1

INTRODUCTION
The law on criminal procedure intersects and interweaves with constitutional law because
of the inherent clash between the interest of the State to preserve public order, and the interest of
the individual to have his rights protected. A discussion of criminal procedure would therefore be
incomplete without a discussion of the Bill of Rights.
This reviewer therefore integrates the important points of the Bill of Rights together with
the details of remedial criminal procedure in order to give the reader a more holistic
understanding of criminal procedure. Substantive law, particularly criminal law, is likewise
discussed when necessary.

RIGHTS OF THE ACCUSED

CONSTITUTIONAL BASIS

Art. III, Sec. 14, 1987 Constitution:

"(1) No person shall be held to answer for a
criminal offense without due process of law.
(2) In all criminal prosecutions, the accused
shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature
and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to secure the attendance of witnesses
and the production of evidence in his behalf.
However, 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."
Art. III, Sec. 16, 1987 Constitution:
"All persons shall have the right to a speedy
disposition of their cases before all judicial, quasijudicial or administrative bodies."
Art. III, Sec. 17, 1987 Constitution:
"No person shall be compelled to be a witness
against himself."

Although the rights of the accused as enumerated under Rule 115, Sec. 1 pertain to the
trial stage of the criminal prosecution, they are discussed here at the start of this reviewer in order
to set the subsequent discussion of criminal procedure within the perspective of protection of the
rights of the accused.

Right to be presumed innocent

Right to be
speedy,
informed
heardimpartial
personally
of theand
nature
orpublic
by and
counsel
trial
cause
Right
of the
to accusation
confront witnesses
compulsory
process

Right to discovery
Is there a right of discovery for the accused in criminal cases?
See the following provisions:

Rule 119, Sec. 12

-- Conditional examination of witnesses on behalf of

accused
Rule 116, Sec. 10 -- Production or inspection of material evidence in
possession of prosecution
Rule 116, Sec. 9 -- Motion for bill of particulars
Rule 112, Sec. 3(b), par. 2 -- Issuance of subpoena by prosecutor to
accused attaching to it a copy of the complaint
and its supporting affidavits and documents
(Note however that this is during preliminary
investigation.)

It was held in the case of People v. Webb that a denial of discovery procedures to an
accused in a criminal case is tantamount to a deprivation of the accuseds right to compulsory
process which is guaranteed in the Constitution.
Is there a right of discovery for the prosecution in criminal cases?
Yes. See Rule 119, Sec. 15 (examination of witnesses for the prosecution)
Why is it that the right of discovery cannot be the same for both prosecution and
accused?
It might violate the accuseds right against self-incrimination.

Right against self-incrimination

Scope of the privilege

The scope of the privilege against self-incrimination covers compulsory testimonial selfincrimination, i.e. that which will entail use of mental processes and/or communicative faculties. It
has since been extended to include any evidence communicative in nature, acquired under
circumstances of duress. (People v. Olvis, 154 SCRA 525)

Effect of violation
When the privilege against self-incrimination is violated outside of court (e.g., by the
police), then testimony is not admissible under the exclusionary rule.
When the privilege is violated by the court itself, i.e. by the judge, the court is ousted of its
jurisdiction, and all its proceedings are null and void, and is as if no judgment has been rendered.
(See Chavez v. CA, 34 SCRA 663)

Constitutional basis Custodial investigation defined

CUSTODIAL
INVESTIGATION

Art. III, Sec. 2, 1987 Constitution:

"(1) Any person under investigation for the
commission of an offense shall have the right to
be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he must
be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat,
intimidation or any other means which vitiates
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 (the right against
self-incrimination) shall be inadmissible in
evidence against him."

Custodial investigation involves any questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. It is only after 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 lends itself to eliciting incriminating statements
that the rule begins to operate. (People v. Marra, 236 SCRA 565)
As provided for in Sec. 2, R.A. 7438, custodial investigation includes the practice of
issuing an "invitation" to a person who is investigated in connection with an offense he is
suspected to have committed. This shall be without prejudice to the liability of the "inviting" officer
for any violation of law.

Police line-ups
Rights of person under custodial investigation

(1)
(2)
(3)
(4)
(5)

Right against arbitrary detention (Art. 125 RPC)

Right against torture, inhumane treatment (Art. 3, Sec. 12 #2 Consti)
Right to remain silent (Art. 3 Sec. 12 #1 Consti)
Right against solitary confinement (Art. 3 Sec. 12 #2 Consti)
Right to be assisted by counsel at all times (RA 857) or by a national/international
NGO duly accredited by the Office of the President (EO 155) see RA 7438
(6) Right to be informed that anything he says may and will be used against him
(Miranda rights)
(7) Right to privacy of correspondence and communication (Art. 3 Sec. 3 #1 Consti)
(8) Right against unreasonable searches and seizures (Art 3 Sec. 2 Consti)
(9) Right to competent and independent counsel preferably of his own choice and be
provided with one if he cant afford the services of counsel (Art. 3 Sec. 12 #1 Consti)
(10)Right to waive assistance of counsel provided it be done intelligently and with
assistance of counsel (ibid)
1. Is there a right to conjugal visits?
No such right in custodial investigation, but see RA 7438, Sec. 2f.
2. Must the suspect be informed that his silence will not be used against him? Must he
be given a mini-lecture on Crim. Pro?
Nowhere in the consti or ROC is it provided that the suspect must be informed that his silence
does not bear any adverse consequence. However, it is believed that for a suspect to be
considered as truly informed of his constitutional right to silence, he must be advised that
such silence will not be taken against him. This is due to the fact that in many instances,
persons arrested feel that it looks worse for them if they remain absolutely silent.
3. Is the right to be informed of the above rights satisfied if they are typewritten?
No. In People vs. Galit, it was held that each right must be explained to the accused in
simple words in his own dialect/language. Such is the requirement for warnings to be valid
and effective.

IS A POLICE LINE-UP DEEMED PART OF CUSTODIAL INVESTIGATION?

In the case of Gamboa v. Cruz (162 SCRA 642), the petitioner had not
yet been held to answer for a criminal offense when he was identified by the
complainant at the police line-up. The Court held that in this case, the police
line-up was not part of custodial investigation and therefore the right to counsel
did not attach at that time. The Court held that when the process has not yet
shifted from the investigatory to the accusatory as when police investigation does

Miranda Doctrine
not elicit a confession, the accused may not yet avail of the services of his
lawyer.
The Gamboa ruling was reiterated in the case of People v. Santos (236
SCRA 686; 1993), wherein the Court noted that there was nothing in the records
of the case that would show that in the course of the line-up, the police
investigators sought to extract any admission or confession from the accused.
In the US case of US v. Wade (908 U.S. 218; 1957) however, which
involved a post-indictment line-up, it was held that the absence of counsel during
the line-up was violative of the accused's rights. The Court held that the postindictment line-up was a critical stage of the prosecution at which the accused
was as much entitled to the aid of counsel as at the trial itself.

Rights embodied in the Miranda doctrine

a. right to remain silent
b. right to counsel
c. right to be informed of the above rights

Constitutional changes in the Miranda doctrine

d. Waiver of assistance of counsel must now be in writing and in the presence of
counsel
e. Persons under investigation are not only entitled to counsel, they are entitled to
competent and independent counsel
4. Harmonize the ruling in Galman v. Pamaran with People v. Ayson
In Galman v. Pamaran, the court opined that the incriminatory testimonies given in the
investigation conducted by the Agrava Board were not admissible in evidence by reason of
non-compliance with the Miranda warnings.
This ruling was made despite its
acknowledgment that said testimonies were given before an administrative body, not in a
criminal case, and that the suspects werent in custody at the time they gave their
testimonies. The reason given was that the protection granted under the Phil. Consti was
wider in scope than in the US because the word custodial was not included in our
constitution, which extends its protection to any person under investigation for the
commission of an offense.
In Pp vs. Ayson, the Court held that the constitutionally mandated Miranda warnings of the
accuseds right to silence and counsel are applicable only to police in-custody interrogation
as the commencement of adversarial proceedings against the suspect.
To harmonize the 2 cases, Prof. Tadiar commented that although the proceedings before the
Agrava Board were certainly not police investigations, they undoubtedly were an integral part
of a criminal investigation looking in the double murder. As such, the Agrava proceedings

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could be held as the commencement of the adversarial criminal process that mandates the
right to counsel. This is inapplicable to the Ayson case which involved an administrative
investigation by PAL management of a ticket clerk for alleged irregularities in the sale of
tickets.
5. When do the Miranda rights apply?
From the moment of arrest.
6. Are Miranda rights available in checkpoints and Stop and Frisk situations?
No. There is as yet no arrest. The fact that one consents to the search in the face of armed
military men does not constitute waiver of the right against Illegal Search (the person
searched may still question the legality of the search).
7. Police ran after a suspect who later hid himself in a building. The police sealed off all
points of ingress and egress and later talked to the suspect by megaphone. The police
used the information given against him later. Was the suspect deprived of Miranda
rights? When is a person considered under detention?
Bautista said: A DOJ circular stated that when the questioning is already removed from infield questioning, one the person is restricted in his physical movements in any significant
way, then the rights arise already Theres no need to put the persons in a cell for him to be
considered under detention. Going by the said definition, it is submitted that in the problem
above, the suspect is effectively under detention as he is already surrounded by the police
with no possible means of escape.
8. Bautista says:
Not that the scope of exclusion regarding the Privilege against Self-Incrimination and Miranda
Rights is not as broad as that afforded when there is a violation of the Right against Privacy
of Correspondence and Communication. In the latter, any evidence obtained in violation of
said right will be inadmissible for any purpose in any proceeding.
9. Is there any presumption regarding statements given under police custody?
Yes. The presumption is that such statements were involuntarily made.
10. Is the taping of Bautistas lectures a violation of the Anti-Wiretapping law?
No, since it is with his consent and involves communication that is not the private one
contemplated by law.
11. An illegal wiretap was made on the telephone of the accused and from listening to the
wiretap, the police came to know of the name and address of a witness who they later
got to testify against the accuse. Can such testimony be suppressed on the ground
that the name and address of the witness was obtained by an illegal wiretap?
No. The fact the he voluntarily testified in court does not make it the fruit of a poisonous tree
and though it may have an effect of attenuating the testimony of a witness; not however Sec.
4 of RA 4200: any communicated/spoken word, or the existence of contents, substance,
purport, or meaning of the same or any part thereof, or any info therein contained and
obtained/secured by any person in violation of the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasi-judicial, legislative/administrative
investigation/hearing.

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Waiver of Miranda rights Exclusionary rule

12. If the suspect is a lawyer, do the Miranda warning still have to be made?
Yes, because educational attainment is immaterial.
13. Is videotaping a film shown in the theater a violation of RA 4200?
No, thats not a private communication although said act may be a violation of the Copyright
law.

What may be waived

The right to remain silent and to counsel may be waived, but never the right to be given
the Miranda warnings.

Requirements for a valid waiver

(1) The waiver must be in writing.
(2) The waiver must made in the presence of counsel.

Burden of proving voluntariness of waiver

The burden of proving the voluntariness of the waiver of the Miranda warnings lies with
the prosecution. (People v. Jara, 144 SCRA 516; 1986)

What is the so-called exclusionary rule?

Any confession or admission obtained from the accused in violation of Sec. 12 (custodial
investigation) or Sec. 17 (right against self-incrimination) of the Constitution shall be inadmissible
in evidence against the accused.
Implications:

(1) The confession / admission can be used against the co-accused.

(2) It can be used in impeachment cases.
(3) It can be used in rebuttal.

When is the exclusionary rule not applicable?

The Miranda rule, and therefore the exclusionary rule, are not applicable in the following
situations:
(1) Confessions executed before Jan. 17, 1973;

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Doctrine of fruit of the poisonous tree Doctrine of attenuated taint

(2) Res gestae statements (People v. Dy, 158 SCRA 111; 1988)
The declaration of the accused acknowledging guilt made to the police desk
officer after the crime was committed may be given in evidence against him by
the police officer to whom the admission was made, as part of the res gestae.
(People v. Dy)

(3) Statements given in administrative investigations (People v. Ayson, 175 SCRA 216;
1989)
(4) Official forms prepared and accomplished in the normal course of audit regularly
conducted by the Commission on Audit (Kimpo v. Sandiganbayan, 235 SCRA 53);
(5) X-ray examinations of the body (People v. Tranca, 235 SCRA 455)

Any evidence obtained pursuant to an illegal search or seizure shall be inadmissible

against him. And any evidence obtained pursuant to such illegally-obtained evidence shall
likewise be inadmissible.
Qualification to the rule:

If the evidence could have been discovered even without the

poisonous tree, then it is admissible.

