Updates In Crimpro 2018 Revised (1).pptx

ORAL ADVOCACY IN THE CRIMINAL LITIGATION PROCESS Atty. Ramon S. Esguerra Mandatory Continuing Legal Education Seminar

• • • • •

Laws: Revised Guidelines for Continuous Trial of Criminal Cases (A.M. No. 15-06-10SC) Precautionary Hold Departure Order (A.M. No. 18-07-05-SC) Plea Bargaining Framework in Drugs Cases (OCA Circular No. 90-2018) Rule on Cybercrime Warrants (A.M. No. 17-11-03-SC)

• • • • • • • • •

Cases: Chain of Custody (People v. Romy Lim, 2018) Speedy disposition of cases (Cagang, 2018/Magante, 2018) Judicial Affidavit Rule (Lara’s Gift Inc., 2018) Hearsay as basis of probable cause (Estrada, 2015) Bail (Enrile, 2015, Leviste) Bill of Particulars (Enrile, 2015) Demurrer to Evidence (Arroyo v. People, 2017) Adjustment of penalties RPC (R.A. No. 10951/Hernan , 2017)

Outline

REVISED GUIDELINES FOR CONTINUOUS TRIAL OF CRIMINAL CASES A.M. No. 15-06-10-SC

• Effectivity: September 1, 2017 • Applicability • All newly filed criminal cases – including those governed by Special Laws • In the First and Second Level Courts, • Sandiganbayan • Court of Tax Appeals

• Pending criminal cases with respect to the remainder of the proceedings • Exception: cases filed under Rule on Summary Procedure • Exception to the exception: unless otherwise provided herein

Salient Points of the REVISED GUIDELINES FOR CONTINUOUS TRIAL OF CRIMINAL CASES

• Trial shall be held from Monday to Thursday, and courts shall call the cases at exactly 8:30 A.M. and 2:00 P.M.

• Hearing on Motions, arraignment, and pre-trial, and promulgation of decisions shall be held in the morning of Fridays • All courts shall ensure the posting of their court calendars outside their courtrooms at least one day before scheduled hearings

Hearing Days and Calendar Call

• Motion for Inhibition • Based on grounds provided for under Rule 137 • Shall be resolved immediately or within two (2) calendar days from date of their filing

Motions

Shall be denied outright before the scheduled arraignment without need of comment/opposition  

Motion for judicial determination of probable cause Motion for preliminary investigation   

filed beyond the 5 day reglementary period in inquest proceedings (Rule 112, Sec. 6,), or when Preliminary investigation is required (Rule 112, Sec. 8), or allowed in inquest proceedings and accused failed to participate despite due notice

Prohibited Motions

 Motion for reinvestigation of the prosecutor recommending the filing of information once the information has been filed before the court 1. If motion is filed without prior leave of court 2. When Preliminary Investigation is not required (Rule 112, Sec. 8) 3. When actual P.I. has been actually conducted, and the grounds relied upon in the motion are not meritorious o

Such as credibility, admissibility of evidence, innocence of accused, lack of due process when accused was actually notified

Prohibited Motions

• Motion to Quash Information when ground is not stated in sec. 3, Rule 117 • Motion for Bill of Particulars which does not conform to sec. 9, Rule 116 • Motion to suspend the arraignment based on grounds not stated under sec. 11, Rule 116 • Petition to suspend the criminal action on the ground of prejudicial question, when no civil case has been filed, sec. 7, Rule 111

Prohibited Motions

• Motion to withdraw information, downgrade charge in the information, exclude an accused – filed by the prosecution as a result of a reinvestigation, reconsideration and review • Motion to Quash Warrant of arrest • Motion to suspend arraignment on ground of unsound mental condition • Motion to suspend proceedings on ground of prejudicial question where civil case was filed prior to criminal case

Meritorious Motions

• Motion to Quash Sec. 3, par (a), (b), (g), (i) Rule 117 • (a) That the facts charged do not constitute an offense; • (b) That the court trying the case has no jurisdiction over the offense charged • (g) That the criminal action or liability has been extinguished; • (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.

Meritorious Motions

• Motion to discharge accused as state witness, Rule 119, Sec. 17. • Motion to quash search warrant (sec. 17, Rule 126)/ Motion to suppress evidence • Motion to dismiss – when the criminal case is a Strategic Lawsuit Against Public Participation (SLAPP) under Rule 6 of the Rules of Procedure for Environmental Cases

Meritorious Motions

• GR: Motion for Postponement is prohibited • Exceptions: • Acts of God • Force Majeure • Physical Inability of witness to appear or testify Note: An oral or written motion for postponement shall be accompanied by the Original Receipt evidencing payment of the postponement fee (sec. 21 (b), Rule 141)

Motion for Postponement

• When a party fails to qualify for the availment of the services of the Public Attorney’s Office • The IBP Local Chapter shall submit to the Executive Judges a list of IBP-local lawyers who may be appointed as counsel de officio in such case • The list shall be disseminated among trial courts in the station

Free Legal Assistance

• Applies where only civil liability is being prosecuted

• The private prosecutor must submit a written authority from the head of the prosecution office to try the case even in the absence of the public prosecutor • The authority must be submitted to the court prior to the presentation of evidence

Private Prosecutor

• A) Newly filed cases • If same facts or • Part of a series of offenses similar in character

• Will be consolidated and raffled to only one court B) Pending cases with multiple accused • A subsequent information • But the accused is involved in the same incident in a previously filed information against other persons

• No more raffle – the subsequent case shall be assigned directly to the court where the earlier case is pending

Consolidations

• A criminal case shall be archived only if, after issuance of warrant of arrest, the accused remains at large for 6 months from the delivery of the warrant to the proper peace officer

Archiving of Cases

• Accused appears to be suffering from an unsound mind which renders him unable to plead intelligently, or go to trial and has to be committed to a mental hospital • A valid prejudicial question • A higher court has issued a temporary restraining order • Accused jumped bail before arraignment

Archiving of cases – other grounds

• The provisional dismissal becomes permanent 1 year after the issuance of the order • If offense is punishable by imprisonment not exceeding 6 years

• The provisional dismissal becomes permanent 2 years after the issuance of the order • If offense is punishable by imprisonment exceeding 6 years

Revival of Provisionally Dismissed Cases

• Notice shall be sent to: • • • • •

Accused His/her counsel Private complainant/complaining law officer Public prosecutor Witnesses whose names appear in the information

Note: Schedule of Arraignment and pre-trial are now set on the same day

Arraignment and Pre-Trial

• Waiver of reading of information – in multiple cases, the court, upon personal examination of the accused, may allow a waiver of the reading of information upon full understanding and express consent of the accused and his/her counsel, which consent shall be expressly stated in both the minutes/certificate of arraignment and the order of arraignment. The court shall explain the waiver to the accused in the language or dialect known to him or her, and ensure the accused’s full understanding of the consequences of the waiver before approving the same

A.M. No. 15-06-10-SC

Plea of guilty to a lesser offense

Plea bargaining proceeds o Offended party/arresting officers must be present o With consent of Prosecutor

Plea of guilty

Judgment shall be immediately rendered o Except capital punishment

No plea bargaining or plea of guilty

o Court immediately proceeds with arraignment and pre-trial

The schedule of the trial dates for both prosecution and the accused Shall be continuous and within the periods provided in the Rules/Special Rules Arraignment shall be simultaneously held with the Preliminary Conference

Arraignment proper

• i. Absence of parties – the Court shall proceed with the pre-trial despite the absence of the accused and/or private complainant, provided they were duly notified of the same, and the counsel for the accused, as well as the public prosecutor is present • ii. Stipulations • iii. Marking of evidence • iv. Pre-trial Order • v. Compliance with AM No. 03-1-09-SC (Guidelines to be Observed in the Conduct of Pre-trial)

Conduct of Pre-trial

• The following shall be referred to mediation on the civil liability unless a settlement is reached earlier in the pre-trial/ preliminary conference a. B.P. 22 b. SSS Law (RA no. 1161, as amended by RA 8282) c. PAG-IBIG Law (RA no. 9679) d. Crimes against property under Title 10 of the RPC e. Crimes against honor under Title 13 of the RPC Libel under RA 10175 (Cybercrime Prevention Act of 2012) f. Criminal Negligence under Title 14 of the RPC g. Intellectual property rights cases where liability is civil in nature Note: the referral to the Philippine Mediation Center shall be made only after the conduct of the arraignment and the pre-trial/preliminary conference The mediation shall be terminated within 30 calendar days from referral.

