days from the first day of trial, except as otherwise authorized by the Supreme Court. Trial once commenced shall continue from day to day as far as practicable until terminated. 39

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- -

It may be postponed for a reasonable time, for a good cause. It shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial.

Continuance WHEN GRANTED [WHAT FACTORS ARE NECESSARY FOR GRANTING CONTINUANCE?] a) b) o o o

When failure to do so would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and the case as a whole is so novel, unusual and complec due to the number of accused or the nature of the prosecution or that it is unreasonable to expect adequate preparation within the periods of time established therein

WHEN NOT GRANTED 1. congestion of the court’s calendar 2. lack of diligent preparation of prosecutor or 3. failure to obtain available witnesses on the part of the prosecutor

New Trial - -

Time limit following an order for new trial [Sec 5] the trial shall commence within 30 days from notice of the order of new trial EXCEPT: if it is impractical due to unavailability of witnesses and other factos, the court may extend but not to exceed 180 from notice of said order for new trial.

TRIAL PROCEDURE A. Order of Trial [Sec 11] a. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. b. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. c. The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. d. Upon admission of evidence of the parties, the case shall be deemed submitted for decision - Unless the court directs them to argue orally or to submit written memoranda e. When the accused admits the act or omission charged in the complaint o information but interposes a lawful defense, the order of trial may be modified. Trial of several accused [Sec 16] Joint tried - When two or more accused - Jointly charged with an offense - EXCEPT: the court, in its a) Discretion and b) Upon motion of the prosecutor or any accused, orders separate trial for one or more accused.

REVIEWER ON CRIMINAL PROCEDURE

Consolidation of trials of related offenses [Sec 22] - -

Charges may be tried jointly at the discretion of the courts if Charges for offenses founded on the same facts or Forming part of a series of offenses of similar character

When mistakes have been made in charging the proper offense [Sec 19] The court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information if the ff. occur. - At any time before judgment - It becomes apparent that a mistake has been made in charging the proper offense and - The accused cannot be convicted of the offense charged or any other offense necessarily included therein - He shall not be discharged if there is good cause to detain him

TRIAL IN ABSENTIA Happens when accused is not present during trial or when the accused jumps bail, escapes, or dies.

Remedies 1. Demurrer to evidence – after the prosecution rests its case. & on the ground of insufficiency of evidence [Sec 23] a. With leave of court b. Without leave of court 2. Reopening [Sec 24] – at any time before judgment & to avoid miscarriage of justice 3. Exclusion of the public [Sec 21] – except court personnel and counsel a. Motu proprio b. On motion of the accused 4. Other Remedies a. Motion to Surpress Evidence b. Motion to Expunge Extrajudicial Confession c. Motion to have Separate Trial d. Motion to Examine Witness e. Motion to Continuance f. Motion to Dismiss i. after filing of information and Court makes determination on probable cause ii. before arraignment, when there is motion to quash information OR iii. During trial- after the prosecution presents evidence and rests its case (M to Dismiss for insufficiency of Evidence aka Demurrer to Evidence)


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JUDGEMENT ¬ Adjudication by court that accused is guilty or not and imposition of proper penalty and civil liability if any. ¬ Written in official language, personally/directly prepared by judge and sgd by him • Contain clearly/distinctly statement of facts and law decision is based upon

CONTENTS: •

• •

Conviction: 1) legal qualification of offense constituted by acts committed + aggravating/mitigating circumstances 2) participation of accused in offense as principal/accomplice/or accessory 3) penalty imposed 4) civil liability/damages UNLESS sep civil action reserved or civil liability waived Acquittal: state whether evidence of prosec absolutely failed to prove guilt or merely failed to prove guilt beyond reasonable doubt EITHER CASE: determine if A/O from w/c civil liability might arise exists or not

2 OR MORE OFFENSES IN 1 COMPLAINT: court may convict of as many offenses as charged and proved and impose penalty for each, separate findings of fact/law for each unless accused objects before trial • Ex. More offenses committed but only 1 prescribed penalty = Usually Complex Crimes