What is the doctrine of attenuated taint?

If the taint is so diffused or remote, then the evidence need no longer be excluded. For
example, if the name of a witness is obtained through an illegal wiretap, but such witness
voluntarily agrees to testify.
If the suspect in police custody voluntarily starts answering questions without aid of
counsel, are the statements given admissible?
No, unless before doing so he had waived the right to remain silent and to counsel in
writing and in the presence of counsel.
The theory in Miranda v. Arizona is that the atmosphere in police interrogation is
inherently coercive, therefore, statements given under police custody are presumptively
involuntary and the burden of showing voluntariness is on the prosecution.

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Arrest defined Kinds of arrests Grounds

When arrest
for issuance
takes place
of warrant

ARREST
NOTES:
The 2000 Rules changed the power of an RTC judge to issue warrants of arrest. See Rule 112,
Sec. 6 of the old and new rules.

In general

A warrant of arrest is an order addressed to a law enforcement officer commanding him

to physically restrain a person to make him answer for the commission of an offense. (Rule 113,
Sec. 1)

With warrant
Without warrant

When arrest takes place: What is the importance of knowing when?

Why is it important to know the precise time of arrest?
To determine whether or not there has been violation of the law against Arbitrary Detention.

Arrest with warrant

The only ground for issuance of a warrant of arrest is probable cause. Probable cause
refers to such facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense had been committed by the person sought to be arrested.

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Who may issueProcedure for issuanceExecuting the warrant

Who may issue (not effect) a warrant of arrest in our jurisdiction?

According to Harvey v. Santiago:
a. Judge if the purpose of the arrest is to enable the suspect to answer for a charge
b. CID Commissioner if the purpose is to execute a decision/order

How arrest is made

An arrest 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. (Rule 113, Sec. 2)

Who may serve a warrant of arrest

Can anybody be authorized to serve a warrant of arrest?
No. R.113 S.3 says the arresting officer (although it was not expounded who these arresting
officers are).

Duty of arresting officer

It is the duty of the officer executing the warrant to arrest the accused and deliver him to
the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

Time of arrest
An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec.
6)

Method of arrest
No violence of unnecessary force shall be used in making an arrest. The arrested shall
not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, 2nd
paragraph)

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Warrantless arrests
Grounds
Who may effect; how effected
By peace officer
By private person
When is a warrant of arrest not necessary?
(1) When the accused is already under detention pursuant to a warrant issued by the MTC judge
in Rule 112, Sec. 6 (b);
(2) When the complaint or information was filed pursuant to Rule 112, Sec. 7, i.e. a valid
warrantless arrest;
(3) When the offense is penalized by fine only. (Rule 112, Sec. 6 (c))
(4) When the accused lawfully arrested escapes or is rescued (Rule 113, Sec. 13)

Consequences of an unlawful arrest

Modes of attacking the validity
How can you attack an unlawful arrest?
(1) Motion to quash (Alimpoos v. CA)
(2) Habeas Corpus (See Rule 102)
(3) Bail (but then you dont really go into the validity of the arrest here Note that under
the new rules, an application for or admission to bail is no longer a bar to challenge
the validity of an arrest)

Standing to challenge
Time to challenge
Sanctions
What are the consequences of an unlawful arrest?
Illegal arrest is a crime.

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How much time between the commission of the offense and the arrest, a week ago? IN
determining whether a warrantless arrest is valid or not do we inquire into whether there
was adequate opportunity to obtain a warrant? Is the existence of opportunity and time a
consideration in determining the validity of a warrantless arrest?
No. See People v. Amundin.
Bautista: take note of the crimes referred to in R. 113 Sec. 5a as continuing crimes laid
down by Umil v. Ramos: rebellion, subversion, conspiracy/proposal to commit such
crimes, and crimes/offenses committed in furtherance thereof or in connection therewith.

Does a warrant of arrest have to state the name of the person?

No. If unknown name, a sufficient description will do.
If you only have a picture of the suspect, is that enough?
It is submitted that there still has to be a sufficient description.
Does the warrant of arrest have a lifetime?
No, although after 10 days from receipt of the warrant of arrest, the head of the office to
whom the warrant was delivered for execution must report to the issuing judge in case of
failure to execute the same.
Can the warrant of arrest be served anywhere in the Phil?
Yes.
Anytime?
Yes.

Do you know what a reliable asset is?

Police informer.
Q. Mobil car 1 calls police in Mobil car 2 and says that they have a warrant of arrest for B who is
now in Mobil car 2s area. Mobil car 1 says please assist us in arresting him. Police in car 2
sees B. Can they arrest him?
A. Yes. R113 S7. The officer need not have the warrant of arrest in his possession at the time
of the arrest, but after the arrest, if the person arrested so requires, the warrant shall be
shown to him as soon as practicable.

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Q. Recently, I had a client, a collector of customs. An importer complained to him that a
collector was hustling for a bribe in consideration for something. The matter was referred to
the NBI who set an entrapment. The NBI officer posted himself outside of Alfredos. There
was a meeting between the Chinese and the collector of customs and according to the
collector, they handed some envelopes containing marked money. After that they arrested
him without warrant. Is the arrest valid?
A. Yes. The person arrested has actually committed a crime in his presence. Arrested person
can be said to have been caught in flagrante, hence arrest in valid. [US v. Fortaleza] An
offense is committed in the presence of within the view of an officer within the meaning of the
rule authorizing an arrest without a warrant when the officer sees the offense, although at a
distance, or hears the disturbance created.
On what grounds may a warrant of arrest be issued?
Only one ground: probable cause.
On what ground may a warrantless arrest be made?
Probable cause.
Q. There is this Chinese importer who complained to the Commissioner of Customs that this
customs official is trying to extort money from him. You are the legal adviser of the
commissioner of customs. You advise him to get a warrant first. How do you go about
getting a warrant for the arrest of this customs official?
A. Commissioner of Customs executes a complaint under oath, brings it and the Chinese to a
judge who shall personally examine him and the Chinese to determine probable cause. If he
determines probable cause exists, he issues a warrant of arrest.
Can the NBI agent make a warrantless arrest on the basis of information of a very reliable
asset who proves to be correct?
No.
But can it be the basis of obtaining a warrant of arrest?
No, if on the basis of that information only.
Spouse was charged with an offense cognizable by the RTC and the information is filed.
You are arrested without a warrant and there was no preliminary investigation. What
should you do?
Before entering a plea, file a motion for preliminary investigation [People v. Monteverde].
Q. Does the filing of the complaint in the fiscals office interrupt the prescriptive period for the
offense?
A. Yes. R110 S1 last paragraph

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Constitutional basis Nature

Scope of
of the
right
prohibition
against unreasonable
Waiver of right
searches & seizures

SEARCH & SEIZURE

Art. III, Sec. 2, 1987 Constitution:

"The right of the people to be secure in
their persons, houses, papers, and effects
against
unreasonable
searches
and
seizures of whatever nature and for any
purpose shall be unviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized."
A.
B.
C.
D.
E.

Scope of Constitutional Restraint

Scope of Protection
Requisites of a Valid Warrant
Grounds for Issuance
Form of Search Warrant

The prohibition against unreasonable searches and seizures is imposed only upon the
government and its agencies tasked with the enforcement of the law. It does not extend to acts
committed by private individuals.

The right against unreasonable searches and seizures is personal; it may be invoked
only by the person entitled to it.

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Search Warrant defined Requirements of a valid search warrant

Waiver of the right against unreasonable searches and seizures may be express or
implied, but only by the person whose right is invaded, not by one who is not duly authorized to
effect such waiver.

SEARCHES WITH WARRANT

A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding him to search for
personal property described therein and bring it before the court. (Rule 126, Sec. 1)

(1) Probable cause

Probable cause refers to such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched.

(2) Personally determined by the judge

Only a judge can determine probable cause to justify the issuance of a search warrant.
In doing so, he cannot rely on the prosecutor's findings or certification.
Note: This is to be distinguished from the determination of probable cause by a judge in
the issuance of a warrant of arrest. With warrants of arrest, a judge can issue a warrant
on the basis of the information filed by the fiscal and the certification of probable cause.
(See Rule 112, Sec. 6)

(3) One specific offense

Generally, a search warrant can be issued only in relation to one specific offense.
However, when existing laws prescribe a single punishment for various offenses, then
one search warrant may be validly issued for several violations of the same law, as in the case of
PD 1866 (See Prudente v. Dayrit, 180 SCRA 69) and R.A. 6425 or the Dangerous Drugs Act
(See People v. Dichoso, 223 SCRA 174).

(4) After an examination under oath and in writing of facts personally

known to the complainant and the witnesses he may produce;
The judge must take depositions and attach them to the record of the case. (Mata v.
Bayona)

(5) Particularity of description

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Procedure for Issuance of a Search WarrantHow Search is effected

PURPOSE:

To leave the officers of the law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures
may not be made and abuses may not be committed.

SUFFICIENCY: The description of the place to be searched is sufficient if the officer with
the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. (Prudente v. Dayrit)
Failure to state with particularity the place to be searched and items to be seized makes
the warrant used for fishing evidence a general warrant which is void.
However, it was held in the case of Kho v. Judge Makalintal (April 21, 1999) that the
failure to specify detailed descriptions in the warrant does not necessarily make the warrant a
general warrant. The description of the property need not be technically accurate nor necessarily
precise, and its nature will necessarily vary according to whether the identity of the property or its
character is a concern. Further, the description is required to be specific only insofar as
circumstances will allow.

Where filed
Examination

Period of Validity of search warrant

Time
Property to be seized
The personal property that may be seized pursuant to the search warrant are:
(1) Subject of the offense;
(2) Stolen or embezzled and other proceeds, or fruits of the offense; or
(3) Used or intended to be used as the means of committing an offense. (Rule 126,
Sec. 3)

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It is not necessary that the property to be searched or seized should be owned by the
person against whom the warrant is issued; it is sufficient that the property is within his control or
possession. (Burgos v. Chief of Staff, 133 SCRA 800)

Procedure
(1) Admittance to the place of directed search
The officer, upon reaching the place of directed search, must give notice of his
purpose and authority to conduct the search to the lawful occupant of the place.
If the officer is refused admittance, he may break open any outer or inner door or
window of a house or any part of a house or anything therein to execute the
warrant or liberate himself or any person lawfully aiding him when unlawfully
detained therein. (Rule 126, Sec. 7)
(2) Conduct of search
Upon admittance, the officer must conduct the search in the presence of the
lawful occupant of the premises or any member of his family, or in the absence of
the latter, two witnesses of sufficient age and discretion residing in the same
locality. (Rule 126, Sec. 8) Failure to comply with this requirement invalidates
the search. (People v. Gesmundo)
(3) Seizure of property and issuance of receipt for the property seized
Once the property described in the warrant has been found and seized, the
officer must give a detailed receipt for such property to the lawful occupant of the
premises. In the absence of such occupant, the officer must leave a receipt in
the place in which he found the seized property in the presence of at least two
witnesses of sufficient age and discretion residing in the same locality. (Rule
126, Sec. 11)
(4) Delivery of property and inventory to the court
The officer must then make a return on the warrant and deliver forthwith the
property seized to the judge who issued the warrant, together with a true
inventory thereof duly verified under oath. The judge shall ascertain whether the
seizing officer complied with Rule 126, Sec. 11 (as regards issuance of the
detailed receipt).
The return on the search warrant shall be filed and kept by the custodian of the
log book on search warrant s who shall enter therein the date of the return, the
result, and other actions of the judge. (Rule 126, Sec. 12)
A violation of these requirements shall constitute contempt of court. (Rule 126,
Sec. 12)

WARRANTLESS SEARCHES

When may a valid warrantless search be made?

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1. Search incident to a lawful arrest

2. Search of moving vehicles (But what about mobile homes?)
3. Customs searches or seizure of goods concealed to avoid duties [Uykhetin v. Villareal,
Papa v. Magno]
4. Seizure of evidence in plain view
5. Consented searches, or when there is a waiver of the right [De Garcia v. Locisin]
6. Administrative searches
7. Border searches
8. Checkpoints
9. Stop-and-frisk
10. Private searches (People v. Marti)

Search incident to a lawful arrest

As a general rule, as an incident of an arrest, the place of premises where the arrest was
made can also be searched without a search warrant. (Nolasco v. Cruz-Pano)
PERMISSIBLE AREA OF SEARCH:
(1) Person of the accused;
(2) premises or surroundings within the accused's immediate control
PURPOSE:

(1) A weapon held by the arrested person may be turned against his captor; and
(2) The accused may destroy the proof of the crime if the arrested officer has to
first apply for a search warrant.