Mediation

• When filed – after the filing of the information shall be set for summary hearing after arraignment and pre-trial.

• Petition for bail shall be heard and resolved within 30 calendar days from the date of the first hearing. • Except in drug cases 20 calendar days • Motion for reconsideration on resolution for petition for bail shall be resolved within 10 calendar days from submission of Motion for reconsideration

Petition for Bail

• Resolution shall be based solely on evidence presented during bail proceedings by the prosecution • The accused need not present evidence to contradict or rebut the prosecution’s evidence • The court shall not suspend the presentation of evidence in chief while awaiting resolution of the petition for bail or the motion for reconsideration

Evidence in petition for bail

• For First Level Courts, in all criminal cases, including those covered by the Rule on Summary Procedure, the testimonies of witnesses shall consist of the duly subscribed written statements given to law enforcement officers or the affidavits or counter-affidavits submitted before the investigating prosecutor and if such are not available, testimonies shall be in the form of judicial affidavits. • The trial prosecutor may opt to dispense with the sworn statements submitted to the law enforcement officers and instead prepare judicial affidavits or modify or revise the said sworn statements

Form of Testimony

• For Second Level Courts, Sandiganbayan and Court of Tax Appeals, where the demeanor of the witnesses is not essential, like the forensic chemist, medico-legal officers, investigators, auditors, accountants, engineers, custodians, expert witnesses and other similar witnesses, who will testify on the authenticity, due execution and the contents of public documents and reports, and in criminal cases that are transactional in character, such as falsification, malversation, estafa or other crimes where the culpability or innocence of the accused can be established through documents, the testimonies of the witnesses shall be the duly subscribed written statements given to law enforcement officers or the affidavits or counter-affidavits submitted before the investigating prosecutor, and if such are not available, testimonies shall be in the form of judicial affidavits, subject to additional direct and cross-examination questions

Form of Testimony

• In all other cases where the culpability or the innocence of the accused is based on the testimonies of the alleged eyewitnesses, the testimonies of these witnesses shall be in oral form

Form of Testimony

• During pre-trial/preliminary conference, the court shall require the parties to enter into stipulations on the subject of both direct and cross-examinations of witnesses who have no personal knowledge of the material facts constituting the crimes, such as forensic chemists, medico-legal, officers, investigators, auditors, accountants, engineers, custodians, expert witnesses, and other similar witnesses, who will testify on the authenticity, due execution and the contents of public documents and reports; corroborative witnesses, and those who will testify on the civil liability. • This rule is without prejudice o allowing additional direct and cross-examination questions

Stipulations

• If stipulations cannot be had in full, where the adverse party does not waive the right to cross-examination, the subject of the direct testimony of these witnesses should be stipulated upon, without prejudice to additional direct and cross-examination questions

Stipulations

• The offer of evidence, the comment/objection thereto, and the court ruling thereto shall be made orally. A party is required to make his/her oral offer of evidence on the same day after the presentation of his/her last witness, and the opposing party is required to immediately interpose his/her oral comment/objection thereto. Thereafter, the court shall make a ruling on the offer of evidence in open court.

Trial: Offer of Evidence

• In making the offer, the counsel shall cite the specific page numbers of the court record where the exhibits being offered are found, if attached thereto. The court shall ensure that all exhibits offered are submitted to it on the same day of the offer • If the exhibits are not attached to the record, the party making the offer must submit the same during the offer of evidence in open court

Trial: Offer of Evidence

• After the prosecution has rested its case, the court shall inquire from the accused if he/she desires to move for leave of court to file a demurrer to evidence, or to proceed with the presentation of his/her evidence • If the accused orally moves for leave of court to file a demurrer to evidence, the court shall orally resolve the same.

• If the motion for leave is denied, the court shall issue an order for the accused to present and terminate his/her evidence on the dates previously scheduled and agreed upon, and to orally offer and rest his/her case on the day his/her last witness is presented.

Trial: Demurrer to Evidence

• If despite the denial of the motion for leave, the accused insists on filing the demurrer to evidence, the previously scheduled dates for the accused to present evidence shall be cancelled.

Trial: Demurrer to Evidence

• Demurrer shall be filed within 10 calendar days from the date leave of court is granted • The corresponding comment shall be filed within 10 calendar days from date of receipt of demurrer • The court shall resolve the demurrer within a nonextendible period of 30 calendar days from the date of filing the comment or lapse of the 10 day period to file the same

Trial: Demurrer to Evidence

• If the motion for leave of court to file demurrer to evidence is granted, and the subsequent demurrer to evidence is denied, the accused shall likewise present and terminate his/her evidence (one day apart, morning and afternoon) and shall orally offer and rest his/her case on the day his/her last witness is presented. • The court shall rule on the oral offer of evidence of the accused and the comment or objection of the prosecution in the same day of the offer. If the court denies the motion to present rebuttal evidence because it is no longer necessary, it shall consider the case submitted for decision

Trial: Demurrer to Evidence

• One day examination of witness rule – The Court shall strictly adhere to the rule that a witness has to be fully examined in one (1) day.

Trial: Examination of witnesses

• The submission of memoranda is discretionary on the part of the court, which in no case shall exceed 25 pages in length, single-spaced, on legal size paper, using size 14 font. The period to submit memoranda shall be nonextendible and shall not suspend the running of the period of promulgation of the decision, thus, with or without memoranda, the promulgation shall push through as scheduled.

Memoranda

• Judges who conducted the trial and heard the testimonies of some or all of the witnesses shall not defer the submission of the case for decision on the ground of incomplete or missing transcript of stenographic notes. If the case was heard completely by another judge, not the judge tasked to write the decision, the latter shall direct the stenographers concerned to submit the complete transcripts within a period of 30 calendar days from the date of his/her assumption to office

Lack of Stenographic Notes

• Schedule of Promulgation • The court shall announce in open court and include in the order submitting the case for decision, the date of the promulgation of its decision which shall not be more than 90 calendar days from the date the case is submitted for decision, except when the case is covered by Special Rules and other laws which provide for a shorter period.

Promulgation

• Resolution of motion for reconsideration of judgment of conviction or motion for new trial • A motion for reconsideration of judgment of conviction or motion for new trial under Rule 121 filed within the reglementary period of 15 days from promulgation shall be resolved within a non-extendible period of 10 calendar days from the submission of the comment of the prosecution. With or without comment, the court shall resolve the motion within the 10 day period.

Promulgation

PRECAUTIONARY HOLD DEPARTURE ORDER A.M. No. 18-07-05-SC

• An order in writing issued by a court commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from ·the Philippines • Issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least six ( 6) years and one (I) day or when the offender is a foreigner regardless of the imposable penalty

Precautionary Hold Departure Order

• Filed by the prosecutor with: a. any regional trial court within whose territorial jurisdiction the alleged crime was committed b. For compelling reasons, it can be filed with any regional trial court within the judicial region where the crime was committed if the place of the commission of the crime is known c. the regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City shall also have the authority to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless where the alleged crime was committed.

