Copy-crimpro-takehome-quiz-1.docx

CRIMINAL PROCEDURE TAKE HOME QUIZ 1. After conducting the preliminary investigation, if the investigating prosecutor finds cause to hold respondent for trial, what shall he do? Under Section 4, Rule 112, if the investigating prosecutor finds probable cause to hold respondent for trial, he shall prepare a resolution and certify under oath in the information. 2. What shall the investigating prosecutor certify in the information? The information shall contain a certification by the investigating officer under oath in which he shall certify the following: 1. That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; 2. That there is reasonable ground to believe that a crime has been committed; 3. That the accused is probably guilty thereof 4. That the accused was informed of the complaint and of the evidence submitted against him; and 5. That he was given an opportunity to submit controverting evidence Note: Question: Suppose the prosecutor failed to make that certification in the information, is the information valid or defective? Answer: It is still VALID. In the case of Alvizo vs. Sandiganbayan, 220 SCRA 45 the supreme court held that, “Notwithstanding the absence in the information of a certification as to the holding of a preliminary investigation, the information is nonetheless considered valid for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.” 3. May the investigating prosecutor file or dismiss the information? No, because the resolution of the investigating prosecutor is merely recommendatory. And under Section 4, Rule 112, Rules of Court, No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Note: Remember that INVESTIGATING PROSECUTOR will only prepare the resolution and information, approval of such shall be the duty of his superior. 4. What may be the courses of action of the provincial or city prosecutor or the ombudsman if he disapproves the recommendation of the investigating prosecutor dismissing the complaint? When the Investigating Prosecutor recommends the dismissal of the complaint but his findings are reversed by the “Superior” Prosecutor or Ombudsman on the ground that

probable cause exists, the “superior” prosecutor or Ombudsman may by himself, file the information against the respondent, or direct another assistant prosecutor to do so without conducting another preliminary investigation (Sec. 4, Rule 112) 5. If the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, what shall be his course of action? Under Section 4, Rule 112, if the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. 6. May the Secretary of Justice review the resolution of his subordinates (City Prosecutor, Provincial Prosecutor, Chief State Prosecutor) even if the information has been filed in court? Yes. The Supreme Court held in the case of Community Rural Bank of Guimba v. Talavera, The DOJ Secretary may review resolutions, via petition for review to the Secretary of Justice, of his subordinates in despite the information being filed in court. (DOJ Circular No. 70) Note: Section 7, DOJ Department Circular. No. 70.

7. If the information has been filed in court, what must the accused do if there was no preliminary investigation? An accused who wants to question the regularity or absence of a preliminary investigation must do so before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial. 8. State the nature of the power of control of the Secretary of Justice over prosecutors. The Secretary of Justice exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify, reverse or modify their rulings. 9. When may the Supreme Court interfere with the prosecution’s power of determination of probable cause? In general, the courts cannot interfere in the conduct of preliminary investigations, leaving the investigatory officers sufficient discretion to determine probable cause. Except when the acts of the officer are without or in excess of authority resulting from a grave abuse of discretion (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008) ALTERNATIVE ANSWER: The general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. However, the exceptions are laid down by the Supreme Court in the case of Brocka vs. Enrile, among which are:

a. To afford adequate protection to the constitutional rights of the accused; b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c. When there is a pre-judicial question which is sub judice; d. When the acts of the officer are without or in excess of authority; e. Where the prosecution is under an invalid law, ordinance or regulation; f. When double jeopardy is clearly apparent; g. Where the court has no jurisdiction over the offense; h. Where it is a case of persecution rather than prosecution; i. Where the charges are manifestly false and motivated by the lust for vengeance; and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. Note: If the exceptions in the case of Brocka v. Enrile are not present, normally, hindi nakikialam ang SC. Remember, the determination of probable cause by prosecutor is an executive function. But, in the case of ALEADO VS. DIOKNO (232 SCRA 192), two lawyers: Atty. Aleado and Atty. Mendoza who were associates in the office of Senator Jovito Salonga were implicated in the murder of a German National. There was an investigation and a case was filed against them. Salonga entered into picture and questioned whether or not there is probable cause. Determination of probable cause, sa fiscal lang dapat yan, hindi dapat sa SC. Surprisingly, the SC acted and said that there was no probable cause which justified the issuance of order of arrest of the 2 lawyers. The SC ordered that the warrant of arrest be set aside and the trial court is permanently enjoined from further proceeding against them. In effect, the respondent judge was ordered to dismiss the information before him. Ganito dapat ung tamang proseso: PROSECUTOR->SECRETARY OF JUSTICE->OFFICE OF THE PRESIDENT via an administrative case->CA via Rule 43 or SC via Rule 65. Hindi SC agad. Pero sympre, SENATOR Jovito Salonga ba naman yung nagquestion. Nashortcut na. If the question is, Q. Does the SC have the power to review preliminary investigation? A. Yes. The SC have the power to review the findings of prosecutors in preliminary investigations. Courts should never shirk from exercising their power, when the circumstances warrant, to determine whether the prosecutor’s findings are supported by the facts, or by the law. In so doing, courts do not act as prosecutors but as organs of the judiciary, exercising their mandate under the Constitution, relevant statutes, and remedial rules to settle cases and controversies. The exercise of this Court’s review power ensures that, on the one hand,

