REMEDIAL LAW REVIEWER

11

2012 UP LAW
BAR REVIEWER
REMEDIAL
Criminal Procedure LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
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Catherine Mopia
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UP LAW BAR OPERATIONS COMMISSION

  ARREST of person or
Criminal Procedure  VOLUNTARY SUBMISSION by the person

REMEDIAL LAW Voluntary appearance of the accused is

Criminal Procedure I. General Matters accomplished by:
Civil Procedure II. Prosecution of Offenses  His pleading to the merits (filing a motion to quash
Evidence III. Prosecution of Civil Action (except if the ground is to question the
Special Proceedings IV. Preliminary Investigation jurisdiction of the court, e.g. re validity of arrest,
V. Arrest over the person [Miranda vs Tuliao (2006)]),
appearing for arraignment, or entering trial) or
VI. Bail
 By filing Bail
VII. Rights of the Accused
VIII. Arraignment and Plea Jurisdiction Over the Jurisdiction Over The
IX. Motion to Quash Subject Matter Person of the Accused
X. Pre-trial Derived from the law. It May be acquired by
XI. Trial can never be acquired consent of the accused
XII. Judgment solely by consent of the or by waiver of
XIII. New Trial or Reconsideration accused. objections.
XIV. New Appeal The absence of court‘s Failure of the accused to
XV. Search and Seizure jurisdiction over the make objection in time
XVI. Provisional Remedies subject matter may be would constitute a
raised at any stage of waiver of the objection.
the proceeding. The
I. GENERAL MATTERS right to make such
objection is never
waived.
A. Distinguish Jurisdiction over
subject matter from jurisdiction over B. Requisites for exercise of criminal
person of the accused jurisdiction
Jurisdiction over Subject Matter
 WON the court has jurisdiction over the offense by
 Jurisdiction over the class of cases to which the
virtue of the imposable penalty and its nature
particular case belongs; It is defined by law;
(SUBJECT MATTER JURISDICTION)
determined by the extent of the penalty which the
 WON the court has jurisdiction over the person of
law imposes based on the facts as recited in the
the accused
complaint/information constitutive of the offense
 WON the action has been filed within the
charged.
TERRITORIAL JURIDICTION of the court
- Refers to VENUE (see below) or the place where
General rule: The court‘s jurisdiction to try a
the case is to be tried. The action should be
criminal action is to be determined by the law at
instituted and tried in the municipality or
the time of the institution of the action. [Palana
territory where offense has been committed or
vs People (2007)] Succeeding legislation placing
where any one of the essential ingredients
jurisdiction in another tribunal will not affect
thereof took place. [Sec 15(a), Rule 110]
jurisdiction already obtained by a court.
- For transitory/ continuing offenses, the courts
- Principle of adherence of jurisdiction/continuing
of the territories where the essential ingredients
jurisdiction- jurisdiction continues until the
of the crime took place have concurrent
court has done all that it can do in the exercise
jurisdiction. The first court taking cognizance of
of that jurisdiction. Once vested, it cannot be
the case will exclude the others [People vs
withdrawn or defeated by a subsequent valid
Grospe (1988)]
amendment of the information. [People vs
Chupeco (1965)]
C. Jurisdiction of Criminal courts
Exception: Where the succeeding statute expressly
provides, or is construed that it is intended to How Determined
operate to actions pending before its enactment,  Determined by the allegations of the complaint or
in which case the court where the criminal action information.
is pending is ousted of jurisdiction and the pending  By examination of the complaint/information to
action will have to be transferred to the other ascertain that the facts set out and punishment
tribunal, which will continue the proceeding. fall under jurisdiction of court. [People vs Ocaya
(1978)]
Jurisdiction over the Person of the Accused  Jurisdiction over Complex Crimes (2003 Bar):
The person charged with the offense must have been lodged with the court having jurisdiction to
brought to its forum for trial, forcibly by warrant of impose the maximum and most serious penalty
arrest or upon his voluntary submission to the court. imposable on an offense forming part of the
[Antiporda vs Garchitorena (1999), citing Arula vs complex crime. [Cuyos vs Hon. Garcia (1988)]
Espino (1969)]

Acquired either by:

 REMEDIAL LAW REVIEWER

Military Courts Exception: When, as determined by the ordinary

General rule: Ordinary courts will have jurisdiction
over cases involving members of the armed forces,
and other persons subject to military law, including
members of the Citizens Armed Forces Geographical
Units who commit crimes under the RPC or special
laws, regardless of who the co-accused or victims
are.
court during arraignment, the offense is service-
oriented, then it will be tried by the court martial.
Provided: the President may, in the interest of 13
justice, order/direct at any time before arraignment
that any such crimes/offenses be tried by the proper
civil courts.

Jurisdiction of Courts

MTC/MeTC/MCTC RTC SANDIGANBAYAN

 Exclusive original jurisdiction over
all violations of city/municipal
ordinances committed within their
respective territorial jurisdiction.
[Sec. 32(1), BP 129]
 Exclusive original jurisdiction over
all offenses punishable with
imprisonment not exceeding 6 years
irrespective of the amount of fine,
and regardless of other imposable
accessory or other penalties,
including the civil liability arising
from such offenses or predicated
thereon, irrespective of kind,
nature, value, or amount thereof.
[Sec. 32(2), BP 129]
- Provided, however, that in
offenses involving damage to
property through criminal
negligence they shall have
exclusive original jurisdiction
thereof. [Sec. 32(2), BP 129]
Exception: Cases falling within the
exclusive original jurisdiction of
RTCs and of the Sandiganbayan.
[Sec. 32, BP 129]
 Cases classified under the Revised
Rules on Summary Proceedings: [SC
Resolution, October 15, 1991]
- Violations of traffic laws/rules/
regulations;
- Violations of rental law;
- Cases where the penalty
prescribed by law for the offense
charged is imprisonment not
exceeding 6 months, or a fine not
exceeding P1,000, or both,
irrespective of other imposable
penalties, accessory or
otherwise, or of the civil liability
arising therefrom: Provided,
however, that in offenses
involving damage to property
through criminal negligence, this
Rule shall govern where the
imposable fine does not exceed
P10,000.
Exception: a criminal case falling
under the aforementioned list
where the offense charged is
necessarily related to another
criminal case subject to the
ordinary procedure.
 Exclusive original jurisdiction in
all criminal cases not within the
exclusive jurisdiction of any
court/tribunal/body. [Sec. 20, BP
129]
Exception: Those now falling
under the exclusive and
concurrent jurisdiction of the
Sandiganbayan, which shall
hereafter be exclusively taken
cognizance of by the latter. [Sec.
20, BP 129]
 Criminal cases where one or more
of the accused is below 18 years
of age but not less than 15 years,
or where one or more of the
victims is a minor at the time of
the commission of the offense [RA
9344]
 Cases against minors cognizable
under the Dangerous Drugs Act, as
amended [RA 8369, Family Courts
Act of 1997]
 Violations of Republic Act No.
7610, the Child Abuse Act.
 Cases of domestic violence against
women and children. If an act
committed against women and
children likewise constitute a
criminal offense, the accused or
batterer shall be subject to
criminal proceedings and the
corresponding penalties. [RA 8369,
Family Courts Act of 1997]
 Violations of intellectual property
rights [A.M. No. 03-03-03-SC
(2003); RA 8293]
 Money Laundering Cases [RA 9160]
Exception: those committed by
public officers and private persons
who are in conspiracy with such
public officers shall be under the
jurisdiction of the Sandiganbayan
 Exclusive original jurisdiction in
those cases expressly
enumerated in PD 1606, as
amended by RA 8249: violations
of RA 3019, RA 1379, and
Chapter II, Section 2, Title VII,
Book II of the RPC
Officials enumerated are the ff:
- Officials of the executive
branch occupying the
positions of regional director
and higher, otherwise
classified as Grade '27' and
higher, of the Compensation
and Position Classification Act
of 1989 (RA 6758)
- Members of Congress and
officials thereof classified as
Grade'27'and up under the
Compensation and Position
Classification Act of 1989
- Members of the judiciary
without prejudice to the
provisions of the Constitution
- Chairmen and members of
Constitutional Commissions,
without prejudice to the
provisions of the Constitution
 Other offenses or felonies
whether simple or complexed
with other crimes committed by
public officials and employees
in relation to their office
Requisites:
- Accused is any one of the
public officials enumerated in
subsec. (a) of Sec. 4 of Ra
8249, grade 27 or higher
- Accused commits any other
offense or felony, than those
specified in subsec. (a),
whether simple or complexed
with other crimes
- The offender commits such
other offense or felony in
relation to his office
 Cases filed in pursuant to and in
connection with EO 1, 2, 14, 14-
A, issued in 1986
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MTC/MeTC/MCTC
14
 Violations of BP 22 [A.M. No. 00-11-
01-SC (2003)]
 Special jurisdiction to decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]
4. When injunction may be issued to
restrain criminal prosecution
General rule: The prosecution of a criminal case,
even at the stage of preliminary investigation and
reinvestigation, may not be enjoined by
prohibition/injunction.
Rationale: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
Exceptions (Bar 1999)
 To afford protection to the constitutional rights of
the accused;
 Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
 There is a prejudicial question which is sub judice;
 The acts of the officer are without or in excess of
authority;
 The prosecution is under an invalid
law/ordinance/regulation;
 When double jeopardy is clearly apparent;
 The court has no jurisdiction over the offense;
 A case of persecution rather than prosecution;
 The charges are manifestly false and motivated by
the lust for vengeance;
 There is clearly no prima facie case against the
accused and MTQ on that ground has been denied;
[Samson vs Guingona (2000)]
 Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.
II. PROSECUTION OF OFFENSES
1. Criminal actions, how instituted
(Bar 1999)
In general
A criminal action is commenced in this jurisdiction
by the filing of a complaint or information. The
complaint may be filed either with the MTC or with a
public prosecutor for purposes of conducting a
preliminary investigation.
Institution and Commencement of actions
 For offenses which require a preliminary
investigation pursuant to section 1 of Rule 112
(where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day
without regard to the fine), the criminal action is
instituted by filing the complaint with the
appropriate officer for PI. [Sec. 1(a), Rule 110]
RTC SANDIGANBAYAN
 In offenses cognizable by inferior courts, the
complaint or information is filed directly with said
courts or the complaint is filed with the fiscal.
[Sec. 1(b), Rule 110]
 In Metropolitan Manila and other chartered cities,
the complaint may be filed with the office of the
public prosecutor unless otherwise provided in
their charters. [Sec. 1(b), Rule 110]
 The criminal action is commenced when the
complaint or information is filed in court.
Effect of the Institution of criminal action on
the prescriptive period (Bar 1993)
General Rule: The institution of a criminal action
shall interrupt the running of the period of
prescription of the offense charged unless otherwise
provided in special laws. [Sec. 1, Rule 110]
Prescription is interrupted with the filing of the case
even if the court is without jurisdiction, even if it be
merely for purposes of preliminary examination or
investigation. [Francisco vs CA (1983)]
Exception: The Court held that the interruption of
the prescriptive period upon the institution of the
complaint under Sec.1 of Rule 110 does not apply to
cases for violation of special acts and municipal
ordinances. This is governed by Act No. 3326 and is
interrupted only by the institution of judicial
proceedings (not administrative proceedings) for its
investigation and punishment. [Zaldivia vs Reyes
(1992)]
However, in Sanrio Company Ltd. vs Lim (2008), the
SC confirmed that under Section 2 of Act 3326, the
prescriptive period for violation of special laws
starts on the day such an offense was committed and
is interrupted by the institution of proceedings
against the respondent. In this case petitioner filed
its complaint-affidavit with the TAPP of DOJ, and as
such the prescriptive period was tolled.
In Panaguiton, Jr. vs DOJ (2008), the Court declared
that they cannot uphold the position that only the
filing of a case in court can toll the running of the
prescriptive period. It can also be effectively tolled
by the filing of the BP 22 petition before the Office
of the Prosecutor.
In SEC v Interport Resources Corporation (2008), the
Court held that the prescriptive period is interrupted
by commencing the proceedings for the prosecution
of the accused, accomplished by initiating the
preliminary investigation by the SEC, which was
declared as equivalent to the PI conducted by the
DOJ in criminal cases.

