CrimPro GN 2014

CRIMINAL PROCEDURE
CRIMINAL PROCEDURE
JURISDICTION OVER THE SUBJECT MATTER V.

JURISDICTION OVER THE PERSON OF THE
ACCUSED
GENERAL MATTERS
Criminal Procedure
Jurisdiction over the

Subject Matter
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 (Herrera, 2007;
Pamaran, 2010).
Derived from law. It

can
never
be
acquired solely by
consent
of the
accused.
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.
Jurisdiction over the
subject matter is
determined
upon
the allegations made
in the complaint,
irrespective
of
whether the plaintiff
is entitled or not, to
recover upon the
claim
asserted
therein, a matter
resolved only after
and as a result of the
trial.
Criminal Law v. Criminal Procedure

Criminal Law
Substantive
It declares what
acts are punishable.
It defines crimes,
treats of their
nature and
provides for their
punishment.
Criminal Procedure
Remedial
It provides how the
act is to be
punished.
It provides for the
method by which a
person accused of a
crime is arrested,
tried or punished.
Criminal Jurisdiction
It is the authority to hear and try a particular
offense and impose the punishment for it (People
v. Mariano, 71 SCRA 605).
Elements of criminal jurisdiction
1. Penalty attached The jurisdiction of a Court
in criminal cases is determined by the penalty
imposable, and not by the penalty ultimately
imposed (Guevarra v. Almodovar, 169 SCRA
476).
2. Nature of the offense charged.
3. Territorial jurisdiction over the place of
commission of the crime.
Jurisdiction over
the Person of the
Accused
May be acquired
by consent of the
accused or by
waiver
of
objections.
If he fails to make
his objection on
time, he will be
deemed to have
waived it.
Jurisdiction over
the person of the
accused is acquired
by
voluntary
appearance
or
surrender of the
accused or by his
arrest.
REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION
Requisites for a valid exercise of criminal
jurisdiction
The absence of any of these elements may be

challenged by an accused at any stage of the
proceedings in the court below or on appeal.
Failing to comply with anyone of them, the
resulting judgment is void (Uy v. Court of Appeals,
276 SCRA 374).
1. Jurisdiction over the subject matter This is

the power to hear and determine cases of
general class to which the proceeding in
question belongs. The offense, by virtue of
the imposable penalty or its nature, is one
UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
CRIMINAL PROCEDURE
which the court is by law authorized to take

cognizance of.
2. Jurisdiction over the territory The offense
must have been committed or any of its
essential ingredients took place within the
territorial jurisdiction of the court. It cannot
be waived and where the place of the
commission was not specifically charged, the
place may be shown by evidence.
3. Jurisdiction over the person of the accused
The person charged with the offense must
have been brought to its presence for trial,
forcibly by warrant of arrest or upon his
voluntary submission to the court.
amendatory law (Binay v. Sandiganbayan

GR No. 120011, October 1, 1999).
JURISDICTION OF CRIMINAL COURTS
Jurisdiction
Determined by the allegations in the complaint or
information not by the results of proof or by the
trial courts appreciation of the evidence
presented (Buaya v. Polo, G.R. No. 75097, January
26, 1989).
Determination of jurisdiction when fine is the
only penalty
NOTE: GR: Questions of jurisdiction may be raised at

any stage of the proceedings.
In cases where the only penalty provided by law

is a fine, the amount thereof shall determine the
jurisdiction of the court:
1. The RTC has jurisdiction where the fine is
more than Php 4,000 including offenses
committed by public officers and employees
in relation to their office, where the amount
of the fine does not exceed Php 6,000 (SC
Court Circular No. 09-94) except in cases of
criminal negligence involving damage to
property which falls under the exclusive
original jurisdiction of the MTC.
2. The MTC has jurisdiction where the fine is
Php 4,000 or less.
XPN: The party raising the question is guilty of

estoppels or laches (Tijam v. Sibonghanoy, 23 SCRA
29).
Tests to determine jurisdiction of the court in

criminal cases
1. The geographical limits of its territory;
2. Determined by the allegations in the
complaint or information not by the results of
proof or by the trial courts appreciation of
the evidence presented;
3. Determined by the nature of the offense and/
or penalty attached thereto and not what
may be meted out after trial; and
4. Determined by the law in force at the time of
the institution of the criminal action and not
at the time of its commission. Once vested it
CANNOT be withdrawn by:
a. Subsequent valid amendment of the
information (People v. Chipeco, G.R. No.
1968, March 31, 1964); or
b. Subsequent statutory amendment of the
rules of jurisdiction unless the
amendatory law expressly provides
otherwise or is construed that it is
intended to operate to actions pending
before its amendment, in which case the
court where the action is pending is
ousted of jurisdiction and the pending
action will have to be transferred to the
court having jurisdiction by virtue of the
NOTE: Accessory penalties and civil liabilities are no

longer determinative of criminal jurisdiction.
Court having jurisdiction on continuing offenses

Continuing offenses are those consummated in
one place, yet by the nature of the offense, the
violation of the law is deemed continuing (e.g.
estafa and libel). As such, the courts of the
territories where the essential ingredients of the
crime took place have concurrent jurisdiction. But
the court which first acquires jurisdiction
excludes the other courts.
Court having jurisdiction over crimes punishable
by destierro
Where the imposable penalty is destierro, the
case falls within the exclusive jurisdiction of the

CRIMINAL PROCEDURE
MTC, considering that in the hierarchy of

penalties under Art. 71 of the RPC, destierro
follows arresto mayor which involves
imprisonment (People v. Eduarte, G.R. No. 88232,
February 26, 1990).
immediately investigated and prosecuted for the

protection of society [Asutilla vs. PNB, 225 Phil.
40, 43 (1986)].
XPNs:
1. To afford adequate 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
subjudice;
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 lust for vengeance;
10. When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied; and
11. Preliminary injunction has been issued by
the SC to prevent the threatened unlawful
arrest of petitioners (People of the
Philippines vs. Joseph V. Grey, G.R. No.
180109, July 26, 2010).
Q: In complex crimes, how is the jurisdiction of a

court determined? (2003 Bar Question)
A: It 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. It must be prosecuted
integrally and must not be divided into
component offenses which may be made subject
of multiple informations brought in different
courts (Cuyos v. Garcia, G.R. No. L-46934, Apr. 15,
1988).
Q: Photokina Marketing Corporation filed a
complaint for libel against Justice Alfredo
Benipayo, then chairman of the COMELEC. The
Information against Justice Benipayo was filed
before the RTC despite the challenge on the
jurisdiction of the Office of the City Prosecutor
over his person being a public official. Benipayo
contends that it is the Sandiganbayan who has
jurisdiction. Do the Sandiganbayan and RTC
have concurrent jurisdiction over libel or written
defamation cases?
A: No. The grant to the Sandiganbayan of
jurisdiction over offenses committed in relation
to office, did not divest the RTC of its exclusive
and original jurisdiction to try written defamation
cases regardless of whether the offense is
committed in relation to office (People v.
Benipayo, G.R. Nos. 154473 and 155573, April 24,
2009).
PROSECUTION OF OFFENSES
RULE 110
CRIMINAL ACTIONS, HOW INSTITUTED
Criminal action
One by which the State prosecutes a person for
an act or omission punishable by law.
WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN

CRIMINAL PROSECUTION
Institution of criminal action
Q: Will injunction lie to restrain the

commencement of a criminal action? Explain.
(1999 Bar Question)
Criminal actions are instituted by:

1. Filing the complaint with the proper officer
for the purpose of conducting the requisite
preliminary investigation for offenses where
a preliminary investigation is required;
A: GR: Injunction cannot lie to restrain the

commencement of a criminal action because
public interest requires that criminal acts be

CRIMINAL PROCEDURE
2. For all other offenses, by filing the complaint

or information directly with the MTC and
MCTC, or the complaint with the office of the
prosecutor (Sec. 1, Rule 110);
Municipal Ordinances and to Provide When

Prescription shall Begin to Run) shall only be
interrupted by the filing of a complaint or
information in court. The filing of a complaint
with the prosecutor or the proper officer for
purposes of conducting a preliminary
investigation will not interrupt the prescriptive
period (Zaldivia v. Reyes, Jr., G.R. No. 102342, July
3, 1992).
NOTE: For Metro Manila and other chartered cities,

the complaint shall be filed with the prosecutor
regardless of the imposable penalty (Sec 1b, Rule 110),
while cases falling within the jurisdiction of the RTC are
always commenced by information filed by the
prosecutor.
Q: In offenses punishable by imprisonment not

exceeding 6 years, may the offended party go
directly to court to file a criminal action?
Direct filing of a complaint or information with

the RTC or MeTC or other chartered cities
A: GR: No. Before a complaint is filed in court,

there should have been a confrontation between
the parties before the Lupon chairman. The Lupon
secretary must certify that no conciliation or
settlement was reached, attested to by the Lupon
chairman. The complaint may also be filed if the
settlement is repudiated by the parties.
There is no direct filing of an information or

complaint with the RTC because its jurisdiction
covers offenses which require preliminary
investigation.
There is likewise no direct filing with the MeTC
because in Manila, including other chartered
cities. As a rule, the complaint shall be filed with
the office of the prosecutor, unless otherwise
provided by their charters. In case of conflict
between a city charter and a provision of the
Rules of Court, the former, being substantive law,
prevails.
XPNs:
1. Where the accused is under detention;
2. Where a person has otherwise been deprived
of personal liberty calling for habeas corpus
proceedings;
3. Where actions are coupled with provisional
remedies; and
4. Where the action may be barred by the
statute of limitations.
Effect of institution of a criminal action

GR: It interrupts the running of the period of
prescription of the offense charged (Sec. 1, Rule
110).
Prescriptive periods of cases falling under the

authority of the Lupon
NOTE: Notably, the aforequoted article (Art. 91,

RPC), in declaring that the prescriptive period shall
be interrupted by the filing of the complaint or
information, does not distinguish whether the
complaint is filed for preliminary examination or
investigation only or for an action on the merits.
Thus, in Francisco v. CA and People v. Cuaresma,
this Court held that the filing of the complaint even
with the fiscals office suspends the running of the
statute of limitations (Reodica v. CA, G.R. No.
125066. July 8, 1998).
The prescriptive period shall be suspended from

the time of the filing of complaint with the
Punong Barangay which suspension shall not
exceed 60 days. The prescriptive period shall
resume upon receipt of the certificate of
repudiation or certificate to file action [Sec.
410(c), LGC].
WHO MAY FILE THEM, CRIMES THAT CANNOT
BE PROSECUTED DE OFFICIO
XPN: Prescriptive periods of violations of special

laws and municipal ordinances governed by Act
3326 (An Act to Establish Periods of Prescription
for Violations Penalized by Special Laws and
Offense or crime that cannot be prosecuted de

officio

CRIMINAL PROCEDURE
These are crimes or offenses which cannot be

prosecuted except on complaint filed by the
offended party or if the offended party is a minor,
by the parents, grandparents or the guardian.
Instances when the State may initiate the action

for seduction, abduction or acts of
lasciviousness in behalf of the offended party
Who may file
1. When the offended party dies or becomes

incapacitated before a complaint is filed; or
2. The offended party has no known parents,
grandparents or guardian (Sec. 5, Rule 110).
GR: All criminal actions initiated by complaint or

information are filed by the prosecutor.
NOTE: This is pursuant to the doctrine of parens

patriae.
XPNs: Private crimes which may only be

prosecuted by a complaint filed by the private
offended party, i.e.:
1. Adultery and concubinage;
2. Seduction, abduction and acts of
lasciviousness; and
3. Criminal actions for defamation
imputing
the
abovementioned
offenses (Sec. 5, Rule 110).
Persons who may file a Complaint on cases of

unlawful acts in RA 7610 (Special Protection of
Children against Child Abuse, Exploitation and
Discrimination Act)
NOTE: These are also known as private crimes.
1.
2.
3.
4.
Party who may legally file a complaint for

adultery or concubinage
5.
Only the offended spouse may file a complaint for

adultery or concubinage(Sec. 5, Rule 110).
6.
7.
NOTE: The offended spouse cannot institute a criminal

action for adultery without including the guilty parties
if both are alive; or if the offended party has consented
to the offense or pardoned the offenders (Sec. 5, Rule
110). If the complainant has already been divorced, he
can no longer file the complaint (Pilapil v. Somera, G.R.
No. 80116, June 30, 1989). This is considered as lack of
status.
Filing a complaint by a minor for Seduction,

Abduction, or Acts of Lasciviousness
GR: The offended party, even if a minor, has the
right to initiate the prosecution of such offenses
independently of his parents, grandparents or
guardian.
Parties who may file a complaint for seduction,

abduction or acts of lasciviousness
1.
2.
3.
4.
Offended party
Parents or guardians
Ascendant or collateral relative within the
third degree of consanguinity
Officer, social worker or representative of a
licensed child-caring institution
Officer or social worker of the Department of
Social Welfare and Development
Barangay chairman; or
At least 3 concerned, responsible citizens
where the violation occurred (Sec. 27, RA
7160).
XPNs: If the minor is:

1. Incompetent; or
2. Incapable of doing so (Sec. 5, Rule 110)
The offended party;

Parents of the offended party;
Grandparents of the offended party; or
Guardian of the offended party (Sec. 5, Rule
110).
NOTE: If the minor fails to file a complaint, his parents,

grandparents or guardian may file the same. The right
granted to the latter shall be excusive and successive
in the order herein provided (Sec. 5, Rule 110).
NOTE: Such crimes cannot be prosecuted if the

offender has been expressly pardoned by any of the
abovementioned parties (Sec. 5, Rule 110).
Q: Fey, a minor orphan was subjected to acts of

lasciviousness performed by her uncle Polo. She
informed her grandparents but was told not to

CRIMINAL PROCEDURE
file charges. Fey now asks you as counsel how

she could make her uncle liable. What would
your advice be? Explain.
b. Seduction,
1. The
offended
abduction
and
minor, if with
acts
of
sufficient
lasciviousness:
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;
2. The
parents,
grandparents or
guardian of the
offended minor,
in that order,
extend a valid
pardon in said
crimes without
the conformity of
the
offended
party, even if the
latter is a minor;
or
3. If the offended
woman is of age
and
not
otherwise
incapacitated,
only she can
extend a valid
pardon.
Suppose the crime committed against Fey by her

uncle is rape, witnessed by your mutual friend
Isay. But this time, Fey was prevailed upon by
her grandparents not to file charges. Isay asks
you if she can initiate the complaint against
Polo. Would your answer be the same? Explain.
(2000 Bar Question)
A: The minor may file the complaint
independently of her grandparents, because she
is not incompetent or incapable of doing so upon
grounds other than her minority (Sec. 5, Rule
110).
Since rape is now classified as a crime against
persons under the Anti-Rape Law of 1997 or RA
8353, Isay can initiate the complaint against Polo.
Pardon given by a minor in cases of seduction,
abduction or acts of lasciviousness
The pardon to be effective as to prevent
prosecution of the accused must be given by both
parents and the offended party (U.S. v. Luna, 1
Phil. 360).
Pardon v. Consent
Pardon
Refers to past acts
In order to absolve
the accused from
liability, it 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
NOTE: The pardon shall be given 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.
Parties who can give pardon
Subsequent marriage of the accused and

offended party
Crimes
Parties who can give

pardon
a. Concubinage and Only the offended
adultery
spouse,
not
otherwise
incapacitated.
GR: The subsequent marriage between the party

and the accused, even after the filing of the
complaint, extinguishes the criminal liability of
the latter, together with that of the co-principals,
accomplices and accessories.

CRIMINAL PROCEDURE
XPNs:
1. Where the marriage was invalid or
contracted in bad faith in order to escape
criminal liability;
2. 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; and
3. In multiple rape, in so far as the other accused
in the other acts of rape committed by them
are concerned.
or partial (Donio-Teves v. Vamenta, G.R. No.

L-38308, December 26, 1984).
CONTROL OF PROSECUTION
Prosecution of criminal actions
GR: The public prosecutor shall prosecute, direct
and control all criminal actions commenced by a
complaint or information.
XPN: The private prosecutor (private counsel)
may prosecute the case provided that:
1. The public prosecutor has heavy work
schedule; or
2. There is lack of public prosecutors;
3. The private prosecutor must be
authorized in writing by the Chief
Prosecution Office or Regional State
Prosecution; and
4. Such will be subject to the courts
approval (Sec. 5, Rule 110).
Effect of desistance of the offended party in

private crimes
It does not bar the People from prosecuting the
criminal action, but it operates as a waiver of the
right to pursue civil indemnity.
GR: Since it is the State who is the real offended
party in a criminal case, it is the prosecutor or the
Ombudsman as the case may be, or the Solicitor
General in cases before the CA or SC, who has the
personality and authority to prosecute and file a
petition in behalf of the State.
Prescription of the authority of the private

prosecutor
The authority of the private prosecutor shall
continue until the end of the trial unless the
authority is revoked or withdrawn (Sec. 5, Rule
110).
XPN: An offended party in a criminal case has

sufficient personality to file a special civil action
for certiorari, 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., G.R. No. 126210, March 9, 2000).
Matters within the control and supervision of

the prosecutor
1.
2.
3.
4.
Effect of death of the offended party to the

criminal action
1. If prior to the filing of a case in court, a
complaint was already filed by the offended
party with the prosecutor, the death of the
complainant will not be sufficient justification
for the dismissal of the information (People v.
Ilarde, G.R. No. L-57288, April 30, 1984); or
2. During the pendency of the case, the death of
the complainant will not extinguish the
criminal liability of the accused whether total
What charge to file;

Whom to prosecute;
Manner of prosecution; and
Right to withdraw information before
arraignment even without notice and
hearing.
NOTE: Once a complaint or information is filed in

Court, any disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of
criminal cases even while the case is already in Court,
he cannot impose his opinion on the trial court. The
determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the

CRIMINAL PROCEDURE
Court who has the option to grant or deny the same. It

does not matter if this is done before or after the
arraignment of the accused or that the motion was
filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the
investigation (Crespo v. Mogul, GR L-53373 June 30,
1987).
NOTE: The complaint contemplated under Sec. 3 is

different from the complaint filed with the
Prosecutors office. It refers to the one filed in court
for the commencement of the criminal prosecution i.e.
private crimes.
Matters within the control of the Court after the

case is filed
1. In writing;
2. In the name of the People of the Philippines;
and
3. Against all persons responsible for the
offense involved (Sec. 2, Rule 110).
1.
2.
3.
4.
5.
Form of a valid complaint or information
Suspension of arraignment;
Reinvestigation;
Prosecution by the fiscal;
Dismissal of the case; and
Downgrading of offense or dropping of
accused even before plea.
Sufficiency of a Complaint or Information

It is sufficient if it states the:
1. Name of the accused;
2. Designation of the offense given by the
statute;
3. Acts or omissions complained of as
constituting the offense;
4. Name of the offended party;
5. Approximate date of the commission of the
offense; and
6. Place where the offense was committed (Sec.
6, Rule 110).
Limitations on the Courts power of control

1. Prosecution is entitled to notice of hearing;
2. Prosecutions stand to maintain prosecution
should be respected by the court
3. The court must make its own independent
assessment of evidence in granting or
dismissing motion to dismiss. Otherwise, the
judgment is void.
4. Court has authority to review the Secretary of
Justices recommendation and reject it if
there is grave abuse of discretion (Villanueva
v. Secretary of Justice, 475 SCRA 511).
NOTE: In case of variance between the complaint filed

by the offended party and the information in crimes
against chastity, the complaint controls.
SUFFICIENCY OF COMPLAINT OR INFORMATION
Name of the accused
Information v. Complaint
The complaint or information must state the

name and surname of the accused or any
appellation or nickname by which he has been or
is known. If the name cannot be ascertained, he
must be described under a fictitious name with a
statement that his true name is unknown (Sec. 7,
Rule 110).
INFORMATION
Information is an
accusation
in
writing charging a
person with an
offense,
subscribed by the
prosecutor and
filed by him with
the court (Sec. 4,
Rule 110).
COMPLAINT
Complaint is a sworn
written statement
charging a person
with an offense,
subscribed by the
offended party, any
peace officer, or
other public officer
charged with the
enforcement of the
law violated (Sec. 3).
NOTE: If the true name of the accused is thereafter

disclosed or appears in some other manner, such true
name shall be inserted in the information or complaint
in record (Ibid.).
When an offense is committed by more than one
person, all of them shall be included in the complaint
or information (Sec. 6, Rule 110).

CRIMINAL PROCEDURE
sufficient definiteness is a motion for bill of particulars

under Sec. 10, Rule 116; the failure to move for
specification or quashal of the information on any of
the grounds provided by 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.
Elpedes, G.R. Nos. 137106-07, January 31, 2001).
Mistake in the name of the accused

A mistake in the name of the accused is not
equivalent and does not necessarily amount to a
mistake in the identity of the accused especially
when sufficient evidence is adduced to show that
the accused is pointed to as one of the
perpetrators of the crime (People v. Amodia, GR
No. 173791, April 7, 2009).
Name of the offended party
Place of the commission of the crime

The complaint or information must 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.
GR: The complaint or the information is sufficient

if it can be understood from its allegation that the
offense was committed or some its essential
ingredients occurred at some place within the
jurisdiction of the court.
XPN: When the place of commission constitutes
an essential element of the offense charged or is
necessary for its identification (e.g. trespass to
dwelling, destructive arson, robbery in an
inhabited place) (Sec. 10, Rule 110).
1. 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.
2. If the true name of the offended party is
thereafter disclosed or ascertained, the court
must cause such true name to be inserted in
the complaint or information in record.
3. If the offended party is a juridical person, it is
sufficient to state its name, or any name or
designation by which it is known or may be
identified, without need of averring that it is
a juridical person (Sec. 12, Rule 110).
DESIGNATION OF OFFENSE
Designation of the offense
The designation of the offense given by the
statute must be stated in the complaint or
information with the averment of acts or
omissions constituting the offense and specify
the qualifying and aggravating circumstances. If
there is no designation of the offense, reference
shall be made to the section or subsection of the
statute punishing it (Sec. 8, Rule 110).
Particularity of the date of the commission of

the offense in the complaint or information
GR: It is not required. It suffices that the
allegation approximates or be as near the actual
date when the offense was committed (Sec. 11,
Rule 110).
Q: Accused was charged with the offense of

Estafa through Falsification of Public Documents
under Art. 315 in relation to Art. 171 of the RPC
in an Information filed by the prosecutor before
the RTC of Quezon City. Accused assailed the
Information claiming that the Information is
invalid because the word "fraud" or "deceit"
was not alleged in the Information. Decide the
case.
XPN: If the date of the commission of the offense

constitutes an essential element of the offense
(e.g. infanticide, abortion, bigamy) (Sec. 11, Rule
110).
NOTE: The remedy against an indictment that fails to
allege the time of commission of the offense with
A: Any error in the Information, with regard to the

CRIMINAL PROCEDURE
specification of the particular mode of estafa,

allegedly committed by petitioners will not result
in its invalidation because the allegations therein
sufficiently informed petitioners that they are
being charged with estafa through falsification of
public document.
3. Surprises the accused in any way (U.S. v.

Panlilio, G.R. No. L-9876, December 8, 1914).
The Revised Rules of Criminal Procedure provides

that an information shall be deemed sufficient if
it states, among others, the designation of the
offense given by the statute and the acts of
omissions complained of as constituting the
offense. However, the Court has clarified in
several cases that the designation of the offense,
by making reference to the section or subsection
of the statute punishing, it is not controlling; what
actually determines the nature and character of
the crime charged are the facts alleged in the
information (Batulanon v. People, G.R. No.
139857, September 15, 2006).
The acts or omissions complained of as

constituting the offense and the qualifying and
aggravating circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the statute but
in terms sufficient to enable a person of common
understanding to know what the offense is being
charged as well as the qualifying and aggravating
circumstances (Sec. 9, Rule 110).
CAUSE OF ACCUSATION
Cause of accusation
Purposes of requiring that every element must

be alleged
1. To enable the court to pronounce the proper
judgment;
2. To furnish the accused with such a
description of the charge as to enable him to
make a defense; and
3. As a protection against further prosecution
for the same cause (Herrera, 2007)
Conflict between the designation of the crime

and the recital of the facts constituting the
offense
The title of the information or designation of the
offense is not controlling. It is the actual facts
recited in the information that determines the
nature of the crime (Santos v. People, G.R. No.
77429, January 29, 1990).
Effect when one or more elements of the offense

have NOT been alleged in the Information
Q: May the accused be convicted of a crime

more serious than that named 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 accuseds plea of
guilty to such defective information will not cure
the defect, nor justify his conviction of the
offense charged.
GR: Yes. 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 information and its
commission is established by evidence (Buhat v.
CA, G.R. No. 120365, December 17, 1996).
Statement of the qualifying and aggravating

circumstances in the Information
The qualifying and aggravating circumstances
must be specified in the information. They must
not only be proven but they must also be alleged,
otherwise, they should not be considered (Catiis
v. CA, G.R. 153979, February 9, 2006).
XPN: An accused could not be convicted under

one act when he is charged with a violation of
another if the change from the statute to the
other:
1. Involves change in the theory of the trial;
2. Requires of the defendant a different
defense; or
Negative Averments
10

CRIMINAL PROCEDURE
GR: Where the statute alleged to have been

violated prohibits generally acts therein defined
and is intended to apply to all persons
indiscriminately, but prescribes certain limitation
or exceptions from its violation, the complaint or
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 right which the accused
has to prove.
XPN: When the law prescribes a single

punishment for various offenses (Sec. 13, Rule
110), e.g.:
1. Complex crimes;
2. Special complex crimes;
3. Continuous crimes or delicto continuado;
4. Crimes susceptible of being committed in
various modes; and
5. Crimes of which another offense is an
ingredient.
XPN: Where the statute alleged to have been

violated applies only to specific classes of persons
and special conditions and the exemptions from
its violations are 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, then the indictment
must show that the accused does not fall within
the exemptions (Herrera, 2007)
NOTE: Should there be duplicity of offense in the

information unless a single punishment for various
offenses is prescribed, the accused must move for the
quashal of the same before arraignment (Sec. 3, Rule
117). Otherwise, he is deemed to have waived the
objection and may be found guilty of as many offenses
as those charged and proved during the trial (Sec. 3,
Rule 120).
AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION
Matter/s to be alleged if the crime is committed

in relation to his office
Amendment v. Substitution
Mere allegation in the information that the

offense was committed by the accused public
officer in relation to his office is not sufficient. The
phrase is merely a conclusion of law, not a
factual averment that would show close intimacy
between the offense charged and the discharge
of the accuseds official duties. What is
controlling is the specific actual allegations in the
information (Lacson v. Executive Secretary, G.R.
No. 128006, January 20, 1999).
Amendment
May involve either
formal
or
substantial changes
Amendment before
the plea is entered
can be effected
without leave of
court.
An amendment as
to form will not
require
another
preliminary
investigation and
retaking of plea of
the accused.
An
amended
information refers
to the same offense
charged in the
original information
or to an offense
which necessarily
includes
or
is
necessarily included
NOTE: An offense is deemed committed in relation to

public office when the office is a constituent
element of the offense. The test is whether the offense
cannot exist without the office (Crisostomo v.
Sandiganbayan, G.R. No. 152398, April 14, 2005). The
offense need not be connected with official duties. It
is enough that it is in relation to office (Lecaroz v.
Sandiganbayan, 128 SCRA 324).
DUPLICITY OF OFFENSES; EXCEPTION

GR: A complaint or information must charge only
one offense.
11
Substitution
Involves substantial
change from the
original charge
It must be with
leave of court as the
original information
has to be dismissed.
Substitution of the
information entails
another preliminary
investigation and
plea to the new
information.
Requires
or
presupposes that
the
new
information
involves a different
offense which does
not include or is not
necessarily
included in the

CRIMINAL PROCEDURE
in the original
charge,
hence
substantial
amendments to the
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.
2. The charge does not deprive the accused of a

fair opportunity to present his defense; or
3. It does not involve a change in the basic
theory of the prosecution.
original
charge;
hence the accused
cannot
claim
double jeopardy.
NOTE: The following have been held to be mere formal

amendments:
1. New allegations which relate only to the range of
the penalty that the court might impose in the
event of conviction;
2. An amendment which does not charge another
offense different or distinct from that charged in
the original one;
3. Additional allegations which do not alter the
prosecutions theory of the case so as to cause
surprise to the accused and affect the form of
defense he has or will assume;
4. An amendment which does not adversely affect
any substantial right of the accused; and
5. An amendment that merely adds specifications to
eliminate vagueness in the information and not to
introduce new and material facts, and merely
states with additional precision something which
is already contained in the original information
and which adds nothing essential for conviction
for the crime charged (Ricarze v. CA, G.R. No.
160451, February 9, 2007).
Matters subject to amendment

Only valid information may be amended. An
information filed before the effectivity of the law
punishing the offense may not be amended after
the law had come into effect (Herrera, 2007)
Tests to determine the propriety of amendment
after plea
1. Whether a defense under the information as
it originally stood would be available after the
amendment is made; and
2. Whether any evidence defendant might have
would be equally applicable to the
information in the one form as in the other.
An amendment to an information which does
not change the nature of the crime alleged
therein does not affect the essence of the
offense or cause surprise or deprive the
accused of an opportunity to meet the new
averment had each been held to be one of
form and not of substance (Ricarze v. CA, G.R.
No. 160451, Febraury 9, 2007).
Effect of a formal amendment

There is no need for another preliminary
amendment and retaking of the plea of the
accused if such were already conducted.
Substantial amendment
There is an amendment in substance where it
covers matters involving the recital of facts
constituting the offense charged and
determinative of the jurisdiction of the court.
NOTE: After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the
accused (Ricarze v. CA, G.R. No. 160451, February 9,
2007).Substantial amendment 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 (Pacoy v.
Cajical, G.R. No. 1574772, September 28, 2007).
NOTE: After plea, by leave and at the discretion of the

court, amendments in form, but not substance may be
allowed as long as it will not prejudice the accused.
Formal Amendment
Q: An Information for Homicide was filed in the

RTC against petitioner. Upon arraignment,
petitioner, duly assisted by counsel de parte,
pleaded not guilty to the charge of
A formal amendment is made when:

1. It neither affects nor alters the nature of the
offense charged; or
12

CRIMINAL PROCEDURE
Homicide. However, on the same day and after

the arraignment, the respondent judge issued
another Order directing the trial prosecutor to
correct and amend the Information to Murder in
view of the aggravating circumstance of
disregard of rank alleged in the Information
which public respondent registered as having
qualified the crime to Murder. Acting upon such
Order, the prosecutor entered his amendment
by crossing out the word Homicide and
instead wrote the word Murder in the caption
and in the opening paragraph of the
Information. The accusatory portion remained
exactly the same as that of the original
Information for Homicide. Petitioner argued
that the amendment and/or correction ordered
by the respondent judge was substantial; and
under Sec. 14, Rule 110 of the Revised Rules of
Criminal Procedure, this cannot be done, since
petitioner had already been arraigned and he
would be placed in double jeopardy. Decide the
case.
petitioner (Pacoy v. Cajigal, G.R. No. 157472,

September 28, 2007).
Procedure of amendment
When
Made
Before
plea
A: In the present case, the change of the offense

charged from Homicide to Murder is merely a
formal amendment and not a substantial
amendment or a substitution. There was no
change in the recital of facts constituting the
offense charged or in the determination of the
jurisdiction of the court.
After
plea
and
during
the
trial
Sec. 14, Rule 110 also provides that in allowing

formal amendments in cases in which the
accused has already pleaded, it is necessary that
the amendments do not prejudice the rights of
the accused. The test of whether the rights of an
accused are prejudiced by the amendment of a
complaint or information is whether a defense
under the complaint or information, as it
originally stood, would no longer be available
after the amendment is made; and when any
evidence the accused might have would be
inapplicable to the complaint or information.
Since the facts alleged in the accusatory portion
of the amended Information are identical with
those of the original Information for Homicide,
there could not be any effect on the prosecution's
theory of the case; neither would there be any
possible prejudice to the rights or defense of
Kind of
amendment to
be made
1. Formal
amendment
2. Substantial
amendment
3. Substantial
amendment
which:
a. Downgrade
s
the
nature of
the offense
charged; or
b. Excludes
any
accused
from the
complaint
or
informatio
n
Formal
amendment
How
amendment
is made
Without
leave
of
court
1. Upon a
motion by
the
prosecuto
r;
2. With
notice to
the
accused;
and
3. With
leave of
court
With leave of
court; and
without
causing
prejudice to
the rights of
the accused
(Sec. 14, Rule
110).
Amended in the Information which downgrades

the nature of the offense
The prosecution should file a motion for leave of
court with notice to the offended party. This is for
the protection of the interest of the offended
party and to prevent possible abuse by the
prosecution.
Amendment in the Information which changes
the nature of the crime after arraignment
13

CRIMINAL PROCEDURE
GR: No. The prosecutor can no longer amend the

information after arraignment as it would
prejudice the substantial rights of the accused.
offense, the court shall dismiss the original

complaint or information upon the filing of a new
one charging the proper offense, provided the
accused shall not be placed in double jeopardy
(Sec. 14, Rule 110).
XPN: 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.
Limitations on Substitution
1. No judgment has yet been rendered;
2. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein; and
3. The accused would not be placed in double
jeopardy (Herrera, 2007)
Q: Arthur was accused of homicide for the killing

of Bebang. During the trial, the public prosecutor
received a copy of the marriage certificate of
Arthur and Bebang. Can the public prosecutor
move for the amendment of the information to
charge Arthur with the crime of parricide?
VENUE OF CRIMINAL ACTIONS

Venue for the Institution of Criminal Actions
Suppose instead of moving for the amendment

of the information, the public prosecutor
presented in evidence the marriage certificate
without objection on the part of the defense,
could Arthur be convicted of parricide?(1997 Bar
Question)
GR: Subject to existing laws, criminal action shall

be instituted and tried in the court of the
municipality or territory where the offense was
committed or any of its essential ingredients
occurred (Sec. 15, Rule 110).
XPNs:
1. An offense was committed on a railroad train,
in an aircraft, or in any other public or private
vehicle in the course of trip The criminal
action may be instituted and tried in the court
of any municipality or territory where such
train, aircraft or other vehicle passed during
such trip, including the place of departure
and arrival [Sec. 15 (b), Rule 110];
2. Where the offense is committed on board a
vessel on its voyage The criminal action may
be instituted and tried in the proper court of
the first port of entry or of any municipality
or territory through which the vessel passed
during such voyage subject to the generally
accepted principles of international law[Sec.
15(c), Rule 110];
3. Felonies under Art. 2 of the RPC Shall be
cognizable by the proper court where the
criminal action was first filed [Sec. 15(d), Rule
110];
4. Continuous or transitory crimes Such
offenses may be tried by the court of any
jurisdiction wherever the offender may be
A:
1. No. The information cannot be amended to
change the offense charged from homicide to
parricide. Firstly, the marriage is not a
supervening fact arising from the act
constituting the charge of homicide.
Secondly, after plea, amendments may be
done only as to matters of form. The
amendment is substantial because it will
change the nature of the offense (Dionaldo v.
Dacuycuy, G.R. No. L-55357, October 30,
1981).
2. No. Arthur can be convicted only of homicide
not of parricide which is a graver offense. The
accused has the constitutional rights of due
process and to be informed of the nature and
the cause of the accusation against him.
Period when substitution is proper
If it appears any time before judgment that a
mistake has been made in charging the proper
14

CRIMINAL PROCEDURE
found, but the complainant should allege that

the offense was committed within the
jurisdiction of the court (Herrera, 2007);
5. Piracy The venue of piracy, unlike all other
crimes, has no territorial limits. It is triable
anywhere;
6. Libel The action may be instituted at the
election of the offended or suing party in the
municipality or city where:
a. The libelous article is printed and 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;
7. BP 22 cases The criminal action shall be filed
at the place where the check was dishonored
or issued. In case of crossed check, the place
of the depositary or the collecting bank.
essential ingredients of the offense took

place in Tagaytay City where he received his
collections, in Calamba where he should have
turned in his collections, and in Makati City
where the ABC Company was based. The
information may therefore be filed in
Tagaytay City or Calamba or Makati which
have concurrent territorial jurisdiction
(Catingub v. CA, G.R. No. L-29365, March 25,
1983).
Alternative Answer:
The information may be filed either in
Calamba or in Makati City, not in Tagaytay
City where no offense had as yet been
committed.
3. The proper court is the Sandiganbayan which
has jurisdiction over crimes committed by a
consul or higher official in the diplomatic
service [Sec. 4(c), PD 1606, as amended by RA
7975]. The Sandiganbayan is a national court
(Nunez v. Sandiganbayan, G.R. Nos. L-50581 50617, January 30 1982). It has only one
venue at present, which is in Metro Manila,
until RA 7975, providing for two other
branches in Cebu and in Cagayan de Oro, is
implemented.
Q: Where is the proper venue for the filing of

information in the following cases?
1. The theft of a car in Pasig City which was
brought to Obando, Bulacan, where it was
cannibalized.
2. The theft by Carl, a bill collector of ABC
Company, with main offices in Makati City,
of his collections from customers in
Tagaytay City. In the contract of
employment, Carl was detailed to the
Calamba branch office, Laguna, where he
was to turn in his collections.
3. The malversation of public funds by a
Philippine consul detailed in the Philippine
Embassy in London (1997 Bar Question)
Alternative Answer:
Assuming that the Sandiganbayan has no
jurisdiction, the proper venue is the first RTC
in which the charge is filed [Sec. 15 (d), Rule
110].
Q: May conviction be had even if it appears that
the crime was committed not in the place
alleged in the Information?
A:
1. The proper venue is in Pasig City where the
theft of the car was committed, not in
Obando where it was cannibalized. Theft is
not a continuing offense (People v Mercado,
G.R. No. L-2760, February 11, 1950).
GR: Yes. Provided that the place of actual

commission was within the jurisdiction of the
court.
2. If the crime charged is theft, the venue is in

Calamba where he did not turn in his
collections. If the crime of Carl is estafa, the
Q: Mike was charged with libel. The information

however failed to allege that complainant Roy
was a resident of the place over which the court
XPN: The particular place of commission is an

essential element of the offense charged.
15

CRIMINAL PROCEDURE
has jurisdiction. May Mike file a motion to quash

based on such defect in the Information?
several other accused. Ramiscal filed an Urgent

Manifestation and Motion to Suspend
Proceedings, because of the pendency of his
motion for reinvestigation with the Office of the
Ombudsman. Pending resolution of the
aforementioned motions, the law firm of Albano
& Associates filed a Notice of Appearance as
private prosecutors. The notice of appearance
was apparently made conformably to the letterrequest of Retired Commodore Ismael Aparri
and Retired Brig. Gen. Pedro Navarro, who are
members Association of Generals and Flag
Officers, Inc. (AGFOI). Petitioner opposed the
appearance of the law firm of Albano &
Associates as private prosecutors, contending
that the charges brought against him were
purely public crimes which did not involve
damage or injury to any private party; thus, no
civil liability had arisen.Is the contention of
petitioner tenable?
A: Yes. In libel cases, failure to allege in the

information that the offended party is a resident
of the place over which the court where the
information was filed has jurisdiction and the fact
that the articles were first published and printed
in said place is a substantial defect that can be a
proper ground for a motion to quash on the
ground of lack of jurisdiction. Such defect is not
merely as to form which can be properly
amended (Agustin v. De Leon, G.R. No.164938,
August 22, 2005).
INTERVENTION OF OFFENDED PARTY
Intervention of the offended party in criminal
action
GR: The offended party has the right to intervene
by counsel in the prosecution of the criminal
action where the civil action for the recovery of
civil liability is instituted in the criminal action
pursuant to Rule 111 (Sec. 16, Rule 110).
A: Yes. The court agreed with the contention of

the petitioner that the AGFOI, and even
Commodore Aparri and Brig. Gen. Navarro, are
not the offended parties envisaged in Sec. 16,
Rule 110, in relation to Sec. 1, Rule 111 of the
Revised Rules of Criminal Procedure. Under Sec.
5, Rule 110 of the Rules, all criminal actions
covered by a complaint or information shall be
prosecuted under the direct supervision and
control of the public prosecutor. The prosecution
of offenses is a public function.
XPNs:
1. From the nature of the crime and the law
defining or punishing it, no civil liability arises
in favor of the offended party, e.g. sedition,
rebellion, treason (crimes against national
security);
2. The offended party waived the right to civil
indemnity; or
3. The offended party had already instituted
separate action.
Under Sec. 16, Rule 110 of the Rules of Criminal

Procedure, the offended party may intervene in
the criminal action personally or by counsel, who
will act as private prosecutor for the protection of
his interests and in the interest of the speedy and
inexpensive administration of justice. However,
the offended party is the government, which was
allegedly deprived by the petitioner and the other
accused of the capital gains and documentary
stamp taxes, based on the actual and correct
purchase price of the property stated therein in
favor of the AFP-RSBS. The AGFOI was not
involved whatsoever in the sales subject of the
crimes charged; neither was it prejudiced by the
said transactions, nor is it entitled to the civil
liability of the petitioner for said cases. Thus, it is
not the offended party in the said cases (Ramiscal
Q: Gary requested the Ombudsman to

investigate the petitioner, Retired Brig. Gen.
Jose S. Ramiscal, Jr., then President of the Armed
Forces of the Philippines Retirement and
Separation Benefits System, (AFP-RSBS)
together with 27 other persons for allegedly
conspiring in misappropriating AFP-RSBS funds
and in defrauding the government millions of
pesos in capital gains and documentary stamp
taxes. Special Prosecutor Joy C. Rubillar-Arao
filed 24 separate Informations with the
Sandiganbayan against the petitioner and
16

CRIMINAL PROCEDURE
Jr., v. Sandiganbayan, G.R. No. 140576-99,

December 13, 2004).
The prescriptive period of the civil action that was

reserved shall be tolled (Sec. 2, Rule 111).
PROSECUTION OF CIVIL ACTIONS

RULE 111
Instances when the reservation to file a separate

civil action is NOT allowed
RULE ON IMPLIED INSTITUTION OF CIVIL

ACTION WITH CRIMINAL ACTION
1. Criminal action for violation of BP 22 [Sec.