Where filed Sec. 2

• After prosecutor’s preliminary determination of probable cause, the prosecutor may file an application in the name of the People of the Philippines for a precautionary hold departure order (PHDO) with the proper regional trial court. Accompanied by the complaint-affidavit and its attachments.

Prosecutor finding of Probable Cause Sec. 3

• A precautionary hold departure order shall not issue except upon determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her. The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

Grounds Sec. 4

• If judge finds probable cause, he/she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports

• Otherwise, the judge shall order the dismissal of the application

Grounds Sec. 4

• Since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply affidavit, and the evidence presented by both parties during the preliminary investigation.

Preliminary finding of probable cause Sec. 5

• If the prosecutor after preliminary investigation dismisses the criminal complaint for lack of probable cause then the respondent may use the dismissal as a ground for the lifting of the PHDO with the regional trial court that issued the order. • If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor shall be consolidated with the court where the criminal information is filed.

Preliminary finding of probable cause Sec. 5

PHDO should indicate: • name of the respondent, • his or her alleged crime, • the time and • place of its commission, and the • name of the complainant

Form Sec. 6

What should be appended • copy of the application, • personal details, • passport number, • photograph of the respondent, if available

Validity of the PHDO • valid until lifted by the issuing court as may be warranted by the result of the preliminary investigation Duly certified copy of the PHDO should be: • Furnished to the Bureau of Immigration • within twenty-four (24) hours from issuance

Validity

• Respondent may file a verified motion before the issuing court for the temporary lifting of the PHDO • On Meritorious Grounds • based on the complaint-affidavit and the evidence that he or she will present, there is doubt that probable cause exists to issue the PHDO, or • That he or she is not a flight risk

Conditions • respondent posts a bond (to be determined by the Court (sec. 8) • the lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent

Lifting of the Order sec. 7

PHDO Diagram

HOLD DEPARTURE ORDER & BUREAU OF IMMIGRATION WATCHLIST • Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority. (Rule 114, Sec. 23) • The accused may be prohibited from the leaving country during the pendency of his case (People v. Uy Tuising, 1935; Manotoc v. CA 1986). If the accused released on bail attempts to depart from the Philippines without the permission of the court where his cases is pending, he may be re-arrested without warrant. (Rule 113, Sec. 23) • Hold-Departure Orders: This may be issued only by the RTCs in criminal cases within their exclusive jurisdiction. (SC Circular No. 39-97, 19 June 1997)

• Presently, there is no law allowing the issuance of hold departure orders in a pending preliminary investigation. Although courts have the inherent power to issue hold departure orders, this presupposes that a criminal case has been filed against the accused • The Rule amounts to judicial legislation. It arbitrarily sets a cluster of crimes and construes, through a judicial rule, that these are what constitute threats to "national security, public safety, or public health."

PHDO – Leonen, J. dissent

• A “preliminary determination of probable cause” [conducted by the prosecutor before referring the matter to the judge] only complicates our rules on criminal procedure. • A preliminary determination of probable cause, though intended to be without prejudice to the investigating prosecutor's resolution of the criminal case, would actually render the conduct of preliminary investigation moot and academic

PHDO – Leonen, J. dissent

• Once the investigating prosecutor finds that there is probable cause to support an application for a precautionary hold departure order, the resolution of the court to which the application is filed would necessarily taint the prosecutor's own determination of probable cause for purposes of filing an Information. • the executive determination of probable cause, in the context of a preliminary investigation, would be an idle ceremony rendered moot by the two (2)-tier preliminary determination of probable cause.

PHDO – Leonen, J. dissent

EFRAIM C. GENUINO et al. v. LEILA DE LIMA Gloria Macapagal Arroyo v. De LIMA G.R. Nos. 197930, 199034, 199046 April 17, 2018 • The Supreme Court declared that DOJ Circular No. 41 is unconstitutional • sec. 6, Art. III of the Constitution, provides the limits for impairment of a person’s right to travel – namely: national security, public safety, or public health" and "as may be provided by law” • DOJ Circular No. 41 is not a law. • It is a mere administrative issuance which the DOJ Secretary believed to carry out the provisions of an enabling law (Administrative Code of 1987)

• The questioned circular does not come under the inherent power of the executive department to adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. • As such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency to promulgate rules. • Without a clear mandate of an existing law, an administrative issuance is ultra vires.

EFRAIM C. GENUINO et al. v. DE LIMA, Gloria Macapagal Arroyo v. De LIMA G.R. Nos. 197930, 199034, 199046 April 17, 2018

• There is also no authority of law granting it the power to compel the attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. • Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement. EFRAIM C. GENUINO et al. v. DE LIMA, Gloria Macapagal Arroyo v. De LIMA G.R. Nos. 197930, 199034, 199046 April 17, 2018

LEONEN, J. separate opinion • In my view, the phrase "as may be provided by law" should not be literally interpreted to mean statutory law. • The application of the clauses due process of “law” and equal protection of the “laws” have been tested even against executive issuances • As in the cases of Ynot v. IAC, (1987), Corona v. United Harbor Pilots (1997), Biraogo v. Truth Commission (2010) • In this regard, it is inaccurate to say that the right of persons to travel to and from the Philippines can only be impaired by statutory law.

EFRAIM C. GENUINO et al. v. Hon. LEILA DE LIMA Gloria Macapagal Arroyo v. De LIMA G.R. Nos. 197930, 199034, 199046 April 17, 2018

LEONEN, J. separate opinion • The Department of Justice is neither empowered by a specific law nor does it possess the inherent power (unlike the Courts) to restrict the right to travel of persons under criminal investigation through the issuance of hold departure orders, watchlist orders, and allow departure orders. • [The DOJ’s] mandate under the Administrative Code of 1987 to "[i]nvestigate the commission of crimes [and] prosecute offenders" cannot be interpreted so broadly as to include the power to curtail a person's right to travel.

EFRAIM C. GENUINO et al. v. Hon. LEILA DE LIMA Gloria Macapagal Arroyo v. De LIMA G.R. Nos. 197930, 199034, 199046 April 17, 2018

IMMIGRATION LOOKOUT BULLETIN The Bureau of Immigration may place a person in its Immigration Lookout Bulletin (ILB) pursuant to an order by the Department of Justice. Said order merely directs the Bureau of Immigration to be on the “lookout” and take prudent steps to verify on the status of the criminal case against a person. If the concerned agency raises no objection to the departure, then the person will be allowed to leave. For foreign nationals, the ILB requires subjects to obtain the Emigration Clearance Certificate, pursuant to Section 22-A of the Philippine Immigration Act, to ensure that the foreign national has no pending obligations in the Philippines.

Rule on Cybercrime Warrants A.M. No. 17-11-03-SC

• Effectivity: August 15, 2018 • Scope: • procedure for the application and grant of warrants and related orders • involving the preservation, disclosure, interception, search, seizure, and/or examination, as well as the custody, and destruction of computer data, as provided under Republic Act No. (RA) 10175 – Cybercrime Prevention Act of 2012

• An order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to issue an order to disclose and accordingly, require any person or service provider to disclose or submit subscriber's information, traffic data, or relevant data in his/her or its possession or control.

Warrant to Disclose Computer Data (WDCD)

• An order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to carry out any or all of the following activities: (a) listening to, (b) recording, (c) monitoring, or (d) surveillance of the content of communications, including procuring of the content of computer data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.

Warrant to Intercept Computer Data (WICD)

• A Warrant to Search, Seize and Examine Computer Data (WSSECD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to search the particular place for items to be seized and/ or examined.

