Ateneo 2007 Criminal Procedure

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

CRIMINAL PROCEDURE

PRELIMINARY MATTERS CRIMINAL PROCEDURE It is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in case of conviction (Remedial Law IV, Herrera). It is concerned with the procedural steps through which a criminal case passes, commencing with the initial investigation of a crime and concluding with the release of the offender.

JURISDICTION OVER THE SUBJECT MATTER Conferred by law. It cannot be acquired by the consent of the accused.

JURISDICTION OVER THE PERSON OF THE ACCUSED May be acquired by consent of the accused or by waiver of objections.

Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding and the right to make such objection is never waived.

If the accused fails to make his objection in time, he will be deemed to have waived it.

JURISDICTION CRIMINAL JURISDICTION It is the authority to hear and try a particular offense and impose the punishment for it (People v. Marinao, 71 SCRA 600, 604). REQUISITES FOR VALID EXERCISE OF CRIMINAL JURISDICTION: 1. Jurisdiction over the subject matter – is the power to hear and determine cases of the general class to which the proceedings in question belong (Reyes v. Diaz, 73 Phil 484); by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of; conferred by law. 2. Jurisdiction over the territory where the offense was committed – the offense must have been committed within the territorial jurisdiction of the court; jurisdiction over the territory; cannot be waived 3. Jurisdiction over the person of the accused QuickTime™ and a – the person charged with the offense must TIFF (Uncompressed) decompressor are needed to see this picture. have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. The question of jurisdiction may be raised at any stage of the proceedings. The exception to this rule is when there is estoppel and laches on the party who raised the question of jurisdiction.

What determines jurisdiction Jurisdiction is determined by the extent of the penalty which the law imposes, on the basis of the facts as recited in the complaint or information constitutive of the offense charged Jurisdiction is not determined by: • what may be meted out to the offender after trial • the result of the evidence that would be presented during the trial Jurisdiction is retained regardless of: • whether the evidence proves a lesser offense than that charged in the information, • the subsequent happening of events, although of a character which would have prevented jurisdiction from attaching in the first instance. GENERAL RULE: Jurisdiction of a court to try criminal action is to be determined by the law at the time of the institution of the action. EXCEPTION: Where the statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case, the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal which will continue the proceeding.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

ONCE VESTED, JURISDICTION CANNOT BE WITHDRAWN BY: 1. Subsequent valid amendment of the Information; or 2. Subsequent statutory amendment of the rules of jurisdiction, unless the amendatory law provides otherwise. Venue is jurisdictional Thus: Action must be instituted and tried in the municipality or territory where the offense has been committed or where any one of the essential ingredients thereof took place. GENERAL RULE: The question of jurisdiction may be raised at any stage of the proceedings. EXCEPTION: It may not be raised for the first time on appeal, where there has been estoppel and laches on the party who raises the question. Criminal jurisdiction of MTCs GENERAL RULE: MTC has jurisdiction over all offenses, the maximum penalty of which as provided by law does not exceed 6 years (prision correccional). EXCEPTION: In cases where the only penalty provided by law is a fine, the amount whereof shall determine the jurisdiction of the court: • MetroTC, MTC, and MCTC: if fine is not more than 4000 pesos. • RTC: if fine exceeds 4000 pesos, including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed 6000 pesos. (SC Court Circular No. 09-94). Accessory penalties and civil liabilities: no longer determinative of jurisdiction. QuickTime™ and a decompressor No jurisdiction:TIFFare(Uncompressed) overto see those which by needed this picture.cases provision of special law are made triable by the RTC or the Sandiganbayan even if the maximum penalty prescribed by such special law is less than 6 years. Included in such exceptions are election offenses, libel or written defamation, and violation of Sec. 39 of the Dangerous Drugs Act of 1972 (RA 6425).

Criminal Jurisdiction of the Sandiganbayan

Offenses or felonies, whether simple or complexed with other crimes committed by the public officials and their employees mentioned in Subsection (a) of this section in relation to their office. If the last element, namely, “in relation to his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the SB. The offense is committed in relation to the office if the offense is intimately connected with the office of the offender and perpetuated while he was in the performance of his official functions, or when the crime cannot exist without the office, or the office is a constituent element of the crime as defined in the statute. Election Offenses Fall outside the jurisdiction of SB even if they are committed by public officers classified as Grade 27 and higher and in relation to their offices. It is the RTC that has jurisdiction as provided for in the Omnibus Election Code. Court Martial Cases Offenses committed by members of the Armed Forces and other persons subject to military law are cognizable by court martial if such offenses are “service connected” as expressly enumerated in RA 7055. If the particular offense is not one of those enumerated in the law, the case falls under either the regular courts or the SB, as the case may be. Jurisdiction of Family Courts Republic Act No. 8369 establishing the Family Court granting them exclusive original jurisdiction over child and family cases, namely: Criminal cases where one or more of the accused is below 18 years of age but not less than 9 years of age or where one or more of the victim is a minor at the time of the commission of the offense, provided that if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence shall be suspended without need of an application pursuant to the “Child and Youth Welfare Code or P.D. 603). Jurisdiction over Complex Crimes Jurisdiction is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

Jurisdiction over Crimes Punishable by Destierro Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the Municipal Trial Court, considering that in the hierarchy of penalties under Article 71 of the Revised Penal Code, destierro follows arresto mayor which involves imprisonment (People v. Eduarte, 182 SCRA). Principle of Adherence of Jurisdiction Once jurisdiction is vested in the court, it is retained up to the end of litigation (Dela Cruz v. Moya, 160 SCRA 838).

RULE 110 PROSECUTION OF OFFENSES CRIMINAL ACTION It is an action by which the State prosecutes a person for an act or omission punishable by law. Section 1. Institution of Criminal Actions For offenses which require preliminary investigation: By filing the complaint with the proper officer for preliminary investigation. • Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110. • Preliminary investigation is required for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day of imprisonment without regard to the fine (Rule 112, Sec. 1, Par. 2). For all other offenses, or for offenses which are penalized by law with lower than at least 4 years, 2 months and 1 day without regard to the fine: Instituted directly with the MTC and MCTC, or the complaint is filed with the Office of the Prosecutor. In Manila and other chartered cities, the complaint QuickTime™ and a (Uncompressed) decompressor shall be filed withTIFF the Office are needed to seeof thisthe picture.Prosecutor unless otherwise provided in their charters. NOTE: A complaint for offenses cognizable by the RTC is NOT filed directly with the RTC either for purposes of preliminary investigation or for commencement of the criminal prosecution. DOES NOT APPLY: To offenses subject to summary procedure

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Effect of institution of the Criminal Action: The institution of the criminal action interrupts the running of the period of prescription of the offense charged UNLESS: otherwise provided in special laws. Act No. 3323 governs the prescriptive periods of violations of special laws, or offenses other than those penalized under the Revised Penal Code. NOTE: With respect to offenses penalized by special laws, the filing of the complaint or information in court is the one that interrupts the prescriptive period and not the filing of the complaint in the proper office for purposes of conducting a preliminary investigation (Zaldivar v. Reyes, 211 SCRA 277). The filing of a complaint for purposes of preliminary investigation starts the prosecution process. REQUISITES OF A COMPLAINT OR INFORMATION 1. in writing 2. in the name of the People of the Philippines 3. Against all persons who appear to be responsible for the offense involved. Who is the real offended party? The People of the Philippines, but since the crime is also an outrage against the offended party, he is entitled to intervene in its prosecution in cases where the civil action is impliedly instituted therein. Section 2. The complaint or information FORM: 1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons who appear to be responsible for the offense involved. Section 3. Complaint defined COMPLAINT It 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. The complaint as defined under Section 3 is different from the complaint filed with the Prosecutor’s Office. It refers to the one filed in court for the Page 172 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 commencement of a criminal prosecution for violation of a crime usually cognizable by municipal trial courts as well as to a complaint filed by an offended party in private crimes or those which cannot be prosecuted de officio. REQUISITES OF A COMPLAINT: 1. It must be in writing and under oath; 2. It must be in the name of the People of the Philippines; 3. It must charge a person with an offense; and 4. It must be subscribed by the offended party, by any peace officer or public officer charged with the enforcement of the law violated. The COMPLAINT FILED WITH THE PROSECUTOR’S OFFICE, from which the latter may initiate a preliminary investigation, refers to: 1. any written complaint 2. filed by an offended party or not 3. not necessarily under oath, except in 2 instances: • complaint for commission of an offense which cannot be prosecuted de officio or is private in nature • where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers. Under the Rule on Summary Procedure: A complaint may be directly filed in the MTC, provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of information, which means, only by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes. PERSONS WHO CAN FILE A COMPLAINT: 1. Offended party; 2. Any peace officer; 3. Other public officer charged with enforcement of the law violated.

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INFORMATION It is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. REQUISITES OF AN INFORMATION: 1. It must be in writing; 2. It must charge a person with an offense; 3. It must be subscribed by the prosecutor; and

4. It must be filed in court. PERSONS AUTHORIZED TO FILE INFORMATION 1. City or provincial prosecutor and their assistants 2. Duly appointed special prosecutors.

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Information and Complaint distinguished COMPLAINT INFORMATION Subscribed by the Subscribed by the offended party, any prosecutor. It does not peace officer or other have to be subscribed by officer charged with the the offended party or any enforcement of the law peace officer or other violated. peace officer charged with the enforcement of the law. Filed either in the MTC or Filed in court. with the provincial/city prosecutor’s office NOTE: PROSECUTION IN THE RTC IS ALWAYS COMMENCED BY INFORMATION, EXCEPT: 1. In certain crimes against chastity (concubinage, adultery, seduction, abduction, acts of lasciviousness) ; and 2. Defamations imputing any of the aforesaid offenses wherein a sworn written complaint is required in accordance with Section 5 of this Rule. In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls (People v. Oso, 62 Phil 271). People v. Santiago G.R. No. 137281 (2001) A defectively crafted information, such as that alleging multiple offenses in a single complaint or information transgresses Rule 110, § 13. A. However, failure to make a timely objection to such a defect is deemed to be a waiver of the said objection. Section 5. Who Must Prosecute Criminal Actions Full Discretion and Control of the Prosecutor All criminal actions commenced by complaint of information shall be prosecuted under the direction and control of the prosecutor. The institution of a criminal action depends upon the sound discretion of the prosecutor. But once the case is already filed in court, the same can no longer be withdrawn or dismissed without the tribunal’s Page 173 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 approval. Should the prosecutor find it proper to conduct a reinvestigation of the case at such stage, the permission of the Court must be secured (Crespo v. Mogul). May a criminal prosecution be restrained by injunction? GENERAL RULE: No REASON: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. EXCEPTIONS WHERE CRIMINAL PROSECUTION MAY BE RESTRAINED BY INJUNCTION 1. where injunction is justified by the necessity to afford protection to the constitutional rights of the accused 2. when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions 3. when there is a prejudicial question which is sub judice 4. when the acts of the officer are without or in excess of authority 5. where the prosecution is under an invalid law, ordinance or regulation 6. when double jeopardy is clearly apparent 7. where the court has no jurisdiction over the offense 8. where it is a case of persecution rather than prosecution 9. where the charges are manifestly false and motivated by the lust for vengeance 10.when there is clearly no prima facie case against the accused and the motion to quash on that ground has been denied 11.preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners. Prior to the filing of the information in court, the prosecutor has full control of the case. He decides who should be charged in court and who should be excluded from the information. QuickTime™ and a

TIFF (Uncompressed) decompressor SUBJECT TO DECISION OF THE PROSECUTOR are needed to see this picture. REVIEW BY: • the Secretary of Justice who exercises supervision and control over his actions and who may sustain, modify or set aside his resolution on the matter • in appropriate cases, by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction.

Private Prosecutor Participation: May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action. Public Prosecutor must be present during the proceedings and must take over the conduct of the trial from the private prosecutor at any time the cause of the prosecution may be adversely affected. Thus, where the prosecutor has turned over the active conduct of the trial to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered valid evidence of the People. However: this rule applies only to courts which are provided by law with prosecutors, and not to municipal courts which have no trial prosecutors, in which case the evidence presented by the private prosecutor can be considered as evidence for the People. GENERAL RULE: In appeals, the Sol. Gen. has control. He may abandon or discontinue the prosecution of the case in the exercise of his sound discretion and may even recommend the acquittal of an accused when he believes that the evidence does not warrant his conviction. EXCEPTION: provided for in RA 8249 which states in part that “in all cases elevated to the Sandiganbayan and from the SB to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issued in 1986.” When it is said that the requirement of Art. 344 of RPC is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case. People v. Yparraguire, G. R. No. 124391 (2000) Even when a complaint is defective for being signed and filed by the chief of police and not by the complainant, the court may still acquire jurisdiction over the case. The complaint required in Art. 344 of the RPC is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. The complaint simply starts the Page 174 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 prosecutory proceeding but does not confer jurisdiction in the court to try the case. Art. 344 is not determinative of the jurisdiction of courts over private offenses because the same is governed by the Judiciary Law and not the RPC. Once the complaint is filed, does death of the complainant in a crime of adultery extinguish the criminal liability of the accused? No. The participation of the offended party in private crimes is essential not for the maintenance of the criminal action but solely for the initiation thereof. Any pardon given by the complainant or her death after the filing of the complaint would not deprive the court of the jurisdiction to try the case. REMEDIES OF THE OFFENDED PARTY IF THE PROSECUTOR REFUSES TO FILE AN INFORMATION: 1. File an action for mandamus, in case of grave abuse of discretion 2. Lodge a new complaint before; the court having jurisdiction over the offense; 3. Take up the matter with the Secretary of Justice in accordance with the Administrative Code; 4. Institute administrative charges against erring prosecutor; and 5. File criminal action against the prosecutor with the corresponding civil action for damages.

3. A defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecuted only by the party or parties defamed (Article 360, last paragraph, Revised Penal Code). NOTE: If the offended party is of legal age and does not suffer from physical or mental disability, she alone can file the complaint to the exclusion of all. Who can give pardon? 1. Concubinage and adultery – only the offended spouse not otherwise incapacitated, can validly extend the pardon or consent contemplated therein. 2. Seduction, abduction and acts of lasciviousness a. the offended minor, if with sufficient discretion can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead b. the parents, grandparents or guardian of the offended minor, in that order, cannot extend a valid pardon in said crimes without the conformity of the offended party, even if the latter is a minor; c. if the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.

PROSECUTION OF PRIVATE CRIMES Who may prosecute? 1. Concubinage and adultery – only by the offended spouse who should have the status, capacity and legal representation at the time of filing of the complaint regardless of age; Both guilty parties must be included in the complaint; The offended party did not consent to the offense nor pardoned the offenders. 2. Seduction, Abduction and Acts of Lasciviousness – prosecuted exclusively and successively by the following persons in this order: a. By the offended woman; QuickTime™ and a (Uncompressed) decompressor b. By the TIFFparents, or legal/ are needed to seegrandparents this picture. judicial guardians in that successive order, if the offended party is a minor or of age but suffers from physical or mental disability; c. By the State pursuant to the doctrine of parens patriae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardians.

The pardon refers to pardon BEFORE filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense EXCEPT in case of marriage between the offender and the offended party. Pardon and Consent PARDON Refers to past acts of adultery. In order to absolve the accused from liability must be extended to both offenders.

CONSENT Refers to future acts

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse.

The SUBSEQUENT MARRIAGE between the party and the accused extinguishes the criminal liability of the latter, together with that of the co-principals, accomplices and accessories, Except: a. Where the marriage was invalid or contracted in bad faith in order to escape criminal liability. Page 175 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. In “private libel” or the libelous imputation of the commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and in slander by deed; c. In multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned. NOTE: The acquittal or death of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People v. Topiño, 35 Phil 901). However, the death of the offended spouse before the filing of the complaint for adultery bars further prosecution, BUT if the offended spouse died after the filing of the corresponding complaint, his death will not prevent the proceeding from continuing to its ultimate conclusion. Effect of Desistance of Complainant It does not bar the People from prosecuting the criminal action. BUT: it does operate as a waiver of the right to pursue civil indemnity.

NOTE: Substantial defect in the information cannot be cured by evidence that would jeopardize the accused’s right to be informed of the true nature of the offense he is charged with. Section 7. Name of the accused NAME OF THE ACCUSED 1. If name is known: the name and surname of the accused or any appellation or nickname by which he has been or is known. 2. If name cannot be ascertained: a fictitious name with a statement that his true name is unknown. • If true name thereafter disclosed: such true name shall be inserted in the complaint or information and record. 3. While one or more persons, along with specified and named accused, may be sued as “John Does,” an information against all accused described as “John Does” is void, and an arrest warrant against them is also void.

An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, in proper cases, even without the imprimatur of the State. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant (Perez v. Hagonoy Rural Bank, Inc. 327 SCRA 588).

NOTE: An error in the name of the accused is not reversible as long as his identity is sufficiently established. This defect is curable at any stage of the proceedings as insertion of the real name of the accused is merely a matter of form (People v. Padica, 221 SCRA 362).

Section 6. Sufficiency of complaint or information

Section 8. Designation of the offense

A COMPLAINT IS SUFFICIENT IF IT STATES: 1. the name of the accused 2. the designation of the offense by a statute 3. the acts or omission complained of as constituting the offense 4. the name of the offended party 5. the approximate time of the commission of the offense 6. the place where the offense was committed.

THE INFORMATION OR COMPLAINT MUST STATE OR DESIGNATE THE FOLLOWING WHENEVER POSSIBLE: 1. The designation of the offense given by the statute. If there is no designation of the offense, reference shall be made to the section of the statute punishing it. 2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words. 3. The specific qualifying and aggravating circumstances must be stated in ordinary and concise language.

People v. Dela Cruz, G.R. No. and 137967 (2001) QuickTime™ a TIFF (Uncompressed) decompressor The non-inclusion of tosome of the names of the are needed see this picture. eyewitnesses in the information does not preclude the prosecutor from presenting them during trial. PURPOSE: to safeguard the constitutional right of an accused to be informed of the nature and cause of the accusation against him so that he can duly prepare his defense.

The qualifying and aggravating circumstances cannot be appreciated even if proved unless alleged in the information (People v. Perreras, 362 SCRA 202). In case of allegation of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generally averred. The information must specify: Page 176 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. the commission of the crimes; b. the last conviction or release; c. the other previous conviction or release of the accused. In rape cases, the concurrence of the minority of the victim and her relationship with the offender is a special qualifying circumstance which should be both alleged (People v. Cantos, 305 SCRA 786) and proved (People v. Manggasin) with certainty in order to warrant the imposition of the [maximum] penalty. DESIGNATION OF THE OFFENSE 1. In case of a conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former. 2. The real question is not, did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime. It is not the designation of the offense in the complaint or information that is controlling (People v. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People v. Magdowa, 73 Phil 512). The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat v. Court of Appeals, 265 SCRA 701). An accused could not be convicted under one act when he is charged with a violation of another if the change from one statue to the other involves: a. a change in the theory of the trial; b. requires of the defendant a different defense; or c. surprise the accused in any way. (U.S. v. Panlilio, 28 Phil 603). QuickTime™ and a

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If one or more elements of the offense have not been alleged in the information, the accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial. Even the accused’s entering a plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged.

IMPORTANT: The new rule requires that the qualifying and aggravating circumstances be alleged in the information. PURPOSE: 1. To enable the court to pronounce a proper judgment; 2. To furnish the accused with such a description of the charge as to enable him to make a defense; 3. As a protection against further prosecution for the same cause. ( U.S. v. Karelsen). RULE ON NEGATIVE AVERMENTS: 1. Where the law alleged to have been violated: • prohibits generally acts therein defined • is intended to apply to all persons indiscriminately, • but prescribes certain limitations or exceptions from its violation the information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. 2. Where the law alleged to have been violated… • applies only to specific classes of persons and special conditions • the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, the information must show that the accused does not fall within the exemptions. NOTE: When an exception or negative allegation is not an ingredient of the offense and is a matter of defense, it need not be alleged (U.S. v. Chan Toco, 12 Phil 262). COMPLEX CRIMES Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can be convicted of the offense proven. Section 10. Place of commission of the offense GENERAL RULE: A complaint or information is sufficient if it appears from the allegation that the offense was committed or some of its essential ingredients occurred at some place, within the territorial jurisdiction of the court. Page 177 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 EXCEPTION: When the place of commission is an essential element of the offense, the place of commission must be alleged with particularity e.g. trespass to dwelling, destructive arson, robbery in an inhabited house.

should be alleged in the information and proved at the trial. The New Rules of Criminal Procedure which took effect on Dec. 1, 2000, now specifically require that both qualifying and aggravating circumstances to be alleged in the information. Section 12. Name of the offended party

PURPOSE: To show territorial jurisdiction of the court. May conviction be had even if it appears that the crime was committed not at the place alleged in the information? Yes, provided the place of actual commission was within the jurisdiction of the court. UNLESS: the particular place of commission is an essential element of the offense charged. Section 11. Date of commission of the offense What is the determinative factor in the resolution of the question involving a variance between the allegation and proof in respect of the date of the crime? The element of surprise on the part of the accused and his inability to defend himself properly People v. Elpedes, G.R. No. 137106-07 (2001) The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars (Rule 116 § 10). The failure to move or specification or the quashal of the information on any of the grounds provided for in the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime. People v. Baniguid, GR No. 137714 (2000) Death penalty is imposed for the crime of rape if the “victim is under 18 years of age and the offender is a parent of the victim.” For this purpose, the special qualifying circumstances of the victim’s minority and QuickTime™ and a must be alleged her relationship with the offender TIFF (Uncompressed) decompressor are needed to see this picture. and proved. The information must state the exact age of the victim at the time of the commission of the crime. People v. De Villa, G.R. No. 124639 (2001) Under the amendatory provisions of RA 7659 § 11, the attendance of facts that would mandate the imposition of the single indivisible penalty of death are in the nature of qualifying circumstances which

The rules require the complaint or information to state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name (Sayson v. People, 166 SCRA 693). In crimes against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the particular offense charged. To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another person, and indictment for such offense must name the owner and a variance in this respect between the indictment and the proof will be fatal. Section 13. Duplicity of the Offense The information is defective when it charges two or more DISTINCT or DIFFERENT offenses. A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses. PURPOSE: To give the defendant the necessary knowledge of the charge to enable him to prove his defense. The State should not heap upon the defendant two or more charges which might confuse him in his defense. WAIVER When the accused fails, BEFORE ARRAIGNMENT, to move for the quashal of the information which charges 2 or more offenses, he thereby waives the objection and may be found guilty of as many offenses as those charged and proved during the trial. Where the law with respect to an offense may be committed in any of the different modes provided by law, the indictment in the information is sufficient if the offense is alleged to have been committed in one, two or more modes specified therein. The various ways of committing the offense should be considered Page 178 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 as a description of only one offense and the information cannot be dismissed on the ground of multifariousness.

arraignment of the accused under the amended information.