IN CASE OF VARIANCE BET. ALLEGATION AND PROOF offense charged is included in OR includes the offense proved accused convicted of offense proved w/c is included in offense charged OR offense charged w/ c is included in offense proved • Includes offense proved = essential elements/ ingredients constitute the offense proved • Necessarily included in offense proved = essential ingredients of offence charged form a part of offense proved

PROMULGATION: reading in the presence of accused and any judge of court in w/c it was rendered if light offense = may be pronounced in presence of counsel or rep • May be promulgated by clerk of court in case judge is absent or out of town • Trial/Promulgation In absentia: allowed if jumped bail waived his right to be present (absence w/o justification + due notice in Bail conditions) ♣ If escapee ♣ Light offense ♣ Any other reason w/o justification and due notice

If accused is confined/detained in another province/city promulgated by exec judge of RTC w/ jurisdiction over place of confinement upon request of court w/c rendered judgement •

Court promulgating will have authority to accept notice of appeal + approve bail bond pending appeal (PROVIDED, if decision of TC changed offense from nonbailable to bailable, app for bail only filed/resolved by appellate court)

REVIEWER ON CRIMINAL PROCEDURE

Clerk of Court give notice to accused personally or thru bondsman/warden/counsel requiring presence at promulgation served to last known address if jumped bail/escaped

IN CASE OF FAILURE TO APPEAR: Despite notice, promulgation made by recording judgement and serving copy to last known address or counsel If for conviction and failed to appear w/o justifiable Cause lose remedies available against judgement + ordered arrested W/in 15d from judgement, accused may surrender and file motion for leave of court to avail of remedies. explain absence, allowed remedies w/in 15d from notice if justifiable (ESSENTIALLY, MOTION TO SET ASIDE THE ORDERS) 2 separate 15 day periods Judgement may be modified or set aside upon motion of accused before it becomes final or before appeal is perfected • EXCEPT where death penalty is imposed, judgement becomes final after lapse of period for perfecting appeal or when sentence has been partially or totally served or when accused waives in writing his right to appeal or applied for probation • AFTER FINALITY: entered in accordance w R36 (RULE ON EXECUTION) Nothing in this rule affects any existing provision for suspension of sentence, probation or parole JUDGEMENT BECOMES FINAL WHEN PERIOD OF APPEAL HAS ALREADY LAPSED AND NO APPEAL TAKEN + OTHER REASONS • Ex. Accused applies for probation • Partially/fully satisfied sentence • Accused waives in writing his right to appeal DOES NOT BECOME FINAL IF DEATH PENALTY IS IMPOSED (auto review *See Appeal)

PROBATION: Court may, after conviction and upon application of defendant suspend execution of sentence, place defendant on probation for period and terms it deems best Filed w/ TC, notice to appellate court if appeal taken = waiver of right to appeal or auto withdrawal of such order granting/denying probation is not appealable

Promote correction/rehab of offender by providing individualized treatment Opportunity for reform, less probable if serving prison sentence • Prevent commission of offenses Post sentence Investigation = needed before probation granted best interest of the public for it • Submit report w/in 60d from receipt of order to investigate court resolve probation petition w/in 5d from report receipt ♣ May be allowed on temp. bail or recognizance

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CRITERIA: denied if = 1) in need of correctional treatment commitment to such institution would help him 2)undue risk that during period of probation, will commit crime 3) probation will depreciate seriousness of crime committed

DQed: • • • • •

Max term of 6 yrs Convicted of offense against Sec. of State Previously convicted for offense w/ imprisonment of not less than 1mo1d and/or fine not less than P200 On probation once before Already serving sentence

CONDITIONS: (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; • (b) report to the probation officer at least once a month at such time and place as specified by said officer. The court may also require the probationer to: • (a) cooperate with a program of supervision; • (b) meet his family responsibilities; • (c) devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; • (d) undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; • (e) pursue a prescribed secular study or vocational training; • (f) attend or reside in a facility established for instruction, recreation or residence of persons on probation; • (g) refrain from visiting houses of ill-repute; • (h) abstain from drinking intoxicating beverages to excess; • (i) permit to probation officer or an authorized social worker to visit his home and place or work; • (j) reside at premises approved by it and not to change his residence without its prior written approval; or • (k) satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. •

