SAMPLE ONLY TRIAL MEMORANDUM IN CRIMINAL CASE CAPTION & TITLE OMITTED x ------------------------------------------------ x

MEMORANDUM

ACCUSED

BC,

by

counsel,

respectfully

submits

this

Memorandum to show that he is not guilty of perjury as alleged in the Information.

STATEMENT OF THE CASE

This is a case for perjury against BC.

The basis for this

charge is the affidavit-complaint he executed on May 7, 2011, charging Police Officer XY with grave misconduct for the incident that happened at the La Trinidad Police Station on May 4, 2011. BC stated in his affidavit-complaint that on that day XY threatened him with bodily harm. The prosecution, however, was able to show that XY was in the United States on May 4, 2011.

STATEMENT OF FACTS

At about 6:30 oclock in the evening of May 4, 2011, BC was

mauled at Km. 4, La Trinidad, Benguet, by three men whose names he came to know later as KL, MN, and OP. 1 Accompanied by his wife and a barangay tanod, BC went to the police station at Km. 5, La Trinidad, to report the incident, but the police officer on duty advised him to go to the nearby Benguet General Hospital first for treatment of his injuries.2 He was treated at the hospital by Dr. FG

who issued him a Medico-Legal Certificate3.

After he was treated, BC prepared to go to the police station. But while he was at the door of the hospital, he was again mauled by KL, MN, and OP.4 So back to the hospital he went. He was treated - again - by Dr. FG who issued another Medico-Legal Certificate5.

From the hospital, he proceeded to the police station to lodge a complaint against those who had mauled him. While he and

several persons were at the police station, a man, who introduced himself as Police Officer XY and cousin of KL, arrived and threatened BC with bodily harm if he would not withdraw his complaint.

1 2

Tsn, Feb. 18, 2009, at pp. 3-5. Ibid., at p. 6. 3 Exh. 1. 4 Tsn, Feb. 18, 2009, at pp. 7-8. 5 Exh. 2.

BCs testimony about the incident that happened at the police station was substantially corroborated by two eye-witnesses, RC and JC, who separately executed their respective affidavits6. On May 7, 2011, BC executed an affidavit-complaint charging XY with grave misconduct. The prosecution, however, was able to prove that on May 4, 2011, XY was in the United States, and therefore he could not have been at the La Trinidad Police Station on that day. As it turned out, the one who threatened BC at the

police station was not XY.

STATEMENT OF THE ISSUES

The issues in this case are:

a) falsehood;

Whether or not BC made a deliberate statement of

b)

Whether or not the false statement was made before an

officer authorized to administer oaths.

ARGUMENTS

Exhs. 4 and 5.

a) Accused BC did not make a deliberate statement of falsehood.

Perjury is defined and penalized under Article 183 of the Revised Penal Code. In Padua v. Paz, A.M. No. P-00-1445, April 30, 2003, the Supreme Court restated the four elements of perjury, namely: (1) that the accused made a statement under oath upon a material matter; (2) that the statement was made before a competent officer, authorized to receive and administer oath; (3) that the accused made a willful and deliberate assertion of a falsehood in the statement; and (4) that the sworn statement containing the falsity is required by law or made for legal purpose.7

Perjury is a felony by dolo because it is required that the statement made by the accused is a willful and deliberate assertion of a falsehood. The Supreme Court, in Monfort III, et al. v.

Salvatierra, et al., G.R. No. 168301, March 5, 2007 , has explained the law on perjury in this wise:

Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally, with evil intent and legal malice, with consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to `knowingly. Deliberately implies meditated as distinguished from `inadvertent acts. It must appear that the
7

See also: Reyes, Luis B., The Revised Penal Code, Book Two, c. 1998, at p. 272.

accused knows his statement to be false or is consciously ignorant of its truth.

Assuming

that

BCs

affidavit-complaint 8

contains

false

statement, the prosecution has failed to show that he was aware of the falsity of his statement. The fact is, at the time BC made his Affidavit-Complaint, he thought his statement was true. He was, to borrow the words of the Supreme Court, consciously ignorant of its truth. In making the statement, he did not act with evil intent. On the contrary, he acted in good faith, in a legitimate act to seek relief for the wrong done to him.

In fact, RC and JC who were present during the incident at the La Trinidad police station were of the same perception. They, too, believed in good faith that the one who arrived at the police station was Police Officer XY because that was how that person announced himself to be. The way that person acted at that time led everyone to believe that he was Police Officer XY.

Having been mauled twice in close succession, BC made an affidavit-complaint, charging the person whom he honestly thought at that time to be Police Officer XY with an administrative offense. That BC presented his affidavit-complaint to the Philippine National Police Provincial Internal Affairs Service (PIAS-CAR) demonstrates

Exh. B [also Exh. 6].

his good faith.

It means that he had no other purpose but to

legitimately seek redress for his grievance.

In Villanueva v. Hon. Secretary of Justice, et al., G.R. No. 162187, Nov. 18, 2005, it was held that a mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful. Here, there might have been an assertion of

a false objective fact regarding the presence of XY at the La Trinidad police station on May 4, 2011, but such assertion was not deliberate and willful. As held in People v. Abaya, 74 Phil. 59, good faith is a

defense in perjury.

b) The prosecution failed to prove that the statement was made before a competent officer authorized to administer oath.

The all-familiar rule in this jurisdiction is that in criminal prosecutions the plaintiff has the burden of proof. This burden of proof imposes upon the prosecution the duty to prove all the elements of the offense beyond reasonable doubt.

All the prosecution did in this case was to offer in evidence Exh. B, which is the affidavit-complaint of BC, to form part of the testimony of Police Officer XY9 That, it is respectfully submitted, is not enough.
9

Formal Offer of Exhibits for the Prosecution.

Since one element of the offense is that the statement was made before a competent officer authorized to receive and administer oath, the prosecution should have presented evidence to show that the person before whom the statement was made was a duly commissioned notary public in Benguet Province on the date appearing on the affidavit-complaint. The words notary public

below the name QRS is hopelessly insufficient to prove this element. Since this is a criminal prosecution, the words notary public cannot support the presumption that the person whose name appears thereon is authorized to receive and administer oath. prosecution cannot rely on presumptions or conjectures. The

Besides, there is likewise no evidence, because none was presented by the prosecution, as to whose signature appears above the name QRS. This, too, cannot be presumed.

RELIEF

WHEREFORE, it is respectfully prayed that judgment be rendered acquitting BC of perjury. are also prayed for. Other reliefs just and equitable

BAGUO CITY, PHILIPPINES, this 27th day of November, 2011.

Signed (Counsel for the Accused) Address

Copy furnished (by personal service): Office of the Provincial Prosecutor La Trinidad, Benguet