Note: The above cases involve violation of special
laws. [Riano]
2. Who may file them, crimes that
cannot be prosecuted de officio (Bar
1990, 2000)
General Rule: All criminal actions either
commenced by complaint or by information shall be
prosecuted under the direction and control of a
public prosecutor [Rule 110, Sec. 5]
The public prosecutor is a quasi-judicial officer and
a representative of sovereignty whose obligation to
govern impartially is as compelling as its obligation
to govern at all.
Exception: In case of (1) heavy work schedule of the
public prosecutor or (2) in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the Prosecution
Office or the Regional State Prosecution to
prosecute the case subject to the court‘s approval.
The authority will continue up to the end of the trial
even in the absence of a public prosecutor until
revoked or withdrawn.
The private prosecutor is the attorney representing
the offended where the civil action for recovery of
civil liability is instituted with the criminal case.
Cases that cannot be prosecuted de oficio
Those which cannot be prosecuted except upon
complaint filed by the aggrieved/offended party are
the following:
 Adultery/concubinage [Sec. 5, Rule 110]
 Seduction, abduction, acts of lasciviousness
 Defamation which consists of imputation of any of
the foregoing offenses.
Rationale: The aggrieved party might prefer to
suffer the outrage in silence rather than go through
the scandal of a public trial.
Offended parties who can file the complaint
 In adultery and concubinage – The offended
spouse. Both guilty parties should be included if
both are alive. [Sec 5, Rule 110] However, a
criminal prosecution will not prosper if the
offended party consented to the offense.
 Seduction, abduction and acts of lasciviousness –
The offended party or her parents, grandparents,
or guardian, nor, in any case, if the offender has
been expressly pardoned by them. [Sec 5, Rule
110]
 In oral defamation – can only be brought upon
instance and upon complaint of the offended
party.
Effect of
 Death of offended party
- Once a complaint is filed, the will of the
offended party is ascertained and the action
REMEDIAL LAW REVIEWER
proceeds. Death after filing the complaint would
not deprive the court of the jurisdiction to try
the case.
- The State shall initiate the action on behalf of 15
the offended party in case of his
death/incapacity and he has no known
parents/grandparents/ guardians.
- In adultery/concubinage, such death does not
extinguish the criminal liability of accused.
 Desistance by offended party
- It does not bar the People of the Philippines
from prosecuting the criminal action, but it
operates as a waiver of the right to pursue civil
indemnity.
- An affidavit of desistance cannot justify
dismissal of the complaint if made after (and
not before) the institution of the criminal
action.
 Pardon by offended party
- In rape, seduction, abduction and acts of
lasciviousness of a minor – The pardon will be
effective if given by both parents and the
offended party.
- In seduction, abduction and acts of
lasciviousness - Express pardon by the offended
party, parents, grandparents or guardian will
prevent prosecution. [Rule 110, Sec. 5]
- The parents/grandparents/guardian of the
offended minor (in that order) cannot extend a
valid pardon without conformity of the offended
party, even if the latter is a minor. [US v. Luna
(1902)]
- If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.
General rule: Pardon must be made before the
filing of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be
effective as pardon even when the offender has
already commenced serving his sentence.
 If there is more than one accused, the pardon
must be extended to all offenders.
 Marriage between offender and offended party.
 Pardon or desistance extinguishes civil liability.
 Pardon or express condonation has the effect of
waiving the civil liability with regard to the
interest of the injured party. Liability arising from
an offense is extinguished in the same manner as
other obligations.
Under Sec. 27 of RA 7610, complaints on cases of
unlawful acts mentioned in the law committed
against children, may be filed by any of the ff:
 Offended party
 Parents or guardians
 Ascendant or collateral relative within the third
degree of consanguinity
 Officer, social worker, or representative of a
licensed child-caring institution
 Officer or social worker of the DSWD
 Barangay chairman
 REMEDIAL LAW REVIEWER
 At least 3 concerned, responsible citizens where
the violation occurred.
16
3. Criminal actions, when enjoined
General rule: The prosecution of a criminal case
may not be enjoined by prohibition/injunction.
Rationale: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
Exceptions (Bar 1999)
 To afford protection to the constitutional rights of
the accused;
 Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
 There is a prejudicial question which is sub judice;
 The acts of the officer are without or in excess of
authority;
 The prosecutions is under an invalid
law/ordinance/regulation;
 When double jeopardy is clearly apparent;
 The court has no jurisdiction over the offense;
 A case of persecution rather than prosecution;
 The charges are manifestly false and motivated by
the lust for vengeance;
 There is clearly no prima facie case against the
accused and MTQ on that ground has been denied;
[Samson vs Guingona (2000)]
 Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.
4. Control of prosecution
General Rule: All criminal actions commenced by a
complaint or information shall be prosecuted under
the direction and control of the prosecutor. [Sec. 5,
Rule 110]
Exception: In case of heavy work schedule of the
public prosecutor or in the event of lack of public
prosecutors,
 The private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or
the Regional State Prosecutor to prosecute the
case subject to the approval of the court.
 The authority may be revoked or withdrawn. [Sec.
5, Rule 110]
 Criminal action is still prosecuted under the
direction and control of the public prosecutor.
[Riano]
Extent of the prosecutor’s control
 Prior to the filing of the case
- The prosecutor has the discretion to file or not
to file a criminal action.
- The prosecutor is vested with discretion as to
who is to prosecute and for what; he cannot be
compelled to file a particular information.
However, if the evidence presented at the PI
leaves no doubt as to what crime was
committed and by whom, then mandamus is
available to compel the prosecuting officer to
file the corresponding complaint or information
in accordance with the evidence [Bernabe vs
Bolinas, (1966)].
 After a case is filed
- Once a criminal case has been filed in court, it
is the prosecutor‘s duty, regardless of his
personal convictions or opinions, to proceed
with the presentation of his evidence to enable
the court to arrive at its own judgment as to the
accused‘s culpability.
- After an action has been filed in court, the
prosecutor has no power to dismiss the action
without the court‘s consent.
While the Secretary of Justice has the authority to
review the acts of his subordinates in criminal cases,
the court has always has the discretion to try a
motion to dismiss which the prosecution may file
after the Secretary of Justice reverses an appealed
decision. [Roberts Jr. vs CA, (1996)]
The trial court is not bound to adopt the resolution
of the Secretary of Justice since it is mandated to
independently evaluate or assess the merits of the
case and it may either agree or disagree with the
recommendation of the Secretary of Justice.
Effects of the lack of intervention by the
fiscal in the trial
Although the private prosecutor had previously been
authorized by the special counsel to present the
evidence for the prosecution, in view of the absence
of the City Fiscal at the hearing, it can‘t be said that
the prosecution of the case was under the control of
the City Fiscal. It follows that the evidence
presented by the private prosecutor at said hearing
could not be considered as evidence for the plaintiff
[People vs Beriales, (1976)].
5. Sufficiency of Complaint or
Information
Complaint defined
A sworn written statement charging a person with an
offense, subscribed by the offended party, any
peace officer or other public officer charged with
the enforcement of the law violated. [Sec. 3, Rule
110]
 Persons authorized to file the complaint:
- Offended party
- Any peace officer
- Other public officer charged with the
enforcement of the law violated.
 Filed in the name of the People of the Philippines.
[Sec 2, Rule 110]
 Complaint refers to private crimes.
 Criminal cases under the Revised Rules on
Summary Procedure shall be either by complaint
or by information; provided that in Metro Manila
and in chartered cities, the criminal action may
only be commenced by the filing of an information
(which means by the prosecutor), except when the
offense cannot be prosecuted de oficio.

 The complaint must be under oath. But lack of
oath is not a formal defect and will not invalidate
a judgment.
Information defined
An accusation in writing, charging a person with an
offense, subscribed by the prosecutor and filed with
the court. [Sec. 4, Rule 110; People vs Cinco (2009)]
 It is filed by the prosecutor and need not be under
oath. But it must be signed and subscribed by the
fiscal/prosecutor.
 What the prosecutor signs under oath is the
certification that he has conducted the required
preliminary investigation (PI). Lack of certification
does not invalidate judgment. [People vs. Bulaong
(1981)]
 Information is valid when signed by prosecutor
who has authority to conduct PI of the offense
committed within his jurisdiction. Lack of
authority of the officer signing the information is
an infirmity in the information, and cannot be
cured by silence, acquiescence, or even by express
consent. [Cudia v CA (1998)]
 Information refers to public crimes.
 The "complaint" referred to in Rule 110
contemplates one filed in court, not with the
fiscal. In that case, the proceeding must be
started by the aggrieved party himself.
 As a general rule, a criminal action is commenced
by complaint or information, both of which are
filed in court. In case of a complaint, it must be
filed by the offended party; with respect to an
information, it is the fiscal who files it.
 But a "complaint" filed with the fiscal prior to a
judicial action may be filed by any competent
person. [Ebarle v. Sucaldito (1987)]
Form & Substance
Sufficiency of complaint or information
A complaint or information is sufficient if it states:
 the name of the accused;
 the designation of the offense given by the
statute;
 the acts or omissions complained of as constituting
the offense;
 the name of the offended party;
 the approximate date of the commission of the
offense; and
 the place where the offense was committed. [Sec.
6, Rule 110]
Test for sufficiency of the complaint or information
is whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty, of the offense
charged. [Lazarte, Jr. vs Sandiganbayan (2009)]
The purpose of the requirement for the
information‘s validity and sufficiency is to enable
the accused to suitably prepare for his defense,
since he is presumed to have no independent
REMEDIAL LAW REVIEWER
knowledege of the facts that constitute the offense.
[People vs Cinco (2009)]
Name of the accused 17
 It must include the name and surname of the
accused, as well as any appellation or nickname by
which he has been or is known.
 If the name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown. His true
name will be inserted if eventually disclosed or
appears in some manner to the court. [Sec. 7, Rule
110]
 If there are more than 1 accused, name all of
them. [Sec. 6, Rule 110]
Place of commission of offense
General rule: It is sufficient if it can be understood
that the offense (or some of its essential
ingredients) was committed within jurisdiction of
the court.
Exception: If the particular place where it was
committed:
 Constitutes an essential element of the offenses
charged; OR
 Is necessary for its identification. [Sec. 10, Rule
110]
Time of commission of the offense
General rule: The precise date is not necessary.
Exception: When the date is a material ingredient of
the offense. [Sec. 11, Rule 110]
The determinative factor in the resolution of the
question involving a variance between allegation and
proof in respect of the date of the crime is the
element of surprise on the part of the accused and
his inability to defend himself properly.
 Need not be exact
- As long as the alleged date is not so remote or
far removed from the actual date so as to
surprise and prejudice the accused, then the
information is valid.
 When date is so remote: defective
- The allegation in the information of ―on or
about the year 1992‖ is defective as it
violates Sec. 11, Rule 110 and the accused’s
right to be informed of the nature and cause
of the accusation against him, because the
phrase not only includes 12 months of the
year 1992 but also years prior and subsequent
to 1992.
 Remedy in case of defect in averment of time
- A motion for a bill of particulars under Sec. 6,
Rule 116.
- The accused may also file a MTQ on the
ground that allegations are so vague and the
time of commission of the offense so remote
that he is denied due process and the right to
be informed of the accusation against him. But
defect in the date is not a ground for MTQ
under Rule 116.
 REMEDIAL LAW REVIEWER
Name of the offended party [Sec. 12, Rule 110]
18  If an offense against person: Name and surname;
nickname/appellation; fictitious name, if real
name is unknown.
 If an offense against property:
- If name is unknown, particularly describe the
property to identify the offense;
- If the name is later known, insert it;
- If a juridical person, name or known name;
without need to aver that it is juridical.
 Where the name of the injured party is necessary
as matter of essential description of the crime
charged, the complaint must invest such person
with individuality by either naming him or alleging
that his name is unknown.
 In crimes against property, ownership must be
alleged as matter essential to the proper
description of the offense. [US vs Lahoylahoy
(1918)] Designation of the name of the offended
party is not absolutely indispensable for as long as
the criminal act charged in the complaint or
information can be properly identified. [Sayson vs
People (1988), cited in Ricarze vs CA (2007)]
 A mistake in the name of the accused is not
equivalent to a mistake in the identity especially
when sufficient evidence is adduced to show that
the accused is pointed to as one of the
perpetrators of the crime. [People vs Amodia
(2009)]
An accused is deemed to have waived his right to
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial. [Frias vs People (2007)]
Consequently, objections as to form cannot be made
for the first time on appeal. The accused should
have moved for a bill of particulars or for quashal of
information before arraignment, otherwise he is
deemed to have waived his objections to such a
defect. [People vs Teodoro (2009)]
6. Designation of Offense
 Aver the acts and omissions constituting the
offense.
 Specify the qualifying and aggravating
circumstances for them to be considered in the
imposition of the penalty. [Sec. 8 and 9, Rule 110;
People vs Tampos (2009)] (Bar 2001)
This is a procedural requirement to safeguard the
right of the accused to be informed of the nature
and cause of the accusation against him. Information
is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or
omissions thereof.
In case of a conflict between the designation of the
crime and the recital of ultimate facts constituting
the offense, the latter prevails over the former.
[People vs Quemeggen (2009)]
Specific acts of accused do not have to be described
in detail in the information, as it is enough that the
offense be described with sufficient particularity to
make sure the accused fully understands what he is
being charged with. [Guy vs People (2009)]
7. Cause of the Accusation
A variance between the allegation in the information
and proof adduced during trial shall be fatal to the
criminal case if it is material and prejudicial to the
accused so much so that it affects his substantial
rights. [Matrido v People (2009)]
Purpose
 To enable a person of common understanding to
know what offense is intended to be charged;
 To enable the court to pronounce proper
judgment.
Allegations required to safeguard right to be
informed
 Allegations must be in ordinary or concise
language, sufficient to enable a person of common
understanding to know what offense is being
charged.
 This must be done both for the offense charged
and the circumstances involved in its commission.
[Sec. 9, Rule 110]
 The prosecutor‘s characterization of the crime is
immaterial and purposeless. The facts stated in
the body of the complaint/information determine
the crime of which the accused stands charged
and for which he must be tried.
Qualifying and aggravating circumstances must be
alleged; otherwise, they are not to be considered
even if proven during the trial. [Sec. 8, Rule 110]
What to allege
 Where the law prescribes exceptions
General rule: Where the law alleged to have
been violated prohibits generally acts therein
defined and is intended to apply to all persons
indiscriminately, but prescribes certain
limitations/exceptions from its violation, the
indictment/information is sufficient if it alleges
facts which the offender did as constituting a
violation of law, without explicitly negating the
exception, as the exception is a matter of defense
which the accused has to prove.
Exception: Where the statute alleged to have
been violated applies only to specific classes of
persons and special conditions and the exemptions
from its violation are so incorporated in the
language defining the crime that the ingredients
of the offense cannot be accurately and clearly set
forth if the exemption is omitted, then the
indictment must show that the accused does not
fall within the exemptions.
 Where exceptions form as ingredients of offense
If the exception is needed for defining the offense,
then the information should negate the exception.
[US vs Chan Toco (1908)]
 Where complex crime is charged
Where what is alleged in the information is a
complex crime and the evidence fails to support the
charge as to one of the component offenses, the
 REMEDIAL LAW REVIEWER

defendant can only be convicted of the offense Amendments made after plea and during trial
proven.
 Formal – can only be made under two conditions
8. Duplicity of the Offense; Exception - Leave of court must be secured 19
- It does not cause prejudice to the rights of the
(Bar 2005) accused. [Sec 14, Rule 110] The test as to WON
a defendant is prejudiced by the amendment of
General rule: The information must charge only one
information is –
offense. [Sec. 13, Rule 110]
o WON a defense under the information as it
originally stood would be available after the
Objection to a complaint or information which
amendment is made, and
charges more than one offense must be timely
o WON any evidence defendant might have
interposed before trial. [Sec 3, Rule 120] Failure to
would be equally applicable to the
do so constitutes a waiver, [People v Tabio (2008)]
information in the one form as in the other.
and the court may convict him of as many offenses
[People vs Casey (1981)]
as are charged and proved, and impose on him the
penalty for each offense. [Sec 3, Rule 120]
 Substantial – proscribed. [People vs Zulueta
(1951)]
Exception: When the law prescribes a single
- Substantial matter in a complaint is the recital
punishment for various offenses
of facts constituting the offense charged and
determinative of the jurisdiction of the court.
Purpose: To give the accused the necessary
All other matters are merely of form. [Almeda
knowledge of the charge to enable him to prepare
vs Villaluz (1975)]
his defense. Hence, when an information charges
- Exception: if it is beneficial to the accused.
more than one offense, the accused may file a MTQ
[Ricarze vs CA (2007)]
on the ground of duplicity of offenses.
Substitution – a complaint or information may be
Several modes of committing offense not substituted if it appears at any time before
duplicitous judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the
General rule: In case of crimes susceptible of being original complaint or information upon the filing of a
committed in various modes, the allegations in the new one charging the proper offense, provided the
information of the various ways of committing the accused would not be placed in double jeopardy.
offense would be regarded as a description of only [Sec 14, Rule 110]
one offense and information is not rendered
defective.  Subject to the Sec 19, Rule 119, when it
becomes manifest at any time before judgment
Exceptions: that a mistake has been made in charging the
 Complex crimes proper offense and the accused cannot be
 Special complex crimes convicted of the offense charged or any other
 Continuous crimes offense necessarily included therein, the
 Crimes susceptible of being committed in various accused shall not be discharged if there appears
modes good cause to detain him. The court shall
 Crimes which another offense is an ingredient commit the accused to answer the proper
[People vs Camerino (1960)] offense and dismiss the original case upon the
filing of the proper information.
9. Amendment or Substitution of
complaint or information [Sec. 14, Distinction between substitution and
amendment (Bar 1994)
Rule 110] (Bar 2001, 2002) AMENDMENT SUBSTITUTION
Formal or Substantial Substantial change form
Amendments in form and substance before changes original
plea Can be effected without Must be with leave of
leave of court court
General rule: It must be made before the accused Only as to form, there is Another PI is entailed
enters his plea. no need for another PI and accused has to plead
and retaking of plea anew
Exception: If the amendment downgrades the
Amended information Involves a different
nature of the offense charged in, or excludes any
refers to the same offense which does not
accused from, the complaint/information, it can be
offense charged in the include those provided in
made only upon motion of the prosecutor, with
original information or the original charge;
notice to the offended party and with leave of court.
to an offense which is cannot invoke double
The court is mandated to state its reasons in
included in the original jeopardy
resolving the motion of the prosecutor and to furnish
charge; can invoke
all parties, especially the offended party, of copies
double jeopardy
of its order.
 REMEDIAL LAW REVIEWER
10. Venue of criminal actions
20
Place where action is to be instituted
Venue of criminal actions shall be instituted and
tried in the court of the municipality or territory
 where the offense was committed; or
 where any of its essential ingredients occurred.
[Sec. 15(a), Rule 110]
How venue or jurisdiction determined
 Venue in criminal cases is jurisdictional, being an
essential element of jurisdiction.
 One cannot be held to answer for any crime
committed by him except in the jurisdiction where
it was committed or where an essential ingredient
thereof took place. The place where the accused
was arrested is of no moment. [People vs
Enriquez]
Where crime is continuing
A person charged with a transitory crime may be
validly tried in any municipality or province where
the offense was in part committed. [People vs
Gorospe (1984)]
Written defamation
 Action to be instituted and filed in the RTC of the
province or city where the libelous article is
printed and first published.
 Additional rules: if offended party is
- a private individual, the action may also be filed
in the province where he actually resides at the
time of the commission of the offense.
- a public officer, the action may be filed in the
court of the province or city where he held
office at the time of the commission of the
offense. [Art. 360, RPC]
Note: If information is filed in the place where the
defamatory article was printed or first published, it
must state that the libelous material was either
printed or first published in the place of the filing of
the information, and not merely allege that the
paper or magazine is of general/considerable
circulation. [Riano on Foz, Jr. v People (2009)]
Offense committed on railroad
 Action to be instituted and filed in the court of
any municipality or territory where said train,
aircraft or vehicle passed thru, including place of
departure or arrival. [Sec. 15(b), Rule 110]
 Rule applies only when the crime was committed
in the COURSE of the trip.
Offense committed on a vessel
Action may be instituted and tried in the court of
the first port of entry or any municipality or territory
where the vessel passed during such voyage, subject
to generally accepted principles of international
law. [Sec. 15(c), Rule 110]
Offense committed outside the Philippines
Cognizable by the court where the criminal action is
first filed. [Sec. 15(d), Rule 110]
11. Intervention of offended party
[Sec. 16, Rule 110]
General rule: An offended party has the right to
intervene in the prosecution of a crime
Note: This is still subject to the control of the
prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]
Exceptions:
 Where, from the nature of the crime and the law
defining and punishing it, no civil liability arises in
favor of a private offended party.
 Where, from the nature of the offense, the private
offended party is entitled to civil indemnity arising
therefrom but he has waived the same or has
expressly reserved his right to institute a separate
civil action or he has already instituted such
action.
 Offended party has already instituted action
- Any move on the part of the complainant or
offended party to dismiss the criminal case,
even if without objection of the accused, should
first be referred to the prosecuting fiscal for his
own view on the matter. He controls the
prosecution of the case and may have reasons
why the case should not be dismissed. [Republic
vs Sunga (1988)]
- When private prosecutor is allowed to
intervene: [A.M. No. 02-2-07-SC]
o All criminal actions either commenced by
complaint or by information shall be
prosecuted under the direction and control of
a public prosecutor.
o In case of heavy work schedule of the public
prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the
Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to
the approval of the court.
- The private prosecutor shall continue to prosecute
the case up to the end of the trial even in the
absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn. [Sec.
5, Rule 110]
III. PROSECUTION OF CIVIL
ACTION
1. Rule on implied institution of civil
action with criminal action
How instituted
General rule: When a criminal action is instituted,
the civil action for the recovery of civil liability
arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule
111]
Reason: principle that every person criminally liable
for a felony is also civilly liable. [Art. 100, RPC]