You arrested a person without a warrant in the first floor of his house. Can you search the
second floor without a search warrant?
No. The Nolasco v. Pano [ 139 SCRA 152] ruling was reconsidered in Nolasco v. Pano [147
SCRA 509] which held that a warrantless search made as an incident to a lawful arrest is to be
strictly applied and absolutely limited only to a search of the person and of the place where the
arrest was made.

Consensual / Consented Searches

The requisites for a valid waiver or consented search are as follows:
(1) The Constitutional right exists;
(2) The person involved had either actual or constructive knowledge of such right; and
(3) There was an actual intention to relinquish the right.
Q. You stay in a room at Philippine Plaza. Scenario:
NBI: [knocks]
A girl from the room: Sino sila?
NBI: NBI ho. Ito ho ba ang kwarto ni Mr. B?
Girl: Opo.
NBI: Nandyan ba siya?
Girl: Wala ho, nasa ibaba, baka nagdisco.
NBI: Pwede bang pumasok?
Girl: Pwede ho. [opens door]

22
NBI: [enters] Pwede bang tumingin-tingin?
Girl: Kahit ano ho pwede. [NBI finds shabu and dirty pictures]
Valid warrantless search?
A. Yes. [Lopez v. Commissioner of Customs 68 SCRA 320] Under the circumstances, that was
the most prudent course of action (for the woman). It would save her and even petitioner Velasco
himself from any gossip or innuendo. Nor could the officers of the law be blamed if they would
act on the appearances. There was a person inside who from all indications was ready to accede
to their request. Even ordinary courtesy would preclude them from inquiring too closely as to why
she was there.
Bernas comment: If the right against unreasonable search and seizure is a personal right, may it be
waived by somebody other than the person himself?
Bautista: Why, is the girl authorized to give consent?

Plain View
Requisites for a valid warrantless search under the plain view doctrine:
(1) Prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(2) The evidence was inadvertently discovered by the police who have the right to be
where they are;
(3) The evidence must be immediately apparent;
(4) Plain view justified the seizure of the evidence without any further search;
(5) The thing itself is illegal or prohibited.
The plain view doctrine is not applicable in cases wherein the subject items are not illegal per se,
e.g. boy scout uniforms that are suspected to be counterfeit items.
Suppose there is a warrant for the search of the premises of B for shabu but they find
betamax tapes which are pirated. Can they seize the tapes which are displayed?
No. Plain view doctrine presupposes that the criminal nature of the articles is clear at
that point without further search. Perhaps, if they were armalites, yes, because B cannot possibly
be licensed to have an armalite as he is not a soldier.

Checkpoints and Roadblocks

In the case of Valmonte v. De Villa (178 SCRA 211; 1989), it was held that a warrantless
search at a checkpoint or roadblock is valid for as long as the vehicle is subjected to a mere
visual search, and the occupants are not subjected to a body search.

Private Searches
In the case of People v. Marti (193 SCRA 57; 1991), it was held that if a search is made
at the behest or initiative of the proprietor of a private establishment for its own and private
purposes and without the intervention of police authorities, the right against unreasonable
searches and seizures cannot be invoked.

23

Remedies against unlawful searches and seizures

(1) Suppression of the evidence through either

(a) quashal of the search warrant - available only when there is a search warrant
(b) motion to suppress evidence - available whether or not there is a search warrant
(2) Criminal actions for illegal search
(3) Civil actions against those responsible
(4) Administrative actions
What is the remedy to an illegal search?
A motion to quash the search warrant and/or to suppress evidence. (See Rule 126, Sec. 14)

Search only up to the point within the immediate control of arrestee. If you arrested him in the
front lawn of his house, you cannot go inside.
Dorm matron, UP security. Matron is very well trained, well equipped and said ok when
security asked to search premises. Search valid?
Consent given by the matron is valid with respect to the general areas of the dormitory but with
respect to the individual rooms, consent is not validly given unless the residents themselves
would give consent.

24

Preliminary investigation definedPurpose

ENTITLEMENT
of preliminary
AS OF RIGHT
investigation

PRELIMINARY
INVESTIGATION
PRELIMINARY INVESTIGATION
I.

PURPOSE

II.

ENTITLEMENT AS OF RIGHT
A. Effect of denial

III.

WHO MAY CONDUCT

IV.

PROCEDURE: Differences between:

A. By MTC judge
B. By prosecutor / Ombudsman

V.

REMEDIES FOR LACK OF / IRREGULAR P.I.

Preliminary investigation 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. (Rule 112, Sec. 1)

The primary objective of preliminary investigation is to free the respondent from the
inconvenience, expense, ignominy and stress of defending himself in the course of a formal trial,
until the reasonable probability of his guilt has been passed upon in a more or less summary
proceeding by a competent officer designated for that purpose.
Preliminary investigation serves as a sieve, funnel, in which you can filter cases which
cannot stand the rigorous test of proof beyond reasonable doubt. The overriding consideration is
that the accused should not be subjected to hasty, ill-considered or malicious prosecution.
(Bautista)

25

WHO MAY CONDUCT

Is P.I. part of due process? What about those not entitled to P.I.? Are they denied of due
process?
If it is granted by statute but denied, then there is violation of due process. If not granted by
statute, then there is no denial of due process.
Is P.I. a constitutional right?
No, it is only a statutory right.

When required to be conducted

Preliminary invesitgation is required to be conducted before the filing of a complaint or
information for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1
day (Prision correccional in its maximum period, upwards. Please check this, though.),
regardless of the fine. (Rule 112, Sec. 1) Note that this is to be taken together with Rule 112,
Sec. 7 (which deals with warrantless arrests).

Effect of denial of preliminary investigation

Preliminary investigation if denied can be demanded, but only before arraignment. Once
a plea has been entered, PI can no longer be availed of. (Rule 114, Sec. 26)
Note that the ruling in Go v. CA is exceptional owing to the circumstances in that case.

The following are authorized by law to conduct preliminary investigations:

1. Provincial or city prosecutors and their assistants
2. Judges of the MTC and MCTC judges (note that Metropolitan Trial Court judges
are not included)
3. National and regional state prosecutors
4. Such other officers as may be authorized by law

Ombudsman;
Metropolitan Trial Court judges of chartered cities where their charter
allows them to do so;
COMELEC (Verify this!)
SEC (Verify this!)
SSS (Verify this!)

26

PROCEDURE REMEDIES FOR LACK OF / IRREGULAR PI

Suppose the MTC judge conducts the P.I. and he finds no probable cause. What will he
do?
Transmit to the fiscal the records of the case and recommend dismissal.
Suppose the fiscal disagrees with the judge, and he thinks that a case should be filed.
Can he base a review of the records sent up to him by the judge to file an information?
No, fiscal has to conduct his own preliminary investigation.

In what instances can an MTC judge issue summons instead of a warrant of arrest?
See Rule 112, Sec. 9 (b), last sentence: If the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue
summons instead of a warrant of arrest.
Compare the procedure for the conduct of preliminary investigation by an MTC judge and
by a prosecutor or the Ombudsman.
Differences:

(1) MTC judge still has to submit his findings to the provincial / city
prosecutor for approval.
(2) MTC judge can issue warrants of arrest. (Rule 112, Sec. 6 (b))

In what instances is the reviewing prosecutor required to make a written ruling / resolution
on the findings being reviewed?
See Rule 112, Sec. 5, par. 2:

In all cases.

Can the respondent file a motion to dismiss in a preliminary investigation?

NO. Rule 112, Sec. 3 (c) explicitly provides that no motion to dismiss shall be filed in lieu of a
counter-affidavit.

What is the remedy for lack of / or irregular preliminary investigation?

Certiorari, prohibition, mandamus.
Prohibition to prohibit arraignment. Mandamus to compel preliminary investigation.

27

Comparison of the old and new rules

JURISDICTION
VENUE
COMPLAINT & INFORMATION
OLD RULES

2000 RULES

COMMENTARY

Rule 110, Sec. 1. How

instituted. -For offenses
not subject to the rule on
summary
procedure
in
special cases, the institution
of criminal actions shall be as
follows:

Rule 110, Sec. 1. Institution

of criminal actions - Criminal
actions shall be instituted as
follows:

The phrase "for offenses not

subject to the rule on summary
procedure in special cases" was
deleted. Thus, under the new
rules, the institution of all
criminal actions shall be the
same.

(a) For offenses falling

under the jurisdiction of the
Regional Trial Courts, by
filing the complaint with the
appropriate officer for the
purpose of conducting the
requisite
preliminary
investigation therein;

(a) FOR OFFENSES

WHERE A PRELIMINARY
INVESTIGATION
IS
REQUIRED PURSUANT TO
SECTION 1 OF RULE 112, by
filing the complaint with the
proper officer for the purpose
of conducting the requisite
preliminary investigation

Under Sec. 1 of Rule 112,

preliminary
investigation
is
required for offenses punishable
by imprisonment of at least 4
years, 2 months and 1 day
(subject to the exception in Sec.
7 of Rule 112, i.e. lawful
warrantless arrests)

(b) For offenses falling

under the jurisdiction of the
MTCs and MCTCs, by filing
the complaint or information
directly with the said courts,
or a complaint with the
fiscal's office. However, in
Metro Manila and other
chartered
cities,
the
complaint may be filed only
with the office of the fiscal.

(b) For all other offenses,

by filing the complaint or
information directly with the
MTCs and MCTCs, or the
complaint with the office of
the prosecutor.
In Manila
and other chartered cities,
the complaint shall be filed
with the office of the
prosecutor
UNLESS
OTHERWISE PROVIDED IN
THEIR CHARTERS.

This amendment is pursuant

to the ruling in Zaldivia v. Reyes
(211 SCRA 277), where the
Supreme Court held that the
Rules of Court cannot amend

28
special laws.

In all cases, such

institution shall interrupt the
period of prescription of the
offense charged.

The institution of the

criminal
action
shall
interrupt the running of the
period of prescription of the
offense charged UNLESS
OTHERWISE PROVIDED IN
SPECIAL LAWS.

Rule
110,
Sec.
8.
Designation of the offense. Whenever
possible,
a
complaint
or
information
should state the designation
given to the offense by the
statute,
besides
the
statement of the acts or
omissions constituting the
same, and if there is no such
designation, reference should
be made to the section or
subsection of the statute
punishing it.

Rule
110,
Sec.
8.
Designation of the offense The complaint or information
shall state the designation of
the offense given by the
statute, aver the acts or
omissions constituting the
offense, and SPECIFY ITS
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.

Rule 110, Sec. 9. Cause of

accusation. The acts or
omissions complained of as
constituting the offense must
be stated in ordinary and
concise language without
repetition, not necessarily in
the terms of the statute
defining the offense, but in
such form as is sufficient to
enable a person of common
understanding to know what
offense is intended to be
charged, and enable the
court to pronounce proper
judgment.

Rule 110, Sec. 9. Cause of

the accusation. - The acts or
omissions complained of as
constituting the offense and
the
QUALIFYING
AND
AGGRAVA-TING
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
offense is being charged as
well as its QUALIFYING AND
AGGRA-VATING
CIRCUMSTANCES and for
the court to pronounce
judgment.

Rule 110, Sec. 5. Who must

prosecute criminal actions.

Rule 110, Sec. 5. Who must

prosecute criminal actions.

Refer to codal for text.

Refer to codal for text.

Rule
110,
Sec.
14.
Amendment.
The
information or complaint may
be amended, in substance or
form, without leave of court,
at any time before the

Rule
110,
Sec.
14.
Amendment
OR
SUBSTITUTION.
A
Complaint Or Information
May Be Amended, In Form Or
In Substance, Without Leave

The Rules now require the

information
to
allege
the
qualifying
and
aggravating
circumstances.

Rape is no longer considered a

private offense since it is now
classified as a crime against
persons under R.A. 8353. Thus, it
may be prosecuted by any person
and not just upon a complaint
filed by the offended party or her
parents,
grandparents
or
guardian.

29
accused
pleads;
and
thereafter and during the
trial as to all matters of form,
by leave and at the discretion
of the court, when the same
can
be
done
without
prejudice to the rights of the
accused.

If it appears at any time

before judgment that a
mistake has been made in
charging the proper offense,
the court shall dismiss the
original
complaint
or
information upon the filing of
a new one charging the
proper offense in accordance
with Rule 119, Sec. 11,
provided the accused shall
not be placed in double
jeopardy,
and
may
also
require the witnesses to give
bail for their appearance at
the trial.