EXCEPTIONS TO THE RULE ON DUPLICITY 1. continuous crimes 2. complex crimes 3. special complex crimes 4. crimes susceptible of being committed in various modes 5. crimes of which another offense is an ingredient

Technically, paragraph 2 of Section 14 does not refer to amendment, but to substitution of the complaint or information by a new one. If the substitution is made before the accused enters his plea, the question of double jeopardy does not arise. If the filing of new information is done after the plea and before judgment on the ground that there has been a mistake in charging the proper offense, the filing thereof may only be allowed if it will not place the accused twice in jeopardy.

REQUISITES OF CONTINUOUS CRIMES: 1. Plurality of acts performed separately during a period of time; 2. Unity of penal provision infringed upon or violated; 3. Unity of criminal intent which means that two or more violations of the same penal provision are united on one and the same intent leading to the perpetration of the same criminal purpose or claim (People v. Ledesma).

Test as to whether a defendant is prejudiced by an amendment: • whether a defense under the information as it originally stood would be available after the amendment is made, and • whether any evidence defendant might have would be equally applicable to the information in the new form as in the other.

Section 14. Amendment or Substitution KINDS OF AMENDMENT OR SUBSTITUTION a. BEFORE THE ACCUSED ENTERS HIS PLEA, THE PROSECUTOR MAY: • upgrade the offense • allege qualifying and aggravating circumstances or • change the offense charged WITHOUT LEAVE OF COURT, provided there is evidence thereon which has been presented during the preliminary investigation. HOWEVER, PROSECUTOR CANNOT: • downgrade the offense charged • exclude from the information a co-accused without filing a motion to that effect, with notice to the offended party, and subject to the approval of the court. The court shall state the reasons in resolving the motion and copies thereof all parties, QuickTime™ furnished and a TIFF (Uncompressed) decompressor needed to see this picture. especiallyarethe offended party. b. AFTER THE PLEAa. If it covers only formal amendment- leave of court is obtained and such amendment is not prejudicial to the rights of the accused. b. But when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another

GENERAL RULE: After arraignment, the prosecutor may no longer amend the information which changes the nature of the crime, as it will prejudice the substantial rights of the accused. EXCEPTION: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. HOWEVER: if the supervening event which changes the nature of the crime to a more serious one occurred after the accused has been convicted, which makes the amendment of the information no longer the remedy of the prosecution, the prosecution can and should charge the accused for such more serious crime, without placing the accused in double jeopardy, there being no identity of the offense charged in the first information and in the second one. Section 14 applied only to original case and not to appealed case. Gabionza v. CA, G.R. No. 140311 (2001) When amendments to informations may be allowed: a. it does not deprive the accused of the right to invoke prescription Page 179 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. it does not deprive the accused of the right to invoke prescription c. it does not affect or alter the nature of the offense originally charged d. it does not involve a change in the basic theory of the prosecution so as to require the accused to undergo any material charge or modification in his defense e. it does not expose the accused to a charge which would call for a higher penalty f. it does not cause surprise or deprive the accused of an opportunity to meet the new averment. A defendant may file a counterclaim for interpleader against the plaintiff and a third party also claiming the subject matter of the suit.. LIMITATION TO THE RULE ON SUBSTITUTION: a. No judgment has yet been rendered; b. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein; c. The accused would not be placed in double jeopardy. Amendment vs. Substitution AMENDMENT SUBSTITUTION May involve either formal Involves substantial or substantial changes. change from original charge. Amendment before the Substitution of pleas has been entered information must be with can be effected without leave of court as the leave of court. original information has to be dismissed. Amendment is only as to Another preliminary form, there is no need for investigation is entailed another preliminary and the accused has to investigation and the plead anew to the new retaking of the plea of the information. accused. An amended information Requires or presupposes refers to the same that the new information offense charged in the involves a different original information or to offense which does not QuickTime™ and a an offense which TIFF (Uncompre includes or is not ssed) decompressor are needed t o s ee this picture. necessarily includes or is necessarily included in necessarily included in the original charge, the original charge, hence the accused hence substantial cannot claim double amendments to the jeopardy. information after the plea has been taken cannot be made over the objection of the accused,

for if the original would be withdrawn, the accused could invoke double jeopardy. VARIANCE BETWEEN INDICTMENT AND PROOF: 1. When the offense proved is less serious than and is necessarily included in the offense charged, in which case, the defendant shall be convicted of the offense proved. 2. When the offense proves is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged; 3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of new information charging the proper offense. (Substitution of information applies in this case). Section15. Place where action is to be instituted VENUE IN CRIMINAL CASE IS JURISDICTIONAL, BEING AN ESSENTIAL ELEMENT OF JURISDICTION. PURPOSE: Not to compel the defendant to move to and appear in a different court from that of the territory where the crime was committed as it would cause him great inconvenience in looking for his witnesses and other evidence in another place. GENERAL RULE: Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes committed outside the Philippines. EXCEPTIONS: 1. Those provided in Article 2 of the Revised Penal Code. Those who commit any of the crimes contemplated therein can be tried by Philippine courts. 2. Where an offense is committed on a railroad train, in an aircraft or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during its trip, including the place of its departure and arrival. 3. Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or Page 180 of 289

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4. 5.

6.

7.

territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. Piracy – has no territorial limits as it is a crime against all mankind. Libel – the action may be instituted at the election of the offended party in the province or city: a. where the libelous article is printed or first published; b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense. In exceptional circumstances- to ensure a fair trial and impartial inquiry. The Supreme Court shall have the power to order a change of venue or place of trial to avoid the miscarriage of justice (Sec. 5[4], Article VIII, 1987 Constitution), B.P. 22 cases- criminal action shall be filed in the place where the check was dishonored.

VENUE IS JURISDICTIONAL The court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived or changed by the agreement of the parties or by consent of the defendant. Section 16. Intervention of the offended party in criminal action GENERAL RULE: Offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111. EXCEPTIONS: 1. Where from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of the offended party; 2. Where the offended party has waived the right QuickTime™ and a decompressor TIFF (Uncompressed) to civil indemnity; or are needed to see this picture. 3. Where the offended party has already instituted an action. Where the offended party withdrew a reservation to file a separate civil action, the private prosecutor may still intervene in the prosecution of the criminal case, by conducting the examination of witnesses under the control of the prosecutor.

HOWEVER: Once the offended party has filed a separate civil action arising from the crime, he may not withdraw such civil case in order to intervene in the criminal prosecution. He loses the right to intervene. He no longer has any standing in the criminal case, except to be a prosecution witness. Where a criminal action has been provisionally dismissed upon motion of the prosecutor, can the case be revived upon motion of the offended party? No, because the offended party or complaining witness cannot act for the prosecutor.

RULE 111 PROSECUTION OF CIVIL ACTION Section 1. Institution of criminal and civil actions GENERAL RULE: The institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged. EXCEPTIONS: Where institution of criminal liability does not include civil liability the offended party WAIVES the civil action; he RESERVES his right to institute the civil action separately; or he INSTITUTES THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION. The employer may not be held civilly liable for quasidelict in the criminal action as ruled in Maniago v. Court of Appeals since quasi-delict is not deemed instituted with the criminal. If at all, the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code. WHEN RESERVATION SHALL BE MADE: a. Before the prosecution starts to present its evidence; and b. Under circumstances affording the offended party a reasonable opportunity to make such reservation. INSTANCES WHERE NO RESERVATION SHALL BE ALLOWED 1. Criminal action for violation of BP 22 – unless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. A claim arising from an offense which is cognizable by the Sandiganbayan – a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing (Sec. 4 of PD1606 as amended by RA 8249) 3. Tax cases (Sec. 7, par. b, no.1, RA 9282) When the reservation of the right to institute the separate civil actions shall be made: before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such a reservation. The rule requiring reservation to file a separate civil action does not apply to civil actions which can be filed and prosecuted independently of the criminal action, namely, those provided in Arts. 32, 33, 34 and 2176 of the Civil Code. Although the criminal and civil actions may be joined in the criminal case, they are distinct from each other. The plaintiffs in the two actions are different. THUS: even if the accused started serving his sentence within the 15-day period from the promulgation of the judgment of conviction by the lower court, thereby making the judgment against him final, the complainant may, within the 15-day reglementary period, still ask that the civil liability be fixed by the court, if the judgment does not adjudicate any civil liability, as the judgment regarding civil liability has not become final and the court still has jurisdiction to adjudge the civil liability. NOTE: Only civil liability arising from crime charged (cause of action arising from delict) as a felony is deemed instituted. Civil liability arising from other sources of obligations (law, quasi-contract and quasidelict) are no longer deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil Code which can be prosecuted even without reservation.

Purpose of Exception: to prevent the offended party from using the prosecutor’s office and the court as vehicles for recovery of the face value of the check, without paying the corresponding filing fees therefor. With respect to damages other than actual, if these damages are specified in the complaint or information, the corresponding filing fees should be paid, otherwise, the trial court will not acquire jurisdiction over such other damages. Where moral, exemplary and other damages are not specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment. NOTE: Counterclaims, cross-claims, third-party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof maybe litigated in a separate civil action. In an appeal of a criminal case, the appellate court may impose additional damages or increase or decrease the amounts of damages upon the accused-appellant. HOWEVER, additional penalties cannot be imposed upon a co-accused who did not appeal, but modifications of the judgment beneficial to him are considered in his favor. The offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. Where the trial court convicted the accused, but dismissed the civil action instituted therein, the offended party may appeal the dismissal to the CA.

RULES ON FILING FEES GENERAL RULE: No QuickTime™ filing fees are required for and a (Uncompressed) decompressor amounts of actualTIFF damages. are needed to see this picture.

Compromise on civil aspect: The offended party may compromise the civil aspect of a crime, provided that it must be entered before or during the litigation, and not after final judgment. A compromise on the civil aspect is valid even if it turns out to be unsatisfactory either to one or both of the parties.

EXCEPTION: Criminal action for violation of BP 22 which is deemed to include the corresponding civil action. The offended party shall, upon the filing of the criminal and civil actions, pay in full the filing fees based on the face value of the check as the actual damages.

IMPORTANT: Section 1, Rule 111 now expressly provides that no counterclaim, cross-claim or thirdparty complaint may be filed by the accused in the criminal case, but any cause of action which could have been subject thereof may be litigated in a separate civil action. REASONS: Page 182 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. the counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings; b. the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. Section 2. suspended

When

separate

civil

action

is

Primacy of Criminal Action over Civil Action After the filing of the criminal action, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action If the civil action is instituted before the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment of the criminal action has been rendered. EXCEPTIONS: 1. In cases of independent civil actions based upon Article 32, 33, 34 and 2176 of the Civil Code; 2. In cases where the civil action presents a prejudicial question; and 3. Where the civil action is not one intended to enforce the civil liability arising from the offense. CONSOLIDATION OF CRIMINAL AND CIVIL CASES Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party be consolidated with the criminal action in the court trying the criminal action. This is a modification on the rule on primacy of criminal action. The consolidation must be effected in the criminal court, irrespective of the nature of the offense, the amount of the civil claim or the rank of the court trying the civil case. In cases where consolidation is given due course, the QuickTime™ and a TIFF (Uncompressed) decompressor evidence presented and admitted in the civil case are needed to see this picture. shall be deemed automatically reproduced in the criminal action. The consolidated criminal and civil cases shall be tried and decided jointly. NOTE: Article 29 of the Civil Code merely emphasizes that a civil action for damages is not precluded by the acquittal of an accused for the same

criminal act or omission. It does not state that the remedy can be availed of only in a separate civil action. ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE: 1. The acquittal is based on reasonable doubt, if the civil case has been reserved. 2. The decision contains a declaration that the liability is not criminal but only civil in nature. 3. The civil liability is not derived from or based on the criminal act of which the accused is acquitted. (Sapiera v. Court of Appeals, 314 SCRA 370) Section 3. When civil action may proceed independently Prior reservation is not necessary to file separate civil action under Arts. 32, 33, 34 and 2176 of the Civil Code. The phrase “which has been reserved” that has caused conflicting rulings in the past has now been deleted. Actions based on quasi-delict may be filed independently of the criminal action regardless of the result of the criminal action, except that a plaintiff cannot recover damages twice for the same act or omission of the defendant. PURPOSE: To make the court’s disposition of the criminal case of no effect whatsoever on the separate civil case. Section 4. Effect of death on civil actions EFFECT OF DEATH OF THE ACCUSED ON CIVIL ACTIONS 1. After arraignment and during the pendency of the criminal action: GENERAL RULE: Death extinguishes the civil liability arising from delict or the offense EXCEPT: where civil liability is predicated on other sources of obligations such as law, contract, quasi-contract and quasi-delict. If such civil action which survives is impliedly instituted in the criminal action, the legal representative or heir of the deceased shall be substituted for the deceased. The criminal case is reduced to a civil action.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 However, if the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec.16 Rule 3 of the Rules of Court. 2. Before arraignment: The civil action impliedly instituted in the criminal action shall be dismissed without prejudice to the offended party’s filing a civil action against the administrator of the estate of the deceased. NOTE: The independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution, or against said estate, as the case may be. 3. Pending appeal of his conviction: It extinguishes his criminal liability as well as the civil liability based solely thereon. 4. Prior to final judgment: It terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed. Section 5. Judgment in civil action not a bar The judgment in civil actions based on Arts. 32, 33, 34 and 2176 absolving the defendant from civil liability does not bar the criminal action. NOTE: Where the criminal case was dismissed before trial because the offended party executed an affidavit of desistance, the civil action thereof is similarly dismissed. Section 6. SuspensionQuickTime™ by reason of prejudicial and a TIFF (Uncompressed) decompressor question are needed to see this picture. PREJUDICIAL QUESTION It is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal. PURPOSE: To avoid two conflicting decisions.

NOTE: A prejudicial question is based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. PREJUDICIAL QUESTION 1. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. 2. The suspension of the criminal case due to a prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused. 3. There is no prejudicial question where one case is administrative and the other is civil. Time to Plead When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION 1. Office of the Prosecutor; or 2. Court where the criminal action has been filed for trial at any time before the prosecution rests. Section 7. Elements of prejudicial question ELEMENTS OF A PREJUDICIAL QUESTION 1. The civil action must be instituted PRIOR to the criminal action; 2. The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; 3. The resolution of such issue determines whether or not the criminal action may proceed.

RULE 112 PRELIMINARY INVESTIGATION Section 1. Preliminary investigation defined; when required PRELIMINARY INVESTIGATION It is an inquiry or proceeding to determine whether there exists sufficient ground to engender a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 PURPOSES: 1. To determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. 2. To preserve evidence and keep the witnesses within the control of the State. 3. To determine the amount of bail, if the offense is bailable. Preliminary investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 1 months and 7 day without regard to the fine. It is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (U.S. v. Marfori, 35 Phil 666). It is subject to the requirements of both substantive and procedural due process. The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice and is a substantive right. A personal right and may be waived expressly or by implication. Lack of preliminary investigation is not a ground to quash or dismiss a complaint or information, nor does it affect the court’s jurisdiction. When there is no preliminary investigation, the accused must invoke it at the first opportunity and the court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct PI. WAIVER: 1. Failure to claim it QuickTime™ before the accused pleaded. and a TIFF (Uncompressed) decompressor 2. Silence of the accused. are needed to see this picture. 3. Failure to request it within 5 days from the time he learns of the filing of the complaint or information in those instances where the accused is lawfully arrested without a warrant. Absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused.

If an objection was raised, the court, instead of dismissing the complaint or information should order the conduct of such investigation (Doromal v. Sandiganbayan, 117 SCRA 354). REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION: 1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground. 2. Insist on a preliminary investigation. 3. Raise lack of preliminary investigation as error on appeal. 4. File a petition for certiorari. 5. File for petition for prohibition.

There is NO right of preliminary investigation when a person is lawfully arrested without a warrant unless there is a waiver of the provisions of Article 125 of the Revised Penal Code. HOWEVER, THE ACCUSED CAN ASK FOR PRELIMINARY INVESTIGATION IN THE FOLLOWING CASES: 1. If a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/ information BUT he must sign a waiver in accordance with Article 125, RPC. 2. AFTER the filing of the information/ complaint, the accused may, within 5 days from the time he learns of its filing ask for preliminary investigation. NOTE: This Rule has been partially amended by AM 05-0-8-26-SC. The amendments took effect on October 3, 2005. The amendment removed the conduct of preliminary investigation from the judges of the first level courts. Section 2. Officers authorized preliminary investigation

to

conduct

OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION 1. provincial or city prosecutor and their assistants 2. National and regional state prosecutors 3. Such other officers as may be authorized by law such as the COMELEC, Ombudsman and PCGG 4. Judges of RTCs No longer authorized to conduct PI: By implication, MTC judges in Manila and in chartered cities have not been granted the authority Page 185 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 to conduct PI, as the officers authorized to do so are the prosecutors. TWO TYPES OF OFFENSES MAY BE FILED IN THE MTC FOR PRELIMINARY INVESTIGATION: 1. a case cognizable by the RTC may be filed with the MTC for PI; 2. even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years 2 months and 1 day. Regarding offenses falling within the original jurisdiction of the Sandiganbayan: Prosecutors or municipal trial court judges conducting PI of offenses falling within the original jurisdiction of the Sandiganbayan shall, after their conclusion, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Moreover, the prosecutor or judge cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an information with the Sandiganbayan without being deputized by, and without prior written authority of, the Ombudsman or his deputy. Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001) The Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. § 15 of RA 6770 (Ombudsman Act of 1989) does not make any distinction. “Any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee. Such grant of primary jurisdiction over cases cognizable by the Sandiganbayan does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by the other courts. Roxas v. Vasquez, G.R. No. 114944 (2001) In criminal prosecutions, a reinvestigation, like an QuickTime™ and a open for review, appeal, renders TIFF the(Uncompressed) entire case decompressor are needed to see this regardless of whether a motion picture. for reconsideration or reinvestigation was sought. The Ombudsman should not be limited in its review. It is clear from R. A. 6770 that the Ombudsman may motu propio conduct a reinvestigation. ELECTION OFFENSES: The exclusive jurisdiction of the Comelec to investigate and prosecute election offenses inheres

even if the offender is a private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense, namely, an election offense as defined in the Omnibus Election Code and in other election laws, and not the personality of the offender that matters. THE OMBUDSMAN: The power of the Ombudsman to make investigation extends to any illegal act or omission of any public official, whether or not the same is committed in relation to his office. Preliminary investigation by the Ombudsman is limited to cases cognizable by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman. Section 4(d) of Administrative Order No. 07 disallows the filing of a motion to quash or dismiss a complaint filed with the Ombudsman, except on the ground of lack of jurisdiction. Which remedy may an aggrieved party avail of against resolutions of the Ombudsman in criminal or non-administrative cases? The law is silent. Hence, appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of only if there is a statute to that effect. However, an aggrieved party is not without remedy, as he can resort to the special civil action of certiorari under Rule 65. THE OMBUDSMAN DOES NOT HAVE THE FOLLOWING POWERS: 1. to prosecute before the Sandiganbayan any impeachable officers with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office because by constitutional mandate, they can only be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust 2. to prosecute public officers or employees who have committed election offenses. 3. to file an information for an offense cognizable by the regular courts. EFFECTS OF AN INCOMPLETE PRELIMINARY INVESTIGATION

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. It does not warrant the quashal of the information 2. It does not affect the court’s jurisdiction or the validity of the information.

Filing of the complaint accompanied by the affidavits and supporting documents.

Section 3. Procedure PROCEDURE 1. By reason of the abbreviated nature of Preliminary Investigation, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. 2. The accused or respondent in a criminal prosecution may avail himself of discovery remedies either during preliminary investigation or when the information has already been filed in court. 3. A motion to dismiss is now a prohibited pleading during preliminary investigation. 4. The respondent is now required to submit counter-affidavits and other supporting documents relied upon by him for his defense. 5. The respondent now has the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense.

Within 10 days after the filing, the investigating officer shall either dismiss or issue subpoena.

If subpoena is issued, respondent shall submit a counter-affidavit and other supporting documents within 10 days from receipt thereof.

Hearing (optional). It shall be held within 10 days from submission of counter-affidavits or from the expiration of the period of their submission.