Exception: If the offended party:
 Waives the civil action;
 Institutes the civil action prior to the criminal
action; or
 Reserves the right to institute it separately [ABS-
CBN Broadcasting Corporation vs Ombudsman
(2008)]
Exception to this exception
 Claims arising out of a dishonored check under BP
22 where ―no reservation to file such civil action
separately shall be allowed.‖ (Bar 2001; 2002)
 Claims arising from an offense which is cognizable
by the Sandiganbayan where there is likewise no
right to reserve the filing of the civil action
separately from the criminal action. [Sec. 4, PD
1606, as amended by RA 8249]
 An offended party loses his right to intervene in
the prosecution of a criminal case, not only when
he has waived the civil action or expressly
reserved his right to institute it, but also when he
has actually instituted the civil action. For by
either of such actions his interest in the criminal
case has disappeared. [Garcia vs Florido (1973)]
 Only civil liability arising from the crime charged
as a felony is deemed instituted with the criminal
action. Civil actions referred to in Civil Code 32,
33, 34, and 2176 shall remain ―separate, distinct
and independent‖ of any criminal prosecution
which may be based on the same act. [Phil. Rabbit
Bus Lines Inc vs People (2004)]
 Does not include civil liability that the offended
party waives, reserves or those instituted prior to
the criminal action.
2. When civil action may proceed
independently
 The reservation of the right to institute separately
the civil action shall be made before the prosecution
starts presenting its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such reservation.
 Procedure for making the reservation:
- Filing a manifestation in the criminal case that the
offended party is reserving his right to file a
separate civil action;
- Filing the separate civil action and informing the
court trying the criminal case that the offended
party has filed a separate civil action.
 The rule requiring reservation does not apply to Arts.
32-34 and 2176, CC. These civil actions can be filed
and prosecuted independently of the criminal
action.
 No counterclaim, cross-claim or 3rd-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. [Sec. 1, Rule 111]
REMEDIAL LAW REVIEWER
3. When separate civil action is
suspended
21
 After the criminal action has been commenced, the
separate civil action arising therefrom cannot be
instituted until final judgment has been entered in
the criminal action. [Sec 2, Rule 111]
 The civil action, which should be suspended after
the institution of the criminal action, is that arising
from delict or crime.
 Civil actions mentioned in Sec. 3, Rule 111 under
Arts. 32-34 and 2176 of the Civil Code are exempted
from the rule that after a criminal action has been
commenced, the civil action which has been
reserved cannot be instituted until final judgment
has been rendered in the criminal action.
4. Effect of the death of accused or
convict on civil action [Sec. 4, Rule
111; ABS-CBN Broadcasting vs
Ombudsman (2008)]
 If death is before arraignment – Dismissal of case
without prejudice to filing of civil action against
estate of the deceased.
 If death is after arraignment and during pendency of
criminal action – Extinguishes civil liability arising
from the delict.
Exception: Independent civil actions instituted
under Arts. 32, 33, 34 and 2176 of the Civil Code, or
those 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 his estate.
 If death is while appeal is pending – extinguishes
criminal liability and civil liability based thereon. If
the civil liability is predicated on a source of
obligation other than delict, it survives
notwithstanding the death of the accused [People vs
Ayochok (2010)]
5. Prejudicial Question (1999 Bar)
Elements of prejudicial question
General Rule: a prejudicial question is that which
arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal.
 The prejudicial question must be determinative of
the case before the court but the jurisdiction to try
and resolve the question must be lodged in another
court or tribunal.
 It is a question based on a fact distinct and separate
from the crime but so intimately connected with it
that it determines the guilt or innocence of the
accused. [Ras vs Rasul (1980)]
 Rationale: to avoid two conflicting decisions in the
civil case and in the criminal case. [Sy Thiong Siou vs
Sy Chim (2009)]
 REMEDIAL LAW REVIEWER
Effect (Bar 1995, 1999, 2010)
22
General rule: Where both a civil and a criminal case
arising from the same facts are filed in court, the
criminal case takes precedence.
Exception: If there exists a prejudicial question
which should be resolved first before an action could
be taken in the criminal case.
Requisites [Sec. 7, Rule 111]
 Previously initiated civil action involves an issue
similar or intimately related to the issue raised in
the subsequent criminal action; and
 The resolution of such issue determines WON the
criminal action may proceed.
Where to file petition [Sec. 6, Rule 111]
 Office of the prosecutor (in the PI stage);
 Court conducting the PI; or
 Court where criminal action has been filed for
trial, at any time before the prosecution rests.
Note: The Rule precludes a motu proprio suspension
of the civil action. [Riano]
6. Rule on Filing Fees in civil action
deemed instituted with the criminal
action
Filing fees of civil action deemed instituted in
criminal action
Filing fees apply when damages are being claimed by
the offended party.
General Rule: The actual damages claimed or
recovered by the offended party are not included in
the computation of the filing fees. [Sec. 1, Rule 111]
 When the amount of damages, other than actual,
is specified in the complaint or information filed in
court, then the corresponding filing fees shall be
paid by the offended party upon the filing thereof
in court for trial;
 In any other case—i.e., when the amount of
damages is not so alleged in the complaint or
information filed in court, the corresponding filing
fees need not be paid and shall simply constitute a
first lien on the judgment, except on an award for
actual damages. [General vs Claravall (1991)]
Exceptions: In criminal actions for violation of BP22,
the amount of the check involved shall be
considered as the actual damages for which no
separate civil action is allowed. In estafa cases, the
filing fees shall be paid based on the amount
involved. [A.M. No. 04-2-04]
IV. PRELIMINARY INVESTIGATION
1. Nature of right
2. Purposes of preliminary investigation
3. Who may conduct determination of
existence of probable cause
4. Resolution of investigating prosecutor
5. Review
6. When warrant of arrest may issue
7. Cases not requiring a preliminary
investigation
8. Remedies of accused if there was no
preliminary investigation
9. Inquest
1. Nature of right
Preliminary investigation, defined
 It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial. [Sec. 1, Rule
112]
 The conduct of a PI is the initial step towards the
criminal prosecution of a person.
Nature of the Right to PI
 It is a statutory right in those instances where it is
required, and to withhold it would violate the
constitutional right to due process. [People vs
Oandasa (1968)]
 It is part of the guarantees of freedom and fair
play. [La Chemise Lacoste, S.A. vs Fernandez
(1984)]
 The right to have a PI conducted before being
bound over to trial for a criminal offense and
hence formally at risk of incarceration or some
other penalty is not a mere formal or technical
right but a substantial right
Right to Preliminary Investigation
 The right to preliminary investigation is a personal
right which the accused may waive either
expressly or by implication.
 When the accused waives his right to preliminary
investigation, the fiscal may forthwith file the
corresponding information with the proper court.
[People vs Perez (1960)]
 The right is deemed waived by:
- the failure to claim it before the accused
pleaded [People vs Magpale (1940)]
- silence of the accused [People vs Mijares
(1951)]
- failure to request it within 5 days from time he
learns of the filing of the complaint/information
- when accused already posted bond for his
release and subsequently went to trial without
claiming his right to PI [People vs Selfaison
(1961)]
- a fortiori absence of the accused [Sec. 3(d),
Rule 112; de Guzman vs People and
Sandiganbayan (1982)]
An application for or admission to bail shall not bar
the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided that
 REMEDIAL LAW REVIEWER

he raises the challenge before entering his plea [Sec.

26, Rule 114].
2. Purposes of preliminary
investigation
 To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty. [Raro
vs Sandiganbayan (2000)]
 To protect the accused from the inconvenience,
expense and burden of defending himself in a
formal trial
 To secure the innocent against hasty, malicious
and oppressive prosecution, and to protect him
from an open and public accusation of a crime,
from the trouble, expense, anxiety of a public
trial, and also protect the state from useless and
expensive trials. [Tandoc vs Resultan (1989)]
Scope of PI
 A PI is ―merely inquisitorial, and it is often the
only means of discovering the persons who may
reasonably be charged with a crime, to enable the
prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits‖ and does not place the persons against
whom it is taken in jeopardy.
 It ―is not the occasion for the full and exhaustive
display of the parties‘ evidence‖ [Raro vs SB
(2000)]
 The accused has no right to cross-examine the
witnesses which the complainant may present.
[Paderanga vs Drilon, 1991]
 A PI takes on an adversarial quality, because its
purpose is to secure the innocent against hasty,
malicious and oppressive prosecution, and to
protect him from an open and public accusation of
a crime, from the trouble, expenses and anxiety of
a public trial before an accused person is placed
on trial. [Raro vs SB (2000)]
 Ombudsman
The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed 23
in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including
GOCCs and shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof. [Sec. 12, Art. XI, Consti]
The Ombudsman is authorized to conduct
preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction
of the Sandiganbayan, but also those within the
jurisdiction of regular courts as well.
- If the offense comes within the jurisdiction of
regular courts, the Ombudsman may endorse the
same to, and deputize the provincial/ city
prosecutor who has jurisdiction over the case
for proper preliminary investigation.
- If the offense is cognizable by the
Sandiganbayan, the preliminary investigation
has to be conducted pursuant to Rule 11 of the
Rules of Procedure of the Office of the
Ombudsman requiring that the complaint must
be under oath.
Note: RTC judges have NO power to conduct PI;
and MTC judges cannot conduct PI anymore after
A.M. No. 05-8-26-SC eliminated judges of the MTC
and MCTC from those authorized to conduct a PI
effective October 3, 2005.

3. Who may conduct determination of

existence of probable cause
 Generally [Rule 112, Sec. 2 as amended by A.M.
No. 05-8-26-SC]
- Provincial/city prosecutors and their assistants;
- National and regional state prosecutors;
- Other officers as may be authorized by law.

 COMELEC, when vested

COMELEC may conduct investigation as regards
election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec.
265, Omnibus Election Code]

The COMELEC exercises the constitutional authority

to investigate and, where appropriate, prosecute
cases for violation of election laws, including acts or
omissions constituting election frauds, offenses and
malpractices. Such involves the exercise of
administrative powers, thus the COMELEC en banc,
may in the first instance, may act on the
investigation and subsequently decide on the filing
of the criminal action. [Baytan vs COMELEC (2003)]
 REMEDIAL LAW REVIEWER
Procedure for preliminary investigation
24
Filing of the complaint [Sec. 3(a), Rule 112]
 Stating the respondent‘s address
 Include the affidavits of complainant and the
witnesses, and other documents to establish
probable cause, which must be subscribed and
sworn to before a prosecutor or government
official authorized to administer oath or
notary public
 In such number of copies as there are
respondents, plus 2 copies for the official file
Action of the investigating officer [Sec. 3(b),
Rule 112]
Within 10 days after the filing of the complaint,
the investigating officer will either:
 Dismiss, if he finds no ground to continue; or
 Issue a subpoena to the respondent, attaching
the complaint and other documents. If
subpoena is not possible, the investigating
officer shall decide based on what complainant
presented.
Respondent has the right to examine the evidence
submitted by complainant, and copy evidence at
his expense.
Defendant’s counter-affidavit
Must be made within 10 days from receipt of
complaint, and must comply with the same
requirements as a complaint. [Sec. 3(c), Rule 112]
If not made within 10 days, the investigating officer
shall resolve the complaint based on the evidence
presented by the complainant [Sec. 3(d), Rule 112]
Hearing [Sec. 3(e), Rule 112]
The investigator must conduct a hearing within
10 days from receipt of the counter-affidavit.
The hearing must be finished in 5 days.
Hearing is conducted only if there are such facts
and issues to be clarified from a party or a
witness.
Parties may be present evidence, but they have
no right to examine or cross-examine. Questions
of parties shall be submitted to the investigating
officer.
Within 10 day after the investigation, the officer
shall determine WON there is sufficient ground
to hold respondent for trial.
4. Resolution of investigating
prosecutor [Sec. 4, Rule 112]
 If the investigating officer finds no probable
cause, he will dismiss the case. Otherwise, he will
prepare an information and resolution.
 He shall certify under oath in the information
that:
- He is an authorized officer;
- He personally examined the complainant and
witnesses;
- There is reasonable ground to believe that a
crime has been committed and that the accused
is probably guilty thereof;
- The accused was informed of the complaint and
of the evidence submitted against him; and
- The accused was given an opportunity to submit
controverting evidence.
5. Review [Sec. 4, Rule 112]
Within 5 days from resolution, the investigating
officer will forward the case to the prosecutor or the
Ombudsman in cases cognizable by the
Sandiganbayan in the exercise of its original
jurisdiction.

Within 10 days from receipt of the resolution, the
prosecutor/Ombudsman will act on the case.