Of Court, At Any Time Before

The Accused Enters His Plea.
After The Plea And During
The
Trial,
A
Formal
Amendment May Only Be
Made With Leave Of Court
And When It Can Be Done
Without Causing Prejudice To
The Rights Of The Accused.
HOWEVER, ANY
AMENDMENT
BEFORE
PLEA
WHICH
DOWNGRADES
THE
NATURE OF THE OFFENSE
CHARGED IN OR EXCLUDES
ANY ACCUSED FROM THE
COMPLAINT
OR
INFORMATION,
CAN
BE
MADE ONLY UPON MOTION
BY
THE
PROSECUTOR,
WITH NOTICE TO THE
OFFENDED
PARTY
AND
WITH LEAVE OF COURT.
THE COURT SHALL STATE
ITS
REASONS
IN
RESOLVING THE MOTION
AND COPIES OF ITS ORDER
SHALL BE FURNISHED ALL
PARTIES, ESPECIALLY THE
OFFENDED PARTY.
If it appears at any time
before judgment that a
mistake has been made in
charging the proper offense,
the court shall dismiss the
original
complaint
or
information upon the filing of
a new one charging the
proper offense in accordance
with sec. 19, rule 119,
provided the accused shall
not be placed in double
jeopardy.
The court may
require the witnesses to give
bail for their appearance at
the trial.

I.

Definition of complaint and information

II.

How and where instituted

III.

Who must prosecute

IV.

Requisites of a complaint or information

This is self-explanatory.

30

Definition of complaint and informationHow

Who and
Requisites
Amendment
mustwhere
prosecute
ofofa complaint
complaint
instituted or
or information
information
V.

Amendment of complaint or information

VI.

Effect of filing on interruption of prescriptive period

VII.

Remedies against a defective complaint or information

Jurisdiction is determined by the extent of the penalty which the law imposes on the basis
of the facts as recited in the complaint or information. Note that it is the imposable penalty that
governs; not the penalty which the court may impose or actually imposes. (People v. Lagon, 185
SCRA 442)

Generally, the fiscal. However, in MTCs, MeTCs or MCTCs where the fiscal is not available, the
offended party or a peace officer or public officer may prosecute.
Note that once the complaint or information has been filed in court, the fiscal loses jurisdiction to
dispose of the case as he deems fit. (Republic v. Sunga, 162 SCRA 191)

Name of accused
Designation of offense
Acts / Omissions constituting offense
Name of offended party
Date of Commission of Offense
Place of Commission

Before arraignment:
After arraignment,
during trial:

If amendment is either in substance or form, without need for leave of

Court
Amendment in form only, with leave of court at its discretion, provided
that such amendment does not prejudice the rights of the accused.

31

Effect of filing
Remedies
against
on interruption
a defective complaint
of prescriptive
or information
period
Formal amendment: one that does not prejudice any essential right of the accused, nor affect the
essence of the crime charged.
Substantial amendment: one that would change the basic theory of the prosecution by alleging a
new way of committing the offense.
What is the test to determine whether an amendment is substantial or formal?
(1) If the amendment changes the nature of the information;
(2) Eliminates a defense;
(3) Increases quantum of evidence
Note: Conspiracy is neither formal nor substantial per se. It depends on the circumstances of
the case.

32

Comparison of old and new rules

THE CIVIL ASPECT

OLD RULES

2000 RULES

COMMENTARY

Rule
111,
Sec.
1.
Institution of criminal and
civil actions. When a
criminal action is instituted,
the civil action for the
recovery of civil liability is
impliedly instituted with the
criminal action, unless the
offended party waives the
civil action, reserves his right
to institute it separately, or
institutes the civil action
prior to the criminal action.

Rule
111,
Sec.
1.
Institution of criminal and
civil actions. - (a) When a
criminal action is instituted,
the civil action for the
recovery of civil liability
arising from the offense
charged shall be deemed
impliedly instituted with the
criminal action, unless the
offended party waives the
civil action, reserves his right
to institute it separately, or
institutes the civil action
prior to the criminal action.

Under the 2000 Rules,

only the civil liability arising
from the offense charged is
deemed instituted.
This
means
that recovery
of
damages for civil liability
under Art. 32, 33, 34 and
2176 of the Civil Code is not
impliedly instituted in the
criminal
case,
and
may
therefore
be
prosecuted
separately even without a
reservation.
This is in
contrast to the old Rules
where all civil liability was
deemed instituted in the
criminal case.

Such civil action includes

recovery of indemnity under
the Revised Penal Code, and
damages under Art. 32, 33,
34 and 2176 of the Civil Code
of the Philippines arising
from the same act or
omission of the accused.
A waiver of any of the civil
actions
extinguishes
the
others. The institution of, or
the reservation of the right to
file, any of the said civil
actions separately waives the
others.

The reservation of the

right to institute the separate
civil actions shall be made

The reservation of the

right to institute separately
the civil action shall be made
before the prosecution starts
presenting its evidence and
under
circumstances

Under the former rule, a

waiver of any of the civil
actions
extinguishes
the
others. The institution of, or
the reservation of the right to
file, any of the civil actions
separately waives the others.
This is no longer provided for.
The reservation and waiver
referred to pertain only to the
civil action for the recovery
of civil liability arising from
the offense charged.
This
does not include recovery
under Art. 32, 33, 34 and
2176 of the Civil Code arising
from the same act or
omission, which may be
prosecuted separately even
without a reservation.

33
before the prosecution starts
to present its evidence and
under
circumstances
affording the offended party
a reasonable opportunity to
make such reservation.
In no case may the
offended
party
recover
damages twice for the same
act or omission of the
accused.
When the offended party
seeks to enforce civil liability
against the accused by way
of moral, nominal, temperate
or exemplary damages, the
filing fees for such civil
action as provided in these
Rules shall constitute a first
lien on the judgment except
in an award for actual
damages.
In cases wherein the
amount of damages, other
than actual, is alleged in the
complaint or information, the
corresponding
filing
fees
shall be paid by the offended
party upon the filing thereof
in court for trial.

affording the offended party

a reasonable opportunity to
make such reservation.
In no case, however, may
the offended party recover
damages twice for the same
act or omission charged in
the criminal action. (Sec. 3)
When the offended party
seeks to enforce civil liability
against the accused by way
of moral, nominal, temperate
or
exemplary
damages
without
specifying
the
amount thereof in the
complaint or information,
the filing fees thereof shall
constitute a first lien on the
judgment
awarding
such
damages.
Where the amount of
damages, other than actual,
is specified in the complaint
or
information,
the
corresponding
filing
fees
shall be paid by the offended
party upon the filing thereof
in court.
Except as otherwise
provided in these Rules,
no filing fees shall be
required
for
actual
damages.
No counterclaim, crossclaim
or
third-party
complaint may be filed by
the
accused
in
the
criminal case, but any
cause of action which
could
have
been
the
subject thereof may be
litigated in a separate civil
action.

(b) 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

This provision was moved

to Sec. 3 of Rule 111 of the
2000 Rules. The change is
merely one of style and not of
substance.

The exceptions are BP 22

cases, those civil actions not
instituted within the proper
time, and cases before the
Sandiganbayan.
The 2000 rules have
repealed
the
rulings
in
Shafer v. Judge, RTC of
Olongapo (167 SCRA 376),
Javier vs. IAC (171 SCRA
376) and Cabaero v. Cantos
(citation unknown) which
previously allowed the filing
of third-party complaints as
well as counterclaims. Now,
under the 2000 Rules, these
pleadings are no longer
allowed.
Any claim which
could have been the subject
thereof may be litigated in a
separate civil action.
The 2000 Rules have
incorporated Supreme Court
Circular 57-97 on the filing of
actions for violation of BP 22
mandating the inclusion of
the corresponding civil action
for which the filing fee shall

34
shall be allowed.
Upon filing of the
aforesaid joint criminal
and
civil
actions,
the
offended party shall pay in
full the filing fees based
on the amount of the
check
involved,
which
shall be considered as the
actual damages claimed.
Where the complaint or
information also seeks to
recover liquidated, moral,
nominal,
temperate
or
exemplary damages, the
offended party shall pay
additional filing fees based
on the amounts alleged
therein.
If the amounts
are not so alleged but any
of these damages are
subsequently awarded by
the court, the filing fees
based on the amount
awarded shall constitute a
first lien on the judgment.

be paid based on the amount

of the check involved.
Note that in other cases
(non-BP 22 cases), no filing
fees are required for actual
damages.

Where the civil action

has been filed separately
and trial thereof has not
yet commenced, it may be
consolidated
with
the
criminal
action
upon
application with the court
trying the latter case. If
the application is granted,
the trial of both actions
shall
proceed
in
accordance with Sec. 2 of
this
Rule
governing
consolidation of the civil
and criminal action.
No counterpart provision.

Rule
111,
Sec.
2,
paragraph 2.
During the pendency of
the criminal action, the
running of the period of
prescription of the civil
action which cannot be
instituted separately or
whose
proceeding
has
been suspended shall be
tolled.

The action contemplated

herein is a civil action arising
from the offense charged. If
such civil action is either
reserved, or filed separately
ahead of the criminal case,
the period of prescription
does not run.
However, the period of
prescription for civil actions
under Art. 32, 33, 34 and
2176 of the Civil Code is not
suspended
because
such
actions can be instituted
separately.

35
No counterpart provision.

Rule 111, Sec. 4. Effect of

death on civil actions The death of the accused
after
arraignment
and
during the pendency of
the criminal action shall
extinguish
the
civil
liability arising from the
delict.
However,
the
independent civil action
instituted under Sec. 3 of
this
Rule
or
which
thereafter is instituted to
enforce liability arising
from other sources of
obligation
may
be
continued
against
the
estate
or
legal
representative
of
the
accused
after
proper
substitution
or
against
said estate, as the case
may be. The heirs of the
accused
may
be
substituted
for
the
deceased
without
requiring the appointment
of
an
executor
or
administrator
and
the
court
may
appoint
a
guardian ad litem for the
minor heirs.
The court shall
forthwith order said legal
representative
or
representatives to appear
and be substituted within
a period of 30 days from
notice.
A final judgment
entered in favor of the
offended party shall be
enforced in the manner
especially
provided
in
these
rules
for
prosecuting claims against
the estate of the deceased.
If the accused dies
before arraignment, the
case shall be dismissed
without prejudice to any
civil action the offended
party may file against the
estate of the deceased.

Rule
111,
Sec.
5.
Elements of prejudicial
question. - The 2 essential

Rule
111,
Sec.
7.
Elements of prejudicial
question. - The elements of

The 2000 Rules expressly

state that for a civil action to
be deemed a prejudicial

36
elements of a prejudicial
IMPLIED INSTITUTION
question are: (a) the civil
action involves an issue
similar or intimately related
to the issue raised in the
criminal action; and (b) the
resolution of such issue
determines whether or not
the criminal action may
proceed.

a prejudicial question are: (a) question, it must have been

OF
THE CIVIL ASPECTRESERVATION
EFFECT OFprior
DEATH
OFtoCIVIL
OFtheTHE
ACTION
ACCUSED
the previously instituted instituted
civil action involves an issue
similar or intimately related
to the issue raised in the
subsequent criminal action;
and (b) the resolution of such
issue determines whether or
not the criminal action may
proceed.

criminal action.

Note that under the 2000 Rules, the only civil action deemed impliedly instituted with the
criminal action is that for civil liability arising from the offense charged. All other civil actions
arising from sources other than the delict are not impliedly instituted.
Note that under both the old and new rules, the exceptions to the general rule of the
implied institution of the civil aspect are:
(1) When the offended party waives the civil action;
(2) When the offended party reserves his right to institute it separately; and
(3) When he institutes the civil action prior to the criminal action.
Does the offended party have the absolute right to institute a civil action ex delicto
separately?
YES, except in the following cases:
(1) BP 22 cases (Rule 111, Sec. 1 (b));
(2) When not instituted within the proper time;
(3) Cases before the Sandiganbayan.

What is the effect of death of the accused on the civil actions?

It depends:
(1) If the accused dies before arraignment, the case shall be dismissed without prejudice
to any civil action the offended party may file against the estate of the deceased.
(2) If the accused dies after arraignment and during pendency of the criminal action, civil
liability arising from the delict shall be extinguished. HOWEVER, an independent civil
action instituted under Rule 111, Sec. 3 or from other sources of obligation may be

37

FILING FEESPREJUDICIAL QUESTIONS

continued against (a) the estate or (b) legal representative of the accused after
proper substitution, as the case may be. (Rule 111, Sec. 4)

Must filing fees be paid every time a criminal case is filed?