Resolution of investigating prosecutor. If respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter-affidavit within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant. RIGHTS OF RESPONDENT IN A PRELIMINARY INVESTIGATION: 1. To submit counter-affidavit. 2. To examine the evidence submitted by the complainant 3. To be present in the clarificatory hearing.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

NOTE: The Rules does not require the presence of the respondent in the Preliminary Investigation. What is required is that he be given the opportunity to controvert the evidence of the complainant by submitting counter-affidavits. Section 4. Resolution of investigating prosecutor and its review Resolution of investigating prosecutor and its review After having filed the information, the prosecutor is called upon to prosecute the case in court. It has Page 187 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 been said that at this stage, unlike judges who are mandated to display cold neutrality in hearing cases, the prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. But while he may strike hard blows, he is not at liberty to strike foul ones. If there is probable cause to hold respondent liable, prepare resolution.

If no probable cause exists, dismiss the case

Within 5 days from resolution, forward the record of the case to 1) provincial or city prosecutor; 2) chief state prosecutor; 3) Ombudsman or his deputy, in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

The abovementioned officers shall act on the resolution within10 days from receipt thereof and shall immediately inform the parties of such action.

HE SHALL CERTIFY UNDER OATH IN THE INFORMATION THAT: 1. he or an authorized officer personally examined the complainant and his witnesses; 2. there is reasonable ground a crime has been committed and the accused is probably guilty thereof; 3. the accused was informed of the complaint and the evidence against him; and 4. the accused was given an opportunity to submit controverting evidence. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or the Ombudsman or his deputy. EFFECTS OF EXCLUSION OF OTHER PERSONS FROM THE INFORMATION 1. If during the trial, evidence is shown that such persons should have been charged, the fact

that they were not included in the information does not relieve them of criminal liability, and they can be subsequently prosecuted. 2. The accused who has been charged with the offense is not allowed to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime. 3. It does not vitiate the validity of the information. Neither is the same a ground for a motion to quash. Role of Secretary Of Justice The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court. If the Secretary reverses the ruling of the prosecutor, the latter has to file the necessary motion to dismiss the complaint or information, the grant or denial of which is subject to the discretion of the trial court. EFFECT IF THE INFORMATION IS FILED BY SOMEONE NOT AUTHORIZED BY LAW The court does not acquire jurisdiction. The accused’s failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof. The prosecutor is required to resolve the complaint based on the evidence presented by the complainant in the event that the respondent cannot be subpoenaed or the respondent, if subpoenaed, does not submit a counter-affidavit within the 10-day period. Section 5. Resolution of investigating judge and its review (DELETED) RESOLUTION OF INVESTIGATING JUDGE AND ITS REVIEW A.M. No. 05-8-26-SC: All First Level Courts shall continue with the preliminary investigation of cases pending with them and terminate them not later than December 31, 2005. Upon the effectivity of these amendments, First Level Courts shall no longer accept new cases for

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 preliminary investigation which fall under exclusive jurisdiction of courts of other levels.

the

These amendments shall take effect on October 3, 2005 following their publication in a newspaper of general circulation not later than September 15, 2005. Section 6. When warrant of arrest may issue WHEN WARRANT OF ARREST MAY ISSUE If the judge finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused had already been arrested and hold him for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of warrant of arrest. Judges of the RTCs and inferior courts need not personally examine the complainant and his witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: 1. Personally evaluate the report and supporting documents submitted by the prosecutor; 2. On the basis of the report, he may: a. Dismiss b. Issue a warrant c. Require further affidavits INVALID: A warrant issued by the judge solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining the existence of probable cause by independently examining sufficient evidence submitted by the parties during the Preliminary Investigation. Effect of a finding of probable cause It merely binds over the suspect to stand trial. It is not a pronouncement of guilt. WHAT THE ACCUSED, WHO BELIEVES THAT THERE IS NO PROBABLE CAUSE TO HOLD HIM FOR TRIAL, MAY DO: 1. to file with the trialQuickTime™ court aandmotion to dismiss on a TIFF (Uncompressed) decompressor such ground or for the determination of are needed to see this picture. probable cause. 2. if the warrant of arrest has been issued, the accused may file a motion to quash the arrest warrant or to recall the same on the ground of lack of probable cause. Where an information has already been filed in court, and the Secretary of Justice reversed the prosecutor’s finding of probable cause, what

should the trial court do upon the prosecutor’s motion to dismiss? He must make his own assessment of the evidence and not just rely on the conclusion of the prosecutor; otherwise the court becomes a mere rubber stamp. REINVESTIGATION: Once the complaint or information is filed in court, any motion for reinvestigation is addressed to the sound discretion of the court. While the trial court judge has the power to order the reinvestigation of the case by the prosecutor, he may not, before the prosecutor concluded the reinvestigation, recall said order, set the case for arraignment and trial, without gravely abusing his discretion. MUNICIPAL JUDGE MAY ISSUE ARREST WARRANT BEFORE CONCLUSION OF PRELIMINARY INVESTIGATION IF: 1. he finds that probable cause exists and 2. there is a necessity of placing respondent under immediate custody. IMPORTANT: The rule is now that the investigating judge’s power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody in order not to frustrate the ends of justice. Thus, even if the judge finds probable cause, he cannot, on such ground alone, issue a warrant of arrest. He must further find there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. The investigating judge has no power to reduce or change the crime charged in order to justify the grant of bail to the accused. The power belongs to the prosecutor. After the conclusion of his PI, the judge has to transmit to the provincial prosecutor his resolution and entire records of the case, regardless of whether he finds a probable cause or sufficient ground to issue a warrant of arrest. Section 7. When accused lawfully arrested without warrant GENERAL RULE: No complaint or information shall be filed for an offense which is penalized by imprisonment of not less than 4 years, 2 months and 1 day without PI. EXCEPTION: When the accused has been lawfully arrested without warrant, in which case, an inquest Page 189 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 must be conducted by an inquest prosecutor who will determine whether his arrest without warrant is lawful. The inquest prosecutor may order the release of the arrested person if he finds no sufficient ground to hold him without prejudice to conducting further investigation, or file complaint or information within the period specified in Art. 125 of the RPC. In case a person is arrested without a warrant, a complaint or information may only be filed after an inquest conducted in accordance with existing rules. Provided: that in the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the filing of a complaint or information, the person arrested without a warrant may ask for a preliminary investigation by a proper officer, but he must sign a waiver of the provisions of Art. 125 of the RPC. If the accused allows himself to be arraigned without asking for a preliminary investigation, he is deemed to have waived the right to such PI. When the complaint or information was filed without PI, the accused may, within 5 days from the time he learns of the filing of the information ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. NOTE: The 5 –day period is MANDATORY, failure to file the motion within the said period amounts to a waiver of the right to ask for preliminary investigation. Where the information was amended without a new PI having been conducted, the 5-day period is computed from the time the accused learns of the filing of said amended information. Where the trial court has granted a motion for reinvestigation, it must hold in abeyance the QuickTime™ and a (Uncompressed) decompressor arraignment andTIFFare trial of the accused until the needed to see this picture. prosecutor shall have conducted and made a report on the result of the reinvestigation. Right to Bail Pending Preliminary Investigation A person lawfully arrested may post bail before the filing of the information or even after the filing without waiving his right to PI, provided that he asks for a PI by the proper officer within the period fixed in the said rule. (People v. Court of Appeals, May 29, 1995).

Section 8. Records An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. Records of the preliminary investigation shall NOT automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as evidence. Section 9. Cases not requiring preliminary investigation nor covered by the Rule on Summary Procedure Cases where the punishment does not exceed 4 years 2 months and 1 day. PROCEDURE TO BE FOLLOWED: a. Evaluate the evidence presented; b. Conduct searching questions or answers; c. Require the submission of additional evidence. For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned. CONDITIONS FOR THE ISSUANCE OF WARRANT OF ARREST: 1. Must examine in writing and under oath the complainant and his witnesses by searching questions and answers. 2. Be satisfied that a probable cause exists. 3. That there is a need to place respondent under immediate custody in order not to frustrate the ends of justice.

RULE 113 ARREST Section 1. Definition of Arrest ARREST It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The application of actual force, manual touching of the body, physical restraint or formal declaration of arrest is not required. Arrest includes submission to the custody of the person making the arrest. Section 2. Arrest; how made MODES OF ARREST: 1. Arrest by virtue of a warrant 2. Arrest without a warrant under exceptional circumstances as may be provided by statute ESSENTIAL REQUISITES OF A VALID WARRANT OF ARREST: 1. It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce. 2. The warrant must particularly describe the person to be seized.

reason for this is there is yet no evidence on record upon which he may determine the existence of probable cause. A warrant of arrest has no expiry date. It remains valid until arrest is effected or the warrant is lifted. However, Sec. 4 of Rule 113 requires the head of the office who applied for warrant to execute the same within 10 days from receipt thereof and for the arresting officer assigned to execute the same to submit, within 10 days from the expiration of the first 10-day period, a report to the judge who issued the warrant. NOTE: The return mentioned in this section refers not to the physical delivery of the very same copy of the process to the issuing court, but the report of the officer charged with its execution on the action taken by him thereon. (People v. Givera, 349 SCRA 513) Section 5. Arrest without a warrant; when lawful

A warrant of arrest has no expiry date. It remains valid until arrest is effected or the warrant is lifted. Section 3. Duty of arresting officer 1. Arrest the accused 2. Deliver him to the nearest police station or jail without unnecessary delay Section 4. Execution of warrant THE JUDGE ISSUES A WARRANT OF ARREST IN 2 INSTANCES: 1. Upon the filing of the information by the prosecutor. • In issuing this kind of warrant, the judge does not personally examine the complainant and the witnesses he may produce, but he merely evaluates personally the report and supporting documents and other evidence adduced during the preliminary investigation and submitted to him by the prosecutor, and if he finds probable on the basis QuickTime™cause and a decompressor thereof TIFF heare(Uncompressed) issues the warrant for the arrest needed to see this picture. of the accused. 2. Upon application of a peace officer. • In this kind of warrant, the judge must personally examine the applicant and the witnesses he may produce, to find out whether there exists probable cause, otherwise the warrant issued is null and void. He must subject the complainant and the witnesses to searching questions. The

LAWFUL WARRANTLESS ARREST: 1. When IN HIS PRESENCE, the person to be arrested has committed, is actually committing or is attempting to commit an offense (in flagrante delicto arrests). 2. When an offense has in fact been committed and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it (Doctrine of Hot Pursuit). 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. 4. When a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113). 5. By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 113). 6. Where the accused attempts to leave the country without permission of the court (Sec. 23, Rule 114). NOTES: 1. In a citizen’s arrest, the person may be arrested and searched of his body and of his personal effects or belongings, for dangerous weapons or anything which may be used as proof of the commission of an offense, without need of a search warrant.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b) refers to hot pursuit. 3. Sec. 5(b) authorizes warrantless arrest “when an offense has in fact just been committed.” The word “just” implies immediacy in point of time. 4. Delivery of the detained person to the proper judicial authorities means the filing of the complaint or information with the municipal trial court or with the inquest fiscal or prosecutor who shall then decide either to order the release of the detained person or to file the corresponding information in court. An accused who enters his plea of NOT guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, other wise it is deemed waived, as the accused had voluntarily submitted himself to the jurisdiction of the court. Section 6. Time of making arrest It may be made on any day and at any time of the day or night. Section 7. Method of Arrest by officer by virtue of warrant When making an arrest by virtue of a warrant the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest. EXCEPTIONS: 1. when he flees; or 2. forcibly resists before the officer has opportunity to so inform him; or 3. when the giving of such information will imperil his arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant QuickTime™ and a (Uncompressed) decompressor shall be shown toTIFF him as soon as practicable. are needed to see this picture. Section 8. Method of arrest by officer without a warrant When making an arrest by virtue of a warrant the officer shall inform the person to be arrested his authority and the cause of the arrest.

1. When the person is engaged in the commission of an offense; or 2. Pursued immediately after its commission; or 3. Has escaped, flees; or 4. Forcibly resists before the officer has opportunity to so inform him; or 5. When giving of such information will imperil the arrest. Section 9. Method of arrest by private person When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. EXCEPTIONS: 1. The person to be arrested is engaged in the commission of an offense; or 2. Pursued immediately after its commission; or 3. Has escaped, flees; or 4. Forcibly resists before the officer has opportunity to so inform him; or 5. When giving of such information will imperil the arrest. Section 10. Officer may summon assistance Arresting officer may orally summon as many persons as he deems necessary to assist him in effecting the arrest. NOTE: This rule does not cover a private individual making an arrest. Section 11. Right of officer to break into building or enclosure REQUISITES BEFORE AN OFFICER CAN BREAK INTO A BUILDING OR ENCLOSURE TO MAKE AN ARREST: 1. That the person to be arrested is or is reasonably believed to be in the said building; 2. That he has announced his authority and purpose for entering therein; 3. That he has requested and been denied admittance. NOTE: Rule is applicable both where there is a warrant and where there is a valid arrest without a warrant. Section 12. Right to break out of the building or enclosure to effect release

EXCEPTIONS: Page 192 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 An officer making an arrest who has entered a building or enclosure may break out therefrom when necessary to liberate himself.

• Does not apply during in-custody investigation, nor can it prevail over the constitutional right of the accused to be presumed innocent.

Section 13. Arrest after escape or rescue If a person 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. Section 14. Right of an attorney or relative to visit the person arrested The attorney of the person arrested have the right to visit and confer privately with such person in jail or any place of custody at any hour of the day or night. RA 7438 defined the RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION with the penalties for violation thereof. 1. Custodial investigation • Involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. • It is only after investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. • Embraced in custodial investigation: ¾ invited for questioning ¾ re-enactment • Not embraced in custodial investigation: ¾ police line-up ¾ ultraviolet ray examination ¾ normal audit examination by the COA of the accountability of a public officer QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

2. When the threat or promise was made by, or in the presence of, a person in authority, who has, OR is supposed by the accused to have power or authority to fulfill the threat or promise, the confession of the accused is inadmissible.

4. The arresting officer may be held civilly liable for damages under Art. 32 of the Civil Code. The very nature of Art. 32 is that the wrong may be civil or criminal. It is not necessary that there should be malice or bad faith. 5. On Civil Procedure: • Section 20 Rule 14 of the 1997 Rules of Civil Procedure provides in part that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Section 8 Rule 15 provides that subject to the provisions of Section 1 Rule 9, a motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. These changes in the 1997 Rules of Civil Procedure are applicable to criminal cases as Section 3 Rule 1 thereof provides that “these rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.” Moreover, the omnibus motion rule applies to motions to quash. 6. Section 26 of Rule 114 of the New Rules of Criminal Procedure provides that bail is not a bar to objection on illegal arrest, lack of or irregular preliminary investigation. This is an abandonment of the Cojuangco, Jr. v. Sandiganbayan ruling.

RULE 114 BAIL Section 1. Bail defined BAIL It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of a corporate surety, property bond, cash deposit or recognizance.

3. Presumption of regularity in the performance of duties:

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 PURPOSES OF A BAIL: 1. to honor the presumption of innocence until his guilt is proven beyond reasonable doubt 2. to enable him to prepare his defense without being subject to punishment prior to conviction. FORMS OF BAIL: 1. corporate surety 2. property bond 3. cash deposit 4. recognizance Bail Bond vs. Recognizance BAIL BOND RECOGNIZANCE An obligation under seal An obligation of record, given by the accused entered into before some with one or more sureties court or magistrate duly and made payable to the authorized to take it with proper officer with the the condition to do some condition to be void upon particular act. performance by the accused of such acts as he may legally be require to perform. NOTE: A person is in the custody of law when he has been arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong shall, before conviction, be bailable. PROSECUTION WITNESSES MAY ALSO BE REQUIRED TO POST BAIL TO ENSURE THEIR APPEARANCE AT THE TRIAL OF THE CASE WHERE: a. There is a substitution of information (Sec. 4, Rule 110) b. Where the court believes that a material witness may not appear at the trial. (Sec. 14, Rule 119) and a Upon assumption of QuickTime™ the obligation of bail, the TIFF (Uncompressed) decompressor needed this picture. sureties become in are law theto see jailers of their principal.

As bail is intended to obtain or secure one’s provisional liberty, the same cannot be posted before custody over him has been acquired by the court.

REQUIRING ARRAIGNMENT BEFORE GRANT OF BAIL IS NOT VALID BECAUSE: a. The trial court could ensure the presence of the accuse at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings such as arraignment (Sec. 2[b], Rule 114); b. The accused will be placed in a position where has to choose between filing a motion to quash and thus delay his release on bail and foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. (Lavides v. Court of Appeals, 324 SCRA 321) Section 2. Condition of the Bail; Requirements THE SURETY’S LIABILITY COVERS ALL THESE 3 STAGES: a. trial b. promulgation c. the execution of the sentence. Unless the court directs otherwise, the bail bond posted by an accused remains in force at all stages of the case until its final determination. The accused shall appear before the proper court whenever required by the court or rules. Failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present thereat. The trial may proceed in absentia. The bondsman shall surrender the accused to court for execution of the final judgment. If the accused presents his notice of appeal, the trial court will order the accused to be taken into custody in the absence of a new bail bond on appeal duly approved by the court. If the accused does not appeal, the bondsman must produce the accused on the 15th day from promulgation of sentence for service of sentence. Yap v. CA and the People, G.R. No. 141529 (2001) The prohibition against requiring excessive bail is enshrined in the Constitution. The obvious rationale is that imposing bail in an excessive amount could render meaningless the right to bail. The court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the Page 194 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person to report periodically to the court and to make an accounting of his movements. Although an increase in the amount of bail while the case is on appeal may be meritorious, the SC found that the setting of the amount at P5.5M is unreasonable, excessive, and constitutes an effective denial of A’s right to bail. The Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, “merits attention, being in a sense an expression of policy of the Executive Branch, through the DOJ, in the enforcement of criminal laws.” Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice. This notwithstanding, the Court is not precluded from imposing in A’s case an amount higher than P40T (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. Section 3. No release or transfer except on court order or bail No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

speedy, lest the purpose for which it is available is rendered nugatory. Right to bail may be waived. BAIL IN COURT-MARTIAL OFFENSES: The right to bail of an accused military personnel triable by courts-martial does not exist, as an exception to the general rule that an accused is entitled to bail except in a capital offense where the evidence of guilt is strong. RATIONALE: The unique structure of the military justifies exempting military men from the constitutional coverage on the right to bail. The right to bail is not available to military personnel or officer charged with a violation of the Articles of War. (Aswat v. Galido, 204 SCRA 205) Notice of hearing required: Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice.

Section 4. Bail, a matter of right; exception WHEN BAIL IS A MATTER OF RIGHT: 1. before or after conviction by the MTC 2. before conviction, for all offenses punishable by lower than reclusion perpetua ¾ prosecution does not have the right to oppose or to present evidence for its denial. WHEN BAIL IS A MATTER OF DISCRETION: 1. before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment 2. after conviction by the RTC of a non-capital offense ¾ prosecution is entitled to present evidence for its denial. QuickTime™ and a TIFF (Uncompressed) decompressor

are al., neededG.R. to see this picture. People v. Singh, et. No. 129782 (2001) In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong pursuant to § 8 Rule 114. In bail proceedings, the prosecution must be given ample opportunity to show that the evidence of guilt is strong. While the proceeding is conducted as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and

Hearing is not required if bail is recommended by prosecution and it is a matter of right. Summary of the evidence for the prosecution The court’s order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judge’s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. It would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed. Section 5. Bail, when discretionary 1. Not entitled to bail: • An accused who has been convicted of an offense which carries a penalty of more than 20 years is not entitled to bail during the pendency of his appeal. • An accused who is convicted of a capital offense is no longer entitled to bail on Page 195 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 appeal since his conviction imports that the evidence of guilt is strong. 2. Trial court may grant bail before appeal is perfected • Whether bail is a matter of right or discretion, the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal, appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof. • However if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. • Even if there is no notice of appeal, if the decision of the TC 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. 3. After appeal is perfected, the trial court loses jurisdiction to grant bail and to approve bail bond. • However, the accused may apply for bail or provisional liberty with the appellate court. IF THE PENALTY IMPOSED BY THE TRIAL COURT IS IMPRISONMENT EXCEEDING 6 YEARS, THE ACCUSED SHALL BE DENIED BAIL OR HIS BAIL BE CANCELLED UPON A SHOWING BY THE PROSECUTION OF THE FOLLOWING: a. Recidivism, 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 condition 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 riskandthat he may commit QuickTime™ a TIFF (Uncompressed) decompressor another crime during the are needed to see this picture.pendency of the appeal. Section 6. Capital offense, defined CAPITAL OFFENSE It 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.

The capital nature of an offense is determined by the penalty prescribed by law, and not by the penalty that may be imposed after trial and on the basis of the evidence adduced and the presence of aggravating or mitigating circumstance. NOTE: Republic Act No. 9346 entitled ”An Act Prohibiting the Imposition of Death Penalty in the Philippines” was enacted on June 24, 2006 repealing R.A. No. 8177 and R. A. No. 7659 and abolishing the death penalty. Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment CONVICTION This refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court. Section 13, Article III of the 1987 Constitution Section 8. Burden of proof in bail application Prosecution has burden of proof At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. EVIDENCE OF GUILT in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. Regarding Minors Charged with a Capital Offense If the person charged with a capital offense, such as murder, admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death. Duty of judge to conduct hearing Where the prosecution agrees with the accused’s application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge Page 196 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should make a finding that the evidence against the accused is strong. Section 9. Amount of bail; guidelines THE JUDGE SHALL FIX A REASONABLE AMOUNT OF BAIL CONSIDERING PRIMARILY, BUT NOT LIMITED TO THE FOLLOWING FACTORS: a. b. c. d. e. f. g.