ARCHIVING OF CASES Crim case: a) only after issuance of warrant of arrest remains at large for 6mos from delivery of warrant to peace officer • Order archiving crim case requires peace officer to explain why not yet caught alias if orig warrant is returned together w/ report b) also motu proprio/motion of any party if proceeding suspended indefinitely because 1. Unsound mental condition unable to fully understand charge, plead intelligently 2. Valid PQ exists 3. Interloc order is pending resolution and higher court issued TRO or prelim injunction 4. Accused jumped bail before arraignment and cant be arrested by bondsmen (and no waiver of trial daw) Civil Case: motu proprio or motion of any party =

REVIEWER ON CRIMINAL PROCEDURE

a. Period of settlement for parties, suspended for period nt exceeding 90d case included in trial calendar immediately after lapse b. Interloc order and pending resolution and higher court issues TRO/Prelim Injunc c. Defendant w/o fault of plaintiff cant be served summons w/in 6 mos from issuance of orig. summons

GENRULES: ¬ • • • •

Copies of archiving order furnished on both parties Special docket maintained Period review of archived cases by Presiding Judge Presiding judge motuproprio or on motion by any party, revive archived case when ready for trial Branch CoC submit to OCA consolidated list of archived cases not later than 1st week Jan.

After the prosec rests, what is the remedy? Demurrer - filed with prior leave or without leave (reckon from the ruling of the offer of evidence) • Period to file a demurrer upon notice of leave being granted upon the motion — 10 days from receipt of order • What is the function of a demurrer? Motion to dismiss. How then will the accused argue the contents of the demurrer? Insufficiency of evidence (prosec failed to establish the elements of the offense or failed to prove the allegations of the information) • Any other remedy available after the defense rests? After defense presents evidence, no more presentation of rebuttal of prosec — case submitted for resolution • What can be filed before the case is considered for resolution? Motion to exclude evidence — filed before ruling on the offer of evidence (testimonial – before presentation ; documentary/object evidence - after presentation) - When is the offer (re: testimonial evidence) made during the judicial affidavit rule? Criminal/normal cases —same with Rule on Summary Procedure (intention is to abbreviate the proceedings) - Modification or setting aside of judgment of conviction (only accused may ask for this) - A memoranda is submitted before the case is submitted for decision. - Possible grounds for objection: exclusionary rule, fruit of the poisonous tree doctrine etc. (substantive grounds) - Assuming there is no rebuttal and surrebuttal, is there any remedy available for the parties? - Demurrer granted - dismissed case ; Demurrer denied (filed w/ leave) -defense presents evidence , judge sets hearing ; demurrer denied (filed w/o leave) – judge sets the case for decision - If no demurrer - witness - cross examine - redirect recross-examine - offer – comment from accused - NOTE: Motion to discharge would be too late, it should be filed BEFORE the prosec rests/before the offer. You need kasi the testimony of that person! - REBUTTAL: prosec presents evidence. - SURREBUTTAL • What is your remedy after the defense rests? (case deemed submitted for resolution — reckoned from

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time submitted — right to speedy disposition of cases vs. right to speedy trial) • Wha t happens a f t e r judgment? (remedies) - a) Motion for recon, b) motion for new trial, c) motion to reopen, d) MR, e) Motion for modification of judgment, f) [interim remedy] bail (court’s discretion —when is it a matter of right? when is it a matter of discretion? [if after conviction, and for a non-capital offense] — where do you file bail? ) -Appeal

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NEW TRIAL OR RECONSIDERATION Any time before judgement or conviction becomes final on motion of accused or its own instance but w/ consent of accused, grant new trial/Recon