It depends on whether the claim is only for actual damages, or if there is an additional
claim for moral, nominal, temperate or exemplary damages.
If only actual damages are claimed?
Generally, no filing fees are required. However, if the case is one involving BP 22, filing
fees must be paid basd on the amount of the check involved, which shall be considered as the
actual damages claimed. (Rule 111, Sec. 1b)
If the complaint or information seeks to also recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party shall pay additional filing fees based on the
amounts alleged therein. (Rule 111, Sec. 1 (b))

As a general rule, criminal actions are preferred over civil actions, i.e. the civil action shall
be suspended when the criminal action has been filed.
However, there are exceptions to this rule of preference, namely:
(1) Independent civil actions, i.e. Art. 32, 33, 34 and 2176 of the Civil
Code;
(2) When the civil case is subsequently consolidated with the criminal
action (Sec. 2, Rule 111); and
(3) A civil action involving a prejudicial question
What is a prejudicial question?
A prejudicial question is understood in law as that which must precede the criminal action
and which requires a decision before a final judgment can be rendered in the criminal action with
which said question is closely connected. (Berbari v. Concepcion, 40 Phil. 837) A civil question is
prejudicial when it refers to a fact separate and distinct from the offense but intimately connected
with it, which question determines the guilt or innocence of the accused. ( De Leon v. Mabanag,
70 Phil. 202)
The doctrine of prejudicial question comes into play generally in a situation where the civil
and criminal actions are pending and in the former an issue must be preemptively resolved before
the criminal action may proceed. This does not apply where no civil, but only an administrative,
case is involved. (Manikad, et al. v. Tanodbayan, G.R. No. 65097, Feb. 20, 1984)

38
What are the elements of a prejudicial question?
(1) The previously instituted civil action involves an issue similar or intimately related to
the issue raised in the subsequent criminal action, and
(2) The resolution of such issue determines whether or not the criminal action may
proceed. (Rule 111, Sec. 7)
In cases of prejudicial questions, is reservation required?
No. See the cases of Maniago v. CA and San Ildefonso Lines.
Where can a petition for suspension of the criminal action based on a prejudicial question
in a civil action be filed?
(1)

If the criminal action has not yet been filed in court for trial, it may be filed in
the office of the prosecutor or the court conducting the preliminary
investigation. Note that this is the earliest time.

(2)

If the criminal actions has already been filed in court, it may be filed in the
same criminal action at any time before the prosecution rests. (Rule 111,
Sec. 6) Note that this is the latest time.

In case of prejudicial question, which action is suspended?

Criminal action. This is because the issue in a civil action is intimately connected to the
issue in the criminal action and thus needs to be determined first before the criminal action may
proceed.
Examples of prejudicial questions:

Civil action for annulment of marriage filed by the woman, where there is a criminal
action for abduction and filed by her against he male contracting party. The dismissal
of said action and the consequent declaration of the validity of said marriage
constitutes a defense or mode of extinction of said criminal case under Art. 344 of the
Revised Penal Code. (Montilla v. Yatco, 61 O.G. 8376)

Civil action brought by plaintiff to annul the sale of land by defendant to a 3 rd person,
and a criminal case for estafa, where plaintiff alleged that the same land was
previously sold by defendant to him but where defendant raised the defense that his
signature appearing on the deed of sale to the plaintiff was falsified. (Ras v. Rasul,
Sept. 18, 1980)

Examples of actions not deemed to be prejudicial questions:

Civil action for dissolution of the conjugal partnership on the ground of

mismanagement by the husband, where the criminal offense is concubinage
(Cabahug-Mendoza v. Valera, 92 Phil 1001)

Civil action for the annulment of a certificate of title issued upon the basis of a
falsified affidavit of adjudication, where the criminal offense is falsification (De la Cruz
v. City Fiscal of Dagupan, 106 Phil. 851)

39

EFFECT OF ACQUITTAL ON CIVIL LIABILITY

Civil case for quieting of title to property alleged to have been the subject of a falsified
deed of sale, where the criminal offense is falsification (Dasalla, et al. v. City Attorney
of Quezon City, May 30, 1962)

Civil case for annulment of the second marriage brought by the second wife, where
the first wife has filed a criminal case against the husband for bigamy (People v.
Aragon, 94 Phil. 357; Landicho v. Relova, Feb. 23, 1968)
However, where the husband was charged with bigamy by the second wife
and the husband filed a civil action against the second wife for the annulment
of the marriage on the ground that he was forced to contract said subsequent
marriage, such civil action is prejudicial since annulment on that ground
would establish that his act in contracting the second marriage was
involuntary, and hence, no criminal liability would attach. (Zapanta v.
Montesa, Feb. 28, 1962)

Validity of a receipt, impugned in a civil action as having been obtained by fraud,

where the criminal case is one for estafa. Such defense may be passed upon in said
criminal case or conviction may be based on other grounds. (Jimenez v. Averia, et
al., Mar. 29, 1968)

Is it possible for the accused to be acquitted, and yet to be civilly liable for the act charged
to be criminal?
Yes, if the court made no finding in the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist. Extinction of the penal action
generally does not carry with it extinction of the civil action. (Rule 111, Sec. 2)

Said query whether an action for breach of contract arising from the same act or omission
as the basis of the criminal charge, is impliedly instituted you think that the express
mention of the articles of the CC excludes culpa contractual?
The way I read it, the 2 nd paragraph amplifies the general statement in the first paragraph. The
civil liability in the first paragraph consists of the 5 mentioned in the 2 nd par.
That may be so because of the wording. I think you are right. However, it may be a failure to
consider the intention really is to assimilate all the civil actions based on the same act or
omission. I think the express enumeration may have left open the matter of culpa contractual. In
fact, culpa contractual is not mentioned among those actions, which may be prosecuted
independently and separately and concurrently with the criminal action. But it can. That also
pulls the rug under your expressio unios argument. I think that this one can also be prosecuted
separately. It should be impliedly instituted.

40
Sir: We have a private prosecutor in a criminal proceeding and have a civil litigation together
with a criminal case.
The accused has a right to refuse to take the witness stand. Can the private prosecutor
call him to the stand as an adverse party witness in respect to the civil liability? Since we have
fused/merged trial. You notice the provision which speaks of the civil action being consolidated if
it was already pending before, it would be consolidated with the criminal action although you can
ask additional evidence and also in defining the jurisdiction of the Sandiganbayan.
What is the peculiarity in cases before the Sandiganbayan about the civil aspect of
offenses being tried by the Sandiganbayan? All cases bearing on the civil aspect of the crime
should be jointly tried in the Sandiganbayan proceeding and if not so tried, then it should be
waived.
Cannot be expressly reserved, be separately instituted. Perhaps Apples point may
acquire some added validity when reckoned with the Sandiganbayan decree ecause in those
cases, it would be extremely unfair for an accused who has a cause of action for breach of
contract not to be able to institute an independent action for breach of contract because theres a
criminal case filed in Sandiganbayan because in that case, there is absolute prohibition for a
separate action. What is the rationale for giving priority to this criminal aciton over the civil
action? Why do we say, go ahead first with the criminal action and let us suspend the civil action
except in those cases where an independent civil action may be prosecuted.
You remember the Seneris doctrine?
A:
There could be a finding in the criminal action that the fact from which the civil liability
might arise did not exist.
Sir:
Good. But also what if there could be a finding? So you save time so there is no need
for a civil case. You may be able to save the time and expenditure for a civil case. You may be
able to save the time and expenditure for a civil case. Give me an instance of a case where such
a finding may be made that he basis for civil liability does not exist.
A:
2 women claiming to be wife of one person. The first files criminal charge of bigamy, but
in a civil case, the issue of validity of the first marriage comes up.
Sir:
The right to reserve the institution of a separate civil action is given in all cases. True or
false?
A:
True, except Sandiganbayan.
Sir:
R 111, S 1, 2nd par. When you have the right to independent action, you have a right to
reserve. What does that mean? They can be instituted concurrently?
These are the different concepts. One is the right to reserve. That is given in all cases.
Now, the right to proceed concurrently is limited to those 4 cases in 2 nd paragraph, without having
to wait. In all cases, you have the right to reserve. Its only a question if you can do it at the
same time or you have to wait.
Sir:
Is there a deadline for making a reservation in a criminal action?
A:
Yes, before prosecution starts to present its evidence.
Sir:
Unless? In other words, there might be a time even after the prosecution has started its
evidence, still you may be allowed to make your reservation.
Example?
A:
If fiscal instituted action without intervention of offended party. After arraignment,
proceeded to present its evidence without the private party having the chance to reserve.
Sir:
Possible. Or more commonly if the accused pleads guilty right away.
Sir:
An action based on contract may proceed independently. So, our conclusion a while ago
that only civil actions based on 32, 33, 34 and 2176 CC may proceed independently is not
completely correct.
A:
Yes, in that sense.

41
Sir:
A court in criminal case may issue a writ of preliminary attachment. How about MTC?
The civil liability arising from the offense on civil action impliedly instituted in the criminal action in
the MTC might involve more than P 20,000. May MTC issue writ of preliminary attachment to
secure claim for more than?
A:
Yes.
Sir:
So it has larger civil jurisdiction in a criminal case than it has in a civil case.

42

Constitutional basis Definition and purpose

BAIL
Art. III, Sec. 13, 1987 Constitution:
"All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties,
or be released by recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail
shall not be required."

I.
II.
III.

Definition and purpose

Kinds
Rules for when bail may be availed of
A. When Allowed
(1) Matter of Right
(2) Matter of Discretion
B. When not allowed
C. When not required

IV.
V.
VI.
VII.
VIII.

Conditions
Entitlement
Application (includes who may grant)
Posting
Forfeiture

The right to bail flows from the presumption of innocence in favor of the accused. (De la
Camara v. Enage, 41 SCRA 1)

43

When right may be invoked Rules for when bail may be availed ofKinds

When bail is a matter of right

Bail is a matter of right in the following instances:
In criminal cases before the MTC:
In criminal cases before the RTC:

Before or after conviction

Before conviction, where the penalty is
less than reclusion perpetua,
death or life imprisonment

When bail is a matter of discretion

(1) Matter of Discretion
Bail is a matter of discretion in the following instances:
In criminal cases before the RTC:

After conviction, where the penalty is

less than reclusion perpetua,
death or life imprisonment

When bail is not allowed

Bail is not allowed when the crime involved is a capital offense where evidence of guilt is
strong. (Note that it is the prosecution which has the burden of showing that evidence of guilt is
strong.)
Bail is likewise not allowed after final judgment. The exception to this is when the
accused applies for probation before the judgement becomes final. (Note that the
Probation Law must be applicable to both the penalty and the offense.)

When bail is not required

A. Surety Bond
B. Property Bond
C. Cash Bond

44

ConditionsStandards for fixing bail Entitlement

Application (includes who may grant)Posting
D. Recognizance - Personal underwriting by accused or good citizen of community.

At what stages of the criminal action is the accused required to be present?

1. arraignment
2. for identification
3. promulgation of judgment, except if the case is one involving a light offense

Right to bail and the right to travel abroad

Where does one apply for bail? (Rule 114, Sec. 17)
As a general rule, bail is applied for / filed with the court where the case is pending.
Exceptions:
1. judge where case is pending is not available
2. Accused arrested in a place other than where case is pending
3. Accused has not yet been charged
Until when is bail good?
Unless cancelled, bail remains in force at all stages of the case until promulgation of
judgment by RTC. (Rule 114, Sec. 2)

45

ForfeitureWaiver of the right to bail

What is the effect of failure of the accused out on bail to attend a hearing despite due
notice?
(1) Bond -- If the hearing is one wherein the accuseds presence is mandatory, the
bond is forfeited. (However, if his presence is not required, there will be
no effect on the bond.) Moreover, the Court will give the sureties 30 days
within which to produce their principal (or to give the reason for his nonproduction), and to show cause why no judgment should be rendered
against them for the amount of their bail (i.e., explain why the accused
did not appear before the court when first required to do so).
(2) Trial -- Trial in absentia, provided that accused has already been arraigned.
Question: Is the accuseds presence waived for that date only or for all other
dates thereafter?

Who are NOT entitled to bail as of right?