1(b), Rule 111];
2. A claim arising from an offense which is
cognizable by the Sandiganbayan (Herrera,
2007); and
3. Tax cases.
Implied institution of civil action with criminal

action
GR: 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.
NOTE: Only the civil liability arising from the crime

charged (cause of action arising from delict) as a felony
is now deemed instituted (Sarmiento, Jr. vs. Court of
Appeals, G. R. No. 122502, December 27, 2002).
XPNs: When the offended party:

1. Waives the civil action;
2. Reserves his right to file a separate civil
action; or
3. Institutes a civil action prior to the criminal
action (Sec. 1, Rule 111).
Q: In an action for violation of BP 22, the court

granted the accused's demurrer to evidence
filed without leave of court. However, the
accused was required to pay private
complainant the face value of the check. The
accused filed a motion for reconsideration
regarding the order to pay the face value of the
check on the ground that the demurrer to
evidence applied only to the criminal aspect of
the
case.
Resolve
the
motion
for
reconsideration. (2003, 2001 Bar Question)
Reservation to file a separate action

Jurisprudence instructs that the reservation may
not be necessarily expressed but may be implied,
which may be inferred not only from the acts of
the offended party but also from acts other than
those of the latter (Herrera, 2007).
A: The motion for reconsideration should be

denied. The ground that the demurrer to
evidence applied only to the criminal aspect of
the case was not correct. Under Rule 111, the
criminal action for violation of BP 22 shall be
deemed to include the corresponding civil action.
No reservation to file such civil action separately
shall be allowed.
NOTE: Failure of the court to pronounce judgment as

to the civil liability amounts to the reservation of the
right to a separate civil action (Herrera, 2007).
Period when reservation of the right to file civil

action be made
The reservation of the right to institute separately
the civil action shall be made before the
prosecution starts presenting the evidence, and
under circumstances affording the offended
party a reasonable opportunity to make the
reservation [Sec.1 (2), Rule 111].
Q: Al was charged before the City Court of Cebu

with the offense of Serious Physical Injuries Thru
Reckless Imprudence, for having allegedly
sideswiped Andrew along M. C. Briones St., Cebu
City while Al was driving a jeepney owned and
registered in the name of Carl who is Als
employer. While the criminal case was pending,
Andrew filed a separate civil action for damages
based on culpa aquiliana against Al and the
latter's employer, Carl. Al and Carl filed a motion
to dismiss the civil case on the ground that the
Effect of reserving the right to file a separate civil

action
17

CRIMINAL PROCEDURE
complaint for damages was filed without the

proper reservation in the criminal action to
institute a separate and independent civil
action. Rule on the motion.
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 (Sec.
2, Rule 111).
A: There is no need to make a reservation of

Andrews right to file a separate civil action
inasmuch as the civil action contemplated is not
derived from the criminal liability of the accused
but one based on culpa aquiliana. The confusion
lies in the failure to distinguish between the civil
liability arising out of criminal negligence
governed by the Penal Code on one hand, and the
responsibility for culpa aquiliana or quasi-delict
on the other, the latter being separate and
distinct from the civil liability arising from crime.
It is thus clear that the plaintiff-appellant's action,
being one for culpa aquiliana (Art. 2176) may not
be classified as a civil action arising from the
criminal offense to be suspended "until judgment
in the criminal case has been rendered (Bordas v.
Canadalla, G.R. No. L-30036, April 15, 1988).
NOTE: In cases where the consolidation is given due

course, the evidence presented and admitted in the
civil case shall be deemed automatically reproduced in
the criminal action without prejudice to admission of
additional evidence and right to cross examination
(Sec. 2, Rule 111).
Q: May the offended party compromise the civil

aspect of a crime?
A: Yes. Provided it must be entered before or
during the litigation and not after final judgment.
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
Suspension of civil action
GR: If the civil action is instituted before the
criminal action and the criminal action is
subsequently commenced, the pending civil
action, in whatever stage it may be found, shall
be suspended until final judgment of the criminal
action has been rendered (Sec. 2, Rule 111).
WHEN CIVIL ACTION MAY PROCEED

INDEPENDENTLY
Instances when civil actions may proceed
independently
1. Arising from breach of contract; and
2. Independent civil actions or those based on
Arts. 32, 33, 34 and Art. 2176 of the NCC or
quasi-delict (Herrera, 2007).
XPNs:
1. In cases of independent civil actions based on
Arts. 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.
NOTE: The failure to reserve the right to file the

enumerated actions does not amount to a waiver to
institute a separate civil action (Herrera, 2007).
Recovery of civil liability under Arts. 32, 33, 34 and
2176 of the Civil Code may be prosecuted separately
even without reservation (DMPI Employees Credit
Cooperative v. Velez, G.R. No. 129282, November 29,
2001).In no case, however, may the offended party
recover damages twice for the same act or omission
charged in the criminal action.
Extinction of the civil action when the penal

action is extinguished
GR: The extinction of the penal action does not
extinguish the civil action.
XPN: When there is a finding in a final judgment
in the criminal action that the act or omission
from which the civil liability might arise did not
exist (Sec. 2, Rule 111).
Consolidation of civil action and criminal action

arising from the same offense
18

CRIMINAL PROCEDURE
NOTE: The civil action that is extinguished refers

exclusively to civil liability arising from the crime and
does not include civil actions:
1. Based on quasi-delict
2. Based on Arts. 32, 33 and 34 of the NCC
(independent civil actions)
3. Civil obligation not based on the criminal offense
(Herrera, 2007).
only civil liability of the employer would be his

subsidiary liability under the RPC. Noteworthy is
the fact that the subsidiary liability established in
Arts. 102 and 103 of the RPC may be enforced in
the same criminal case by filing in said criminal
action a motion for execution against the person
subsidiarily liable (Maniago v. CA, G.R. No.
101809, February 20, 1996).
Effect of the Acquittal of the Accused on his Civil

Liability
EFFECT OF DEATH OF THE ACCUSED OR

CONVICT ON CIVIL ACTION
1. If the acquittal is based on the ground that he

was not the author of the crime, it will
extinguish his civil liability which may arise
from the offense; or
2. If the acquittal is based on reasonable doubt
on the guilt of the accused, the civil liability of
the accused arising from the crime may be
proved by preponderance of evidence
(Herrera, 2007).
Effect of the death of the accused or convict on

the civil action
If the accused died:
1. After arraignment and during the pendency
of the criminal action
GR: The civil liability of the accused based on
the crime is extinguished.
NOTE: When the trial court acquits the accused based

on reasonable doubt, it could make a pronouncement
on the civil liability of the accused (Lontoc v. Jarantilla,
G.R. No. 80194, March 21, 1989).The court may be
compelled to include in the judgment of acquittal the
civil liability through a petition for mandamus
(Maximo v. Gerochi, G.R. Nos. L-47994-97, September
24, 1986).
XPN: Independent civil action based on Arts.

32 33, 34 and 2176 of the Civil Code; and
Civil liability predicated on other sources of
obligations, i.e. law, contract, and quasicontract, which is subsequently instituted;
2. Before arraignment the offended party may
file the civil action against the estate of the
deceased (Sec. 4, Rule 111).
3. Pending appeal
a. Civil liability arising from the crime is
extinguished
b. Civil liability predicated from another
source survives i.e. civil liability arising
from law, contracts, quasi-contract and
quasi-delict.
Instances where the acquittal of the accused

does NOT bar the continuation of the civil case
1. Acquittal based on reasonable doubt;
2. The decision contains a declaration that the
liability of the accused is not criminal but only
civil in nature; and
3. The civil liability is not derived from or based
on the criminal act of which the accused is
acquitted (Sanchez v. Far East Bank and Trust
Company, G.R. No. 155309, November 15,
2005).
NOTE: In nos. 1 and 3(b), the civil action may be

continued against the estate or legal representative of
the accused after proper substitution, as the case may
be (Sec. 4, Rule 111).Where the civil liability survives,
it may be pursued by the filing of a separate civil action
unless otherwise waived, reserved or instituted prior
to the institution of the criminal action (Herrera,
Remedial Law, Vol. IV, p. 257, 2007 ed.).
Q: Can an employer be held civilly liable for

quasi-delict in a criminal action filed against his
employee?
A: The employer cannot be held civilly liable for
quasi-delict since quasi-delict is not deemed
instituted with the criminal action. If at all the
Q: Allan and Boyet were charged with murder

committed in conspiracy. After trial, Allan and
19

CRIMINAL PROCEDURE
Boyet were convicted as charged. While the case

was pending in the CA, Allan died. Should the
appeal still continue despite the death of Allan?
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; and
3. The resolution of such issue determines
whether or not the criminal action may
proceed (Sec. 7, Rule 111).
A: Yes. Notwithstanding the death during the

pendency of the criminal action of one of two
accused charged with and convicted for murder
committed in conspiracy, the appeal should
continue to determine criminal and civil liability.
Here, the death of Allan extinguished his criminal
and civil liability arising from the offense, but
Boyet may still be found criminally and civilly
liable (People v. Tumayao, G.R. No. L-35442,
March 4, 1932).
NOTE: For the principle of prejudicial question to

apply, it is essential that there be two cases involved,
invariably a civil case and a criminal case. If the two
cases are both civil or if they are both criminal, the
principle does not apply. The law limits a prejudicial
question to a previously instituted civil action not to a
subsequent one.
Q: Does a judgment in favor of the defendant in

a civil action bar a criminal action for the same
act?
Q: Ana, for failure to remit to Bong the money

collected and instead deposited the same to the
latters personal account, was charged with
estafa. Ana filed a motion to suspend the
proceedings pending resolution of a civil case
earlier filed for accounting and damages
regarding the same subject matter. How should
the prosecutor oppose the motion? (2000 Bar
Question)
A: No. Final judgment rendered in a civil action

absolving the defendant from civil liability is not a
bar to criminal action against the defendant for
the same act or omission subject of the civil
action (Sec. 5, Rule 111) unless the civil action is a
prejudicial question which involves an issue
similar or intimately related to the issue raised in
the criminal, the resolution of which determines
whether or not the criminal action may proceed.
A: The civil case filed by Bong against Ana for

accounting and damages does not involve an
issue similar to or intimately related to the issue
of estafa raised in the criminal action. The
resolution of the issue in the civil case for
accounting will not determine whether the
criminal action for estafa may proceed.
PREJUDICIAL QUESTION
Prejudicial question
It is an issue involved in a civil action which is
similar or intimately related to the issue raised in
a criminal action, the resolution of which
determines whether or not the criminal action
may proceed.
Q: Is the resolution of the action for annulment

of marriage a prejudicial question that warrants
the suspension of the criminal case for
frustrated parricide?
NOTE: The prejudicial question may be raised during

the preliminary investigation of the offense or in court
before the prosecution rests its case.
A: No. There is a prejudicial question when a civil

action and a criminal action are both pending,
and there exists in the civil action an issue which
must be preemptively resolved before the
criminal action may proceed because the issue
raised in the civil action is resolved would be
determinative of the guilt or innocence of the
accused in the criminal case.
The petition for suspension by reason of prejudicial

question is filed with the Office of the Prosecutor or
court where the criminal action has been filed for trial
at any time before the prosecution rests (Sec. 6, Rule
111).
Elements of a prejudicial question
20

CRIMINAL PROCEDURE
The issue in the annulment of marriage is not

similar or intimately related to the issue in the
criminal case for parricide.
Further, the
relationship between the offender and the victim
is not determinative of the guilt or innocence of
the accused. Even if the marriage between
petitioner and respondent is annulled, petitioner
could still be held criminally liable since at the
time of the commission of the alleged crime, he
was still married to respondent (Pimentel v.
Pimentel, G.R. No. 172060, September 13, 2010).
A: No. Administrative cases against lawyers are

sui generis. They are distinct from and may
proceed independently of criminal cases. The
burden of proof in a criminal case is guilt beyond
reasonable doubt while in an administrative case
only substantial evidence is required. Thus, a
criminal prosecution will not constitute a
prejudicial question even if the same facts and
circumstances
are
attendant
in
the
administrative proceedings (Yu v. Palaa, 558
SCRA 21).
Q: Andrew allegedly sold to Brian a parcel of

land which Andrew later also sold to Xavier.
Brian brought a civil action for nullification of
the second sale and asked that the sale made by
Andrew in his favor be declared valid. Andrew
claims that he never sold the property to Brian
and his purported signatures appearing in the
first deed of sale were forgeries. Thereafter, an
information for estafa was filed against Andrew
based on the same double sale that was the
subject of the civil action. Andrew filed a
"motion for suspension of action" in the criminal
case, contending that the resolution of the
issues in the civil case would necessarily be
determinative of his guilt or innocence. Is the
suspension of the criminal action in order?
Explain. (1999 Bar Question)
RULE ON FILING FEES IN CIVIL ACTION DEEMED

INSTITUTED WITH THE CRIMINAL ACTION
1. Actual damages
GR: No filing fee is required.
XPN: B.P. 22 cases, wherein the amount of
the filing fees shall be equivalent to the amount
of the check involved.
2. Liquidated, moral, nominal, temperate or
exemplary damages The filing fee shall be
based on the amount alleged in the
complaint or information [Sec. 1(4), Rule
111].
NOTE: If the amount of the damages claimed is not
specifically alleged in the complaint or information,
but the court subsequently awards such, the filing fees
based on the amount awarded shall constitute a first
lien on the judgment [Sec. 1(3), Rule 111].
A: Yes. The suspension of the criminal action is in

order because the defense of Andrew in the civil
action, that he never sold the property to Brian
and that his purported signatures in the first deed
of sale were forgeries, is a prejudicial question
the resolution of which is determinative of his
guilt or innocence. If the first sale is null and void,
there would be no double sale and Andrew would
be innocent of the offense of estafa.
PRELIMINARY INVESTIGATION
RULE 112
NATURE OF THE RIGHT
Preliminary Investigation
Q: Atty. Alfred obtained a loan from Bing

covered by several postdated checks. The checks
were dishonored by the bank when Bing tried to
encash them. Bing filed a case for violation of BP
22 before the MTC. Bing also filed a disbarment
case. Atty. Alfred argues that the criminal
prosecution constitutes a prejudicial question in
the administrative proceedings for his
disbarment. Is Atty. Alfred correct?
It is an inquiry or proceeding to determine

whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial (Sec. 1, Rule
112). It is merely inquisitorial and a means of
determining the persons who may be reasonably
21

CRIMINAL PROCEDURE
charged with a crime. It is not a trial of the case

on the merits (Herrera, 2007).
yrs., 2 months and 1 day do not require preliminary

investigation.
A preliminary investigation is in effect a realistic

judicial appraisal of the merits of the
case. Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried,
the trial court may not be bound as a matter of
law to order an acquittal (Cojuangco, Jr. vs. PCGG,
et. al, as held in Uy v. Ombudsman, G.R. Nos.
156399-400, June 27, 2008).
Documents accompanying the complaint

1. The affidavits of the complainant;
2. The affidavits of his witnesses; and
3. Other supporting documents that would
establish probable cause [Sec. 3(a) Rule 112].
NOTE: The affidavits of the complainant shall be
subscribed and sworn to before:
1. Any prosecutor;
2. Before any government official authorized to
administer oaths; or
3. In the absence or unavailability of the above
mentioned, the affidavits may be subscribed and
sworn to before a notary public.
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 bar the filing of another
complaint for the same offense, but if re-filed, the
accused is entitled to another preliminary
investigation (US v. Marfori, G.R. No. 10905,
December 9, 1916).
The officer or notary public before whom the affidavits

were subscribed and sworn to must certify that he
personally examined the affiants and that he is
satisfied that they voluntarily executed and
understood their affidavits [Sec. 3(a), Rule 112].
When required
Preliminary Investigation is required to be
conducted before filing of complaint or
information for an offense where the penalty
prescribed by law is at least 4 years, 2 months and
1 day without regard to fine.
Period when preliminary
required to be conducted
investigation
Duty of the Investigating Officer

From the filing of the complaint, the investigating
officer has 10 days within which to decide on
which of the following options to take:
1. To dismiss the complaint if he finds no ground
to conduct the investigation; or
2. To issue a subpoena in case he finds the need
to continue with the investigation, in which
case the subpoena shall be accompanied with
the complaint and its supporting affidavits
and documents [Sec. 3(b), Rule 112].
is
GR: Before the filing of a complaint or

information for an offense where the penalty
prescribed by law is imprisonment of at least 4
years, 2 months and 1 day without regard to the
imposable fine (Sec.1, Rule 112).
NOTE: Within 10 days from receipt of subpoena, the

respondent is required to submit his counter-affidavit,
the affidavits of his witnesses and the supporting
documents relied upon for his defense [Sec. 3(c) Rule
112].
XPNs:
1. Where an information or complaint is filed
pursuant to Sec. 7, Rule 112, i.e. the
complaint or information is filed directly in
court (Sec. 1, Rule 112); or
2. For cases requiring preliminary investigation,
when a person is lawfully arrested without a
warrant provided that inquest was made in
accordance with Rule 112 (Sec. 6, Rule 112).
Despite the subpoena, if the respondent does not

submit his counter-affidavit within the ten-day period
granted him, the investigating officer shall resolve the
complaint based on the evidence presented by the
complainant. The same rule shall apply in case the
respondent cannot be subpoenaed [Sec. 3(d) Rule
112].
NOTE: Cases falling under summary procedure or

punishable with a penalty of imprisonment less than 4
22

CRIMINAL PROCEDURE
Filing of motion to dismiss during preliminary

investigation
Purposes of
investigation
GR: In preliminary investigation, a motion to

dismiss is not an accepted pleading for it merely
alleges the innocence of the respondent without
rebutting or repudiating the evidence of the
complainant.
1. For the investigating prosecutor to determine

if the crime has been committed;
2. To protect the accused from inconvenience,
expense and burden of defending himself in a
formal trial unless probability of his guilt is
first ascertained by a competent officer;
3. To secure the innocent against hasty,
malicious, and oppressive prosecution and to
protect him from an open and public
accusation of a crime and anxiety of a public
trial;
4. To protect the State from having to conduct
useless and expensive trial; and
5. To determine the amount of bail, if the
offense is bailable (Herrera, 2007)
XPN: When it contains countervailing evidence or

defenses and evidence which rebuts or
repudiates the charges; in which case it will be
treated as a counter-affidavit.
NOTE: If one files a motion to dismiss and he only
asserts that the case should be dismissed, then the
motion to dismiss is a mere scrap of paper. If the
respondent does not later on submit a counteraffidavit, it will constitute a waiver on his part to file a
counter-affidavit.
conducting
preliminary
Waiver of the right to preliminary investigation
Clarificatory Hearing
While the right to preliminary investigation is a

substantive right and not a mere formal or
technical right of the accused, nevertheless, the
right to preliminary investigation is deemed
waived when the accused fails to invoke it before
or at the time of entering a plea at arraignment
(People v. Buluran, G.R. No. 113940, Feb. 15,
2000).
Clarificatory hearing is not mandatory. A hearing

may be set by the investigating officer only when
there are facts and issues to be clarified either
from a party or a witness, which shall be
conducted within ten days from the submission
of the counter-affidavit, other affidavits and
documents filed by the respondent.
It shall be deemed waived by:

1. Express waiver or by silence (Herrera,
Remedial Law, Vol. IV, p. 278, 2007 ed.);
2. Failure to invoke it during arraignment
(People v. De Asis, G.R. No. 105581,
December 7, 1993); and
3. Consenting to be arraigned and entering a
plea of not guilty without invoking the right
to preliminary investigation (People v.
Bulosan, G.R. No. 58404, Apr. 15, 1988).
NOTE: The parties do not have the right to examine or

cross-examine each other or the witnesses. If they
have questions to ask, they shall submit the questions
to the investigating officer who shall ask the questions
[Sec. 3(e), Rule 112].
Duty of the prosecutor after the termination of

investigation
Within 10 days from the termination of the
investigation, the investigating prosecutor shall
determine whether or not there is sufficient
ground to hold the respondent for trial [Sec. 3(f),
Rule 112].Afterwards, if the investigating officer
finds cause to hold the respondent for trial, he
shall prepare the resolution and information.
Otherwise, he shall recommend the dismissal of
the complaint (Sec. 4, Rule 112).
NOTE: The waiver, whether express or implied, must

be in a clear and unequivocal manner (Herrera, 2007).
Effect of absence of a preliminary investigation

Absence of a preliminary investigation does not:
1. Become a ground for a motion to quash the
complaint or information as it does not
impair the validity of the information or
PURPOSES OF PRELIMINARY INVESTIGATION
23

CRIMINAL PROCEDURE
affect the jurisdiction of the trial court (Sec. 3,

Rule 117; People v. Buluran, G.R. No. 113940,
February 15, 2000);
2. Affect the courts jurisdiction but merely the
regularity of the proceedings (People v. De
Asis, G.R. No. 105581, December 7, 1993);
3. Impair the validity of the information or
render it defective; and
4. Justify the release of the respondent or nullify
the warrant of arrest against him (Larranaga
v. CA, G.R. No. 130644, March 13, 1998).
3. Be present during the clarificatory hearing

(Sec. 3, Rule 112).
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE
Probable cause in preliminary investigation
It is the existence of such facts and circumstances
as would excite belief in a reasonable mind,
acting on the facts within the knowledge of the
prosecutor, that the person charged was
prosecuted. A finding of probable cause merely
binds over the suspect to stand trial. It is not a
pronouncement of guilt (Sps. Balangauan v. CA,
G.R. No. 174350, August 13, 2008).
NOTE: If the accused raises the issue of lack of

preliminary investigation before entering a plea, the
court, instead of dismissing the information, should
conduct the preliminary investigation or order the
prosecutor to conduct it (Larranaga v. CA, G.R. No.
130644, March 13, 1998).
Persons authorized to conduct a preliminary

investigation
The right to preliminary investigation cannot be raised

for the first time on appeal (Pilapil v. Sandiganbayan,
G.R. No. 101978, April 7, 1993).
1. Provincial or city prosecutors and their

assistants;
2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law
(e.g. Ombudsman authorized officer
deputized by COMELEC for election offenses).
If lack of preliminary investigation is raised in a

proceeding pending before the Sandiganbayan, the
proceeding will be held in abeyance and case should
be remanded to the Office of the Ombudsman or the
Special Prosecutor to conduct the preliminary
investigation (Ong v. Sandiganbayan, G.R. No. 126858,
NOTE: Their authority to conduct preliminary

investigation shall include all crimes cognizable by the
proper court in their respective territorial jurisdiction
(Sec. 2, Rule 112).
Rights of the respondent in a preliminary

investigation
Court interference in the conduct of preliminary

investigation
1. Submit a counter affidavit;

NOTE: The prosecutor is not mandated to require
the submission of counter-affidavits. Probable
cause may then be determined on the basis alone
of the affidavits and supporting documents of the
complainant, without infringing on the
constitutional rights of the petitioners (Borlongan,
Jr. v. Pena, G.R. No. 143591, November 23, 2007).
GR: The courts cannot interfere in the conduct of

preliminary
investigations,
leaving
the
investigatory officers sufficient discretion to
determine probable cause.
XPN: 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).
2. Examine the evidence submitted by the

complainant at his own expense; and
Extent of authority of the Ombudsman in the

conduct of preliminary investigation
NOTE: Object evidence need not to be furnished

but is available for examination, copying or
photographing at the expense of the requesting
party (Sec. 3, Rule 112).
The Ombudsman has primary authority to

investigate and exclusive authority to file and
24

CRIMINAL PROCEDURE
prosecute Sandiganbayan cases (Ledesma v. CA,

G.R. 161629, July 29, 2005).The Ombudsman is
authorized to take over at any stage, from any
investigatory agency of the government, the
investigation of such cases (Sec. 15, RA 6770).
5. That he was given an opportunity to submit

controverting evidence (Sec. 4, Rule 112).
Within 5 days from the issuance his resolution,
the investigating prosecutor shall forward the
record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy by the Sandiganbayan
in the exercise of its original jurisdiction. They
shall act on the resolution within ten days from
their receipt thereof and shall immediately
inform the parties of such action (Sec. 4, Rule
112).
NOTE: The power to investigate and to prosecute

granted to the Ombudsman is plenary and unqualified.
It pertains to any act or omission of any public officer
or employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does
not make a distinction between cases cognizable by
the Sandiganbayan and those cognizable by the
regular courts (Office of the Ombudsman v. Breva, G.R.
No. 145938, Feb. 10, 2006).
The resolution of the investigating prosecutor is

merely recommendatory. 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 (Sec. 4, Rule 112).
This however does not include administrative cases of

court personnel because the 1987 Constitution vests
in the SC administrative supervision over all courts and
court personnel.
Party to conduct preliminary investigation in

election cases
Different findings between the Investigating

Prosecutor and Superior Prosecutor
The Commission on Elections is vested the power

to conduct preliminary investigations; it may
deputize other prosecuting arms of the
government to conduct preliminary investigation
and prosecute offenses (People v. Basilla, G.R. No.
83938-40, November 6, 1989).
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).
RESOLUTION OF INVESTIGATING PROSECUTOR

Resolution of Investigating Prosecutor
If the investigating prosecutor finds cause to hold
the defendant for trial, he shall prepare the
resolution and information (Sec. 4, Rule 112).
Q: Regional Director August of the DPWH was

charged with violation of Sec. 3(e) of RA 3019 in
the Office of the Ombudsman. An administrative
charge was likewise filed against him in the same
office. The Ombudsman assigned a team
composed of investigators from the Office of the
Special Prosecutor and from the Office of the
Deputy Ombudsman for the Military to conduct
a joint investigation of the criminal case and
administrative cases. The team of investigators
recommended to the Ombudsman that August
be preventively suspended for a period not
exceeding 6 months on its finding that the
evidence of guilt is strong. The Ombudsman
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
25

CRIMINAL PROCEDURE
issued the said order as recommended by the

investigators.
petition for review with the Secretary of Justice

and by furnishing copies thereof to the adverse
party and prosecution office issuing the appealed
resolution. The appeal shall be taken within 15
days from receipt of the resolution or of the
denial
of
the
motion
for
reconsideration/reinvestigation if one has been
filed within 15 days from receipt of the assailed
resolution. Only one motion for reconsideration
shall be allowed. Unless the Secretary directs
otherwise, the appeal shall not stay the filing of
the corresponding information in court on the
basis of the finding of probable cause in the
assailed decision.
August moved to reconsider the order on the

following grounds: (a) the Office of the Special
Prosecutor had exclusive authority to conduct a
preliminary investigation of the criminal case;
(b) the order for his preventive suspension was
premature because he had yet to file his answer
to the administrative complaint. Resolve with
reasons the motion of respondent August. (2005
Bar Question)
A: The motion should be denied for the following
reasons:
1. The Office of the Special Prosecutor does not
have exclusive authority to conduct a
preliminary investigation of the criminal case.
It may participate in the investigation
together with the Deputy Ombudsman for
the Military who can handle cases of civilians;
2. The order of preventive suspension need not
wait for the answer to the administrative
complaint
and the submission of
countervailing evidence (Garcia v. Mojica,
G.R. No. 13903, September 10, 1999);
3. Preventive suspension pursuant to Sec. 24 of
the Ombudsman Act of 1989 shall continue
until termination of the case but shall not
exceed 6 months except in relation to RA
3019 (Anti-Graft and Corrupt Practices) and
PD 807 (statute providing for the organization
of CSC in accordance with the provision of the
Constitution prescribing the powers and
functions and other purposes). As a career
executive officer, his preventive suspension
under the Civil Service Law may only be for a
maximum period of 3 months. The period of
suspension under the Anti-Graft Law shall be
the same pursuant to the equal protection
clause (Garcia v. Mojica, ibid.).
The decision of the prosecutor may be reviewed

by the courts when he acts with grave abuse of
discretion amounting to lack of jurisdiction
(Herrera, 2007).
Q: May a prosecutor be compelled by
mandamus to file a complaint regarding a
complaint filed which he previously dismissed
for lack of merit after preliminary investigation?
(1999 Bar Question)
A: No. This is because the determination of
probable cause is within the discretion of the
prosecutor. The remedy is an appeal to the
Secretary of Justice.
Reversal or modification of the Resolution of the
Provincial or City Prosecutor
The Secretary of Justice may motu proprio
reverse or modify the resolution of provincial or
city prosecutor or chief state prosecutor. The
Secretary of justice may review resolutions of his
subordinates in criminal cases despite the
information being filed in court (Community Rural
Bank of Guimba v. Talavera, A.M. No. RTJ-051909, April 6, 2005). The Secretary of Justice
exercises the power of direct control and
supervision over prosecutors, and may thus
affirm, nullify, reverse or modify their rulings. In
reviewing resolutions of state prosecutors, the
Secretary of Justice is not precluded from
considering errors, although unassigned, for the
REVIEW
Remedy of the aggrieved party from the
resolution of the Investigating Prosecutor as
approved by his superior
An aggrieved party may appeal by filing a verified
26

CRIMINAL PROCEDURE
purpose of determining whether there is

probable cause for filing cases in court.
Q: Does the SC and CA have the power to review

preliminary investigation?
NOTE: 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 (Sec. 4, Rule
112).
A: Yes. The SC and CA 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 prosecutors
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 Courts review
power ensures that, on the one hand, probable
criminals are prosecuted and, on the other hand,
the innocent are spared from baseless
prosecution (Social Security System v. DOJ, G.R.
No. 158131, August 8, 2007).
Remedy of an aggrieved party against a

Resolution of the Secretary of Justice
The resolution of the Secretary of Justice is
appealable administratively before the Office of
the President, and the decision of the latter may
be appealed before the CA pursuant to Rule 43
(De Ocampo v. Secretary of Justice, G.R. No.
147392, January 25, 2006). However, if there is
grave abuse of discretion resulting to lack or
excess of jurisdiction, a petition for certiorari
under Rule 65 may be filed (Ching v. Secretary of
Justice, G.R. No. 164317, February 6, 2006).
NOTE: Even the RTCs can also make its own

determination, upon proper motion, whether
probable cause exists to hold the accused for trial
(Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007).
WHEN WARRANT OF ARREST MAY ISSUE
Remedy of an aggrieved party against the

Resolution of the Ombudsman
Actions by the judge upon the filing of the

Complaint or Information
The resolution of the Ombudsman in

administrative cases may be subject of petition
for review via Rule 43 before the CA (Sec. 7, Rule
III of the Rules of Procedure of the Office of the
Ombudsman) or a special civil action for certiorari
via Rule 65 before the SC in criminal cases
(Mendoza-Arce v. Ombudsman, G.R. No. 149148,
April 5, 2002).
Within 10 days from the filing of the complaint or

Information, the judge shall personally evaluate
the resolution of the prosecutor. In conducting
the evaluation of the resolution, the judge shall
look into supporting evidence (Sec. 5, Rule 112).
Options of the judge upon the filing of an
Information
Effect of the filing of a Petition for Review before

the DOJ if the Information was already filed in
court
1. Dismiss the case if the evidence on record

clearly failed to establish probable cause;
2. If he or she finds probable cause, issue a
warrant of arrest or issue a commitment
order of the accused has already been
arrested pursuant to a warrant of arrest or
lawfully arrested without warrant; and
3. In case of doubt as to the existence of
probable cause, order the prosecutor to
present additional evidence within five days
from notice, the issue to be resolved by the
Should the information be already filed in court

but the accused filed a petition for review of the
findings of the prosecutors with the DOJ, the
court is bound to suspend the arraignment of the
accused for a period not exceeding 60 days (Sec.
11, Rule 116).
27

CRIMINAL PROCEDURE
court within thirty days from the filing of the

information.
There are 2 ways:

1. By filing the complaint directly with the
prosecutor; or
NOTE: It bears stressing that 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 r
ecord clearly fails to establish probable cause (Ong v.
Genio, G.R. No. 182336, December 23, 2009).
NOTE: The prosecutor shall act on the complaint

based on the affidavits and other supporting
documents submitted by the complainant within
10 days from its filing (Sec. 8(a), Rule 112).
Complaint was filed pursuant to a lawful

warrantless arrest
2. By filing the complaint or Information with

the MTC.
The court shall issue a commitment order instead

of a warrant of arrest. In case the judge doubts
the existence of probable cause, the judge may
order the prosecution to submit additional
evidence within 5 days from notice. The issue
must be resolved by the court within 30 days
from the filing of the complaint or Information
(Sec. 5, Rule 122, Rules of Court as amended by
A.M. 05-08-26-SC, August 30, 2005).
Instances when amendment of an Information

does NOT warrant a new preliminary
investigation
1. Amendment to information is not substantial
(Villaflor v. Vivar, G.R. No. 134744, January
16, 2001);
2. The court orders the filing of correct
information involving a cognate offense (Sy
Lim v. CA, G. R. No. L-37494, March 30,1982);
and
3. If the crime originally charged is related to the
amended charge such that an inquiry into
one would elicit substantially the same facts
that an inquiry to another would reveal
(Orquinaza v. People, G.R. No. 165596,
November 15, 2005; Herrera, 2007).
CASES NOT REQUIRING A PRELIMINARY

INVESTIGATION
When preliminary investigation is NOT required
1. When the penalty prescribed by law for the
offense involves an imprisonment of less than
4 yrs., 2 mos., and 1 day;
2. 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 while
robbing 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 (Riano,
2011).
Institution of cases when
investigation is NOT required
Instances when amendment of an information

warrants a new preliminary investigation
1. If the amendment of the information changes
the nature of the crime charged (Luciano v.
Mariano, G.R. No. L-32950, July 30, 1971); or
2. When on its face the information is null and
void for lack of authority to file the same and
cannot be cured or revived by an amendment
(Cruz, Sr. v. Sandiganbayan, G.R. No. 94595,
February 26, 1995).
REMEDIES OF ACCUSED IF THERE WAS NO
PRELIMINARY INVESTIGATION
Period to properly question the lack of
preliminary investigation
preliminary
28

CRIMINAL PROCEDURE
The accused 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.
An application for or admission of the accused to
bail does not bar him from raising such question
(Sec. 26, Rule 114). Failure to invoke the right
before entering a plea will amount to a waiver.
where the person arrested is held. In this case,

the bail application should have been filed with a
Quezon City court which has the authority to
grant the bail and not Marikina court (Ruiz v.
Beldia, Jr., A.M. No. RTJ-02-1731, February 16,
2005).
INQUEST
Remedies available to the accused if there was

no preliminary investigation conducted
pursuant to a lawful warrantless arrest
Inquest
1. 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;
It 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
(Sec. 1, DOJ Circular No. 61).
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 (Art. 125, RPC).
Duties of an inquest officer

The initial duty of the inquest officer is to
determine if the arrest of the detained person
was valid; should the Inquest Officer find that the
arrest was not made in accordance with the
Rules, he shall:
1. Recommend the release of the person
arrested or detained;
2. Note down the disposition on the referral
document;
3. Prepare a brief memorandum indicating the
reasons for the action taken; and
2. The waiver by the person lawfully arrested of

the provisions of Art. 125 of the RPC does not
preclude him from applying for bail;
3. After the filing of the complaint or
Information in court without a preliminary
investigation, the accused may, within 5 days
from the time he learns of its filing, ask for a
preliminary investigation with the same right
to adduce evidence in his evidence as
provided in this Rule (Sec. 6, Rule 112).
Q: The accused was arrested lawfully without a
warrant for carnapping and detained at Camp
Crame in Quezon City. He asked for a preliminary
investigation and signed a waiver of the
provisions of Art. 125 of the RPC. However, the
assisting judge of the RTC in Marikina approved
the bail bond for the accused who was being
held in Quezon City. Was the approval of the bail
bond proper?
A: No. The bail must be applied for and issued by
the court in the province, city, or municipality
29

CRIMINAL PROCEDURE
4. Forward the same, together with the record

of the case, to the City or Provincial
Prosecutor for appropriate action (Sec. 9, DOJ
Circular No. 61).
Commences
by a receipt
by inquest
officer from
the law
enforcer of
complaint/
referral
NOTE: Where the recommendation is approved by the