Warrant to Search, Seize and Examine Computer Data (WSSECD)

• Upon acquiring possession of a computer device or computer system via a lawful warrantless arrest, or by any other lawful method, law enforcement authorities shall first apply for a warrant before searching the said computer device or computer system for the purpose of obtaining for forensic examination the computer data contained therein.

Warrant to Examine Computer Data (WECD)

• If the judge is satisfied that there is probable cause to believe that the facts upon which the application for the writ (WICD/WDCD/WSSECD)

Issuance of the Writs

• By law enforcement authorities 1. the designated cybercrime court of the province or city where the offense or any of its elements is committed 2. where any part of the computer system used is situated 3. where any of the damage caused to a natural or juridical person took place Note: The cybercrime courts in Quezon City, the City of Manila, Makati City, Pasig City, Cebu City, Iloilo City, Davao City and Cagayan De Oro City shall have the special authority to act on applications and issue warrants which shall be enforceable nationwide and outside the Philippines (through DOJ).

Venue – for filing application for a warrant

• Filed by Law Enforcement Authorities 1. the designated cybercrime court of the province or city where the offense or any of its elements is committed 2. where any part of the computer system used is situated 3. where any of the damage caused to a natural or juridical person took place Provided, that the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts

Venue of Criminal Actions

• Section 8.1. Duty of Service Providers and Law Enforcement Authorities to Destroy. -Pursuant to Section 17 of RA 10175, upon expiration of the periods as provided in Sections 13 and 15 of the said law, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of preservation and examination. • Section 8.2. Destruction and Return of Computer Data in the Custody of the Court. -Upon motion and due hearing, the court may, for justifiable reasons, order the complete or partial destruction, or the return to its lawful owner or possessor, of the computer data or any of the related items turned over to its custody.

Destruction and Return

CHAIN OF CUSTODY IN DRUG CASES New Guidelines (People v. Lim, 2018)

PEOPLE V. ROMY LIM G.R. No. 231989 September 4, 2018 Facts:

• Police officers conducted a buy-bust operation at the house of accused Romy Lim. The alleged shabu sachets were seized from the accused and an inventory was immediately made by the officers at Lim’s house • However, the Inventory Report does not contain the signatures of elected officials, or a representative of the DOJ, or the media. It was also not signed by the accused.

Dangerous Drugs Act (R.A. No. 9165)

• Sec. 21 (1), Article II of R.A. 9165 –amended by R.A. 10640, guidelines on immediate physical inventory • We have held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused in instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened by immediate or extreme danger such as retaliatory action of those who have the resources to mount a counter assault

PEOPLE V. ROMY LIM G.R. No. 231989, September 4, 2018

Sections 1 (A.1.10) of the Chain of Custody Implementing Rules and Regulations directs that the 1) justification or explanation in cases of noncompliance with the requirements of Sec. 21(1) of RA 9165 shall be clearly stated in the affidavits of the apprehending officers as well as, 2) the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items 3) and to present a certification or record of coordination for operating units other than the PDEA While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated before us.

PEOPLE V. ROMY LIM G.R. No. 231989, September 4, 2018

• For drug cases, the Court laid out a mandatory policy: 1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR. 2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/ confiscated items

PEOPLE V. ROMY LIM G.R. No. 231989, September 4, 2018

3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause 4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5,40 Rule 112, Rules of Court.

PEOPLE V. ROMY LIM G.R. No. 231989, September 4, 2018

Plea Bargaining Framework in Drug Cases A.M. No. 18-03-16-SC, April 10, 2018

Substance

Offense

Quantity

Penalty

12 years, 1 day to 20 0.01-299.99 grams years & fine of P300,000 to P400,000 Possession

Marijuana

Acceptable Plea Bargain

20 years to life imprisonment & fine 300-499 grams of P300,000 to P500,000 500 grams +

6 months, 1 day to 4 years & fine of P10,000 to P50,000 12 years, 1 day to 20 years & fine of P300,000 to P400,000 No plea bargaining allowed

A.M. No. 18-03-16-sc, April 10, 2018 Sale, Trade

Life imprisonment to death & fine of 0.01 -9.99 grams P500,000 to P10,000,000 10 grams +

6 months, 1 day to 4 years & fine of P10,000 to P50,000 No plea bargaining allowed

Substance

Shabu, opium, morphine, heroin. Cocaine

Offense

Quantity

Penalty

Acceptable Plea Bargain

0.01-4.99 grams

12 years, 1 day to 20 6 months, 1 day to 4 years & fine of P300,000 years & fine of to P400,000 P10,000 to P50,000

5-9.99 grams

20 years to life imprisonment & fine of P300,000 to P500,000

Possession

10 grams +

12 years, 1 day to 20 years & fine of P300,000 to P400,000 No plea bargaining allowed

A.M. No. 18-03-16-sc, April 10, 2018

Metampheta Sale, trade mine 0.01-0.99 grams hydrochloride or shabu only 1.00 gram +

Life imprisonment to 6 months, 1 day to 4 death & fine of P500,000 years & fine of to P10,000,000 P10,000 to P50,000 No plea bargaining allowed

Possession

6 months, 1 day to 4 years & fine 6 months treatment and rehabilitation of P10,000 to P50,000

undergo counselling program at rehabilitation center

Equipment, apparatus and other paraphernalia for dangerous drugs Possession during parties, social gatherings or meetings

Maximum of penalty in sec. 12

if: a. accused admits drug use or b. denies but found positive after drug dependency test

If accused is found negative for drug use/dependency if: a. accused admits drug use or

6 months treatment and rehabilitation

undergo counselling program at rehabilitation center

b. denies but found positive after drug dependency test

If accused is found negative for drug use/dependency

•

In all instances, whether or not the maximum period of the penalty imposed is already served, drug dependency test shall be required.  If accused admits drug use, or denies it but is found positive after drug dependency test, he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his after-care and follow up program if penalty is still unserved.  If accused is found negative for drug use/dependency, he/she will be released on time served, otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation center.  However, if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under sec. 5 in relation to Sec. 24 thereof, then the law on probation shall apply

A.M. No. 18-03-16-SC, April 10, 2018 Plea Bargaining Framework in Drug cases

• If acceptable plea bargaining is 6 months, 1 day to 4 years & fine of P10,000 to P50,000:  The Court is given the discretion to impose a minimum period and a maximum period to be taken from the range of penalty provided by law. A straight penalty within the range of 6 months and 1 day to 1 year may likewise be imposed

A.M. No. 18-03-16-SC, April 10, 2018 Plea Bargaining Framework in Drug cases

SPEEDY DISPOSITION OF CASES CAGANG V. SANDIGANBAYAN (2018)

• The criterion to determine whether there was inordinate delay is the "balancing test" which finds its roots in the American case of Barker v. Wingo (1972) where the U.S. Supreme Court explained the nature of the accused's right to speedy trial under the Sixth Amendment to the U.S. Constitution (Sixth Amendment), and set forth the four factors to be considered in determining whether such right had been violated – • • • •

1. length of delay, 2. the reason for the delay, 3. the defendant's assertion of his right, and 4. prejudice to the defendant

Elpidio Magante v. Sandiganbayan GR. Nos. 230950-51 , July 23, 2018

• The Court has never set a threshold period for concluding preliminary investigation proceedings before the Office of the Ombudsman premised on the idea that "speedy disposition" is a relative and flexible concept. • The Court is not unmindful of the duty of the Ombudsman under the Constitution and Republic Act No. 6770 to act promptly on complaints brought before him. This imposition, however, should not be mistaken with a hasty resolution of cases at the expense of thoroughness and correctness • More importantly, this duty does not license this Court to fix a specific period for the office to resolve the cases and matters before it, lest We encroach upon the constitutional prerogative of the Ombudsman to promulgate its own rules and procedure

Length of Delay

Fact-finding investigations and Inordinate Delay – when it starts to run Before filing a formal complaint The case buildup will not be counted in determining the attendance of inordinate delay Excluded from the computation as the party involved is not yet subjected to any adverse proceeding

Formal verified complaint filed It is only when a formal verified complaint had been filed would the obligation on the part of the Ombudsman to resolve the same promptly arise – delay starts to run.