No complaint/information may be filed or dismissed
by an investigating prosecutor without the prior
written authority or approval of the prosecutor or
Ombudsman.
In case the investigation officer recommends the
dismissal of the complaint but the
prosecutor/Ombudsman disagrees, the latter may
file the information himself or any deputy or order
any prosecutor to do so without conducting a new PI.
Note: The DOJ Secretary may file the information
without conducting another PI or dismiss the
information filed by the prosecutor.
6. When warrant of arrest may issue
If the judge finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested, and hold him for
trial.
Judges of RTC and inferior courts need not
personally examine the complainant and his
witnesses in the determination of PC. But he must
personally evaluate the prosecutor‘s report and
other sufficient supporting evidence, and on the
basis thereof either dismiss the case, issue a
warrant, or require further affidavits.
Warrant that is simply based on report and
recommendation of prosecution invalid; the judge
must make an independent judgment of whether or
not there is probable cause. This is because the
probable cause for the prosecutor and judge are
different:
 PC for PROSECUTOR: whether or not there is
reasonable ground to believe that the accused is
guilty of the offense charged and should be held
for trial for which information is to be filed.
 REMEDIAL LAW REVIEWER

 PC for JUDGE: whether or not a warrant of arrest
should be issued so that the accused may be held
in custody in order not to frustrate the ends of
justice.
Judge may dismiss the case if the evidence on record
clearly fails to establish a probable cause
While PI is a statutory and substantive right and a
component part of due process, the absence of PI:
 does not impair the validity of the information or
otherwise render it defective 25
 neither does it affect the jurisdiction of the court
 nor constitute a ground for quashing the
information.

Judge may order the prosecutor to present evidence The trial court, instead of dismissing the
within 5 days from notice and the issue may be information, should hold in abeyance the
resolved by the court within 30 days from filing of proceedings and order the public prosecutor to
complaint/information. conduct a PI. [Villaflor vs Vivar (2001)]

7. Cases not requiring a preliminary If Preliminary investigation is being

investigation conducted

Injunction and writs of restraint

Cases not requiring a preliminary investigation Nor
Covered by Rule on Summary Procedure [Sec. 8,
General rule: The power of the Fiscal to investigate
Rule 112]
crimes committed within his jurisdiction will,
 Cases punishable by imprisonment of less than 4
ordinarily, not be restrained, as such will unduly
years, 2 months and 1 day, filed with the
setback the administration of criminal justice.
prosecutor or MTC/MCTC
Exception: Extreme cases may exist where relief in
Follow the procedure outlined in Sec. 3(a), Rule 112 equity may be availed of to stop a purported
above. enforcement of a criminal law where it is necessary
(a) for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in an
Within 10 days after the filing of the oppressive and vindictive manner; (c) to avoid
complaint/information, if the judge finds no PC multiplicity of actions; (d) to afford adequate
after personally evaluating the evidence or after protection to constitutional rights; and (e) in proper
personally examining in writing and under oath the cases, because the statute relied upon is
complainant and his witnesses in the form of unconstitutional, or was "held invalid." [Hernandez
searching questions and answers, he shall dismiss vs Albano (1967)]
the same.
9. Inquest
The judge may require submission of additional General rule: PI is required to be conducted before
evidence within 10 days from notice, to determine a complaint/ information is filed for an offense
where the penalty prescribed by law is at least 4
the existence of PC.
years, 2 months and 1 day, without regard to the
fine. [Sec. 1, Rule 112]
If the judge still finds If the judge finds PC, he
Exception: When a person is lawfully arrested
no PC despite the shall issue a warrant of
without a warrant involving an offense that requires
additional evidence, he arrest or a commitment
a PI, a complaint/information may be filed without
order (if the accused
shall dismiss the case conducting the PI if the necessary inquest is
had already been
within 10 days from its conducted.
arrested) and hold him
submission or expiration for trial.
INQUEST – An informal and summary investigation
of said period.
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for
If the judge is satisfied the purpose of determining whether or not said
that there is no need to persons should remain under custody and
place the accused under correspondingly be charged in court. (DOJ-NPS
custody, he may issue Manual)
summons instead.
 In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the
8. Remedies of accused if there was offended party or by a peace officer directly with
the proper court on the basis of the affidavit of
no preliminary investigation the offended party or arresting officer or person.
 However, before the complaint or information is
Effect of denial of right to PI filed, the person arrested may ask for a PI, but he
must sign a waiver of the provisions of Art. 125,
 REMEDIAL LAW REVIEWER

RPC in the presence of his counsel.

Notwithstanding the waiver, he may apply for bail
26 and the investigation must be terminated within
If the recommendation of the Inquest Officer for the
15 days from its inception.
release of the arrested or detained person is
 After the filing of the complaint/ information in
approved, the order of release shall be served on
court without a PI, the accused may within 5 days
the officer having custody of the said detainee.
from the time he learns of its filing, ask for a PI
with the same right to adduce evidence in his
Should it be disapproved, the arrested or detained
defense as provided in Rule 112. [Sec. 6, Rule 112]
person shall remain under custody, and the
corresponding complaint/information shall be filed
Procedure for inquest proceedings by the City or Provincial Prosecutor or by any
Assistant Prosecutor to whom the case may be
Considered commenced upon receipt by the
assigned.
Inquest Officer from the law enforcement
authorities of the complaint/referral documents
which should include:
 affidavit of arrest, investigation report,
V. ARREST
statement of the complainant and witnesses, all 1. Arrest, how made
of which must be subscribed and sworn to before 2. Arrest without warrant, when lawful
him 3. Method of arrest
 other supporting evidence gathered by the a. By officer with warrant
police in the course of the latter's investigation
b. By officer without warrant
of the criminal incident involving the arrested or
detained person.
c. By private person
4. Requisites of a valid warrant of arrest
It must be terminated within the period prescribed 5. Determination of probable cause for
under the provisions of Article 125 of the RPC, as issuance of warrant of arrest
amended. 6. Distinguish probable cause of fiscal from
that of a judge

ARREST: Taking of a person into custody in order

When the documents presented are not complete to
establish probable cause, the Inquest Officer shall
direct the law enforcement agency to submit the
required evidence within the period prescribed under
the provisions of Art. 125, RPC, as amended.
Otherwise, the Inquest Officer shall order the release
of the detained person.
that he may be bound to answer for the commission
of an offense. (Rule 113, Sec. 1)
Ordinarily, an invitation to attend a hearing and
answer some questions, which the person invited
may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable.

However, where the invitation comes from a

powerful group composed predominantly of ranking
If the Inquest Officer If the Inquest Officer military officers issued at a time when the country
finds that probable finds no PC, he shall has just emerged from martial rule and when the
cause exists, he shall recommend the release suspension of the privilege of the writ of habeas
forthwith prepare the of the arrested or corpus has not entirely been lifted, and the
corresponding detained person, note designated interrogation site is a military camp, the
complaint/information down his disposition on same can be easily taken, not as a strictly voluntary
with the the referral document, invitation which it purports to be, but as an
recommendation that prepare a brief authoritative command which one can only defy at
the same be filed in memorandum his peril. Although in the guise of a request, it was
court. The indicating the reasons obviously a command or an order of arrest that a
complaint/information for the action taken, person could hardly be expected to defy. [Sanchez v.
shall indicate the and forthwith forward Demetriou (1993)]
offense committed and the record of the case
the amount of bail to the City or Provincial  Immunity from arrest
recommended, if Prosecutor for - Parliamentary Immunity: Senators and
bailable. appropriate action. Members of the House of Representatives,
while Congress is in session and for offenses
punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987
Const.)
- Diplomatic Immunity: Ambassadors and
ministers of foreign countries and their duly
registered domestics subject to the
principle of reciprocity (RA 75)

 DOJ Circular No. 50 (October 29, 1990):
Prohibits the issuance of general warrants in a
―John Doe‖ information
- Insofar as the warrant is issued against 50
"John Does" not one of whom the witnesses
to the complaint could or would identify, it
is of the nature of a general warrant, one of
a class of writs long proscribed as
unconstitutional and once anathematized as
"totally subversive of the liberty of the
subject." [Pangandaman v. Casar (1988)]
1. Arrest, how made
Constitutional requirements on arrest
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 inviolable, 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. (Art. III, Sec.
2, 1987 Const.)
Modes of effecting arrest
 By an actual restraint of a person to be
arrested.
 By his submission to the custody of the person
making the arrest. (Rule 113, Sec. 2, Par. 1)
Whichever means is used to make an arrest, the
term necessarily implies control over the person
under custody and, as a consequence, a restraint on
his liberty to the extent that he is not free to leave
on his own volition. (Riano, 2011)
It is enough that there be an intent on the part of
one of the parties to arrest the other and an intent
on the part of the other to submit, under the belief
and impression that submission is necessary.
[Sanchez v. Demetriou (1993)]
No unnecessary violence
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for
his detention. (Rule 113, Sec. 2, Par. 2)
 Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required.
Time to make arrest
An arrest may be made on any day and at any time
of the day or night. (Rule 113, Sec. 6)
2. Arrest without warrant, when
lawful (1997, 2000, 2003, 2004 Bar)
General rule: No peace officer or person has the
power or authority to arrest anyone without a
REMEDIAL LAW REVIEWER
warrant except in those cases expressly authorized
by law. [Umil v. Ramos (1991)]
Exceptions (Rule 113, Sec. 5) 27
 In flagrante delicto: Literally, caught in the act
of committing a crime. When the person to be
arrested has committed, is actually committing
or is attempting to commit an offense in the
presence of the peace officer or private person
who arrested him. (Rule 113, Sec. 5(a))
- Requisites:
o The person to be arrested must execute
an overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and
o Such overt act is done in the presence or
within the view of the arresting officer.
- ―In his presence‖ means: [People v. Evaristo
(1992)]
o He sees the offense, even though at a
distance;
o He hears the disturbances created by the
offense and proceeds at once to the
scene; or
o Offense is continuing or has been
consummated at the time arrest is made.
- Entrapment
o An arrest made after an entrapment does
not require a warrant inasmuch as it is
considered a valid warrantless arrest
pursuant to Rule 113, Sec. 5(a) of the
Rules of Court. [Teodicio v. CA (2004)]
- Buy-bust operation
o When the appellant is caught in flagrante
as a result of the buy-bust operation, the
policemen are not only authorized but
are also under obligation to apprehend
the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]
 Hot pursuit arrest: When an offense has just
been committed and the officer or private
person has probable cause to believe, based on
personal knowledge of facts or circumstances,
that the person to be arrested has committed it
(Rule 113, Sec. 5(b))
- Requisites
o An offense has just been committed –
implies immediacy in point of time; and
o The person making the arrest has
probable cause to believe, based on
personal knowledge of facts, that the
person to be arrested has committed it.
 Personal knowledge must be based on
―probable cause‖ which means an
actual belief or reasonable grounds of
suspicion.
 The grounds of suspicion are reasonable
when, in the absence of actual belief
of the arresting officer, the suspicion
that the person to be arrested is
probably guilty of committing the
offense is based on actual facts, i.e.,
supported by circumstances sufficiently
strong in themselves to create the
 REMEDIAL LAW REVIEWER
probable cause of guilt of the person to
be arrested.
28  A reasonable suspicion therefore must
be founded on probable cause, coupled
with good faith on the part of the
peace officers making the arrest.
[Posadas v. Ombudsman (2000)]
NOTE: Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the person
arrested without a warrant shall forthwith arrested
delivered to the nearest police station or jail. (Rule
113, Sec. 5, last par.)
 Arrest of escaped prisoner
- When the person to be arrested is a
prisoner who has escaped: (Rule 113, Sec.
5(c))
o From a penal establishment or place
where he is serving final judgment or
temporarily confined while his case is
pending; or
o While being transferred from one
confinement to another.
- Escapee may be immediately pursued or re-
arrested without a warrant at any time and
in any place within the Philippines. (Rule
113, Sec. 13)
- Rationale: At the time of arrest, the
escapee is in continuous commission of a
crime (i.e. evasion of service of sentence).
Other lawful warrantless arrest
 Where a person who has been lawfully arrested
escapes or is rescued. (Rule 113, Sec. 13), but
the pursuit must be immediate.
 By the bondsman, for the purpose of
surrendering the accused. (Rule 114, Sec. 23)
 Where the accused attempts to leave the
country without permission of the court where
the case is pending. (Rule 114, Sec. 23)
3. Method of arrest
a. By officer with warrant
Duties of the arresting officer
 Execution of warrant (Rule 113, Sec. 4)
- The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within 10 days from
its receipt.
- The officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant within 10 days after
expiration of the period to execute.
- In case of his failure to execute, he shall
state the reasons therefor.
 The officer shall inform the person to be
arrested of (1) the cause of the arrest and (2)
the fact that a warrant has been issued for his
arrest. (Rule 113, Sec. 7)
- Exceptions:
o When he flees
o When he forcibly resists before the
officer has opportunity to so inform him
o When the giving of such information will
imperil the arrest
- The officer need not have the warrant in his
possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable. (Rule 113, Sec. 7)
o This is not a case of a warrantless arrest
but merely an instance of an arrest
effected by the police authorities without
having the warrant in their possession at
that precise moment. [Mallari v. CA
(1996)]
 To arrest the accused and deliver him to the
nearest police station or jail without
unnecessary delay. (Rule 113, Sec. 3)
Rights of the arresting officer
 To summon assistance. (Rule 113, Sec. 10)
- He may orally summon as many persons as
he deems necessary to assist him in
effecting the arrest.
- A person summoned shall assist in effecting
the arrest when he can do so without
detriment to himself.
 To break into building or enclosure. (Rule 113,
Sec. 11)
- The person to be arrested is or is reasonably
believed to be in said building;
- He has announced his authority and purpose
of entering therein; and
- He has requested and been denied
admittance.
Also applicable where there is a valid arrest
without a warrant.
Rationale: Person to be arrested cannot use his
house/ building/enclosure as a shelter for
crime. The inviolability of domicile cannot be
used to shield arrest.
 To break out from the building/enclosure when
necessary to liberate himself. (Rule 113, Sec.
12)
Also applicable where there is a valid arrest
without a warrant.
 To search the person arrested for dangerous
weapons or anything which may have been used
or constitute proof in the commission of an
offense. (Rule 126, Sec. 13)
Without need of a search warrant if it is
incidental to a lawful arrest.
b. By officer without warrant
Duties of arresting officer without warrant
 The officer shall inform the person to be
arrested of (1) his authority and (2) the cause of
the arrest. (Rule 113, Sec. 8)
 Exceptions:
- When the person to be arrested is engaged
in the commission of the offense
 REMEDIAL LAW REVIEWER

- When he is pursued immediately after its complainant and his witnesses by

commission
- When he has escaped, flees or forcibly
resists before the officer has the
opportunity to so inform him; or
- When the giving of such information will
imperil the arrest.
c. By private person (citizen’s arrest)
Duties of private person effecting an arrest
 The private person shall inform the person to be
arrested of (1) the intention to arrest him and
(2) the cause of the arrest. (Rule 113, Sec. 9)
searching questions and answers.
o He must be satisfied that PC exists;
o There is a need to place the respondent 29
under immediate custody in order not to
frustrate the ends of justice. [Samulde v.
Salvani (1988)]
 A warrant of arrest has no expiry date. It is only
subject to the requirements found in Rule 113,
Sec. 4.
5. Determination of Probable Cause
for issuance of warrant of arrest