probable criminals are prosecuted and, on the other hand, the innocent are spared from baseless prosecution. 10. What is the purpose of the power of the judge to determining probable cause? The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. 11. May the prosecutor be compelled by mandamus to file an information? When may the Supreme Court intrude upon the prerogative of the prosecutor to file an information? The prosecutor can not be compelled by mandamus to file an information because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice. 12. Before deciding whether or not to issue a warrant of arrest, what shall the judge do? The judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If the judge desires to further determine the existence of probable cause, he may, require the submission of additional evidence within ten (10) days from notice. Note: Read Riano, he discuss the meaning of “personally examine” which is required by the rules. Just an interesting case which discussed “personally examine” means. Pero read RIANO pa rin. ROBERTS vs. COURT OF APPEALS, March 5, 1996 This is the Pepsi-Cola 349 tansan case. Maraming nanalo ng 349. Pag-file ng fiscal, marami, makapal ang documents. The records of the case is voluminous. Pag-file, after 20 minutes the judge issued the warrant of arrest. The accused challenged it: ACCUSED: You did not determine probable cause. JUDGE: Bakit? All the supporting documents are attached in the information. ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did not go over them. Ibig sabihin binasa mo lahat yan within 20 minutes only? So it is now doubtful that the judge will go over the entire records within 20 minutes. Voluminous ung record eh, so makapal. HELD: Sabi ng SC: “Eh kung mabilis pala mag-basa ang judge? Ano’ng pakialam mo, Ha! Ang importante nandoon ang records.

13. Is there a need for the judge to issue warrant of arrest if the accused is already under detention? No. 14. What are general warrants of arrest? Are they valid? General warrant of arrest, some called it John Doe warrants are warrant of arrest which does not particularly describe the person or persons to be arrested. In general, warrant of arrest are not valid because it violates the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested. However, if there is sufficient description to identify the person to be arrested, then the warrant is valid. Note: On the other hand, General Search Warrants are search warrants which vaguely describes and does not particularize the personal properties to be seized without definite guidelines to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize. A general search warrant is not valid as it infringes on the constitutional mandate requiring particular description of the things to be seized. 15. If the judge finds lack of probable cause and did not issue warrant, what course of action may the judge take? In case of doubt as to the existence of probable cause, the judge may order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information. 16. Is there a need to hearing for judicial determination of probable cause? No, there is no need for de novo hearing. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon, the court stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. Note: Read PEOPLE VS. COURT OF APPEALS, G.R. No. 126005, January 21, 1999, diniscuss dun yung Judicial Determination of Probable Cause