GROUNDS: 1) errors of law or irreg prejudicial to substantial rights of accused Ex. Objections against right to self incrimination not sustained, right to counsel denied, etc • THIS ONE ISN’T PRESENT IN THE CA RULES. CA GROUNDS FOR NEW TRIAL IS ONLY #2 (SEE SEC 14 R124) 2) new and material evidence been discovered w/c accused could not w/ reasonable diligence, have discovered and produced at trial and would probably change the judgement FOR NEW TRIAL ¬ FOR RECON errors of law or fact in judgement w/ c requires no further proceedings ¬ FORM for motion for new trial/recon: • In writing • State grounds on w/c it is based ♣ If newly discovered evidence, support w/ affidavits of witnesses who will give such evidence OR(and?) duly authenticated copies of docs proposed to be evidence • NOTICE given to prosec ¬ Court may hear evidence by affidavits or otherwise for resolution of question of fact

statements of witnesses ; does not need argument of evidence presented previously (Court may al low, but i t does not necessarily mean you will present different evidence. it may be the SAME evidence but you just want to set aside the “infected” proceedings — clean slate!) CONSEQUENCES: As if there was no trial, set aside, take anew 2) Newly-discovered evidence FORM: Suppor ted by affidavi t s of witnesses by whom such evidence is expected to be given or by dul y authenticated copies of documents which are proposed to be introduced in evidence (ROC 121, Sec. 4) CONSEQUENCES: Evidence already reduced shall stand and you’ll be allowed to present it TEST (for newly-discovered evidence): WON with proper diligence it would have been discovered during the trial, has to be material evidence that could change the judgment *SIMILARITIES: As to form: 1) Motion that is required to be in writing, state grounds on which it is based 2) In both instances, there should be notice to the adverse party or the prosec As to period: Before judgment becomes final, should be filed 15 days before promulgation (Most of the post-judgment remedies will be reckoned from judgment or any period before finality) - B. Motion to reopen • Strict in the sense that it only raises one ground (to avoid miscarriage of justice)

EFFECTS: a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all 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. LATEST TIME TO FILE: right before lapse of the period of appeal •

GROUNDS FOR NEW TRIAL: -Should be filed before judgment of conviction becomes final (It becomes final 1) before the lapse of the period of appeal, (how to count: ROC twentysomething) 2) sentence totally or partially served, 3) accused waives the right to file appeal — GR: 15 days (crim case) ; Exception: 30 days (if it is an appeal of a case that involves multiple appeals, and the mode of appeal is a record on appeal [e.g special proceedings, special civil actions, expropriation cases, this is not applicable to crim actions!]) APPEAL: MTC to RTC, RTC to CA 1) Errors of finding of fact and law FORM: Argue your ground (identify it), NO requirement of affidavits and sworn

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APPEAL CRIM CASES: Always notice of appeal Record on appeal is for CivPro/SpecPro cases. ¬ NOTICE OF APPEAL: file with court of origin ¬ Any party may appeal from judgement/final order EXCEPT if accused will be placed in double jeopardy

copies of duly certified transcript of notes of proceedings NO EXTENSION TIME EXCEPT GRANTED BY SC AND ONLY UPON JUSTIFIABLE GROUNDS

TRANSMISSION OF PAPERS TO APPELATE COURT •

WHERE: 1. RTC in cases decided by MeTC, MTC, MCTC 2. CA or SC in proper cases provided by law, in cases decided by RTC 3. SC, in cases decided by CA

HOW: 1. Appeal to RTC or CA in cases decided by RTC in orig jd, filing notice of appeal w/ court w/c rendered judgement + serving copy upon adverse party (15d) 2. Appeal to CA in cases decided by RTC in appellate jd petition for review Rule 42 (15days extendable by another 15d) 3. Appeal to SC in cases where penalty imposed by RTC is death, RP or life imprisonment OR lesser penalty imposed but for offenses from same occurrence, gave rise to D/RP/LI file notice of appeal in accordance w/ (1) (15 days extendable by another 30d) 4. No notice of appeal necessary in cases where DP imposed by RTC automatic review by SC, Sec 10 of this rule (this is sec 3) 5. EXCEPT as provided in R124, sec 13. All appeals to SC by petition for review R45 IF PERSONAL SERVICE TO ADVERSE PARTY/ COUNSEL OF COPY OF NOTICE OF APPEAL NOT POSSIBLE may be done by registered mail or subbed service pursuant to sec 7/8 R13

WAIVER OF NOTICE: appellee (against whom appeal is filed) may waive right to notice that appeal taken. Appellate court may entertain appeal even w/ failure to give such notice IF interests of justice require