A. extraordinary complications such as the degree of difficult of the questions involved, the number of persons charged, the various pleadings filed, and the voluminous documentary and testimonial evidence on record B. acts attributable to the respondent

• Note: Re-investigations cannot generally be considered as "vexatious, capricious, and oppressive" practices proscribed by the constitutional guarantee since these are performed for the benefit of the accused

Reasons for Delay

• It is the duty of the respondent to bring to the attention of the investigating officer the perceived inordinate delay in the proceedings of the formal preliminary investigation. • Failure to do so may be I considered a waiver of his/her right to speedy disposition of cases.

Assertion of right by the accused

• Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals.

Prejudice to the Respondent

Facts: • Accused Cagang (provincial treasurer) was among the hundred individuals in Sarangani province investigated for Malversation of Public Funds • Around 61 million was allegedly embezzled from the Countrywide Development Fund. Petitioner was among the 40 determined to have been involved in 81 different anomalous transactions. • It took the Ombudsman more than 7 years to study the evidence needed to establish probable cause. • The anonymous complaint was filed on February 10, 2003, the preliminary investigation was concluded in 2005 and the information was filed only on November 17, 2011. • Petitioner claims that there was inordinate delay in the disposition of his case

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

Right to a speedy trial

Right to speedy disposition of cases

Art. III, Sec. 14(2)

Art. III, Sec. 16

invoked against the courts in a criminal prosecution

invoked even against quasi-judicial or administrative bodies in civil, criminal, or administrative cases before them

What is important is that the accused may already be prejudiced by the proceeding for the right to speedy disposition of cases to be invoked.

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

• A case is deemed initiated upon the filing of a formal complaint prior to a conduct of a preliminary investigation • The ruling in People v. Sandiganbayan, Fifth Division, (2013) that fact-finding investigations are included in the period for determination of inordinate delay is abandoned

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

• The right to speedy disposition of cases is most commonly invoked in fact-finding investigations and preliminary investigations by the Office of the Ombudsman since neither of these proceedings form part of the actual criminal prosecution.

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

• The Court noted that: • The Ombudsman is mandated to “act promptly” on complaints filed before it (Art. XI, sec. 12, Constitution and R.A. No. 6770 sec. 13) • Both provisions do not provide for a specific period within which to measure promptness. Neither do they provide for criteria within which to determine what could already be considered as delay in the disposition of complaints.

• The Ombudsman should set reasonable periods for preliminary investigation, with due regard to the complexities and nuances of each case

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

Defense has the burden to prove Prosecution has the burden of delay when: justifying the delay if

1. the right is invoked within the o the delay occurs beyond the given time periods contained in given time period and the right current Supreme Court is invoked resolutions and circulars, and 2. the time periods that will be promulgated by the Office of the Ombudsman

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

Defense must prove

Prosecution must prove

1. whether the case is motivated by malice or clearly only politically motivated (as in the case of Tatad v. Sandiganbayan, 1988) and is attended by utter lack of evidence

1. that it followed the prescribed procedure in the conduct of preliminary investigation and in the prosecution of the case

2. that the defense did not contribute to the delay

2. complexity of the issues and the volume of evidence made the delay inevitable

3. no prejudice was suffered by the accused as a result of the delay

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

Guideline Diagram

• •

The determination of length of delay is not a “mere mathematical reckoning” Courts must consider: • the entire context of the case, • the amount of evidence to be weighed • the simplicity or complexity of the issues raised Exceptions 1. The prosecution is alleged to be solely motivated by malice – such as: • when a case is politically motivated, • prosecution continued despite utter lack of evidence • If malicious prosecution is alleged and substantially proven, the case would automatically be dismissed 2. Waiver of the accused of the right to speedy disposition of cases or the right to speedy trial • If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be invoked (laches) • The causes of the delays must be properly laid out and discussed by the relevant court

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

• Right to speedy disposition of cases or the right to speedy trial must be timely raised • The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods • Otherwise, they are deemed to have waived their right to speedy disposition of cases • "The State should not be prejudiced and deprived of its right to prosecute the criminal cases simply because of the ineptitude or nonchalance of the Office of the Ombudsman." (Jacob v. Sandiganbayan, 2010)

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

Institutional Delay • The reality is that institutional delay a reality that the court must address. The prosecution is staffed by overworked and underpaid gove1nment lawyers with mounting caseloads. The courts' dockets are congested. • This Court has already launched programs to remedy this situation, such as: • the Judicial Affidavit Rule, • Guidelines for Decongesting Holding Jails by Enforcing the Right of the Accused to Bail and to Speedy Trial, and the • Revised Guidelines for Continuous Trial.

• These programs, however, are mere stepping stones. The complete eradication of institutional delay requires these sustained actions.

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

• CAGUIOA, J. dissenting opinion • In Philippine Context • This "pre-accusation" period falls precisely within the scope of the right to speedy disposition protected by the Constitution, particularly, under Section 16, Article III. • The right to speedy disposition covers the periods "before, during, and after trial" (Bernas, 1974). • This protection covers not only preliminary investigation, but extends further, to cover the fact-finding process (People v. Sandiganbayan, 2013). • It even includes “fact-finding investigations conducted prior to the preliminary investigation proper” (Torres v. Sandiganbayan, 2016).

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42/July 31, 2018

• CAGUIOA, J. dissenting opinion • Considering that the Constitution, unlike its U.S. counterpart, imposes upon the State the positive duty to ensure the speedy disposition of all judicial, quasi-judicial or administrative proceedings, waiver of the right to speedy disposition should not be implied solely from the respondent's silence. • The duty to expedite proceedings under the Constitution does not pertain to the respondent, but to the State. To fault the respondent for the State's inability to comply with such positive duty on the basis of mere silence is, in my view, the height of injustice.

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

CAGUIOA, J. dissenting opinion On Institutional Delay • Even as the Court may recognize institutional delay as a reality, the result of such recognition should be a thrust towards structural and procedural changes. • The answer lies in reforming these institutions, but certainly not in sanctioning a violation of an individual's constitutionally guaranteed right to a speedy disposition of his case.

CESAR MATAS CAGANG V. SANDIGANBAYAN G.R. Nos. 206438 and 206458, 210141-42 July 31, 2018

JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC)

JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC) The Judicial Affidavit Rule is applicable to all criminal actions: •

where the maximum of the imposable penalty does not exceed six years;

•

where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or

•

with respect to the civil aspect of the actions, whatever the penalties involved are (Judicial Affidavit Rule, Section 9).

*Note that the Judicial Affidavit Rule is deemed modified by A.M. No.15-06-10-SC, or the “Revised Guidelines For Continuous Trial Of Criminal Cases,” which took effect on 1 September 2017.

JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC)

• The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pretrial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial (Judicial Affidavit Rule, Section 9).

JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC)

• If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify (Judicial Affidavit Rule, Section 9).

Facts: • Lara’s Gift and Decors Inc. was claiming fire insurance from PNB Insurers Co. However, PNB Insurers refused because the petitioner has not submitted the required documents and that they violated their fire insurance policy. As a result, Lara’s Gift Inc. filed a complaint for specific performance against PNB Insurers.

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• During the pre-trial conference, the RTC issued a Pre-Trail Order which states that: • "no evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier identified and pre-marked during the pretrial, except if allowed by the Court for good cause shown."