City or Provincial Prosecutor but the evidence on hand
warrant the conduct of a regular preliminary
investigation, the order of release shall be served on
the officer having custody of said detainee and shall
direct the said officer to serve upon the detainee the
subpoena or notice of preliminary investigation,
together with the copies of the charge sheet or
complaint, affidavit or sworn statements of the
complainant and his witnesses and other supporting
evidence.
Inquest
officer
shall first
determin
e if the
arrest is
valid
If not valid, he shall

proceed with the
inquest but shall
recommend the
release to be
approved by the city or
provincial prosecutor
Person to conduct preliminary investigation

The preliminary investigation may be conducted
by the Inquest Officer himself or by any other
Assistant Prosecutor to whom the case may be
assigned by the City or Provincial Prosecutor,
which investigation shall be terminated within 15
days from its inception (Sec. 10 Part II Manual for
Prosecutors).
When the
recommendation for
release is approved,
but the evidence
warrants the conduct
of a preliminary
investigation, the said
order shall be served
on the officer having
custody of the
detainee and shall
direct the said officer
to serve upon the
detainee the
subpoena or notice of
preliminary
investigation
NOTE: If the Inquest Officer finds that probable cause

exists, he shall forthwith prepare the corresponding
complaint/information with the recommendation that
the same be filed in court (Sec. 13 Part II Manual for
Prosecutors). If the Inquest Officer finds no probable
cause, he shall recommend the release of the arrested
or detained person (Sec. 15 Part II Manual for
Prosecutors).
If the arrest is valid,

detainee shall be asked if
the detainee wants a new
preliminary investigation,
and if he does, he shall
be made to execute a
waiver of the provision of
Art. 125 of RPC
Otherwise, Inquest
proper shall be
conducted
If the inquest officer finds

probable cause, he must
prepare a
complaint/information
with recommendation to
be filed in court,
otherwise recommend
the release of person
(Part II, manual for
Prosecutor).
3. The statement of the complainant and

witnesses; and
4. Other supporting evidence gathered by the
police in the course of the latter's
investigation of the criminal incident
involving the arrested or detained person.
Inquest Proceeding
When the recommendation for release is
approved, but the evidence warrants the conduct
of a preliminary investigation, the said order shall
be served on the officer having custody of the
detainee and shall direct the said officer to serve
upon the detainee the subpoena or notice of
preliminary investigation.
Matters included in a referral document
NOTE: The Inquest Officer shall, as far as practicable,

cause the affidavit of arrest and statements/affidavits
of the complainant and the witnesses to be subscribed
and sworn to before him by the arresting officer and
the affiants (Sec. 3, Part II, Manual for Prosecutors).
1. Affidavit of arrest;
2. Investigation report;
Instances when production of a detained person

before the inquest officer is dispensed with
30

CRIMINAL PROCEDURE
1. If he is confined in a hospital;
2. If he is detained in a place under maximum
security;
3. If production of the detained person will
involve security risks; or
4. If the presence of the detained person is not
feasible by reason of age, health, sex and
other similar factors (Sec.6, Part II, Manual
for Prosecutors).
when another group of prosecutors subjected

Leo to a second inquest proceeding for Rebellion,
they overstepped their authority rendering the
second inquest void (Crispin Beltran v. People and
Secretary Gonzales, G.R. No. 175013, June 1,
2007).
Q: Leo was arrested without a warrant following

the issuance by PGMA of PD 1017. On the eve of
his arrest, Leo was subjected to an inquest at the
Quezon City Hall of Justice for Inciting to
Sedition (Art. 142, RPC) based on a speech he
allegedly gave during a rally. The inquest was
based on a joint affidavit of Leos arresting
officers who claimed to have been present at the
rally. The inquest prosecutor filed the
corresponding Information with the MeTC.
Several days after the first inquest, he was again
subjected to a second inquest but this time for
rebellion allegedly committed based on the
letters of CIDG investigators claiming that Leo
was the leader/ promoter of an alleged plot to
overthrow the Arroyo government. The panel of
prosecutors from the DOJ which conducted the
second inquest subsequently issued a resolution
finding probable cause to indict Leo as leader/
promoter of alleged rebellion. The panel filed an
Information with the RTC of Makati. The court
sustained the finding of probable cause against
Leo. Leo filed a Petition to set aside the orders
finding probable cause and the denial of the MR
to enjoin his prosecution. Was the second
inquest valid?
Arrest
ARREST
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 (Sec. 1, Rule 113).
Persons who are NOT subject to arrest
1. A senator or member of the House of
Representatives shall, in all offenses
punishable by not more than 6 years of
imprisonment, be privileged from arrest
while Congress is in session (Sec. 11, Art. VI,
1987 Constitution);
NOTE: The privilege of a senator or congressman
will not apply when the offense is:
a. Punishable by imprisonment of more than 6
years even if Congress is in session (People v.
Jalosjos, G.R. No. 132875-76, Feb. 3, 2000); or
b. If the offense is punishable by imprisonment
of not more than 6 years, the privilege does
not apply if Congress is not in session.
2. Under the generally accepted principles of

international law, sovereign and other chiefs
of
state,
ambassadors,
ministers
plenipotentiary, ministers resident, and
charges daffaires are immune from the
criminal jurisdiction of the country of their
assignment and are therefore immune from
arrest;
3. The arrest of duly accredited ambassadors,
public ministers of a foreign country, their
duly registered domestics, subject to the
principle of reciprocity (Secs. 4 and 7, RA 75).
A: No. Inquest proceedings are proper only when

the accused has been lawfully arrested without
warrant. Sec. 5, Rule 113 of the Revised Rules of
Criminal Procedure provides the instances when
such warrantless arrest may be effected.
The joint affidavit of Leos arresting officers states
that the officers arrested Leo, without a warrant,
for Inciting to Sedition, and not for Rebellion.
Thus, the inquest prosecutor could only have
conducted as he did conduct an inquest for
Inciting to Sedition and no other. Consequently,
ARREST, HOW MADE
31

CRIMINAL PROCEDURE
It is made by an actual restraint of a person to be

arrested, or by his submission to the custody of
the person making the arrest (Sec. 2 Rule 113).
transferred from one confinement to another

(Sec. 5, Rule 113).
Q: On his way home, a member of the Caloocan
City police force witnessed a bus robbery in
Pasay City and effects the arrest of the suspect.
Can he bring the suspect to Caloocan City for
booking since that is where he is stationed?
Explain briefly. (2007 Bar Question)
NOTE: Arrest may be made on any day, at any time of

the day or night (Sec.6, Rule 113).
The head of the office to whom the warrant was
delivered
must
cause it to be executed within 10 days
from
its
receipt,
and
the
officer to whom it is assigned must make a repor
t to the judge who issued the warrant within 10 days
from
the
expiration
of
the
period. If he fails to execute it, he should state th
e reasons therefore (Sec. 4, Rule 113).
A: No. It shall be the duty of the officer executing

the warrant to arrest the accused and to deliver
him to the nearest police station or jail without
unnecessary delay (Sec. 3, Rule 113). This rule
equally applies to situations of warrantless
arrests. Here, the arrest was made in Pasay City.
Hence, the suspect should be brought to the
police station in Pasay City for booking and not in
Caloocan City.
ARREST WITHOUT WARRANT, WHEN LAWFUL

Instances when warrant of arrest is NOT
necessary
METHOD OF ARREST
1. Accused is already under detention;
2. Complaint or information was filed pursuant
to a valid warrantless arrest; and
3. Complaint or information is for an offense
penalized by fine only (Sec. 5 (c), Rule 112).
Method of Arrest
1. By actual restraint of the person to be
arrested;
2. By his submission to the custody of the
person making the arrest.
Instances of a valid warrantless arrest

1. When in the presence of the arresting person,
the person to be arrested has committed, is
actually committing or is attempting to
commit an offense in flagrante delicto arrest;
2. When an offense has in fact been committed
and the arresting person has probable cause
to believe based on personal knowledge of
facts and circumstances that the person to be
arrested has committed it (doctrine of hot
pursuit);
Q: How may arrest be effected?

A:
Method of arrest
Exception to the rule

on giving information
Arrest by officer by virtue of a warrant
(Sec. 7, Rule 113)
The officer shall 1. When the person
inform the person to
to be arrested
be arrested the cause
flees;
of the arrest and the 2. When he forcibly
fact that the warrant
resists before the
has been issued for
officer has an
his arrest.
opportunity
to
inform him; and
NOTE: The officer need 3. When the giving of
not have the warrant in
such information
his possession at the
will imperil the
time of the arrest but
arrest.
NOTE: There must be compliance with the

element of immediacy between the time of the
commission of the crime and the time of arrest
(People v Salvatiera, 276 SCRA 55).
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
must show the same

after the arrest, if the
32

CRIMINAL PROCEDURE
person arrested
requires.
GR: 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 (Sec. 2, Rule 113).
so
Arrest by officer without a warrant

(Sec. 8, Rule 113)
The officer shall 1. When the person
inform the person to
to be arrested is
be arrested of his
engaged in the
authority and the
commission of an
cause of the arrest
offense
or
is
w/out a warrant
pursued
immediately
its
commission;
2. When he has
escaped, flees, or
forcibly
resists
before the officer
has an opportunity
to so inform him;
and
3. When the giving of
such information
will imperil the
arrest.
Arrest by a private person (Sec. 9, Rule 113)
The private person 1. When the person
shall inform the
to be arrested is
person to be arrested
engaged in the
of the intention to
commission of an
arrest him and the
offense
or
is
cause of the arrest.
pursued
immediately
its
NOTE: The private
commission;
person must deliver the 2. When
he has
arrested person to the
escaped, flees, or
nearest police station or
forcibly
resists
jail, otherwise, he may
before the officer
be held criminally liable
has an opportunity
for illegal detention.
to so inform him;
and
3. When the giving of
such information
will imperil the
arrest.
XPN: If necessary to secure and detain the

offender, overcome his resistance, prevent his
escape, recapture him and protect himself from
bodily harm (Albano p. 1076 citing People v.
Delima, 46 Phil. 738).
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
(Sec. 11, Rule 113).
A lawful arrest may be made anywhere, even on a
private property or in a house. This rule is applicable
both where the arrest is under a warrant, and where
there is a valid warrantless arrest.
Objects subject to confiscation from the person

arrested
1. Objects subject of the offense or used or
intended to be used in the commission of the
crime;
2. Objects which are fruits of the crime;
3. Those which might be used by the arrested
person to commit violence or to escape; and
4. Dangerous weapons and those which may be
used as evidence in the case.
NOTE: Arrest must precede the search, the process
cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest can
precede the arrest at the outset of the search. Reliable
information alone is not sufficient to justify a
warrantless arrest under Sec. 5, Rule 113.
Q: Jose, Alberto and Romeo were charged with

murder. Upon filing of the information, the RTC
judge issued the warrants of arrest. Learning of
the issuance of the warrants, the 3 accused
jointly filed a motion for reinvestigation and for
the recall of the warrants of arrest. On the date
set for hearing of their motion, none of the
ARREST MADE BY OFFICER WITH WARRANT

Amount of force to be used in making an arrest
33

CRIMINAL PROCEDURE
accused showed up in the court for fear of being

arrested. The RTC judge denied their motion. Did
the RTC rule correctly? (2008 Bar Question)
proximity between the arrest and the

time of commission of the crime
(Pamaran, 2007);
b. The offense has just been committed;
and
c. Probable cause based on personal
knowledge on the part of the person
making the arrest, of facts or
circumstances that the person/s to be
arrested committed it (Herrera, 2007).
A: The RTC ruled correctly in denying the motion

for reinvestigation and recall of the warrants of
arrest because the accused have not surrendered
their persons to the court. Jurisdiction over the
person of the accused can only be obtained
through arrest or voluntary surrender (Dimatulac
v. Villon, G.R. No. 127107, October 12, 1998).
4. Evasion of service of sentence by prisoner

When the person to be arrested is a prisoner
temporarily confined while his case is
pending, or has escaped while being
transferred.
5. Where a person who has been lawfully
arrested escapes or is rescued (Sec. 13, Rule
113).
6. By the bondsman for the purpose of
surrendering the accused (Sec. 23, Rule 114).
7. Where the accused out on bail attempts to
leave the country without permission of the
court (Sec. 23, Rule 114).
ARREST MADE BY OFFICER WITHOUT WARRANT

GR: No peace officer or person has the power or
authority to arrest anyone without a warrant
except in those cases expressly authorized by law
(Umil vs. Ramos, G.R. No. 81567, October 3,
1991).
XPNs:
1. In flagrante delicto arrests
When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense.
2. Buy-bust Operation
A form of entrapment which has been
repeatedly accepted to be a valid means of
arresting violators of the Dangerous Drugs
Law. The violator is caught in flagrante delicto
and the police officers conducting the
operation are not only authorized but dutybound to apprehend the violator and to
search him for anything that may have been
part of or used in the commission of the crime
(People v. Juatan, G.R. No. 104378, August
20, 1996).
Q: The officers went to the scene of the crime

where they found a piece of wood and a
concrete hollow block used by the killers in
bludgeoning the victim to death. A neighbor of
the accused who witnessed the killing, pointed
to Roberto as one of the assailants. Roberto was
arrested three hours after the killing. Is the
arrest a valid warrantless arrest?
A:
Yes.
Under
the
abovementioned
circumstances, since the policemen had personal
knowledge of the violent death of the victim and
of facts indicating that Roberto and two others
had killed him, they could lawfully arrest Roberto
without a warrant. If they had postponed his
arrest until they could obtain a warrant, he would
have fled the law as his two companions
did(People v. Gerente, 219 SCRA 756).
3. Hot Pursuit Arrest

When an offense has in fact just 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.
Personal knowledge
Elements of Hot Pursuit Arrest
a. An offense has been committed close
34

CRIMINAL PROCEDURE
It means actual belief or reasonable grounds of

suspicion that the person to be arrested is
probably guilty of the offense based on actual
facts. Personal knowledge has no reference to the
actual commission of the crime but to personal
knowledge of facts leading to probable cause.
A: Any objection to the illegality of the arrest of

the accused without a warrant is deemed waived
when he pleaded not guilty at the arraignment
without raising the question. It is too late to
complain about a warrantless arrest after trial is
commenced and completed and a judgment of
conviction rendered against the accused (People
v. Cabiles, G.R. No. 112035, January 16, 1998).
NOTE: Personal gathering of information is different

from personal knowledge. The rule requires that the
arrest immediately follows the commission of the
offense (People v Manlulu, 231 SCRA 701).
NOTE: 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, otherwise it is deemed waived, as the
accused, in this case, has voluntarily submitted himself
to the jurisdiction of the court (People v. Macam, G.R.
Nos. L-91011-12, November 24, 1994).
Obligation of the arresting officer after the

warrantless arrest
The arresting officer must comply with the
provisions of Art. 125 of the RPC, otherwise, he
may be held criminally liable for arbitrary
detention under Art. 124, RPC. Jurisdiction over
the person arrested must be transferred to the
judicial authorities. Art. 125 is a procedural
requirement in case of warrantless arrest. A case
must be filed in court.
Ratification of an illegal arrest

Illegality of warrantless arrest maybe cured by
filing of information in court and the subsequent
issuance by the judge of a warrant of arrest.
NOTE: Once a person has been duly charged in court,
he may no longer question his detention by petition
for habeas corpus. His remedy is to quash the
information and/or the warrant of arrest.
Period for officers to deliver the person detained

under Art. 125 of the RPC
The person must be delivered to the judicial
authorities within the period specified in Art. 125
(Delay in the delivery of detained persons to the
proper judicial authorities):
Consequences of Illegal Arrests

1. The documents, things or articles seized
following the illegal arrest are inadmissible in
evidence;
2. The arresting person may be held criminally
liable for illegal arrest under Art. 269, RPC;
3. Arresting officer may be held civilly liable for
the damages under Art. 32, NCC; and
4. He may also be held administratively liable.
1. 12 hours - Light penalties

2. 18 hours - Correctional penalties
3. 36 hours - Afflictive or capital penalties
NOTE: The accused should be brought to the
prosecutor for inquest proceedings wherein existence
of probable cause will be determined. Then the judge
shall issue a commitment order (order issued by the
judge when the person charged with a crime is already
arrested or detained) and not a warrant.
Q: Albert was killed by Bobot during a quarrel

over a guest relations officer in a nightclub. Two
days after the incident, and upon complaint of
the widow of Albert, the police arrested Bobot
without a warrant of arrest and searched his
house without a search warrant.
1. Can the gun used by Bobot in shooting
Albert, which was seized during the search
of the house of Bobot, be admitted in
evidence?
Q: Fred was arrested without a warrant. After

preliminary investigation, an information was
filed in court. He pleaded not guilty during
arraignment. After trial on the merits, he was
found guilty by the court. On appeal he claims
that judgment was void due to his illegal arrest.
As Solicitor General, how would you refute said
claim? (2000 Bar Question)
35

CRIMINAL PROCEDURE
2. Is the arrest of Bobot legal? (1997 Bar

Question)
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
is temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to
another.
A:
1. No. The gun seized during the search of the
house of Bobot without a search warrant is
not admissible in evidence [Secs. 2 and 3(2),
Art. III, 1987 Constitution]. Moreover, the
search was not an incident to a lawful arrest
of a person under Sec. 12, Rule 126.
2. No. A warrantless arrest requires that the
crime has in fact just been committed and the
police arresting has personal knowledge of
facts that the person to be arrested has
committed it (Sec. 5, Rule 113).Here, the
crime has not just been committed since a
period of two days had already lapsed, and
the police arresting has no such personal
knowledge because he was not present when
the incident happened (Go v. CA, G.R. No.
106087, Jan. 11, 1995).
NOTE: In cases falling under paragraphs (a) and (b)

above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail
and shall be subjected to an inquest proceeding.
REQUISITES OF A VALID WARRANT OF ARREST

Warrant of Arrest
It is a legal process issued by a competent
authority, directing the arrest of a person or
persons upon the grounds stated therein
(Herrera, 2007).
Q: May authorities resort to warrantless arrest

in cases of rebellion?
A: Yes. Since rebellion has been held to be a
continuing crime, authorities may resort to
warrantless arrests of persons suspected of
rebellion, as provided under Sec. 5, Rule 113.
However, this doctrine should be applied to its
proper context i.e., relating to subversive armed
organizations, such as the New Peoples Army,
the avowed purpose of which is the armed
overthrow of the organized and established
government. Only in such instance should
rebellion be considered a continuing crime
(People v. Suzuki, G.R. No. 120670, October 23,
2003).
Person who may issue a warrant of arrest

The 1987 Constitution speaks of judges which
means judges of all levels. This power may not be
limited much less withdrawn by Congress. The
power to determine the existence of probable
cause to issue a warrant of arrest is a function of
the judge and such power lies in the judge
alone(People v. Inting, G.R. No. 85866, July 24,
1990).
NOTE: The exception is in case of deportation of illegal
and undesirable aliens, whom the President or the
Commissioner of Immigration may order arrested
following a final order of deportation for the purpose
of deportation (Salazar v. Achacoso, 183 SCRA 145).
BY A PRIVATE PERSON
Instances when a private person may make an
arrest
Essential requisites of a valid warrant of arrest
1. When, in his presence, the person to be

arrested has committed, is actually
committing, or is attempting to commit an
offense
1.
2.
36
Issued upon probable cause;

Probable cause is to be determined
personally by the judge after examination

CRIMINAL PROCEDURE
3.
4.
5.
under oath of the complainant and the

witnesses he may produce;
The judge must personally evaluate the
report of the prosecutor and the evidence
adduced during the preliminary examination
(Soliven v. Makasiar GR No L-82585,
November 14, 1988);
Where a warrant of arrest was improperly issued,

the proper remedy is a petition to quash it, not a
petition for habeas corpus, since the court in the
latter case may only order his release but not
enjoin the further prosecution or the preliminary
examination of the accused (Alimpoos v. CA, GR
No L-27331, July 30, 1981).
NOTE: A warrant of arrest issued based only on

the prosecutors findings and recommendation
like the information and resolution finding a
probable cause, without the court determining
on its own the issue of probable cause based on
evidence is null and void(Ho vs. People, 280 SCRA
365; Pamaran, 2007).
DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST
Probable Cause
It refers to facts and circumstances which would
lead a reasonably discreet and prudent man to
believe that an offense has been committed by
the persons involved. It need not be based on
clear and convincing evidence of guilt. Neither is
it based on evidence establishing guilt beyond
reasonable doubt or on evidence establishing
absolute certainty of guilt. It simply implies
probability of guilt and requires more than bare
suspicion but less than evidence which would
justify a conviction. A finding of probable cause
need only rest on evidence showing that more
likely than not a crime has been committed and
was committed by the suspects (The Presidential
Ad-Hoc Fact-Finding Committee on Behest Loans
v. Desierto, G.R. No. 136225, Apr. 23, 2008).
The warrant must particularly describe the

person to be arrested; and
It must be in connection with specific
offense or crime.
Period of the validity of a warrant of arrest

No time limit is fixed for the validity of a warrant
of arrest, unlike a search warrant, which is
effective only for 10 days (Pamaran, 2001). It
remains valid until arrest is effected or the
warrant is lifted (Manangan v. CFI, G.R. 82760,
August 30, 1990).
Remedy for warrant of arrest
Determination of the Existence of Probable Cause
Within 10 days from the filing of the

complaint or information, the judge
shall 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.
In case of doubt on the existence of

probable cause, the judge may order the
prosecutor to present additional evidence
within 5 days from notice and the issue
must be resolved by the court within 30
days from the filing of the complaint or
information.
37
If he finds probable cause, he shall

issue a warrant of arrest, or a
commitment order (Sec. 6,
Rule112).

CRIMINAL PROCEDURE
DISTINGUISH PROBABLE CAUSE OF FISCAL

FROM THAT OF A JUDGE
Purpose
Function
Basis
Probable Cause
as determined
by the
Prosecutor
For the filing of
an information
in court by
determining
whether there is
reasonable
ground
to
believe that the
accused is guilty
of the offense
charged
and
should be held
for trial.
Executive
function
Reasonable
ground
to
believe that a
crime has been
committed.
The right to bail is a constitutional right which

flows from the presumption of innocence in favor
of every accused who should not be subjected to
the loss of freedom. Thus, the right to bail only
accrues when a person is arrested or deprived of
his liberty. The right to bail presupposes that the
accused is under legal custody (Paderanga v.
Court of Appeals, 247 ACRS 741).
Probable Cause
as determined
by the Judge
For the issuance
of warrant to
determine
whether there is
a necessity for
placing
the
accused under
immediate
custody in order
not to frustrate
the ends of
justice(P/Supt.
Cruz v. Judge
Areola, A.M. No.
RTJ-01-1642,
March 6, 2002).
Judicial function
Conditions attached to the grant of bail

All kinds of bail are subject to the following
conditions:
1. The undertaking shall be effective upon
approval, and unless cancelled, shall remain
in form at all stages of the case until
promulgation of the judgment of the
Regional Trial Court, irrespective of whether
the case was originally filed in or appealed to
it;
2. The accused shall appear before the proper
court whenever required by the court or
these Rules;
3. The failure of the accused to appear at the
trial without justification and despite due
notice shall be deemed a waiver of his right
to be present thereat. In such case, the trial
may proceed in absentia; and
4. The bondsman shall surrender the accused
to the court for execution of the final
execution.
The report and

the supporting
documents
submitted by the
fiscal during the
preliminary
investigation and
the supporting
affidavits
that
may be required
to be submitted.
NOTE: The original papers shall state the full name

and address of the accused, the amount of the
undertaking and the conditions required by this
section. Photographs (passport size) taken within
the last 6 months showing the face, left and right
profiles of the accused must be attached to the
bail (Sec. 2, Rule 114).
BAIL
RULE 114
When the court finds that there is likelihood of the

accused jumping bail or committing other harm to
the citizenry is feared, the court may grant other
conditions in granting bail (Almeda v. Villaluz, G.R.
No. L-31665, August 6, 1975).
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
prescribed under the rules (Sec. 1, Rule 114).
Liability of the surety or bondsmen

It is inherently civil in nature. The liability of the
bondsmen on the bail bond arises not from the
violation of, or an obligation to comply with, a
Basis of the right to bail
38

CRIMINAL PROCEDURE
penal provision of law. It emerges instead from a

contract, the bond subscribed jointly by the
accused and the surety or bondsmen.
1. To relieve an accused from the rigors of

imprisonment until his conviction and yet
secure his appearance at the trial (Almeda v.
Villaluz GR No L-31665, August 6, 1975);
2. To honor the presumption of innocence until
his guilt is proven beyond reasonable doubt;
3. To enable him to prepare his defense without
being subjected to punishment prior to
conviction.
The obligation of the accused on the bond is

different from the surety in that the former can
be made to suffer a criminal penalty for failure to
comply with the obligations on the bail bond.
However, the surety is not under a similar path of
punishment, as its liability on the bail bond would
merely be civil in character (Reliance Surety and
Insurance Co. v. Amante Jr., et. al., G.R. No.
150994, June 30, 2005).
Q: Andrew was charged with the crime of estafa

in the RTC of Manila. A warrant of arrest was
issued by Judge Matias. Before the warrant of
arrest could be served, Judge Matias issued a
recall order of the warrant of arrest issued
against Andrew in view of the approval of his
bail bond by the Executive Judge of the RTC of
Manila. Was the application for bail of Andrew
validly approved?
NOTE: The court may not impose additional

obligations upon the bondsmen other than those
provided by law. The obligation imposed upon the
bondsmen cannot be greater nor of a different
character than those imposed upon the accused
(Bandoy v. Judge of CFI of La Laguna, GR. No. L-5200,
March, 11, 1909).
A: No. The right to bail can only be availed of by a

person who is in custody of the law or otherwise
deprived of his liberty and it would be premature
to file a petition for bail for someone whose
freedom has yet to be curtailed. Here, the bail
application of Andrew was approved before the
warrant for his arrest could be served (Alva v. CA,
G.R. No. 157331, April 12, 2006).
Effect of filing forged bail bonds

By filing forged bail bonds, appellants are
considered not merely to have jumped bail, but
for all intents and purposes to have escaped from
detention. Hence, their pending appeal should
be dismissed, subject to the filing of the proper
criminal cases against the parties responsible
therefor (People of the Philippines v. Del Rosario,
G.R. Nos. 107297-98. December 19, 2000).
Forms of bail
1. Corporate surety/ Bail bond;
a. An obligation under seal given by the
accused with one or more sureties and
made payable to the proper officer with
the condition to be void upon
performance by the accused of such acts
as he may be legally required to perform;
b. The accused goes to an authorized
bonding company and he will pay a
premium for the service which is a
percentage of the total amount of bail.
The bonding company will then go to the
court and execute an undertaking, or
"security bond" in the amount of the bail
bond in behalf of the accused, that if the
accused is needed, the bonding company
will bring him before the court;
c. If the accused jumps bail, the bond will be
NATURE
Nature of bail proceedings
The hearing of an application for bail should be
summary or otherwise in the discretion of the
court.
NOTE: By 'summary hearing' means such brief and
speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with
the purpose of the hearing which is merely to
determine the weight of the evidence for the purpose
of bail (Ocampo v. Bernabe, 77 Phil. 55).
Purposes of bail
39

CRIMINAL PROCEDURE
cancelled and the bonding company will

be given sufficient time to locate the
whereabouts of the accused who posted
bail but later on jumps bail. Notice to
bonding company is notice to the
accused. Notice is usually sent to the
bonding company in order to produce the
body of the accused.
iii.
Clerk of court where the case is

pending;
d. No further order from the court is
necessary for the release of the accused
if the conditions prescribed were
complied with; (Sec. 14, Rule 114)
e. If the accused does not appear when
required, the whole amount of the cash
bond will be forfeited in favor of the
government and the accused will now be
arrested.
NOTE: Liability of surety/bondsman covers all three

stages: trial, promulgation, and execution of sentence.
2. Property bond;
a. The title of the property will be used as
security for the provisional liberty of the
accused which shall constitute a lien over
the property;
b. The accused shall cause the annotation of
the lien within 10 days after approval of
the bond before the:
i.
Registry of Deeds if the property is
registered; or
ii.
Registration Book in the Registry of
Deeds of the place where the land
lies and before the provincial, city
or municipal assessor on the
corresponding tax declaration if
property is not registered (Sec. 11,
Rule 114);
c. The person who undertakes the
conditions of a regular bond will be the
custodian of the accused during the time
that he is under provisional liberty.
4. Recognizance
a. An obligation of record, entered into
before some court or magistrate duly
authorized to take it with the condition to
do some particular act. It is an
undertaking of a disinterested person
with high credibility wherein he will
execute an affidavit of recognizance to
the effect that when the presence of the
accused is required in court, the
custodian will bring him to that court.
b. This is allowed for light felonies only.
NOTE: If the accused does not appear despite notice
to the custodian, or the person who executed the
recognizance does not produce the accused, he may
be cited for contempt of court. This is the remedy
because no money is involved in recognizance.
Bail bond v. Recognizance

BAIL BOND
An obligation under
seal given by the
accused with one or
more sureties, and
made payable to the
proper officer with
the condition to be
void
upon
performance by the
accused of such acts
as he may legally be
required to perform.
NOTE: In all cases, the surety of properties must be

worth the amount specified in his own undertaking
over and above all just debts, obligations and
properties exempt from execution (Sec. 12, Rule 114).
3. Cash deposit/ Cash bond;

a. It is the deposited by the accused himself
or any person acting in his behalf;
b. Cash shall be in the amount fixed by the
court or recommended by the prosecutor
who investigated the case;
c. It is to be deposited before the:
i.
Nearest collector of internal
revenue;
ii.
Provincial, city or municipal
treasurer; or
RECOGNIZANCE
An obligation of record
entered into before
some
court
or
magistrate
duly
authorized to take it
with the condition to
do some particular act,
the
most
usual
condition in criminal
cases
being
the
appearance of the
accused for trial.
Where filed
1. In the court where the case is pending; or
40

CRIMINAL PROCEDURE
2. In the absence or unavailability of the judge

thereof, with any RTC judge, MTC judge, or
MCTC judge in the province, city, or
municipality.
or she is a lone eyewitness to the crime, it

may, upon motion of either party, order the
witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the
court shall commit him to prison until he
complies or is legally discharged after his
testimony is taken (Sec. 14, Rule 119).
NOTE: When bail is filed with a court other than

where the case is pending, the judge who
accepted the bail shall forward it, together with
the order of release and other supporting papers,
to the court where the case is pending (Sec. 19,
Rule 114).
Q: Ana is the lone eyewitness to the brutal

murder of Bruno allegedly committed by
accused Carlo. She deliberately refuses to
appear on the scheduled dates for the taking of
her testimony for fear of reprisal from Carlo's
die-hard followers.
2. May the court motu proprio order her to
post bail?
3. How shall Ana be proceeded against if she
refuses to give bail?
4. What protection may Ana avail if in case she
decides to testify at the trial? (1994 Bar
Question)
Where the grant of bail is a matter of discretion,

or the accused seeks to be released on
recognizance, the application may only be filed in
the court where the case is pending, whether on
preliminary investigation, trial, or on appeal.
3. If the accused is arrested in a province, city,

or municipality other than where the case is
pending, bail may also be filed with any RTC
of said place, or if no judge thereof is
available, with any MTC judge, MCTC therein;
or
4. Any person in custody who is not yet charged
in court may apply for bail with any court in
the province, city, or municipality where he is
held (Sec. 17, Rule 114).
A:
1. No. The rules require that the order to post
bail is upon motion of either party.
2. If Ana refuses to post bail, the court shall
commit her to prison until she complies or is
legally discharged after her testimony has
been taken (Sec. 14, Rule 119).
3. Ana may avail of the benefits under the
Witness Protection Act.
Q: If an information was filed in the RTC Manila

charging Mike with homicide and he was
arrested in Quezon City, in what court or courts
may he apply for bail? Explain. (2002 Bar
Question)
Q: Is arraignment required before the court

grants bail?
A: Mike may apply for bail in RTC Manila where

the information was filed or in the RTC Quezon
City where he was arrested, or if no judge thereof
is available, with any MTC or MCTC judge therein.
A: No. For the following reasons:

1. The trial court could ensure the presence of
the accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceedings [Section 2(b), Rule
114]; and
2. The accused would be placed in a position
where he 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, GR No. 129670, February 1,
2000).
Other instances when bail may be availed of

1. When a person lawfully arrested without a
warrant asks for a preliminary investigation
before the complaint or information is filed in
court, he may apply for bail (Sec. 6, Rule 112).
2. The court may require a witness to post bail
if he is a material witness and bail is needed
to secure his appearance. When the court is
satisfied, upon proof or oath, that a material
witness will not testify when required, and he
41

CRIMINAL PROCEDURE
Q: Bobby was charged with plunder before the

Sandiganbayan. Thereafter, he was arrested by
virtue of a warrant of arrest. He then filed an
application for bail. The Sandiganbayan refused
to resolve his application for bail until after his
arraignment. He argues that his arraignment is
not a pre-condition to his application for bail. Is
Bobby correct? Explain.
rehabilitation center or upon recommendation of

DSWD or other agencies authorized by the court
may, in its discretion be released on recognizance
(Sec. 36, RA 9344).
Court martial offenses
An accused military personnel triable by courts
martial or those charged with a violation of the
Articles of War does not enjoy the right to bail.
A: Yes. The arraignment of an accused is not a

prerequisite to the conduct of hearings on his
petition for bail. A person is allowed to petition
for bail as soon as he is deprived of his liberty by
virtue of his arrest or voluntary surrender. An
accused need not wait for his arraignment before
filing a petition for bail.
Filing of bail after a final judgment

GR: Bail may not be filed once there is already a
final judgment (Sec. 24, Rule 114).
XPN: Even after conviction by the MTC, bail is still
a matter of right.
NOTE: If the court finds in such case that the accused

is entitled to bail because the evidence against him is
not strong, he may be granted provisional liberty even
prior to arraignment; for in such a situation, bail would
be "authorized" under the circumstances (Serapio v.
Sandiganbayan, G.R. Nos. 148468, 148769 & 149116,
January 28, 2003).
NOTE: If before such finality, the accused applies for

probation, he may be allowed temporary liberty under
his bail. In no case shall bail be allowed after the
accused has commenced to serve sentence.
WHEN A MATTER OF RIGHT; EXCEPTIONS

WHEN A MATTER OF DISCRETION
Law on Juveniles in conflict with the law with

respect to bail of non-capital offenses
Bail as matter of right
1. The privileged mitigating circumstances of

minority shall be considered (Sec. 34, RA
9344, Juvenile and Justice Act of 2006).
2. Where a child is detained, the court shall
order the:
a. Release of the minor on recognizance to
his/her parents and other suitable
person;
b. Release of the child in conflict with the
law on bail; or
c. Transfer of the minor to a youth
detention home/youth rehabilitation
center (Sec. 35, RA 9344).
1.
2.
3.
Before or after conviction by the MeTC and

MTC, and
Before conviction by the RTC of an offense
not punishable by death, reclusion perpetua
or life imprisonment (Sec. 4, Rule 114).
Before final conviction by all children in
conflict with the law for an offense not
punishable by reclusion perpetua or life
imprisonment.
Bail as a matter of discretion

1.
NOTE: The court shall not order the detention of a

child in a jail pending trial or hearing of his/her case
(Sec. 35, RA 9344).
2.
If minor is unable to furnish bail

The minor shall be, from the time of his arrest,
committed to the care of the DSWD or the local
42
Upon conviction by the RTC of an offense

not punishable by death, reclusion perpetua
or life imprisonment
Regardless of the stage of the criminal
prosecution, a person charged with a capital
offense, or an offense punishable by
reclusion perpetua or life imprisonment,
when evidence of guilt is not strong(Sec. 7,
Rule 114); and
CRIMINAL PROCEDURE
3.
A child in conflict with the law charged with

an offense punishable by death, reclusion
perpetua or life imprisonment when
evidence of guilt is not strong (Sec. 28, A.M.
No. 02-1-18-SC).
lesser offense, that is, lower than that

charged.
3. If on the other hand, he is convicted of that
offense which was charged against him, his
bail shall be cancelled and he shall thereafter
be placed in confinement.
NOTE: The prosecution cannot adduce evidence for

the denial of bail where it is a matter of right. However
where the grant of bail is discretionary, the
prosecution may show proof to deny the bail.
NOTE: Bail in these circumstances is still not a matter

of right but only a matter of sound discretion of the
court (Herrera, 2007).
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.
Grounds for denial of bail if the penalty imposed

by the trial court exceeds 6 years
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail, or his bail shall be cancelled
upon showing by the prosecution, with notice to
the accused, of the following or other similar
circumstances:
1. That he is a recidivist, quasi-recidivist or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
2. That he previously escaped from legal
confinement, evaded sentence, or has
violated the conditions of his bail without
valid justification;
3. That he committed the offense while on
probation, parole, or under conditional
pardon;
4. That the circumstances of his case indicate
the probability of flight if released on bail; or
5. That there is undue risk that during the
pendency of the appeal, he may commit
another crime (Sec. 5, Rule 114).
Recommendation is necessary because in fixing the

amount of bail, the judge is required to take into
account a number of factors such as the applicants
character and reputation, forfeiture of other bonds or
whether he is a fugitive from justice.
Bail upon conviction by the RTC of an offense not

punishable by death, reclusion perpetua or life
imprisonment
Bail should be filed with the trial court despite the
filing of a notice of appeal provided that it has not
yet transmitted the original record to the
appellate court. If the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, then bail
must be filed with the appellate court (Sec. 5, Rule
114).
Guidelines regarding the effectivity of bail
The SC en banc laid the following policies
concerning the effectivity of the bail of the
accused:
1. When the accused is charged with an offense
which is punishable by a penalty lesser than
reclusion perpetua at the time of the
commission of the offense, or the application
for bail and thereafter he is convicted of a
lesser offense than that charged, he may be
allowed to be released on the same bail he
posted, pending his appeal provided, he does
not fall under any conditions of bail.
2. The same rule applies if he is charged with a
capital offense but later on convicted of a
Q: Charged with murder, Leviste was convicted

with the crime of homicide and was sentenced
to suffer an indeterminate penalty of six years
and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as
maximum. Pending appeal he applied for bail,
but the same was denied by the CA. Petitioners
theory is that, where the penalty imposed by the
trial court is more than 6 years but not more
than 20 years and the circumstances mentioned
in the third paragraph of Sec. 5 are absent, bail
must be granted to an appellant pending appeal.
In an application for bail pending appeal by an
43