Financial ability of the accused to give bail; Nature and circumstances of the offense; Penalty for the offense charged; Character and reputation of the accused; Age and health of the accused; Weight of the evidence against the accused; Probability of the accused appearing at the trial; h. Forfeiture of other bail; i. The fact that the accused was a fugitive from justice when arrested; and j. Pendency of other cases where the accused is on bail. Section 10. Corporate Surety Any domestic or foreign corporation, licensed as surety in accordance with law and currently authorized to act as such, may provide bail by bond subscribed jointly by the accused and an officer of the corporation duly authorized by the board of directors. The term of the bail bond is not dependent upon faithful payment of the bond premium. Section 11. Property bond; how posted PROPERTY BOND It is an undertaking constituted as a lien on the real property given as security for the amount of the bail. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Within 10 days after the approval of the bond, the accused shall annotate the lien on the certificate of title with the Registry of Deeds and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Failure to do so shall be sufficient cause for cancellation of the property bond and his re-arrest and detention.

Section 12. Qualifications of sureties in property bond QUALIFICATIONS: a. Each must be a resident owner of real property 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 be equivalent to the whole amount of the bail demanded. d. Every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution. Section 13. Justification of Sureties BEFORE ACCEPTING A SURETY OR BAIL BOND, THE FOLLOWING REQUISITES MUST BE COMPLIED WITH: a. photographs of the accused; b. affidavit of justification; c. clearance from the Supreme Court; d. certificate of compliance with Circular No. 66 dated September 19, 1996; e. authority of the agent; and f. current certificate of authority issued by the Insurance Commissioner with a financial statement showing the maximum underwriting capacity of the surety company. NOTE: The purpose of requiring the affidavit of qualification by the surety before the judge is to enable the latter to determine whether or not the surety possesses the qualification to act as such, especially his financial worth as required in the previous section. Section 14. Deposit of cash as bail The accused or any person acting on his behalf may deposit cash with the nearest collector of 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. The trial judge has no authority to strictly require that only cash bond, instead of a surety bond, be deposited for the provisional release of the accused. Section 15. Recognizance

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RECOGNIZANCE It is an obligation of record, entered into before some court or officer authorized to take it with a condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. The release of the accused may be on his own recognizance, which means that he has become his own jailer. It may be to a responsible person. Persons charged with offenses falling under the Rule on Summary Procedure may be released either “on bail or on recognizance of a responsible citizen acceptable to the court.” Espiritu v. Jovellanos, A.M. No. MTJ-97-1139 (1997) THE FOLLOWING ARE CASES WHERE THE COURT MAY ORDER THE RELEASE ON RECOGNIZANCE OF ANY PERSON UNDER DETENTION a. when the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2000 fine, under the circumstances provided in RA No. 6036 b. where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance c. where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one d. in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD No. 603 as amended. Section 16. Bail, when not required; reduced bail or recognizance QuickTime™ and a TIFF (Uncompressed) decompressor

are needed to see WHEN this picture. THE LAW OR BAIL IS NOT REQUIRED RULES PROVIDE: 1. Offense charged is violation of an ordinance, light felony or criminal offense the imposable penalty does not exceed 6 months of imprisonment and/or fine of P2,000 under RA 6036. 2. Where the accused applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filing

one, in which case he may be released on his own recognizance. 3. In case of a youthful offender held for physical or mental examination, trial or appeal, if unable to furnish bail and under the circumstances provided by P.D. 603, as amended. 4. A person who has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, without prejudice to the continuation of the trial or the proceedings on appeal. 5. A person accused of an offense with a maximum penalty of destierro shall be released after 30 days of preventive imprisonment. Reduced Bail A person in custody for a period 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. Section 17. Bail, where filed WHERE BAIL IS FILED: 1. May be filed with the court where the case is pending; or 2. In the absence or unavailability of the judge thereof, with the regional trial judge or any inferior court judge in the province, city or municipality; 3. If the accused was arrested in a province, city or municipality other than the case is pending, bail may be filed with the RTC of the said place or if no judge is available, with any inferior court judge therein; 4. Where bail is a matter of discretion or the accused seeks to be released on recognizance, it may only be filed in the court where the case is pending, whether on trial or appeal; 5. Any person not yet charged in court may apply for bail with any court in the province, city or municipality where he is held; 6. If the accused was convicted and the nature of the offense changed from non-bailable to bailable, the application can be made with and resolved by the appellate court. A judge presiding in one branch has no power to grant bail to an accused who is being tried in another branch presided by another judge who is not absent or unavailable, and his act of releasing him on bail Page 198 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 constitutes ignorance of law which subjects him to disciplinary sanction. Section 18. Notice of application to prosecutor Court to give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. Section 19. Release on bail Upon approval of the bail by the judge, the accused must be discharged. An officer who fails or refuses to release him from detention notwithstanding the approval by the proper court of his bail bond may be held liable under Art. 126 if the Revised Penal Code for delaying release. Section 20. Increase or reduction of bail The Court may, upon good cause, either increase or reduce the amount of the bail. If the accused does not give the increased amount of bail within a reasonable time will be committed to custody. NOTE: Where the offense is bailable, the mere probability that the accused will escape or if he had previously escaped while under detention does not deprive him of his right to bail. The remedy is to increase the amount of bail, provided the amount is not excessive. (Sy Guan v. Amparo, 79 Phil 670) Section 21. Forfeiture of bail 1. When bail bond forfeited: • only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required. QuickTime™ and a (Uncompressed) decompressor 2. To justify TIFF exemption liability on a bail are needed to see from this picture. bond or reduction thereof, two requisites must be satisfied: • production or surrender of the person of the accused within 30 days from notice of the order of the court to produce the body of the accused or giving reasons for its nonproduction

• satisfactory explanations for the nonappearance of the accused when first required by the trial court to appear. ¾ Compliance with the first requisite without meeting the second requisite will not justify non-forfeiture of a bail bond or reduction of liability. • Failure to PRODUCE the body of the principal or give a reason for his nonproduction and EXPLAIN why the accused did not appear before the court when first required to do so, the court shall render a judgment against the bondsmen, jointly and severally for the amount of the bail. • The period of 30 days cannot be shortened by the court but may be extended for good cause shown. Order of Forfeiture vs. Order of Confiscation ORDER OF ORDER OF FORFEITURE CONFISCATION Conditional and Not independent of the interlocutory. It is not order of forfeiture. It is a appealable judgment ultimately determining the liability of the surety thereunder and therefore final. Execution may issue at once. Section 22. Cancellation of bail BAIL IS CANCELLED: 1. Upon application of the bondsmen with due notice to the prosecutor, upon surrender of the accused or proof of his death; 2. Upon acquittal of the accused; 3. Upon dismissal of the case; or 4. Execution of judgment of conviction. • Without prejudice to any liability on the bail. Section 23. Arrest of accused out on bail The bondsmen who put the bail bond for the accused become the jailers and they or the police officer to whom authority is endorsed may arrest the accused for the purpose of surrendering him to the court. The accused cannot leave the country without the permission of the bondsmen and the court. HOW SURETIES MAY BE RELIEVED FROM RESPONSIBILITY OVER THE ACCUSED: 1. Arrest the principal and deliver him to the proper authorities.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. They may cause the arrest of the accused to be made by any police officer or other person of suitable age or discretion. 3. By endorsing the authority to arrest upon a certified copy of the undertaking and delivering it to such officer or person. 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. HOLD-DEPARTURE ORDERS Supreme Court Circular No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the RTCs in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue hold-departure orders, following the maxim, express mention implies the exclusion. Neither does he have authority to cancel one which he issued. Section 24. No bail after final judgment; exception GENERAL RULE: No bail shall be allowed after the judgment has become final, as what is left is for him to serve the sentence.

2. The legality of the warrant issued therefore; or 3. From assailing the regularity or questioning the absence of a preliminary investigation of the charge against him. • Provided that the accused raises them before entering his plea. • The court shall observe the matter as early as practicable, but not later than the start of the trial of the case.

RULE 115 RIGHTS OF ACCUSED The rule enumerates the rights of a person accused of an offense, which are both constitutional as well as statutory, save the right to appeal which is purely statutory in character DUE PROCESS 1. Substantive – considers the intrinsic validity of the law 2. Procedural – based on the principle that a court hears before it condemns. Requirement of notice and hearing. Section 1. Rights of accused at trial

EXCEPTION: When he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. The application for probation must be filed within the period of perfecting an appeal. Such filing operates as a waiver of the right to appeal.

A. TO BE PRESUMED INNOCENT In all criminal prosecutions, the accused is presumed innocent until the contrary is proved beyond reasonable doubt.

EXCEPTION TO THE EXCEPTION: The accused shall not be allowed to be released on bail after he has commenced to serve his sentence.

The conviction should be based on the strength of the prosecution and not on the weakness of the defense, an accusation is not synonymous with guilt.

Section 25. Court supervision of detainees

REASONABLE DOUBT It is the doubt engendered by an investigation of the whole proof and inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required as to every proposition of proof requisite to constitute the offense.

The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of RTCs shall conduct monthly personal inspections of provincial, QuickTime™ and a (Uncompressed) decompressor city or municipal TIFF jails and the prisoners within their are needed to see this picture. respective jurisdictions. Section 26. Bail is not a bar to objections on illegal arrest, lack of or irregular preliminary investigation AN APPLICATION FOR ADMISSION TO BAIL SHALL NOT BAR THE ACCUSED FROM: 1. Challenging the validity of his arrest; or

REASON: the slightest possibility of an innocent man being convicted for an offense he has not committed for an offense he has not committed would be far more dreaded than letting a guilty person go unpunished or for a crime he may have perpetrated. EQUIPOSE RULE Page 200 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused who must be acquitted. EXCEPTIONS INNOCENCE

TO

THE

PRESUMPTION

OF

People v. Mingoa, 92 Phil 856 (1953) The legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the other is not unreasonable and arbitrary experience. In cases of self defense, the person who invokes self defense is presumed guilty. In this case a REVERSE TRIAL will be held. B. TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM The right requires that the information should state the facts and the circumstances constituting the crime charged in such a way that a person of common understanding may easily comprehend and be informed of what it is about. People v. Ortega, 276 SCRA 166 (2003) An accused may not be convicted of an offense unless it is clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. When a person is charged in a complaint with a crime and the evidence does not show that he is guilty thereof, but does show that he is guilty of some other crime or a lesser offense, the court may sentence him for the lesser offense, PROVIDED that the lesser offense is a cognate offense and is included in the complaint filed in court. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

The qualifying or aggravating circumstances must be ALLEGED and PROVED in order to be considered by the court. C. TO BE PRESENT AND DEFEND IN PERSON AND BY COUSEL AT EVERY STAGE OF THE PROCEEDING

1. During arraignment (Sec. 1b, Rule 116) 2. Promulgation of judgment EXCEPT when the conviction is for a light offense, in which case, it may be pronounced in the presence of his counsel or representative. 3. when ordered by the court for purposes of identification Not applicable in the SC and CA The law securing to an accused person the right to be present at every stage at the proceedings has no application to the proceedings before the CA and the SC nor to the entry and promulgation of the judgments. The defendant need not be present during the hearing of the appeal. (Sec. 9, Rule 124) Aquino, Jr. v. Military Commission, 63 SCRA 546 (1975) The accused may waive his right to be present during the trial. However, his presence may be compelled when he is to be identified. EFFECTS OF WAIVER OF THE RIGHT TO APPEAR BY THE ACCUSED 1. waiver of the right to present evidence 2. prosecution can present evidence if the accused fails to appear 3. the court can decide without the evidence of the accused Trial in Absencia It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance AFTER ARRAIGNMENT despite due notice simply means that he thereby waives his right to meet the witnesses face to face, among others. Such waiver of a right of the accused does not mean a release of the accused from his obligation under bond to appear in court when so required. The accused may waive his right but not his duty or obligation to the court. REQUIREMENTS FOR TRIAL IN ABSENTIA 1. accused has been arraigned 2. he has been duly notified of the trial 3. his failure to appear is unjustified Gimenez v. Nazareno, 160 SCRA 1 (1988) an escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses that have testified against him.

PRESENCE OF THE ACCUSED IS REQUIRED Page 201 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 D. RIGHT TO COUNSEL Importance: Without the aid of counsel, a person may be convicted, not because he is guilty but because he does not know how to establish his innocence. The right covers the period beginning from the custodial investigation, well into the rendition of the judgment and even on appeal. (People v. Serzo, Jr. 274 SCRA 553) the right to counsel can be invoked at any stage of the proceedings, even on appeal CUSTODIAL INVESTIGATION It is the questioning by law enforcement officers of a SUSPECT taken into custody or otherwise deprived of his freedom of action in a significant way. it includes the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. (RA 7437) People v. Morial, 363 SCRA 96 (2001) If during the investigation the assisting lawyer leaves, comes and goes, the statement signed by the accused is still inadmissible because the lawyer should assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. The right to counsel and the right to remain silent do not cease even after a criminal complaint/information has already been filed against the accused AS LONG AS he is still in custody. The duty of the court to appoint a counsel de oficio when the accused has no legal counsel of choice and a desire to employ one is MANDATORY only at the time of ARRAIGNMENT (sec. 6, Rule 116) DIFFERENCE BETWEEN THE RIGHT TO COUNSEL DURING CUSTODIAL INVESTIGATION ANF DURING THE TRIAL A. During trial – the right to counsel means EFFECTIVE counsel. Counsel is here not to prevent the accused from QuickTime™ and a confessing but to TIFF (Uncompressed) decompressor are needed to see this picture. defend the accused. B. Custodial Investigation – stricter requirement, it requires the presence of competent and independent counsel who is preferably the choice of the accused. Since a custodial investigation is not done in public there is a danger that confessions can be exacted against the will of the accused.

The right to counsel is NOT ABSOLUTE, it subject to being exercised within a reasonable time and manner (Laranaga v. CA, 281 SCRA 254) he cannot insist on one that he cannot afford, one who is not a member of the bar and one who declines for a valid reason such as conflict of interest. (People v. Servo, 274 SCRA 553) Waiver of Right to Counsel This is when the accused voluntarily submits himself to the jurisdiction of the court and proceeds with his defense. Jurisprudence provides that the defendant cannot raise the question of his right to have an attorney the first time on appeal. The accused may defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel. US v. Escalante, 36 Phil. 743 (1917) If the question is not raised in the trial court, the prosecution may go to trial. People v. Nang Kay, 88 Phil. 515 (1951) the question will not be considered in the appellate court for the first time when the accused fails to raise it in the lower court.. Delgado v. CA, 145 SCRA 357 (1986) The mistake of counsel will bind his client. The only exception is when the counsel represents himself as a lawyer and is not one because in that case the accused is denied of his right to counsel and due process. E. TO TESTIFY AS A WITNESS IN HIS OWN BEHALF People v. Santiago, 46 Phil 734 (1922) A denial of the defendant’s right to testify on his own behalf would constitute an unjustifiable violation of his constitutional right. If the accused testifies, he may be cross-examined ONLY on matters covered by his direct examination, unlike an ordinary witness who can be crossexamined as to any matter stated in the direct examination or connected therewith (Section 6, Rule 132). His failure to testify will not be taken against him but his failure to present evidence in his behalf shall be taken against him (US v. Bay, 97 SCRA 495).

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The testimony of an accused who testifies on his own behalf but refuses to be cross examined will not be given weight and will have no probative value because the prosecution will not be able to test its credibility.

he will give or the evidence that he will produce would have the tendency to incriminate him for the crime that he was charged. But he MAY refuse to answer any question incriminating him for an offense distinct from that for which he is charged.

F. RIGHT AGAINST SELF-INCRIMINATION

RIGHTS OF THE ACCUSED IN THE MATTER OF TESTIFYING OF PRODUCING EVIDENCE Before the case: 1. Right to be informed 2. Right to remain silent and to counsel 3. right not to be subjected to force or violence or any other means which vitiate free will 4. right to have the evidence obtained in violation of these rights rejected After the case is filed in court: 1. right to refuse to be a witness 2. right to not have any prejudice whatsoever result to him by such refusal 3. the right to testify on his own behalf subject to cross-examination by the prosecution 4. while testifying the right to refuse a specific question which tends to incriminate him for some other crime.

The scope of this right covers only testimonial compulsion only and not the compulsion to produce real and physical evidence using the body of the accused. DNA TESTING is not covered in the right against self-incrimination RATIONALE FOR PROTECTING THE RIGHT AGAINST SELF INCRIMINATION: 1. humanitarian reasons, to prevent the state from using its coercive powers. 2. practical reasons- the accused is more likely to commit perjury. The accused in protected under this rule from questions that tend to incriminate him, which means those that may subject him to penal liability. The right may be waived by the failure of the accused to invoke the privilege at the proper time, that is AFTER the incriminating question is asked and BEFORE his answer. The privilege of the accused to be exempt from testifying as a witness, involves a prohibition against testimonial compulsion only and the production by the accused of incriminating documents and articles demanded off him. (US v. Tan Teng, 23 Phil, 145) EXCEPTIONS: immunity statutes such as: 1. RA 1379 (Forfeiture of illegally obtained wealth) 2. RA 749 – Bribery and Graft cases RIGHT OF THE ACCUSED V. RIGHT OF AN ORDINARY WITNESS The ordinary witness may be compelled to take the witness stand and claim the privilege as each and QuickTime™ and a TIFFquestion (Uncompressed) every incriminating isdecompressor thrown at him while an are needed to see this picture. accused may refuse to take the witness stand and refuse to answer any and all questions. The accused may also refuse to answer on his past criminality only if he can still be prosecuted for it. However, if the accused testifies in his own behalf, then he may be cross-examined as any other witness. He may NOT on cross examination refuse to answer any question on the ground that the answer

USE IMMUNITY Witness’ compelled testimony and the fruits thereof cannot be used in subsequent prosecution of a crime against him Witness can still be prosecuted but the compelled testimony cannot be used against him.

TRANSACTIONAL IMMUNITY Witness immune from prosecution of a crime to which his compelled testimony relates.

witness cannot be prosecuted at all

Effect of Refusal of Accused to Testify GENERAL RULE: Silence should not prejudice the accused. EXCEPTION: Unfavorable inference is drawn when: 1. the prosecution has already established a prima facie case, the accused must present proof to overturn the evidence 2. the defense of the accused is an alibi and he does not testify, the interference is that the alibi is not believable. G. RIGHT TO CONFRONT AND CROSS EXAMINE WITNESSES AGAINST HIM AT TRIAL (RIGHT OF CONFRONTATION)

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 CONFRONTATION It is the act of setting a witness face to face with the accused so that the latter may make any objection he has to the witness, and the witness may identify the accused, and this must take place in the presence of the court having jurisdiction to permit the privilege of cross examination. The main purpose of this right to confrontation is to secure the opportunity of cross examination and the second purpose is to enable the judge to observe the demeanor of the witness. By way of exception to this rule, it is provided that the court may utilize as part of its evidence the testimony of a witness who is deceased, out of or with due diligence cannot be found in the Philippines, unavailable or otherwise unable to testify, given in another proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having had the opportunity to crossexamine him. (Rule 130, Sec 47) In any criminal proceeding, the defendant enjoys the right to have compulsory process to secure the attendance of witnesses and the production of evidence on his behalf. WAIVER OF RIGHT TO CONFRONTATION a. May be done expressly or impliedly. b. It is implied when the accused waives his right to be present at trial or when he was given the opportunity but fails to take advantage of it.

2. reason for the delay 3. the accused’s assertion or non assertion of the right 4. prejudice to the accused resulting from the delay. Rules on Speedy Trial The limitation of this right is that the State must not be deprived of its day in court and the right of the State and the prosecution of due process must be respected. There is NO violation of the right where the delay is imputable to the accused. (Solis v. Agloro, 64 SCRA 370) The right to a speedy trial is violated when there are UNJUSTIFIED postponements (People v. Declaro, 170 SCRA 143) REMEDIES AVAILABLE TO THE ACCUSED WHEN HIS RIGHT TO A SPEEDY TRIAL IS VIOLATED 1. He should ask for the trial of the case, not the dismissal. 2. Unreasonable delay of the trial of a criminal case as to make the detention of the defendant illegal gives ground for habeas corpus as a remedy for obtaining release as to avoid detention for a reasonable period of time. 3. Accused would be entitled to relief in a mandamus proceeding to compel the dismissal of the information. 4. ask for the trial of the case and then move to dismiss (Gandicela v. Lutero, 88 Phil. 790)

H. RIGHT TO COMPULSORY PROCESS This is the right of the accused to have a subpoena and/or a subpoena duces tecum issued in his behalf in order to compel the attendance of witnesses and the production of other evidence. If a witness refuses to testify when required is in contempt of court. The court may order a witness to give bail or to be arrested. I. RIGHT TO A SPEEDY, IMPARTIAL QuickTime™ and a TIFF (Uncompressed) decompressor PUBLIC TRIAL are needed to see this picture.