• “all the parties made a reservation for the presentation of additional documentary exhibits in the course of the trial”

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• Trial on the merits ensued. • During the cross examination a witness for Lara’s Gift Inc., petitioner furnished respondents with a copy of the 2nd Supplemental Judicial Affidavit • Respondents sought to strike from the records the said 2nd Supplemental Judicial Affidavit as it violated the Judicial Affidavit Rule, and the Guidelines on Pre-trial (A.M. No. 03-1-09-SC)

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• The JA Rule and the Guidelines on Pre-Trial do not totally proscribe the submission of additional evidence even after trial had already commenced • The parties are mandated under Sec. 2 of the JA Rule to file and serve the judicial affidavits of their witnesses, together with their documentary or object evidence, not later than five days before pre-trial or preliminary conference • The documentary and testimonial evidence submitted will then be specified by the trial judge in the Pre-Trial Order. Concomitant thereto, Sec. 10 of the same Rule contains a caveat that the failure to timely submit the affidavits and documentary evidence shall be deemed to be a waiver of their submission

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• Sec. 10 does not contain a blanket prohibition on the submission of additional evidence • However, the submission of evidence beyond the mandated period in the JA Rule is strictly subject to the conditions that: a) the court may allow the late submission of evidence only once; b) the party presenting the evidence proffers a valid reason for the delay; and c) the opposing party will not be prejudiced thereby

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• Corollary thereto, the Guidelines on Pre-Trial instructs the parties to submit their respective pre-trial briefs at least three (3) days before the pretrial, containing, inter alia, the documents or exhibits to be presented and to state the purposes thereof • I. A. 2. The parties shall submit, at least three (3) days before the pretrial, pre-trial briefs containing the following: • d. The documents or exhibits to be presented, stating the purpose thereof (No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier identified and pre-marked during the pretrial, except if allowed by the court for good cause shown)

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

• In this case, the reservation of the parties as stated in the Pre-Trial Order is tantamount to a waiver of the application of Secs. 2 and 10 of the JA Rule • Records do not disclose that the respondents endeavored to amend the Pre-Trial Order to withdraw their assent to their reservation. Consequently, they cannot now dispute the contents of the Pre-Trial Order.

LARA'S GIFT AND DECORS, INC. v. PNB GENERAL INSURERS CO. G.R. No. 230429 January 24, 2018

HEARSAY AS BASIS OF PROBABLE CAUSE Jinggoy Estrada v. Ombudsman (2015)

Facts: • In 2013, the Ombudsman filed a complaint for Plunder against Senator Jinggoy Estrada. • Senator Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings citing his right to examine evidence from the Rules (112 sec. 3(b)), and Ombudsman Rules (sec. 4(c), Rule II)

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

• The DOJ denied petitioner’s request • Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. • In the case at bar, the DOJ Panel adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

• While probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

• “The determination of probable cause does not depend on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented" (Unilever v. Tan, 2014) • The doctrine in the United States that the determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long as the person making the hearsay statement is credible.

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

Citing United States v. Ventresca: • While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the term ‘probable cause’ . . . means less than evidence which would justify condemnation,", and that a finding of "probable cause" may rest upon evidence which is not legally competent in a criminal trial. •

"There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them."

•

Thus, hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a substantial basis for crediting the hearsay."

•

"an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant," so long as the magistrate is "informed of some of the underlying circumstances" supporting the affiant’s conclusions and his belief that any informant involved "whose identity need not be disclosed . . ." was "credible" or his information "reliable."

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

• Probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. • Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. • However, in administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on hearsay evidence.

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

• Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. • To require the application of Ang Tibay, as amplified in GSIS (“substantial evidence” for administrative cases), in preliminary investigations will change the quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.

Jinggoy Estrada v. Ombudsman G.R. Nos. 212140-41, January 21, 2015

BAIL ENRILE V. SANDIGANBAYAN, 2015 LEVISTE V. CA, 2010

• Enrile was charged with plunder before the Sandiganbayan. He filed his Omnibus motion which included among others, an application to post bail. • When a warrant of arrest was issued against Enrile, he voluntarily surrendered to Director Magalong in Camp Crame and was later on confined at the PNP General Hospital. • He argued that he should be allowed to post bail because it was not yet established that the evidence of his guilt was strong, the penalty as to him would only be reclusion temporal due to mitigating circumstances, and that his age and physical condition does not make him a flight risk

ENRILE V. SANDIGANBAYAN, G.R. No. 213847 August 18, 2015

• Enrile’s poor health justifies his admission to bail • We first note that Enrile has averred in his Motion to Fix Bail the presence of two mitigating circumstances that should be appreciated in his favor, namely: that he was already over 70 years at the time of the alleged commission of the offense, and that he voluntarily surrendered.

ENRILE V. SANDIGANBAYAN, G.R. No. 213847 August 18, 2015

• In now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The Court is further mindful of the Philippines’ responsibility in the international community arising from the national commitment under the Universal Declaration of Human Rights: • To uphold the fundamental human rights as well as value the worth and dignity of every person. • These remedies include the right to be admitted to bail

ENRILE V. SANDIGANBAYAN, G.R. No. 213847 August 18, 2015

Accused was convicted of the lesser crime of homicide and sentenced to suffer an indeterminate penalty of more than six (6) years. He appealed his conviction to the Court of Appeals. Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part, which was denied by the Court of Appeals.

LEVISTE v. COURT OF APPEALS G.R. No. 189122, 17 March 2010

• In dismissing petitioner’s petition, the Supreme Court held that the discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court. The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the accused applying for bail is imprisonment exceeding six years. • The first scenario deals with the circumstances enumerated in the said paragraph not present. The second scenario contemplates the existence of at least one of the said circumstances.

LEVISTE v. COURT OF APPEALS G.R. No. 189122, 17 March 2010

In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bailnegating circumstances in the third paragraph of Section 5, Rule 114 are absent. On the

LEVISTE v. COURT OF APPEALS G.R. No. 189122, 17 March 2010

other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Thus, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach.

LEVISTE v. COURT OF APPEALS G.R. No. 189122, 17 March 2010

BILL OF PARTICULARS Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015 Brion, J.

• The Ombudsman filed an Information for Plunder against Senator Enrile, his chief of staff Gigi Reyes and others • A day before the scheduled araignment, Enrile filed a petition for bill of particulars as “the details cannot be found in the bundle of evidence by the prosecution” • The Sandiganbayan denied Enrile’s petition claiming that the details he desires are evidentiary in nature and are best ventilated during trial

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

Ultimate Facts

Evidentiary Facts

Essential and substantial facts which form basis of primary right and duty which directly make up the wrongful acts or omissions

Establishes or proves the ultimate facts. They support the existence of other alleged facts

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

• BILL OF PARTICULARS • It is the further specification of charges or claims in an action • It is filed before arraignment for the accused to properly prepare for trial and respond • It is before arraignment because once arraigned, the accused is presumed to understand the charge against him

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

• Purpose of Bill of Particulars 1. For the accused to know he theory of the government’s case 2. To prepare his defense and avoid surprise at the trial 3. A bar to another prosecution in case of acquittal or conviction 4. To compel the prosecution to observe certain limitations in offering evidence

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

Motion to Quash

Jurisdictional defect Proper remedy when there is no offense

Motion for Bill of Particulars Presupposes a valid information Proper remedy when there is a supposed ambiguity in an otherwise valid information

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

• In this case, the Court ordered the prosecution to describe the following with particularity: “Series”, “combination of acts”

Offense could not be plunder if there is only a single act

“From 2004-2010”

Accused should not be left guessing which transactions involving his PDAF are being mentioned

“NGOs of Napoles”

Identify which NGO received the funds

“Government Agencies”

As indispensable parties in the scheme, they should be properly identified

Juan Ponce Enrile v. People G.R. No. 213455, August 11, 2015

DEMURRER TO EVIDENCE Gloria Macapagal Arroyo v. People, April 18, 2017

Facts: • Arroyo was charged with plunder before the Sandiganbayan. Before judgment, petitioner filed a motion for leave of court to file a demurrer to evidence • However, the court denied her motion • She files this petition for certiorari – alleging that there was grave abuse of discretion in Sandiganbayan’s denial of her motion

Gloria Macapagal Arroyo v. People, April 18, 2017

• The State on the other hand, claims that a denial of motion for leave of court to file a demurrer to evidence shall not be reviewable by appeal or by certiorari before judgment (citing Rule 119, sec. 23) • The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because of the availability of another remedy in the ordinary course of law (as stated in Section 23, Rule 119). The proper recourse was to go to trial and in case of conviction, may then appeal the conviction.