Exceptions: Same as those for arrest by an

Probable cause test
Probable cause, in connection with the issuance of a
officer without a warrant.
warrant of arrest, assumes the existence of facts and
circumstances that would lead a reasonably discreet
 The private person must deliver the arrested
and prudent man to believe that a crime has been
person to the nearest police station or jail, and
committed and that it was likely committed by the
he shall be proceeded against in accordance
person sought to be arrested. [People v. Tan (2009)]
with Rule 112, Sec. 7. Otherwise, the private
person may be held liable for illegal detention.
Probable cause demands more than suspicion but it
requires less than evidence that would justify
4. Requisites of a valid warrant of conviction. [People v. Gabo (2010)]
arrest
6. Distinguish probable cause of fiscal
Issuance from that of a judge
 Essential Requisites of a Valid Arrest Warrant
(Art. III, Sec. 2, 1987 Const.)
FISCAL JUDGE
- It must be issued upon probable cause
Executive determination Judicial determination of
which must be determined personally by a
of PC PC
judge after examination under oath or
affirmation of the complainant and the Determination of PC to Determination of PC to
witnesses he may produce. hold a person for trial issue a warrant of arrest
- The warrant must particularly describe the W/N there is reasonable W/N a warrant of arrest
person to be arrested. ground to believe that should be issued
the accused is guilty of
the offense charged and
Instances When Judge Issues Warrant of
should be held for trial
Arrest
 Upon the filing of the information by the public
Rule: The law requires personal determination on
prosecutor and after personal evaluation by the
the part of the judge. The judge may rely on the
judge of the prosecutor’s resolution and
report of the investigating prosecutor provided he
supporting evidence. (Rule 112, Sec. 5(a))
also evaluates the documentary evidence in support
- The judge does not have to personally
thereof. Hence, the fiscal‘s finding of probable
examine the complainant and his witnesses.
cause is not conclusive upon the judge as to his
The prosecutor can perform the same
determination of whether or not there is indeed
functions. [Soliven v. Makasiar (1988)]
probable cause. [AAA v. Carbonell (2007)]
- Bare certification by the fiscal is not
enough. It should be supported by a report
The judge is never allowed to follow blindly the
and necessary documents. [Lim v. Felix
prosecutor‘s bare certification as to the existence of
(1991)]
probable cause. [Borlongan v. Peña (2010)]
- Examples of Evidence To Be Examined:
Complaint, affidavits and counter-
RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF
affidavits.
PERSON ARRESTED, DETAINED OR UNDER
 Upon application of a peace officer and after
CUSTODIAL INVESTIGATION AS WELL AS THE
personal examination by the judge of the
DUTIES OF THE ARRESTING, DETAINING AND
applicant and the witnesses he may produce.
INVESTIGATING OFFICERS, AND PROVIDING
- Rationale: There is yet no evidence on
PENALTIES FOR VIOLATIONS THEREOF
record upon which judge may determine
the existence of PC.
Policy
- Conditions:
 To value the dignity of every human being.
o The investigating judge must have
 To guarantee full respect for human rights.
examined in writing and under oath the
 REMEDIAL LAW REVIEWER
Custodial Investigation shall include the practice of
issuing an ―invitation‖ to a person who is
30 investigated in connection with an offense he is
suspected to have committed, without prejudice to
the liability of the ―inviting‖ officer for any violation
of law.
Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers
 The right to be assisted by counsel at all times.
- The counsel must be one who is
independent and competent. He shall be
allowed to confer at all times with the
person arrested, detained or under
custodial investigation. If such person
cannot afford the services of his own
counsel, he must be provided by the
investigating officer with a competent and
independent counsel.
- In the absence of a lawyer, no custodial
investigation shall be conducted and the
suspected person can only be detained by
the investigating officer in accordance with
Art. 125, RPC.
 The right to remain silent.
 The right to be informed of the above rights.
 The right to be visited by the members of his
immediate family, by his counsel, or by any non-
governmental organization, national or
international.
The custodial investigation report shall be reduced
to writing by the investigating officer, provided that
before such report is signed, or thumbmarked if the
person arrested or detained does not know how to
read and write, it shall be read and adequately
explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the
language or dialect known to such arrested or
detained person, otherwise, such investigation
report shall be null and void and of no effect
whatsoever.
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation
shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence,
upon a valid waiver, and in the presence of any of
the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel
as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any
proceeding.
Any waiver of the provisions of RPC 135 shall be in
writing and signed by the person arrested, detained,
or under custodial investigation in the presence of
his counsel, otherwise the waiver shall be null and
void and no effect.
Penalty
Any arresting public officer or employee, or any
investigating officer, who fails to inform any person
arrested, detained or under custodial investigation
of his right to remain silent and to have competent
and independent counsel preferably of his own
choice, shall suffer a fine of six thousand pesos
(P6,000) or a penalty of imprisonment of not less
than eight (8) years but not more than ten (10)
years, or both. The penalty of perpetual absolute
disqualification shall also be imposed upon the
investigating officer who has been previously
convicted of a similar offense.
 The same penalties shall be imposed upon a
public officer or employee, or anyone acting
upon orders of such investigating officer or in
his place, who fails to provide a competent and
independent counsel to a person arrested,
detained or under custodial investigation for the
commission of an offense if the latter cannot
afford the services of his own counsel.
Any person who obstructs, prevents or prohibits any
lawyer, any member of the immediate family of a
person arrested, detained or under custodial
investigation, or any medical doctor or priest or
religious minister chosen by him or by any member
of his immediate family or by his counsel, from
visiting and conferring privately with him, or from
examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in
urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor
more than six (6) years, and a fine of four thousand
pesos (P4,000).
NOTE: Any security officer with custodial
responsibility over any detainee or prisoner may
undertake such reasonable measures as may be
necessary to secure his safety and prevent his
escape.
VI. BAIL
1. Nature
2. When a matter of right; exceptions
3. When a matter of discretion
4. Hearing of application for bail in capital
offenses
5. Guidelines in fixing amount of bail
6. Bail when not required
7. Increase or Reduction of Bail
8. Forfeiture and Cancellation of bail
9. Application not a bar to objections in
illegal arrest, lack of or irregular
preliminary investigation
10. Hold Departure Order & Bureau of
Immigration Watchlist
1. Nature
Definition
Bail is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
court as required under conditions hereinafter
specified. [Rule 114, Sec. 1]
Note: The bondsman or surety guarantees the
appearance of the person seeking bail.

Purpose
1. To relieve an accused from imprisonment until
his conviction and yet secure his appearance at
the trial. [ People vs. The Hon. Donato (2011)]
2. To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Art. III,
Sec. 14, Const] and
3. To enable him to prepare his defense without
being subject to punishment prior to conviction
[Cortes v. Judge Catral (1997)].
Note:
The purpose of bail only accrues when a person is
arrested or deprived of his liberty. It is incongruous
to grant bail to one who is free. Hence, only those
who have either been arrested, detained or
otherwise deprived of their liberty can invoke his
right under the Constitution. From the moment he is
placed under arrest, detention or restraint by
officers of the law, he can claim this constitutional
right [Feliciano vs Pasicolan (1965)].
It shall not constitute as a waiver of his right to
challenge the legality of his arrest or the absence of
PI [Rule 114, Sec. 26].
Upon assumption of the obligation of bail, the
sureties become in law the jailers of their principal.
Prosecution witnesses may also be required to post
bail to ensure their appearance at the trial of the
case where:
1. There is substitution of information [Rule 110,
Sec. 4].
2. To compel the appearance of a material witness
who may not appear at the trial [Rule 119, Sec.
14].
2. When a matter of right; exceptions
a. Bail as a Matter of Right
When bail is a matter of right [Rule114, Sec.
4]
a. Before or after conviction by the MTC.
b. Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua.
Note:
The person seeking his provisional release under the
auspices of bail need not wait for a formal complaint
or information to be filed as it is available to all
persons where the offense is bailable. [Paderanga vs
Court of Appeals (1995)].
However, the person should seeking relief should be
under custody of the law. The Court should not even
allow a motion for bail to be set for hearing, unless
it has acquired jurisdiction over the person of the
accused and the case by its filing in court [Guillermo
vs Judge Reyes (1995)].
How is custody acquired?
1. By arrest whether with or without a warrant.
REMEDIAL LAW REVIEWER
2. Voluntary submission to the Court‘s jurisdiction
[Santiago vs Vasquez (1993)].
b. When bail not available 31
1. When evidence of guilt is strong in capital
offenses or those punishable by reclusion
perpetua or life imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the
evidence of guilt is strong.
Capital Offense: An offense which under the
law existing at the time of commission and of
the application for admission to bail is
punishable by death [Rule 114, Sec. 6].
 The capital nature of the offense is
determined by the penalty prescribed by
law and not the one actually imposed.
 Note R.A.. 9346 entitled ”An Act
Prohibiting the Imposition of Death Penalty
in the Philippines” enacted on June 24,
2006 repealing R.A. No. 8177 and R. A. No.
7659 and abolishing the death penalty.
 RA 9346 now defines capital offenses as:
Section 7. Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment or life imprisonment
2. Bail in extradition proceedings
The right to bail is available only in criminal
proceedings. It does not apply to extradition
proceedings because extradition courts do not
render judgments of conviction or acquittal.
However, bail may be applied for and granted as
an exception, only upon a clear and convincing
evidence that once granted, the applicant will
not be flight risk or will not pose danger to the
community, and that there exists special
humanitarian and compelling circumstances
[Gov of USA vs Purganan & Jimenez (2002)].
Note: If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be cancelled
upon showing by the prosecution, with notice to
the accused, of any of the following:
1. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused.
2. The accused previously escaped from legal
confinement, evaded sentence or violated
bail conditions without valid justification.
3. Commission of offense while under
probation, parole or conditional pardon by
the accused.
4. Probability of flight.
5. Undue risk that the accused may commit
another crime during pendency of appeal.
c. Right to bail is not available to
military personnel accused
under general courts martial
[Comendador v. de Villa (1991)].
 REMEDIAL LAW REVIEWER
d. After a judgment of conviction
has become final
32 If he applied for probation before finality,
he may be allowed temporary liberty under
his bail [Rule 114, Sec. 24].
e. After the accused has
commenced to serve his
sentence [Rule 114, Sec. 24]
3. When a matter of discretion [Rule
114, Sec. 5]
1. Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment.
2. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.
 It may be filed in and acted upon by the
RTC despite the filing of notice of appeal,
provided that it has not transmitted the
original record to the appellate court.
 If the RTC decision changed nature of the
offense from non-bailable to bailable, the
application for bail can be resolved only by
the appellate court.
Note:
In hearing the petition for bail, the prosecution has
the burden of showing that the evidence of guilt is
strong [Rule 114, Sec. 8]. The prosecution must be
given ample opportunity to show that the evidence
of guilt is indeed strong. While the proceeding is
conduced as a regular trial, it must be limited to the
determination of the bailability of the accused. It
should be brief and speedy, lest its purpose be
rendered nugatory [People vs Singh (2001)].
 If bail is granted, provisional liberty continues
under the same bail subject to the consent of
the bondsman [Rule 114, Sec. 5].
 If bail is denied by the RTC, the accused-
appellant may challenge it by filing an
application (and not a special civil action or a
special proceeding) in the appellate court after
it has acquired jurisdiction over the case. It
shall be treated as an incident in the appeal.
In deportation proceedings, bail is discretionary
upon the Commissioner of Immigration and
Deportation. [Harvey v. Defensor-Santiago (1990)].
4. Hearing of application for bail in
capital offenses
NOTE: RA 9346, Section 7. Capital offense or an
offense punishable by reclusion perpetua or life
imprisonment or life imprisonment
Conviction
This refers to conviction by the trial court, which has
not become final, as the accused still has the right
to appeal. After conviction by the trial court, the
accused convicted of a capital offense is no longer
entitled to bail, and can only be released when the
conviction is reversed by the appellate court.
[Section 13, Article III, Const.]
Prosecution has burden of proof
At the hearing of an application for bail filed by a
person in custody for the commission of an offense
punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.
EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
Regarding Minors Charged with a Capital
Offense
If the person charged with a capital offense is
admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to
flee.
This reason does not hold where the accused has
been established without objection to be minor who
by law cannot be sentenced to death.
Duty of judge to conduct hearing
Where the prosecution agrees with the accused‘s
application for bail or foregoes the introduction of
evidence, the court must nonetheless set the
application for hearing. It is mandatory for the judge
to conduct a hearing and ask searching and
clarificatory questions for the purpose of
determining the existence of strong evidence against
the accused; and the order, after such hearing,
should make a finding that the evidence against the
accused is strong [Gacal v. Judge Infante (2011)].
5. Guidelines in fixing amount of bail
[Rule 114, Sec. 9]
The judge who shall issue the warrant or grant the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
1. Financial ability of the accused
2. Nature and circumstances of the offense
3. Penalty for the offense charged
4. Character and reputation of the accused
5. Age and health of the accused
6. Probability of the accused appearing at the trial
7. Forfeiture of other bail
8. Fact that accused was a fugitive from justice
when arrested
9. Forfeiture of other bail
10. Pendency of other cases where the accused is on
bail.
Note: DOJ Department Circular No. 89 (2000 Bail
Bond Guide) provides standards and criteria for
prosecutor‘s recommendation of amount of bail to
be granted, if possible, and the rules for the
computation of bail.
 REMEDIAL LAW REVIEWER

upon a) surrender of the accused OR b) proof of

6. Bail when not required [Sec. 16,
Rule 114]
 When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment of the offense charged to which
he may be sentenced, he shall be released
immediately, without prejudice to the
continuation of the trial thereof or the
proceedings on appeal.
 If the maximum penalty is destierro, he shall be
released after 30 days of preventive
imprisonment.
Note: No bail shall be required in prosecution of
offenses covered by the Rule on Summary Procedure,
EXCEPT:
1. When a warrant of arrest was issued for failure
of the accused to appear when so required
2. When the accused is
o A Recidivist
o A Fugitive from justice
o Charged with physical injuries
o Has no known residence [RSP, Sec 10, 12]
7. Increase or Reduction of Bail
After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.
INCREASED bail: Accused may be committed to
custody if he does not give bail in the increased
amount within a reasonable period of time. [Rule
114, Sec. 20]
REDUCED bail: Person in custody for a period equal
to or more than the minimum of the principal
penalty prescribed for the offense charged may be
released on a reduced bond. [Rule 114, Sec. 16]
his death.
2. Upon acquittal of the accused
3. Upon dismissal of the case 33
4. Upon execution of judgment of conviction.
9. Application not a bar to objections
in illegal arrest, lack of or irregular
preliminary investigation
Bail is no longer a waiver of these objections [Rule
114, Sec. 26; Leviste v. Alameda (2011)].
Provided that the proper objections are timely
raised (i.e., before accused enters a plea), an
application or an admission to bail shall NOT bar the
accused from challenging or questioning the:
1. Validity of his arrest.
2. Legality of the arrest warrant.
3. Regularity of preliminary investigation
4. Absence of preliminary investigation
The court shall resolve the objections as early as
practicable but not later than the start of the trial
of the case.
10. Hold Departure Order & Bureau of
Immigration Watchlist
 Bondsmen can prevent accused from leaving
country by arresting him or asking for him to be
re-arrested by a police officer upon written
authority [Rule 114, Sec. 23].
 The accused may be prohibited from leaving the
country during the pendency of his case [PP v.
Uy Tuising (1935); Manotoc v. CA (1986)]. If the
accused released on bail attempts to depart
from the Philippines without the permission of
the court where his case is pending, he may be
re-arrested without warrant [Rule 114, Sec. 23].