AND

The right to a speedy trial is intended to avoid oppression and to prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. FACTS CONSIDERED TO DETERMINE IF RIGHT TO SPEEDY TRIAL HAS BEEN VIOLATED 1. length of the delay

Impartial Trial Due process requires a hearing before an impartial and disinterested tribunal and that every litigant is entitled to nothing less that the cold neutrality of an impartial judge. (Mateo, Jr. v. VIllaluz, 50 SCRA 180) “Like Caesar’s wife, a judge must not be only pure but beyond suspicion.” (Palang v. Zosa, 58 SCRA 776) Public Trial One held open or publicly; anyone interested in observing the way the judge conducts his proceedings in a courtroom may do so (Garcia v. Domingo, 52 SCRA 143) it is sufficient that relatives and friends who want to watch the proceedings are given the opportunity to witness the proceedings. It is done in public to prevent abuses that may be committed by the court and the accused is entitled to moral support from his friends and relatives. If it is done in the judges chambers, it is still valid because

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the public is not excluded. (Garcia v. Domingo, 52 SCRA 143) EXCLUSION OF THE PUBLIC IS VALID WHEN: 1. evidence to be produced is offensive to decency or public morals 2. upon motion of the accused (Section 21, Rule 119) Rule on Trial by Publicity The right of the accused to a fair trial is NOT incompatible to free press. Pervasive publicity is no per se as prejudicial to the right to a fair trial. To warrant the finding of prejudicial publicity, there must be allegations and proof that judges have been unduly influenced, not simply that they might be due to the barrage of publicity. (People v. Teehankee, 249 SCRA 54) J. RIGHT TO APPEAL ON ALL CASES ALLOWED BY LAW AND IN THE MANNER PRESCRIBED BY LAW The right to appeal from a judgment of the conviction is fundamentally of statutory origin. It is not a matter of absolute right that is independent of constitutional or statutory provisions allowing such appeal. Waiver of Right to Appeal The right to appeal is personal to the accused and it may be waved either expressly or by implication. HOWEVER, where the death penalty is imposed, such right cannot be waived as the review of the judgment by the SUPREME COURT is automatic and mandatory (A.M. No. 00-5-03 SC) Ozaeta v. CA, 179 SCRA 800 (1989) Anyone who seeks to exercise the right to appeal must comply with the requirements of the rules. Otherwise the right to appeal is lost People v. Ang Gioc, 74 Phil. 366 (1941) When the accused flees, after the case has bee submitted to court for decision, he will be deemed to have waived his right to appeal from the judgment QuickTime™ and a rendered against TIFF him(Uncompressed) decompressor are needed to see this picture.

NOTE: such may no be reviewed by the CA. THE SPEEDY TRIAL ACT OF 1998 (RA 8493) DUTY OF THE COURT AFTER THE ARRAIGNMENT OF THE ACCUSED The court SHALL order a pre-trial conference to consider the following:

1. 2. 3. 4.

plea bargaining stipulation of facts marking and identification of evidence waiver of objections to admissibility of evidence 5. such other matters as will promote a fair and expeditious trial Time Limit for Trial in Criminal Cases Shall not exceed 180 days from the first day of trial, however the rule is not absolute. The EXCEPTIONS: 1. those governed by the Rules on Summary Procedure 2. where the penalty prescribed by law does NOT exceed 6 months imprisonment or a fine of P1,000 or both 3. those authorized by the Chief Justice of the SC Period of Arraignment of Accused Within 30 days from the filing of the information, or from the date the accused appealed before the justice/judge/court in which the charge is pending, whichever date last occurs. When Shall Trial Commence After Arraignment Within 30 days from arraignment, HOWEVER, it may be extended BUT only: 1. for the 180 days for the first 12 calendar month period from the effectivity of the law 2. 120 days for the second 12 month period 3. 80 days for the third 12 month period

RULE 116 ARRAIGNMENT AND PLEA ARRAIGNMENT It means for bringing the accused into court and informing him of the nature and cause of the accusation against him. Section 1. Arraignment and plea; how made HOW ARRAIGNMENT IS MADE: 1. in open court where the complaint or information has been filed or assigned for trial 2. by the judge or clerk of court 3. by furnishing the accused with a copy of the complaint or information 4. reading it in a language or dialect known to the accused 5. asking accused whether he pleads guilty or not guilty When Arraignment Should be Held Page 205 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person, unless a shorter period is provided for by law. The time of the pendency of a motion to quash or a bill of particulars or other causes justifying suspension of arraignment shall be excluded in computing the period. WHEN ARRAIGNMENT IS HELD WITHIN A SHORTER PERIOD: 1. When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case (RA 8493 Speedy Trial Act) 2. where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay (RA 4908) 3. Cases under RA 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment 4. Cases under the Dangerous Drugs Act 5. Cases under SC AO 104-96, i.e., heinous crimes, violations of the Intellectual Property Rights Law, these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case Notes on Arraignment: • Trial in absentia may be conducted only after valid arraignment • Accused must personally appear during arraignment and enter his plea (counsel cannot enter plea for accused) • Accused is presumed to have been validly arraigned in the absence of proof to the contrary • Generally, judgment is void if accused has not been validly arraigned • If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that the QuickTime™ and a accused was able TIFF (Uncompressed) decompressor are needed to seeand this picture. to present evidence cross-examine the witnesses of the prosecution during trial. WHEN A PLEA OF “NOT GUILTY” SHOULD BE ENTERED: 1. When accused so pleaded 2. When he refuses to plead 3. When he makes a conditional or qualified plea of guilt (Ex. Accused pleads guilty but adds “pero hindi ko sinasadya”)

4. When the plea is indefinite or ambiguous 5. When he pleads guilty but presents exculpatory evidence (ex. Evidence to prove complete self-defense) NOTE: if the accused who pleaded guilty presents exculpatory evidence, his plea of guilty is withdrawn. The judge must order the accused to plead again or at least direct that a new plea of “not guilty” be entered for him, otherwise there shall be no standing plea for the accused. This is significant because if there is no standing plea, the accused cannot invoke double jeopardy later on. Presence of Offended Party The private offended party is required to appear in the arraignment for the purpose of plea bargaining, determination of civil liability and other matters requiring his presence. In case the offended party fails to appear despite due notice, the trial court may allow the accused to plead guilty to a lesser offense necessarily included in the offense charged with the conformity of the trial prosecutor alone. Section 2. Plea of guilty to a lesser offense PLEA BARGAINING It is process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to the court’s approval. it usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge. It precludes the filing and prosecution of the offense originally charged in the information, except when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor. Plea to Lesser Offense During Arraignment During arraignment, the accused may enter a plea of guilty to a lesser offense PROVIDED there is consent of the offended party AND of the prosecutor to the plea of guilty to a lesser offense that is necessarily included in the offense charged. Plea to Lesser Offense After Arraignment but Before Trial After arraignment but BEFORE trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his previous plea of not guilty. No Page 206 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 amendment to the complaint or information is necessary. Plea to Lesser Offense After Trial has Begun After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evidence to establish the guilt of the accused for the crime charged. The judge cannot on its own grant the change of plea. Presence and Consent of the Offended Party The consent of the offended party is necessary before the accused may be allowed to plead guilty to a lesser offense. If the plea of guilty to a lesser offense is made without the consent of the prosecutor and the offended party, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information (No double jeopardy). If the offended party fails to appear during arraignment, the court may allow the accused to plead guilty to a lesser offense with the conformity of the trial prosecutor alone Section 3. Plea of guilty to capital offense; reception of evidence IMPROVIDENT PLEA It is a plea without information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information or advice. DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE: 1. Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the plea 2. require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused 3. ask the accused if he desires to present evidence in his behalf and allow him to do so if QuickTime™ and a decompressor he desires TIFFare(Uncompressed) needed to see this picture. ELEMENTS OF “SEARCHING INQUIRY” 1. Judge must convince himself that accused is entering the plea voluntarily and intelligently 2. Judge must convince himself that there exists a rational bass for the finding of guilt based on accused’s testimony

3. Inform the accused of the exact length of imprisonment and the certainty that he will serve it in a national penitentiary Effects of Improvident Plea The conviction will be set aside if the plea of guilty is the sole basis for the judgment. However, the court may validly convict the accused if such conviction is supported by adequate evidence of guilt independent of the plea itself. Section 4. Plea of guilty to non-capital offense; reception of evidence, discretionary Consequences of Plea of Guilty As a rule, a plea of guilty is an unqualified admission of the crime and of the attending circumstances (aggravating and/or qualifying) alleged in the complaint. Such plea removes the necessity of presenting further evidence and for all intents and purposes the case is deemed tried on its merits and submitted for decision. However, the court may, upon motion, allow the presentation of evidence to prove aggravating and mitigating circumstances. The trial court may allow an accused to plead guilty and at the same time allow him to prove other mitigating circumstances. However, if what the accused would prove is an exempting circumstance, which would amount to a withdrawal of his plea of not guilty. If the accused is permitted to present evidence after his plea of guilty to a non-capital offense and such shows that the accused is not guilty of the crime charged, the accused must be acquitted, for there is no rule which provides that simply because the accused pleaded guilty to the charge that his conviction automatically follows. Additional evidence independent of the plea may be considered to convince the judge that it was intelligently made. For non-capital offenses, the reception of evidence is merely discretionary on the part of the court. If the information or complaint is sufficient for the judge to render judgment on a non-capital offense, he may do so. But if the case involves a capital offense, the reception of evidence to prove the guilt and degree of culpability of the accused is mandatory. Section 5. Withdrawal of improvident plea of guilty INSTANCES OF IMPROVIDENT PLEA: Page 207 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Plea of guilty was compelled by violence or intimidation 2. Accused did not fully understand the meaning and consequences of his plea 3. Insufficient information to sustain conviction of the offense charged 4. Information does not charge an offense 5. Court has no jurisdiction When Improvident Plea may be Withdrawn At any time before judgment of conviction becomes final, the court may permit and improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty People vs Lambino, 103 Phil 504 (1958) The withdrawal of a plea of guilty is not a matter of right to the accused but of sound discretion to the trial court. The reason for this is that trial has already begun and the withdrawal of the plea will change the theory of the case and put all past proceedings to waste. Moreover, at this point, there is a presumption that the plea was made voluntarily. Section 6. Duty of court to inform accused of his right to counsel 4-FOLD DUTY OF COURT WHEN ACCUSED APPEARS WITHOUT COUNSEL: 1. Inform the defendant that he has a right to an attorney before being arraigned 2. After informing him, court must ask the defendant if he desires to have the aid of an attorney 3. If he desires but is unable to employ one, the court must assign an attorney de oficio to defend him 4. If the accused desires to procure an attorney of his own, the court must grant him reasonable time to do so • Failure to comply with this 4-fold duty amounts to a violation due process QuickTime™ and a Section 7. Appointment of counsel de oficio TIFF (Uncompressed) decompressor are needed to see this picture.

COUNSEL DE OFICIO He is counsel appointed by the court to represent and defend the accused in case he cannot afford to employ one himself WHO MAY BE APPOINTED COUNSEL DE OFICIO: 1. Such members of the bar in good standing who can competently defend the accused

2. In localities where such members of the bar are not available, any resident of the province of good repute for probity and ability. Duty of the Court to Appoint Counsel During Arraignment vs During Trial During arraignment, the court has an affirmative duty to inform the accused of his right to counsel and to provide him with one in case he cannot afford it. The court must act on its own volition unless the right is waived by the accused. During trial, it is the accused who must assert his right to counsel. The court will not act unless the accused invokes his rights. Section 8. Time for counsel de oficio to prepare for arraignment What Constitutes “Reasonable Time” It depends on the circumstances surrounding the case such as the gravity of the offense, complexity of the allegations, whether a motion to quash or a bill of particulars has to be filed, etc. Generally, reasonable time to prepare for trial is 215 days Generally, reasonably time to arraignment is 30 mins to 1 hour

prepare

for

NOTE: Counsel for the accused must expressly demand the right to be given reasonable time to consult with the accused. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Section 9. Bill of Particulars Rules for Bill of Particulars Accused must move for a bill of particulars BEFORE arraignment to enable him to properly plead and prepare for trial, otherwise it is deemed waived. The motion for bill of particulars must contain (1) the alleged defects in the complaint or information and (2) details desired. Rule 12 on Bill of Particulars applies by analogy to Bill of Particulars as provided in Sec. 9 of Rule 116. The remedy against an information that fails to allege the time of the commission of the crime with sufficient definiteness is a bill of particulars, not a motion to quash.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 IT IS NOT THE OFFICE OF THE BILL OF PARTICULARS TO: a. Supply material allegation necessary to the validity of a pleading b. Change a cause of action or defense stated in the pleading, or to state a cause of action or defense other than the one stated. c. Set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to rely. d. Furnish evidentiary information whether such information consists of evidence which the pleader proposes to introduce or of facts which constitute a defense or offset for the other party or which will enable the opposite party to establish an affirmative defense not yet pleaded. The filing of a motion for bill of particulars suspends the period to file a responsive pleading. If the motion is granted, the moving party has the remaining period or at least 5 days to file his answer from service of the bill of particulars. If the motion is denied, he has the same period to file his responsive pleading from receipt of the order denying the motion. Section 10. Production or inspection of material evidence in possession of prosecution Right to Modes of Discovery Right of the accused to move for the production of material evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the prosecution in its possession after obtaining permission of the court. The purpose of such right is to prevent surprises to the accused and the suppression or alteration of evidence. Such right is available even during preliminary investigation when suchQuickTime™ is necessary to protect the and a TIFFto (Uncompressed) decompressor constitutional right life, liberty and property of the are needed to see this picture. accused. Section 11. Suspension of arraignment GROUNDS FOR SUSPENSION 1. There exists a prejudicial question 2. Accused appears to be suffering from an unsound mental condition which renders him

unable to understand the charge against him and to plead intelligently thereto. 3. There is a petition for review pending before the DOJ or Office of the President, however the period of suspension shall not exceed 60 days counted from the filing of the petition for review.

RULE 117 MOTION TO QUASH Section 1. Time to move to quash QUASHAL VS. NOLLE PROSEQUI: The quashal of the complaint or information is different from a nolle prosequi, although both have one result, which is the dismissal of the case. A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused. A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of its judicial discretion. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. It is not an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense. Time to File Motion to Quash GENERAL RULE: A motion to quash (MTQ) may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court. EXCEPTION: Under Sec. 9, Rule 117, which adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground (1) that the facts alleged in the information charge no offense, (2) that the court has no jurisdiction over the offense charged, (3) that the offense or penalty has prescribed, or (4) that the doctrine of double jeopardy precludes the filing of the information. Right to File MTQ Belongs Only to the Accused. There is nothing in the rules which authorizes the court or judge to motu proprio initiate a MTQ by

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 issuing an order requiring why the information may not be quashed on the ground stated in said order. Section 2. Form and contents REQUIRED FORM OF MTQ 1. It must be in writing 2. It must be signed by the accused OR his counsel 3. It must specify the factual and legal grounds on which it is based. NOTE: Generally, the court cannot consider any other ground other than those specifically stated in the motion to quash, EXCEPT when the ground for quashal is lack of jurisdiction over the offense charged. If this is the ground for dismissing the case, it need not be alleged in the MTQ because it goes into the very competence of the court to pass upon the case.

The fact that the allegations in the complaint or information are vague or broad, is not generally a ground for a motion to quash, the remedy being to file a motion for bill of particulars. Lack of Jurisdiction over the Person The inclusion of other grounds other than lack of jurisdiction over the person of the accused in an MTQ does not amount to voluntary submission or a waiver of such ground. Officer Filing the Information Had No Authority The prosecutor who signed the information must have territorial jurisdiction to conduct the preliminary investigation of the offense, otherwise the information filed by him would be invalid and can be quashed on such ground Lack of authority of the officer is not cured by silence, acquiescence or express consent or even by amendment

Section 3. Grounds GROUNDS FOR MOTION TO QUASH 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged 3. Court trying the case has no jurisdiction over the person of the accused 4. Officer who filed the information had no authority to do so 5. Information does not conform substantially to the prescribed form 6. That more than one offense is charged (duplicitous information) 7. Criminal action or liability has been extinguished 8. Information contains averments which, if true, would constitute a legal excuse or justification 9. double jeopardy NOTE: the grounds enumerated in this section are the EXCLUSIVE grounds for a MTQ. Facts Alleged Do Not Constitute an Offense QuickTime™ and a TIFF (Uncompressed) decompressor The test to determine if the facts charged constitute are needed to see this picture. an offense is to determine WON all the essential elements of the crime have been alleged. The trial court should limit its inquiry to: • the averments in the information (these are deemed hypothetically admitted); • facts admitted by the prosecution; and • Indubitable facts.

Legal Excuse or Justification The term “legal excuse or justification” only includes exempting circumstances and NOT justifying circumstances. Justifying circumstances such as selfdefense or defense of a stranger is a matter of defense that must be proven in trial. HOW CRIMINAL LIABILITY IS EXTINGUISHED 1. Death of the accused, but as to pecuniary penalties, liability therefor is extinguished only if death occurs before final judgment 2. Amnesty 3. Marriage of the offended woman, as stated in Art 344 of the RPC 4. Prescription of the crime 5. Service of sentence 6. Absolute pardon 7. Prescription of penalty HOW CRIMINAL LIABILITY IS PARTIALLY EXTINGUISHED 1. Conditional pardon 2. Commutation of sentence 3. Allowances earned for good conduct while serving sentence AMNESTY Given for political crimes Given to a class of persons Needs concurrence of Congress Beneficiary need not

PARDON Given for common crimes Given to an individual Concurrence of congress not needed Distinct acts of Page 210 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 accept (but must admit to being a part of the class granted amnesty) Courts take judicial notice of amnesty (need not be proved in court or may be proven even if not alleged) Abolishes the offense (looks backward) Granted before or after prosecution

acceptance needed if pardon is conditional Courts do not take judicial notice of pardon (must be proved in court) Relieves the offender of liability (looks forward) Granted only after conviction

Rules on Prescription The period of prescription of violation of special laws or offenses not penalized by the Revised Penal Code but by special laws, and municipal ordinances is governed by Act No. 3326 which took effect on December 4, 1926. Where an accused has been found to have committed a lesser offense includible within the offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. The rule that if the last day falls on a Sunday or a holiday, the act can still be done the following day does not apply to the computation of the period of prescription of a crime, in which the rule is that if the last day in the period of prescription of a felony falls on a Sunday or legal holiday, the information concerning said felony cannot be filed on the next working day, as the offense has by then already prescribed. The period of a continuing crime’s prescription is counted from the latest or last act constituting the series of acts continuing the single crime. The prescriptive period of offenses penalized by special laws and ordinances is interrupted only by the filing of complaint or information This is QuickTime™ and a in court. TIFF (Uncompressed) decompressor without distinction areas toto seewhether the cases are needed this picture. covered by the Rule on Summary Procedure. The period of prescription does not run when the offender is absent from the Philippines. Rule on Contentious Motions Contentious motions in criminal cases must comply with the requirements that they be set for hearing at a specified date with prior notice to the adverse party or

the prosecutor at least 3 days before the hearing, the notice of hearing should be addressed to adverse counsel or the prosecutor, and proof of service of the motion upon the adverse party or prosecutor at least 3 days prior to such hearing. This is mandatory. Section 4. information

Amendment

of

complaint

or

If the alleged defect in the complaint or information may be cured by amendment, the court shall order the amendment instead of quashing the complaint or information. However, if the prosecution fails to amend the complaint or if after the amendment the defect is still not cured, the MTQ shall be granted. A good tactical move would be to have the accused first plead to the information and thereafter file a motion to quash either before or after the prosecution has presented its evidence. Pursuant to Sec. 9 of Rule 117, an accused, even after he has entered his plea, may still move to quash the information on the ground that it does not charge an offense. If the case is dismissed on such ground, the prosecution may not be permitted to correct the information because the accused has already pleaded and to allow such amendment may place the accused twice in jeopardy. Section 5. Effect of sustaining the motion to quash EFFECTS IF MOTION TO QUASH IS SUSTAINED: 1. If the ground for the motion is either: a. Facts charged do not constitute an offense b. Officer who filed the information had no authority to do so c. Information does not conform substantially to the prescribed form d. duplicitous information The court may order that another information be filed or an amendment thereof be made, as the case may be, within a definite period. If such order is not made, or if having been made, another information is not filed within the time specified in the order or within such time as the court may order, the accused, if in custody, shall be discharged therefrom, unless he is also in custody on some other charge. 2. If the motion is based on the following grounds: a. Criminal action or liability has been extinguished

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. Information contains averments which, if true, would constitute a legal excuse or justification c. double jeopardy The court must state, in the order granting the motion, the release of the accused if he is in custody or the cancellation of his bond if he is on bail. 3. If the ground for the MTQ was that the court has no jurisdiction over the offense, the better practice is to forward or remand the case to the proper court, not to quash the complaint or information. PROCEDURE IF MOTION TO QUASH IS DENIED: 1. Accused should plead 2. Accused should go to trial without prejudice to the special defenses he invoked in the motion 3. Appeal from the judgment of conviction, if any, and interpose the denial of the motion as an error. Remedy of Aggrieved Party An order granting a MTQ is appealable, as the proper remedy. The accused would not be placed in double jeopardy because the accused has not been arraigned yet. Newsweek Inc. vs IAC, 142 SCRA 443 (1986) An order denying a MTQ is not appealable because such order is merely interlocutory. However, if the court, in denying the MTQ, acts with grave abuse of discretion, the certiorari or prohibition will lie. This rule does not preclude the aggrieved party from filing a special civil action of certiorari, as a substitute for the remedy of a lost appeal, where there is a patent, capricious and whimsical exercise of discretion by a trial judge or where an appeal will not promptly relieve the aggrieved party from the injurious effect of the disputed order, as in the quashal of an information for incomplete preliminary investigation. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception GENERAL RULE: An order sustaining a MTQ is not a bar to another prosecution for the same offense EXCEPTIONS: When the ground for the MTQ is any of the following:

1. Criminal action extinguished 2. double jeopardy

or

liability

has

been

Section 7. Former conviction or acquittal; double jeopardy KINDS OF DOUBLE JEOPARDY: 1. No person shall be put twice in jeopardy for the SAME OFFENSE 2. When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the SAME ACT IDENTITY RULE There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense is includes or is necessarily included in the first offense or is an attempt or frustration of thereof EXCEPTIONS TO IDENTITY RULE: 1. The graver offense developed due to supervening facts arising out of the same act or omission constituting the former charge 2. The facts constituting the graver offense became known or were discovered only after a plea was entered in the former complaint or information. 3. the plea of guilty to a lesser offense was made without the consent of the prosecutor and the offended party REQUISITES TO RAISE DOUBLE JEOPARDY: 1. first jeopardy must have attached 2. first jeopardy must have been terminated 3. the second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt or frustration thereof. REQUISITES FOR 1ST JEOPARDY TO ATTACH: 1. valid complaint or information 2. court of competent jurisdiction 3. valid arraignment 4. valid plea 5. the defendant was acquitted, convicted, or the case was dismissed without his express consent or authority. NOTE: In order to raise double jeopardy for the SAME ACT, there must be an acquittal or conviction. For double jeopardy for the SAME OFFENSE it is

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 sufficient that the case was dismissed without his express consent. Perez vs. CA, 163 SCRA 236 (1988) If a single act is punished by two different laws, but each requires proof of an additional fact which the other does not require, conviction or acquittal in one will not bar a prosecution for the other.