1. reclusion perpetua, life imprisonment, death when evidence of guilt is strong
2. after conviction by the RTC imposing penalty of imprisonment exceeding 6 years but
not more than 20 years and any of the grounds enumerated
3. conviction reclusion perpetua, life imprisonment, death

Sirs view If you are convicted and penalty is more than 6 years, not as a matter of right
but discretionary if any of the 5 conditions

Matter of right
a. before or after conviction by MTC
Bail MTC
RTC; still good upon appeal
b. before conviction by RTC of an offense not punishable by death, reclusion perpetua
or life imprisonment
6 years and above 20 + 5 grounds = no discretion

46
SEC 24. If there is final judgment no bail because convicted, but can apply
for probation before finality
What are the stages of bail?
(1) applying
(2) fixing
(3) posting
Where to apply not the same as where to post
look at type of bond see sec 11 and sec 14
Court where you apply fixes amount of bail
but this is NOT necessarily the court which will release you but where you post bail
e.g. charged in RTC Manila. Fix bail at P30,000. Can you post bail in RTC QC? Yes, 2 nd
paragraph sec 19
If post with treasurer get receipt and go to court
court

you want the warrant to be recalled by the

Applying v. Fixing v. Posting

just because court approves bail does not equate to posting
after approval of bail get ? then post
posting= where? any where case is pending or arrested?
theres no provision where to post bail
can post bail anywhere
Must forward what?
e.g. issue warrant Manila
release Q.C. ( cant approve application but once Manila approves, QC can release)
Bail = confusing = as to applying, fixing and posting

When is the liability of surety extinguished?

1.
2.
3.
4.

acquitted
dismissal
death
convicted and surrenders

Sec 21 = appeared as required

There used to be a letter of instruction waiving presence of accused

Bail fixed at P100,000 if surety or P10,000 if cash. Is this valid? Yes.

47

Bail if in cash can it be applied to fine and civil damages

fine Yes
Civil liability No, might not be his money

What if explain why cant produce

produce body OR give reason for his non-production
possibility that liability of bondsman will be reduced

If out on bail, can he travel abroad? No, unless with court permission may lose
jurisdiction impairs contract of bondsman
Is this not impairment of liberty? Still in jail although out on bail bondsman is
his jailer = bondman can arrest (no need for warrant) sec 23

practice notice to the bondsman is notice to the accused

Sir:
Who is not entitled to bail? Is there anyone not entitled to bail?
A:
No.
Sir:
Everybody is entitled to bail. There is no one not entitled to bail. Everybody is entitled
even those charged with reclusion perpetua and where evidence of guilt is strong. (?)
Sir:
A:

Even after conviction but pending appeal, they are entitled to bail?
Yes.

Sir:
What is the difference of (1) those accused with offenses punishable by lesser penalties
or RP where evidence of guilt is not strong; and (2) those accused with RP evidence is strong?
A:
(1) Bail is a matter of right. (2) Bail is discretionary upon court
Sir:
If you are charged with an offense in the RTC, may you apply for bail in the MTC of the
same province?
A:
R 114, S 14, 2nd sentence, ....bail may be filed also in MTC.
Sir:
I said applied. Here are the concepts. The court which fixes the bail. The court that
accepts the bail, and therefore releases the accused on bail.
Sir:
May the MTC of QC fix and release on bail a person not charged before it? I did not
say accept the bail.
A:
S 16, 2nd par. ...file xxx.
Sir:
But that provision presupposes that the bail was fixed. I am talking of QC-MTC fixing and
accepting bail of one not charged before it. In S 16, 2 nd paragraph, why should he file bail when it
has not yet been fixed?
Sir:
A:

Read provision where accused is arrested and not yet charged, and he can put up bail?
R 114, S 14 (c) xxx apply

Sir:
Apply. That means is has not yet been fixed.
A:
But S 6 The judge who granted the application shall fix the bail. So in S 14 (c), if the
person applies for bail in court, necessarily the court who approves application must also fix the
bail. Thus, whoever approves application may fix the bail.
Sir:
But a bail already fixed may be filed in another court other than that which fixed it.
A:
Rules for fixing of baill and acceptance of bail is under S 14. Once bail is fixed, the
court authorized t accept bail should only be pending unless branch is unavailable, or arrested
somewhere else.

48

Sir:
A:

How about if he is arrested without being charged?

He can file it in any court where he is held.

Sir:
A:

What amount if bail? Who will fix the bail?

Where he applied.

Sir:
So that is different now. The court will fix the bail. Who will fix the bail of person arrested
but not charged? Any court in the province where he is held.
Sir:
What are the kinds of bail? Can the court require of accused to fix bail at P 20,000
surety, but if case P 10,000 lang?
How about: the court required that if the bail be real property bond that if be real estate in
the province and must have been owned by surety for at least 5 years. Is that reasonable bail
requirement? The requirement that is must have been owned for at least 5 years has been held
to be unreasonable if the property is Torrens titled. The implication was that it was reasonable if
property was not titled.

Sir:

P 500,000 bail for homicide charge where the accused is a government clerk?

Sir:
Regarding problem on P 20,000 surety bond or P 10,000 cash bond. Usually, to attain a
bail bond of P 20,000, you might be asked to put up collateral, even cash, sometimes for P
10,000. But there are time like right now where there are very few bonding companies that have
clearance to issue bail bonds about 5. If the accused is a government clerk only and he is
charged with homicide, half a million bail excessive? What is the test? What is the impact of his
financial capacity? Whether bail is excessive or not depends on the circumstances of the
accused and the crimes charged like where some crimes are very rampant, the Court may be
justified in fixing very stiff bail.

49

Nature and purpose of arraignmentProcedurePlea

ARRAIGNMENT & PLEA

I.
II.
III.

Nature and purpose of arraignment

Procedure
Plea
A. Purpose
B. Types
(1)
(2)
(3)
(4)
(5)

IV.
V.
VI.

Guilty
Not Guilty
Refusal to enter plea
Qualified or Conditional admission
Plea Bargain

Pre-Arraignment Remedies
Effects of Arraignment and Entry of Plea
Availability of Provisional Remedies

What is arraignment? (Rule 116, Sec. 1)

Pagbabasa in Filipino. The information is read to the accused in a language which he
understands and is given a copy thereof. He is then asked to enter his plea. If he doesnt have
a lawyer, he is given a counsel de oficio.

Purpose of plea
Types of plea
(1) Guilty
(2) Not Guilty

50
(3) Refusal to enter plea
(4) Qualified or Conditional admission
(5) Plea Bargain
What are the possible pleas?
(1)
(2)
(3)
(4)
(5)
(6)
(7)

Guilty
Not guilty
Conditional plea of guilty (This is considered as not guilty.)
Pleads guilty but presents exculpatory evidence (Considered as not guilty)
Plea of guilty to a lesser offense
Mute (This is considered as not guilty.)
Evasive (considered as not guilty)

Plea of guilty: when is reception of evidence mandatory? discretionary?

If the accused pleads guilty to a capital offense, reception of evidence as to the
voluntariness and full comprehension of the consequences of his plea, proof of guilt, and precise
degree of culpability is mandatory. This is so that the Supreme Court will have something to
review once the case goes up on automatic review.
However, if the accused pleads guilty to a non-capital offense, reception of evidence is
merely discretionary.
Is a negotiated plea or a plea to a lesser offense allowed?
Yes. Under the Rules, a lesser offense is one that is necessarily included in the offense
charged. (Rule 116, Sec. 2)
It is allowed to be made either during arraignment, or after
arraignment but before trial provided that the earlier plea of not guilty is withdrawn. It can also be
made by the trial prosecutor in the event that the accused fails to appear during the arraignment
despite due notice. (Rule 116, Sec. 1(f))
Note: An offense charged is deemed to be necessarily included in the offense
proved when the essential ingredients of the former constitute or form
part of those constituting the latter. (Rule 120, Sec. 5)
It must be stressed, however, that a plea to a lesser offense or to one that is necessarily
included in the offense charged does NOT apply to crimes covered by special laws (e.g.
possession of drugs under the Dangerous Drugs Act)
When is a plea deemed improvident? What are its effects?
A plea is deemed improvident when the accused finds out that there was a mistake in the
admission. The Court may permit an improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty. (Rule 116, Sec. 5)
Note: If the accused pleaded guilty because he misappreciated the penalty to be
Imposed, this is not deemed an improvident plea.
Can a withdrawn plea of guilty be used as an admission?
No, doesnt make sense if used against him

51

Pre-Arraignment RemediesAvailability
Effects of Arraignment
of Provisional
andRemedies
Entry of Plea

Plea Bargaining

Is it possible for the accused to waive reading of information?

Generally, no.

Even if pleads guilty if later on there is evidence to show incomplete self -defense
change to not guilty

mute not guilty

evasive not guilty

Who are required to be present during arraignment? (Rule 116, Sec. 1 (f))
1. accused - Must be present.
2. offended party for plea bargaining and civil liability. If the offended party fails to
appear despite due notice, a plea of guilty to a lesser offense which is necessarily
included in the offense charged may be entered with the conformity of the trial
prosecutor alone.

What are the consequences of an entry of plea?

The moment you plea, you can no longer:
1.
2.
3.
4.

move to quash (except on those 4 exceptional grounds);

question validity of the arrest;
question lack of preliminary investigation;
amend the information without leave of court;

52
5. move for a bill of particulars (Rule 116, Sec. 9)
Moreover,

Sec 7, Rule 117 (b) The conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense charged in the
former complaint or information if the facts constituting the graver charge became
known or were discovered only after a plea was entered in the former complaint
or information.

Jeopardy attaches, since one of the requirements is that the accused has been
arraigned.

Trial can be conducted in absentia thereafter.

Do we allow for reconsidered plea?

Yes. If prosecution and offended party consents provided further that it is necessarily
included in the information.

variance can be convicted if elements of lesser offense are included

plea of guilt can be withdrawn = before conviction

plea of guilty can be withdrawn before reception

Time Frame : 30 days from date court acquires jurisdiction over person
What are the exceptions? Motion to quash, etc.

reserve action = reserve before prosecution starts presenting evidence (R111, sec 1
par2)

Answer as long as deny allegations in information, its up to prosecution to prove

at pre-trail there can be some admission (ex. reserve trial)

Plea signifies that accused understands charge

a denial (like answer)
jeopardy attaches

New Rules aggravating circumstances = must be alleged in the complaint (even

generic)

Plea of guilt can be withdrawn before judgment improvident plea

What if pending appeal? Yes like a withdrawal of appeal (sec 12, R122)
What about withdrawal of appeal if already in appellate court?
see sec 18 R 124 = Civil cases

53
can withdraw sec 3 R50 before filing of appellees brief as a matter
of right

Can decisions of the RTC be reviewed by Sandiganbayan? Yes, if salary grade is below
27

Negotiated Plea Bargainin like blackjack favorable to both accused and prosecution
State conviction saves time/resources

Can the accused be arraigned in absentia?

No. Not even if he is going to plead guilty.
May a plea of guilty be withdrawn? up to when?
May a plea of not guilty be withdrawn? When is the last time you can change it?
Sir:
The accused plead guilty to information which does not allege any aggravating
circumstance nor any civil liability and yet the court convicted him and sentence him taking into
consideration account of aggravating circumstance and imposed civil liability, is it correct?
Sir:
Even generic aggravating cannot be taken into account in imposing penalty to the
accused who enters plea of guilty? Can the court take into account generic aggravating in
sentencing accused who pleads guilty to an information that does not allege any such
circumstance?
Sir:
No, nor any civil liability which is not allege. Reason: where he pleads guilty, a plea of
guilt means an admission of all the material allegations of the information. Only those that are
alleged.
Accused charged with rebellion can he plead guilty to unjust vexation?
Yes.
He cannot plead guilty to rape because it more serious offense than rebellion.
A:
Yes.
Sir:
A:

Even if the lesser offense is not within the jurisdiction of the Court?
Yes.

Sir:
A:

Even if the lesser offense is not necessarily included in the offense charged?
Yes.

Sir:
A:

Under what conditions can such plea to unjust vexation be accepted?

If the offended party consents and the fiscal.

Sir:
Regarding aggravating circumstance and plea of guilt. In that case of plea of guilt, I was
assuming that no evidence was received. Remember: generic aggravating although not alleged
may be proved because it is not an essential element of the offense. So, if not alleged nor
proved, cannot be taken into account. However, if not alleged nor proved, cannot be taken into
account because what is the basis.
Sir:
So if not alleged, pleaded guilty, but proved, it can be taken into consideration

54
Sir:
R 116, S 2. Conviction under plea is equivalent to conviction for double jeopardy. Is it
not absurd that ex. charge of murder, pleads guilty to unjust vexation, he cannot be prosecuted
for murder anymore?
Sir:
Only absurd if you do not understand the philosophy behind plea bargaining. State
encourages plea bargaining. Quid pro quo? The trade off? Saves time and resources of state.
Sir:
What is the status of Trono doctrine promulgated by RP SC under US period and affirmed
by US SC, but in recent decision of US SC now that we are no longer under US rule, was
reversed implicitly? The facts are like this supposed: supposed you are charged with murder but
convicted of homicide, and then you appeal, can the appellate court convict you of murder?
Same facts, charged with murder. Convicted of homicide. You appeal. On appeal, new
trial was ordered, New trial held. Convicted of murder. Pwede ba? Under Trono case, yes.