CRIMINAL PROCEDURE
appellant sentenced to a penalty of

imprisonment for more than six years, does the
discretionary nature of the grant of bail pending
appeal mean that bail should automatically be
granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule
114 of the Rules of Court?
Remedy of the
discretionary
accused
when
bail
is
When bail is discretionary, the remedy of the

accused is to file a petition for bail. Once a
petition for bail is filed, the court is mandated to
set a hearing. The purpose of the hearing is to
give opportunity to the prosecution to prove that
the evidence of guilt is strong. If strong, bail will
be denied. If weak, the bail will be granted.
A: In an application for bail pending appeal by an

appellant sentenced for more than six years, the
discretionary nature of the grant of bail pending
appeal does not mean that bail should
automatically be granted absent any of the
circumstances mentioned in the third paragraph
of Sec. 5, Rule 114 of the Rules of Court.
Duties of the trial judge if an application for bail

is filed
1. Reasonably notify the prosecutor of the
hearing of the application for bail or require
him to submit his recommendation (Sec. 18,
Rule 114);
2. Conduct a hearing of the application for bail
regardless of whether or not the prosecution
refuses to present evidence to show that the
guilt of the accused is strong for the purpose
of enabling the court to exercise its sound
discretion (Secs. 7 and 8, Rule 114);
3. Decide whether the evidence of guilt of the
accused is strong based on the summary of
evidence of the prosecution(Baylon v. Sison,
A.M. No. 92-7-360-0, Apr. 6, 1995);
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of
the bailbond. Otherwise, petition should be
denied (Sec. 19, Rule 114).
The third paragraph of Sec. 5 of Rule 114 applies

to two scenarios where the penalty imposed on
the appellant applying for bail is imprisonment
exceeding 6 years. The first scenario involves the
absence of any of the circumstances enumerated
in the said paragraph deals with the
circumstances enumerated in the said paragraph
not being present. The second scenario
contemplates the existence of at least one of the
said circumstances.
In the first situation, bail is a matter of sound
judicial discretion. This means that, if none of the
circumstances mentioned in the 3rd paragraph of
Sec. 5 Rule 114 is present, the appellate court has
the discretion to grant or deny bail. An
application for bail pending appeal may be denied
even if the bail-negating circumstances in the
third paragraph of Sec. 5, Rule 114 are absent.
Party with the burden of proof in bail

applications
On the other hand on the second situation, the

appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether
any of the enumerated circumstances in fact
exists. If it so determines, it has no other option
except to deny or revoke bail pending appeal.
Thus a finding that none of the said circumstances
is present will not automatically result in the
grant of bail. Such finding will simply authorize
the court the less stringent sound discretion
approach (Leviste v. CA, GR No. 189122, March
17, 2010).
It is the prosecution who has the burden of

showing that evidence of guilt is strong at the
hearing of an application for bail filed by a person
who is charged for the commission of a capital
offense or offense punishable by reclusion
perpetua or life imprisonment (Sec. 8, Rule 114).
Effect of a grant of bail
The accused shall be released upon approval of
the bail by the judge (Sec. 19, Rule 114).
44

CRIMINAL PROCEDURE
Remedy of the accused when bail is denied by

the trial court
guilt was strong for purposes of bail. Is the ruling

correct? (2002 Bar Question)
File a petition for certiorari under Rule 65 based

on grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing such order. Such
petition must take into account the hierarchy of
courts. In the meantime however, while the case
is pending, the accused may not be released
(Caballes v. CA, G.R. No. 163108, February 23,
2005).
A: No. At the hearing of an application for bail

filed by a person who is in custody for the
commission of an offense punishable by death,
reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that
evidence of guilt is strong. The prosecution is only
required to present as much evidence as is
necessary to determine whether the evidence of
Domingos guilt is strong for purposes of bail (Sec.
8, Rule 114).
Frivolous complaints against judges

A party or a lawyer who is guilty of filing a
frivolous administrative complaint or a petition
for inhibition against a judge arising from the
latter's action on the application for bail may be
appropriately sanctioned (Sec. 7 A.M. No. 12-112-SC).
HEARING OF APPLICATION FOR BAIL IN CAPITAL

OFFENSES
Capital Offense
It refers to 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 (Sec. 6, Rule 114).
Q: When the accused is entitled as a matter of

right to bail, may the court refuse to grant him
bail on the ground that there exists a high
degree of probability that he will abscond or
escape? Explain. (1999 Bar Question)
NOTE: RA 9346: An Act Prohibiting the Imposition of

Death Penalty in the Philippines, abolished the death
penalty.
A: No. 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, G.R. No. L-1771, December 4, 1947).
Q: May a person charged with a capital offense

be admitted to bail?
A: It depends. No person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted
to bail when evidence of guilt is strong,
regardless of the stage of the criminal
prosecution (Sec. 7, Rule 114).
Q: Is bail proper if the accused is suffering from

poor health condition?
A: No. If continued confinement of the accused
would be detrimental or dangerous to his health,
the remedy would be to submit him to medical
treatment or hospitalization.
Bail in offenses punishable by death, reclusion

perpetua or life imprisonment
1.
Q: Domingo was charged with murder, a capital

offense. After arraignment, he applied for bail.
The trial court ordered the prosecution to
present its evidence in full on the ground that
only on the basis of such presentation could it
determine whether the evidence of Domingo's
45
The hearing of the accused's motion for bail

shall be summary, with the prosecution
bearing the burden of showing that the
evidence of guilt is strong. The accused may
at his option, if he wants the court to
consider his evidence as well, submit in
support of his motion the affidavits of his
witnesses attesting to his innocence.
CRIMINAL PROCEDURE
2.
3.
4.
At the hearing of the accused's motion for

bail, the prosecution shall present its
witnesses with the option of examining
them on direct or adopting the affidavits
they executed during the preliminary
investigation as their direct testimonies.
The court shall examine the witnesses on
their direct testimonies or affidavits to
ascertain if the evidence of guilt of the
accused is strong. The court's questions
need not follow any particular order and
may shift from one witness to another. The
court shall then allow counsels from both
sides to examine the witnesses as well. The
court shall afterwards hear the oral
arguments of the parties on whether or not
the evidence of guilt is strong.
Within 48 hours after hearing, the court shall
issue an order containing a brief summary of
the evidence adduced before it, followed by
its conclusion of whether or not the
evidence of guilt is strong. Such conclusion
shall not be regarded as a pre-judgment on
the merits of the case that is to be
determined only after a full-blown trial (Sec.
6 A.M. No. 12-ll-2-SC).
Alternative Answer:
Under Circular No. 2-92, Ian is entitled to bail
because he was convicted of homicide and
hence the evidence of guilt of murder is not
strong.
2. Paul, who did not appeal, can benefit from the
decision of the CA which is favorable and
applicable to him [Sec. 11(a) Rule 122]. The
benefit will also apply to Steve even if his
appeal is dismissed because of his escape.
GUIDELINES IN FIXING AMOUNT OF BAIL
Duty of the court to fix appropriate bail
The court shall, after finding sufficient cause to
hold the accused for trial, fix the amount of bail
that the latter may post for his provisional
release, taking into account the public
prosecutor's recommendation and any relevant
data that the court may find from the criminal
information and the supporting documents
submitted with it, regarding the following:
1. Financial ability of the accused to give bail
2. Nature and circumstances of the offense
3. Penalty for the offense charged
4. Character and reputation of the accused
5. Age and health of the accused;
6. Weight of the evidence against the accused
7. Probability of the accused appearing in trial
8. Forfeiture of other bonds
9. Fact that the accused was a fugitive from
justice when arrested
10. Pendency of the cases in which the accused is
under the bond (Sec. 1 A.M. No. 12-11-2-SC).
Q: In an Information charging them with murder,

policemen Ian, Paul and Steve were convicted of
homicide. Ian appealed from the decision but
Paul and Steve did not. Paul started serving his
sentence but Steve escaped and is at large. In
the CA, Ian applied for bail but was denied.
Finally, the CA rendered a decision acquitting Ian
on the ground that the evidence pointed to the
NPA as the killers of the victim.
1) Was the Court of Appeal's denial of
Ian's application for bail proper?
2) Can Paul and Steve be benefited by the
decision of the CA? (1998 Bar Question)
Fixing of the amount of bail

Pending the raffle of the case to a regular branch
of the court, the accused may move for the fixing
of the amount of bail, in which event, the
Executive Judge shall cause the immediate raffle
of the case for assignment and the hearing of the
motion (Sec. 2 A.M. No. 12-11-2-SC).
A:
1. Yes. The CA properly denied Ian's application
for bail. The court had the discretion to do so.
Although Ian was convicted of homicide only,
since he was charged with a capital offense, on
appeal he could be convicted of the capital
offense (Obosa v. CA, G.R. No. 114350, January
16, 1997).
NOTE: The principal factor to the determination of

which most other factors are directed is the
probability of the appearance of the accused, or of his
46

CRIMINAL PROCEDURE
flight to avoid punishment (Villasenor v Abano, 21

SCRA 312).
committed to custody if he does not give bail in

the increased amount within a reasonable period
(Sec. 20, Rule 114).
BAIL WHEN NOT REQUIRED
NOTE: A motion to reduce the amount of bail likewise

requires a hearing before it is granted in order to
afford the prosecution the chance to oppose it (Sec.
18, Rule 114).
Instances when bail is NOT necessary or when

recognizance is sufficient
1. 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 Php
2,000 fine, under circumstances provided
under RA 6036 (An Act providing that bail
shall not, with certain exceptions, be required
In cases of violations of municipal or city
ordinances and in light offenses);
2. 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 a reduced bail or on his own
recognizance;(Sec. 16, Rule 114)
3. Where the accused has applied for probation,
pending the resolution of the case but no bail
was filed or the accused is incapable of filing
one (Sec. 24, Rule 114);
4. In case of a youthful offender held for a
physical and mental examination, trial, or
appeal, if he is unable to furnish bail and
under circumstances envisaged in PD 603
(Child and Youth Welfare Code) as amended.
5. Before final conviction, all juveniles charged
with offenses falling under the Revised Rule
on Summary Procedure shall be released on
recognizance to the custody of their parents
or other suitable person who shall be
responsible for the juveniles appearance in
court whenever required (Sec. 15, A.M. No.
02-1-18-SC).
Excessive bail may not be imposed because that is

tantamount to denying bail.
When accused does not have financial ability to

post the bail initially fixed by the court
The accused may move for its reduction by
submitting documents and affidavits that may
warrant his claim for reduction (Sec.3 A.M. No.
12-11-2-SC).
Priority of Hearing for motion for reduction of
bail
Such motion shall enjoy priority in the hearing of
cases (Sec. 2 A.M. No. 12-11-2-SC).
The order fixing the amount of the bail shall not
be subject to appeal (Sec. 4 A.M. No. 12-11-2-SC)
Release after service of minimum imposable
penalty.
The accused who has been detained for a period
at least equal to the minimum of the penalty for
the offense charged against him shall be ordered
released, motu proprio or on motion and after
notice and hearing, on his own recognizance
without prejudice to the continuation of the
proceedings against him [Sec. 5 A.M. No. 12-ll-2SC citing Sec. 16, Rule 114 of the Rules of Court
and Sec. 5 (b) of RA l0389].
FORFEITURE AND CANCELLATION OF BAIL
INCREASE OR REDUCTION OF BAIL
Effects of the failure of the accused to appear in

court when so required
Reduction and increased in the amount of bail
1. The bail shall be declared forfeited; or

2. The bondsman is given 30 days within which
to:
After the accused is admitted to bail, the court

may, upon good cause, either increase or reduce
its amount. When increased, the accused may be
47

CRIMINAL PROCEDURE
a. Produce their principal or give the reason

for his non-production; and
b. Explain why the accused did not appear
before the court when first required to
do so.
Conditional and
interlocutory. It
is
not
appealable.
Liability of the bondsmen if due to failure to

produce their principal, give the reason for his
non-production, or explain why the accused did
not appear when required
Not independent of the

order of forfeiture. It is
a judgment ultimately
determining
the
liability of the surety
thereunder
and
therefore
final.
Execution may issue at
once.
APPLICATION FOR BAIL IS NOT A BAR TO

OBJECTIONS IN ILLEGAL ARREST; LACK OF OR
IRREGULAR PRELIMINARY INVESTIGATION
If the bondsmen fail to comply with their

obligations, the court will render judgment
against the bondsmen jointly and severally if
there are more than one bondsman (Sec. 21, Rule
114).
Objection in illegal arrest or lack of or

irregularity or lack of preliminary investigation
NOTE: The court shall not reduce or mitigate the

liability of the bondsmen unless the accused has been
surrendered or is acquitted (Sec. 21, Rule 114). The 30day period granted to the bondsmen to comply with
the two requisites for the lifting of the order of
forfeiture cannot be shortened by the court but may
be extended for good cause shown.
An application for bail is not a bar to objections in

illegal arrest or irregularity or lack of preliminary
investigation, provided that he raises them
before entering his plea. The court shall resolve
the matter as early as possible, not later than the
start of the trial on the case (Sec. 26, Rule 114).
Cancellation of bail
Q: Paolo was charged with estafa. Thereafter, he

was arrested by virtue of a warrant of arrest
issued by the RTC. Before arraignment, Paolo
filed an application for bail. Paolo then filed a
motion to quash information on the ground that
it charges more than one offense. RTC denied
bail to Paolo on the ground that an application
for bail and a motion to quash are inconsistent
remedies. Is the RTC correct?
Upon the application of the bondsmen with due

notice to the prosecutor, bail may be cancelled
upon:
1. Surrender of the accused; and
2. Proof of death of the accused (Sec. 22, Rule
114).
Automatic cancellation of bail
A: No. There is no inconsistency in filing an

application of an accused for bail and his filing of
a motion to quash. The purpose of bail is to obtain
the provisional liberty of a person charged with
an offense until his conviction while at the same
time securing his appearance at the trial. On the
other hand, a motion to quash an information is
the mode by which an accused assails the validity
of a criminal complaint or information filed
against him for insufficiency on its face in point of
law, or for defects which are apparent on the face
of the information.
Upon:
1. Acquittal of the accused;
2. Dismissal of the case; and
3. Execution of judgment of conviction (Sec.
22, Rule 114).
NOTE: In all instances of cancellation of bail, automatic
or otherwise, it shall be without prejudice to any
liability on the part of the surety.
Order of forfeiture v. Order of cancellation

ORDER OF
FORFEITURE
These two reliefs have objectives which are not

necessarily antithetical to each other. The right of
ORDER OF
CANCELLATION
48

CRIMINAL PROCEDURE
mention implied exclusion, courts lower than the RTC

such as the MeTC, MTC, MTCC and MCTC has no
authority to issue hold departure orders in criminal
cases (A.M. No. 99-9-141-MTCC November 25, 1999).
an accused to seek provisional liberty when

charged with an offense not punishable by death,
reclusion perpetua or life imprisonment, or when
charged with an offense punishable by such
penalties but after due hearing, evidence of his
guilt is found not to be strong, does not preclude
his right to assail the validity of the information
charging him with such offense. It must be
conceded, however, that if a motion to quash a
criminal complaint or information on the ground
that the same does not charge any offense is
granted and the case is dismissed and the
accused is ordered released, the petition for bail
of an accused may become moot and academic
(Serapio v. Sandiganbayan, G.R. Nos. 148468,
148769 & 149116, January 28, 2003).
HDO when issued

HDO shall be issued only in criminal cases within
the exclusive jurisdiction of the RTCs (SC Circular
39-97) upon proper motion of the party.
Effect of the acquittal of the accused or dismissal
of the case to the hold departure order issued by
the RTC
Whenever (a) the accused has been acquitted; or
(b) the case has been dismissed, the judgment of
acquittal or the order of dismissal shall include
therein the cancellation of the HDO issued. The
Court concerned shall furnish the Department of
Foreign Affairs and the Bureau of Immigration
with a copy each of the judgment of acquittal
promulgated or the order of dismissal issued
within 24 hours from the time of
promulgation/issuance and likewise through the
fastest available means of transmittal.
HOLD DEPARTURE ORDER AND BUREAU OF

IMMIGRATION WATCHLIST
Hold Departure Order (HDO)
Order issued by the Secretary of Justice or the
proper RTC commanding the Commissioner of
the Bureau of Immigration to prevent the
departure for abroad of Filipinos and/ or aliens
named therein by including them in the Bureaus
Hold Departure List(DOJ Dept. Order No. 17).
Instances when DOJ may issue an HDO

1.
NOTE: The proper court may issue an HDO or direct

the Department of Foreign Affairs to cancel the
passport of the accused. This is a case of a valid
restriction on a persons right to travel so that he may
be dealt with in accordance with the law (Silverio v. CA
GR No. 94284, April 8, 1991).
Against an accused irrespective of

nationality, in criminal case falling within the
jurisdiction of courts below the RTCs;
NOTE: If the case against the accused is pending trial,

the application under oath of an interested party must
be supported by: a) certified true copy of the
complaint or information; and b) a certification from
the Clerk of Court concerned that the criminal case is
pending.
Who may issue an HDO

A hold departure order may be issued either by:
If the accused has jumped bail or has become a

fugitive of justice, the application under oath of
an interested party must be supported by: a) a
certified true copy of the complaint or
information; b) a certified true copy of the
warrant or order of arrest; and c) a certification
from the Clerk of Court concerned that the
warrant or order of arrest was returned
unserved.
1. The RTC pursuant to SC Circular 39-97;

2. By the RTC sitting as a Family Court
pursuant to A.M. No. 02-11-12-SC; or
3. By the DOJ pursuant to Department
Order No. 41.
NOTE: SC Circular 39-97 (June 19, 1997), "limits the
authority to issue HDO to the RTCs. Considering that
only the RTC is mentioned in said Circular and by
applying the rule on legal hermeneutics of express
49

CRIMINAL PROCEDURE
2.
3.
Against an alien whose presence is required

either as a defendant, respondent or a
witness in a civil or labor case pending
litigation, or any case before an
administrative agency;
Against any person motu proprio, or upon
the request of the Head of a Department of
the Government, head of a constitutional
body or commission; the Chief Justice of the
Supreme Court for the Judiciary; the Senate
President or the House Speaker for the
legislature; when the adverse party is the
Government or any of its agencies or
instrumentalities, or in the interest of
national security, public safety or public
health (DOJ Department Circular No. 41).
Government functionaries/ offices who

requested the issuance of the HDO/WLO
(Sec. 5, DOJ Department Circular No. 41).
Instances for the issuance of a Watch List Order
(WLO)
1.
2.
NOTE: An HDO issued by the DOJ shall be valid for 5

years from the date of its issuance unless sooner
terminated (Sec. 4, DOJ Circular No. 41).
3.
Grounds for the cancellation of an HDO issued

by the DOJ
1.
2.
3.
4.
When the validity of the HDO has already

expired;
When the accused subject of the HDO has
been allowed to leave the country during
the pendency of the case, or has been
acquitted of the charge, or the case in which
the warrant/ order of arrest has been
recalled; or
When the civil or labor case or case before
an administrative agency of the government
wherein the presence of the alien subject of
the HDO/WLO has been dismissed by the
court or by appropriate government agency,
or the alien has been discharged as a witness
therein, or the alien has been allowed to
leave the country (Sec. 5, DOJ Department
Order No. 41).
When the HDO/WLO was issued by the
Secretary of Justice either motu proprio or
upon request of government functionaries/
agencies, when the adverse party is the
Government or any of its agencies or
instrumentalities, or in the interest of
health, may be lifted or recalled ANYTIME if
the application is favorably indorsed by the
Against the accused, irrespective of

nationality in criminal cases pending trial
before the RTC or before courts below the
RTCs;
Against the respondent, irrespective of
nationality in criminal cases pending
Preliminary Investigation, Petition for
Review or Motion for Reconsideration
BEFORE the DOJ or any of its provincial or
city prosecution offices;
The Secretary of Justice may likewise issue a
WLO against any person, either motu
proprio or upon request of any government
agencies, including commissions, task forces
or similar entities created by the Office of
the President, pursuant to the AntiTrafficking of Persons Act of 2003 (RA 9208)
and/ or in connection with any investigation
being conducted by it, or in the interest of
health (Section 2, DOJ Department Order
41).
Period of Validity of a WLO

A WLO issued shall be valid for 60 days unless
sooner terminated or extended, for a nonextendible period of not more than 60 days (Sec.
4, DOJ Dept. Order No. 41).
Permission to leave the country
Permission to leave the country should be filed in
the same court where the case is pending
because they are in the best position to judge the
propriety and implication of the same (Santiago
v. Vasquez, G.R. No. 99289-90, January 27, 1993).
Remedy against an HDO/ WLO
A WLO may be attacked by filing a motion for
cancellation or by getting an Allow Departure
50

CRIMINAL PROCEDURE
Order from the DOJ or by filing a Motion to Lift

Hold Departure Order.
3.
4.
Allow Departure Order (ADO)

An ADO is a directive that allows the traveler to
leave the territorial jurisdiction of the Philippines.
This is issued upon application to the
Commissioner of Immigration and the
appropriate government agency (An outline of
Philippine Immigration and Citizenship Laws,
Volume I, Atty. Rolando P. Ledesma, p. 34).
Bail in Extradition Cases

1.
2.
Period for the issuance of ADO
Any person subject of an HDO/ WLO pursuant to
Department Order No. 41, who intends, for some
exceptional reasons, to leave the country may,
upon application under oath with the Secretary of
Justice, be issued an ADO upon submission of the
following requirements:
1.
2.
3.
Affidavit stating clearly the purpose,

inclusive period of the intended travel, and
undertaking to immediately report to the
DOJ upon return; and
Authority to travel or travel clearance from
the court or appropriate government office
where the case upon which the issued HDO/
WLO was based is pending or from the
investigating prosecutor in charge of the
subject case.
4.
5.
Remedy of a person who is not the same person

whose name appears in the HDO/ WLO
While our extradition law does not provide

for the grant of bail to an extraditee,
however, there is no provision prohibiting
him or her from filing a motion for bail, a
right to due process under the constitution.
While extradition is not a criminal
proceeding, it still entails a deprivation of
liberty on the part of the potential
extraditee and furthermore, the purpose of
extradition is also the machinery of criminal
law.
The Universal Declaration of Human Rights
applies to deportation cases, hence, there is
no reason why it cannot be invoked in
extradition cases.
The main purpose of arrest and temporary
detention in extradition cases is to ensure
that the potential extraditee will not
abscond.
Under the principle of pacta sunt servanda,
the Philippines must honor the Extradition
Treaty it entered into with other countries.
Hence, as long as the requirements are
satisfactorily met, the extraditee must not
be deprived of his right to bail (Government
of Hong Kong Special Administrative Region
v. Olalia, G.R. No. 153675, Apr. 19, 2007).
NOTE: The required proof of evidence is clear and

convincing evidence and not preponderance of
evidence nor proof beyond reasonable doubt. The
burden of proof lies with the extraditee (Government
of Hong Kong Special Administrative Region v. Olalia,
G.R. No. 153675, Apr. 19, 2007).
Any person who is prevented from leaving the

country because his/ her name appears to be the
same as the one that appears in the HDO/ WLO
may upon application under oath obtain a
Certification to the effect that said person is not
the same person whose name appears in the
issued HDO/ WLO upon submission of the
following requirements:
1.
2.
Latest clearance from the National Bureau of

Investigation; and
Clearance from the court or appropriate
government agency when applicable.
Rule regarding bail in deportation proceedings

It is available, however bail in deportation
proceedings is wholly discretionary.
Affidavit of Denial;
Photocopy of the page of the passport
bearing the personal details;
RIGHTS OF THE ACCUSED

RULE 115
51

CRIMINAL PROCEDURE
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.
proposition of proof requisite to constitute the

offense (Sec. 2, Rule 133).
RIGHTS OF ACCUSED AT THE TRIAL
Where the evidence of the parties in a criminal

case is evenly balanced, the constitutional
presumption of innocence should tilt in favor of
the accused who must be acquitted (People v.
Erguiza, GR No. 171348, November26, 2008).
Equipoise Rule
Rights of the accused at the trial

1.
2.
Right to be presumed innocent;

Right to be informed of the nature and the
cause of the accusation against him;
3. Right to be present and defend in person
and by counsel at every stage of the
proceeding;
4. Right to counsel;
5. Right to testify as a witness in his own
behalf;
6. Right against self-incrimination;
7. Right to confront and cross examine
witnesses against him at trial;
8. Right to compulsory process;
9. Right to a speedy, impartial and public trial;
and
10. Right to appeal on all cases allowed by law
and in the manner prescribed by law (Sec. 1,
Rule 115).
XPNs to Presumption of Innocence

1.
2.
In cases of self-defense, the person invoking

self defense is presumed guilty. In this case,
a reverse trial will be held.
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 an
unreasonable and arbitrary experience
(People v. Mingoa, G.R. No. L-5371, March
26, 1953).
Right of Presumption of Innocence
Reverse trial
The right means that the presumption must be

overcome by evidence of guilt beyond reasonable
doubt. The burden lies on the prosecution to
overcome such presumption of innocence by
presenting the quantum of evidence required.
Conviction should be based on the strength of the
prosecution and not on the weakness of the
defense. The significance of this is that accusation
is not synonymous with guilt (People v. Angus, GR
No. 178778, August 3, 2010).
A reverse trial happens if the accused admits the

killing but claims self-defense. He must first
establish the elements of self-defense in order to
overturn the presumption that he was guilty of
the offense.
Q: In a case of rape, the court ordered the
accused to present evidence ahead of the
prosecution. Is the court order correct? Why?
A: No. It violated the right of the accused to be
presumed innocent and the right to due process.
In fact, it violated the order of the presentation of
evidence. The accused has the right not to take
the witness stand (Albano P. 1114 citing
Alejandro v. Pepito).
Reasonable doubt
The doubt engendered by an investigation of the
whole proof and an inability, after such
investigation, to let the mind rest easy upon the
certainty of guilt. Absolute certainty is not
demanded by law to convict of any criminal
charge but moral certainty is required as to every
Accuseds right to be informed
52

CRIMINAL PROCEDURE
The right requires that the information should

state the facts and circumstances constituting the
crime charged in terms sufficient to enable a
person of common understanding to know what
offense is being charged.
3.
NOTE: Such requirement has no application to the

proceedings or to the entry and promulgation of the
judgments before the CA and SC. The defendant need
not be present during the hearing of the appeal (Sec.
9, Rule 124).
Rule regarding waiver of right to be informed

The right to be informed may not be waived. It is
a basic constitutional right of the accused to be
informed of the nature and cause of accusation
against them.
Waiver of right to be present during the trial
Q: Noque was convicted for the crime of selling

and
possessing
methamphetamine
hydrochloride. On appeal, Noque claimed that
his conviction violated his right to be informed
of the nature and cause of the accusations
against him since the charges in the Information
are
for
selling
and
possessing
methamphetamine hydrochloride but what was
established and proven was the sale and
possession of ephedrine. Is the appellants right
to be informed of the nature and cause of
accusation violated?
Right to be present may be waived by:

1. A waiver pursuant to the stipulation set
forth in his bail;
2. Absence of the accused without justifiable
cause at the trial of which he had notice shall
be considered a waiver of his right to be
present thereat; and
3. If the accused jumps bail, such shall be an
automatic waiver of the right to be present
on all subsequent trial dates until custody
over him is regained [Sec. 1(c), Rule 115].
NOTE: The accused may be compelled to be present
despite waiver for purposes of identification, but if the
accused manifests in open court that he is indeed the
accused, such shall also be considered a waiver
thereof.
A: No. The Information filed was for the crimes of

illegal sale and illegal possession of regulated
drugs. Ephedrine has been classified as a
regulated drug; it is classified as the raw material
of shabu. Under Secs. 4 and 5, Rule 120 of the
Rules of Court, 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. At any rate, a
minor variance between the information and the
evidence does not alter the nature of the offense,
nor does it determine or qualify the crime or
penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for
acquittal(People v. Noque GR No. 175319,
January 15, 2010).
Effects of waiver of the right to appear by the

accused
1.
2.
3.
It is also a waiver to present evidence;

Prosecution can present evidence despite
the absence of the accused; and
The court can decide even without accuseds
evidence.
Q: As counsel of an accused charged with

homicide, you are convinced that he can be
utilized as a State witness. What procedure will
you take? Explain. (2006 Bar Question)
Instances when the presence of the accused is

mandatory in criminal proceedings
1.
2.
case, it may be pronounced in the presence

of his counsel or a representative (Sec.6,
Rule 120); and
When ordered by the court for purposes of
identification (Sec.1, Rule 115)
A: As counsel for the accused, I will advise my

client to ask for a reinvestigation and convince
the prosecutor for him to move for the discharge
of my client as a State witness or the accused can
During arraignment [Sec.1(b), Rule 116];

Promulgation of judgment except when the
conviction is for a light offense, in which
53

CRIMINAL PROCEDURE
apply as a State witness with the Department of

Justice pursuant to RA 6981, the Witness
Protection, Security and Benefit Act. The right to
prosecute vests the prosecutor with a wide range
of discretion, including what and whom to
charge.
It may be waived by the failure of the accused to

invoke the privilege after the incriminating
question is asked and before his answer.
Q: Does the right against self-incrimination
include the furnishing of a signature specimen?
Effect of the accused's refusal to testify

A: Yes. Writing is not a purely mechanical act for
it involves the application of intelligence and
attention. If such person is asked whether the
writing in a document is his or not, and he says it
is not, he is deemed to have waived his right. On
the other hand, if the accused simply refused to
answer the question inquiring about the
handwriting, no waiver of the right took place
(Beltran v. Samson G.R. No. 32025, September 23,
1929).
GR: The silence of the accused should not be used

against him.
XPNs:
1. When the prosecution has already
established a prima facie case, the accused
must present proof to overturn the
evidence; and
2. If the defense of the accused is alibi and he
does not testify, the inference is that the
alibi is not believable.
Confrontation
Scope of the right against self-incrimination
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 which must take
place in the court having jurisdiction to permit the
privilege of cross-examination. In addition, the
accused is entitled to have compulsory process
issued to secure the attendance of witness and
production of other evidence in his behalf [Sec. 1
(g), Rule 115].
GR: The right covers only testimonial compulsion

and not the compulsion to produce real and
physical evidence using the body of the accused
(Schmerber v. California, 384 US 757).
XPNs: Immunity statutes such as:
1. Forfeiture of illegally obtained wealth (RA
1379)
2. Bribery and graft cases (RA 749) (Herrera,
Vol. IV, p. 563, 2007 ed.).
NOTE: The main purpose of this right to confrontation

is to secure the opportunity of cross-examination and
the secondary purpose is to enable the judge to
observe the demeanor of witness.
NOTE: The right against self-incrimination is available

not only in criminal cases but also in government
proceedings, civil, and administrative proceedings
where there is a penal sanction involved.
Rule regarding the waiver of right to crossexamination
Purpose of the right against self-incrimination
The right is a personal one which may be waived

expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail himself
of it, he necessarily forfeits the right to crossexamine and the testimony given on direct
examination of the witness will be received or
allowed to remain in the record (Equitable PCI
Banking Corporation v. RCBC Capital Corporation,
The privilege is intended to prevent the State,

with all its coercive powers, from extracting from
the suspect testimony that may convict him and
to avoid a person subject to such compulsion to
perjure himself for his own protection (People v.
Bersonia, 422 SCRA 210).
Rule regarding waiver of right of the accused
against self-incrimination
54

CRIMINAL PROCEDURE
GR No. 182248, December 18, 2008; People v.

Abatayo, 433 SCRA 562).
NOTE: There is no violation of the right where the

delay is imputable to the accused.
Q: Does the right to confrontation cover

witnesses who did not appear or was not
presented at the trial?
Duty of the trial court, public or private

prosecutor, and the defense counsel to observe
time limits
A: No. The right to confrontation applies only to

witnesses who appear before the court; the
witness must be present for the right to
confrontation to attach. What is important is that
the accused is given the right to cross-examine
the witness presented (People v. Honrada, G.R.
Nos. 112178-79, Apr. 21, 1995).
NOTE: If a witness refuses to testify when he is

required, the Court should order the witness to give
bail or order his arrest, if necessary. Failure to obey a
subpoena amounts to contempt of court.
Compliance with the following time limits in the

prosecution of the case against a detained
accused is required:
1. The case of the accused shall be raffled and
referred to the trial court to which it is
assigned within 3 days from the filing of the
information;
2. The court shall arraign the accused within 10
days from the date of the raffle;
3. The court shall hold the pre-trial conference
within 30 days after arraignment or within 10
days if the accused is under preventive
detention; provided, however, that where
the direct testimonies of the witnesses are to
be presented through judicial affidavits, the
court shall give the prosecution not more
than 20 days from arraignment within which
to prepare and submit their judicial affidavits
in time for the pre-trial conference;
4. After the pre-trial conference, the court shall
set the trial of the case in the pre-trial order
not later than 30 days from the termination
of the pre-trial conference; and
5. The court shall terminate the regular trial
within one hundred 180 days, or the trial by
judicial affidavits within 60 days, reckoned
from the elate trial begins, minus the
excluded delays or postponements specified
in Rule 119 of the Rules of Court and the
Speedy Trial Act of 1998 (Sec. 8 A.M. No. 1211-2-SC).
Facts to be considered to determine whether the

right to speedy trial has been violated
Denial of right to speedy trial a ground for

dismissal
1. Length of the delay;

2. Reason for the delay;
3. The accuseds assertion or non-assertion of
the right; and
4. Prejudice to the accused resulting from the
delay (Ombudsman v. Jurado, G.R. No.
154155, August 6, 2008; Tan v. People, G.R.
No. 173637, April 21, 2009).
The case against the detained accused may be

dismissed on ground of denial of the right to
speedy trial in the event of failure to observe the
above time limits (Sec. 9 A.M. No. 12-11-2-SC).
Rule regarding the testimony of a witness who

dies or becomes unavailable
If the other party had the opportunity to crossexamine the witness before he died or became
unavailable, the testimony may be used as
evidence. However, if the other party did not
have the opportunity to cross-examine before the
death or unavailability of the witness, the
testimony will have no probative value.
Right to compulsory process
The accused may move for the issuance of
subpoena ad testificandum or subpoena duces
tecum in his behalf in order to compel the
attendance of witnesses and the production of
other evidence.
Service of subpoena and notices through

electronic mail or mobile phones
55

CRIMINAL PROCEDURE
Subpoena and notices may be served by the court

to parties and witnesses through electronic mails
(e-mail) or through mobile phone either through
phone calls or through short messaging service
(SMS) (Sec. 11 A.M. No. 12-ll-2-SC).
5. In cases of police officers whose testimonies

arc essential to the prosecution of the case,
service of the notice of hearing or subpoena
on them shall be made through the police
unit responsible for the arrest and
prosecution of the accused, copy furnished
the Personnel Department of the Philippine
National Police. It shall be the responsibility
of the head of that police unit to ensure the
transmission of the notice or subpoena to the
addressee. Service upon the police unit shall
be deemed service upon such police officers.
6. The court shall cause the service of a copy of
the order of provisional dismissal upon the
offended party in the manner provided above
(Sec. 12 A.M. No. 12-11-2-SC).
Ways of ascertaining proper service of notice of

hearing or subpoena
1. The public prosecutor shall, during inquest or
preliminary investigation, require the
complainant and his witnesses and, in proper
cases, the police officers who witnessed the
commission of the crime subject of the
investigation, to leave with him their postal
and e-mail addresses and mobile phone
numbers for use in summoning them when
they need to appear at the hearings of the
case.
2. When requesting the court to issue a
subpoena or subpoena duces tecum for their
witnesses, the parties shall provide the court
with the postal and e-mail addresses and
mobile phone numbers of such witnesses.
3. The service of notice of hearing or subpoena
at the postal address, e-mail address, or
through mobile phone number shall be
proved by any of the following:
a. An officer's return or affidavit of service
if done by personal service, or by
registry return card;
b. Printouts of sent e-mail and the
acknowledgment by the recipient;
c. Printouts of electronic messages
transmitted through the court's
equipment or device and the
Acknowledgment by the recipient; or
d. Reports of phone calls made by the
court.
4. The postal and e-mail addresses as well as the
mobile phone numbers supplied by the
parties and their witnesses incident to court
cases shall be regarded as part of the judicial
processes in those cases. Consequently, any
person who uses the same without proper
authority or for purposes other than sending
of court notices shall be deemed guilty of
indirect contempt and accordingly punished.
Establishment of Local Task Force Katarungan at

Kalayaan
1.
2.
3.
56
The Court shall establish a Task Force

Katarungan at Kalayaan in appropriate
places for the purpose of eliminating
unnecessary detention. It shall be chaired by
an RTC Judge, with a Metropolitan or
Municipal Trial Court Judge as vicechairman, both to be appointed for a term
of two years by the Executive Judge of the
place. The city or provincial prosecutor of
the place or his representative and the local
head of the Public Attorney's Office or his
representative shall be members of the Task
Force. The assistance of the local Bureau of
Jail Management and Penology and the
Office of the Provincial Governor may be
enlisted.
The Task Force shall track and keep a record
of the progress of the criminal cases of all
detained persons within their jurisdiction
and ensure that such persons are accorded
the rights and privileges provided by law, the
rules, and these guidelines.
Each court shall maintain a "Detainees
Notebook," that shall be supplied free by the
Office of the Court Administrator and shall
contain:
a.
The full name of the accused;
b.
The docket number and title of the
case
CRIMINAL PROCEDURE
c.
d.
e.
The kind of crime charged;

The date his detention began;
The date when his detention becomes
equal to the minimum of the
imposable penalty;
f.
The date when his detention becomes
equal to the maximum imposable
penalty;
g.
The date of arraignment; (viii) the date
of pre-trial hearing or conference;
h.
The first day of trial;
i.
The statutory last clay of trial if no
excluded delays or postponements arc
incurred;
j.
Sufficient space for entering the
progress of the hearing of the case;
and
k.
Such other data as may be essential to
the monitoring of his or her case. One
(1) copy of the notebook shall be
attached to the record of the case and
other copy kept by the jail warden
which copy shall be brought with the
accused at the bearing.
l.
The branch clerk of court shall update
the two copies of the notebook at
every hearing by stating what action
the court has taken in it, the next
scheduled hearing, and what action
the court will further take on the case.
4. The Task Force shall have access to all case
records and information relating to detained
persons and shall advise the judges hearing
their cases, when warranted, of the need for
them to act on any incident or situation that
adversely affects the rights of detained
persons or subject them to undue or harsh
treatment.
5. The Office of the Chief Justice shall exercise
direct supervision over all such Task Forces
(Sec. 15 A.M. No. 12-11-2-SC).
in rape cases, where the purpose of some persons

in attending is merely to ogle at the parties.
The judge may, motu proprio, exclude the public
from the courtroom if the evidence to be
produced during the trial is offensive to decency
or public morals. He may also, on motion of the
accused, exclude the public from the trial except
court personnel and the counsel of the parties
(Sec. 21, Rule 119).
Rule regarding trial by publicity
The right of the accused to a fair trial is not
incompatible with free press. Pervasive publicity
is not per se 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, G.R. Nos. 111206-08,
October 6, 1995).
Nature of the right to appeal
The right to appeal from a judgment of conviction
is fundamentally of statutory origin. It is not a
matter of absolute right independently of
constitutional or statutory provision allowing
such appeal.
Rule regarding waiver of right to appeal
GR: The right to appeal can be waived expressly
or impliedly.
XPN: Where the death penalty is imposed, such
right cannot be waived as the review of the
judgment by the CA is automatic and mandatory
pursuant to Administrative Circular No. 20-2005
which is an order directing regional trial courts to
directly forward to the CA records of criminal
cases which are subject of automatic review or
regular appeals.
Q: Is the rule that the trial should be public

absolute?
A: No. The court may bar the public in certain
cases, such as when the evidence to be presented
may be offensive to decency or public morals; or
RIGHTS OF PERSONS UNDER CUSTODIAL