Hold-Departure/ Watchlist/ Allow Departure

8. Forfeiture and Cancellation of bail Orders
 A hold-departure order may be issued only by
Forfeiture of bail [Rule 114, Sec. 21] the RTCs in criminal cases within their exclusive
If the accused failed to appear in person as required, jurisdiction [SC Circular No. 39-97 (June 19,
bondsmen are given 30 days within which to: 1997)].
1. Produce the body of the principal or give reason
for the non-production. Bondsmen may:  SC Circular 39-97 deals with criminal cases
 Arrest the accused; pending in the RTC. This created a void, as to
 Cause him to be arrested by a police officer those cases pending in the MTC as well as those
or any other person of suitable age or under preliminary investigation. [Whereas
discretion upon written authority endorsed clause of DOJ Circular No. 41]
on a certified copy of the undertaking.
2. Explain why the accused failed to appear. HOLD WATCHLIST
 If the bondsmen fail to do these, judgment DEPARTURE ORDER
is rendered against them, jointly and ORDER
severally, for the amount of the bail. When it Against the Against the
 Bondsmen‘s liability cannot be mitigated or may issue accused, accused,
reduced, unless the accused has been irrespective of irrespective of
surrendered or is acquitted. nationality, in nationality, in
criminal cases criminal cases
Cancellation of bail [Rule 114, Sec. 22] falling within the pending before
1. Upon application of the bondsmen with due jurisdiction of the RTC
notice to the prosecutor, bail may be cancelled first-level courts
(MeTC, MTC, Against the
 REMEDIAL LAW REVIEWER

HOLD WATCHLIST a) Against the accused in criminal cases falling

DEPARTURE ORDER within the jurisdiction of courts below the
34 ORDER RTCs,
MCTC) respondent,
irrespective of b) Against the alien whose presence is required
nationality, in either as a defendant, respondent, or
criminal cases witness in a civil or labor case pending
pending litigation, or any case before an
preliminary administrative agency of the government.
investigation,
PFR, or MR c) The Secretary of Justice may likewise issue
before the DOJ an HDO against any person, either motu
or any of its proprio, or upon the request by the Head of
prosecution a Department of the Government, the Chief
offices Justice of the Supreme Court for the
Judiciary; the Senate President or the House
Against any Speaker for the Legislature, when the
person pursuant adverse party is the Government or any of
to the ―Anti- its agencies or instrumentalities, or in the
Trafficking in interest of national security, public safety or
Persons Act of public health.
2003‖ (RA 9208)
or in the interest  A Watchlist Order may also issue under any of
of national the above grounds as well as in connection with
security, public RA 9208 or the Anti-Trafficking in Persons Act
safety or public
health  Any HDO shall be valid for 5 years, unless sooner
Validity 5 years reckoned 60 days reckoned terminated while any Watchlist Order shall be
from the date of from the date of valid for 60 days, unless sooner terminated or
its issuance, its issuance, extended for a maximum of 60 days
unless sooner unless sooner
terminated terminated or  A HDO/WLO may be lifted or cancelled when:
extended for a 1. The validity period of the order has expired
non-extendible 2. When the accused has been acquitted or
period of not otherwise allowed to leave the country
more than 60 3. When the case is terminated or the person
days is discharged as a witness or otherwise
Grounds for When the When the allowed to leave the country
lifting or validity period validity period
cancellation has already has already  Allow Departure Orders (ADOs) may issue for
expired expired exceptional reasons to allow the person to leave
upon submission of the following:
When the When the 1. An affidavit of purpose, including an
accused has been accused has been undertaking to report to the DOJ
allowed to leave allowed by the immediately upon return
the country court to leave 2. Authority to travel or travel clearance from
during the the country the court or appropriate government office
pendency of the during the or from the investigating prosecutor
case, or has been pendency of the
acquitted of the case, or has been VII. RIGHTS OF THE ACCUSED
charge, or the acquitted of the
case in which the charge 1. Rights of accused at the trial
warrant/order of 2. Rights of persons under Custodial
arrest was issued When the PI is Investigation
has been terminated, or
dismissed or the when the PFR or
warrant/order of MR has been
1. Rights of accused at the trial [Rule
arrest has been denied and/or 115]
recalled dismissed
1) To be presumed innocent;
 Thus the DOJ promulgated DOJ Circular No. 41  Until the contrary is proved beyond
governing the issuance of HDO, Watchlist reasonable doubt
Orders, and Allow Departure Orders. - Accusation is not synonymous with
guilt. [People v. Dramayo (1971)]
 The Secretary may issue HDOs in the following  Presumption of regularity in the
cases: performance of official duty should by itself

prevail over the presumption of innocence
[People v. Ong (2004)]
2) To be informed of the nature and cause of
accusation;
 Offense must be clearly charged in the
information. [People v. Ortega (1997)]
 Charge must be set forth with sufficient
particularity to enable the accused to
intelligently prepare his defense. [Balitaan
v. CFI of Batangas (1982)]
 The purpose is served by arraignment.
[Borja v. Mendoza (1977)]
 The title of the complaint, or the
designation of the offense charged or the
particular law violated is not controlling. No
information for a crime will be sufficient if
it does not accurately and clearly allege the
elements of the crime charged. [People v.
Dimaano (2005)]
 It is a basic constitutional right of the
accused to be informed of the nature and
cause of accusation against them. It would
be a denial of accused-appellant‘s basic
right to due process if he is charged with
simple rape and consequently convicted
with certain qualifying circumstances which
were not alleged in the information [People
v. Lagarde (2009)]
3) To be present and defend in person OR by
counsel;
4) Right to be present at every stage of the
proceedings:
This right may be waived when:
(1) The accused is absent without just cause at
the trial of which he had notice; or
(2) The accused under custody escapes, until
custody over him is regained.
However, presence is mandatory:
a. For purposes of identification;
b. At arraignment; [Rule 116, Sec. 1(b)]
c. At the promulgation of judgment;
Exception: If the conviction is for a light
offense. [Rule 120, Sec. 6]
Trial in absentia (1998 Bar):
Requisites: [Parada v. Veneracion (1997)]
a. Prior arraignment;
b. Proper notice of the trial;
c. Failure to appear is unjustifiable.
 Effects: Waiver of right to be present, right
to present evidence and right to cross-
examine witnesses. [Gimenez v. Nazareno
(1988)]
5) Right to counsel:
 It means reasonably effective legal
assistance. [Gideon v. Wainright (1963)]
 It is absolute and may be invoked at all
times, even on appeal. [Telan v. CA (1991)]
REMEDIAL LAW REVIEWER
 Duty to appoint counsel de oficio is
mandatory only at the time of arraignment.
[Sayson v. People (1988)]
 Violation of this right entitles the accused 35
to new trial. [People v. Serzo (1997)]
 It may be waived, so long as not contrary to
law, public order, public policy, morals or
good customs.
 The waiver must be unequivocally,
knowingly and intelligently made [People v.
Nicandro (1968)]
 The right to counsel may be waived but to
insure that the waiver is voluntary and
intelligent, the waiver must be in writing
and in the presence of the counsel of the
accused [People v. Del Castillo (2004)]
6) Right to defend in person:
Only when it sufficiently appears that he can
protect his rights without the assistance of
counsel (Sec. 1[b], Rule 115, Rules of Court)
7) To testify as witness in his behalf;
 But subject to cross-examination on any
matter covered by his direct examination.
(Sec. 1[d]. Rule 115).
 Silence will not, in any manner, prejudice
him.
8) Right against self-incrimination; (2005
Bar)
 The privilege is expressed in the following
provisions:
- ―No person shall be compelled to be a
witness against himself‖ (Sec. 17, Art.
III, Philippine Constitution)
- ―In all criminal prosecutions, the
accused shall be entitled to the
following rights xxx (e) To be exempt
from being compelled to be a witness
against himself‖ (Sec. 1[e], Rule 115)
 Compulsion includes not only violence but
also moral coercion. [Chavez v. CA (1968)]
 Covers only testimonial compulsion and
production of incriminating documents.
 It does not include examination of his body
as evidence when it may be material. [US v.
Tan Teng (1912)]
 An accused ―occupies a different tier of
protection from an ordinary witness.‖ He is
entitled 1) to be exempt from being a
witness against himself, and 2) to testify as
witness in his own behalf; but if he offers
himself as a witness he may be cross-
examined as any other witness; however,
his neglect or refusal to be a witness shall
not in any manner prejudice or be used
against him. [People v. Ayson (1989)]
 The questions on cross examination should
be on matters related to his direct
examination. [People v. Judge Ayson (1989)]
9) Right to confrontation;
 Applies to any witness against the accused
at the trial
 REMEDIAL LAW REVIEWER
 Includes testimony of a deceased or
absentee witness
36  This right is waived by non-appearance.
[Carredo v. People (1990)]
 Identification by a witness of the accused is
inadmissible if the accused had no
opportunity to confront witness. [People v.
Lavarias (1968)]
10) Right to compulsory process;
 This right may be invoked by the accused to
secure the attendance of witnesses and the
production of witnesses in his behalf. This is
a constitutional right embodied in Sec.
14(2), Art. III of the Constitution.
 The trial court should not delegate to the
accused the responsibility of getting his
witnesses.
 If a subpoena is issued and the witness
failed to appear, the court should order the
arrest of the witness if necessary. [People v.
Montejo (1967)]
11) Right to speedy, impartial, and public
trial;
 In all criminal prosecutions, the accused
shall enjoy the right to have a speedy,
impartial and public trial. [1987
Constitution, Article III Sec. 14 (2)]
 This right to a speedy trial has consistently
been defined by the Court substantially ―as
one free from vexatious, capricious and
oppressive delays, its purpose being to
assure that an innocent person may be free
from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt
determined within the shortest possible
time compatible with the presentation and
consideration of whatsoever legitimate
defense he may interpose‖ [Riano, 2010]
 Remedy against denial of right:
a) MTD;
b) Dismissal, subject to rules on double
jeopardy. [SC Circular 38-98]
c) Mandamus. [Vide Abadia v. CA (1994)]
12) Right to appeal;
 In all criminal prosecutions, the accused
shall have the right to appeal in the manner
prescribed by law [Hilario v. People (2008)]
 An appeal in criminal case opens the entire
case for review and the appellate court may
correct even unassigned errors [People v.
Tambis (2008)]
 The right to appeal is a statutory right and
the requirements must be complied with;
otherwise, the right is lost. [People v.
Sabellano (1991)]
 If the accused escapes from confinement,
appeal is not allowed unless he voluntarily
surrenders within period for appeal. [People
v. Omar (1991)]
2. Rights of persons under Custodial
Investigation [Sec. 2, RA 7438]
1) To be assisted by counsel at all times.
 Waiver of the right to counsel must be made
with the assistance of counsel. [Art. 3, Sec.
12(1), Consti]
 Specifically in the following instances:
- Signing of the written custodial report;
Signing of the written extra-judicial
confession (2008 Bar)
In the absence of counsel and upon
valid waiver, it may be made in the
presence of any his parents, elder
brothers and sisters, spouse, the
municipal mayor, the municipal judge,
district school supervisor, or
priest/minister of the gospel as chosen
by him.
- Signing of the waiver to the provisions
of Art. 125, RPC.
 The modifier competent and independent in
the 1987 Constitution is not an empty
rhetoric. It stresses the need to accord the
accused, under the uniquely stressful
conditions of a custodial investigation, an
informed judgment on the choices
explained to him by a diligent and capable
lawyer [Lumanog v. People (2010)]
2) To be informed, in a language known to
and understood by him, of his rights to
remain silent and to have competent and
independent counsel, preferably of his
own choice, who shall at all times be
allowed to confer privately with the
person arrested, detained or under
custodial investigation.
 If he cannot afford to have his own counsel,
he must be provided with a competent and
independent counsel by the investigating
officer.
 Assisting counsel may be any lawyer, except
those:
- Directly affected by the case;
- Charged with conducting preliminary
investigation;
- Charged with the prosecution of
crimes; [Sec. 3, RA 7438]
3) To be allowed visits by or conferences
with:
 Any member of his immediate family
("Immediate family" includes his or her
spouse, fiancé or fiancée, parent or child,
brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece,
and guardian or ward), or
 Any medical doctor or
 Priest or religious minister
- chosen by him or by any member of his
immediate family or by his counsel, or
by
 Any national NGO duly accredited by the
Commission on Human Rights or by any

international NGO duly accredited by the
Office of the President.
Consequences of violation of custodial rights
 Failure to inform
- Any arresting public officer or employee, or
any investigating officer, shall suffer a fine
of P6,000.00 or a penalty of imprisonment
of not less than 8 years but not more than
10 years, or both.
- The investigating officer who has been
previously convicted of a similar offense
shall suffer the penalty of perpetual
absolute disqualification.
 Obstruction, prevention or prohibition of right
to visits or conferences
- Any person guilty thereof shall suffer the
penalty of imprisonment of not less than 4
years nor more than 6 years and a fine of
P4,000.00
 Inadmissibility of evidence does not preclude
conviction on other evidence
VIII. ARRAIGNMENT AND PLEA
1. Arraignment and Plea, how made
2. When should plea of NOT GUILTY be
entered
3. When may accused enter a plea of guilty
to a lesser offense
4. Accused plead guilty to capital offense,
what the court should do
5. Searching Inquiry
6. Improvident plea
7. Grounds for suspension of arraignment
1. Arraignment and Plea, how made
Definition
ARRAIGNMENT is the stage where the accused is
formally informed of the charge against him by
reading before him the information/complaint and
asking him whether he pleads guilty or not guilty.
[Rule 116, Sec. 1(a)]
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)]
REMEDIAL LAW REVIEWER
How arraignment made
1) In general
37
The Court shall issue an order directing the public
prosecutor to submit the record of the PI to the
branch COC for the latter to attach the same to the
record of the case.
The court shall inform the accused of his right to
counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him.
Arraignment shall be made:
 Within 30 days from the date the court
acquired jurisdiction over the person of the
accused, unless a shorter period is provided
 In the presence of the accused who must
personally enter his plea, and of the private
offended party for purposes of:
- Plea bargaining (except for violations
of the Dangerous Drugs Act)
- Determination of civil liability
- Other matters requiring his presence
 Before the court where the complaint or
information was filed or assigned for trial
 By the judge or clerk in open court by
furnishing the accused with a copy of the
complaint/information, reading the same in a
language or dialect known to him, and asking
whether he pleads guilty or not guilty
If the accused pleads NOT guilty to the crime charged,
s/he shall state whether s/he interposes a negative or
affirmative defense. [RA 8493]
A negative defense will require the prosecution to
prove the guilt of the accused beyond reasonable
doubt.
An affirmative defense may modify the order of trial
and require the accused to prove such defense by
clear and convincing evidence. [RA 8493]
Note: The time of the pendency of a motion to quash
or for a bill of particulars or other causes justifying
suspension of the arraignment shall be excluded in
computing the period. [Rule 116, Sec. 1(g)]
 In case of failure of the offended party to
appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone. [Sec. 1(f), Rule 116; SC AM
No. 03-1-09-SC Part B(2)]
 REMEDIAL LAW REVIEWER
 NO ARRAIGNMENT IN ABSENTIA [Nolasco v.
Enrile (1985)]- The presence of the accused is
38 not only a personal right but also a public duty,
irrespective of the gravity of the offense and
the rank of the court.
- There can be no trial in absentia without
first arraigning the accused; otherwise, the
judgment is null and void since (1) the
issues are not joined and (2) the right to be
informed of the nature and cause of
accusation is violated.
2) If the accused is under preventive detention
 The case shall be raffled and its records
transmitted to the judge to whom the case was
raffled within 3 days from the filing of the
information or complaint.
 The accused shall be arraigned within 10 days
from the date of the raffle.
2. When should plea of NOT GUILTY
be entered
Plea of NOT GUILTY to be entered for the
accused when he either: [Rule 116, Sec. 1(c)]
 Refuses to plead
 Makes a qualified plea of guilty
 Plea of guilty, but accused presents exculpatory
evidence
3. When accused may enter a plea of
guilty to a lesser offense
Plea of guilty to a LESSER OFFENSE [Rule
116, Sec. 2]
 At arraignment, the accused, with the consent
of the offended party and prosecutor, may be
allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in
the offense charged.
 After arraignment but before trial, the accused
may still be allowed to plead guilty to said
lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or
information is necessary
4. Accused plead guilty to capital
offense, what the court should do
[Sec. 3, Rule 116]
 Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea
 Require the prosecution to prove the accused‘s
guilt and the precise degree of his culpability
 Allow the accused to present evidence in his
behalf
5. Searching Inquiry
Plea of guilty to a CAPITAL OFFENSE [Rule
116, Sec. 3]
 The procedure in Sec. 3, Rule 116 is mandatory.
Failure to observe the duties of the trial judge
amounts to grave abuse of discretion. [People v.
Devico (1997)]
- The plea must be clear, definite and
unconditional. There must be well-informed
understanding and full realization of the
consequences.
- It must be based on a free and informed
judgment. Mere warning of facing the
supreme penalty of death is insufficient.
- The judge must ask whether the accused
was assisted by counsel during CI and PI; ask
questions on age, educational attainment
and socio-economic status; and ask the
defense counsel WON he conferred with the
accused. [People v. Nadera (2000)]
 Rationale: To proceed with more care where the
possible punishment is in its severest form; to
avoid improvident pleas of guilt. [People v.
Samontanez (2000)]
6. Improvident plea
Improvident plea of guilty to a capital offense
IMPROVIDENT PLEA - Plea without proper
information as to all the circumstances affecting it;
based upon a mistaken assumption or misleading
information/advice. [Black’s Law Dictionary]
General rule: An improvident plea should not be
accepted. If accepted, it should not be held to be
sufficient to sustain a conviction. [People v. De
Ocampo Gonzaga (1984)]. The case should be
remanded to the lower court for further
proceedings.
Exception: If the accused appears guilty beyond
reasonable doubt from the evidence adduced by the
prosecution and defense.
Where the TC receives evidence to determine
whether the accused has erred in admitting his guilt,
the manner in which the plea is made – whether
improvidently or not - loses legal significance since
the conviction is based on the evidence proving the
commission by the accused of the offense charged.
[People v. Alborida (2001)]
7. Grounds for suspension of
arraignment [Rule 116, Sec. 11]
1. Unsound mental condition of the
accused at the time of the
arraignment.
 Degree of unsoundness of mind required: The
accused can neither comprehend the full import
of the charge nor can he give an intelligent
plea.
 The court shall order his mental examination
and, if necessary, his confinement.
 The need for suspension may be determined
from physical and outward manifestations at the
time of arraignment indicative of a mental
disorder which the court had observed and