WHEN: w/in 15d from promulgation of judgement or notice of final order (denial of MR or New Trial) [see Yu v Tatad: Fresh 15d rule after MR/New Trial denied. Aka Hindi na suspended lang] • Period for perfecting appeal suspended from time motion for new trial or reconsideration is filed until notice of order overruling said motion is served upon accused or counsel

TRANSCRIBING/FILING NOTES OF STENOGRAPHIC REPORTER • •

•

When notice of appeal filed by accused TC order stenographic reporter to transcribe notes of proceedings When filed by People TC order SR to transcribe such portion of his notes of proceedings as the court (upon motion) shall specify in writing SR shall certify to correctness of notes and transcript: original + 4 copies, shall file them w/ clerk w/o unnecessary delay If death penalty imposed SR w/in 30d from promulgation of sentence, file w/ clerk original + 4

REVIEWER ON CRIMINAL PROCEDURE

W/in 5d from filing notice of appeal, CoC w/ whom notice of appeal was filed will transmit to appellate court the complete records of case together with notice. original + 3 copies of transcript of notes together w/ records also transmitted. Other copy of transcript remains w/ lower court

APPEAL TO RTC 1. W/in 5d from perfection of appeal CoC transmit orig record to appropriate RTC 2. Upon receipt of complete record, transcripts and exhibits CoC of RTC shall notify parties 3. w/in 15d from receipt of notice parties may submit memoranda/briefs OR may be required by RTC to do so • after submission or expiration of period to do so, RTC shall decide on basis of entire record + memoranda/briefs

TRANSMISSION IN CASE OF DEATH PENALTY •

•

Records forwarded to SC w/in 5d AFTER the 15th day from promulgation/notice of denial of motion for new trial/recon Transcript also forwarded w/in 10d after filing by SR New rule: From RTC to CA to SC (rule 122, sec3(d) is amended) [reason for this is clogging of SC]

EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED •

• •

Appeal taken by 1 or more accused shall NOT affect those who did NOT appeal EXCEPT: if judgement of appellate court is favorable and applicable to the latter Appeal of offended party from civil aspect shall NOT AFFECT criminal aspect Upon perfection of appeal, execution of judgement/ final order shall be stayed as to the appealing party

WITHDRAWAL OF APPEAL: NOTWITHSTANDING PERFECTION OF APPEAL, •

•

RTC,MeTC,MTC,etc MAY allow the appellant to withdraw appeal BEFORE RECORD HAS BEEN FORWARDED BY COC TO APPELLATE COURT (once forwarded, judgement is final) RTC MAY also allow appellant to withdraw appeal from judgement of LCs PROVIDED: motion to that effect is filed before rendition of judgement (or it becomes final rin and case gets remanded for execution)

Duty of CoC upon filing of notice of appeal ascertain, if confined in prison whether he desires RTC/CA/SC to appoint de officio to defend him + transmit with record of a form prepared by CoC of appellate court, certificate of compliance w/ duty

PROCEDURE IN CA ¬ Title of the case – party appealing = appellant while adverse is appellee. Title of original case stays ¬ Assign counsel de oficio IF: (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal 45

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•

himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio. MAY be assigned counsel de oficio even if not in prison upon request assigned w/in 10d from receipt of notice to file brief + establishes his right to one

BRIEF FILED FOR APPELLANT: w/in 30d from receipt by appellant/counsel of notice from CoC that evidence, oral and documentary, is attached to record 7 copies of brief w/ CoC + proof of service of 2 copies to appellee

BRIEF FILED FOR APPELLEE: w/in 30d from receipt of brief of appellant, appellee files 7 copies of brief w/ CoC + proof of service of 2 copies to appellant w/in 20d from receipt of this brief = appellant may file reply brief of matters raised by appellee but not by the appellant in his brief EXTENSION OF TIME FOR FILING BRIEFS: not allowed EXCEPT for good/sufficient cause + filed before expiration of time FORM: Briefs in double space on legal size good quality unglazed paper, printed (330mm x 216mm) [revised by Efficient Use of Paper Rule] • CONTENTS: same as Sec 13/14 R44 + certified copy of decision appended to brief of appellant