INVESTIGATION
Custodial Investigation
57

CRIMINAL PROCEDURE
It is the questioning initiated by law enforcement

authorities after a person is taken into custody or
otherwise deprived of his freedom of action in
any significant manner. It is only after the
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 lend itself to eliciting
incriminating statements that the rule begins to
operate (Aquino v. Paiste, G.R. No. 147782, June
25, 2008).
report shall be null and void and of no

effect whatsoever.
Rights of persons under Custodial Investigation
1.
NOTE: Sec. 2(f) of RA 7438 expanded the meaning of

custodial investigation to include the practice of
issuing an invitation to a person who is investigated
in connection with an offense he is suspected to have
committed, without prejudice to the liability of the
inviting officer for any violation of law.
2.
3.
Period of the attachment of the rights of the

accused in custodial investigation
The rights begin to operate at once as soon as the
investigation ceases to be a general inquiry into
an unsolved crime and direction is then aimed
upon a particular suspect who has been taken
into custody and to whom the police would then
direct interrogatory question which tend to elicit
incriminating statements (People v. Jose Ting Lan
Uy, G.R. No. 157399, November 17, 2005). 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.
4.
5.
Requisites of a valid custodial investigation

report
6.
RA 7438 provides for the following requisites for

a valid custodial investigation report:
1.
The report shall be reduced to writing by
the investigating officer;
2.
If the person arrested or detained does not
know how to read or write, it shall be read
and adequately explained to him by his
counsel or by the assisting counsel in the
language or dialect known to such arrested
or detained person. This is to be done
before the report is signed. If this
procedure is not done, the investigation
58
The person arrested, detained, invited or

under custodial investigation must be
informed in a language known to and
understood by him of the reason for the
arrest and he must be shown the warrant
of arrest, if any; every other warnings,
information or communication must be in a
language known to and understood by said
person;
He must be warned that he has a right to
remain silent and that any statement he
makes may be used as evidence against
him;
He must be informed that he has the right
to be assisted at all times and have the
presence of an independent and
competent lawyer, preferably of his own
choice;
He must be informed that if he has no
lawyer or cannot afford the services of a
lawyer, one will be provided for him; and
that a lawyer may also be engaged by any
person in his behalf, or may be appointed
by the court upon petition of the person
arrested or one acting in his behalf;
That whether or not the person arrested
has a lawyer, he must be informed that no
custodial investigation in any form shall be
conducted except in the presence of his
counsel or after a valid waiver has been
made;
The person arrested must be informed
that, at any time, he has the right to
communicate or confer by the most
expedient means - telephone, radio, letter
or messenger - with his lawyer (either
retained or appointed), any member of his
immediate family, or any medical doctor,
priest or minister chosen by him or by any
one from his immediate family or by his
counsel, or be visited by/confer with duly
accredited national or international nongovernment organization. It shall be the

CRIMINAL PROCEDURE
7.
8.
9.
10.
11.
NOTE: The purpose of providing counsel to a person

under custodial investigation is to curb the uncivilized
practice of extracting a confession (People v. Duenas,
Jr. 426 SCRA 666).
responsibility of the officer to ensure that

this is accomplished;
He must be informed that he has the right
to waive any of said rights provided it is
made
voluntarily,
knowingly
and
intelligently and ensure that he understood
the same;
In addition, if the person arrested waives
his right to a lawyer, he must be informed
that it must be done in writing AND in the
presence of counsel, otherwise, he must be
warned that the waiver is void even if he
insist on his waiver and chooses to speak;
That the person arrested must be informed
that he may indicate in any manner at any
time or stage of the process that he does
not wish to be questioned with warning
that once he makes such indication, the
police may not interrogate him if the same
had not yet commenced, or the
interrogation must cease if it has already
begun;
The person arrested must be informed that
his initial waiver of his right to remain
silent, the right to counsel or any of his
rights does not bar him from invoking it at
any time during the process, regardless of
whether he may have answered some
questions
or
volunteered
some
statements;
He must also be informed that any
statement or evidence, as the case may be,
obtained in violation of any of the
foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be
inadmissible in evidence (People v.
Mahinay, G.R. No. 122485, February 1,
1999).
Distinction between the right to counsel during

trial and right to counsel during custodial
investigation
Right to counsel during trial means the right of
the accused to an effective counsel. Counsel is
not to prevent the accused from confessing but
to defend the accused.
On the other hand, right to counsel during
custodial investigation requires the presence of
competent and independent counsel who is
preferably the choice of the accused. The reason
for such right is that in custodial investigation,
there is a danger that confessions can be exacted
against the will of the accused since it is not done
in public.
Rule regarding waiver of right to counsel during
trial
It can be waived when the accused voluntarily
submits himself to the jurisdiction of the court
and proceeds with his defense. 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. The
defendant cannot raise the question of his right
to have an attorney for the first time on appeal.
This right may be waived but to insure that the
waiver is voluntary and intelligent, the waiver
must be in writing and in the presence of the
counsel of the accused (People v. Del Castillo, 439
SCRA 601). The right to a competent and
independent counsel is one of the rights of the
accused guaranteed under Sec. 12(1) of Art. III of
the Philippine Constitution.
Importance of the right to counsel in custodial

investigation
The importance of the right to counsel is so vital
that under existing law, in the absence of any
lawyer, no custodial investigation shall be
conducted and the suspected person can only be
detained by the investigating officer in
accordance with the provisions of Art. 125 of the
RPC [Sec. 3(c), RA 7438].
Accused to defend himself without the aid of a

counsel
Only when it sufficiently appears that he can
properly protect his right without the assistance
of counsel [Sec. 1(c), Rule 115].
59

CRIMINAL PROCEDURE
Q: Is the statement signed by the accused

admissible if during the investigation, the
assisting lawyer leaves, or comes and goes?
3.
A: No. It is 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 (People v. Morial, G.R.
No. 129295, August 15, 2001).
In the presence of any of the parents, elder

brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor, or priest or
minister of the gospel as chosen by him[Sec.
2(d), RA 7438].
Q: Two suspects during police investigation

orally waived their right to remain silent and to
counsel. They freely answered under oath the
questions asked by the police desk officer. They
later signed their sworn statements before the
police captain who is also a lawyer. They both
admitted their guilt. In due course, proper
charges were filed by the City Prosecutor against
both arrestees before the MM RTC. May the
written statements signed and sworn by them
be admitted by the trial court as evidence for the
prosecution? (2004 Bar Question)
NOTE: The right to counsel covers the period

beginning from custodial investigation until rendition
of judgment and even on appeal (People v. Serzo, Jr.,
G.R. No. 118435, June 20, 1997).
Q: An affidavit was made by the accused without

the presence of counsel during preliminary
investigation, admitting the commission of a
crime. When presented during trial as evidence,
the accused objected claiming that there was a
violation of his right to a competent and
independent counsel. Is the accused correct?
A: No. It will not be admitted in evidence because

they were not assisted by counsel. Even if the
police captain before whom they signed the
statements was a lawyer, he cannot be
considered as an independent counsel. Waiver of
the right to a lawyer must be done in writing and
in the presence of an independent and
competent counsel.
A: No. The constitutional right to a competent

and independent counsel exists only in custodial
interrogations, or in-custody interrogation of
accused persons. A preliminary investigation is an
inquiry or a proceeding to determine whether
there is 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. Evidently, a person
undergoing preliminary investigation before the
public prosecutor cannot be considered as being
under custodial investigation (People v. Ayson,
G.R. No. L-28508-9, July 7, 1989).
ARRAIGNMENT AND PLEA

RULE 116
ARRAIGNMENT
Arraignment
It is the formal mode of implementing the
constitutional right of the accused to be informed
of the nature of the accusation against him
(People v. Pangilinan, 518 SCRA 358, March 14,
2007).
Requisites for the validity of an extrajudicial

confession made by a person arrested, detained
or under custodial investigation
For an extrajudicial confession to be valid the
following requisites must concur:
1. It shall be in writing and signed by the
person arrested, detained or under custodial
investigation;
2. It must be signed in the presence of his
counsel or in the latters absence, upon a
valid waiver and;
Arraignment is the proceeding in a criminal case,

whose object is to fix the identity of the accused,
to inform him of the charge and to give him an
opportunity to plead, or to obtain from the
accused his answer, in other words, his plea to
the information.
60

CRIMINAL PROCEDURE
When made
XPNs:
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.
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 ie., 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.
GR: Arraignment must be made before start of

the trial or before the prosecution
presents its case.
XPN: Arraignment which was made after the
prosecution rested its case was considered
a non-prejudicial error under the following:
1.
Counsel of the accused failed to object lack
of arraignment during trial
2.
Counsel of the accused had full opportunity
to cross-examine witnesses (People of the
Philippines vs. Atienza, G.R. No. L-3001,
June 17, 1950; People of the Philippines vs.
Cabale, G.R. Nos. 73249-50, May 8, 1990).
NOTE: The purpose of arraignment is, thus, to apprise
the accused of the possible loss of freedom, even of
his life, depending on the nature of the crime imputed
to him, or at the very least to inform him of why the
prosecuting arm of the State is mobilized against him
(Borja v. Mendoza, 77 SCRA 422).
Presence of the accused during arraignment
Procedure of arraignment
1.
2.
3.
2.
3.
4.
The accused must be present at the arraignment

and personally enter his plea [Section 1(b), Rule
116].
It must be in open court where the

complaint or information has been filed or
assigned for trial;
By the judge or clerk of court;
By furnishing the accused with a copy of the
complaint or information;
Reading it in a language or dialect known to
the accused(People v. Albert 251 SCRA 136);
Asking accused whether he pleads guilty or
not guilty [Sec.1(a), Rule 116];
Both arraignment and plea shall be made of
record but failure to enter of record shall not
affect the validity of the proceedings.[Sec.
1(b), Rule 116]
NOTE: Both arraignment and plea shall be made in

record but failure to do so shall not affect the validity
of the proceedings [Sec. 1(b), Rule 116].
Presence of
arraignment
the
offended
party
during
The private offended party shall be required to

appear in the arraignment for the following
purposes:
1. Plea bargaining;
2. Determination of civil liability; and
3. Other matters requiring his presence [Sec.
1(f), Rule 116].
NOTE: The accused must be arraigned before the court

where the complaint or information was filed or
assigned for trial [Sec. 1(a)]
NOTE: In case the offended party fails to appear

despite due notice, the court may allow the accused to
enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone [Section 1(f),
Rule 116].
Period of arraignment
GR: Arraignment shall be made within 30 days
from the date the court acquires jurisdiction over
the person of the accused [Sec. 1(g), Rule 116].
61

CRIMINAL PROCEDURE
Different rules on arraignment
Duties of a counsel de officio when the accused

is imprisoned
1. Trial in absentia may be conducted only after

valid arraignment.
2. Accused must personally appear during
arraignment and enter his plea (counsel
cannot enter plea for accused)
3. Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
1.
2.
GR: Judgment is void if accused has not been

validly arraigned.
XPN: If accused went into trial without being
arraigned, subsequent arraignment will cure
the error provided that the accused was able
to present evidence and cross examine the
witnesses of the prosecution during trial.
3.
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 to demand
trial.
Upon receipt of the notice, the person
having custody of the prisoner shall
promptly advise the prisoner of the charge
and of his right to demand trial. If at any time
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.
Upon receipt of such notice, the public
attorney shall promptly seek to obtain the
presence of the prisoner for trial.
Right to counsel de officio

NOTE: Public Attorneys referred to in this section
are those attorneys of the Public Attorneys
Office of the Department of Justice who are
assisting accused who are 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 officio by
the court.
A: No. While the right to be represented by

counsel is immutable, his option to secure the
services of counsel de parte, however, is not. The
court may restrict the accuseds option to retain
a counsel de parte if the accused insists on an
attorney he cannot afford, or chooses a counsel
who is not a member of the bar, or when the
attorney declines to represent the accused for a
valid reason, such as conflict of interests (People
v. Servo, G.R. No. 119217, January 19, 2000).
4.
Persons allowed to be appointed as counsel de

officio
1. Members of the bar with good standing;
2. Has the ability, experience and competence
to defend the accused; and
3. In localities where such members of the bar
are not available, the court may appoint any
person who is a resident of such province
with good repute for probity and ability, to
defend the accused (Sec. 7, Rule 116).
When the person having custody of the

prisoner receives from the attorney a
properly supported request for the
availability of the prisoner for purposes of
the trial, the prisoner shall be made
available accordingly(Sec. 7, Rule 119).
Grounds for suspension of arraignment

Upon motion by the proper party on the following
grounds:
1. The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently
thereto;
2. There exists a valid prejudicial question;
3. A petition for review of the resolution of the
prosecutor is pending at the Department of
NOTE: Whenever a counsel de officio is appointed by

the court, he shall be given reasonable time to consult
with the accused as to his plea before proceeding with
arraignment (Sec. 8, Rule 116).
62

CRIMINAL PROCEDURE
4.
Justice or the Office of the President (Sec.

11, Rule 116), provided that the period of
suspension shall not exceed 60 days counted
from the filing of the petition;
There are pending incidents such as:
a. Motion to Quash
b. Motion for Inhibition
c. Motion for Bill of Particulars
5.
6.
Q: Fredo was charged with murder attended by

treachery and evident premeditation. During
arraignment, Fredo, assisted by counsel,
pleaded guilty with qualification hindi ko
sinadya patayin. His counsel assured the court
that he fully apprised Fredo of the information,
the nature of the charge, and the consequences
of his plea. Fredo even waived the prosecutions
presentation of evidence against him. The court
convicted him of murder. Was the plea of guilty
entered valid? (1996 Bar Examination)
NOTE: The period of suspension shall not exceed sixty

(60) days counted from the filing of the petition with
the reviewing office (Sec. 11, Rule 116).
PLEA-BARGAINING
Plea
It pertains to the matter which the accused, on his
arraignment, alleges in answer to the charge
against him.
A: No. The plea of guilty by Fredo with the

qualification Hindi ko sinadya patayin was a
conditional plea of guilty and hence a plea of not
guilty should be entered for him [Sec. 1(c) of Rule
116]. Also, when the accused pleads guilty to a
capital offense, the court shall conduct a
searching inquiry into the voluntariness and full
comprehension of the consequences of his plea.
The court should not rely on the assurance of the
counsel of the accused for this purpose (Sec. 3,
Rule 116).
Plea Bargaining
Plea bargaining in criminal cases is a process
whereby the accused and the prosecution work a
mutually satisfactory disposition of the case
subject to court approval. It usually involves the
defendants pleading guilty to a lesser offense or
to only one or some of the counts of a multicount indictment in return for a lighter sentence
than that for the graver charge (Daan v.
Sandiganbayan GR No. 163972-77, March 28,
2008).
Q: May the accused enter a plea of guilty to a

lower offense?
A: Yes.
1. During arraignment
a. If the offended party is present, the
latter must consent with the prosecutor
to the plea; and
b. That the lesser offense is necessarily
included in the offense charged.
NOTE: It is to be noted that the decision to accept or

reject a plea bargaining agreement is within the sound
discretion of the court subject to certain requirements
of statutes or rules (Amante-Descallar v. Judge Ramas
582 SCRA 22).
Instances when a plea of NOT guilty is entered

1.
2.
3.
4.
Where after a plea of guilty but presents

exculpatory circumstances, his plea shall be
deemed withdrawn and a plea of not guilty
shall be entered for him [Sec. 1(d)];
When the plea is indefinite or ambiguous.
2. After arraignment but before trial provided

the following requisites are present:
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the
withdrawal of the previous guilty plea
shall be made before trial;
c. The lesser offense is necessarily
included in the offense charged; and
When the accused so pleaded;

When he refuses to plead [Sec. 1(c)];
Where in admitting the act charged he sets
up matters of defense or with lawful
justification;
When he enters a conditional plea of guilty
[Sec. 1(c)];
63

CRIMINAL PROCEDURE
d.
The plea must have the consent of the

prosecutor and the offended party (Sec.
2, Rule 116).
included in the offense charged (Sec. 2, Rule 116).

Estafa involving Php5, 000.00 is not necessarily
included in theft of an article worth
Php15,000.00.
NOTE: No amendment of complaint or

information is necessary (Sec. 2). A conviction
under this plea shall be equivalent to a conviction
of the offense charged for purposes of double
jeopardy (People v. Magat, GR No. 130026, May
31, 2000).
PLEA OF GUILTY BY ACCUSED

Plea of guilty
A judicial confession of guilt (People v,
Comendador, GR No. L-38000, September 19,
1980).It is an unconditional plea of guilt which
admits of the crime and all the attendant
circumstances alleged in the information
including the allegations of conspiracy and
warrants judgment of conviction without need of
further evidence.
3. After prosecution rests Allowed only when

the prosecution does not have sufficient
evidence to establish guilt for the crime
charged.
Q: Luis was charged with homicide. Upon
arraignment, however, the parties, with the
acquiescence of the Public Prosecutor and the
consent of the offended party, entered into plea
bargaining where it was agreed that the accused
would plead guilty to the lesser offense of
attempted homicide instead of consummated
homicide as originally charged in the
information. Consequently, Judge Berde found
Luis guilty beyond reasonable doubt of the
lesser crime of attempted homicide in
accordance with the plea bargaining agreement.
Is Judge Berde correct?
Effect of a plea of guilty

GR: A plea of guilty admits the truth of all material
facts alleged in the information, including all the
aggravating circumstance mentioned therein
(People v. Koloh Pohong, GR No. L-32332, August
15, 1973).
XPNs:
1. Where the plea of guilt was compelled by
violence or intimidation;
2. When the accused did not fully understand the
meaning and consequences of his plea;
3. Where the information is insufficient to
sustain conviction of the offense charged;
4. Where the information does not charge an
offense, any conviction thereunder being void;
5. Where the court has no jurisdiction.
A: No. One accused of homicide cannot be

allowed to plead guilty to attempted or frustrated
homicide, although the lesser offense is
necessarily included in the offense charged. The
reason is that the crime of homicide as defined in
Art. 249 of the RPC necessarily produces death;
attempted homicide does not (Amatan v. Aujero,
A.M. No. RTJ-93-956, September 27, 1995).
XPN to the XPN: If what the accused would prove

is an exempting circumstance, it would amount to
a withdrawal of his plea of not guilty.
Q: D was charged with theft of an article worth

Php15,000.00. Upon being arraigned he pleaded
not guilty to the offense charged. Thereafter,
before trial commenced, he asked the court to
allow him to change his plea of not guilty to a
plea of guilty but only to estafa involving P5,
000.00. Can the court allow D to change his plea?
Why? (2002 Bar Examination)
NOTE: For non-capital offenses, the reception of

evidence is merely discretionary on the part of the
court (Sec. 4,Rule 116). If the information or complaint
is sufficient for the judge to render judgment on a noncapital 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 in which case, the accused may present
evidence in his behalf and the court shall conduct a
A: No. A plea of guilty to a lesser offense may be

allowed if the lesser offense is necessarily
64

CRIMINAL PROCEDURE
searching inquiry into the voluntariness and full

comprehension of the consequences of his plea (Sec.
3, Rule 116).
A plea of guilty entered by one who is fully aware

of the direct consequences, including the actual
value of any commitments made to him by court,
the prosecutor or his own counsel must stand.
WHEN ACCUSED PLEADS TO A CAPITAL

OFFENSE
NOTE: It is only when the consensual character of the

plea is called into question that the validity of a guilty
plea may be impaired.
Duty of the court after the accused pleads guilty

to a capital offense
SEARCHING INQUIRY
When the accused pleads guilty to a capital
offense, the court shall:
1. Conduct a searching inquiry into the:
1. Voluntariness of the plea, and
2. Full
comprehension
of
the
consequences of the plea;
2. Require the prosecution to prove guilt and
the precise degree of his culpability;
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so
if he desires. However, the defendant after
pleading guilty may not present evidence as
would exonerate him completely from
criminal liability such as proof of selfdefense.
Searching Inquiry
In conducting a searching inquiry, the following
must be present:
1. The trial judge must satisfy himself that the
accused has pleaded guilty out of his
voluntary will;
2. That the accused is truly guilty;
3. Based on the accuseds testimony, there
exists a rational basis for a finding of guilt
(People vs. Dayot, G.R. No. 88281, July 20,
1990).
NOTE: It is more than a merely informing the accused
the fact of facing a jail sentence but also of length of
imprisonment under the law and the certainty of
serving sentence at a national penitentiary or penal
colony. Furthermore, the accused must not be under
the misconception that a plea of guilty carries with it a
more lenient treatment from the judge (People of the
Philippines vs. Dayot, G.R. No. 88281, July 20, 1990).
NOTE: This procedure is mandatory, and a judge who

fails to observe it commits grave abuse of discretion.
The reason for this strictness is to assure that the State
makes no mistake in taking life except the life of the
guilty (People v. Diaz, 254 SCRA 735).
Purpose of the presentation of evidence after

the plea of guilty
Purpose of searching inquiry

To determine whether the plea of guilty was
made voluntarily and whether the accused
understood fully the consequence of his plea.
To preclude any room for reasonable doubt in the

mind of either the trial court or of the Supreme
Court, on review, as to the possibility that there
might have been misunderstanding on the part of
the accused as to the nature of the charges to
which he pleaded guilty; and to ascertain the
circumstances attendant to the commission of
the crime which justify or require the exercise of
greater or lesser degree of severity in the
imposition of prescribed penalties (People v.
Basa, 51 SCRA 317).
Duty of the judge to conduct a searching inquiry

In all cases, the judge must convince himself that:
1. The accused is entering the plea voluntarily
and intelligently;
2. There exists a rational basis for finding of
guilt based on accuseds testimony
3. Inform the accused of the exact length of
imprisonment and the certainty that he will
serve it in a national penitentiary
No collateral attack on plea of guilty
65

CRIMINAL PROCEDURE
NOTE: The case of People v. Pastor (379 SCRA 181)

provided the following as guidelines on how judges
must conduct a searching inquiry:
1.
Ascertain from the accused himself (a) how he
was brought into custody of the law; (b) whether
he had the assistance of a competent counsel
during the custodial and preliminary
investigations; and (c) under what conditions he
was detained and interrogated during the
investigations;
2.
Ask the defense counsel a series of questions as
to whether he had conferred with, and
completely explained to, the accused the
meaning and consequences of a plea of guilty;
3.
Elicit information about the personality profile of
the accused;
4.
Inform the accused of the exact length of
imprisonment or nature of the penalty under the
law and the certainty that he will serve such
sentence;
5.
Inquire if the accused knows the crime with
which he is charged and fully explain to him the
elements of the crime;
6.
All questions posed to the accused should be in a
language known and understood by the latter;
7.
The trial judge must satisfy himself that the
accused is truly guilty.
2. Suppose Crisanto with the assistance of

counsel waives the presentation of evidence
by the prosecution saying that, after all, he
has already entered his plea, may the court
insist on the presentation of the evidence
for the prosecution? Explain.
3. Suppose upon plea bargaining Crisanto
decides to plead guilty to the lesser offense
of homicide, may the court still require
presentation of evidence? Explain.
4. After the information was read to Crisanto
upon arraignment and he pleaded guilty to
the charge but the facts did not sufficiently
constitute an offense, did his plea of guilt
which has already been entered in the
records, have the effect of supplying what
was not alleged in the information to
complete the elements of the offense to
justify his conviction? Explain (1995 Bar
Examination).
A:
1. The judge erred in pronouncing sentence on
the accused without previously conducting a
searching inquiry into the voluntariness and
full comprehension of the consequences of
the plea of guilty and requiring the
prosecution to prove the guilt and the precise
degree of culpability (Sec. 3, Rule 116).
2. Yes, in accordance with Sec. 3, Rule 116
3. Although Crisanto pleads guilty to a noncapital offense the court may still require
evidence to determine the penalty to be
imposed (Sec. 4, Rule 116).
4. No, his plea of guilty did not have the effect
of supplying what was not alleged in the
information to complete the elements of the
offense to justify his conviction. His plea
merely admits the truth of the facts alleged in
the information.
Q: Crisanto is charged with murder. At his

arraignment the prosecution witnesses
appeared in court together with the heirs of the
victim. Realizing the gravity of the offense and
the number of witnesses against him Crisanto
consulted his counsel de officio who explained to
him the nature of the charge and the
consequences of his plea. Crisanto then
manifested his readiness for arraignment. The
information was read to him in a language he
clearly understood after which he pleaded
guilty. To be sure, the judge forthwith asked him
if he indeed fully understood the implications of
his plea and Crisanto readily and without
hesitation answered in the affirmative. The
judge, fully convinced that the plea of the
accused was made with the latters full
knowledge of the meaning and consequences of
his plea, then pronounced sentence on the
accused.
Q: Charged with the crime of murder before the

RTC of Bulacan, the accused, assisted by counsel,
pleaded guilty to the charge. Thereupon, the
trial court rendered judgment convicting the
accused for the crime of murder and sentencing
him to suffer reclusion perpetua and to pay civil
indemnity to the heirs of the victim. Did the trial
court act properly? Why?
1. Comment on the action of the judge.

Explain.
66

CRIMINAL PROCEDURE
A: No. Sec. 3, Rule 116 applies not only to those

cases in which death penalty is imposed but
covers also cases in which reclusion perpetua is
imposed. Thus, the requirement under Sec. 3 of
Rule 116 must be complied with.
2.
3.
4.
5.
The accused did not fully understand the

meaning and consequences of his plea;
Insufficient
information
to
sustain
conviction of the offense charged;
Information does not charge an offense; or
Court has no jurisdiction.
WHEN ACCUSED PLEADS TO A LESSER OFFENSE

Period to withdraw an improvident plea
When accused may enter plea of guilty to a
lesser offense
The court may permit an improvident plea of

guilty to be withdrawn, at any time before the
judgment of conviction becomes final, and be
substituted by a plea of not guilty.
An accused may enter a plea of guilty to a lesser

offense provided that there is consent of the
offended party and prosecutor to the plea of
guilty to a lesser offense which is necessarily
included in the offense charged.
NOTE: The withdrawal of a plea of guilty is not a matter

of right to the accused but addressed to the sound
discretion to the trial court (Sec. 5, Rule 116).
Effect of plea of guilty without consent of

offended party and prosecutor
Effect of withdrawal of improvident plea

The court shall set aside the judgment of
conviction and re-open the case for new trial.
If accused was convicted, the accuseds

subsequent conviction of the crime charged
would not place him in double jeopardy [Sec. 7(c),
Rule 117].
MOTION TO QUASH
RULE 117
Period to enter pleas of guilty to a lesser offense
Motion to Quash
GR: Plea-bargaining is made during pre-trial stage

of criminal proceedings.
It is a special pleading filed by the defendant

before entering his plea, which hypothetically
admits the truth of the facts spelled out in the
complaint or information at the same time that it
sets up a matter which, if duly proved, would
preclude further proceedings.
XPN: The law still allows accused to change his

plea thereafter provided that the prosecution
does not have sufficient evidence to establish
guilt of the crime charged (People vs. Valderama,
G.R. No. 99287, June 23, 1992).
Period to file a motion to quash an information

or complaint
IMPROVIDENT PLEA
GR: At any time before entering his plea, the

accused may move to quash the
information or complaint (Sec. 1, Rule
117).
Improvident plea
It is a plea without information as to all the
circumstances affecting it. It is based upon a
mistaken assumption or misleading information
or advice.
XPN: Instances where a motion to quash may be

filed AFTER plea:
1. The facts charged do not constitute an
offense
2. Lack of jurisdiction over the offense charged
3. The criminal action or liability has been
extinguished
Instances of improvident plea

1.
Plea of guilty was compelled by violence or

intimidation;
67

CRIMINAL PROCEDURE
4. Double Jeopardy (Sec. 9, Rule 117)
6. That more than one offense is charged except

when a single punishment for various offense
is prescribed by law;
7. That the criminal action or liability has been
extinguished;
8. That it contains various averments which if
true would constitute legal excuse or
justification;
9. That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent (double jeopardy) (Sec. 3,
Rule 117).
Who may initiate motion to quash

The right to file a motion to quash belongs only to
the accused. The court is not authorized to motu
proprio initiate a motion to quash by issuing an
order requiring an explanation why the
information should not be quashed. The court,
though, has the discretion to dismiss the case if
the information is not sufficient or on any ground
provided by law, or to dismiss the information for
a different one.
Purpose of motion to quash
NOTE: The enumeration is exclusive.
The designated purpose of a motion to quash is

to assail the validity of the criminal information
for defects or defenses apparent on the face of
the information (Galzole y Soriaga v. Briones and
People, G.R. No. 164682, September 14, 2001).
Form and contents to motion to quash
1. In writing;
2. Signed by the accused or his counsel; and
3. Specify distinctly the factual and legal
grounds on which it is based (Sec. 2, Rule
117).
NOTE: The court shall not consider any other ground
other than those specifically stated in the motion to
quash except lack of jurisdiction over the offense
charged and when the information does not charge an
offense (Sec. 2, Rule 117).
GROUNDS
Grounds for a motion to quash the complaint or
information
1. That the facts charged do not constitute an
offense;
2. That the court trying the case has no
jurisdiction over the offense charged;
3. That the court has no jurisdiction over the
person of the accused;
4. That the officer who filed the information had
no authority to do so;
5. That the information does not conform
substantially to the prescribed form;
68

GROUNDS FOR MOTION TO QUASH
CRIMINAL
PROCEDURE
1. The facts charged do not constitute
an
offense
It is fundamental that the complaint or
information must state every fact necessary to
make out an offense for the Constitution
guarantees that in all criminal prosecutions
the accused should be informed of the nature
and cause of the accusation against him[Sec.
14 (2) Art. III, 1987 Constitution].
It is required that the acts or omissions
complained of as constituting the offense
must be stated in ordinary and concise
language so as to enable a person of common
understanding to know what offense is
intended to be charged, and to enable the
court to pronounce judgment(Sec. 9, Rule
110).
2. Jurisdiction over the offense charged
If the trial court has no jurisdiction, but the
case was tried and decided upon the theory
that it had jurisdiction, the parties are not
barred, on appeal, from assailing such
jurisdiction, for the same must exist as a
matter of law, and may not be conferred by
consent of the parties or by estoppel.
3. Jurisdiction over the territory
In criminal proceedings, no one should be held
to answer for any crime committed by him
except in the jurisdiction where it was
committed.
4. Jurisdiction over the person of the
accused
Jurisdiction over the person is that acquired by
the voluntary appearance of a party in court
and his submission to its authority, or by the
coercive power of legal process exerted over
the person through an arrest. Unlike
jurisdiction over the subject matter and
territory, jurisdiction over the person of the
accused may be waived, either expressly or by
implication.
Test of the courts jurisdiction
GR: What determines the jurisdiction of the
court in criminal cases is the extent of the
penalty which the law imposes on the
misdemeanor, crime or violation of law
charged.
69

proceedings terminate without the accused

being convicted or acquitted, or are
CRIMINAL
PROCEDURE
unjustifiably stopped for any reason
not
imputable to him. The term of prescription
does not run when the offender is absent from
the Philippines (Art. 91, RPC).
Prescription of the penalty
The loss of right to demand the service of the
penalty imposed.
Rule on the period of prescription of
penalties
The period of penalties commences to run
from the date when the culprit should evade
the service of his sentence and is interrupted
if the defendant should give himself up, be
captured, should go to some foreign country
with which the Philippines has no extradition
treaty, or should commit another crime
before the expiration of the period of
prescription (Art 93, RPC); (People vs.
Pontillas,65 Phil. 658).
Nolle Prosequi
It is a Latin term for we shall no longer
prosecute. It 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 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. Thus, it can be refiled (Galvez v. CA,
G.R. No. 120715, March 29, 1996).
NOTE: Nolle prosequi is not the same as quashal,
although both have the same result the dismissal
of the case. A nolle prosequi is initiated by the
prosecutor while a quashal is upon motion to
quash filed by the accused.
Q: When a criminal case is dismissed on nolle

prosequi, can it later be refiled? (2003 Bar
Examination)
A: As a general rule, when a criminal case is
dismissed on nolle prosequi before the
accused is place on trial and before he is called
on to plead, this is not equivalent to an
acquittal and does not bar a subsequent
prosecution for the same offense(Galvez v.
70

CRIMINAL PROCEDURE
b.
DISTINGUISHED FROM DEMURRER TO
EVIDENCE
MOTION TO
QUASH
Filed before the
defendant enters
his plea.
Does not go into
the merits of the
case
but
is
anchored
on
matters not directly
related to the
question of guilt or
innocence of the
accused.
Governed by Rule
117 of the Rules of
Court.
Does not require a
prior leave of court.
DEMURRER TO
EVIDENCE
Filed
after
the
prosecution
has
rested its case.
Based upon the
inadequacy of the
evidence adduced
by the prosecution
in support of the
accusation.
4.
5.
Governed by Rule
119 of the Rules of
Court.
May be filed by the
accused either with
leave or without
leave of court.
EFFECTS OF SUSTAINING THE MOTION TO

QUASH
Effects of granting a motion to quash
1.
2.
3.
If the court sustains the motion, the accused

remains in custody if, at the time, he is under
detention, unless he is admitted to bail.
If no order to that effect is made, or if so
made, no information is filed within the time
specified in the order or within such further
time allowed upon showing a good cause,
the accused must be set free, unless he is
also under custody by reason of some other
charge.
If the motion to quash is sustained upon any
of the following grounds, the court must
state, in its order granting the motion, the
release of the accused if he is in custody, or
the cancellation of his bond if he is out on
bail:
a. That a criminal action or liability has
been extinguished;
That it contains averments which, if

true, would constitute a legal excuse or
justification; or
c. That the accused has been previously
convicted or acquitted of the offense
charged.
If the ground upon which the motion to
quash was sustained is that the court has no
jurisdiction over the offense, the better
practice is for the court to remand or
forward the case to the proper court, not to
quash the complaint or information.
If the ground of the motion is either:
a. That the facts charged do not
constitute an offense;
b. That the officer who filed the
information had no authority to do so;
or;
c. That it does not conform substantially
to the prescribed form; or
d. That more than one offense is
chargedthen the court should order the
prosecution to file another information
or an amendment thereof, as the case
may be, with a definite period, the
order further stating that in case of
failure to comply therewith, the
accused if he is in custody shall be
discharged, or his bond cancelled if he
is bonded [M. Paramaran, Revised Rule
on Criminal Procedures Annotated,
447-448 (2010)].
Q: Is the order denying the motion to quash

appealable?
A: GR:No. It is interlocutory and not appealable.
Certiorari and prohibition are not the correct
remedies against an order denying a motion to
quash. The defendant should instead go to trial
and raise the special defense he had invoked in
his motion. And if after trial on the merits, an
adverse decision is rendered, remedy is to appeal
in the manner authorized by law (Bulaong v. CA,
G.R. No. 78555, January 30, 1990).
XPNs:
1. The act has ceased to be an offense;
71

CRIMINAL PROCEDURE
2. When intervention by higher court is

required for the orderly administration of
justice or in the interest of both the accused
and the public;
3. It is unfair and unjust to make the accused go
to trial;
4. When the circumstances warrant that
technicalities of procedure should be set
aside;
5. If the court denying the motion to quash
acted without or in excess of jurisdiction or
with grave abuse of discretion.
sound discretion of the court(Crespo v. Mogul,

151 SCRA 462).
Q: Bimby is charged with illegal possession of
firearms under an Information signed by the
Provincial Prosecutor. After arraignment but
before pre-trial, he found out that the Provincial
Prosecutor had no authority to sign and file the
Information as it was the City Prosecutor who
has such authority. During the pre-trial, Bimby
moves that the case against him be dismissed on
the ground that the information is defective
because the officer signing it lacked the
authority to do so.The Provincial Prosecutor
opposes the motion on the ground of estoppel
as Bimby did not move to quash the Information
before arraignment. If you are the counsel for
Bimby, what is your argument to refute the
opposition of the Provincial Prosecutor? (2000
Bar Question)
Procedure when the motion to quash is denied

1. The 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.
A: I would argue that since the Provincial

Prosecutor had no authority to file the
information, the court did not acquire jurisdiction
over the person of the accused and over the
subject matter of the offense charged. Hence,
this ground is not waived if not raised in a motion
to quash and could be raised at the pre-trial
(People v. Hon. Zeida Aurora Garfin, G.R. No.
153176, March 29, 2004).
Q: After the requisite proceedings, the Provincial

Prosecutor filed and Information for homicide
against Peter. The latter however, timely filed a
Petition for Review of the Resolution of the
Provincial Prosecutor with the Secretary of
Justice who, in due time, issued a Resolution
reversing the resolution of the Provincial
Prosecutor and directing him to withdraw the
Information. Before the Provincial Prosecutor
could comply with the directive of the Secretary
of Justice, the court issued a warrant of arrest
against Peter. The Public Prosecutor filed a
Motion to Quash the Warrant of Arrest and to
withdraw the Information, attaching to it the
Resolution of the Secretary of Justice. The court
denied the motion. Was there a legal basis for
the court to deny the motion?(2002 Bar
Question)
Q: Chato is charged with the murder of Velay.