An order discharging an accused as a state witness amounts to an acquittal, hence double jeopardy will apply. However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement, he may be prosecuted again. Section 8. Provisional dismissal

Ex. Violation of BP 22 and Estafa Double Jeopardy will not apply in case of a conviction of a crime under a special law, which also constitutes an offense under the Revised Penal Code. This is because the former is malum prohibitum, while the latter is mala in se. In order for double jeopardy to attach, the judgment must be reading its entirety (promulgation of judgment). If only the dispositive portion is read, then double jeopardy will not attach. Test for “Valid Complaint or Information” In general, if it can support a valid conviction. This means that all the necessary elements of the crime are alleged What is controlling for purposes of determining the presence of double jeopardy is the crime charged in the complaint not the crime proven in trial. DISMISSAL Does not decide the case on the merits, does not determine defendant’s guilt or innocence Double Jeopardy will not always attach

ACQUITTAL Always based on the merits. Defendant is acquitted bec. guilt wasn’t proven beyond reasonable doubt Double Jeopardy always attaches

WHEN DISMISSAL = ACQUITTAL: 1. Demurrer to evidence 2. Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent) QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Rules Regarding “Without Express Consent” If dismissal was upon motion of the accused or counsel, such is deemed to be with defendant’s express consent. Silence of the accused does not mean consent. Statement of “no objection” is express consent. Rules Regarding State Witnesses

REQUISITES PROVISIONAL DISMISSAL: 1. consent of the prosecutor 2. consent of the accused 3. notice to the offended party NOTE: If a case is provisionally dismissed, the failure to revive or reinstate the case within the periods set by law will make the dismissal permanent. HOW TO REVIVE A CASE: 1. Refiling of the information 2. Filing a new information for the same offense or one necessarily included in the original offense charged PERIODS FOR REINSTATEMENT/REVIVAL: 1. 1 YEAR for offenses punishable imprisonment not exceeding 6 years 2. 2 YEARS for offenses punishable imprisonment exceeding 6 years

by by

GENERAL RULE: When a case is reinstated there is no need to conduct a new preliminary investigation EXCEPTIONS: • Original witnesses or some of them recant their testimony, are no longer available (died) or when new witnesses have emerged • Other persons are charged under the new complaint • Original charge has been upgraded • Criminal liability of the accused has been upgraded (ex. accomplice Æ principal) Section 9. Failure to move to quash or to allege any ground therefor ALL THE GROUNDS FOR A MTQ ARE DEEMED WAIVED IF NOT SEASONABLY RAISED, EXCEPT: 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged 3. Criminal action or liability has been extinguished 4. double jeopardy Page 213 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 this is in order to enforce the mandatory nature of pre-trial in criminal cases. RULE 118 PRE-TRIAL Section 1. Pre-trial; mandatory in criminal cases Pre-trial is MANDATORY in all criminal cases The court shall after arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for by law, order a pre-trial. Its main objective is to achieve an expeditious resolution of the case. THINGS CONSIDERED DURING PRE-TRIAL: 1. plea bargaining 2. stipulation of facts 3. marking for identification of evidence 4. waiver of objections to admissibility of evidence 5. modification of the order of trial if the accused admits the charge but interposes a lawful defense (reverse trial) 6. other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case

The sanctions may be in the form of reprimand, fine, or imprisonment. Inasmuch as this is similar to indirect contempt of court, the penalty for indirect contempt of court may be imposed. He court may only impose sanctions for nonappearance on counsel or the prosecutor, not on the accused. The reason why the accused is not required to appear is that to include him among the mandatory parties might violate his constitutional right to remain silent. Section 4. Pre-trial order PRE-TRIAL ORDER It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference. Such order binds the parties and limits the trial to those matters not disposed of.

RULE 119 TRIAL Section 1. Time to prepare for trial

Section 2. Pre-trial agreement REQUIRED FORM OF PRE-TRIAL AGREEMENT: 1. must be in writing 2. signed by the accused 3. signed by counsel NOTE: If the required form is not observed, the pretrial agreement cannot be used against the accused. This is contrary to the rule on stipulations of facts during trial which only requires the signature of counsel in order to be valid. Purpose of the Rule The requirements in Section 2 are intended to further safeguard the rights QuickTime™ of the accused against and a (Uncompressed) decompressor improvident or TIFFareunauthorized agreements or needed to see this picture. admissions which his counsel may have entered into without his knowledge Section 3. Non-appearance at pre-trial conference The court may impose proper penalties and sanctions for non-appearance during the pre-trial conference by the counsel for the accused or the prosecutor without acceptable cause. The reason for

TRIAL It is the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case for the purpose of determining such issue HEARING It is not confined to trial but embraces the several stages of litigation, including the pre-trial stage. Republic v. Sandiganbayan, 416 SCRA 133 (2003) A hearing does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded an opportunity to be heard. After a plea of guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of the pre-trial order The trial judge does not lose jurisdiction to try the case after the 180-day limit. He may, however, be penalized with disciplinary sanctions for failure to Page 214 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 observe the prescribed limit without authorization by the Supreme Court.

proper

hearing, unless for meritorious reasons an extension is permitted.

REQUISITES FOR TRIAL IN ABSENTIA: 1. The accused has been arraigned 2. He has been notified of the trial 3. His failure to appear is unjustified

The non-appearance of the prosecution at the trial, despite due notice, justified a provisional dismissal or an absolute dismissal depending upon the circumstances

People v. Agbulos, G.R. No. 73907 (1993) The purpose of trial in absentia is to speed up the disposition of criminal cases.

CASES WHERE TIME LIMITATION IS INAPPLICABLE: 1. Criminal cases covered by the Rule on Summary Procedure or those where the penalty does not exceed 6 months imprisonment or a fine of P1,000 as governed by the Rules on Summary Procedure 2. When the offended party is about to depart with no definite date of return 3. Child abuse cases 4. Violations of Dangerous Drugs Law 5. Kidnapping, robbing in a band, robbery against banking or financial institution, Violation of Carnapping Act and other heinous crimes

Effects of trial in absentia: People v. Landicho, G.R. No. 119527 (1996) The accused waives the right to present evidence and cross-examine the witnesses against him The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. INSTANCES WHERE THE PRESENCE OF THE ACCUSED IS REQUIRED BY LAW: 1. On arraignment; 2. On promulgation of judgment except for light offenses; 3. For identification purposes; 4. When the court with due notice requires so. Section 2. Continuous trial until terminated; postponements CONTINUOUS TRIAL SYSTEM Trial once commenced shall continue from day to day as far as practicable until terminated; but it may be postponed for a reasonable period of time for good cause Trial shall in no case exceed 180 days from the first day of trial, except as otherwise provided by the QuickTime™ and a Supreme Court TIFF (Uncompressed) decompressor are needed to see this picture.

The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for trial well-defined at pre-trial and the whole proceedings terminated and ready for judgment within 90 days from the date of initial

REQUISITES BEFORE A TRIAL CAN BE PUT ON ACCOUNT OF THE ABSENCE OF WITNESS: 1. That the witness is material and appears to the court to be so; 2. that the party who applies has been guilty of no neglect; 3. that the witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained; 4. that an affidavit showing the existence of the above circumstances must be filed. REMEDIES OF ACCUSED WHERE A PROSECUTING OFFICER WITHOUT GOOD CAUSE SECURES POSTPONEMENTS OF THE TRIAL OF A DEFENDANT AGAINST HIS PROTEST BEYOND A REASONABLE PERIOD OF TIME: 1. Mandamus to compel 2. if he is restrained of his liberty, by habeas corpus to obtain his freedom DUTIES OF PRESIDING JUDGE UNDER THE CONTINUOUS TRIAL SYSTEM: 1. Adhere faithfully to the session hours prescribed by laws; 2. maintain full control of the proceedings; 3. efficiently allocate and use time and court resources to avoid court delays Section 3. Exclusions

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 EXCLUSIONS IN COMPUTATION OF TIME WITHIN WHICH TRIAL MUST COMMENCE: A. Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: 1. Delay resulting from an examination of the physical and mental condition of the accused; 2. Delay resulting from proceedings with respect to other criminal charges against the accused; 3. Delay resulting from extraordinary remedies against interlocutory orders; 4. Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; 5. Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; 6. Delay resulting from a finding of existence of a prejudicial question; and 7. Delay reasonably attributable to any period, not to exceed thirty (30) days, during 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. 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 coaccused over whom the court has not acquired 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 QuickTime™ and a decompressor proprio, or TIFF onare(Uncompressed) motion of either the accused or needed to see this picture. 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. ABSENT

When the whereabouts are unknown or cannot be determined with due diligence UNAVAILABLE When his whereabouts are known but his presence at the trial cannot be obtained with due diligence Section 4. Factors granting continuance FACTORS FOR GRANTING CONTINUANCE: 1. Whether the failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice. 2. The case, as a whole, is novel, unusual and complex, or it is unreasonable to expect adequate preparation within the periods of time established therein. The grant of a motion for continuance is NOT a matter of right The purpose of this rule is to control the discretion of the judge in the grant of continuance on his instance or on motion of any party litigant. Section 5. Time limit following an order for new trial GENERAL RULE: After an order for new trial is issued, the trial commences within 30 days from notice of the order. EXCEPTION: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors, it may be extended by the court but in no case should it exceed 180 days from notice of said order for new trial. Section 6. Extended time limit Section 7. Public attorney’s duties where accused is imprisoned PUBLIC ATTORNEY’S DUTIES: 1. Promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right and demand trial. 2. Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. 4. When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purpose of trial, the prisoner shall be made available accordingly. Public Attorneys referred to in this section are those attorneys of the Public Attorney’s Office of the Department of Justice who are assisting accused not financially capable to have a counsel of their own. These public attorneys enter their appearance in behalf of the accused upon his request or that of his relative or upon being appointed as counsel de oficio by the court. The sanctions are designed to speed up the trial and disposition of the cases and to encourage the lawyers to go to court ready for trial and not “ready to postpone.” Section 8. Sanctions ACTS WHICH EVOKE THE SANCTION: 1. Knowingly allowing the case to be set on trial without disclosing that a necessary witness would be unavailable; 2. Files a motion solely for delay, knowing it to be frivolous and without merit; 3. Knowingly makes a false statement in order to obtain continuance; 4. Willfully fails to proceed to trial without justification. THE SANCTIONS: a) Private Defense Counsel – fine not exceeding P20, 000 + criminal sanctions, if any. b) Counsel de officio, Public Attorney or Prosecutor – fine not exceeding P5, 000 + criminal sanctions, if any. c) Defense Counsel or Prosecutor – denial of the right to practice before the court trying the case for a period not exceeding 30 days + QuickTime™ and a TIFF (Uncompressed) decompressor criminal sanctions, if any. are needed to see this picture. KINDS OF SANCTIONS UNDER THIS SECTION: 1. Criminal; 2. Administrative; 3. Contempt of court. Section 9. Remedy where accused is not brought to trial within the time limit

Arraignment must be set within 30 days from the date the court acquires jurisdiction over the person of the accused, and within the same period, the court must set the case for pre-trial, and within 30 days from the receipt of the pre-trial order, the trial must be commenced. The remedy of the accused is to file a motion to dismiss the information on the ground of denial of his right to speedy trial. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of his right to dismiss under this section The dismissal shall be subject to the rules on double jeopardy. So if the dismissal is with prejudice, the case cannot be revived anymore. But if the dismissal is without prejudice, the revival of the case is proper. Section 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution The accused should be brought to trial within 30 days from the date the court acquires jurisdiction over the person of the accused (Rule 116, Section 1g). If he is not brought to trial within the period specified, he may quash the information on the ground of denial of his right to speedy trial. Failure to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under Section 9, Rule 120. Arraignment must be set within 30 days from the date the court acquires jurisdiction over the person of the accused, and within the same period, the court must set the case for pre-trial, and within 30 days from the receipt of the pre-trial order, the trial must be commenced. Section 11. Order of trial ORDER OF TRIAL: 1. Prosecution presents evidence to prove the charge and, in the proper case, the civil liability. 2. The accused presents evidence to prove his defense and damages, if any. 3. The prosecution, then the defense, may present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence. 4. Upon admission of the evidence by the parties, the case is deemed submitted for decision. GENERAL RULE: The order in the presentation of evidence must be followed. The accused may not be required to

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 present his evidence first before the prosecution adduces its own proof.

Section 12. Application for examination witness for accused before trial

EXCEPTION: Where a reverse procedure was adopted without the objection of the defendant and such procedure did not prejudice his substantial rights, the defect is not a reversible error.

Accused may have his witness examined conditionally in his behalf BEFORE trial upon motion with notice to all other parties:

REVERSE TRIAL When the accused admits the act or omission charged in the complaint/information but interposes a lawful defense, the trial court may allow the accused to present his defense first and thereafter give the prosecution the opportunity to present his rebuttal evidence. A departure from the order of the trial is NOT reversible error as where it was agreed upon or not seasonably objected to, but not where the change in the order of the trial was timely objected by the defense. Where the order of the trial set forth under this section was not followed by the court to the extent of denying the prosecution an opportunity to present its evidence, the judgment is a NULLITY. Prosecution begins because it has the burden of proving the guilt of the accused, relying on the strength of its own evidence and NOT on the weakness of the defense. If there is not enough evidence to prove the accused’s guilt beyond reasonable doubt, then the defense should file Demurrer to Evidence People v. Gutierrez, 302 SCRA 643 (1999) Refusal of the trial court to reverse the order of trial upon demand of the accused who pleads selfdefense as a defense is not a reversible error NEGATIVE DEFENSE

AFFIRMATIVE DEFENSE Requires the prosecution The accused admits the to prove the guilt of the act or omission charged, QuickTime™ a accused beyond TIFF (Uncompress but and interposes a defense, ed) decompressor this picture. reasonable doubt are needed to see which if proven, would exculpate him Accused claims that one of the elements of the offense charged is not present. It is incumbent upon the prosecution to prove the existence of this element

of

SUCH MOTION MUST STATE: 1. Name and residence of the witness; 2. substance of testimony; 3. witness is so sick to afford reasonable ground to believe that he will not be able to attend the trial OR resides more than 100km and has no means to attend the same or other similar circumstances Section 13. Examination of defense witness; how made DEPOSITION It is the testimony of a witness taken upon oral questions or written interrogatories, in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution.

PURPOSE OF TAKING DEPOSITIONS: 1. Greater assistance to the parties in ascertaining the truth and checking and preventing perjury 2. Provide an effective means of detecting and exposing false, fraudulent claims and defenses 3. Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with greater difficulty 4. Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements 5. Expedite litigation 6. Prevent delay 7. Simplify and narrow the issues 8. Expedite and facilitate both preparation and trial WHO SHOULD MAKE THE EXAMINATION? 1. judge; 2. a member of the Bar in good standing so designated by the judge; 3. before an inferior court designated in the order of a superior court Section 14. Bail to secure appearance of material witness Page 218 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 People v Montejo, 21 SCRA 722 (1967) Even if the witness has been cited to appear before a court sitting outside of the province in which he resides and the distance is more than 50km (now 100km) from his place of residence by the usual course of travel, he is still bound by the subpoena. Rule 23 applies only in civil cases. If the court is satisfied upon proof or oath that a material witness will not testify when required, it may order the witness to post bail in such sum as may be deemed proper. If the witness refuses to post bail, the court shall imprison him until he complies or is legally discharged after his testimony has been taken. Section 15. Examination of witness for the prosecution EXAMINATION OF WITNESS FOR THE PROSECUTION: 1. The witness for the prosecution may be conditionally examined by the court where the case is pending if said witness is: a. Too sick to appear at the trial; or b. Has to leave the Philippines with no definite date of return. 2. Such examination should be in the presence of the accused or in his absence after reasonable notice to attend the examination has been served on him. 3. Examination of child witnesses is tackled under the Rule on Examination of a Child Witness which took effect on December 15, 2000. EXAMINATION OF DEFENSE WITNESS

EXAMINATION OF PROSECUTION WITNESS Conducted ONLY before the judge or the court where the case is pending Right to cross-examine

Conducted before any judge, member of the bar in good standing or before any inferior court No right to crossexamine QuickTime™ and a be made even if May be made if the Cannot TIFF (Uncompressed) decompressor are n eeded to s ee this picture. witness resides more the witness resides more than 100km from the than 100km from the place of trial place of trial Section 16. Trial of several accused When two or more defendants are jointly charged with any offense, they shall be tried jointly, unless the

court, in its discretion upon motion of the prosecution or any of the defendants, orders a separate trial. The motion for separate trial must be filed BEFORE the commencement of the trial and cannot be raised for the first time on appeal. If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter. It would be admissible if the latter had the opportunity for cross-examination. Where the conditions are fulfilled, joint trial is automatic, without need for the trial court to issue an order to that effect. The grant of separate trial rests in the sound discretion of the court and is not a matter of right to the accused, especially where it is sought after the presentation of the evidence of the prosecution. In such separate trial, only the accused presenting evidence has to be present. And the evidence to be adduced by each accused should not be considered as evidence against the other accused. When a separate trial is demanded and granted, it is the duty of the prosecution to repeat and produce all its evidence at each and every trial, unless it has been agreed by the parties that the evidence for the prosecution would not have to be repeated at the second trial and all the accused had been present during the presentation of the evidence of the prosecution and their lawyer had the opportunity to cross-examine the witnesses for the prosecution. People v. Ellasos and Obillo, G.R. No. 139323 (2001) The trial judge gravely erred in rendering a judgment of conviction against both accused. Since the trial of B did not take place, the trial court should have rendered a decision only against A. Section 17. Discharge of accused to be state witness Section 18. Discharge of accused operates as acquittal STATE WITNESS One of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the state. REQUISITES TO BE A STATE WITNESS: 1. Two or more persons are jointly charged with the commission of an offense Page 219 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. The application for discharge is filed by the prosecution before it rests its case 3. Absolute necessity for the testimony of the accused • “Absolute necessity” means that he alone has knowledge of the crime, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecutor. 4. There is no other direct evidence available for the proper prosecution of the offense. 5. Testimony of the accused can be substantially corroborated in its material points. 6. Accused does not appear to be the most guilty • Means that he does not appear to have the highest degree of culpability in terms of participation in the commission of the offense and not necessarily in the severity of the penalty imposed. • The fact that there was conspiracy does not preclude one from being discharged as a state witness. What the court takes into account is the gravity or nature of acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them. 7. Accused has not been convicted of any offense involving moral turpitude. TWO TYPES OF IMMUNITY: a. TRANSACTIONAL IMMUNITY – witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. b. USE-AND-DERIVATIVE-USE-IMMUNITY – witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. The application for discharge of the state witness must be made upon motion of the prosecution BEFORE resting its case. QuickTime™ and a TIFF (Uncompressed) decompressor The defense should beto seeafforded opportunity to are needed this picture. oppose the motion to discharge an accused to be a state witness.