Gloria Macapagal Arroyo v. People, April 18, 2017

• it is doctrinal that the situations in which the writ of certiorari may issue should not be limited, because to do so x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the com1 that authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus. • In the exercise of our superintending control over other courts, we are to be guided by all the circumstances of each particular case 'as the ends of justice may require.' So it is that the writ will be granted where necessary to prevent a substantial wrong or to do substantial justice.

Gloria Macapagal Arroyo v. People, April 18, 2017

• Notwithstanding the interlocutory character and effect of the denial of the demurrers to evidence, the petitioners as the accused could avail themselves of the remedy of certiorari when the denial was tainted with grave abuse of discretion. • The Sandiganbayan and the trial court was guilty of grave abuse of discretion when it capriciously denied the demurrers to evidence despite the absence of competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of the factual bases to expect a guilty verdict

Gloria Macapagal Arroyo v. People, April 18, 2017

REPUBLIC ACT NO. 10951 AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY AND DAMAGE ON WHICH A PENALTY IS BASED AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE AMENDING FOR THE PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS “THE REVISED PENAL CODE,” AS AMENDED

•

Light felonies as defined under Article 9 of the Revised Penal Code (RPC) are: (a) infractions of law or the commission of which the penalty of arresto menor; or (b) fine not exceeding Forty thousand pesos (₱40,000) or both is provided.

•

Schedule of penalties under Article 26 of the RPC was revised as follows:

Penalty

Under old RPC

Under R.A. No. 10951

Afflictive

If it exceeds Php6,000.00

If it exceeds Php1,200,000.00

Correctional

Php200.00 to Php6,000.00

Php40,000.00 to Php1,200,000.00

Light

Less than Php200.00

Less than Php40,000.00

Pertinent amendments to the Revised Penal Code

• PENALTIES FOR ROBBERY UNDER ARTICLES 299 AND 302 OF THE RPC Article

Felony

Under old RPC

Under R.A. No. 10951

299

Robbery in an inhabited house or public building or edifice devoted to worship.

Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed Php250.00 x x x

Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed Php50,000.00 x x x

Article

Felony

Under old RPC

Under R.A. No. 10951

299

Robbery in an inhabited house or public building or edifice devoted to worship.

When the offenders do not carry arms, and the value of the property taken exceeds Php250.00, the penalty next lower in degree shall be imposed.

When the offenders do not carry arms, and the value of the property taken exceeds Php50,000.00, the penalty next lower in degree shall be imposed.

The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed Php250.00. When said offenders do not carry arms and the value of the property taken does not exceed Php250.00, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period.

The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed Php50,000.00. When said offenders do not carry arms and the value of the property taken does not exceed Php50,000.00, they shall suffer the penalty prescribed in the two (2) next preceding paragraphs, in its minimum period.

Article 302

Felony

Under old RPC

Under R.A. No. 10951

Robbery in an uninhabited place or in a private building.

Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of Article 299, if the value of the property taken exceeds 250 pesos, shall be punished by prision correccional if any of the following circumstances is present x x x

Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of Article 299, if the value of the property taken exceeds Php50,000.00 shall be punished by prisión correccional in its medium and maximum periods x x x

When the value of the property takes does not exceed Php250.00, the penalty next lower in degree shall be imposed.

When the value of the property taken does not exceed Php50,000.00, the penalty next lower in degree shall be imposed.

• PENALTIES FOR THEFT UNDER ARTICLE 309 OF THE RPC Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Prision mayor in its More than Php12,000.00 but More than Php1,200,000.00 minimum and medium does not exceed but does not exceed periods Php22,000.00 Php2,200,000.00

If the value of the thing stolen exceeds Php22,000.00 amount the penalty shall be the maximum period of prision mayor, and one year for each additional Php10,000.00, but the total of the penalty which may be imposed shall not exceed 20 years.

If the value of the thing stolen exceeds Php2,200,000.00, the penalty shall be the maximum period of prision mayor, and one (1) year for each additional Php1,000,000.00, but the total of the penalty which may be imposed shall not exceed 20 years

Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Prision correccional in its More than Php6,000.00 but More than Php600,000.00 medium and maximum does not exceed but does not exceed periods Php12,000.00. Php1,200,00.00 Prision correccional in its More than Php200.00 but More than Php20,000.00 but minimum and medium does not exceed does not exceed periods Php6,000.00. Php600,000.00 Arresto mayor in its Over Php50.00 but does not over Php5,000.00 but does medium period to prision exceed Php200.00. not exceed Php20,000.00 correccional in its minimum period Arresto mayor to its full Over Php5.00 but does not Over Php500.00 but does extent exceed Php50.00 not exceed Php5,000.00 Arresto mayor in its Does not exceed Php5.00 minimum and medium periods

Does not exceed Php500.00

PENALTIES FOR THEFT UNDER ARTICLE 309 OF THE RPC

Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Arresto menor or a fine not If the theft is committed under exceeding 200 pesos the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed Php5.00. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. Arresto menor or a fine not exceeding Php20,000.00

If the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed Php500.00. If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable.

PENALTIES FOR THEFT UNDER ARTICLE 309 OF THE RPC

Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Arresto menor in its When the value of the thing minimum period or a fine stolen is not over Php5.00, not exceeding Php50.00 and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

Arresto menor in its minimum period or a fine of not exceeding Php5,000.00

When the value of the thing stolen is not over Php500.00, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

PENALTIES FOR THEFT UNDER ARTICLE 309 OF THE RPC

Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Prisión correccional in its medium and maximum periods

does not exceed Php200.00

does not Php40,000.00

Prisión mayor in its minimum and medium periods

more than Php200.00 but does not exceed Php6,000.00.

more than Php40,000.00 but does not exceed Php1,200,000.00

Prision mayor in its maximum period to reclusion temporal in its minimum period

more than Php6,000.00 but is less than Php12,000.00

more than Php1,200,000.00 but does not exceed Php2,400,000.00

PENALTIES FOR MALVERSATION UNDER ARTICLE 217 OF THE RPC

exceed

Penalty

Value of Property under Old RPC

Value of Property under R.A. No. 10951

Reclusion temporal in its medium and maximum periods

more than Php12,000.00 but is less than Php20,000.00

more than Php2,400,000.00 but does not exceed Php4,400,000.00

Reclusion temporal in its maximum period

Reclusion perpetua

more than Php4,400,000.00 but does not exceed Eight million Php8,800,000.00. exceeds Php20,000.00

exceeds Php8,800,000.00

PENALTIES FOR MALVERSATION UNDER ARTICLE 217 OF THE RPC

Penalty

Amount of the Fraud under Old RPC

Amount of the Fraud under R.A. No. 10951

Prision correccional in its maximum period to prision mayor in its minimum period

Over Php12,000.00 but does not exceed Php22,000.00

over Php2,400,000.00 but does not exceed Four million Php4,400,000.00

If such amount exceeds Php22,000.00, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed 20 years.