Before arraignment, you, as counsel de officio of
Chato, discovered that the information failed to
allege any qualifying circumstances.
1. How may you properly object the
insufficiency of the information, and on
what ground?
2. May you still avail of that remedy after
Chato has entered her plea?
3. What course or courses of action may
the court take if it sustains the remedy
you seek? (1994 Bar Question)
A: Yes. There is a legal basis for the court to deny

the motion to quash the warrant of arrest and to
withdraw the information. The court is not bound
by the Resolution of the Secretary of Justice. This
is because once an information is filed in court,
any disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the
A:
1. As counsel de officio for the accused, I can file
a motion to quash based on the ground that
the facts charged do not constitute the crime
72

CRIMINAL PROCEDURE
of murder there being no qualifying

circumstances alleged [Sec. 3 (a) Rule 117].
2. After Chato has entered her plea, she may
still move to quash because she is not
deemed to have waived such objection (Sec.
9, Rule 117).
3. If the court sustains the motion to quash, the
court may order that another information be
filed. If the accused is in custody, he shall
remain so unless he shall be admitted to bail.
If the information is not filed within the time
specified, or within the time specified in the
order, or within such further time as the court
may allow for good cause shown, the
accused, if in custody, shall be discharged
therefrom unless he is also in custody on
some other charge (Sec. 5, Rule 117).
The purpose is to set the effects of the first

prosecution forever at rest, assuring the accused
that he shall not thereafter be subjected to the
danger and anxiety of a second charge against
him for the same offense (Caes v. Intermediate
Appellate Court, 179 SCRA 54). It protects the
accused not against the peril of second
punishment but against being tried again.
Kinds of double jeopardy
1. No person shall be put twice in jeopardy for
the same offense.
2. When the act punished by a law and an
ordinance, conviction or acquittal under
either shall be a bar to another prosecution
for the same act (Sec. 21, Art. III. 1987
Constitution).
EXCEPTION TO THE RULE THAT SUSTAINING

THE MOTION TO QUASH IS NOT A BAR TO
ANOTHER PROSECUTION
Requirements for the attachment of the first

jeopardy
GR: An order sustaining the motion to quash is

not a bar to another prosecution for the
same offense.
1.
2.
3.
4.
XPNs:
1. Double jeopardy; or
2. Criminal liability is extinguished (Sec. 6, Rule
117).
Competent Court
Valid jurisdiction
Accused was arraigned
Accused pleaded
Attachment of the second jeopardy

1.
2.
3.
4.
DOUBLE JEOPARDY (RES JUDICATA IN PRISON

GREY)
Double Jeopardy
When the accused was acquitted;

When there is final conviction;
Dismissal on the merits
Dismissal without express consent
NOTE: The prohibition against double jeopardy refers

to the same offense and not to the same act. The
offense charged in the two prosecutions must be the
same in law and in fact, because the same acts may be
violative of two or more provisions of the criminal law.
It means that when a person is charged with an

offense and the case is terminated either by
acquittal or conviction or in any other manner
without the consent of the accused, the latter
cannot again be charged with the same or
identical offense.
Q: Can a person convicted by a court-martial be

prosecuted again in the civil court?
A: No. A person convicted by a court-martial
cannot, for the same offense, be prosecuted
again in the civil court. A court martial is a court,
and the prosecution of an accused before it is
criminal, not administrative; thus it would be,
under certain conditions, a bar to another
prosecution of the defendant for the same
Likewise, if an act is punished by a law and an

ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for
the same act.
Purpose of the right against double jeopardy
73

CRIMINAL PROCEDURE
offense, because the latter would place the

accused in double jeopardy (Marcos vs. Chief of
Staff, 89 Phil. 477).
with direct assault based on the same facts

alleged in the information for slight physical
injuries but with the added allegation that he
inflicted the injuries out of resentment for what
the complainant had done in the performance of
his duties as chairman of the board of election
inspectors. He moved to quash the second
information on the ground that its filing had
placed him in double jeopardy. How should
Dondons motion to quash be resolved? (2002
Bar Question)
Q: Is there double jeopardy when the complaint

or information was dismissed before the
defendant has been arraigned and had pleaded
thereto?
A: No. The requirement that the accused must
have been arraigned and pleaded to the charge
rests upon the idea that it is only from that
moment that the issues for trial are deemed
joined. Before that, the accused is not in danger
of being validly convicted (People vs. Apostol, 64
Phil. 676).
A: Dondons motion to quash should be granted

on the ground of double jeopardy because the
first offense charged is necessarily included in the
second offense charged. Although the dismissal
of the first case was upon motion of the accused,
double jeopardy attached since the dismissal was
due to failure to prosecute which amounts to an
acquittal (People v. Clobel, 11 SCRA 805; Esmene
v. Pogoy, 102 SCRA 851).
Q: Dora and Egor were charged with homicide in

one information. Before they could be
arraigned, the prosecution moved to withdraw
the information altogether and its motion was
granted. Can the prosecution re-file the
information although this time for murder?
(2002 Bar Question)
Tests in determining the identity of the offenses

for the purpose of applying the rule on double
jeopardy
A: Yes. The prosecution can re-file the

information for murder in substitution of the
information for homicide because no double
jeopardy has as yet attached (Galvez v. Court of
Appeals, 237 SCRA 685).
Same offense test Whether the offense charged

in the first information is the same offense in the
second charge, or whether the second offense
necessarily includes or is necessarily included in
the first offense charged in the former complaint
or information.
Q: Dondon was charged with slight physical

injuries in the MTC. He pleaded not guilty and
went to trial. After the prosecution has
presented its evidence, the trial court set the
continuation of the hearing on another date. On
the date scheduled for hearing, the prosecutor
failed to appear, whereupon the court, on
motion of Dondon, dismissed the case. A few
minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court
reconsidered its order and directed Dondon to
present his evidence. Before the next date of
trial came, however, he moved that the last
order be set aside on the ground that the
reinstatement of the case had placed him twice
in jeopardy. Acceding to this motion, the court
again dismissed the case. The prosecutor then
filed an information in the RTC, charging Dondon
Same-evidence test- Whether the facts alleged in

the second information, if proved, would have
been sufficient to sustain the former information,
or from which the accused may have been
acquitted or convicted.
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
includes or is necessarily included in the first
offense or an attempt or frustration thereof, or
when it necessarily includes or is necessarily
included in the offense charged in the first
information.
74

CRIMINAL PROCEDURE
XPNs to the Identity Rule

1. The graver offense developed due to
supervening facts arising out of the same act
or omission constituting the former charge
[Sec. 7(a), Rule 117].
2. The facts constituting the graver offense
became known or were discovered only
after a plea was entered in the former
complaint or information [Sec. 7(b), Rule
117].
3. The plea of guilty to a lesser offense was
made without the consent of the prosecutor
and the offended party [Sec. 7 (c), Rule 117].
4. The second offense was not in existence at
the time of the first prosecution for the
simple reason that in such case, there is no
possibility for the accused, during the first
prosecution, to be convicted for an offense
that was then inexistent (Melo v. People, 85
Phil 766).
serious wounds which required medical

attendance. Obillo died from his wounds hours
after the accused pleaded guilty of the offense
charged. An amended information was then
filed charging the accused with consummated
homicide. The accused filed a motion to quash
the amended information alleging double
jeopardy. Is the accused correct?
A: No, for the simple reason that in such case
there is no possibility for the accused, during the
first prosecution, to be convicted for an offense
that was then inexistent. Thus, where the
accused was charged with physical injuries and
after conviction the injured person dies, the
charge for homicide against the same accused
does not put him twice in jeopardy.
Stating it in another form, the rule is that "where
after the first prosecution a new fact supervenes
for which the defendant is responsible, which
changes the character of the offense and,
together with the fact existing at the time,
constitutes a new and distinct offense, the
accused cannot be said to be in second jeopardy
if indicated for the new offense (Melo v. People,
G.R. No. L 3580, March 22, 1950).
NOTE: In any of the foregoing cases, where the

accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the
event of conviction for the graver offense.
Variance doctrine
An offense charged necessarily includes the
offense proved when some of the essential
ingredients or ingredients of the former as
alleged in the complaint or information constitute
the latter.
NOTE: Accordingly, an offense may be said to

necessarily include or to be necessarily included in
another offense, for the purpose of determining the
existence of double jeopardy, when both offenses
were in existence during the pendency of the first
prosecution, for otherwise, if the second offense was
then inexistence, no jeopardy could attach therefor
during the first prosecution, and consequently a
subsequent charge for the same cannot constitute
second jeopardy. By the very nature of things there
can be no double jeopardy under such circumstance
(Ibid.).
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.
Doctrine of Supervening Fact
Q: Accused was charged with and convicted of

less serious physical injuries. The accused had
already begun serving his sentence when it was
found out that the complainants injuries did not
heal within the period formerly estimated, and
so the provincial fiscal filed another information
for serious physical injuries. The accused moved
to quash this second information on the ground
of double jeopardy. Is the accused correct?
If, after the first prosecution, a new fact

supervenes on which the defendant may be held
liable, altering the character of the crime and
giving rise to a new and distinct offense, the
accused cannot be said to be in second jeopardy
if indicted for the new offense.
Q: Melo was charged with frustrated homicide,
for having allegedly inflicted upon Obillo several
75

CRIMINAL PROCEDURE
A: No. Reversing the trial courts order granting

his motion, the SC reiterated the Melo ruling and
then added: That rule applies to the present case
where, after the prosecution for a lesser crime,
new facts have supervened which, together with
those already in existence at the time of the first
prosecution, have made the offense graver and
the penalty first imposed legally inadequate
[Double Jeopardy: The Supervening Event
Doctrine, 76 SCRA 469 (1977)].
ground of double jeopardy. Does double

jeopardy apply to quasi offenses?
A: Yes. The two charges arose from the same
facts and were prosecuted under the same
provision of the RPC, namely Art. 365. The
doctrine is that reckless imprudence under Art.
365 is a single quasi- offense by itself and not
merely a means to commit other crimes. Hence,
conviction or acquittal of such quasi offense bars
subsequent prosecution for the same quasi
offense, regardless of its various resulting acts
(Ivler v. Modesto- San Pedro, GR No. 172716,
November 17, 2010).
NOTE: It is indispensable that a new fact for which the

defendant is responsible had supervened and this new
fact changes the character of the crime first imputed
to him so that, together with the facts previously
existing, it constitutes a new and distinct offense
(People v. Yorac ) [Double Jeopardy: The Supervening
Event Doctrine, 76 SCRA 469(1977)].
Q: For firing a machine gun which caused panic

among the people present and physical injuries
to one, two separate informations (one for
serious public disturbance and the other for
reckless imprudence resulting in physical
injuries) were filed against the accused. As he
pleaded guilty to the charge of reckless
imprudence resulting in physical injuries, the
accused was convicted and sentenced
accordingly. Later, the accused sought to dismiss
the charge of serious public disturbance on the
ground of double jeopardy. Is there double
jeopardy? Why? (1993 Bar Question)
Effect of double jeopardy on the civil aspect of

the case
The offended party and the accused may appeal
the civil aspect of the case because the concept
of double jeopardy evidently has reference only
to the criminal case and has no effect on the civil
liability of the accused (Riano, 2011)
Non-applicability of
administrative cases
double
jeopardy
to
A: No. The protection against double jeopardy is

only for the same offense. A single act may be an
offense against two different provisions of law
and if one provision requires proof of an
additional fact which the other does not, an
acquittal or conviction under one does not bar
prosecution under the other. In this case, the act
of firing a machine gun violated two articles of the
RPC. Consequently, conviction for one does not
bar prosecution for the other.
The rule on double jeopardy does not apply to a

controversy where one is an administrative case
and the other is criminal in nature (Riano, 2011,
citing Icasiano v. Sandiganbayan, 209 SCRA 377).
Q: As a result of vehicular mishap, petitioner was
charged before the MTC of two separate
offenses in two informations:
a. Reckless imprudence resulting in slight
physical injuries; and
b. Reckless imprudence resulting in homicide
and damage to property for the death of the
husband of the respondent and damage to
the vehicle.
Dismissal v. Acquittal
Dismissal
Does not decide on
the merits, does not
determine
the
defendants guilt or
innocence.
Petitioner pleaded guilty to the first information

and was punished only by public censure.
Invoking such conviction, petitioner now moves
for the quashal of the other information on the
76
Acquittal
Always based on
the
merits.
Defendant
is
acquitted because
guilt
was
not

CRIMINAL PROCEDURE
GR: Where the case was dismissed provisionally

with the consent of the accused, he cannot
invoke double jeopardy in another prosecution
therefore or where the case was reinstated on a
motion for reconsideration by the prosecution.
proven
beyond
reasonable doubt.
Double
jeopardy
Double
jeopardy
will not always
always attaches.
attach.
XPNs: The dismissal amounts to an acquittal even

if the dismissal was ordered at the instance of
the defendant if it is based on:
1. Lack or insufficiency of evidence
2. If the same was predicated upon the right of
the accused to a speedy trial, hence, even if
the accused gave his express consent to such
dismissal or moved for dismissal, such
consent would be immaterial as such
dismissal is actually an acquittal
3. There is variance between the proof and the
allegations in the complaint or information
Instances wherein dismissal of the case is

tantamount to an acquittal
1. Insufficiency of evidence of the prosecution
(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)
Rules on the application of double jeopardy on
State witnesses
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.
Period when provisional dismissal becomes

permanent
The dismissal shall become permanent if:
1. The case is not revived within 1 year after the
issuance of the order of provisional dismissal
with respect to offenses punishable by
imprisonment not exceeding 6 years or a fine
of any amount or both; or
2. The case is not revived within 2 years after
the issuance of the order of provisional
dismissal with respect to offenses punishable
by imprisonment of more than 6 years (Sec.
8, Rule 117).
PROVISIONAL DISMISSAL
Requisites of provisional dismissal
1. There must be a motion by the prosecution
with the express conformity of the accused,
or by the accused himself, or by both the
prosecution and the accused for a provisional
dismissal of the case;
2. The offended party is notified of the motion
for a provisional dismissal of the case;
3. The court issues an order granting the motion
and dismissing the case provisionally;
4. The public prosecutor is served with a copy of
the order of provisional dismissal of the case
(People v. Panfilo Lacson, et. al., G.R. No.
149453, April 1, 2003).
Thus, within the periods stated, the prosecution

has to revive the case if it desires to prevent the
provisional dismissal becoming permanent and
the revival of the case being time-barred. This is
known as the TIME BAR RULE. If no revival of the
case is made within the prescribed period, the
dismissal shall be removed from being provisional
and becomes permanent.
NOTE: The State may revive a criminal case beyond the
one-year or two-year periods, provided there is
justifiable necessity for the delay, and subject to the
right of the accused to oppose the same on the ground
of double jeopardy, or that such revival or refiling is
barred by the statute of limitations (People v. Lacson,
G.R. No. 149453, Oct. 7, 2003).
NOTE: The concept of provisional dismissal

contemplates that the dismissal of the criminal action
is not permanent and can be revived within the period
set by the Rules of Court.
Rule on provisional dismissal of a case
77

CRIMINAL PROCEDURE
Express consent
Information on the ground that the provisional

dismissal of the case had already become
permanent. Was the provisional dismissal of the
case proper? (2003 Bar Question).
It must be a positive, direct, unequivocal consent

requiring no inference or implication to supplying
its meaning. The mere inaction or silence of the
accused or his failure to object to a provisional
dismissal of the case does not amount to express
consent.
A: Yes. The provisional dismissal of the case was

proper because the accused gave his express
consent thereto and the offended party was
notified. It was not necessary for the offended
party to give her consent thereto (Sec. 8, Rule
117).
Q: In a prosecution for robbery against Adrian,

the prosecutor moved for the postponement of
the first scheduled hearing on the ground that
he had lost his records of the case. The court
granted this motion but, when the new date of
trial arrived, the prosecutor alleging that he
could not locate his witnesses, moved for the
provisional dismissal of the case. If Adrians
counsel does not object, may the court grant the
motion of the prosecutor? Why? (2002 Bar
Question)
Provisional dismissal under A.M. No. 12-11-2-SC

(Guidelines for Decongesting Holding Jails by
Enforcing the Rights of Accused Persons to Bail
and to Speedy Trial)
1. When the delays are due to the absence of an
essential witness whose whereabouts are
unknown or cannot be determined and,
therefore, are subject to exclusion in
determining if, with the prescribed time
limits which caused the trial to exceed 180
days, the court shall provisionally dismiss the
action with the express consent of the
detained accused.
2. When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence though his
whereabouts are known, the court shall
provisionally dismiss the action with the
express consent of the detained accused
provided:
a. The hearing in the case has been
previously twice postponed due to the
non-appearance of the essential witness
and both the witness and the offended
party, if they are two different persons,
have been given notice of the setting of
the case for third hearing, which notice
contains a warning that the case would be
dismissed if the essential witness
continues to be absent; and
b. There is proof of service of the pertinent
notices of hearings or subpoenas upon the
essential witness and the offended party
at their last known postal or e-mail
addresses or mobile phone numbers.
A: No. A case cannot be provisionally dismissed

except upon the express consent of the accused
and with notice to the offended party.
Q: Before the arraignment for the crime of
murder, the private complainant executed an
Affidavit of Desistance stating the she was not
sure if the accused was the man who killed her
husband. The public prosecutor filed a Motion to
Quash the Information on the ground that with
private complainants desistance, he did not
have evidence sufficient to convict the accused.
On January 2, 2001, the court without further
proceedings granted the motion and
provisionally dismissed the case. The accused
gave his express consent to the provisional
dismissal of the case. The offended party was
notified of the dismissal but she refused to give
her consent.
Subsequently, the private complainant urged
the public prosecutor to refile the murder charge
because the accused failed to pay the
consideration which he had promised for the
execution of the Affidavit of Desistance. The
public prosecutor obliged and refiled the murder
charge against the accused on February 1 2003.
The accused filed a Motion to Quash the
78

CRIMINAL PROCEDURE
3. For the above purpose, the public or private

prosecutor shall first present during the trial
the essential witness or witnesses to the case
before anyone else. An essential witness is
one whose testimony dwells on the presence
of some or all of the elements of the crime
and whose testimony is indispensable to the
conviction of the accused (Sec. 10, A.M. No.
12-11-2-SC).
After arraignment and within 30 days from the

date the court acquires jurisdiction over the
person of the accused unless a shorter period is
provided by special laws or circulars of the
Supreme Court (Sec. 1, Rule 118).
Pre-trial in a Civil case v. Pre-trial in a Criminal
case (1997 Bar Question)
Pre-trial in Civil
Pre-trial in Criminal
Cases
Cases
Is set when the Pre-trial is ordered by
plaintiff moves ex the court and no
parte.
motion to set the case
for
pre-trial
is
required from either
the prosecution or the
defense (Sec. 1, Rule
118).
The motion to set the The
pre-trial
is
case for pre-trial is ordered by the court
made after the last after arraignment and
pleading has been within 30 days from
served and filed (Sec. the date the court
1, Rule 18).
acquires jurisdiction
over the person of the
accused (Sec. 1 Rule
118).
Considers
the Does not include the
possibility of an considering of the
amicable settlement possibility of amicable
or compromise.
settlement
of
a
criminal liability as
one of its purpose
(Sec. 1, Rule 118).
The agreements and All agreements or
admissions may be admissions made or
contained in the entered during the
record of pre-trial and pre-trial conference
pre-trial order. The shall be reduced in
Minutes
of writing and signed by
Preliminary
both the accused and
Conference, may be counsel, otherwise,
signed by either the they cannot be used
party or his counsel.
against the accused.
Reckoning period of one or two year period for

revival of criminal case
The one or two year period allowed for reviving a
criminal case that has been provisionally
dismissed shall be reckoned from the issuance of
the order of dismissal. The dismissal shall become
automatically permanent if the case is not revived
within the required period. Such permanent
dismissal shall amount to an adjudication of the
case on the merits (Sec. 14, A.M. No. 12-11-2-SC).
PRE-TRIAL
RULE 118
Importance of pre-trial
It is the purpose of the Pretrial Conference to
simplify the issues, shape up the testimonial and
documentary evidence and generally clear the
decks for the trial (Irving Trust Company v. US 221
F.2D 303, April 5, 1955).
Pre-trial is mandatory in all criminal cases
cognizable by the
1.
2.
3.
4.
5.
Sandiganbayan;
RTC;
Metropolitan Trial Court;
Municipal Trial Court in Cities;
Municipal Trial Court and Municipal Circuit
Trial Court (Sec. 1 Rule 118).
MATTERS TO BE CONSIDERED DURING PRETRIAL
Period of pre-trial
A pre-trial brief is A pre-trial brief is not

required
to
be specifically required.
79

CRIMINAL PROCEDURE
submitted (Sec.
Rule 18).
(Riano, 2009)
5. Modification of the order of the trial if one of

the accused admits the charge but interposes
a lawful defense (reverse trial); and
6. Such other matters as will promote a fair and
expeditious trial of the civil and criminal
aspects of the case (Sec. 1).
6,
Content of the order for pre-trial conference

It must contain orders:
1. Requiring the private offended party to
appear thereat for purposes of pleabargaining and for other matters requiring
his presence;
2. Referring the case to the branch clerk of
court, if warranted, for a preliminary
conference to be set at least 3 days prior to
the pre-trial to mark the documents or
exhibits to be presented by the parties and
copies thereof to be attached to the records
after comparison and to consider other
matters as may aid in its prompt disposition;
and
3. Informing the parties that no evidence shall
be allowed to be presented and offered
during the trial other than those identified
and marked during the pre-trial except when
allowed by the court for good cause shown.
In mediatable cases, the judge shall refer the
parties and their counsel to the Philippine
Mediation Centv er unit for purposes of
mediation if available (A.M. No. 03-1-09-SC).
NOTE: During the preliminary conference, the branch

clerk of court shall assist the parties in reaching a
settlement of the civil aspect of the case, mark the
documents to be presented as exhibits and copies
thereof attached to the records after comparison,
ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits and consider such
other matters as may aid in the prompt disposition of
the case. The proceedings during the preliminary
conference shall be recorded in the minutes of
preliminary conference to be signed by both parties
and counsel.
The minutes of preliminary conference and the exhibits
shall be attached by the branch clerk of court to the
case record before the pre-trial (A.M. No. 03-1-09SC).If the accused has pleaded not guilty to the crime
charged, he may state whether he interposes a
negative or affirmative defense. A negative defense
shall require the prosecution to prove the guilt of the
accused beyond reasonable doubt, while an
affirmative defense may modify the order of trial and
require the accused to prove such defense by clear and
convincing evidence (Sec. 3, Speedy Trial Act).
Form of a valid pre-trial agreement
Plea Bargaining
The pre-trial agreement must be in writing and

signed by both the accused and his counsel. If the
required form is not observed, the pre-trial
agreement cannot be used against the accused
(Sec. 2, Rule 118).
The process whereby the accused, the offended

party and the prosecution work out a mutually
satisfactory disposition of the case subject to
court approval. It usually involves the defendants
pleading guilty to a lesser offense or to only one
or some of the counts of a multicount
indictment in return for a lighter sentence than
that for the graver charge.
NOTE: The agreements covering the matters in the

pre-trial conference shall be approved by the court.
Matters considered during pre-trial

Instance when plea bargaining not applicable
1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of
parties;
4. Waiver of objections to admissibility of
evidence;
In violations of the Dangerous Drugs Act

regardless of the imposable penalty (Sec. 23, RA
9165).
Action of the court when plea bargaining fails
80

CRIMINAL PROCEDURE
The court shall:

1. Adopt the minutes of preliminary conference
as part of the pre-trial proceedings, confirm
markings of exhibits or substituted
photocopies and admissions on the
genuineness and due execution of
documents and list object and testimonial
evidence;
2. Scrutinize every allegation of the information
and the statements in the affidavits and other
documents which form part of the record of
the preliminary investigation and other
documents identified and marked as exhibits
in determining further admissions of facts,
documents and in particular as to the
following:
a. The identity of the accused;
b. Courts territorial jurisdiction relative to
the offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of
documents;
f. The cause of death or injury, in proper
cases;
g. Adoption of any evidence presented
during the preliminary investigation;
h. Disclosure of defenses of alibi, insanity,
self-defense, exercise of public authority
and
justifying
or
exempting
circumstances; and
i. Such other matters that would limit the
facts in issue.
3. Define factual and legal issues;
4. Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall contain
the time frames for the different stages of
the proceeding up to promulgation of
decision and use the time frame for each
stage in setting the trial dates;
5. Require the parties to submit to the Branch
COC the names, addresses and contact
numbers of witnesses that need to be
summoned by subpoena; and
6. Consider modification of order of trial if the
accused admits the charge but interposes a
lawful defense (A.M. No. 03-1-09-SC).
WHAT THE COURT SHOULD DO WHEN

PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED
Effect when the prosecution and the offended
party agree to the plea offered by the accused
The court shall:
1. Issue an order which contains the plea
bargaining arrived at;
2. Proceed to receive evidence on the civil
aspect of the case; and
3. Render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence
(A.M. No. 03-1-09-SC).
PRE-TRIAL AGREEMENT
Pre- trial agreement
All agreements or admissions made or entered
into during the pre- trial conference shall be
reduced to writing and signed by the accused and
counsel, otherwise the same shall not be used as
evidence against the accused.
Requisites before a pre-trial agreement may be
used as evidence
1. They are reduced to writing;
2. The pre-trial agreement is signed by the
accused AND his counsel
The agreements in relation to matters referred to
in Sec. 2, i.e, Plea bargaining, Stipulation of Facts,
Marking for Identification of evidence of parties,
Waiver of objections to admissibility of evidence,
and Other matters as will promote a fair and
expeditious trial are subject to the approval of
the court. Provided, that the agreement on the
plea of the accused to a lesser offense may only
be revised, modified, or annulled by the court
when the same is contrary to law, public morals,
or public policy (Sec. 3 Speedy Trial Act of 1998).
NOTE: The requirement of Sec. 2 is intended to
safeguard the right of the accused against improvident
or unauthorized agreements or admissions which his
counsel may have entered into, or which any person
81

CRIMINAL PROCEDURE
may have ascribe to the accused without his

knowledge, as he may have waived his presence at the
pre-trial conference (People vs. Uy, G.R. No. 128046.
March 7, 2000).
NON-APPEARANCE DURING PRE-TRIAL
Such order shall bind the parties, limit the trial to

those matters not disposed of, and control the
course of the action during the trial, unless
modified by the court to prevent manifest
injustice (Sec 4 Rule 118; Sec 5, Speedy Trial Act of
1998).
Effect of non-appearance of counsel for the

accused or the prosecutor during the pre-trial
without valid justification
NOTE: To prevent manifest injustice, however, the

pre-trial order may be modified by the court, upon its
own initiative or at the instance of any party.
Where counsel for the accused or the prosecutor

does not appear at the pre-trial conference and
does not offer an acceptable excuse for his lack of
cooperation, the court may impose proper
sanctions or penalties. The court may impose
proper sanctions or penalties in the form of
reprimand, fines or imprisonment if he does not
offer an acceptable excuse for his lack of
cooperation (Sec. 3, Rule 118; Sec. 5, Speedy Trial
Act).
Period for the trial judge to issue a pre-trial

order and its contents
It must be issued within 10 days after the
termination of the pre-trial. It shall set forth the
following:
1. Actions taken during the pre-trial conference;
2. Facts stipulated; admissions made;
3. Evidence marked; and
4. Number of witnesses to be presented and the
schedule of trial (Sec. 4, Rule 118).
Rationale of the exclusion of the accused in the

mandatory appearance during pre-trial
REFERRAL FOR SOME CASES FOR COURT

ANNEXED MEDIATION AND JUDICIAL DISPUTE
RESOLUTION
(A.M. No, 11-1-6-SC-PHILJA)
The principal reason why the accused is not

included in the mandatory appearance is the fear
that to include him is to violate his constitutional
right to remain silent (Sec. 12, par. 1, Article III,
1987 Constitution).
Purpose of Court Annexed Mediation (CAM) and

Judicial Dispute Resolution (JDR)
NOTE: Unless otherwise required by the court,

personal appearance of the accused at the conference
is not indispensable. This is aside from the
consideration that the accused may waive his
presence at all stages of the criminal action, except at
the arraignment, promulgation of judgment or when
required to appear for identification (Regalado, 2008).
The diversion of pending court cases both to CAM

and to JDR is plainly intended to put an end to
pending litigation through a compromise
agreement of the parties and thereby help solve
the ever-pressing problem of court docket
congestion. It is also intended to empower the
parties to resolve their own disputes and give
practical effect to the State Policy expressly
stated in the ADR Act of 2004 (RA 9285), to wit:
PRE-TRIAL ORDER
Pre-trial order
to actively promote party autonomy in the

resolution of disputes or the freedom of the
parties to make their own arrangement to resolve
disputes. Towards this end, the State shall
encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial
justice and de-clog court dockets.
It is an order issued by the court reciting the

actions taken, the facts stipulated and the
evidence marked during the pre-trial conference
(Sec. 4).
Purpose and effect of the pre-trial order
82

CRIMINAL PROCEDURE
Role of the judge in mediation
1.
All civil cases and the civil liability of criminal

cases covered by the Rule on Summary
Procedure, including the civil liability for
violation of BP 22, except those which by law
may not be compromised;
2. Special proceedings for the settlement of
estates;
3. All civil and criminal cases filed with a
certificate to file action issued by the Punong
Barangay
or
the
Pangkat
ng
Tagapagkasundo under the Revised
Katarungang Pambarangay Law;
4. The civil aspect of Quasi-Offenses under
Title 14 of the RPC;
5. The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment where the
offended party is a private person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings,
testate and intestate, brought on appeal
from the exclusive and original jurisdiction
granted to the first level courts under Sec.
33, par. (1) of the Judiciary Reorganization
Act of 1980;
8. All cases of forcible entry and unlawful
detainer brought on appeal from the
exclusive and original jurisdiction granted to
the first level courts under Sec. 33, par. (2)
of the Judiciary Reorganization Act of 1980;
9. All civil cases involving title to or possession
of real property or an interest therein
brought on appeal from the exclusive and
original jurisdiction granted to the first level
courts under Sec. 33, par.(3) of the Judiciary
Reorganization Act of 1980; and
10. All habeas corpus cases decided by the first
level courts in the absence of the RTC judge
that are brought up on appeal from the
special jurisdiction granted to the first level
courts under Sec. 35 of the Judiciary
Reorganization Act of 1980.
The pre-trial judge will rule on the compromise

agreement reached through mediation. If courtannexed mediation fails, the pre-trial judge takes
on the role of conciliator, neutral evaluator and
mediator.
The judge will sit down with counsel and their
parties to hear a summary of the case and will
attempt to conciliate the differences between the
parties. As a neutral evaluator, the judge will be
free to express his views on the chances of each
party in the case. At this point, if the parties agree
to reconsider and undergo mediation, the judge
will facilitate the settlement as a mediator. If the
parties still refuse mediation, however, the judge
will then issue an order referring the case to
another judge. The order will specify that both
CAM and JDR have failed.
Three stages of diversion of cases to CAM and
JDR
1. The first stage is the CAM where the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediators.
2. Upon failing to secure a settlement of the
dispute during the first stage, a second
attempt is made at the JDR stage. There, the
JDR judge sequentially becomes a mediator
conciliator-early neutral evaluator in a
continuing effort to secure a settlement. Still
failing that second attempt, the mediatorjudge must turn over the case to another
judge (a new one by raffle or nearest/pair
judge) who will try the unsettled case. The
trial judge shall continue with the pre-trial
proper and, thereafter, proceed to try and
decide the case.
3. The third stage is during the appeal where
covered cases are referred to the PMCAppeals Court Mediation (ACM) unit for
mediation.
CAM v. Court Referred Mediation (CRM)

CAM
Any
mediation
process conducted
under the auspices
of the court that
Cases covered by CAM and JDR

The following cases shall be (1) referred to CAM
and (2) be the subject of JDR proceedings:
83
CRM
A
mediation
ordered by a court
to be conducted in
accordance with the

CRIMINAL PROCEDURE
has
acquired agreement of the
jurisdiction of the parties when an
dispute.
action
is
prematurely
commenced
in
violation of such
agreement
Cases which CANNOT be referred to CAM and
JDR
1. Civil cases which by law cannot be
compromised (Art. 2035, NCC);
2. Other criminal cases not covered under
paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under RA 9262 (Violence against
Women and Children); and
5. Cases with pending application for
Restraining Orders/Preliminary Injunctions.
However, in cases covered under 1, 4 and 5
where the parties inform the court that they
have agreed to undergo mediation on some
aspects thereof, e.g., custody of minor
children, separation of property, or support
pendent lite, the court shall refer them to
mediation.
Appellate Court Mediation (ACM)
It is a mediation program in the CA, corollary to
CAM in the lower courts. It provides a conciliatory
approach in conflict resolution. Through ACM,
the CA promotes a paradigm shift in resolving
disputes from a right-based (judicial) to an
interest-based (mediation) process.
Persons qualified to serve as mediator in
appellate court mediation
Only an Appellate Mediator who is trained and
accredited by the Philippine Judicial Academy
(PHILJA) can mediate in the CA. As a basic
qualification, he/she must be a retired justice,
judge, senior member of the Bar, or senior law
professor, who possesses creative problemsolving skills and has strong interest in mediation.
84

CRIMINAL PROCEDURE
Discuss the CAM process

I. Selection of
Cases
II. Resolution to
appear at the
PMC-CA
III. Agreement to
mediate
IV. Mediation
Proceedings
V. Disposition of
Cases
Division
Clerk
of
court
identifies the pending cases to
be approved by the (ponente)
Justice in charge, for decision.
Petitioner or appellant
specifies that the case is
qualified formediation.
Ponente issues a resolution

directing the parties to appear
at the PMC-CA without counsel
to consider the possibility of
mediation.
The resolution also

suspends the running of
the period to file the
appellees brief.
Upon agreement of the parties to

mediate, the PMC-CA requires the
parties to execute an Agreement to
Mediate
Mediator
completes
the
proceedings within 30 days from
date of initial conference, with
extendible period of 30 days if
there is a justifiable ground.
If the parties agree to a full or partial

compromise, the mediator drafts
written terms with the concurrence of
the parties / counsel.
Court approves the

compromise
agreement
and
makes
an
immediate entry of
judgment.
If the case is eligible

for mediation, the
ponente refers the
case to PMC-CA
Parties choose a mediator and

the date and time of the initial
mediation conference
Individual litigants are required to attend

mediation conferences in person; corporate
parties must be represented by a corporate
officer duly authorized by Board resolution.
Parties/counsel and mediator

sign the compromise agreement
which is transmitted to the Court.
In case of full settlement, the

parties agree to withdraw the
appeal and enter into a mutual
satisfaction of claims and
counterclaims. Upon receipt, the
Court renders an order of
dismissal.
If the parties fail to reach a settlement, the

mediator returns the case to the Division of
origin. He then makes a confidential report to
the PMC-CA on the reasons for the failure.
85

CRIMINAL PROCEDURE
JDR process
Lupon Tagapamayapa
Reaches a compromise agreement
Failure to mediate
Filing of Case
Non-mediatable
Trial
Mediatable
Decision
CAM
Failure to appear
Complainant
Dismiss
the case
Defendant
Complainant
presents his
case
Compromise
agreement
Settlement cannot be
reached
Pre-trial judge will

rule on the
compromise
agreement
JDR
Pre-trial judge as
mediator
Reaches
a
settlement
Decision
Fails
Judgment
based on
compromise
Refer the
case to
another
judge for trial
Decision
ACM:
Appeal to
CA
Reaches a
settlement
Fails
Decision
86

CRIMINAL PROCEDURE
period shall be computed from the date when the

parties first appeared for the initial conference as
stated in the Order to appear. An extended
period of another 30 days may be granted by the
court, upon motion filed by the Mediator, with
the conformity of the parties.
CAM v. JDR v. ACM

CAM
A case eligible
for mediation
at a First Level
Court or RTC
during
the
pre-trial stage
is referred by
the presiding
judge to the
Philippine
Mediation
Center
Unit
for mediation.
Mediation is
successful if
the
parties
enter into a
Compromise
Agreement,
and the judge
renders
a
decision based
on
this
agreement. If
it fails or the
parties refuse
to
undergo
mediation, the
case goes back
to court for
trial.
JDR
The
mediation
process
is
also in the
lower courts
and
mediation is
conducted
just like in
CAM.
If
mediation
fails or the
parties refuse
mediation,
the case goes
back to the
judge
who
does not yet
try the case.
The
judge,
acting
sequentially
as
Conciliator,
Neutral
Evaluator and
Mediator or a
combination
of the three,
attempts to
convince the
parties
to
settle their
case
amicably. If
the parties
still refuse to
settle,
the
case
goes
back to court
for trial.
ACM
The case has
been tried
and
judgment
has
been
rendered at
the lower
courts but
has
been
appealed to
the CA.
Availability of JDR even during trial

Cases may be referred to JDR even during the trial
stage upon written motion of one or both parties
indicating willingness to discuss a possible
compromise. If the motion is granted, the trial
shall be suspended and the case referred to JDR,
which shall be conducted by another judge
through raffle in multiple sala courts.
Consequence of failure of one party to
participate in mediation
Once the court determines that the case is
mediatable, the parties are compelled to appear
before the PMC unit. If the complainant fails to
appear for mediation, the case may be dismissed.
If the defendant is absent, the court will then
decide the case on the basis of what was
presented by the plaintiff alone.
Effect of the referral of the case to CAM and JDR
The period during which the case is undergoing
mediation shall be excluded from the regular and
mandatory periods for trial and rendition of
judgment in ordinary cases and in cases under
summary proceedings.
Procedure after
settlement
the
parties
reached
If full settlement of the dispute is reached, the

parties, assisted by their respective counsels,
shall draft the compromise agreement which
shall be submitted to the court for judgment
upon compromise or other appropriate action.
Duration of mediation in the PMC
Where compliance is forthwith made, the parties

shall instead submit a satisfaction of claims or a
mutual withdrawal of the case and, thereafter,
the court shall enter an order dismissing the case.
The Mediator shall have a period of not exceeding

30 days to complete the mediation process. Such
87

CRIMINAL PROCEDURE
If partial settlement is reached, the parties shall,

with the assistance of counsel, submit the terms
thereof for the appropriate action of the court,
without waiting for resolution of the unsettled
part.
requesting that the court of origin conduct

the JDR proceedings and trial.
3.
Effect of the non- compliance of the other party

with the agreement reached
The court which approved the compromise
agreement must be informed immediately for it
to issue an order to comply. Sanctions will be
imposed for non-compliance. The aggrieved
party may also apply for a writ of execution.
Remedy if the case is not resolved during JDR
1.
Notwithstanding the foregoing, before

commencement of the JDR proceedings, the
parties may file a joint written motion
requesting that the family court to which the
case was originally raffled shall conduct the
JDR proceedings and trial.
Multiple sala court- If the case is not

resolved during the JDR, the case shall be
raffled to another branch for the pre- trial
proper until judgment.
For cases with pending applications for
restraining orders/preliminary injunctions,
the judge to whom the case was raffled shall
rule on the said applications. During the pretrial stage, the judge refers the case to CAM,
but if the parties do not settle at CAM, the
case will be raffled to another branch for
JDR. If the parties do not settle at JDR, the
case will be returned to the branch that
ruled on the applications for the pre-trial
proper and up to judgment.
2.
Family court- Unless otherwise agreed upon

as provided below, the JDR proceedings in
areas where only one court is designated as
a family court, shall be conducted by a judge
of another branch through raffle. However,
if there is another family court in the same
area, the family court to whom the case was
originally raffled shall conduct JDR
proceedings and if no settlement is reached,
the other family court shall conduct the pretrial proper and trial.
Despite the non-mediatable nature of the

principal case, like annulment of marriage,
other issues such as custody of children,
support, visitation, property relations and
guardianship, may be referred to CAM and
JDR to limit the issues for trial.
4.
Single sala court - Unless otherwise agreed

upon as provided, the JDR proceedings will
be conducted by the judge of the pair court,
if any, otherwise, by the judge of the nearest
court as determined by the concerned
Executive Judge. The JDR proceedings shall
be conducted at the station where the case
was originally filed. The result of the JDR
proceedings shall be referred to the court of
origin for appropriate action, e.g. approval
of the compromise agreement, trial, etc.
Commercial, intellectual property and

environmental courts- Unless otherwise
agreed upon as provided below, the JDR
proceedings in areas where only one court is
designated as commercial/intellectual
property/environmental court, hereafter
referred to as special court, shall be
conducted by another judge through raffle
and not by the judge of the special court.
Where settlement is not reached, the judge
of the special court shall be the trial judge.
Any incident or motion filed before the pretrial stage shall be dealt with by the special
court that shall refer the case to CAM.
Notwithstanding the foregoing, before
requesting that the special courts to which
Notwithstanding the foregoing, before the

88

CRIMINAL PROCEDURE
the case was originally raffled shall conduct

the JDR proceedings and trial.
The purpose of the system is to expedite the

decision or resolution of cases in the trial courts
considering the mandate of Sec. 12, Art. XVIII of
the 1987 Constitution. SC Circular No. 1-89
requires that the judge shall conduct the trial
with utmost dispatch, with judicious exercise of
the court's power to control the trial to avoid
delay and that a strict policy on postponements
shall be observed.
TRIAL
RULE 119
Trial
The examination before a competent tribunal
according to the laws of the land, of facts put in
issue in a case for the purpose of determining
such issue.
NOTE: 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 a trial well defined at pre-trial and
the whole proceedings terminated and ready for
judgment within 90 days from the date of initial
hearing, unless for meritorious reasons an extension is
permitted.
After a plea of not 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 pre-trial order (Sec. 1, Rule 119).
NOTE: Under Sec. 7 of the Rule 114, accused is entitled
as for right to at least two days to prepare for trial.
Denial of this right to prepare is reversible error; the
proper remedy from a judgment of conviction under
such case is appeal and not certiorari nor habeas
corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30,
1998).
Q: Petitioner assails the decision of the CA

affirming the decision of the RTC in denying his
petition for postponement of the trial on
account of the absence of his witnesses to
appear during trial. In deciding the case against
petitioner, the CA held that the RTC did not act
in grave abuse of its discretion as the petitioner
failed to substantiate his motion for
postponement as required by the Rules. Is the
CA correct?
Hearing
Hearing is not confined to trial, but embraces
several stages of litigation including the pre- trial
stage. 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 (Republic v.
Sandiganbayan, 416 SCRA 133, 2003).
A: Yes. As it is a well-settled rule that motions for

postponement are addressed to the sound
discretion of the court and this discretion would
not be interfered with unless it has been clearly
abused. In order for the absence of a witness to
justify the postponement of a trial, the following
must be shown: First, that the witness is really
material and appears to the court to be so;
second, that the party who applies has been
guilty of no neglect; and third, that the witness
can be held at the time to which the trial has been
deferred, and, incidentally, that no similar
evidence could be obtained. Further, the affidavit
should contain a statement that the facts to
which it is claimed the absent witness would
testify cannot be proved by any other witnesses
who are available, or by the exercise of diligence,
could have been made available to the applicant
Procedure of trial
The trial once commenced, shall continue from
day to day as far as practicable until terminated.
However, it may be postponed for a reasonable
period of time for good cause (Sec. 2, Rule 119).
NOTE: The granting or refusal of an application for
continuance or postponement of the trial lies within
the sound discretion of the court and the discretion
will not be interfered with by mandamus or by appeal,
unless there is grave abuse of discretion.
Purpose of the continuous trial system
89

CRIMINAL PROCEDURE
at the trial (Casilan vs. Gancayco, et. al., G.R. No.