DISMISSAL OF APPEAL: •

• ¬ • ¬ • • •

¬ • ♣

•

CA may upon motion or motu proprio w/ notice to appellant dismiss if appellant fails to file brief w/in time limit EXCEPT when represented by counsel de oficio May also dismiss if escapes/jumps bail/ flees during pendency Appeals of accused under detention is PREFERRED over other appeals earliest practicable time Accused NOT needed to be present during hearing of appeal POWERS/LIMITS of CA: Judgement reversed or modified ONLY if substantial error injuriously affected substantial rights May reverse, affirm, modify, increase/reduce penalty, remand case, dismiss Try cases/hearings + receive evidence + resolve factual issues in cases: (a) falling within its original jurisdiction, (b) involving claims for damages arising from provisional remedies, or (c) where the court grants a new trial based only on the ground of newly- discovered evidence. 3 justices of CA = quorum for division session Unanimous vote of 3 needed for judgement/final resolution (consultation before writing of opinion by one) If no unanimous vote Presiding justice will direct raffle committee, designate 2 temp justices from CA justices = 5 members, majority decision needed If death penalty/RP/LI they’ll render it but refrain from entering such and elevate to SC

MOTION FOR NEW TRIAL: anytime after appeal perfected from LC and before judgement of CA on ground of newly discovered evidence

REVIEWER ON CRIMINAL PROCEDURE

New Trial will be conducted by CA or referred to court of origin ¬ MR: no 2nd MR • Filed w/in 15d from notice of decision/final order of CA + copies served on adverse party w/ grounds. ¬ Entry of judgement of CA is issued, certified true copy of judgement attached to original record and remanded to CoC from w/c appeal was taken ¬ Rules 42 44-46, 48-56 apply to crim cases as applicable and not inconsistent w/ provis of this rule •

PROCEDURE IN SC ¬ Unless specific rule/constitution, Same as CA ¬ Review for CA decisions in crim case same as civil cases ¬ When majority not reached deliberated again, if STILL no decision judgement of conviction is REVERSED - MTC file notice of appeal w/in 15d from judgement, etc notice of timely filing of appeal AT RTC, Appeal/Memoranda/Briefs WHO REPRESENTS THE STATE: OFFICE OF PROSEC w/ RTC OSG w/ SB/CA

POST-JUDGMENT REMEDIES • *ROC 65 (alternative remedy) • Contents of notice of appeal - read in conjunction with Sec. 5, Rule 41, 40, 42, 44 • File notice of appeal together w/ required contents • Where do you file your application on bail? GR: File w/ court where records of the case are (follow the case records!) Exception: CA— If they change the nature of the offense from bailable to non-bailable RTC — “residual jurisdiction" (limited to confirming your notice of appeal) ; if a notice of appeal has been filed, prosec can file a motion to expunge it or dismiss it on ground of being filed late, or it doesn’t conform with the rules on required contents. So if the notice of appeal is defective, it can be stricken of by the RTC, meaning no records will be transmitted • After records of RTC are transmitted to CA, what happens next? ROC 122, Sec. 8 • CRIM CASES - 30- 30- 20 days CIVIL CASES - 45 - 20 -20 days • MTC to RTC: ROC 122 in re ROC 40; pd. 15 days — perfected (things to do to make appeal timely/correct) - what to do, when to file. If not perfected you lose appeal — errors of facts • RTC to CA : ROC 124 in re: ROC 42; pet. for review on certiorari; pd. 15 days, no extension except for most compelling reason ; file to CA (pag petition, file to resolving court) ; errors of facts and law; can still raise questions of fact and law • CA to SC : ROC 125 in re: ROC 45 —also pet for review; pd. 15 days, extendable for 30 days; subject: Only questions of law (NOT questions of fact)

POST CONVICTION REVIEW No Rules here. Just the 2 cases ma’am mentioned to focus on. • Yu vs. Tatad and Galman vs. Sandiganbayan (Ruth’s compilation has this) 46

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AUSTRIA NOTES (ADDITIONAL): POST-CONVICTION REVIEW • As to judgment final: nothing left to be done ; interlocutory order: something can be done pa • Extraordinary circumstances that causes court to vacate judgment: Denial of due process, decision was patently unjust, supervening developments in law

REVIEWER ON CRIMINAL PROCEDURE

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