If such amount exceeds Php4,400,000.00, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional Php2,000,000.00; but the total penalty which may be imposed shall not exceed 20 years.

PENALTIES FOR ESTAFA UNDER ARTICLE 315 OF THE RPC

Penalty

Amount of the Fraud under Old RPC

Amount of the Fraud under R.A. No. 10951

Prision correccional in its minimum and medium periods

Over Php6,000.00 but does not exceed Php12,000.00

Over Php1,200,000.00 but does not exceed Php2,400,000.00

Arresto mayor in maximum period prision correccional its minimum period Arresto mayor in maximum period

its to in

Over Php200.00 but does not exceed Php6,000.00

Over Php40,000.00 but does not exceed Php1,200,000.00

its

Does not Php200.00

Does not Php40,000.00

exceed

PENALTIES FOR ESTAFA UNDER ARTICLE 315 OF THE RPC

exceed

The penalties and/or fines for the following crimes have been amended by R.A. No. 10951: • • • • • • • • • •

Treason (Art. 114); Conspiracy and proposal to commit treason (Art. 115); Search warrants maliciously obtained and abuse in the service of those legally obtained (Art. 129); Conspiracy and proposal to commit coup d’etat, rebellion or insurrection (Art. 136); Sedition (Art. 140); Conspiracy to commit sedition (Art. 141); Inciting to sedition (Art. 142) Acts tending to prevent the meeting of Congress and similar bodies (Art. 143); Disturbance of proceedings (Art. 144); Illegal associations (Art. 147);

Felonies with revised penalties under R.A. No. 10951

• • • • • • • • • • • • • •

Direct assaults (Art. 148); Indirect assaults (Art. 149); Disobedience to summons issued by Congress, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions (Art. 150); Resistance and disobedience to a person in authority or the agents of such person (Art. 151); Tumults and other disturbances of public order; tumultuous disturbance or interruption liable to cause disturbance (Art. 153); Unlawful use of means of publication and unlawful detainer (Art 154); Alarms and scandals (Art. 155); Making and importing and uttering false coins (Art. 163); Mutilation of coins; importation and utterance of mutilated coins (art. 164); Forging treasury or bank notes or other documents payable to bearer; importing and uttering such false or forged notes and documents (Art. 166); Counterfeiting, importing and uttering instruments not payable to bearer (Art. 167); Falsification of legislative documents (Art. 170); Falsification by public officer or employee or notary or ecclesiastic minister (Art.171); Falsification by private individual and use of falsified documents (Art. 172);

Felonies with revised penalties under R.A. No. 10951

• • • • • • • • • • • • • • • •

False medical certificates, false certificates of merits or service, etc. (Art. 174); Manufacturing and possession of instruments or implements for falsification (Art. 176); Using fictitious name and concealing true name (Art. 178); False testimony against a defendant (Art. 180); False testimony favorable to the defendant (Art. 181); False testimony in civil cases (Art. 182); Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys (Art. 187); Immoral doctrines, obscene publications and exhibitions and indecent shows (Art. 201); Prostitutes (Art. 202); Betrayal of trust by an attorney or solicitor (Art. 209); Frauds against the public treasury (Art. 213); Prohibited transactions (Art. 215); Possession of prohibited interest by a public officer (Art. 216); Malversation of public funds or property (Art. 217); Failure of accountable officer to render accounts (Art. 218); Failure of a responsible public officer to render accounts before leaving the country (Art. 219);

Felonies with revised penalties under R.A. No. 10951

• • • • • • • • • • • • • • • •

Failure to make delivery of public funds or property (Art. 221); Removal, concealment, or destruction of documents (Art. 226); Officer breaking seal (Art. 227); Opening of closed documents (Art. 228); Revelation of secrets by an officer (Art. 229); Public officer revealing secrets of private individuals (Art. 230); Open disobedience (Art. 231); Refusal of assistance (Art. 233); Refusal to discharge elective office (Art. 234); Maltreatment of prisoners (Art. 235); Anticipation of duties of a public office (Art. 236); Prolonging performance of duties and powers (Art. 237); Usurpation of legislative powers (Art. 239); Disobeying request for disqualification (Art. 242); Orders or requests by executive officers to any judicial authority (Art. 243); Unlawful appointments (Art. 244);

Felonies with revised penalties under R.A. No. 10951

• • • • • • • • • • • • • • • • •

Abortion practiced by a physician (Art. 259); Less serious physical injuries (Art. 265); Slight physical injuries and maltreatment (Art. 266); Slight illegal detention (Art. 268); Unlawful arrest (Art. 269); Inducing a minor to abandon his home (Art. 271); Abandoning a minor (Art. 276); Abandonment of minor by person entrusted with his custody: indifference of parents (Art. 277); Exploitation of minors (Art. 278); Qualified trespass to dwelling (Art. 280); Other forms of trespass (Art. 281); Grave threats (Art. 282); Other light threats (Art. 285); Grave coercions (Art. 286); Light coercions (Art. 287); Other similar coercions (Art. 288); Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Art. 289);

Felonies with revised penalties under R.A. No. 10951

• • • •

• • • • • • •

Discovering secrets through seizure of correspondence (Art. 290); Revealing secrets with abuse of office (Art. 291); Revelation of industrial secrets (Art. 292); Robbery in an inhabited house or public building or edifice devoted to worship (Art. 299); Robbery in an uninhabited place or in a private building (Art. 302); Theft (Art. 309); Theft of the property of the National Library and National Museum (Art. 311); Occupation of real property or usurpation of real rights in property (Art. 312); Altering boundaries or landmarks (Art. 313); Swindling (Art. 315); Other deceits (Art. 318);

Felonies with revised penalties under R.A. No. 10951

• • • • • • • • • • •

Special cases of malicious mischief (Art. 328); Other mischiefs (Art. 329); Destroying or damaging statues (Art. 331); Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (Art. 347); Libel by means of writing or similar means (Art. 355); Threatening to public and offer to prevent such publication for a compensation (Art. 356); Prohibited publication of acts referred to in the course of official proceedings (Art. 357); Slander (Art. 358); Slander by deed (Art. 359); Intriguing against honor (Art. 364); and Imprudence and negligence (Art. 365).

Felonies with revised penalties under R.A. No. 10951

• On a final note, judges, public prosecutors, public attorneys, private counsels, and such other officers of the law are hereby advised to similarly apply the provisions of RA No. 10951 whenever it is, by reason of justice and equity, called for by the facts of each case. Hence, said recent legislation shall find application in cases where the imposable penalties of the affected crimes such as theft, qualified theft, estafa, robbery with force upon things, malicious mischief, malversation, and such other crimes, the penalty of which is dependent upon the value of the object in consideration thereof, have been reduced, as in the case at hand, taking into consideration the presence of existing circumstances attending its commission.

OPHELIA HERNAN v. SANDIGANBAYAN G.R. No. 217874 December 5, 2017

• For as long as it is favorable to the accused, said recent legislation shall find application regardless of whether its effectivity comes after the time when the judgment of conviction is rendered and even if service of sentence has already begun. The accused, in these applicable instances, shall be entitled to the benefits of the new law warranting him to serve a lesser sentence, or to his release, if he has already begun serving his previous sentence, and said service already accomplishes the term of the modified sentence. In the latter case, moreover, the Court, in the interest of justice and expediency, further directs the appropriate filing of an action before the Court that seeks the reopening of the case rather than an original petition filed for a similar purpose.

OPHELIA HERNAN v. SANDIGANBAYAN G.R. No. 217874 December 5, 2017