L-10525, August 29, 1958).
2. The accused may present evidence to prove

his defense, and damages, if any, arising from
the issuance of a provisional remedy in the
case.
3. The prosecution and the defense may, in that
order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue.
Q: In an action to declare null and void the order

of respondent judge in dismissing the criminal
cases, petitioner claims that said judge has lost
jurisdiction over the criminal cases by failure of
the interested parties to secure a written
authority from the Chief Justice of the Supreme
Court authorizing the adjournment of the trial
thereof beyond the three-month period
provided in Rule 22, Sec. 3 of the Revised Rules
of Court. Is the petition meritorious?
NOTE: Rebuttal evidence is any competent

evidence to explain, repel, counteract or disprove
the adversarys proof. It is receivable only where
new matters have been developed by the
evidence of one of the parties and is generally
limited to a reply to new points.
A: No. As the applicable rule on adjournments

and postponements in criminal cases is found not
in Sec. 3, Rule 22 but in Sec. 2, Rule 119. The only
limitation expressed in Rule 119 is that the
postponement of the trial of a criminal case must
be for 'good cause' shown and for such period of
the time as 'the ends of justice and the right of
the defendant to a speedy trial require. The
greater flexibility of the rule on postponements in
criminal actions was obviously based on the
criterion in the early case of U.S. v. Ramirez that
the trial court is in criminal proceedings "the
guardian of the rights of the accused as well as
those of the people at large, and should not
unduly force him to trial, nor for light causes
jeopardize the rights or interests of the public"
and that "the discretion which the trial court
exercises must be judicial and not arbitrary"
consistent with the ends of justice and the
granting of sufficient time and opportunity to
both prosecution and defense to present their
witnesses and the right of the accused to a
speedy trial (People vs. Catolico, 38 SCRA 389,
1971).
4. Upon admission of the evidence of the

parties, the case shall be deemed submitted
for decision unless the court directs them to
argue orally or to submit written memoranda
(Sec. 11, Rule 119).
NOTE: The order of the trial may be modified when the
accused admits the act or omission charged in the
complaint or information but interposes a lawful
defense [Sec. 11(e), Rule 119; Sec 1(e), Rule 118].
Q: What is reverse trial and when may it be

resorted to? Explain briefly. (2007 Bar Question)
Order of trial in criminal cases
A: When the accused admits the act or omission

charged in the complaint or information but
interposes a lawful defense, the trial court may
allow the accused to present his defense first and
thereafter give the prosecution an opportunity to
present its 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 order of
the trial was timely objected by the defense.
In criminal cases, unless the accused admits the

act or omission charged in the complaint or
information but interposes a lawful defense, the
trial shall proceed in the following order:
1. The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
Where the order of the trial set forth was not

followed by the court to the extent of denying the
prosecution an opportunity to present evidence,
the judgment is a nullity. If there is not enough
evidence to prove the accuseds guilt beyond
reasonable doubt, then the defense should file
demurrer to evidence.
90

CRIMINAL PROCEDURE
1.
Right and opportunity to adduce additional

evidence
2.
3.
If the judge is not satisfied with the evidence

adduced in criminal cases, he may, on his motion,
call witnesses or recall some of the same
witnesses for the purpose of satisfying his mind
with the reference to particular facts involved in
the case.
For the 180 days, for the first 12 calendar month

period from the effectivity of the law.
120 days for the second 12 month period.
80 days for the third 12 month period (Sec. 9, RA
8493).
Effect of court's failure to comply with the

mandates of the Speedy Trial Act to terminate
the case within the 180 day period
The judge may be charged administratively, or
may be fined, suspended or removed unless his
failure to comply with the speedy trial act is for
reasons not attributable to him.
Case deemed submitted for decision

Upon the admission of the parties evidence-inchief, rebuttal and sur-rebuttal proof, the case is
deemed submitted for decision unless the court
directs them to argue their respective
memoranda.
Cases where the time limitation is inapplicable

1. When the offended party is about to depart
with no definite date of return;
2. Child abuse cases (Sec. 32, RA 7610 or The
Child Abuse Act);
3. Violations of Dangerous Drugs Law; and
4. Kidnapping, robbery by a band, robbery
against banking or financial institution,
violation of Carnapping Act and other
heinous crimes (Herrera, 2007).
INSTANCES WHEN PRESENCE OF THE ACCUSED

REQUIRED
Instances when presence of the accused is
required
1. Upon arraignment and in entering plea;
2. During trial when his presence is necessary
for the purpose of identification;
3. Upon promulgation of judgment except for
light offenses
4. When the court with due notice requires so
(People v. Joven De Grano, et. al, GR No.
167710, June 5, 2009).
Duties of the 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. Effectively allocate and use time and court
resources to avoid court delays; and
4. Continuous trial on a weekly or other shortterm trial calendar at earliest possible time.
Time limit for the trial of criminal cases

GR: Trial shall not exceed 180 days from the first
day of trial.
Exclusions in computation of time within which

trial must commence
XPNs:
1. Those governed by the rules on summary
procedure;
2. Those where the penalty prescribed by law
does not exceed 6 months imprisonment or a
fine of P1,000 or both; and
3. Those authorized by the Chief Justice of the
SC (Sec. 6, RA 8493, Speedy Trial Act).
1. Any periods of delay resulting from other

proceedings concerning the accused,
including but not limited to the following:
a. Examination of the physical and mental
condition of the accused;
b. Proceedings with respect to other
criminal charges against the accused;
c. Extraordinary
remedies
against
interlocutory orders;
NOTE: Commencement of trial may be extended

based on the following conditions:
91

CRIMINAL PROCEDURE
d.
2.
3.
4.
5.
6.
Pre-trial proceedings; provided, that the

delay does not exceed 30 days;
e. Orders of inhibition, or proceedings
relating to change of venue of cases or
transfer from other courts;
f. A finding of the existence of a prejudicial
question;
g. Reasonably attributable to any period,
not to exceed 30 days, during which any
proceeding concerning the accused is
actually under advisement.
Any period of delay resulting from the
absence or unavailability of an essential
witness;
Any period of delay resulting from the mental
incompetence or physical inability of the
accused to stand trial;
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;
A reasonable period of delay when the
accused is joined for trial with a co-accused
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; and
Any period of delay resulting from a
continuance granted by any court motu
proprio, or on motion of either the accused or
his counsel, or the prosecution, if the court
granted the continuance on the basis of its
findings set forth in the order that the ends of
justice served by taking such action outweigh
the best interest of the public and the
accused in a speedy trial (Sec. 3, Rule 119).
interrupt proceedings and, therefore, halt the

running of the 30-day time limit. Is the petition
meritorious?
A: No. As the delay that may be excluded from
the time limit in Sec. 3 of Rule 119 within which
trial must commence are those resulting from
proceedings concerning the accused. The time
involved in the proceedings in a petition for
transfer of venue can only be excluded from said
time limit if it was the accused who instituted the
same. Further, the petition for transfer of venue
cannot interrupt proceedings unless a TRO or writ
of preliminary injunction has been issued in
accordance with Sec. 7 of Rule 65 as said petition
is akin to a petition for certiorari (Mari vs.
Gonzales, G.R. No. 187728, September 12, 2011).
Factors to
continuance
be
considered
for
granting
Whether or not:
1. The failure to grant continuance would make
a continuation of the proceeding impossible
or result in a miscarriage of justice; or
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 (Sec. 4, Rule 119).
Prohibited grounds for a continuance
1. Congestion of the courts calendar or due to
lack of diligent preparation;
2. Failure to obtain available witnesses on the
part of the prosecutor (Sec. 4, Rule 119).
Time limit following an order for new trial
GR: If the accused is to be tried again pursuant to
an order for a new trial, the trial shall commence
within 30 days from notice of order.
Q: In a petition assailing the validity of the order

of the trial court, the petitioner insists that the
judge acted with grave abuse of discretion when
it dismissed the criminal case against the
accused on the ground that that the 30-day time
limit set by Rule 119 had been breached. It is,
further, claimed by the petitioner that their
pending petition for transfer of venue should
XPN: 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 (Sec. 5, Rule 119).
92

CRIMINAL PROCEDURE
Duties of the public attorney when the accused

is imprisoned
The accused may

have his witness
examined
conditionally in his
behalf before trial
upon motion with
notice to all other
parties.
Grounds:
1. Witness is so sick
to
afford
reasonable
ground to believe
that he will not
be able to attend
the trial.
2. He resides more
than
100
kilometers and
has no means to
attend the same.
3. Other
similar
circumstances
exist that would
make
him
unavailable
or
prevent him from
attending
trial
(Sec. 12, Rule
119).
Conducted before
any judge, member
of bar in good
standing or before
any inferior court.
No right to cross
examine.
It shall be his duty to do the following:

1. Shall 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 advice the prisoner of his right to
demand trial.
2. Upon receipt of that notice, the custodian of
that prisoner shall promptly advice the
prisoner of the charge and of his right to
demand trial. If at any time 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.
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 purposes of trial, the prisoner
shall be made available accordingly(Sec. 7,
Rule 119).
Acts of the counsel, attorney, or prosecutor
which would warrant a sanction
1. Knowingly allowing the case to be set on trial
without disclosing that a necessary witness
would be unavailable for trial;
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 which he knows to be
false and which is material to the granting of
a continuance; and
4. Willfully fails to proceed to trial without
justification (Sec. 8, Rule 119).
Examination of defense witness v. examination
of prosecution witness before trial
Examination of
Defense Witness
Conducted in the
presence of the
accused unless he
waived his right
after
reasonable
notice.
Grounds:
1. The witness is too
sick to appear at
trial.
2. He has to leave
the
Philippines
with no definite
date of return
(Sec. 15, Rule
119);
Conducted
only
before the judge or
the court where the
case is pending.
Right to crossexamine.
Hence
such statements of
the
prosecution
witnesses
may
thereafter
be
admissible in behalf
of or against the
accused.
May be made if the

witness
resides
more than 100 km
from the place of
Examination of
Prosecution
Witness
93

CRIMINAL PROCEDURE
presenting its evidence in chief (Joseph v. Villaluz, G.R.

No. L-45911, April 11, 1979). If a separate trial is
granted, the testimony of one accused imputing the
crime to his co-accused is not admissible against the
latter. In joint trial, it would be admissible if the latter
had an opportunity for cross-examination.
trial (Secs. 13 and

15, Rule 119).
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.
REQUISITE BEFORE TRIAL CAN BE SUSPENDED

ON ACCOUNT OF ABSENCE OF WITNESS
Requisites before a trial can be suspended on
account of the absence of a witness
That the:
1. Witness is material and appears to the court
to be so;
2. Party who applies has been guilty of no
neglect;
3. Witnesses can be had at the time to which the
trial is deferred and no similar evidence could
be obtained; and
4. Affidavit showing the existence of the above
circumstances must be filed.
Purposes of taking deposition

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; and
8. Expedite and facilitate both preparation for
and trial.
Remedies of the accused when a prosecuting

officer
without
just
cause
secures
postponements of the trial against his protest
beyond a reasonable period of time
1. Mandamus to compel a dismissal of the
information; or
2. If he is restrained of his liberty, by habeas
corpus to obtain his freedom.
TRIAL IN ABSENTIA
Conduct of trial for several accused
Trial in absentia
GR: When two or more persons are jointly

charged with an offense, they shall be tried
jointly. This rule is so designed as to preclude a
wasteful expenditure of judicial resources and to
promote an orderly and expeditious disposition
of criminal prosecutions.
Sec. 14 (2), Art. 3 of the Constitution provides that

trial may proceed notwithstanding the absence of
the accused provided that he has been duly
notified and his failure to appear is unjustifiable
(Parada v. Veneracion, A.M. No.RTJ-96-1353,
March 11, 1997).
XPN: The court, upon motion of the prosecutor or

any of the defendants, may order a separate trial
for one or more accused (Sec. 16, Rule 119).
Requisites of trial in absentia

1. The accused has been arraigned;
2. He has been notified of the trial; and
NOTE: In the interest of justice, a separate trial may be

granted even after the prosecution has finished
94

CRIMINAL PROCEDURE
3. His failure to appear is unjustified [Sec. 14(2),

Art. III, 1987 Constitution; Bernardo v. People,
520 SCRA 332, April 4, 2007].
If the accused is not brought to trial within the

time limit required by Sec. 1(g), Rule 116, the
information may be dismissed on motion of the
accused on the ground of denial of his right to
speedy trial (Sec. 9, Rule 117).
Effects of trial in absentia

The accused waives the right to present evidence
and cross-examine the witnesses against him. The
accuseds 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.
NOTE: The dismissal shall be subject to the rules on

double jeopardy (Ibid.).
Q: Assailing the validity of the decisions of both

trial and appellate court, the petitioner
questions the decisions of both courts convicting
him for violation of BP 22 on the ground that he
was denied due process of law as the trial court
proceeded with his trial and promulgated the
assailed decision in absentia. Is the petition
meritorious?
Failure of the accused to move for dismissal

prior to trial
Burden of proving the motion

The accused has the burden of proving the
motion but the prosecution shall have the burden
of going forward with the evidence to establish
the exclusion of time under Sec. 3, Rule 117
(Ibid.).
The failure of the accused shall constitute a

waiver of the right to dismiss under Sec. 9, Rule
117.
Remedies available to the accused when his
right to speedy trial is violated
A: No. The holding of trial in absentia is

authorized by law. Under Sec. 14 (2), Art. III of the
1987 Constitution, after arraignment, trial may
proceed notwithstanding the absence of the
accused provided that he has been duly notified
and his failure to appear is unjustifiable. The
failure of the accused to appear before the court
in spite of notice has been considered a waiver of
their right to be present at their trial, and the
inability of the court to notify them of the
subsequent hearings did not prevent it from
continuing with their trial. They were deemed to
have received notice. Thereafter, the trial court
had the duty to rule on the evidence presented
by the prosecution against all the accused and to
render its judgment accordingly (Bernardo vs.
People, G.R. No. 166980, April 4, 2007.).
1. Ask for the trial of the case;

2. Unreasonable delay of the trial of a criminal
case as to make the detention of defendant
illegal gives ground for habeas corpus as a
remedy for obtaining release;
3. Mandamus proceeding to compel the
dismissal of the information; or
4. Ask for the trial of the case and then move to
dismiss (Gandicela v. Lutero, G.R. No. L-4069,
March 5, 1951).
REQUISITES FOR THE DISCHARGE OF THE
ACCUSED TO BECOME A STATE WITNESS
State witness
He is 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 (People v.
Ferrer, G.R. No. 102062, March 14, 1996).
REMEDY IF ACCUSED IS NOT BROUGHT TO

TRIAL WITHIN THE PRESCRIBED PERIOD
Remedy if accused is not brought to trial within
the prescribed period
95

CRIMINAL PROCEDURE
Requisites before an accused may become a

State witness
discharge an accused and to use him as a state

witness, is that the defendant whose exclusion
is requested does not appear to be the most
guilty, not necessarily that he was the least
guilty(People vs. Faltado, 84 Phil. 89).
1. There is absolute necessity for the testimony of

the accused whose discharge is requested;
The discharge or exclusion of a co-accused
from the information in order that he may be
utilized as state witness is expedient that must
be availed of only when there is absolute
necessity for the testimony of the accused
whose discharge is requested, and not when
his testimony would simply corroborate or
otherwise strengthen the evidence in the
hands of the prosecution (People v. Borja, 106
Phil. 1111).
5. Said accused has not at any time been

convicted of any offense involving moral
turpitude (Sec. 17, Rule 119).
Moral turpitude includes any act done
contrary to justice, honesty, modesty or good
morals. It is an act of baseness, vileness, or
depravity in the private and social duties
which a man owes his fellowmen and to
society in general contrary to the accepted
and customary rule of right and duty between
man and woman or conduct contrary to
justice, honesty, modesty, or good morals.
2. There is no other direct evidence available for

the proper prosecution of the offense
committed, except the testimony of the said
accused;
Persons who may avail the Program of Witness

Protection, Security and Benefit Act (RA 6981)
It is essential, before a defendant is discharged

from the information for the purpose of
utilizing him as a witness for the government,
that there is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of said
accused (U.S. vs. Mandangan, 52 Phil. 62).
Any person who has witnessed or has knowledge

or information on the commission of a crime and
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or
before any investigating authority, may be
admitted into the Program, provided that:
3. The testimony of said accused can be

substantially corroborated in its material
points;
1.
2.
The testimony of the accused sought to be
discharged must be susceptible of substantial
corroboration in its material points. An
example of this is where the testimony of the
discharged witness was amply supported by
the fact that various articles of the stolen
property were found secreted in the place
where he indicated them to be (U.S. vs.
Mananquil, 25 Phil. 75).
3.
4.
4. Said accused does not appear to be the most
guilty; and
The discharged defendant need not be the
least guilty; all the law requires, in order to
96
The offense in which his testimony will be

used is a grave felony as defined under the
RPC, or its equivalent under special laws;
His testimony can be substantially
corroborated in its material points;
He or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to his life or
bodily injury or there is a likelihood that he
will be killed, forced, intimidated, harassed
or corrupted to prevent him from testifying,
or to testify falsely, or evasively, because or
on account of his testimony; and
He is not a law enforcement officer, even if
he would be testifying against the other law
enforcement officers. In such a case, only
the immediate members of his family may
avail themselves of the protection provided
for under this Act (Sec. 3, RA 6981).
CRIMINAL PROCEDURE
Q: Petitioner claims that the public respondent

judge erred when it ordered the discharge of
private respondents as state witnesses when the
latter were already charged along with the other
accused, including him, before they were
admitted to the Witness Protection under RA
6981. Petitioner argues that if this were to be
allowed, the same is tantamount to permitting
the prosecution to supplant with its own the
courts exercise of discretion on how a case over
which it has acquired jurisdiction, will proceed.
Is the petition meritorious?
exempted from prosecution. In the second, the

witness remains an accused and can be made
liable should he be found guilty of the criminal
offense (People vs. Chaves, G.R. No. 131377,
February 11, 2003).
Period for the application for discharge of the
state witness
It should be made upon motion of the
prosecution before resting its case.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE
WITNESS
A: No. The discharge of an accused under RA 6981

is separate and distinct from Rule 119. Rule 119
does not support the proposition that the power
to choose who shall be a state witness is an
inherent judicial prerogative. The Rules of Court
have never been interpreted to be beyond
change by legislation designed to improve the
administration of our justice system. RA 6981 is
one of the much sought penal reform laws to help
government in its uphill fight against crime. What
is only required under RA 6981 is compliance with
Sec. 14 of Rule 110 requiring that the exclusion of
the accused be made only upon motion by the
prosecutor, with notice to the offended party and
with leave of court (Yu vs. Judge RTC of Tagaytay
City, G.R. No. 142848, June 30, 2006).
Effects of the order discharging the accused as a

State witness
GR:
1. Discharge of accused operates as an
acquittal and bar to further prosecution for
the same offense (Sec. 18, Rule 119)
2. Evidence adduced in support of the
discharge shall automatically form part of
the trial (People v. Feliciano, G.R. No.
136258, October 10, 2001); and
3. If the court denies the motion to discharge
the accused as State witness, his sworn
statement shall be inadmissible in evidence
(People v. Feliciano, G.R. No. 136258,
October 10, 2001).
Q: Is the discharge of an accused as a state

witness necessary before the prosecution be
allowed to present him as a prosecution
witness?
XPNs:
1. When the accused fails or refuses to testify
against his co-accused in accordance with
his sworn statement constituting the basis
of his discharge (Sec. 18, Rule 119).
2. Failure to testify refers exclusively to
defendants will or fault,
3. Where an accused who turns states
evidence on a promise of immunity but later
retracts and fails to keep his part of the
agreement, his confession of his
participation in the commission of the crime
is admissible as evidence against him
(People v. Beberino GR No L-23213 October
28, 1977).
A: No. As there is nothing in the rules that require

that the accused be discharged first as a state
witness before he becomes a prosecution
witness. While it is true that an accused cannot
be made a hostile witness for the prosecution, for
to do so would compel him to be a witness
against himself, he may, however, testify against
a co-defendant where he has agreed to do so,
with full knowledge of his right and the
consequences of his acts. There is a difference
between testifying as state witness and testifying
as a co-accused. In the first, the proposed state
witness has to qualify as a witness for the state,
after which he is discharged as an accused and
97

CRIMINAL PROCEDURE
NOTE: Discharge under this rule is only one of the

modes to be a State witness. Other modes are:
1.
The Witness Protection Program of RA 6981;
2.
The power of the Ombudsman to grant immunity
under Sec. 17, RA 6770;
3.
Immunity under PD 749;
4.
Immunity under EO 14-A;
5.
Immunity under the Comprehensive Dangerous
Drugs Act of 2002, RA 9165; and
6.
Immunity and Protection under the Human
Security Act of 2007, RA 9372.
prevent him from

testifying or to
testify falsely or
evasively
on
account of his
testimony.
The
witness
applying is not a law
enforcement
officer.
Effects when the discharged accused retracts or

fails to comply with his part of the agreement
The immunity
granted by DOJ.
If the retraction or failure to testify is solely his

fault, his confession of his participation in the
commission of the crime is admissible as evidence
(People v. Beberino, G.R. No. L-23092, October 28,
1977).
The witness is
automatically
entitled to certain
rights and benefits.
Witness Protection Program v. Sec. 17, Rule 119

of the Rules of Court
Witness Protection
Program
The offense in
which
the
testimony is to be
used is limited only
to grave felony
under the RPC or its
equivalent under
special law.
Any member of the
family of the person
applying
for
admission within
the second civil
degree
of
consanguinity
or
affinity is subjected
to threat of his life
or bodily injury or
there is a likelihood
that he will be
killed,
forced,
intimidated,
harassed
or
corrupted
to
The witness need

not be charged
elsewhere.
Rules of Court
It
has
qualification.
applies
to
felonies.
is
no
It
all
No information may
thus be filed against
the witness.
There is no such
limitation. One can
be discharged as a
witness whether he
is
a
law
enforcement officer
or not.
The immunity is
granted by the
court.
The witness so
discharged
must
still apply for the
enjoyment of said
rights and benefits
in the DOJ.
He is charged in
court as one of the
accused as stated in
the information.
The charges against
him
shall
be
dropped and the
same operates as
an acquittal.
NOTE: Both require that there is absolute necessity for

the testimony and that there is no other direct
evidence available for the prosecution of the offense
committed.
This is not required.
Rule when the discharge of an accused operates

as an acquittal
GR: The discharge of the accused shall amount to
an acquittal and shall be a bar to future
prosecution for the same offense.
XPN: If the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of the
discharge (Sec. 18, Rule 119).
98

CRIMINAL PROCEDURE
Remedy when mistake has been made in

charging the proper offense
Ground
Effect
When it becomes manifest at any time before

judgment that a mistake has been made in
charging the proper offense and the accused
cannot be convicted of the offense charged or
any other offense necessarily included therein,
the accused shall not be discharged if there
appears to be a good cause to detain him. In such
case, the court shall commit the accused to
answer for the proper offense and dismiss the
case upon filing of the proper information (Sec.
19, Rule 119).
Insufficiency of evidence
The court may dismiss the
case (Sec. 23, Rule 119).
NOTE: If the demurrer is sustained by the court, the

order of dismissal is tantamount to an acquittal, hence
it is NOT appealable. On the other hand, the order of
denial of the demurrer to evidence is not reviewable
by appeal or certiorari before judgment, unless the
denial is attended by grave abuse of discretion, in
which case such denial may be assailed through a
petition for certiorari.
Effect of filing a demurrer with leave of court v.

Filing a demurrer without leave
NOTE: This rule is predicated on the fact that an

accused 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.
Demurrer With
Leave of Court
If leave of court is
denied, the accused
may proceed with
presenting
his
evidence.
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 (Nicolas v. Sandiganbayan, 544 SCRA
324, February 11, 2008).
The motion for

leave of court to file
a demurrer to
evidence
shall
specifically state its
grounds and shall
be filed within a
non-extendible
period of 5 days
after
the
prosecution rests
its
case.
The
prosecution may
oppose the motion
within
a
nonextendible period
of 5 days from its
receipt.
NOTE: A demurrer to evidence is actually a motion to

dismiss that is filed by the accused after the
prosecution has rested its case (1994 Bar Question).
Rule on demurrer to evidence

How made
When made
1. Court on its own

initiative; or
2. Upon filing of the
accused for demurrer of
evidence:
a. With leave of court;
or
b. Without leave of
court.
After the prosecution rests
its case.
99
Demurrer Without
Leave of Court
If
demurrer
is
denied,
it
is
tantamount to a
waiver
of
the
accuseds right to
present evidence
and
as
a
consequence the
case
will
be
submitted
for
judgment on the
basis
of
the
evidence for the
prosecution.
If
demurrer
is
granted, the case
will be dismissed,
and will result to an
acquittal of the
accused.
If
demurrer
is
consequently
granted, it will
result to acquittal of
the accused. (

CRIMINAL PROCEDURE
JUDGMENT
RULE 120
If leave of court is
granted,
the
accused may file
the demurrer to
evidence within 10
days.
The
prosecution may
however, oppose
the demurrer to
evidence within a
non-extendible
period of 10 days
from the receipt of
the demurrer (Sec.
23, Rule 119).
Judgment
It is 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 is
regarded as the sentence of the law pronounced
by the court on the action or question before it
(Sec. 1, Rule 120).
Difference between a judgment and a ratio
decidendi
A judgment pronounces the disposition of the
case; while a ratio decidendi provides the basic
reason for such determination.
Purpose of leave of court

To determine whether or not the defendant in a
criminal case has filed the demurrer merely to
stall the proceedings (People v. Mahinay, G.R. No.
109613, July 17, 1995).
Final order
It disposes of the whole subject matter or
terminates a particular issue leaving nothing to
be done but to enforce by execution what has
been determined.
Demurrer to evidence v. Motion to dismiss

Demurrer to
Evidence
Assumes that the
prosecution
has
already rested its
case filed by the
accused with or
without leave of
court and submits
the
case
for
judgment on the
evidence of the
prosecution.
Motion to Dismiss
Interlocutory order
It is based on the
denial
of
the
accuseds right to
speedy
trial
characterized
by
unreasonable,
vexatious
and
oppressive
delay
without fault of the
accused, or by
unjustified
statements
that
unreasonably
prolonged the trial.
It may be filed in It is filed without
good faith with or leave of court and
without leave of before
the
court.
prosecution
has
rested its case.
It is issued by the court when the proceeding is

not yet terminated because not all matters of the
proceedings have been finished.
REQUISITES OF A JUDGMENT
It must be:
1. Written in official language;
2. Personally and directly prepared by the
judge;
3. Signed by the judge; and
4. Contain clearly and distinctly a statement of
the facts and the law upon which it is based
(Sec. 1, Rule 120).
NOTE: The jurisdictional requirements before a
judgment may be validly rendered are jurisdiction over
the subject matter, territory and the person of the
accused (Antiporda, Jr. v. Garchitorena, 321 SCRA 551).
100

CRIMINAL PROCEDURE
CONTENTS OF JUDGMENT
NOTE: The judgment of acquittal extinguishes the
liability of the accused for damages only when it
includes a declaration that the facts from which the
civil liability might arise did not exist. Thus, the civil
liability is not extinguished by acquittal where the
acquittal is based on reasonable doubt (PNB vs.
Catipon, 98 Phil. 286).
Contents of judgment
The judgment must state:
1. If of conviction
a. Legal qualification of the offense
constituted by the acts committed by the
accused, and the aggravating or
mitigating circumstances attending its
commission;
b. Participation of the accused whether as
principal, accomplice or accessory;
c. Penalty imposed upon the accused; and
d. Civil liability or damages caused by the
wrongful act or omission unless a
separate civil action has been reserved or
waived (Sec. 2, Rule 120).
2. If of acquittal
a. Whether the evidence of the prosecution
absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt
beyond reasonable doubt; and
b. In either case, the judgment shall
determine if the act or omission from
which the civil liability might arise did
exist (Sec. 2, Rule 120).
Rule regarding a judgment for two or more

offenses charged in the complaint or
information
When two or more offenses are charged in a
single complaint or information but the accused
fails to object to it before trial, the court may
convict him of as many offenses as are charged
and proved, and impose on him the penalty of
each offense, setting out separately the findings
of the fact and law in each offense (Sec. 3, Rule
120).
NOTE: Failure of the accused to object to the duplicity
of offense charged in the complaint or information, is
deemed a waiver thereof (Herrera, 2007).
Rule on variance between the offense charged

and proved
Q: Can the courts impose penalties in the

alternative?
GR: An accused can be convicted of an offense

only when it is both charged and proved; if it is
not charged although proved, or if it is not proved
although charged, the accused CANNOT be
convicted thereof.
A: No. It is true that under many of the provisions

of the penal law, the court has the discretion or
alternative of imposing one or another of
different penalties; but certainly it cannot be
argued that, because the judge has the discretion
of fixing one or another penalty, he can impose
both in the alternative. He must fix positively and
with certainty the particular penalty (U.S. vs.
Chong Ting, 23 Phil. 120).
XPN: Where there is a variance between the

offense charged in the complaint or information
and that proved AND the offense as charged is
included in or is necessarily includes the offense
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 (Sec. 4).
Rule on the award of indemnity to offended

party in spite of acquittal
NOTE: An accused cannot be convicted of an offense

not charged or included in the information for this will
be in violation of the constitutional right of the
accused to be informed of the nature of the offense
charged against him (Herrera, 2007).
In case of acquittal, unless there is a clear showing

that the act from which the civil liability might
arise did not exist, the judgment must make a
finding on the civil liability of the accused in favor
of the offended party (Sec. 2, par. 2, Rule 120).
101

CRIMINAL PROCEDURE
Effect of the judgment of conviction upon a

minor
judge of the court rendering the judgment (Ibid.).

It is promulgated by reading it in the presence of
the accused and any judge of the court which it
was rendered, or when the judgment is one of
conviction for a light offense, in the presence of
the defendants counsel or representative (Ibid.).
The courts shall promulgate the sentence and

ascertain any civil liability which the accused may
have incurred. The sentence, however, shall be
suspended without need of application pursuant
to PD 603 or the Child and Youth Welfare Code. In
which case, the child shall have been committed
under the care of the DSWD or any other
accredited government institution until he
reaches the age of 21 or until the court so
determines (Sec. 40, RA 9344, Juvenile Justice and
Welfare Act of 2006).
NOTE: A judgment or sentence does not become a

judgment or sentence in law until the same has been
read or announced to the defendant or has become a
part of the record of the court (U.S. vs. CFI of Manila,
24 Phil. 321).
Authority to promulgate the judgment

GR: The judge of the court who renders the
judgment.
XPNs for the suspension of sentence of youthful

offenders
XPNs: When:
1. The judge is absent or outside the province or
city Judgment may be promulgated by the
clerk of court; and
2. Accused is confined or detained in another city
Judgment may be promulgated by the
executive judge of the RTC having jurisdiction
over the place of confinement or detention
(Sec. 6, Rule120).
When such minor offender:

1. Has enjoyed previous suspension of
sentence;
2. Is convicted of a crime punishable by death or
life imprisonment;
3. Is convicted by a military tribunal; or
4. Is already of age at the time of sentencing
even if he was a minor at the time of the
commission of the crime (Declarador v.
Gubaton, G.R. No. 159208, August 18, 2006).
NOTE: Where there is not merely physical absence of

the judge who penned the decision, but the cessation
or termination of his incumbency as such judge, there
is no judgment validly entered in such a case (Ong Siu
vs. Paredes, 17 SCRA 661).
Rule if the minor already reached the age of

majority upon the promulgation of his sentence
He is no longer entitled to the suspension of
sentence. However, the time he spent during the
period of his confinement shall be credited to his
actual service of sentence. Furthermore, he shall
still be entitled to the privileged mitigating
circumstance of minority (People v. Francisco,
G.R. No. 102976, October 25, 1995; RA 9344,
Juvenile Justice and Welfare Act of 2006).
Q: Is the presence of the accused indispensable

in the promulgation of judgment?
Promulgation of judgment
A: No. The promulgation shall still be made by: (1)

recording such judgment in the criminal docket,
and (2) serving him a copy thereof in 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 judgment and his
bail shall be forfeited.
It is the official proclamation or announcement of

judgment. It consists of reading the judgment or
sentence in the presence of the accused and any
However, the accused may surrender and file a

motion for leave of court to avail of these
remedies within 15 days from the promulgation
PROMULGATION OF JUDGMENT; INSTANCES OF

PROMULGATION OF JUDGMENT IN ABSENTIA
102

CRIMINAL PROCEDURE
of judgment. If such motion is granted, he may

avail of these remedies within 15 days from
notice of such order granting the motion (Sec. 6,
Rule 120). He must however, state the reasons for
his absence at the promulgation and prove that
his absence was for a justifiable cause.
A finding of not guilty based on the merits, that is,

the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable
doubt, or a dismissal of the case after the
prosecution has rested its case upon motion of
the accused on the ground that the evidence fails
to show beyond reasonable doubt that the
accused is guilty.
Instances when judgment may be promulgated

even if the accused is not present
NOTE: 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 (Barbers v. Laguio Jr., AM No. RTJ-00-1568,
February 15, 2001).
1. A judgment of acquittal.
2. Judgment is for a light offense, in which case
judgment may be promulgated in the
presence of the counsel for the accused or a
representative.
3. Accused fails to attend the promulgation
despite due notice or if he jumped bail or
escaped from prison. Notice must be given to
the bondsmen, warden, accuseds bailor and
counsel (Sec. 6, Rule 120).
Reasonable doubt
The state of the case which, after full
consideration of all 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.
Rule on modification of judgment

A judgment of conviction may, upon motion of
the accused, be modified or set aside before it
becomes final or before appeal is perfected
(Sec.7, Rule 120).
FINALITY OF JUDGMENT
Finality of judgment
1. After the lapse of time for perfecting an
appeal
NOTE: A judgment of acquittal becomes final

immediately after promulgation and cannot be
recalled for correction or amendment (People vs.
Sison, 105 Phil. 1248).
NOTE: In case of death penalty is imposed,

the CA shall automatically review the judgment
before it becomes final.
Remedy when the judgment fails to award civil

liability
1.
2.
3.
2. When the sentence has been partially or

totally satisfied.
3. When the accused has expressly waived in
writing his right to appeal.
4. When the accused has applied for probation
(Sec. 7, Rule 120).
Appeal;
Certiorari; or
Mandamus
Mittimus
Instances when the trial court loses jurisdiction

even before the lapse of the 15 day period to
appeal
It is a process issued by the court after conviction

to carry out the final judgment, such as
commanding a prison warden to hold the accused
in accordance with the terms of judgment.
1. The defendant voluntarily submits to the

execution of the judgment;
2. When the defendant perfects an appeal;
3. Defendant withdraws his appeal;
Acquittal
103

CRIMINAL PROCEDURE
4. Accused expressly waives in writing his right

to appeal;
5. Accused files for probation.
offense committed. However, instead of

pronouncing the judgment of conviction, the
Court shall place the child in conflict with the law
under suspended sentence without need of
application. Suspension of sentence shall still be
applied if the juvenile is already 18 years of age or
more at the time of the pronouncement of
his/her guilt (Sec. 38, RA 9344).
ENTRY OF JUDGMENT
The recording of the judgment or order in the
book of entries of judgments shall constitute its
entry. The record shall contain the dispositive
part of the judgment order and shall be signed by
the clerk, with a certificate that such judgment or
order has become final and executory (Sec. 2,
Rule 36).
XPNs:
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 military tribunal.
4. Offender is already of age at the time of
sentencing even if he was minor at the time
of the commission of the crime.
EXISTING PROVISIONS ON SUSPENSION OF

SENTENCE OF YOUTHFUL OFFENDERS
GR: Once the child is under 18 years of age at the
time of the commission of the offense charged,
the Court shall determine and ascertain any civil
liability which may have resulted from the
EXISTING PROVISIONS ON PROBATION
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 one month and one day and/or a
fine not less than two hundred pesos.
4. Those who have been once on pardon.
5. Those who are already serving sentence at
the time the Probation Law of 1976 became
applicable (Sec. 9, PD 968 as amended).
The court may, after it shall have convicted and

sentenced a defendant within the period for
perfecting an appeal, suspend the execution of
the sentence and place the defendant on
probation for such period and conditions it may
deemed best. No application for probation shall
be entertained or granted if the defendant has
perfected an appeal from the judgment of
conviction (Sec. 4, PD 968 as amended).
Offenders disqualified from probation

NEW TRIAL OR RECONSIDERATION
RULE 121
GROUNDS
Motion for New Trial v. Motion for Reconsideration
New trial
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.
Grounds:
104
Reconsideration
May be filed in order to correct errors of law or
fact in the judgment. It does not require any
further proceeding.
Grounds:

CRIMINAL PROCEDURE
1. Errors of law or irregularities prejudicial to the

substantial rights of the accused have been
committed during the trial.
2. New and material evidence has been discovered
which the accused could not, with reasonable
diligence, have discovered and produced at the
trial and which if introduced and admitted would
probably change the judgment (Sec. 2, Rule121).
3. Other grounds which the court may consider in
the exercise of its jurisdiction :
a. Negligence or incompetency of counsel or
mistake which is so gross amounting to
deprivation of the substantial rights of the
accused and due process (Aguilar v. CA GR
No. 114282, November 28, 1995);
b. Recantation of a witness where there is no
evidence sustaining the judgment of
conviction other than the testimony of such
witness (Tan Ang Bun v. CA GR No. L- 47747,
February 15, 1990);
c. Improvident plea of guilty which may be
withdrawn;
d. Disqualification of attorney de officio to
represent accused in trial.
e. Interest of justice (Sec. 6, Rule 121).
1. Errors of law; or
2. Errors of fact (Sec. 3, Rule121).
NOTE: 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.
4. The evidence is of such a weight that it would

probably change the judgment if admitted
(Herrera, 2007).
Period to file an MNT or MR

It should be filed with the trial court within 15
days from the promulgation of the judgment. If
an appeal has already been perfected, a motion
for new trial on the ground of newly discovered
evidence maybe filed in the appellate court.
NOTE: A new trial may be granted at any time before

the judgment of conviction becomes final:
1. On motion of the accused.
2. On motion of the court but with consent of the
accused.
REQUISITES BEFORE A NEW TRIAL MAY BE

GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE
Q: May errors or ignorance of counsel be a

ground for new trial or reconsideration?
A: GR: Mistakes or errors of counsel in the
conduct of his case are not grounds for new trial.
This rule is the same whether the mistakes are
the result of ignorance, inexperience, or
incompetence.
Requisites before a new trial may be granted on

the ground of newly discovered evidence (Berry
Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
3. It is material, not merely cumulative,
corroborative or impeaching; and
XPN: If the incompetence, ignorance or

inexperience of counsel is so great and the error
committed as a result thereof is so serious that
the client, who otherwise has a good cause, is
105

CRIMINAL PROCEDURE
prejudiced and denied his day in court, the

litigation may be reopened to give the client
another chance to present his case (Abrajano v.
CA, G.R. No. 114282, October 13, 2000).
GR: It is not a ground

for granting a new
trial and are hardly
given weight
Form of a motion
reconsideration
XPN: When there is

no
evidence
sustaining
the
judgment
of
conviction other than
the testimony of the
recanting
witness
(Tan Ang Bun v. CA,
G.R. No. L-47747,
February 15, 1990).
for
new
trial
or
The motion must:

1. Be in writing;
2. Be filed in court;
3. State the grounds on which it is based; and
4. If the motion for new trial is based on newly
discovered evidence, it must be supported by
the affidavits of the witness by whom such
evidence is expected to be given or duly
authenticated copies of documents which it
is proposed to introduce in evidence (Sec. 4,
Rule 121).
It is not by itself a
ground for dismissal
of the action (People
v. Ramirez, G.R. Nos.
150079-80, June 10,
2004). It is merely an
additional ground to
buttress the defense
and not a sole
consideration
for
acquittal (People v.
Ballabare, G.R. No.
108871, November
19, 1996).
EFFECTS OF GRANTING A NEW TRIAL OR

RECONSIDERATION
Effects of granting a new trial or reconsideration
NOTE: While the rule requires that an affidavit of merit

be attached to support a motion for new trial based on
newly discovered evidence, the rule also allows that
the defect of lack of merit may be cured by the
testimony under oath of the defendant at the hearing
of the motion(Paredes v. Borja, G.R. No. L-15559,
November 29, 1961).
In all cases, when the court grants a new trial or

reconsideration, the original judgment shall be
set aside or vacated and a new judgment
rendered accordingly.
In addition, when new trial is granted on the
ground of:
Recantation
1. Errors of law or irregularities committed

during the trial
a. All proceedings and evidence not
affected by such errors and irregularities
shall stand;
b. Those affected shall be set aside and
taken anew; and
c. In the interest of justice, the court may
allow the introduction of additional
evidence.
The public and formal withdrawal by a witness of

his prior statement (People v. Ballabare, G.R. No.
108871, November 19, 1996).
Recantation v. Desistance
Recantation
A
witness
who
previously gave a
testimony
subsequently declares
that his statements
are
untrue
publicly(People
v.
Ballabare, G.R. No.
108871, November
19, 1996).
Affidavit of
Desistance
The
complainant
states that he did not
really
intend
to
institute the case and
he is no longer
interested
in
testifying
or
prosecuting.
2. Newly discovered evidence

a. The evidence already taken shall stand;
b. Newly discovered and other evidence as
the court may, in the interest of justice,
allow to be introduced, shall be taken and
considered together with the evidence
already in the record (Sec. 6, Rule121).
106

CRIMINAL PROCEDURE
NOTE: The effect of 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 had before.
appeal in criminal cases under Sec. 6 of Rule 122,

for the following reasons:
1.
BP 129, as amended, the substantive law on

which the Rules of Court is based, makes no
distinction between the periods to appeal in
a civil case and in a criminal case.
2.
The provisions of Sec. 3 of Rule 41 of the

1997 Rules of Civil Procedure and Sec. 6 of
Rule 122 of the Revised Rules of Criminal
Procedure mean exactly the same. There is
no substantial difference between the two
provisions insofar as legal results are
concerned the appeal period stops running
upon the filing of a motion for new trial or
reconsideration and starts to run again upon
receipt of the order denying said motion for
new trial or reconsideration. It was this
situation that Neypes addressed in civil
cases. No reason exists why this situation in
criminal cases cannot be similarly
addressed.
3.
While the Court did not consider in Neypes

the ordinary appeal period in criminal cases
under Sec. 6, Rule 122 of the Revised Rules
of Criminal Procedure since it involved a
purely civil case, it did include Rule 42 of the
1997 Rules of Civil Procedure on petitions
for review from the RTCs to the CA and Rule
45 of the 1997 Rules of Civil Procedure
governing appeals by certiorari to this Court,
both of which also apply to appeals in
criminal cases, as provided by Sec. 3 of Rule
122 of the Revised Rules of Criminal
Procedure.
New trial v. Reopening of the case

New Trial
Filed
after
judgment
is
rendered
but
before the finality
thereof.
Made by the court
on motion of the
accused or at its
own instance but
with the consent of
the accused.
Re-opening of the
Case
Made by the court
before
the
judgment
is
rendered in the
exercise of sound
discretion.
Does not require
the consent of the
accused; may be at
the instance of
either party who
can
thereafter
present additional
evidence.
APPLICATION OF NEYPES DOCTRINE IN

CRIMINAL CASES
Effect of filing a motion for new trial or
reconsideration on the period of perfecting an
appeal
A fresh period of 15 days to appeal is counted
from the denial of the motion for reconsideration
or new trial (Neypes v. CA, G.R. No. 141524,
Q: Does the fresh period rule apply to criminal
cases?
APPEAL
RULE 122
A: Yes. The raison dtre for the "fresh period

rule" is to standardize the appeal period provided
in the Rules and do away with the confusion as to
when the 15-day appeal period should be
counted. The Court held in the case of Yu v.
Samson-Tatad,G.R. No. 170979, February 9, 2011
that the pronouncement of a fresh period to
appeal should equally apply to the period for
Appeal
It is a proceeding for review by which the whole
case is transferred to the higher court for a final
determination. It is not an inherent right of a
convicted person. The right of appeal is statutory.
Only final judgments and orders are appealable.
107

CRIMINAL PROCEDURE
Parties who may avail of appeal
Q: May the prosecution appeal a judgment of

acquittal?
Any party may appeal from a judgment or final

order, unless the accused will be placed in double
jeopardy (Sec. 1, Rule 122).
A: GR: No. The accused would be subjected to

double jeopardy.
Period to take an appeal
XPNs:
1. If the dismissal is made upon motion or with
the express consent of the accused.
It must be taken within 15 days from

promulgation of judgment or from notice of final
order appealed from (Sec. 6, Rule122).
XPNs to the XPN:

a. Insufficiency
of
the
prosecution
evidence; or
b. Violation of the accuseds right to speedy
trial.
WHERE TO APPEAL
Courts where appeal is taken
1. RTC, in cases decided by the MTC, MTCC,
MeTC, or MCTC;
2. CA or to the SC in the proper cases provided
by law, in cases decided by the RTC;
3. SC, in cases decided by the CA(Sec. 2,
Rule122);
4. SC, in cases decided by CTA en banc (Sec. 1
Rule 116 A.M. No. 05-11-07-CTA);
5. SC, in cases decided by Sandigan (Sec. 1 Rule
45).
2. If the dismissal is not an acquittal or based

upon consideration of the evidence on the
merits;
3. If the question is purely legal so that should
the dismissal be found incorrect, the case
shall be remanded for further proceedings to
determine the guilt or innocence of the
accused; and
4. If there is a showing of grave abuse of
discretion amounting to lack or excess of
jurisdiction, certiorari under Rule 65 may be
available
HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002)

Procedure of an appeal
Appeal to
RTC
CA
From decision of
How taken
1. File a notice of appeal with
the MTC;
2. Serve a copy of the notice to
the adverse party.
RTC
1. Exercising its original jurisdiction for
the RTC;
offenses with imposable penalties 2. Serve a copy of the notice to
less than reclusion perpetua or life
the adverse party.
imprisonment.
2. Exercising its appellate jurisdiction. File a petition for review under
Rule 42.
3. Where the imposable penalty is:
a. life imprisonment or reclusion
the RTC;
perpetua; or
2. Serve a copy of the notice to
the adverse party.
MTC
108

CRIMINAL PROCEDURE
4.
SC
1.
2.
3.
b. a lesser penalty for offenses

committed on the same
occasion or which arose from
the same occurrence that gave
rise to the offense punishable
reclusion perpetua or life
imprisonment.
Where the imposable penalty is
death.
All other appeals except:
a. Decision of RTC where the
imposable penalty is life
imprisonment or reclusion
perpetua or a lesser penalty for
offenses committed on the
same occasion or which arose
from the same occurrence that
gave rise to the offense
punishable
by
reclusion
perpetua or life imprisonment;
and
b. Decisions of RTC imposing the
penalty of death.
CA
a. When it finds that death penalty
should be imposed.
b. Where it imposes reclusion
perpetua, life imprisonment or a
lesser penalty.
Sandiganbayan
a. Exercising
its
appellate
jurisdiction for offenses where
the imposable penalty is
reclusion perpetua or life
imprisonment.
b. Exercising
its
original
jurisdiction for offenses where
the imposable penalty is
reclusion perpetua and life
imprisonment.
c. Cases not falling in paragraphs
(a) and (b) above.
Automatic review to CA (Sec. 10,

Sec. 122).
Petition for review on certiorari
via Rule 45.
Automatic review (Sec. 13, Rule

124).
Notice of appeal (Sec. 13, Rule
124).
File a notice of appeal
File a notice of appeal (Sec. 13,

Rule 124; Sec. 5, PD 1606 as
amended by RA 8249).
Petition for review on certiorari

via Rule 45.
NOTE: By virtue of RA 9346, the imposition of death

penalty is suspended.
109

CRIMINAL PROCEDURE
Modes of review recognized by the Rules of

Court
1.
2.
3.
4.
1. The accused may seek a review of said

judgment as regards both criminal and civil
actions; or
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.
Ordinary appeal;
Petition for review;
Petition for review on certiorari;
Automatic appeal.
Service of notice of appeal

Effect of perfection of appeal with regard to the
jurisdiction of the court
GR: Through personal service made upon the

adverse party or his counsel.
Once an appeal in a case, whether civil or

criminal, has been perfected, the court a quo
loses jurisdiction over the case both over the
record and over the subject of the case (Director
of Prisons v. Teodoro, G.R. No. L-9043, July 30,
1955). Failure to serve a copy to the prosecutor is
not a defect which can nullify the appeal or
prejudice the unquestionable rights of the
accused.
XPN: If personal service cannot be made,

through:
1. Registered mail; or
2. By substituted service pursuant to Secs. 7 and
8 of Rule 13(Sec. 4, Rule122).
3. By publication, made in a newspaper of
general circulation in the vicinity once a week
for a period not exceeding 30 days (Pamaran,
2010).
Effects of failure to prosecute an appeal

NOTE: 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
(Sec. 5, Rule122).
1. Judgment of the court 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.
EFFECT OF AN APPEAL
Effect of an appeal
EFFECT OF APPEAL BY ANY OF SEVERAL

ACCUSED
An appeal in a criminal case opens the whole case

for review and this includes the review of penalty,
indemnity, and the damages involved.
Consequently, on appeal, the appellate court may
increase the penalty and indemnity of damages
awarded by the trial court although the offended
party had not appealed from said award, and the
party who sought a review of the decision was the
accused.
Effects of appeal by any of the several accused

1. An appeal taken by one or more of several
accused shall not affect those who did not
appeal, except insofar as the judgment of the
appellate court is favorable and applicable to
the latter;
2. The appeal of the offended party from the
civil aspect shall not affect the criminal aspect
of the judgment or order appealed from; and
Modes of appeal that may be taken from a

judgment convicting the accused
110

CRIMINAL PROCEDURE
3. Upon perfection of the appeal, the execution

of the judgment or final order appealed from
shall be stayed as to the appealing party (Sec.
11, Rule122).
7. Failure of the appellant to take the necessary

steps for the correction or completion of the
record within the time limited by the court in
its order;
NOTE: In People v. Olivo, G.R. No. 177768, July 27,

2009, an accused has benefitted from the acquittal of
his co-accused despite the formers failure to appeal
from the judgment.
SEARCH AND SEIZURE

RULE 126
Search Warrant
Period to withdraw an appeal
It is an:
1. Order in writing issued in the name of the
People of the Philippines;
2. Signed by a judge;
3. Directed to a peace officer, commanding him
to search for personal property described
therein; and
4. Bring it before the court (Sec. 1, Rule 126).
1. An appellant may withdraw his appeal before

the record has been forwarded by the clerk of
court to the proper appellate court as
provided by Sec. 8, Rule 122, in which case
the judgment shall become final (Sec. 12).
2. 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 the judgment in the case on
appeal (Sec. 12, Rule122).
NOTE: The warrant must name the person upon whom

it is to be served except in those cases where it
contains a descriptio personae such as will enable the
officer to identify the person. The description must be
sufficient to indicate clearly the proper person upon
whom it is to be served (People v. Veloso GR No L23051, October 20, 1925).
GROUNDS FOR DISMISSAL OF APPEAL

1. Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by these Rules;
2. Failure to file the notice of appeal or the
record on appeal within the period
prescribed by these Rules;
3. Failure of the appellant to pay the docket and
other lawful fees as provided in Sec. 5 of Rule
40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44;
5. Failure of the appellant to serve and file the
required number of copies of his brief of
memorandum within the time provided by
these Rules;
6. Absence of specific assignment of errors in
the appellants brief, or of page references to
the record as required in Sec. 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
General warrant
A search warrant 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.
NOTE: A general warrant is not valid as it infringes on
the constitutional mandate requiring particular
description of the things to be seized.
Scatter-shot search warrant

It is a warrant issued for more than one offense.
It is invalid because it violates the Constitution.
111

CRIMINAL PROCEDURE
NOTE: There must be strict compliance with the

constitutional and statutory requirements. Otherwise,
it is void. No presumptions of regularity are to be
invoked in aid of the process when an officer
undertakes to justify it (People v. Veloso, G.R. No.
23051, October 20, 1925). It will always be construed
strictly without going the full length of requiring
technical accuracy.
Searching
examination
witnesses is
necessary.
Judge is merely
called
upon
to
examine
and
evaluate the report
of the prosecutor
and the evidence.
NATURE OF SEARCH WARRANT

It is in the nature of a criminal process and may
be invoked only in furtherance of public
prosecutions. Search warrants have no relation to
civil process or trials and are not available to
individuals in the course of civil proceedings, nor
for the maintenance of a mere private right. It is
interlocutory in character because it leaves
something more to be done, which is the
determination of the guilt of the accused.
NOTE: In general, the requirements for the issuance of

a search warrant are 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.
DISTINGUISH FROM WARRANT OF ARREST

Warrant of Arrest v. Search Warrant
Warrant of Arrest
Order directed to
the peace officer to
execute the warrant
by taking the person
stated therein into
custody so that he
may be bound to
answer for the
commission of the
offense.
Does not become
stale.
May be served on
any day and at any
time of day or night.
of
not
The judge must

personally conduct
an examination of
the complainant and
the witnesses.
Examination must
be probing. Not
enough to merely
adopt the questions
and answers asked
by
a
previous
investigator.
Distinguish search from seizure

Search is an examination of a mans house or
other buildings or premises or of his person for
the discovery of contraband or illicit or stolen
property or some evidence of guilt to be used in
the prosecution of a criminal action for some
offense with which he is charged. Seizure on the
other hand is the physical taking of a thing into
custody.
Search Warrant
Order in writing in
the name of the
People
of
the
Philippines signed by
the
judge
and
directed to the
peace officer to
search
personal
property described
therein and to bring
it to court.
Validity is for 10 days
only.
To be served only in
daytime unless the
affidavit alleges that
the property is on
the person or in the
place
to
be
searched.
APPLICATION FOR SEARCH WARRANT, WHERE

FILED
Court where to file an application for a search
warrant
GR: It should be filed with the court within whose
territorial jurisdiction the crime was committed.
XPNs:
1. For compelling reasons, any court within the
judicial region where the crime was
112

CRIMINAL PROCEDURE
committed if the place of the commission of

the crime is known, or any court within the
judicial region where the warrant shall be
enforced
2. However, if the criminal action has been filed,
the application shall only be made in the
court where the criminal action is pending
(Sec. 2, Rule126);
3. In case of search warrant involving heinous
crimes, illegal gambling, illegal possession of
firearms and ammunitions as well as
violations of the Comprehensive Dangerous
Drugs Act of 2002, the Intellectual Property
Code, the Anti- Money Laundering Act of
2001, the Tariff and Customs Code, the
Executive judges and whenever they are on
official leave of absence or are not physically
present in the station, the Vice- Judges of
RTCs of Manila and Quezon City shall have
the authority to act on the application filed by
the NBI, PNP and the Anti- Crime Task Force
(ACTAF) (Administrative Matter No. 99-1009-SC).
quash the search warrant questioning the

propriety of the venue where the warrant was
enforced. Should the motion to quash be
granted?
A: No. As a general rule, search warrants issued
by courts may be effectuated only within their
territorial jurisdiction. Thus, the RTC of Manila
does not have the authority to issue a search
warrant for offenses committed in Cavite.
Nonetheless, this case involves a transitory or
continuing offense of unfair competition.
Teds imitation of the general appearance of
Barneys goods was done allegedly in Cavite. It
sold the goods allegedly in Metro Manila. The
alleged acts would constitute a transitory or
continuing offense. Thus, clearly, under Sec. 2 (b),
Rule 126; Sec. 168, R.A. 8293 and Art. 189 (1),
RPC, Barney may apply for a search warrant in any
court where any element of the alleged offense
was committed, including any of the courts within
the NCR (Sony Computer Entertainment, Inc. v.
Supergreen, Inc., G.R. No. 161823, March 22,
2007).
NOTE: The application shall be personally endorsed by

the heads of such agencies and shall particularly
describe therein the places to be searched and/ or the
property or things to be seized as prescribed in the
Rules of Court. The Executive Judges and the ViceExceutive Judges concerned shall issue the warrants if
justified, which may be served outside the territorial
jurisdiction of said courts (Sps. Marimla v. People, G.R.
No. 158467, October 16, 2009).
Requisites before a search warrant may be

issued
1.
2.
3.
Q: Barney filed a complaint with the NBI against

Ted alleging that the latter was engaged in the
reproduction and distribution of counterfeit
products originally produced by Barney. Said
products, allegedly, was produced in Cavite but
sold in Manila. Thus, NBI applied with the RTC of
Manila for warrants to search Teds premises in
Cavite. The RTC of Manila issued a search
warrant covering Teds premises at Cavite. The
NBI served the search warrants on Teds
premises and seized the said counterfeit
products. Thereafter, Ted filed a motion to
4.
5.
6.
113
It must be issued upon probable cause;

Probable cause must be determined by the
issuing judge personally;
The judge must have personally examined,
in the form of searching questions and
answers, the applicant and his witnesses;
The search warrant must particularly
describe or identify the property to be
seized as far as the circumstances will
ordinarily allow;
The warrant issued must particularly
describe the place to be searched and the
persons or things to be seized;
It must be in connection with one specific
offense;

CRIMINAL PROCEDURE
7.
The sworn statements together with the

affidavits submitted by witnesses must be
attached to the record (Prudente v. Dayrit,
G.R. No. 82870, December 14, 1989).
Herrera, G.R. No. L-25232, December 20,

1973).
2. There must be competent proof of particular
acts or specific omissions but only the best
evidence under the circumstances is
required(People v. Judge Estrada, G.R. No.
124461, September 26, 1998).
NOTE: The warrant must not have been issued more

than 10 days prior to the search made pursuant
thereto.
Requirement of Multi-factor Balancing test in

determining probable cause
PROBABLE CAUSE
Probable cause
It requires the officer to weigh the manner and

intensity of the interference on the right of the
people, the gravity of the crime committed, and
the circumstances attending the incident.
It refers to the facts and circumstances which

could 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
(Burgos v. Chief of Staff, G.R. No. L-65334,
December 26, 1984).
Q: Does the absence of probable cause on a

particular article invalidate the entire search
warrant?
A: No. Such particular article may be severed
from the rest of the search warrant, provided that
the remaining parts meet the requirements of
probable cause and particularity.
Basis of probable cause

The basis must be the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay. The test of
sufficiency of a deposition or affidavit is whether
it has been drawn in a manner that perjury could
be charged thereon and the affiant be held liable
for damage caused.
PERSONAL EXAMINATION BY JUDGE OF THE

APPLICANT AND WITNESS
Requisites of Personal Examination by the
Judge
Mere affidavits of the complainant and his

witnesses are not sufficient. The judge has to take
the depositions of the complainant and the
witnesses in writing and attach them to the
record (Mata v. Bayona, G.R. No. L-50720, March
26, 1984).
1. The judge must examine the witness

personally;
2. The examination must be under oath;
3. The examination must be reduced to writing
in the form of searching questions and
answers (Marinas v. Siochi, G.R. Nos. L-25707
& 25753-25754, May 14, 1981);
4. It must be probing and exhaustive, not
merely routinary or pro forma(Roan v.
Gonzales, G.R. No. 71410, November 25,
1986); and
5. It is done ex-parte and may even be held in
the secrecy of chambers (Mata v. Bayona,
G.R. No. L-50720, March 26, 1984).
Factors to consider for the determination of

probable cause
1. Time of the application in relation to the
alleged offense committed. 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(Asian Surety Insurance v.
114

CRIMINAL PROCEDURE
Form of search warrant
A: Yes. It could be served at any time within its

10-day lifetime, and if its object or purpose
cannot be accomplished in one day, the same
may not be used for a different purpose on each
day. After the articles for which the warrant was
issued have been seized, the same warrant
cannot be utilized as authority to make another
search (Gorospe, 2006, citing Uy Kheytin v.
Villareal 42 Phil. 886).
The search warrant must be in writing and must

contain such particulars as the name of the
person against whom it is directed, the offense
for which it was issued, the place to be searched
and specific things to be seized.
NOTE: The warrant must name the person upon whom
it is to be served except in those cases where it
contains a descriptio personae such as will enable the
officer to identify the person. The description must be
sufficient to indicate clearly the proper person upon
whom it is to be served (People v. Veloso, G.R. No. L23051, October 20, 1925).
The time must not be one which is intrusive or

violative of ones privacy, like at the middle of the
night. Then, too, depending on the locality, what
may be reasonable time in one place would not
be so in some other cases (Gorospe, 2006).
Lifetime of a search warrant
Q: What is a reasonable time to effect a search?
A warrant is valid for 10 days from the date of its

issue. After such time, it is void (Sec. 10). A search
warrant can be used only once, thereafter it
becomes functus oficio, except when the search
conducted on one day was interrupted, in which
case the same may be continued under the same
warrant the following day if not beyond the 10
day period.
A: 7:30 P.M. is a reasonable time for executing a

search warrant in the metropolis. The exact time
of the execution of a warrant should be left to the
discretion of the law enforcement officers. And in
judging the conduct of said officers, judicial
notice may be taken not just of the realities of law
enforcement, but also the prevailing conditions in
the place to be searched. We take judicial notice
that 7:30 P.M. in a suburban subdivision in Metro
Manila is an hour at which the residents are still
up-and-about. To hold said hour as an
unreasonable time to serve a warrant would not
only hamper law enforcement, but could also
lead to absurd results, enabling criminals to
conceal their illegal activities by pursuing such
activities only at night (Ibid).
Rule with respect to the time of making a search

GR: A search warrant must be served at day time.
XPN: A search warrant may be made at night
when it is positively asserted in the affidavit that
the property is on the person or in the place
ordered to be searched. The affidavit making such
assertion must itself be sufficient as to the fact so
asserted, for if the same is based upon hearsay,
the general rule shall apply. A search warrant
conducted at night without direction to that
effect is an unlawful search. The same rule applies
where the warrant left blank the time for
making the search.
Knock and announce principle

It states that officers implementing a search
warrant must announce their presence, identify
themselves to the accused and to the persons
who rightfully have possession of the premises to
be searched, and show to them the search
warrant to be implemented by them and explain
to them said warrant in a language or dialect
Q: May the implementation of the search

warrant be done on different days?
115

CRIMINAL PROCEDURE
known to and understood by them. The

requirement is not a mere procedural formality
but is of the essence of the substantial provision
which safeguards individual liberty.
accusations, it is required that the search be

conducted in the presence of the:
1. Lawful occupant of the place to be searched;
2. Any member of his family;
3. In their absence, in the presence of 2
witnesses of sufficient age and discretion
residing in the same locality (Sec. 8, Rule126).
NOTE: A lawful entry is the indispensable predicate of

a reasonable search. A search would violate the
constitutional guarantee against unreasonable search
and seizure if the entry was illegal, whether
accomplished by force, or by threat or show of force
or obtained by stealth, or coercion.
NOTE: A public officer or employee who exceeds his

authority or uses unnecessary severity in executing the
warrant is liable under Art. 129, RPC.
Instances when an unannounced intrusion into

the premises is permissible
PARTICULARITY OF PLACE TO BE SEARCHED

AND THINGS TO BE SEIZED
When:
1. A party whose premises or is entitled to the
possession thereof refuses, upon demand, to
open it;
2. Such person in the premises already knew of
the identity of the officers and of their
authority and persons;
3. The officers are justified in the honest belief
that there is an imminent peril to life or limb;
or
4. Those in the premises, aware of the presence
of someone outside, are then engaged in
activity which justifies the officers to believe
that an escape or the destruction of evidence
is being attempted.
Tests to determine particularity of the place to

be searched
1. When the description therein is as specific as
the ordinary circumstance will allow (People
v. Rubio, GR No L-35500, October 27, 1932);
2. When the description express a conclusion of
fact, not of law which the warrant officer may
be guided in making the search and seizure;
3. When the things described therein are
limited to those which bear direct relation to
the offense for which the warrant is being
issued.
Importance of describing with particularity the
place to be searched and the persons or things
to be seized
NOTE: The exceptions above are not exclusive or

conclusive. There is no formula for the determination
of reasonableness. Each case is to be decided on its
own facts and circumstances (People v. Huang Zhen
Hua, G.R. No. 139301, September 29, 2004).
The purpose of the rule is to leave the officers of

the law with no discretion regarding what articles
they shall seize, to the end that unreasonable
searches and seizures may not be made that
abuses may not be committed (Stonehill v.
Diokno, G.R. No. L-19550, June 19, 1967).
Rules to be observed in case of search of a house

or room
In order to insure that the execution of the
warrant will be fair and reasonable, and in order
to insure that the officer conducting the search
shall not exceed his authority or use unnecessary
severity in executing the search warrant, as well
as for the officers own protection against unjust
PERSONAL PROPERTY TO BE SEIZED

Kinds of personal properties subject to seizure
1. Subject of the offense;
116

CRIMINAL PROCEDURE
2. Stolen or embezzled and other proceeds or

fruits of the offense; and
3. Used or intended to be used as the means of
committing an offense (Sec. 3, Rule126).
accused failed to object to the search. To

constitute a waiver, the following requisites
must concur:
a. The right exists;
b. The person involved had knowledge,
actual or constructive, of the existence of
such rights; and
c. Actual intention to relinquish such rights
(People v. Burgos, G.R. No. 92739, August
2, 1991).
NOTE: It is not required that the property to be seized

should be owned by the person against whom the
search warrant is directed. It is sufficient that the
person against whom the warrant is directed has
control or possession of the property sought to be
seized (Burgos v. Chief of Staff, G.R. No. L-65332,
December 26, 1984).
3. Search of moving vehicle May validly be

made without a search warrant because the
vessel or aircraft can quickly move out of the
jurisdiction before such warrant could be
secured (People v. Lo Ho Wing, G.R. No.
88017, January 21, 1991).
Objects subject to seizure during a search

incidental to an arrest of a person even without
a search warrant
1. Dangerous weapons; and
2. Anything which may be used as proof of the
commission of an offense.
4. Checkpoints; body checks in airport

Searches conducted in checkpoints are valid
for as long as they are warranted by the
exigencies of public order and are conducted
in a way least intrusive to motorists. For as
long as the vehicle is neither searched nor its
occupants subjected to a body search, and
the inspection of the vehicle is limited to a
visual search, said routine checks cannot be
regarded as violative of an individuals right
against unreasonable search (People v.
Vinecario, G.R. No. 141137, January 20,
2004).
EXCEPTIONS TO SEARCH WARRANT

REQUIREMENT
Instances of a valid warrantless search
1. Search incident to lawful arrest This
includes searching the person who is
arrested, in order to find and seize the things
connected with the crime as fruits or as the
means by which it was committed.
NOTE: Search made without warrant cannot be
justified as an incident of arrest unless the arrest
itself was lawful.
In body checks in airports, passengers

attempting to board an aircraft routinely pass
through metal detectors; their carry-on
baggage as well as checked luggage are
routinely subjected to x-ray scans. Should
these procedures suggest the presence of
suspicious objects, physical searches are
conducted to determine what the objects
are. There is little question that such
searches are reasonable, given their minimal
intrusiveness, the gravity of the safety
interests involved, and the reduced privacy
Immediate control test A search incidental to a

lawful warrantless arrest may extend beyond the
person where the exigencies of the situation
justify a warrantless search for dangerous
weapons and to prevent the arrestee from
destroying evidence of the crime within reach
(People v. Musa, G.R. No. 95329, January 27,
1993).
2. Consented search (waiver of right) Consent

cannot be presumed simply because the
117

CRIMINAL PROCEDURE
expectations associated with airline travel.

Indeed, travelers are often notified through
airport public address systems, signs, and
notices in their airline tickets that they are
subject to search and, if any prohibited
materials or substances are found, such
would be subject to seizure.
These
announcements place passengers on notice
that ordinary constitutional protections
against warrantless searches and seizures do
not apply to routine airport procedures
(People v. Johnson, G.R. No. 138881,
December 18, 2000).
b. Maintain the status quo momentarily

while the police officer seeks to obtain
more information.
NOTE: The officer may search the outer clothing
of the person in an attempt to discover weapons
which might be used to assault him (Manalili v.
CA, G.R. No. 113447, October 9, 1997).
7.
Q: The search warrant authorized the seizure of

undetermined quantity of shabu. During the
service of the search warrant, the raiding team
also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to
suppress the marijuana leaves as evidence for
the violation of Sec. 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were not
covered by the search warrant. The State
justified the seizure of the marijuana leaves
under the plain view doctrine. There was no
indication of whether the marijuana leaves were
discovered and seized before or after the seizure
of the shabu. If you are the judge, how would
you rule the motion to suppress? (2008 Bar
Question)
5. Plain view doctrine It authorizes a search

and a seizure without a warrant. For the
doctrine to apply, the following requisites
must be met:
a. There must have been a legal presence in
the place where the search is made;
b. The
evidence
was
discovered
inadvertently by an officer with a right to
be where he is;
c. The evidence is immediately apparently
illegal; and
d. There is no need for any further search to
obtain the evidence (People v.
Concepcion, 361 SCRA 540; People v.
Sarap, 399 SCRA 503; People v. Go; 411
SCRA 81).
6.
Enforcement of custom laws
A: It should be granted. The search warrant

violates the constitutional and statutory
requirement that should particularly describe the
person or things to be seized (Sec. 2, Art. III, 1987
Constitution; Sec. 2, Rule 126). The plain view
doctrine cannot be invoked because the
marijuana leaves were wrapped in newsprint.
Besides the marijuana leaves are not the subject
of the search warrant. There was no evidence as
to whether the marijuana leaves were discovered
and seized before or after the seizure of the
shabu. If they were discovered after the seizure
of the shabu, then they could not have been
seized in plain view. The confiscation of the
marijuana leaves must not be upheld, hence
rendering the same inadmissible in evidence
against the accused.
Stop and frisk situations This is a limited

protective search of the outer clothing of a
person to determine the presence of
weapons. Probable cause is not required but
a genuine reason (not mere suspicion) must
exist, in the light of the officers experience
and surrounding circumstances, to warrant
the belief that the persons has concealed
weapons (Malacat v. Court of Appeals, 283
SCRA 159). Its object is either to:
a. Determine the identity of a suspicious
individual; or
118

CRIMINAL PROCEDURE
REMEDIES FROM UNLAWFUL SEARCH AND

SEIZURE
court, the motion shall be resolved by the

latter court (Sec. 14, Rule 126).
Parties who may question the validity of search

and seizure
Rule with respect to waiver of legality and

admissibility of a search warrant
It can be contested only by the party whose rights

have been impaired thereby, and that the
objection to an unlawful search and seizure is
purely personal and cannot be availed by third
parties (Stonehill v. Diokno, G.R. L-19550, June 19,
1967).
Objection to the legality of the search warrant, or

as to the admissibility of the evidence obtained is
deemed waived where no objection of the search
warrant was raised during the trial of the case nor
to the admissibility of the evidence obtained
through said warrant (Demaisip v. CA, G.R. No.
89393, January 25, 1991).
Remedies against an unlawful search

PROVISIONAL REMEDIES IN CRIMINAL CASES
RULE 127
1. Motion to quash the search warrant;

2. Motion to suppress as evidence the objects
illegally taken (exclusionary rule any
evidence obtained through unreasonable
searches and seizures shall be inadmissible
for any purpose in any proceeding);
3. Replevin, if the objects are legally possessed;
and
4. Certiorari, where the search warrant is a
patent nullity.
NATURE
Provisional Remedies
They are those to which parties may resort for the
preservation or protection of their rights or
interests and for no other purposes during the
pendency of the action. They are applied to a
pending litigation for the purpose of securing the
judgment or preserving the status quo; and in
some cases after judgment, for the purpose of
preserving or disposing of the subject
matter(Cala v. Roldan, G.R. No. L-252, March 30,
1946).
NOTE: The remedies are alternative. If a motion to

quash is denied, a motion to suppress cannot be
availed consequently. The illegality of the search
warrant does not call for the return of the things
seized, the possession of which is prohibited by law.
However, those personalties seized in violation of the
constitutional immunity whose possession is not illegal
or unlawful per se ought to be returned to their rightful
owner or possessor.
KINDS OF PROVISIONAL REMEDIES

Kinds of Provisional Remedies available in
criminal cases
Venue of filing a motion to quash search warrant
1.
2.
3.
4.
5.
1. It may be filed and acted upon only by the

court where the action has been instituted;
2. If no criminal action has been instituted, it
may be filed in and resolved by the court that
issued the search warrant. However, if such
court failed to resolve the motion and a
criminal case is subsequently filed in another
Attachment (Rule 57);

Preliminary injunction (Sec. 58);
Receivership (Rule 59);
Delivery of personal property (Rule 60);
Support pendente lite (Rule 61).
Attachment
119

CRIMINAL PROCEDURE
It is a remedy afforded to the offended party to

have the property of the accused attached as
security for satisfaction of any judgment that may
be recovered from the accused.
Party who may apply for attachment
The aggrieved party in whose behalf the civil
aspect of the criminal action is prosecuted may
apply for the issuance of a writ of preliminary
attachment, he being the person primarily and
directly interested thereby. The prosecutor in the
criminal action may make such an application in
behalf of or for the protection of the interest of
the offended party.
Cases wherein attachment is made available
1. When the 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 a duty;
3. When the accused has concealed, removed
or disposed of his property or is about to do
so;
4. When the accused resides outside the
Philippines (Sec. 2, Rule127).
120

CRIMINAL PROCEDURE
121


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CRIMINAL PROCEDURE

JURISDICTION OVER THE SUBJECT MATTER V.

Jurisdiction over the

The method prescribed by law for the

Derived from law. It

Criminal Law v. Criminal Procedure

REQUISITES FOR EXERCISE OF CRIMINAL

The absence of any of these elements may be

1. Jurisdiction over the subject matter This is

UNIVERSITY OF SANTO TOMAS

which the court is by law authorized to take

amendatory law (Binay v. Sandiganbayan

NOTE: GR: Questions of jurisdiction may be raised at

In cases where the only penalty provided by law

XPN: The party raising the question is guilty of

Tests to determine jurisdiction of the court in

NOTE: Accessory penalties and civil liabilities are no

Court having jurisdiction on continuing offenses

UNIVERSITY OF SANTO TOMAS

MTC, considering that in the hierarchy of

immediately investigated and prosecuted for the

Q: In complex crimes, how is the jurisdiction of a

WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN

Institution of criminal action

Q: Will injunction lie to restrain the

Criminal actions are instituted by:

A: GR: Injunction cannot lie to restrain the

UNIVERSITY OF SANTO TOMAS

2. For all other offenses, by filing the complaint

Municipal Ordinances and to Provide When

NOTE: For Metro Manila and other chartered cities,

Q: In offenses punishable by imprisonment not

Direct filing of a complaint or information with

A: GR: No. Before a complaint is filed in court,

There is no direct filing of an information or

Effect of institution of a criminal action

Prescriptive periods of cases falling under the

NOTE: Notably, the aforequoted article (Art. 91,

The prescriptive period shall be suspended from

XPN: Prescriptive periods of violations of special

Offense or crime that cannot be prosecuted de

UNIVERSITY OF SANTO TOMAS

These are crimes or offenses which cannot be

Instances when the State may initiate the action

Who may file

1. When the offended party dies or becomes

GR: All criminal actions initiated by complaint or

NOTE: This is pursuant to the doctrine of parens

XPNs: Private crimes which may only be

Persons who may file a Complaint on cases of

NOTE: These are also known as private crimes.

Party who may legally file a complaint for

Only the offended spouse may file a complaint for

NOTE: The offended spouse cannot institute a criminal

Filing a complaint by a minor for Seduction,

Parties who may file a complaint for seduction,

XPNs: If the minor is:

The offended party;

NOTE: If the minor fails to file a complaint, his parents,

NOTE: Such crimes cannot be prosecuted if the

Q: Fey, a minor orphan was subjected to acts of

UNIVERSITY OF SANTO TOMAS

file charges. Fey now asks you as counsel how

Suppose the crime committed against Fey by her