55

Comparison of old and new rules CONCEPT OF QUASHAL

QUASHAL
QUASHAL PROPER

OLD RULES
No counterpart provision.

2000 RULES

COMMENTARY

Rule
117,
Sec.
8.
Provisional dismissal. - A
case
shall
not
be
provisionally
dismissed
except with the express
consent of the accused and
with notice to the offended
party.

The 2000 Rules finally

codify the practice of the
courts of granting provisional
dismissals.

The provisional dismissal

of offenses punishable by
imprisonment not exceeding
6 years or a fine of any
amount,
or
both,
shall
become permanent 1 year
after issuance of the order
without the case having been
revived.
With respect to
offenses
punishable
by
imprisonment of more than 6
years,
their
provisional
dismissal
shall
become
permanent 2 years after
issuance of the order without
the case having been revived.

I.
II.
III.
IV.
V.

Concept of quashal
Grounds for Motion to Quash
Concept of Double Jeopardy
Effect of Failure to Move to Quash
Remedies for Denial of Motion to Quash

Is it possible to move to quash and plead at the same time?

56

GROUNDS FOR MOTION TO QUASH

The rule says that a motion to quash must be made before the accused enters his plea.
(Rule 117, Sec. 1. Previously, in the pre-85 Rules, you were allowed to plead AND file a motion
to quash. This is no longer true.)
What is the consequence of resorting to a motion to quash?
Jeopardy will not attach since the accused will not be entering a plea.

The accused may move to quash the complaint or information on any of the following
grounds:
(a) That the facts charged do not constitute an offense;
In this case, the prosecution shall be given an opportunity to correct the defect by
amendment. The motion shall be granted if the prosecution fails to make the amendment,
or the complaint or information still suffers from the same defect despite the amendment.
(Rule 117, Sec. 4, 2nd paragraph)

(b) That the court trying the case has no jurisdiction over the offense charged;
The court can consider this ground even if it has not been alleged in the complaint or
information. (Rule 117, Sec. 2)

(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
If the motion to quash is based on an alleged defect of the complaint or information which
can be cured by amendment, the court shall order that an amendment be made. (Rule
117, Sec. 4, 1st paragraph)

(f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
Is the insanity of the accused a ground to motion to quash?
It is. The basis is in letter G Sec. 3 of Rule 117 i.e.. That it contains averments which
if found true would constitute a legal excuse or justification.

(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent

57

What are the grounds for a motion to quash (MTQ) which are not barred even though not
raised before the accused pleads, in other words, grounds, which may be raised even after
plea?
(1) Lack of jurisdiction over the offence charged or the person of the accused;
(2) Extinction of the criminal action or liability;
Note: Prescription, pardon, and amnesty fall under extinction of criminal liability.
(3) Double jeopardy; and
(4) The facts charged do not constitute an offense (Rule 117, Sec. 8)

Is there evidentiary hearing in a motion to quash?

There is, (Note: In P. v. Qadabis the SC held that matters of defense can be produced when the
grounds for a motion to quash are extinction of criminal liability; prescription and double jeopardy.
In P. v. De La Rosa, the SC held that when the prosecution asks the court to present evidence; as
did the other party, the accused; the court cannot close its eyes on such evidence presented.

Sir:
The problematical ground is where the ground for the MTQ is that the
information does not allege facts sufficient to constitute the offense. In civil
procedure, the oft-repeated rule that motion for dismissal based on the ground that
the complaint does not allege a sufficient cause of action shall be resolved only on
the basis of the complaint is no longer absolutely true. The court may consider all
evidence already on record as that in the case of Tan v. Bureau of Forestry. The case
involved a boundary dispute over timber concession.
During the hearing on
preliminary injunction, a Map was presented wherein the boundaries were marked so
that it was clear that the allegations of the complaint has no basis.
The courts may consider evidence already on record, second matters of
judicial notice, and 3rd, admissions. This is also the case where the grounds for MTQ is
failure to allege facts sufficient to constitute an offense. In P. v. de la Rosa, the
famous gold bar case, a German lady was apprehended at the then Manila
International Airport for bringing several gold bars. She was charged on violation of
Tariff and Customs Code for bringing in dutiable items without declaring them for
customs purposes. She moved to quash on the ground that the information did not
charge an offense. Surprisingly, it was even the fiscal who moved for hearing where
evidence was adduced to the effect that she was just a transit passenger and was
really bound for Taipei. Thats why she was book overnight long at the Hilton. There
was no connecting flight to Taipei then she had to stay overnight. These were
considered. The court said that based on the evidence on record, together with the
admissions of the fiscal, it was clear that she had no intent: to import the gold bar to
the Philippines and dismissed/ Quashed the information for failure to charge an
offense.

Suspension of arraignment sec 11 R116

58
new = petition for review pending with DOJ or Office of the President shall not
exceed 60 days ---- taken from the case of Roberts 349 Pepsi case

If inadequate or lack of PI not move to quash

remedy = ask for PI and move to suspend
Deadline; before entering his pleas
Qualification: if arrested without warrant, RPC 125 ---ask for PI (sec 7 R 112) 5
days

Can move for production of evidence even after arraignment

Insanity legal excuse or justification- ground for quashal if it contains averments

which if true

Is there evidentiary hearing on a motion to quash?

General Rule NO
In evaluating motion to quash on grounds court NOT limited to allegations but may
consider all evidence already on record, matters of judicial notice

59

CONCEPT OF DOUBLE JEOPARDY

Art. III, Sec. 21, 1987 Constitution:
"No person shall be twice put in
jeopardy of punishment for the same
offense. 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."

OLD RULES

2000 RULES

Rule
117,
Sec.
3.
Grounds.
- The accused
may move to quash the
complaint or information on
any of the following grounds:

Rule
117,
Sec.
3.
Grounds.
- The accused
may move to quash the
complaint or information on
any of the following grounds:

(h) That the accused has

been previously convicted or
in
jeopardy
of
being
convicted, or acquitted of the
offense charged.

(i) That the accused has

been previously convicted or
acquitted of the offense
charged,
or
the
case
against him was dismissed
or otherwise terminated
without
his
express
consent.

Rule 117, Sec. 7, second

paragraph.
Former
conviction
or
acquittal; double jeopardy.
However, the conviction
of the accused shall not be a
bar to another prosecution
for
an
offense
which
necessarily
includes
the
offense charged in the former
complaint
or
information
under any of the following
instances:

Rule 117, Sec. 7, second

paragraph.
Former
conviction
or
acquittal; double jeopardy.
However, the conviction
of the accused shall not be a
bar to another prosecution
for
an
offense
which
necessarily
includes
the
offense charged in the former
complaint
or
information
under any of the following
instances:

(a) the graver offense

developed
due
to
supervening facts arising
from the same act or
omission
constituting
the
former charge;

(a) the graver offense

developed
due
to
supervening facts arising
from the same act or
omission
constituting
the
former charge;

(b) the facts constituting

the graver charge became
known or were discovered
only after the filing of the
former
complaint
or
information; or

(b) the facts constituting

the graver charge became
known or were discovered
only after a plea was
entered
in
the
former
complaint or information; or

COMMENTARY

The 2000 Rules now

expressly enumerate the 4
instances
by
which
an
accused is protected by law
from being placed under
jeopardy a second time.

No change.

The reckoning point is

now date of entry of plea and
no longer the date of filing of
the complaint or information.

Sec. 1 (f) of Rule 116

provides that in case of
failure of the offended
party to appear despite
due notice, the court may
allow the accused to enter a

60
(c) the plea of guilty to plea of guilty to a lesser
DOUBLE
JEOPARDY DEFINED
Purpose ofofdouble
Elements
doublejeopardy
jeopardy
(c) the plea of guilty to the lesser offense was made offense which is necessarily
the lesser offense was made
without the consent of the
fiscal and of the offended
party.

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.

without the consent of the

prosecutor
and
of
the
offended party, except as
provided in Sec. 1 (f) of
Rule 116.

included
in
the
offense
charged with the conformity
of the trial prosecutor alone.

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.

Double Jeopardy cornerstone of criminal procedure

What is the purpose for the principle of double jeopardy?

Because of vast resources of the State, should give it only one chance; otherwise,
harassment

Sir: Jeopardy is the pillar of our criminal justice system. How important it is need not
be stressed. You can imagine what kind of system we will have if we do not have that
rule. Perhaps the best way to understand the provision if to quote it. Is it a long
provision? Its only a sentence isnt it except for that qualification about the
ordinance. What are the critical words or phrases in the provision? Actually,
Jeopardy lang and same offense. So the questions to ask are: When are you put
in jeopardy of punishment first, when are you put in jeopardy at all, so that you
would know that the next time you are put twice. The next question is, is it for the
same offense? The rules of court in Rule 117; Sec. 7 refines and expands the
constitutional provision. First it expands the meaning of same offense to include if
frustrated and attempted; necessarily included and includes in the offense charged.
The rules also define when you are put in jeopardy for the first time. What are the
instances that create jeopardy? In other words, what acts or events in a criminal
litigation will put a person in jeopardy without which he is not in jeopardy at all? The
Rules define that very clearly and enumerates several instances, which constitutes
jeopardy. What are they?
A. Conviction or Acquittal of the accused, dismissal or termination of the case without
his express consent and after he has pleaded. (Sec. 7 R. 117)

61

Crimes covered under double jeopardy

What are the elements of double jeopardy?

(1)
(2)
(3)
(4)

Court of competent jurisdiction;

Complaint or information sufficient in form and substance to sustain a conviction;
Arraignment and plea by the accused;
Conviction, acquittal, dismissal or termination of the case without the express consent of
the accused

Subsequent prosecution is barred for the following:

(1)
(2)
(3)
(4)
(5)

Same offense
Attempt of the same offense
Frustration of the same offense
Offense necessarily included in the 1st offense
Offense that necessarily includes the 1st offense

Order of dismissal is bar to subsequent prosecution if:

1.
2.
3.
4.

prescription
extinguished
double jeopardy
without consent of accused

What are the exceptions to the double jeopardy rule?

(1) Doctrine of supervening facts: If the graver offense developed due to supervening facts
arising from the same act or omission constituting the former charge;
(2) Doctrine of subsequent discovery (Prof. Barlongays term): If the facts constituting the
graver charge became known or were discovered only after the filing of the former
complaint or information
(3) The plea of guilty to the lesser offense was made without the consent of the fiscal and the
offended party
What are the principles of double jeopardy?
1. No person shall be twice put in jeopardy of punishment for the SAME OFFENSE
2. 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.

ATTACHMENT OF JEOPARDY

62

When is a person first put in jeopardy?

1. charged with the same offense in 2 separate cases
2. accused is prosecuted after the same had been convicted or acquitted
3. prosecution appeals from a judgment in the same case

CONCEPT OF "SAME OFFENSE"

same OFFENSE not equal to same ACT

Except that where an act is punished by both a law and by ordinance

Basic rule act offense

act may be several offenses

Problem A charged with direct bribery

RA 3019
Code of Ethics

Important amendment to 3 and 4

Old Rules = R117 sec 3 previously convicted OR IN JEOPARDY
this was omitted. Why? it implies litis pendentia. Now
under New Rules no more litis jeopardy

X charged with BP22. X moves to quash due to prescription.

ISSUE: Do you count period from issuance of check or date of dishonor?

If motion to quash is granted and prosecution appeals is this jeopardy?

Motion to quash= consent of accused

1st case for estafa for selling property which is mortgaged without disclosing to buyer
RPC 316 (2)
NO
Chattel mortgage law
Jeopardy

Mr. Casis shoots clock (no intent to kill)

2 crimes: illegal discharge and alarms and scandal. Can they be prosecuted for 2
crimes?

People v del Carmen

charged with malicious mischief acquitted
for doing the same thing prosecuted for grave coercion
Is second prosecution barred by jeopardy? R120 sec 5

If accused is charged with rape and grave coercion, is this allowed?

63

Relova case electric meter and qualified theft under #2 same act

Rule on provisional dismissal accused must consent (no jeopardy since with consent)

If prosecution is not ready with the evidence and keeps on postponing remedy = move
for trial and if not ready then ask for dismissal for failure to prosecute

Accused cant say to court that jeopardy, must invoke that at the 2 nd court with prejudice

If a criminal charge is dismissed by accused on ground of prescription, can the dismissal

be appealed? Yes, State can appeal.