17. Alberto was caught by Police Officer Bangayan in the act of killing Carlito, Police Officer Bangayan arrested Alberto. Is there a need for a preliminary investigation? Preliminary investigation is not needed. If a person is arrested lawfully without a warrant involving an offense which requires preliminary investigation, an Information or complaint may be filed against him without need for a preliminary investigation provided an inquest has been conducted in accordance with existing rules (Sec. 6 Rule 112 as amended by A.M. No. 05-08-26-SC, August 30, 2005). Thus, if a person is arrested by a police officer in flagrante delicto in the act of killing the victim, the arrest is a lawful one and a preliminary investigation is not required even if the penalty for robbery is more than 4 yrs., 2 mos., and 1 day. 18. What should be required of Alberto if he opts a preliminary investigation? Before the complaint or Information is filed, the person arrested may ask for a preliminary investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel. Note: Art. 125 of the RPC deals with the period of delay in the delivery of detained persons to the proper judicial authorities. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. Be it noted that by virtue of R.A. 7438, Rights of Persons Arrested, Detained or Under Custodial Investigation, any waiver by the person arrested or detained or under custodial investigation shall be in writing, signed by such person in the presence of his counsel, otherwise such waiver shall be null and void. (Sec. 2, RA. 7438). Nadiscuss ang law na to sa Bill of Rights. I’M NOT SURE, but I think the preliminary investigation itself does not require the presence of the counsel. Don’t be confuse with PRELIMINARY INVESTIGATION and CUSTODIAL INVESTIGATION. Probable cause lang naman kasi ang dinedetermine sa PI. But the waiver requires presence of a counsel. 19. What is the remedy of the accused if a complaint of information is filed against him and there was no preliminary investigation? State the period within which to avail of the remedy. Under Section 6, Rule 112, After the filing of the complaint or information in court without a preliminary investigation, the accused may within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense. 20. What is inquest? Under Section 1, of DOC Circular No. 61, Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons

arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. 21. What are the options of the judge in the issuance of a warrant of arrest in cases not requiring preliminary investigation nor covered by the Rules of Summary Procedure? The judge may, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. Note: I’m not sure with this. I just generalized the answer. Kasi naman in the question, “options of the judge in the issuance of warrant of arrest” ang nakalagay, eh one of the options is issuance of warrant of arrest. Anyway, karaniwan ata sa mga ganito, hindi nagissue ng warrant ang judge, summons nalang. The purpose of the warrant is to place the accused under custody. Pero kung hindi naman kelangan iunder custody ung accused, di na kelangan ang warrant of arrest. Remember, these are MTC cases, the accused is just within the locality. 22. What is the meaning of Searching Questions and Answers under Section 8 (b) of Rule 112? In the case of Luna v. Plaza, G.R. No. 27511 (1968), Searching questions are such questions which have the tendency to show the commission of a crime and the perpetrator thereof. 23. An insane person is found naked in public and is creating commotion. Police Officer Guarin took custody of him. Did Police Officer Guarin arrest him? I don’t know the answer. Pero I think hinde. Kasi ARREST under Section 1, Rule 113, it is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. How can an insane person answer for the commission of an offense? 24. What force should be employed in arresting a person? Under Section 2, Rule 113, No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

However, in the case of People v. Delima 46 Phil. 738, if necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him and protect himself from bodily harm, force shall be justified. NOTE: An officer may break into a building or enclosure to effect an arrest provided that: 1. The person to be arrested is or reasonably believed to be in the said building; 2. The officer has announced his authority and purpose for entering therein; 3. He has requested and been denied admittance 25. When an arresting officer arrests a person, what is his duty? Under Section 3, Rule 113, the officer executing the warrant shall arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. 26. Within how many days shall the head of the office to whom the warrant of arrest was delivered cause it to be executed? Under Section 4, Rule 113, the head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt; 27. What is the duty of the arresting officer to whom the warrant of arrest was assigned for execution? Under Section 4, Rule 113, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. In case of the officer’s failure to execute, he shall state the reasons therefor. 28. What are the instances that a peace officer may arrest a person without a warrant? Under Section 5, Rule 113, ROC, A peace officer may without warrant, arrest a person: 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 29. May a peace officer arrest a person he suspected to have committed a crime? Elaborate your answer. Under Sec. 5(a), Rule 113, mere "suspicion" and "reliable information" are not justifications for a warrantless arrest. The rule requires that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.

However, if the suspicion is based on personal knowledge of facts indicating that the person to be arrested has committed it. This exception does not require the arresting officers to personally witness the commission of the offense with their own eyes. Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds are reasonable when the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest (Abelita v. Doria, G.R. No. 170672, August 14, 2009). 30. May a private person make an arrest without a warrant of arrest? Yes. Under Section 5, Rule 113, ROC, A peace officer or a PRIVATE PERSON may without warrant, arrest a person: 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

SOURCES: RIANO, UST GOLDEN NOTES, UP REVIEWER, GOOGLE. Disclaimer: Use it at your own risk.