defense counsel had called attention to. [People
v. Alcalde (2002)]
 An insane person within the meaning of Art. 12,
RPC must be deprived completely of reason or
discernment and freedom of the will at the time
of committing the crime. Mere abnormality of
mental faculties does not exclude imputability.
[People v. Catanyag (1933)]
 3 major criteria to determine insanity: [People
v. Dungo (1991)]
- DELUSION TEST – Insanity is manifested by
a false belief for which there is no
reasonable basis and which would be
incredible under the given circumstances.
- IRRESISTIBLE IMPULSE TEST – The accused
has lost the power to choose between right
and wrong, to avoid the act in question, his
free agency being at that time destroyed.
- RIGHT AND WRONG TEST – A perverted
condition of mental and mortal faculties as
to render him incapable of distinguishing
between right and wrong
 Tests to determine insanity: [People v. Pascual
(1993)]
- TEST OF COGNITION – Complete
deprivation of intelligence in committing
the criminal act. It is the test adopted in
this jurisdiction.
- TEST OF VOLITION – A total deprivation of
free will.
2. Prejudicial question exists
 Rationale: A prejudicial question would be
determinative of guilt or innocence.
 It may be raised during PI. If the information is
filed in court, it may be raised as ground to
suspend the arraignment.
3. Pending petition for review of the
resolution of the prosecutor with the
DOJ or Office of the President.
 The accused should file a motion to suspend and
to secure a ruling on his petition for review
within 60 days from the filing of the petition.
 Rationale: Need to observe judicial courtesy
and to avoid legal complications in case the
resolution would be different from the offense
for which the accused was arraigned, especially
if it would upgrade the offense.
IX. MOTION TO QUASH
1. Grounds
2. Distinguish from demurrer to evidence
3. Effects of sustaining the motion to quash
4. Exception to the rule that sustaining the
motion is not a bar to another prosecution
5. Double Jeopardy
6. Provisional Dismissal
1. Grounds [Rule 117, Sec. 3] (1998
Bar)
REMEDIAL LAW REVIEWER
The ff. grounds for MTQ are EXCLUSIVE:
1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over
the offense charged. 39
3. Court trying the case has no jurisdiction over
the person of the accused.
4. Officer who filed the information had no
authority to do so.
5. The information does not conform substantially
to the prescribed form.
6. More than one offense is charged
Exception: When a single punishment for
various offenses is prescribed by law
7. Criminal action or liability has been
extinguished.
8. Averments which, if true, would constitute a
legal excuse or justification.
9. Accused has been previously convicted or
acquitted of the offense charged, or the case
against him was dismissed or otherwise
terminated without his express consent (Double
Jeopardy Rule)
Note:
1. Non-inclusion of an accused is not a valid ground
for MTQ.
2. An affidavit of desistance or pardon is not a
ground for the dismissal of an action, once it has
been instituted in court. [People v. Salazar (2010)]
3. The absence of a preliminary investigation or
inability to participate in the preliminary
investigation on the ground of the accused not
having been served with a subpoena is not a proper
ground for a motion to quash but a petition for
reinvestigation [Rodis v. Sandiganbayan (1988)]
4. The absence of probable cause for the issuance of
a warrant of arrest is not a ground for the quashal of
the information but is a ground for the dismissal of
the case [People v. Sandiganbayan (439 SCRA 390)]
5. Facts that constitute the defense of the
petitioners against the charge under the information
must be proved by them during trial. Such facts or
circumstances do not constitute proper grounds for a
motion to quash the information on the ground that
the material averments do not constitute the offense
[Soriano v. People (2009)]
Although the rule is that grounds not asserted in the
motion to quash are waived, the following
objections are not subject to waiver:
1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over the
offense charged
3. Criminal action or liability has been extinguished
4. Double jeopardy
1) Facts Charged do not Constitute an Offense
 In all criminal cases, the accused should be
informed of the nature and the cause of the
accusation against him.
 REMEDIAL LAW REVIEWER
 An information which does not charge an
offense or does not allege essential elements of
40 a crime is void.
TEST: WON the facts alleged, if hypothetically
admitted, would meet the essential elements of the
offense, as defined by law [People vs Abad (1997)].
 That a) the missing element may be proved
during the trial or that b) the prosecution has
presented evidence to establish the same
cannot have the effect of validating the void
information or of proving an offense which does
not exist [People vs Asuncion (1988)].
 Instead of dismissing, the court should give the
prosecution an opportunity to amend the
information [Rule 117, Sec. 4].
a. Should the prosecutor fail to make the
amendment or should the information suffer
from the same defect despite amendment,
the MTQ shall be granted [Rule 117, Sec. 4].
b. When the prosecutor dismisses the case,
the prosecutor should file a valid
information, not a petition for review for
certiorari.
 The defect is not cured by a failure to move to
quash or by a plea of guilty. The failure does not
imply a waiver of the defects that go to the
jurisdiction of the offense or to lack in some of
the essential elements of the offense charged
[Suy Sui v. People (1953)].
General Rule: In a MTQ, facts other than those
alleged in the complaint/information may NOT
be considered by the court.
Exceptions:
a. Facts already admitted by the prosecution
[People vs Navarro].
b. Undisputed facts apparent from the records
of the PI and not denied by the prosecutor
[Salonga v. Pano (1985)].
c. Undisputed or undeniable facts that destroy
the prima facie truth accorded to
allegations of the information [People v. de
la Rosa (1988)].
d. ROC expressly permits the investigation of
facts alleged [People v. Alagao (1966)] [Rule
117, Sec. 2(f)(h), 4 & 5].
Rationale: It would be pure technicality for the
court to close its eyes to said facts, refuse to
quash the information, and require trial.
2) Court has No Jurisdiction over the Offense
Charged
Jurisdiction over the subject matter: The power to
adjudge concerning the general question involved.
Note:
 In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of
jurisdiction [Rule 110, Sec. 15; Lopez v. City
Judge (1966)].
 The court cannot take jurisdiction over a person
charged with an offense committed outside its
territory. If the evidence adduced show that
offense was committed somewhere else, the
court should dismiss the action for want of
jurisdiction [Uy vs CA (1997)].
 In private crimes, the complaint of the offended
party is necessary to confer authority to the
court.
 If the case was tried and decided upon the
theory that it had jurisdiction, the parties are
not barred from assailing such jurisdiction on
appeal.
 The court had jurisdiction over the case since,
for as long as he continues to evade the service
of his sentence, he is deemed to continue
committing the crime, and may be arrested
without warrant at any place where he may be
found [Parulan vs Director of Prisons (1968)].
3) Court has no Jurisdiction over the Person of
the Accused
How jurisdiction is acquired
a. By arrest of the accused or his voluntary
appearance in court.
b. By allowing himself to be arraigned without
questioning the legality of his arrest
 It is waivable expressly or by implication, unlike
jurisdiction over the territory and the subject
matter.
 When the accused files a MTQ based on this
ground, he must do so only on this ground. If he
raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou (1993)].
 If the accused believes his arrest to be illegal,
he should move to quash the information on
such ground. However, illegality of the arrest is
waivable as it affects only the jurisdiction of the
court over the person of the accused [People vs
Meris (2000)].
 When the objection is raised, the court should
resolve it before conducting trial to avoid
unnecessary expenditure of time and money
[Mead vs Argel (1982)].
4) Officer who Filed Information had no
Authority to Do So
Authority to file and prosecute criminal cases is
vested in:
a. Provincial fiscals and their assistants.
b. City fiscals and their assistants.
c. Chief State Prosecutor and his deputies.
Note:
 A lawyer appointed by the DOJ Secretary may
also file an information.
 The prosecutor who signed the information must
have territorial jurisdiction to conduct
preliminary investigation of the offense [Cudia
vs CA (1998)]. Otherwise, the information filed
by him would be invalid and can be quashed on
that ground.
 An Information filed in the Sandiganbayan must
be signed by a graft investigating officer with
prior approval of the Ombudsman. Authority to
sign may be challenged if the prosecutor files
 REMEDIAL LAW REVIEWER

the information without the approval of the 7) Criminal Action or Liability has been
Ombudsman. Extinguished

The Ombudsman cannot sign when the
information is filed in the regular courts [Uy vs
Sandiganbayan (1999)].
 Election Offenses: Must be signed by the duly
deputized prosecutors and legal officers of the
COMELEC.
 Lack of authority of the officer to is not cured
by silence, acquiescence, express consent or
even by amendment.
How criminal liability is extinguished 41
a. Death of the accused - Liability for pecuniary
penalties is extinguished only if death occurs
before final judgment.
b. Service of Sentence - Execution must be by
virtue of a final judgment and in the form
prescribed by law.
c. Amnesty

5) Complaint/Information does not Conform d. Absolute pardon

Substantially to the Prescribed Form
e. Prescription of the crime
 The formal and substantial requirements are
provided for in Rule 110, Sec. 6-12. f. Prescription of the penalty

General Rule: Lack of substantial compliance g. Pardon in private offenses

renders the accusatory pleading nugatory.
Note:
Exception: Mere defects in matter of form may  Enjoyment of an accrued right cannot forever be
be cured by amendment. left on a precarious balance [People vs Reyes
- Objections not raised are deemed waived, (1989)].
and the accused cannot seek affirmative  Protection from prosecution under a statute of
relief on such ground nor raise it for the limitation is a substantive right [People vs
first time on appeal [People v. Garcia Sandiganbayan (1992)].
(1997)].
ABSOLUTE PARDON CONDITIONAL PARDON
 Vague or broad allegations are generally not Only upon the
grounds for a MTQ. The correct remedy is to file acceptance since
for a bill of particulars [Rule 116, Sec. 9]. Complete upon its
accused may view
delivery
liability less onerous
6) More than One Offense is Charged than the terms

General Rule: The complaint or information must PARDON AMNESTY

charge only one offense [Rule 110, Sec. 13]. Grant by the President
Grant of the executive with concurrence of
Exception: Those cases in which existing laws majority of Congress
prescribe a single punishment for various offenses. Private, though official,
a. Complex and compound crimes, except where Public act
act
one offense was committed to conceal another. Court must take judicial
b. An offense incidental to the gravamen of the Must be pleaded and
notice [People v. Vera
offense charged. proved
(1990)]
c. A specific crime set forth in various counts, each Usually for those subject
of which may constitute a distinct offense. The to trial but have not yet
narration of the specific of the specific acts is been convicted, but can
considered a bill of particular of facts upon Granted after conviction also be available even
which the inference of guilt of the accused may after institution of the
be based [People vs Yap (1968)] criminal action and
sometimes after
Note: conviction
 Waivable. The accused may be convicted of all
Looks backward –
the offenses alleged and proved if he goes to
Looks forward – releases abolishes offense itself;
trial without objecting to the inclusion of 2 or
from consequences of completely extinguishes
more separate offenses in the same information
conviction the penalty and all its
[People vs Villamor (1998)]. effects [People v. Vera
 It is not tantamount to duplicity of offenses. An (1990)]
offense is committed in different modes and is
Granted to all persons
alleged to have been committed in the 2 or
Extended to pardoned guilty of a crime
more modes specified [Ku Bo Lin vs CA (1992)].
defendant alone and to (generally, political
 If the criminal acts are committed on different
no other cases like rebellion,
occasions, each constitutes a separate offense.
sedition, treason), and
often conditioned upon
 REMEDIAL LAW REVIEWER
their return to
obedience and duty
42 within a prescribed time
Prescription of the Crime
Definition: It is the loss or waiver by the state of its
right to prosecute a crime [People vs Castor (1954)].
Computation of Period [Art 9, RPC]
1. Commencement: From the day on which the
crime is discovered by the offended party, the
authorities or their agents.
2. Interruption: Upon the filing of the complaint
or information
General Rule: Includes complaint filed with
the proper officer for PI.
Exception: Period for offenses penalized by
special laws and ordinances is interrupted only
by filing in court.
Commences to run again: When
proceedings terminate without the accused
being convicted or acquitted, or are
unjustifiably stopped for any reason not
imputable to him
Note: Prescription shall not run when the offender is
absent from the Philippines.
Manner of computing time:
 1 yr = 365 days
 1 month = 30 days, unless specified
 1 day = 24 hours
 Nights = sunrise to sunset
 First day shall be excluded, while last day
included
Note: The rule that if the last day falls on a Sunday
or a holiday, the act can still be done the following
day does NOT apply to the computation of the period
of prescription of a crime. Information concerning
said felony cannot be filed anymore on the next
working day as the offense has by then already
prescribed.
Prescription of a continuing crime: It is counted
from the latest or last act constituting the series of
acts continuing the single crime [People vs
Castaneda (1990)].
Prescription Periods: [Art 90, RPC]
 20 yrs – Death and Reclusion Perpetua
 15 yrs – Other afflictive penalties
 10 yrs. – Correctional penalties; except Arresto
Mayor, which prescribes in 5 yrs.
 1 yr. – Libel and similar offenses;
 6 mos. – Oral defamation and slander by deed
 2 mos. – Light offenses
 When the penalty fixed is a compound one, the
highest penalty shall be made the basis of the
application of letters a-c
Prescription of the Penalty
Definition: It is the loss or waiver by the State of its
right to demand service of the penalty imposed.
When and penalties prescribe: [Art 92, RPC]
 20 yrs – Death and Reclusion Perpetua
 15 yrs – Other afflictive penalties
 10 yrs – Correctional penalties, except Arresto
Mayor which prescribes in 5 yrs
 1 yr – light penalties
Act No. 3326 governs period of prescription for
violation of special laws.
Where the accused is found to have committed a
lesser offense included in the offense charged, he
cannot be convicted of the lesser offense if it has
already prescribed [Magat vs People (1991)].
Computation of period: [Art 91, RPC]
1. Commencement: From the date when the
culprit should evade the service of his sentence.
2. Interruption: If the defendant should give
himself up, be captured, should go to some
foreign country with which this Government has
no extradition treaty, or should commit another
crime before the expiration of the period.
Pardon In Private Offenses (seduction, abduction,
acts of lasciviousness, rape)
 It extinguishes the criminal action or remits the
penalty already imposed.
General Rule: Pardon should be given before
the filing of the information
Exception: Marriage between the offended
woman and the offender [Art 344, RPC; People
vs Lualhati (1989)].
 Applicable to co-principals, accomplices and
accessories.
- If the victim is a minor: Pardon of offended
party and of both parents is required
[People vs de la Cruz (1993)].
8) Contains Averments Which, if True, Would
Constitute a Legal Excuse or Justification
Justifying Circumstances [Art 11, RPC]
a) Acts in defense of his person or rights
Requisites:
 Unlawful aggression;
 Reasonable necessity of means employed;
 Lack of sufficient provocation.
b) Acts in defense of the person or rights of his
 Spouse;
 Ascendants;
 Descendants;
 Legitimate/natural/adopted brothers or
sisters;
 Relatives by affinity in the same degrees;
 Relatives by consanguinity within the 4th
civil degree.
- Requisites:
o unlawful aggression
o reasonable necessity of means
employed
o In case provocation was given by
the person attacked, the one
 REMEDIAL LAW REVIEWER

making the defense had no part MTQ DEMURRER TO EVIDENCE

therein. order the filing of a new another information or
complaint or appeal by the prosecution
c) Acts in defense of the person or rights of a information) 43
stranger:
Requisites: If the court, in denying The order denying the
 unlawful aggression the motion to quash motion for leave to file a
 reasonable necessity of means employed acts with grave abuse of demurrer ―shall not be
 the person defending should not be induced discretion, then reviewable by appeal or
by revenge or resentment or other evil certiorari or by certiorari before
motive. prohibition lies judgment‖ [Sec. 23, Rule
119]
d) Act which causes damage to avoid evil or
injury 3. Effects of sustaining the motion to
Requisites:
 Evil sought to be avoided actually exists; quash
 Injury feared greater than that done to avoid;
 No other practical and less harmful means. Court order sustaining motion
 General Rule: Court may order that another
e) Fulfillment of a duty or lawful exercise of a complaint or information be filed [Rule 117,
right or office Sec. 5].