Any question against the order of the court to discharge an accused to be used as state witness must be raised in the trial court; it cannot be considered on appeal. Where there is, however, a showing of grave abuse of discretion, the order of the

trial court may be challenged in a petition for certiorari and prohibition. A discharge under the original information is just as binding upon the subsequent amended information, since the amended information is just a continuation of the original. The subsequent amendment of the information does not affect the discharge of an accused as a state witness because the amended information is not anew information but is a continuation of the original proceeding. GENERAL RULE: A co-conspirator may testify against the other coconspirator even if not done clandestinely PROVIDED it must be received by court with caution and must be substantially corroborated in its material points. The EXCEPTION to this rule is even if uncorroborated but the testimony was given in a straightforward manner and it contains details which could not have been the result of deliberate afterthought. It is not necessary that there be a hearing of the motion to discharge as long as the court is able to receive evidence for and against the discharge of an accused to become a witness. (People v Sunga) GENERAL RULE: The discharge of an accused to be a state witness amounts to an acquittal and is a bar to future prosecution for the same offense. Where an accused has been discharged to be utilized as state witness and he thus testified, the fact that the discharge was erroneous as the conditions for discharge were not complied with did not thereby nullify his being precluded from re-inclusion in the information or from being charged anew for the same offense or for an attempt or frustration thereof, or for crimes necessarily included in or necessarily including those offense. EXCEPTIONS: a. If accused fails or refuses to testify against the co-accused; b. If he was granted immunity and fails to keep his part of the agreement, his confession of his participation in the commission of the offense is admissible in evidence against him.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 19. When mistake has been made in charging the proper offense When, at any time before judgment, it becomes manifest 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 said accused shall not be discharged if there appears to be good cause to detain him. If there appears to be good cause to detain the accused, the court shall commit the accused and dismiss the original case upon the filing of the proper information. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, the court should dismiss the action and order the filing of a new information charging the proper offense. US v. Campo, 23 Phil. 369 (1912) This rule is predicated on the fact that an accused person has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right. Section 20. Appointment of acting prosecutor When a prosecutor, his assistant or deputy is disqualified to act, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. Section 21. Exclusion of the public GENERAL RULE: The accused has the right to public trial and under ordinary circumstances, the court may not close the door of the courtroom to the general public. EXCEPTION: The public may be excluded from the courtroom when evidence to beand produced is offensive QuickTime™ a TIFF (Uncompressed) decompressor needed to see this picture. to decency or publicaremorals. The court may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. Section 22. Consolidation of trials of related offenses

THIS CONTEMPLATES A SITUATION WHERE SEPARATE MOTIONS ARE FILED: 1. for offenses founded on the same facts; 2. for offenses which form part of a series of offenses of similar character. The purpose of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the party litigants. While consolidation of cases and joint trial of related offenses and the rendition of a consolidated decision are allowed, the court cannot convict an accused of a complex crime constitutive of the various crimes alleged in the consolidated cases. Section 23. Demurrer to evidence DEMURRER TO EVIDENCE It is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. AFTER THE PROSECUTION SHALL HAVE RESTED ITS CASE, THE CASE MAY BE DISMISSED IN ANY OF THE FOLLOWING MANNER: a. Court on its own initiative can dismiss the case after giving prosecution opportunity to be heard b. Accused files demurrer with or without leave of court c. If the demurrer is denied: • With leave of court, accused can present his evidence • Without leave of court, accused waives right to present evidence With or Without Leave of Court a) With leave • if the motion is denied, he can still present evidence. • The motion must be filed within a nonextendible period of 5 days after the prosecution rests its case. • If leave is granted, the accused shall file the demurrer to evidence within a nonextendible period of 10 days from notice of the grant of leave of court. • The prosecution may oppose the demurrer to evidence within a non-extendible period of 10 days from receipt of the demurrer.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b) Without leave • if the motion is denied, he loses the right to present evidence and the case will be deemed submitted for decision If there are two or more accused and only one of them presents a demurrer to evidence, without leave of court, the trial court may defer resolution thereof until the decision is rendered on the other accused.

If judgment is not put in writing, the proper remedy would be to file a petition for mandamus to compel the judge to put in writing the decision of the court. Article VIII, Section 14, par. 1 of the Constitution requires that the decisions of the court shall contain the facts and the law on which they are based. The rationale is that the losing party is entitled to know why he lost, so he may appeal to a higher court.

An order denying the motion for leave of court to file a demurer shall NOT be reviewable by appeal or by certiorari before judgment. This is because demurrer is merely interlocutory. However, if there was grave abuse of discretion, then certiorari may apply.

The judge who penned the decision need not be the one who heard the case. The judge can rely on the transcript of stenographic notes taken during the trial.

If the court denies the demurrer to evidence without leave of court, the accused is deemed to have waived his right to present evidence and submits the case for judgment on the basis of the evidence of the prosecution.

CONTENTS OF A JUDGMENT OF CONVICTION: 1. The legal qualifications of the offense constituted by the acts committed by the accused and the aggravating and mitigating circumstances which attended its commission. 2. Participation of the accused either as principal, accomplice or accessory 3. penalty imposed on the accused 4. civil liability or damages, if any, unless a separate civil action has been reserved or waived.

Section 24. Reopening At any time before finality of judgment of conviction, judge may, motu proprio or upon motion, with hearing in either case reopen to avoid miscarriage of justice.

RULE 120 JUDGMENT Section 1. Judgment; definition and form JUDGMENT It is an adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability, if any. It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and is regarded as the sentence of the law pronounced by the court on the action or question before it. REQUISITES OF A JUDGMENT: QuickTime™ and a TIFF (Uncompressed) decompressor 1. Written in official language are needed to see this picture. 2. Personally and directly prepared by the judge 3. Signed by him 4. Contains clearly and distinctly a statement of the facts and the law upon which it is based. A verbal order does not meet the requisites. As such, it can be rescinded without prejudicing the rights of the accused. It has no legal force and effect.

Section 2. Contents of judgment

Alternative Penalties A judge cannot impose alternative penalties (reclusion perpetua or P10,000 fine) because this would allow the accused to choose which penalty to serve, giving the accused discretion properly belonging to the court. CONTENTS OF A JUDGMENT OF ACQUITTAL: 1. Whether the evidence absolutely failed to prove the guilt of the accused or merely failed to prove it beyond reasonable doubt 2. If the act or omission from which civil liability may arise did not exist REASONABLE DOUBT – state of the case which, after full consideration of all the evidence, leaves the mind of the judge in such a condition that he cannot say that he feels an abiding conviction, to a moral certainty, of the truth of the charge. Barbers vs Laguio, Jr., 351 SCRA 606 (2001) It is well settled that acquittal, in a criminal case is immediately final and executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Effect of Acquittal on Civil Liability Acquittal of an accused based on reasonable ground does not bar the offended party from filing a separate civil action based on a quasi-delict. In fact, the court may hold an accused civilly liable even when it acquits him.

It is the reading of the judgment or sentence in the presence of the accused and the judge of the court who rendered it. Rules on Promulgation of Judgment Judgment must be rendered and promulgated during the incumbency of the judge who signed it

Section 3. Judgment for two or more offenses Prohibition on Duplicitous Information & Waiver A complaint or information must charge only one offense. However, if the accused does not object to the duplicity before he enters his plea, he is deemed to have waived the defect. He may be found guilty for as many offenses as alleged in the complaint or information as may have been duly proved. Maximum Sentence In the service of sentence, the maximum duration of the sentence shall not be more than 3-fold the time of the most severe penalty imposed, and such maximum shall in no case exceed 40 years. Section 4. Judgment in case of variance between allegation and proof Section 5. When an offense includes or is included in another GENERAL RULE: The accused may only be convicted of a crime that is both charged and proved. EXCEPTION: If there is variance between the crime charged and the crime proved the accused shall be convicted of the offense proved which is included in the offense charged or of the offense charged which is included in the offense proved. In other words, if there is variance, the accused can only be convicted of the lesser offense which is included in the graver offense. Inclusion of Offenses An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the formerQuickTime™ constitute the latter. and a TIFF (Uncompressed) decompressor are needed to see this picture.

An offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. Section 6. Promulgation of judgment PROMULGATION OF JUDGMENT IN CRIMINAL CASES

The judgment must be read in its entirety for double jeopardy to attach The presence of counsel during promulgation is not necessary Generally, the accused must be present during promulgation of judgment. (but see the following exceptions to this general rule) INSTANCES OF PROMULGATION IN ABSENCIA 1. Judgment is for a light offense, in which case judgment may be promulgated in he presence of counsel for the accused or a representative. 2. Accused fails to attend the promulgation despite due notice or if he jumped bail or escaped form prison. Notice must be given to the bondsmen, warden, accused’s bailor and counsel. How Promulgation In Absencia is Conducted Promulgation shall be made by recording the judgment in the criminal docket and serving the accused a copy thereof at his last known address or through his counsel. If judgment is one of conviction and the accused is absent without justifiable cause, the court shall order his arrest and he shall lose the remedies available in the Rules against the judgment. However, the accused may surrender and file a motion for leave of court to avail of these remedies within 15 days from promulgation of judgment. If such motion is granted, he may avail of these remedies within 15 days from notice of such order granting the motion. Section 7. Modification of judgment Upon motion of the accused, a judgment of conviction may be modified or set aside before it becomes final or before appeal is perfected. NOTE: The prosecutor cannot ask for the modification of the judgment, because the rules are clear that modification is only upon motion of the accused Page 223 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 FINALITY OF JUDGMENT 1. After the lapse of the period for perfecting an appeal; or 2. When the sentence has been partially or totally satisfied or served; or 3. When the accused has waived in writing his right to appeal; or 4. Accused has applied for probation. NOTE: When the Death Penalty is imposed by the trial court, the SC automatically reviews the decision. Modification of Civil Aspect of Case The trial court may validly modify the civil aspect of its decision within 15 days from promulgation thereof even though an appeal from the judgment had already be perfected by the accused WHEN TRIAL COURT MAY LOSE JURISDICTION EVEN BEFORE LAPSE OF 15 DAYS 1. defendant voluntarily submits to the execution of the judgment 2. defendant perfects an appeal 3. defendant withdraws his appeal 4. accused expressly waives in writing his right to appeal 5. accused files for probation Section 8. Entry of judgment How Entry of Judgment is Made The recording of the judgment or order in the book of entries of judgments shall constitute its entry. The record shall contain the dispositive portion or order and shall be signed by the clerk of court with a certificate that such judgment or order has become final and executory. MITTIMUS It is a process issued by the court after conviction to carry out the final judgment. Section 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule QuickTime™ and a

TIFF (Uncompressed) decompressor EXCEPTIONS FOR SUSPENSION OF SENTENCE are needed to see this picture. OF YOUTHFUL OFFENDERS 1. offender has enjoyed previous suspension of sentence 2. offender is convicted of crime punishable by death or life imprisonment 3. offender is convicted by a military tribunal 4. offender is already of age at the time of sentencing even if he was a minor at the time of the commission of the crime

PROBATION The period to file an application for probation is after the accused shall have been convicted by the trial court and within the period for perfecting an appeal. Probation is a mere privilege and is revocable before final discharge of the probationer by the court. The basis of the coverage of the Probation Law is gravity of the offense. Fixing the cut-off at a maximum term of 6 years imprisonment is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrongdoing but because of the gravity of serious consequences of the offense they might further commit. OFFENDERS DISQUALIFIED FROM PROBATION 1. Those sentenced to serve a maximum term of imprisonment of more than 6 years 2. Those charged with subversion or any crime against national security or public order 3. Those previously convicted by final judgment of an offense punished by imprisonment not less than 1 month and 1 day and/or a fine not less than P200 4. Those who have been once on probation 5. Those who are already serving sentence at the time the Probation Law of 1976 became applicable WHEN THE COURT SHOULD DENY PROBATION 1. Offender is in need of treatment that can be provided most effectively by his commitment to an institution 2. There is an undue risk that offender will commit another crime during the period of probation 3. When probation will depreciate the seriousness of the crime SENTENCE IMPOSED Not more than 1year More than 1 year Fine only, but offender serves subsidiary imprisonment

PERIOD OF PROBATION Not more than 2 years Not more than 6 years At least equal to the number of days of subsidiary imprisonment but not more than twice such period

RULE 121 NEW TRIAL OR RECONSIDERATION Page 224 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. New trial or reconsideration NEW TRIAL The rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced or both steps are taken. NEW TRIAL

Proper only AFTER rendition or promulgatio n of judgment (15 days from promulgatio n of judgment)

requires consent of the accused

made at the instance of the accused or upon the initiative of the court but with the consent of the accused

Interrupts the period for perfecting an appeal from the

RECONSI DERATIO N may be filed in order to correct errors of law or fact in judgment; does not require any further proceedin g.

Judgment will be based on the pleadings submitted by the parties

REOPENI NG OF TRIAL may be properly presented only after either both parties have formally offered and closed their evidence BUT BEFORE judgment possible to have trials or hearings or reception of justice in order to avoid miscarriag e of justice

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

interrupts the period for perfecting an appeal from the

REOPENI NG OF CASE made by the court before judgment is rendered in the exercise of sound discretion

time of its filing until notice of the order overruling the motion shall have been served upon the accused or his counsel.

time of its filing until notice of the order overruling the motion shall have been served upon the accused or his counsel.

Once the appeal is perfected, the trial court steps out of the case and the appellate court steps in. When new material evidence has been discovered, the accused may file a motion for new trial with the appellate court. TRIAL COURT LOSES JURISDICTION OVER ITS SENTENCE EVEN BEFORE THE LAPSE OF 15 DAYS 1. when the defendant voluntarily submits to the execution of the sentence 2. when the defendant perfects his appeal.

does not require the consent of the accused

may be made at the instance of either party who can thereafter present additional evidence

The moment the appeal is perfected the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors Section 2. Grounds for new trial GROUNDS FOR A NEW TRIAL IN CRIMINAL CASES 1. errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial (errors of law or irregularities) 2. new and material evidence discovered which the accused could not with reasonable diligence have been discovered and produced at the trial and which if introduced and admitted would probably change the judgment (newly discovered evidence) 3. other grounds which the court may determine in the exercise of its discretion REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON THE GROUND OF NEWLY DISCOVERED EVIDENCE 1. that the evidence was discovered after trial 2. that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence Page 225 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. that it is material, not merely cumulative, corroborative, or impeaching 4. the evidence is of such weight that it would probably change the judgment if admitted Mistake of counsel generally binds the client and is not a ground for new trial EXCEPT when the incompetence of the counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense and where the error of counsel is so serious. Recantation is the public and formal withdrawal of a witness of his prior statement. It is not a ground for new trial because it makes a mockery of the court and would place the investigation of truth at the mercy of the unscrupulous witness. Moreover, retractions are easy to extort out of witness. In contrast, their statements are made under oath, in the presence of judge, and with the opportunity to cross-examine. EXCEPT when aside from the testimony of the retracting witness, there is no other evidence to support the conviction of the accused. In this case, the retraction by the sole witness creates a doubt in the mind of the judge as to the guilt of the accused RECANTATION

AFFIDAVIT OF DESISTANCE A witness who The complainant previously gave a states that he did not testimony subsequently really intend to declares that his institute the case and statements were not true that he is no longer interested in testifying or prosecuting It is a ground for dismissing the case only if the prosecution can no longer prove the guilt of the accused beyond reasonable doubt without the testimony of QuickTim e™the and a offended party TIFF (Uncompressed) decompressor are needed to see this picture.

Section 3. Ground for reconsideration GROUNDS FOR RECONSIDERATION 1. errors of law 2. errors of fact in judgment The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The

grant by the court of reconsideration should require no further proceedings, such as taking of additional proof. Section 4. Form of motion and notice to the prosecutor. FORM OF MOTION RECONSIDERATION 1. 2. 3. 4.

FOR

NEW

TRIAL

OR

in writing filed in court state the grounds on which it is based if based on newly discovered evidence (for new trial), must be supported by affidavits of witnesses by whom such evidence is expected to be given or authenticated copies of documents to be introduced in evidence

Notice of the motion for new trial or reconsideration should be given to the prosecutor. Upon receipt of the motion for new trial/reconsideration, the court should conduct a hearing regarding the motion in order to determine the merits of the motion. While the rule requires that an affidavit of merits be attached to support a motion for new trial based on newly discovered evidence, the defect or lack of it may be cured by testimony under oath of the defendant at the hearing of the motion (Paredes v Borja, 3 SCRA 495). Section 5. Hearing on motion The purpose of hearing is to determine whether the new trial is requested should be granted or not. Section 6. Effects of granting a new trial or reconsideration EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION 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 newlydiscovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered Page 226 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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. The effect of the granting a new trial is not to acquit the accused of the crime of which the judgment finds him guilty but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been conducted before. Unlike the rule in civil cases, the remedy of the aggrieved party being appeal in due time, an order granting a new trial rendered in criminal cases is also interlocutory BUT is controllable by certiorari or prohibition at the instance of the prosecution.

Appeals in criminal cases are perfected when the interested parties have personally or through their counsel filed with the clerk of court a written notice expressly stating the appeal. (U.S. vs. Tenorio, 37 Phil 7; Elegado vs. Tavora, 59 Phil. 140) When an appeal has been perfected, the court a quo loses jurisdiction. Effect of an Appeal An appeal in a criminal case opens the whole case for review. This includes the review of the penalty, indemnity, and the damages involved. Only final judgments and orders can be appealed. APPEAL OF A JUDGMENT Must be perfected within 15 days from promulgation

RULE 122 APPEAL Section 1. Who may appeal. APPEAL A proceeding for review by which the whole case is transferred on the higher court Appeal is not a part of due process except when provided by law or by the Constitution. It is statutory and must be exercised in accordance with the procedure laid down by law. It is compellable by mandamus. GENERAL RULE: An appeal by the prosecution from the order of dismissal is not allowed because it will violate the rule on double jeopardy. EXCEPTIONS: 1. The dismissal is made upon the motion or with the express consent of the defendants QuickTime™ and a TIFF (Uncompressed) decompressor 2. The dismissal is not an acquittal or based upon are needed to see this picture. consideration of the evidence or the merits of the case 3. Question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would be remanded to the court of origin for further proceedings

APPEAL OF AN ORDER Must be perfected within 15 days from notice of the final order

Section 2. Where to appeal Section 3. How appeal taken FROM DECISION OF MTC, from a case decided in its original jurisdiction

APPEAL TO CA

RTC in the exercise of its original jurisdiction for an imposed penalty less than reclusion perpetua, life imprisonment (and death) RTC in the exercise of its appellate jurisdiction

CA

RTC where the penalty imposed is reclusion perpetua of life imprisonment, OR where a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same occurrence

CA

CA

HOW File a notice of appeal with the MTC and serve a copy of the notice to the adverse party File a notice of appeal with the RTC and serve a copy of the notice to the adverse party

File a petition for review with the CA under Rule 42 Automatic review

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 EXCEPTION: The civil award in a criminal case may be appealed by the private prosecutor on behalf of the offended party or his successors.

that gave rise to the offense punishable by (death) reclusion perpetua or life imprisonment All other appeals

SC

Sandiganbayan

SC

Sandiganbayan in its original jurisdiction where penalty imposed is (death) reclusion perpetua Sandiganbayan in its appellate jurisdiction where penalty imposed is (death), reclusion perpetua, or life imprisonment

SC

SC

Petition for review on certiorari under Rule 45 Petition for review on certiorari under Rule 45 Automatic review

File a notice of appeal

FROM A JUDGMENT CONVICTING THE ACCUSED, TWO APPEALS MAY ACCORDINGLY BE TAKEN: 1. The accused may seek a review of said judgment as regards both civil and criminal actions 2. The complainant may appeal only with respect to the civil action either because the lower court has refused or failed to award damages or because the award made is unsatisfactory to him A judgment of acquittal becomes final immediately after promulgation. It cannot even be the subject of certiorari. The reason for this rule is that an appeal would place the accused in double jeopardy. However, the offended party may appeal the civil aspect of the case. QuickTime™ and a TIFF (Uncompressed) decompressor

GENERAL RULE: are needed to see this picture. A private prosecutor in a criminal case has NO authority to act for the People of the Philippines before a court on appeal; it is the government’s counsel, the Solicitor General who appears in criminal cases or their incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General shall act for the People of the Philippines.

MODES OF REVIEW The Rules of court recognizes 4 modes by which the decision of the final order of the court may be reviewed by a higher tribunal 1. ordinary appeal 2. petition for review 3. petition for review on certiorari 4. automatic appeal Section 4. Publication of notice of appeal SERVICE OF NOTICE OF APPEAL SERVICE BY SUBSTITUTED PUBLICATION REGISTERED SERVICE OF NOTICE MAIL OF APPEAL delivering the made in a By depositing newspaper of the copy in the copy to the clerk of court general post office -in a sealed with proof of circulation in envelope failure of both the vicinity -plainly personal once a week addressed to service and for a period not the party or service by mail exceeding 30 his counsel at days his office, if known, otherwise at his residence if known -with postage fully pre-paid -and with instructions to the post master to return the mail to the sender after 10 days if undelivered Section 5. Waiver of notice The appellee may waive his right to notice of appeal. However, the appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require (Llamas vs. Muscoso, 95 Phil. 735). Section 6. When appeal to be taken

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Appeal is taken within 15 days from promulgation of the judgment. This period shall be suspended from the time a motion for new trial or reconsideration is filed until notice of overruling the motion has been served upon the accused at which time the balance of the period begins to run.

Section 12. Withdrawal of appeal

The period of appeal seems to have been amended by the SC ruling in Domingo Neypes et.al., vs CA, et.al, G.R. No. 141524 Sept. 24, 2005 (469 SCRA 633). “To standardize the appeals period provided in the Rules and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period rule of 15 days within which to file the notice of appeal on the RTC, counted from the receipt of the order dismissing a motion for new trial or motion for reconsideration.

The court may also, in its discretion, allow the appellant to withdraw his appeal, provided a motion to that effect is filed before the rendition of judgment in the case on appeal (People v. Madrigal-Gonzales, 117 SCRA 956).

NOTE: Although the SC has made this ruling on a civil case, it is submitted that if the court has applied this rule to all other appeals involving civil cases, with more reason should the defendant in a criminal case be given ample time to file his appeal (Sabio, Jose L. Criminal Procedure Rules 110-127, p 228)

An appellant may withdraw his appeal before the record has been forwarded by the clerk of court of the proper appellate court as provided by Sec. 8 in which case the judgment shall become final.

Once appeal is withdrawn, the decision or judgment appealed from becomes at once final and executory. (People v. Dueño, 90 SCRA 23). Section 13. Appointment of counsel de oficio for accused on appeal The duty of the counsel de oficio does not terminate upon judgment of the case. It continues until appeal.

RULE 123 PROCEDURE IN MUNICIPAL TRIAL COURTS

Section 7. Transcribing and filing notes of stenographic reporter upon appeal Section 8. Transmission of papers to appellate court upon appeal

Section 1. Uniform procedure

Within 5 days from the filing of the notice of appeal, the clerk of court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case together with said notice.