If you are charged with murder and convicted of homicide and you appeal, can you be
convicted of murder?
Trono Case: accused charged with murder convicted of homicide. CA convicted
him for murder ---no double jeopardy

reasoning of Green Case: when the conviction for 2nd degree murder (lesser offense), he
is acquitted of the higher offense

Our theory- appeal vacates the judgment

sec 11, R124 (applies to SC by virtue of R125, sec1) ---can INCREASE
cant = must make a finding if there is civil liability or not

Double Jeopardy Res Judicata

3 men barge into a house, robbed 4 poker players. One of the masked men, charged for
robbery of a poker player. Acquitted. Can the same robber be charged against other
player?
Theory: one chance only by State

Sir:
By the way, when we took up civil procedure, I dont think we discussed the Sibonghanoy
case (Tijam v. Sibonghanoy). Thats a civil case where plaintiff lost after trial. Later on, he
challenged the jurisdiction of the court.
When a party himself invokes the jurisdiction of the court and goes as far as judgment,
then later when he loses, turns around and wants to invalidate the judgment on the ground that
there was no jurisdiction applying equitable principle, the SC said in the particular situation, the
party is estopped from challenging jurisdiction. Whether they will apply in criminal cases, I dont
know.
Now, with respect to the qualification in the constitutional provision, which is the subject of the
Relova case In the Relova case, the accused was charged with tampering with the electric
meter of his ice plant so that the registration of the electric consumption was less. He was
charged with violating a municipal ordinance, but was acquitted on the ground of prescription.
Based on the same facts, he was charged again for theft under the Revised Penal Code. The
second charge was dismissed on the ground of jeopardy. applying the second clause of the
constitutional provision. The SC in the opinion written by Justice Feliciano claims that if an act is
punished by 2 different statutes, he can be charged of as many offenses as there are statutes or
sections of statutes violated. The test would be the identity of offenses test. But if the same act
constitutes a violation of the statute and also an ordinance, the test is identity of the acts, why
so? Whats the reason for the exception? Did I not tell you before that you could be convicted of

64
estafa and BP 22 at the same time after issuing a bouncing check same way you could be
convicted of theft of motor vehicle which is qualified theft of a motor vehicle and violation of the
anti-carnapping law(?) Why did these things happen, but not the one in Relova? What is the
reason for the proviso in the constitution?
The reason is because an ordinance and a statute are made by two different law-making bodies.
Problem: Casino barges into his classroom He pulls his .38 calibre gun and fires at him (Jose
Rizals portrait), doing it while we are having a class. He was charged and convicted of alarms
and scandals. Then he is charged again for the same act of illegal discharge without intention to
kill. Is the second charge barred by jeopardy?
A. No, Since the 2 charges fall under the same law, the penal code; Casino is not being
prosecuted for the same offense.
Now about that famous Del Carmen case involving the media agua and banguera ? First,
accused was charged in the information in the inferior court with malicious mischief for removing
and destroying with resentment, hate, revenge the banguera of complainant. He was acquitted
for lack of proof. Based on the same act, he was charged with grave coercion for allegedly having
prevented complainant from keeping his agua and banguera. Is there Double Jeopardy?
A. SC: There is jeopardy, - single act giving rise to malicious mischief and grave coercion.
(Handwritten)
No. There is no identity of offenses (Typewritten)
See Rule 117 how it defines identity of offenses. In that case, it was held that there is jeopardy
because you cannot segment an offense into integral parts and make out several, as many
offenses a part of each may make. Thats what the rules of court say. Otherwise, according to
Justice Paras, in prosecution for rape, you can again prosecute the same act for preventing the
girl from keeping her virginity intact. Puede mo rin gawin grave coercion yung rape. You think
about that.
Accused is first charge with violation of the chattel mortgage law for allegedly having sold a
property, which is mortgaged, to the complainant without the written consent of the mortgagee.
Convicted. Thereafter, he is charged again based on the same act, for estafa for selling the same
property without telling the buyer that the property is encumbered. Will the second prosecution
survive an attack on the ground of jeopardy? One is under the chattel mortgage law, the other is
estafa under the Revised Penal Code.
A. No.
To understand jeopardy, obviously you have to know the elements of the offense. (Draws on the
board)- The violation of the chattel mortgage law is the act of selling the property. Also, yung
violation on estafa is the act of selling. There is a common element the act of selling. (shaded
area in the drawing) But they have non-common elements. In violation of the mortgage law, there
is an additional element of not obtaining the consent of the mortgagee. Estafa is for the
protection of the buyer, the additional element is not telling the buyer of prior encumbrances and
selling the property and unencumbered . While there is a common element, they are not the
same offense in order to constitute necessarily includes. What is the definition of necessarily
includes?
A. Rule 120 Sec. 5
So it does not mean situations like this. It means those situation like Casinos.
You remember the Melo doctrine (P.v. Melo)? Accused hurled a stone at complainant, wounding
the latter. On the basis of that act, information for slight physical injuries was filed, stating that the
wound took 5 to 9 days to heal. Tried, convicted. Later, found out there was going to be a

65
deformity or a scar. The accused was charged with serious physical injuries. Is there jeopardy?
This is now covered by specific codal provision.
No. Basis is Rule 117, Sec. 7 (b)

66

Purpose and when properSubject

Requisite
matter
of pre-trial
of pre-trial
agreements
conferencePre-Trial Order

PRE-TRIAL

Mandatory
must be conducted with a certain period
but no time period as to when court acquires jurisdiction --- up to law enforcement
agencies

67

ORDER OF TRIALRIGHTS OF ACCUSED AT TRIAL

TRIAL
I.

Order of Trial

II.

Rights of the Accused at Trial

A.
B.
C.
D.
E.
F.

I.

Against self-incrimination
Compulsory process
Discovery
Right to Counsel
Presumption of Innocence
Speedy Trial

III.

Discharge of Accused

IV.

Provisional Dismissals

Order of trial (Rule 119, Sec. 11)

Note however that when the accused admits the crime but interposes a lawful
defense, the order of trial may be modified. (Rule 119, Sec. 11 (e))

a. against self-incrimination (i.e. handwriting)

i. If he takes stand, can he be examined like any other witness?
No, only covered by direct. See sec 132, sec 6 (all matters)
Note that when the accused takes witness stand, the prosecution can only
impeach his character as to truth telling. Failure to take stand wont prejudice
him.
b. compulsory process
c.

discovery

d. right to counsel

68

DISCHARGE OF ACCUSED
e. presumption of innocence
demurrer to evidence insufficient evidence
If granted, it amounts to an acquittal.
When filed? After prosecution rests
Is it a matter of right?
with leave or without leave if without and denied= waives
opportunity to present evidence
deadline 10 days
If motion for leave is denied, what is his remedy? present
evidence, no more certiorari or appeal
Sir doubts constitutionality that no remedy if denied motion for leave of court
It emasculates your right to test sufficiency of the prosecutions evidence

If you allow state to cross-examine accused, gives state a chance to improve on its case

If court denies demurrer to evidence means evidence of guilt is strong (with regard to
bail)

If non-bailable offense dont ask for demurrer to evidence

Right to speedy trial

See Rule 119, Sec. 9-10.
Burden on prosecution to prove dates excluded

Webb v. De Leon: What was sought to be discovered? Affidavit of Alfaro, lab reports

Webb claimed witnesses in California wanted to depose. Trial court denied. CA allowed.
SC said no need since evidence is merely corroborative
Davide concurring said the issue must be resolved (citing several rules) If
allowed in civil cases, all the more allowed in criminal cases
Puno - alluded to Webb v De Leon, even at PI stage allowed; suppression =
denial of due process

Prosecution witnesses allowed since doesnt get info from the accused

R119 affidavit state it in the affidavit

69

What if unable to testify?

o conditions under the law and the Rules of court (see sec 3 and sec 10)

What if most guilty but discharged nonetheless or other evidence is available, will this
amount to an acquittal? If not hearing = void not acquitted (Flores v
Sandiganbayan)

Can the prosecution withdraw the information during the pendency of the case?
It depends:
(1) If accused has already been arraigned and it appears at any time before judgment that a
mistake has been made in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper offense in
accordance with Sec. 19, Rule 119, provided the accused shall not be placed in double
jeopardy. (Rule 110, Sec. 14, last paragraph)
(2) If the accused has not yet been arraigned, the complaint or information can be amended
or withdrawn without leave of court. (Rule 110, Sec. 14)
Note however that double jeopardy attaches if the new information includes the
original information. (?)

What are the 2 instances when the Court can dismiss on motion of the prosecution?
(1) Rule 110, Sec. 14, par. 2 -- An accused may be excluded from the complaint or
information at any time before entry of plea
(2) Rule 119, Sec. 19 -- ?
In the case of Chua v. CA, it was held that an accused can be discharged at any time
before the defendants have entered upon their defense, i.e. before the prosecution rests. There
is no need to complete the presentation of evidence since it is the prosecution which knows who
is most guilty.
As a general rule, the discharge or exclusion of a co-accused from the Information, in
order that he may be utilized as a prosecution witness rests upon the sound discretion of the trial
court, this discretion should be exercised by it strictly on the basis of the conditions set forth in
Rule 119, Sec. 17.
When can an accused be discharged as a state witness?
See Rule 119, Sec. 17.
Compare discharge of an accused under Rule 119, Sec. 17 and under the Witness
Protection Program (RA 6981).
Discharge under Rules of
Court
Rule 119, Sec. 17

Witness Protection
Program
RA 6981, Sec. 10

70

Provisional Dismissals
Immunity granted

Transactional immunity

Transactional immunity

Who may avail

Only an accused

Anyone, even the accused

Effect of discharge

Operates as an acquittal,
which means that the accused
is
charged
first
then
discharged or excluded from
the information.

Witness will no longer be

charged at all.

No.

Yes.

Is
threat
necessary?

to

life

Note that under the Rules of Court, to be discharged, there must still be a hearing.
Which is better: to be discharged under the Rules of Court or under the Witness
Protection Program?
The Witness Protection Program. For one, you do not need to be charged.
advantage there is that the prescriptive period runs, and you have no criminal record.

(though placed under Motion to Quash, I think its more properly

placed here)

Requirements for a provisional dismissal

(Rule 117, Sec. 8)

(1) Express consent of the accused

(2) Notice to the offended party
What are the periods?
If penalty of imprisonment of not more than 6 years or fine: becomes permanent
after 1 year without case being revived
If penalty of more than 6 years:

becomes permanent after 2 years

The

71

Judgment definedGeneral rules on Judgments

JUDGMENT & POSTCONVICTION REMEDIES

I.
II.
III.
IV.
V.
VI.

Judgment defined
General rules on Judgments
Form and Content
Rules in case of variance between allegation and proof
Promulgation of judgment
Modification of judgment
A. Motion for Reconsideration
B. Motion for New Trial
C. Appeal

VII.

Form = writing, signed by judge, degree of participation, finding of civil liability,

circumstances mitigating or aggravating

promulgation what is read? Entire

presence of accused = required to be there unless light offense

If doesnt appear and convicted no remedies available: probation/appeal

Probation law If availed of, cant appeal conviction

When judgment becomes final

When does judgment in a criminal case become final?
(1) Acquittal
(2) Lapse of period to appeal
Note the qualifications.

72

Form and ContentRules

Promulgation
in case of variance
judgmentModification
between allegation
of judgment
and proof
(3) Written waiver of right to appeal
(4) Probation
(5) Service of sentence

Effect of failure of the accused to appear during promulgation

If accused is acquitted, no problem.
If accused is convicted, and his failure to appear was without justifiable cause, he
loses the remedies available in the Rules against the judgment. Also, the Court will order his
arrest.
However, should the accused surrender within 15 days from promulgation of
judgment, he may file a motion for leave of court to avail of these remedies. (Rule 120, Sec. 6)

Motion for Reconsideration

Motion for New Trial
Appeal
Appeal v. Certiorari
Appeal is resorted to when the judgment is erroneous. Certiorari when the judgment is void.

73

NEW TRIAL OR RECONSIDERATION

grounds/ effect different

When is judgment Final?

acquittal final immediately
applies for probation
waiver
satisfies the sentence
escapes
15 days with qualification

new evidence
see R121 sec 3, R 124 sec 14

effect of Death criminal liability extinguished, civil liability arising from crime also
extinguished

certiorari from order of dismissal on legal grounds, double jeopardy, prescription,

jurisdiction prosecution can appeal

Acquittal can use R 65, Why? theory judgment VOID, grave abuse of discretion or no
jurisdiction

Galman case: no jurisdiction because Not impartial

If certiorari is available, is habeas corpus available?

Yes, 2 cases: Cruz v Dir of Prisons; People v Labriaga