GENERAL RULE The procedure in the Regional Trial Court shall be applicable to the procedure in Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Court.

Section 9. Appeal to the Regional Trial Courts Section 10. Transmission of records in case of death penalty Section 11. Effect of appeal by any of several accused

EXCEPTIONS 1. Particular provision is made applicable only to either of such courts 2. In cases governed by the Rule on Summary Procedure

Effects of Appeal by Any of the Accused An appeal taken by one or more of the several accused shall not affect those who did not appeal except insofar as the judgment of the appellate court QuickTime™ and a TIFF (Uncompressed) decompressor is favorable and applicable to the latter. are needed to see this picture.

RULE 124 PROCEDURE IN THE COURT OF APPEALS

The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party.

COURT OF APPEALS The Court of Appeals has no jurisdiction without judgment of conviction. The Court of Appeals shall give precedence in the disposition of appeals of accused who is under detention. It shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. Page 229 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Rights of Accused Appellant An accused-appellant may change his theory on appeal; thus the case opens the whole action for review on any questioning including those not raised by the parties. When the accused appeals a judgment of conviction, he waives the constitutional safeguard against double jeopardy; but every circumstance in favor of the accused should be considered. Section 1. Title of the case Section 2. Appointment of counsel de oficio for the accused WHEN ACCUSED MAY BE GIVEN COUNSEL DE OFICIO ON APPEAL 1. accused is confined in prison 2. he is without counsel de parte on appeal 3. he signed the notice of appeal himself An appellant who is not confined in prison may request for counsel de oficio within 10 days from receipt of notice to file appellant’s brief and the right thereto is established by affidavit Section 3. When brief for appellant to be filed 7 copies of the brief shall be filed within 30 days from receipt by the appellant or his counsel of the notice from the clerk of court that the evidence, oral and documentary, are already attached to the record. BRIEF It literally means a short or condensed statement. The purpose of the brief is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. Section 4. When brief for appellee to be filed; reply brief of appellant The appellee shall file 7QuickTime™ copiesandof the brief with the a TIFF (Uncompressed) decompressor clerk of court within 30 days from receipt of the are needed to see this picture. appellant’s brief accompanied by proof of service of 2 copies thereof to the appellant. Section 5. Extension of time for filing briefs Generally not allowed except for good and sufficient cause and only if the motion for extension is filed before the expiration of the period sought to be extended.

Section 6. Form of briefs Section 7. Contents of brief Unlike in civil actions, it is not necessary for the appellant to make assignment of errors in his brief, as on appeal, the whole record of the case is submitted to and reviewable by the appellate court. Section 8. Dismissal of appeal for abandonment or failure to prosecute

GROUNDS FOR DISMISSAL OF APPEAL 1. Failure on the part of the appellant to file his brief within the reglementary period, except when he is represented by counsel de oficio 2. Escape of the appellant from prison 3. Appellant jumps bail 4. Flight of the appellant to a foreign country during the pendency of the appeal NOTE: Ground (1) is deemed abandonment of appeal, grounds (2) (3) (4) are deemed failure to prosecute EFFECT OF FAILURE TO PROSECUTE APPEAL 1. judgment of the court below becomes final 2. accused cannot be afforded the right to appeal unless a. he voluntarily submits to the jurisdiction of the court or b. he is otherwise arrested within 15 days from notice of judgment against him Section 9. Prompt disposition of appeals It is discretionary on the appellate court whether it will order a hearing of the case or decide the appeal solely on the evidence submitted to the trial court. If the CA chooses not to conduct a hearing, the justices composing the division deliberate on the case, evaluate the evidence and then decide. Section 10. Judgment not to be reversed or modified except for substantial error Judgment of the lower courts shall be reversed or modified only when the Court of Appeals is of the opinion that error was committed which injuriously affected the substantial rights of the appellant after it examined the record and evidence adduced by the parties. Although not often done in the judicial system, the case of People v. Calayca states that the appellate Page 230 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 court may reverse the trial court’s decision on the basis of grounds other than those that the parties raised as errors. Section 11. Scope of judgment

certified and immediately elevated to the Supreme Court for review. Section 14. Motion for new trial Section 15. Where new trial conducted

SCOPE OF JUDGMENT OF CA 1. reverse, affirm or modify the judgment 2. increase or reduce the penalty imposed 3. remand the case to the trial court for new trial or retrial 4. dismiss the case

The appellant may move for a new trial any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting him becomes final.

NOTE: CA cannot revise the judgment because this would violate the rule that the judge must write the decision personally.

A motion for reconsideration shall be made within 15 days after notice of the decision or final order of the Court of Appeals.

Modify vs Revise In modifying the decision, the CA bases its modification on errors of law or fact. In revision, the court merely changes manner the decision is written.

Section 17. Judgment transmitted and filed in trial court

Section 12. Power to receive evidence POWERS OF THE CA 1. to try cases and conduct hearings 2. to receive evidence 3. to perform any and all acts necessary to resolve factual issues raised in cases: a. falling within its original and appellate jurisdiction b. claims for damages arising from provisional remedies c. where the court grants a new trial based only on the ground of newly discovered evidence Section 13. Certification or appeal of case to the Supreme Court

Section 16. Reconsideration

When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of court from which the appeal was taken. Section 18. Application of certain rules in civil procedure to criminal cases NOTE: Rule 47 does NOT APPLY TO CRIMINAL ACTIONS. The proper remedy for lack of jurisdiction or extrinsic fraud is certiorari (Rule 65) or Habeas Corpus ( Rule 102)

RULE 125 PROCEDURE IN THE SUPREME COURT Section 1. Uniform procedure

Three Justices constitute a quorum for the sessions of a division Unanimous vote of the 3 Justices of a division shall be necessary to pronounce a judgment or a final resolution. In the eventQuickTime™ that there is no unanimous and a TIFF (Uncompressed) decompressor vote, the Presiding Justice shall direct the raffle are needed to see this picture. committee of the Court to designate two additional Justices in the division hearing the case and the concurrence of a majority of such division shall be necessary for the pronouncement pf a judgment or final order. Should the Court of Appeals impose the penalty of death, reclusion perpetua, or life imprisonment after discussing the evidence and law involved, the case is

Procedure in the SC in appealed cases is the same as in the CA, unless otherwise provided by the Constitution or law. Appeal the SC is not a matter of right, but a matter of sound judicial discretion A direct appeal to the SC on questions of law – in cases where the penalty imposed is not reclusion perpetua or death – precludes a review of the facts. Section 2. Review of decisions of the Court of Appeals

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 INSTANCES WHEN FINDINGS OF FACTS OF CA ARE NOT CONCLUSIVE ON SC 1. the finding is grounded entirely on speculation, conjectures and surmises 2. when the inference made is manifestly absurd, mistaken or impossible 3. when there is grave abuse of discretion in the appreciation of facts 4. judgment is premised on a misapprehension of facts 5. findings of facts are conflicting 6. when the CA went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee 7. when certain material facts had been overlooked which, if taken into account would alter the result as it would give rise to reasonable doubt to acquit the accused.

c. It is not for the maintenance of any private right. d. It is INTERLOCUTORY in character – it leaves something more to be done, the determination of the guilt of the accused GENERAL WARRANT It is a process which authorizes the search and seizure of things, in a general manner. It does not specify or describe with particularity the things to be searched and seized. This kind of warrant is VOID as it infringes on the constitutional mandate requiring particular description of the things to be seized. Object of a Search Warrant To obtain the goods, and bring the person in whose custody they are found, either to be recognized as a witness or to be subject to such further proceedings as the ends of justice may require.

Section 3. Decision if opinion is equally divided A criminal case shall be reheard by the Supreme Court en banc when the court en banc is equally divided in the opinion or the necessary majority cannot be had. If no decision is reached, the conviction of the lower court shall be reversed and the accused acquitted.

RULE 126 SEARCH AND SEIZURE Section 1. Search warrant defined SEARCH WARRANT An order in writing signed by judge in the name of the People of the Philippines commanding a peace officer to search for personal property and bring it before the court. ELEMENTS OF A SEARCH WARRANT 1. order in writing 2. signed by judge in the name of the People of the Philippines QuickTime™ officer and a 3. commanding a peace to search for TIFF (Uncompressed) decompressor to see this picture. are needed personal property 4. to bring the property before the court NATURE OF A SEARCH WARRANT a. It is in the nature of a criminal process and may be invoked only in furtherance of public prosecutions. It has no relation to civil processes or trials b. It is not available to individuals in the course of civil proceedings;

A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued, otherwise it is VOID It will always be construed strictly without going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. Garaygay v. People, G.R. No. 138758 (2000) Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, a motion to quash the warrant/to retrieve things thereunder seized may be filed for the first time in either the issuing court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. People v. Ko, G.R. No. 133254-55 (2001) The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into “prohibited” and “regulated” drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.

SEARCH WARRANT

WARRANT OF ARREST Page 232 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The applicant must show: 1. that the items sought are in fact sizeable by virtue of being connected with criminal activity; 2. that the items will be found in the place to be searched. The judge must conduct a personal, searching examination of the applicant and his witnesses

Valid only for 10 days May be served on any day and at any time of day or night

The applicant must show: 1. probable cause that an offense has been committed; 2. that the person to be arrested committed it.

The judge need not conduct a personal examination of the applicant and his witnesses. He may rely on the affidavits of the witnesses and the recommendation of the prosecutor. Does not become stale To be served only during the daytime, unless affidavit alleges that the property is on the person or in the place to be searched

In general, the requirements for the issuance of a search warrant is more stringent than the requirements for the issuance of a warrant of arrest. The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore. This is why there is no other justification for a search, except a warrant. On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

GENERAL RULE: It should be filed with the court within whose territorial jurisdiction the crime was committed. EXCEPTIONS: 1. for compelling reasons, it can be filed with the court within whose judicial region the offense was committed or where the warrant is to be served. 2. But if the criminal action has already been filed, the application for a search warrant can only be made in the court where the criminal action is pending. Section 3. Personal property to be seized KINDS OF PERSONAL PROPERTY TO BE SEIZED: 1. Subject of the offense; 2. Proceeds or fruits of the offense; and 3. The means used or intended to be used for committing an offense SEARCH WARRANTS HAVE BEEN ALLOWED TO SEARCH FOR THE FF: 1. Stolen goods 2. Those supposed to have been smuggled into the country in violation of the revenue laws 3. Implements of gaming and counterfeiting 4. Lottery tickets 5. Prohibited liquors kept for sale contrary to law 6. Obscene books and papers kept for sale or circulation 7. Powder and other explosive and dangerous materials so kept as to endanger public safety 8. Slot machines, being gambling devices

SEARCH It is an examination of a man’s house, buildings or other premises, or of his person, with a view to the discovery of some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged.

Notes on Seizure of Personal Property: Property seized is not required to be owned by the person against whom the search warrant is directed

SEIZURE It is the physical taking of aand thing into custody; QuickTime™ a TIFF (Uncompressed) decompressor contemplates a forcible disposition of the owner are needed to see this picture.

The fact that a thing is a corpus delicti of a crime does not justify the seizure without a warrant

Note: A search warrant to be valid requires strict compliance with the Constitution. Section 2 Article III of the 1987 Constitution is the constitutional basis of the rule on search and seizure Section 2. Court where application for search warrant shall be filed

It is not necessary that there be arrest or prosecution before seizure could be affected

Section 4. Requisites for issuing search warrant Section 5. Examination of complainant; record REQUISITES FOR ISSUING A SEARCH WARRANT 1. there must be probable cause 2. which must be determined personally by the judge

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. upon personal examination in writing and under oath of the complainant and his witnesses in the form of probing and searching questions and answers on facts personally known to them 4. the probable cause must be in connection with one specific offense 5. particularly describing the place to be searched and the items to be seized 6. the sworn statements together with the affidavits of the witnesses must be attached to the record. PROBABLE CAUSE (IN GENERAL) Such facts and circumstances antecedent to the issuance of the warrant, that are in themselves sufficient to induce a cautious man to believe that the person against whom the search warrant is applied had committed or is about to commit a crime PROBABLE CAUSE FOR A SEARCH It is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. Determination of Probable Cause Probable cause presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions violating a given provision of our criminal laws. Probable cause is determined in the light of the conditions obtaining in given situations, but there is no general formula or fixed rule for the determination of the existence of probable cause. A good and practical rule of thumb is to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of the making the affidavit. The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

REQUISITES OF PERSONAL EXAMINATION BY THE JUDGE 1. The judge must examine the witnesses personally 2. It must be under oath 3. Examination must be reduced to writing in the form of probing and searching questions.

The examination must be probing and exhaustive, not merely routinary or pro forma The questions must not merely be answerable by yes or no. Answers given cannot be based merely on reliable information. Application for a search warrant is heard ex-parte, there is neither a trial nor a part of the trial. Test to determine if an affidavit or testimony of the witness is based on personal knowledge is whether perjury could be charged against the witness. Probable Cause Must be in Connection with One Specific Offense The purpose of this rule is to outlaw general warrants. Otherwise, this would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers. A warrant issued for the seizure of drugs connected with “violation of the Dangerous Drugs Law” is valid. Although there are many ways of violating the Dangerous Drugs Law, it is not a scatter shot warrant since it is in connection with only one penal law. SCATTER SHOT WARRANT It is a warrant that is issued for more than one offense. It is void, since the law requires that a warrant should only be issued in connection with one specific offense. Particularity of Description The warrant must particularly describe the place to be searched and the persons or things to be seized; The constitution requires that it be a description which particularly points to a definitely ascertainable place, so as to exclude all others. The description must be so particular that the officer charged with the execution of the warrant will be left with no discretion respecting the property to be taken. It may be said that the person to be searched is particularly described in the search warrant when his name is stated in the search warrant, or if the name is unknown, he is designated by words sufficient to enable the officer to identify him without difficulty.

Probing and Searching Questions Page 234 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant if there’s an error in the warrant, the officers should go to the court to have it corrected Anything not included in the warrant cannot be seized EXCEPT if it is mala prohibita, in which case, the seizure can be justified under the plain view doctrine. Even if the object was related to the crime, but it is not mentioned in the warrant nor is it mala prohibita, it still cannot be seized. Section 6. Issuance and form of search warrant Form of Search Warrant The search warrant must be in writing and must contain such particulars as the name of the person against whom it is to be enforced, offense for which it was issued, place to be searched and the specific things to be seized Section 7. Right to break door or window to effect search If the officer acts within the command of his warrant, he is protected even if the complaint is proven to have been unfounded. KNOCK AND ANNOUNCE PRINCIPLE GENERALLY, OFFICERS EXECUTING A SEARCH MUST DO THE FOLLOWING ACTS: 1. announce their presence 2. identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched 3. show to them the search warrant 4. explain the warrant in a language or dialect known and understood by them WHEN UNANNOUNCED INTRUSION IS PERMISSIBLE 1. person in premises refuses to open it upon demand 2. person in the premises already knew of the QuickTime™ and a (Uncompressed) decompressor identity andTIFF authority of the officers are needed to see this picture. 3. when officers have an honest belief that there is an imminent danger to life and limb 4. when those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent

Section 8. Search of house, room, or premises to be made in presence of two witnesses In searching a house, room or other premises, such shall be done in the presence of a lawful occupant or any member of his family, or in the presence of at least 2 witnesses of sufficient age and discretion, residing in the same locality The searching officer should also be considerate of the premises searched; he should mar the premises as little as possible, and should carefully replace anything he finds necessary to remove. Note: The 2 witnesses rule applies only if there is no other occupant of the home Section 9. Time of making search GENERAL RULE Warrant must be directed and served in the daytime EXCEPTIONS: 1. if there are emergencies 2. property is on the person or place to be searched The general rule prohibits search in the night because sometimes robberies happen, under the pretense of searches Section 10. Validity of search warrant A warrant is valid for ten days from its date. After such time, it is VOID. A search warrant cannot be used everyday for 10 days, and for a different purpose each day – warrant used to seize one thing cannot be used as authority to make another search This rule is NOT APPLICABLE when the search for a property mentioned in the warrant was not completed on the day when the warrant was issued and had to be continued the next day Section 11. Receipt for the property seized Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon Officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant or any member of the family or at least 2 witnesses of sufficient age and discretion residing in the same locality. The property will then be held in custodia legis Page 235 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 13. Search incident to lawful arrest ALLOWABLE WARRANTLESS SEARCHES AND SEIZURES: 1. Incidental to lawful arrest 2. Consented search (waiver of right) 3. Search of moving vehicles 4. Enforcement of customs laws 5. Checkpoints 6. RA requiring inspections or body checks in airports 7. When there are illegal articles open to the eye and hand (plain view) 8. Stop-and-frisk situations 9. Emergency 10.Enforcement of health and sanitary laws REQUISIITES FOR PLAIN VIEW DOCTRINE 1. valid intrusion 2. item must be visible – seen without any further search; e.g. in a transparent bag 3. inadvertent discovery Ex. police officer chasing a suspect, sees a box, takes a peak and sees drugs • can be seized because malum prohibitum but cannot be introduced as evidence because not in plain view • if detected through smell, not case of plain view but probable cause • if detected by canines - as if police themselves have smelled it • if police chases a person, accidentally hits a jar, where drugs pour out – not plain view Searches Incident to Lawful Arrest This right includes searching the person who is arrested, in order to find and seize the things connected with the crime as its fruits or as the means by which it was committed Search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful A search is not incidental to the QuickTime™ and a arrest unless the TIFF (Uncompressed) decompressor search is madeare needed at to see the place of arrest, this picture. contemporaneously with the arrest. The area that may be validly searched is limited to the area within the immediate control of the person arrested REQUISITES FOR VALID WAIVER OF RIGHT (CONSENTED SEARCH) 1. right exists

2. person making the consent knows that he has the right 3. in spite of knowledge of the right, he voluntarily and intelligently gives consent Search of Moving Vehicles Vessels and aircrafts may be searched and seized without a warrant because a vessel can be quickly moved out of the locality before a warrant could be secured. Validity of Checkpoints Checkpoints are not per se invalid provided that searches conducted therein are limited to a mere cursory inspection (Valmonte case) UNREASONABLE SEARCH AND SEIZURE It is such where it is not authorized by statute, or where the conditions prescribed by the stature have not been met. Rules on Reasonableness of Search What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question Such is determinable from a consideration of the circumstances involved, including the ff: • The purpose of the search • Presence or absence of probable cause • Manner in which the search and seizure was made • Place or thing searched • Character of the articles procured. Searches and seizure inside presumptively unreasonable

a

home

are

Constitutional prohibition against unlawful searches and seizure applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. It could thus only be invoked against the State. Who May Question the Validity of a Search The legality of a seizure can be contested only by the party whose rights have been impaired thereby. The objection to an unlawful search and seizure is purely personal and cannot be availed by third parties. The remedy for questioning the validity of a search warrant can only be sought in the court that issued it, not in the sala of another judge of concurrent jurisdiction. Page 236 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Objections to the legality of the search warrant and to the admissibility of the evidence obtained are deemed waived when no objection to the legality of the search warrant was raised during the trial. Section 14. Motion to quash a search warrant or suppress evidence; where to file REMEDIES OF PARTY ADVERSELY AFFECTED BY A SEARCH WARRANT: 1. Motion to quash the search warrant with the issuing court; or 2. Motion to suppress evidence with the court trying the criminal case. NOTE: These remedies are ALTERNATIVE, hence if a motion to quash is denied, a motion to suppress evidence cannot be availed of subsequently NOTE: A third option would be to file an action for replevin if the properties seized were lawfully possessed. The Moncado Ruling, saying that illegally seized documents, papers and things are admissible in evidence has already been ABANDONED. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. WHERE TO FILE MOTION TO QUASH WARRANT 1. May be filed and acted upon ONLY by the court where the action has been instituted 2. If not criminal action has been instituted, MTQ may be filed with the court who issued the warrant. However, if such court failed to resolve the motion and a criminal action is subsequently filed in another court, the motion shall be resolved by the latter court

RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Section 1. Availability of provisional remedies PROVISIONAL REMEDY It is one provided for present need or one that is adopted to meet a particular exigency. PROVISIONAL REMEDIES UNDER THE RULES OF COURT: 1. Attachment (Rule 57)

2. 3. 4. 5.

Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61)

Purpose of Provisional Remedies Provisional remedies are applied pending litigation, to secure the judgment or preserve the status quo If provisional remedies are applied for after judgment, it is in order to preserve or dispose of the subject matter. Although civil action is suspended until final judgment in the criminal case, the court is not deprived of its authority to issue preliminary and auxiliary writs which do not go into the merits of the case. Preliminary writs and auxiliary writs referred to are those such as the ff: • Preliminary injunction • Attachment • Appointment of receiver • Fixing amounts of bonds Section 2. Attachment ATTACHMENT It is a remedy afforded to the offended party to have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused CASES WHERE ATTACHMENT IS AVAILABLE: 1. When action for recovery is on a cause of action arising from law, contract, quasicontract, delict, or quasi-delict and accused is about to abscond from the Philippines; 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, or any officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of duty; 3. When the accused has concealed, removed or disposed of his property or is about to do so; 4. When action is against a party guilty of fraud in contracting the debt upon which action is brought, or in the performance of incurred obligation; 5. When action is against a party who removed or disposed of his property or is about to do so, with intent to defraud his creditors; and

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 6. When the Philippines

accused

resides

outside

the

Mindanao Savings, etc. vs CA, 172 SCRA 480 (1989) No notice to the adverse party or hearing on the application is necessary before a writ of preliminary attachment may issue. This may be filed at the commencement of a criminal action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered in the aforementioned cases. Public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

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