f) Obedience to an order issued by a superior for Exception: If MTQ was based on the ff:
some lawful purpose 1. Criminal action or liability has been
extinguished
Exempting Circumstances [Art 12, RPC] 2. Double jeopardy
a) Imbecile or Insane
Exception: Insane acting during a lucid interval  General Rule: If in custody, the accused shall
not be discharged unless admitted to bail [Rule
b) Person under 9 yrs old 117, Sec. 5]. The order must state either release
of the accused or cancellation of his bond.
c) Person over 9 yrs and under 15 yrs
Exception: If he acted with discernment Exception: When there is no order sustaining
the motion is made OR if there is one, no new
d) Causes injury by mere accident, without fault information is filed within the time specified in
or intention, while performing a lawful act the order or within such further time as the
with due care court may allow for good cause.

e) Under compulsion of irresistible force Exception to the exception: If he is in custody

for another charge.
f) Under impulse of uncontrollable fear or
greater injury  Better approach if the ground was that the court
has no jurisdiction over the subject matter: The
g) Fails to perform an act required by law when court should not quash the complaint or
prevented by some lawful insuperable cause information. Instead, it should remand or
forward the case to the proper court.
2. Distinguish from demurrer to Remedies of the prosecution
evidence General Rule: To amend the information to correct
the defects if the TC makes the order, and
MTQ DEMURRER TO EVIDENCE thereafter prosecute on the basis of the amended
Filed before entering Filed after the information [Rule 117, Sec. 4]
plea prosecution has rested its
case Exception: Prosecution is precluded where the
Does not go into the Based upon the ground for quashal would bar another prosecution
merits of the case inadequacy of the for the same offense.
evidence adduced by the
prosecution  Prosecution may appeal from the order of
Grounds are stated in Ground is ―insufficiency quashal to the appellate court.
Rule 117 of evidence‖
Does not require a prior May be filed either with  If the information was quashed because it did
leave of court leave or without leave of not allege the elements of the offense, but the
court facts so alleged constitute another offense
Granting does not Granting is deemed an under a specific statute, the prosecution may
necessarily follow a acquittal and would file a complaint for such specific offense where
dismissal (Court may preclude the filing of dismissal is made prior to arraignment and on
MTQ [People vs Purisima (1978)].
 REMEDIAL LAW REVIEWER
Order denying MTQ Order granting MTQ
44 Interlocutory Final order
Not appealable absent a
Immediately appealable
showing of GAD
but subject to rules on
double jeopardy
Does not dispose of the Disposes of the case upon
case upon its merits its merits
Proper remedy: appeal Proper remedy: appeal
after the trial the order
4. Exception to the rule that
sustaining the motion is not a bar to
another prosecution (Bar 1994)
General Rule: A MTQ will not be a bar to another
prosecution for the same offense [Rule 117, Sec. 6]
Exception: If the ground for the quashal is either:
1. The criminal action or liability has been
extinguished.
2. The accused has been previously convicted, or
in jeopardy of being convicted, or acquitted of
the offense charged.
5. Double Jeopardy
Rule of Double Jeopardy
1. When a person is charged with an offense and
the case is terminated either by acquittal or
conviction or in any other manner without the
express consent of the accused, the latter
cannot again be charged with the same or
identical offense [Rule 117, Sec. 3(i)].
2. Hence, as a rule, an acquittal rendered by a
court of competent jurisdiction after trial on the
merits is immediately final and cannot be
appealed on the ground of double jeopardy
[People v. Sandiganbayan (2010)].
Kinds of Double Jeopardy [Art III, Sec. 21,
Consti]
1. No person shall be put twice in jeopardy for the
SAME OFFENSE.
2. When an act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution to another
prosecution for the SAME ACT.
Same Offense
 The offenses are penalized either by different
sections of the same law or by different
statutes.
 Must examine the essential elements of each:
- Test: WON evidence that proves one
offense would likewise prove the other
[People vs Ramos (1961)].
 It is not necessary to have absolute identity
[People vs Relova (1987)].
Same Act
 An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy. However, the
second sentence of the constitutional protection
was precisely intended to extend to situations
not covered by the first sentence. Although the
prior offense charged under an ordinance be
different from the offense charged under a
national statute, the constitutional protection is
available provided that both arise from the
same act or set of acts [People vs Relova
(1987)].
 Liability is produced both under an ordinance
and a national statute.
Note: Where there are two different laws or
articles of the same code that define two
crimes, prior jeopardy as to one is NOT an
obstacle to a prosecution of the other when
each crime involves some important act which is
not an essential element of the other [Loney vs
People (2006); People vs Doriquez (1968)].
Requisites for 1st Jeopardy to Attach
1. A valid complaint or information which is
sufficient in form and substance to sustain a
conviction
2. The court had jurisdiction
3. A valid arraignment
4. A valid plea
5. Conviction, acquittal of the accused OR the case
was dismissed without his express consent
Note:
 Exception: A dictated, coerced and scripted
verdict of acquittal is a void judgment. It
neither binds nor bars anyone [Galman v.
Sandiganbayan (1986)].
 ―Without express consent‖: It refers only to
dismissal or termination of the case. It does NOT
refer to the conviction or acquittal [People v.
Labatete (1960)].
 If consent is not express, dismissal will be
regarded as final – i.e. with prejudice to refiling
[Caes v. IAC (1989)].
Exception: Dismissal has the effect of
acquittal even with the consent of the accused
when predicated on (1) insufficiency of the
prosecution‘s evidence or (2) denial of the right
to a speedy trial [Alamario v. CA (2001)].
 Dismissal = Acquittal
a) Demurrer to evidence
b) Dismissal due to violation of right to speedy
trial (even if dismissal was upon motion of
the accused or with his express consent)
 Dismissal vs. Acquittal
Dismissal Acquittal
Does not decide the case Always based on the
on the merits. Does not merits. Defendant‘s guilt
determine innocence or was not proven beyond
guilt reasonable doubt.
Double jeopardy will not Double jeopardy always
always attach attaches

Requisites to Raise Double Jeopardy
1. First jeopardy must have attached.
2. First jeopardy must have been validly
terminated.
3. Second jeopardy must be:
a. for the same offense; or
b. the second offense necessarily includes or is
necessarily included in the offense charged
in the first information; or
c. is an attempt or frustration thereof.
Note:
 The discharge of a defendant on a preliminary
investigation is NOT such an adjudication in his
favor as will bar a subsequent prosecution for
the offense. A preliminary investigation is not a
trial and does not have for its object the
definite determination of the guilt of the
accused. Furthermore, the accused has not yet
been arraigned.
 Tests for determining whether the two
offenses are identical: There is IDENTITY
between the two offense not only when the
second offense is exactly the same as the first,
but also when the second offense is an attempt
to or frustration of or is necessarily included in
the offense charged in the first information
Exception to the Identity Rule:
1. The graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge.
2. The facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information.
3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor and
of the offended party EXCEPT when offended
party failed to appear during such arraignment.
When there is NO double jeopardy
1. Private offended party appeals the civil aspect
of the case [Manantan vs CA (2001)].
2. Conviction of a crime under a special law
(malum prohibitum) which also constitutes an
offense under the RPC is not a bar to the
prosecution under the RPC (malum in se)
[People vs Sanchez (1998)].
3. Two informations are filed charging the accused
with two different offenses having different
elements though arising from the same act (eg.
estafa and BP 22) [Ching vs CA (1990)].
4. Prosecutor may revive and reinstate a case
without filing a new information when the
information is provisionally dismissed with the
conformity of the accused after arraignment and
the initial presentation of prosecution evidence
has started since the order of provisional
dismissal has not yet become final [Lauchengco
vs CA (1979)].
5. Dismissal of the case was declared null and void
[People vs Mogol (1984)].
 Where an order dismissing a case is not on
the merits, it cannot bar as res judicata a
subsequent case based on the same offense.
The dismissal being null and void, the
REMEDIAL LAW REVIEWER
proceeding before the TC may not be said
to have been lawfully terminated [People vs
Gorospe (1984)].
6. Petition for certiorari filed by the prosecutor to 45
correct the penalty which should be lower than
that imposed by the TC – it is favorable to the
accused [People vs Lee Jr (1984)].
7. Filing of the 2nd information where a new fact
supervened (eg. the injured party dies from the
injuries after conviction). [1997, 2005 Bar]
 Where there is no supervening event after
arraignment and conviction:
- If the 1st charge was based on findings
of a physician, and a 2nd information
was filed charging a more serious crime
based on the findings of another
physician [People v. Buling (1960)].
- If the victim died 2 days prior to
arraignment of the accused who
pleaded guilty to an information for
serious physical injuries thru reckless
imprudence, he can no longer be
charged with homicide thru reckless
imprudence [People v. City Court of
Manila (1983)].
8. In a continuing offense, only one crime is
committed. Where 2 informations arose from
the same transaction, the 2nd case CANNOT
prosper [Mallari vs People (1988)].
9. General Rule: Prosecution cannot file an appeal
or a motion for reconsideration after jeopardy
has attached to increase the imposed penalty
[US vs Kepner (1904)].
 Exception: If the purpose is to decrease the
penalty wrongfully imposed, it is beneficial
to the accused and there is no reason to
complain.
6. Provisional Dismissal (Bar 2003)
Definition: A case is dismissed without prejudice to
its being refiled or revived.
General Rule: Cases are provisionally dismissed
where there has already been arraignment and the
accused consented to a provisional dismissal.
Exception: If dismissal was due to a demurrer to
evidence.
a. When dismissal becomes permanent: Time bar
rule
 1 year after issuance of the order without the
case having been revived for offenses
punishable: [Rule 117, Sec. 8]
1. By imprisonment not exceeding 6 yrs
2. By fine of any amount
3. By both
 2 yrs after issuance of the order without the
case having been revived for offenses punishable
by imprisonment of more than 6 yrs.
 The State may revive beyond the periods
provided there is a justifiable necessity for the
delay.
 The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
 REMEDIAL LAW REVIEWER
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
46 accused, and not for the accused only [People vs
Lacson (2003)].
Note:
 How to revive a case:
1. Refiling of the information
2. Filing of a new information for the same
offense or one necessarily included in the
original offense charged.
b. Requisite procedure [Rule 117, Sec. 8]
 Motion can be made:
1. By the prosecution, with the express
conformity of the accused
2. By the accused
3. By both
 Requisites for Provisional Dismissal:
1. Consent of the prosecutor
2. Consent of the accused
3. Notice to the offended party
X. PRE-TRIAL
1. Matters to be considered during pre-trial
2. What the court should do when
prosecution and offended party agree to
the plea offered by the accused
3. Pre-trial agreement
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for Court Annexed
Mediation and Judicial Dispute Resolution
1. Matters to be considered during
pre-trial
Section 1. Pre-trial; mandatory in criminal cases
Pre-trial is MANDATORY in all criminal cases. Its
main objective is to achieve an expeditious
resolution of the case.
Coverage [Rule 118, Sec. 1]
The court shall order pre-trial in ALL criminal cases
cognizable by the Sandiganbayan, RTC and MTC or
MTCC or MCTC or MeTC
Period [Rule 118, Sec. 1]
General Rule: After arraignment and within 30 days
from the time the court acquires jurisdiction over
the person of the accused.
Exception: If a shorter period is provided by special
or SC circulars.
Things considered during pre-trial / Purposes
[Rule 118, Sec. 1]
a) Plea bargaining
b) Stipulation of facts
c) Marking for identification of evidence
d) Waiver of objections to admissibility of evidence
e) Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial)
f) Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case
Role of the Judge
During the pre-trial, the judge shall be the one to
ask questions on issues raised therein and all
questions must be directed to him to avoid hostilities
between the parties. [SC AM 03-1-09-SC]
Note:
 Stipulation of facts
- This is no longer prohibited in criminal
cases [People vs Hernandez (1996)].
- However, in a case of rape with the
allegation that victim is below 12 yrs of age
which qualifies said crime and increases its
penalty to death, nothing short of proof
beyond reasonable doubt of every fact
necessary to constitute the elements of the
crime must be established. Said facts and
circumstances cannot be subject of
stipulation [People vs Sitao (2002)].
 Marking for identification of the evidence of
parties
Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the presentation
of evidence.
2. What the court should do when
prosecution and offended party agree
to the plea offered by the accused
Plea bargaining
Definition: It is the process in criminal process
whereby the 1) accused, 2) offended party, and the
3) prosecution work out a mutually satisfactory
disposition of the case subject to court approval [See
also DOJ Circular No. 35 (June 31, 1990), as
amended by Circular No. 55 for the guidelines on
plea bargaining as well as note on Rule 116].
It usually involves the defendant‘s pleading guilty to
a lesser offense or to one or some of the counts of a
multi-count indictment in return for a lighter
sentence than that for the graver charge [People vs
Villarama (1989)].
The conviction of the accused of the lesser offense
precludes the filing and prosecution of the offense
originally charged in the information, except when
the plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor
[People vs De Luna (1989)].
When not allowed: Section 23 of RA9165
(Comprehensive Dangerous Drugs Act of 2002) says
that ―any person charged under any provision of this
Act regardless of imposable penalty shall not be
allowed to avail of the provision on plea-
bargaining.‖

Effect when the prosecution and the offended
party agree to the plea offered by the accused:
Court shall:
a) Issue an order which contains the plea
bargaining arrived at;
b) Proceed to receive evidence on the civil aspect
of the case; and
c) Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC]
When plea bargaining fails:
Court shall
 Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits
or substituted photocopies and admissions
on the genuineness and due execution of
documents and list object and testimonial
evidence;
 Scrutinize every allegation of the
information and the statements in the
affidavits and other documents which form
part of the record of the preliminary
investigation and other documents
identified and marked as exhibits in
determining farther admissions of facts,
documents and in particular as to the
following:
- the identity of the accused;
- court's territorial jurisdiction relative to the
offense/s charged;
- qualification of expert witness/es;
- amount of damages;
- genuineness and due execution of documents;
- the cause of death or injury, in proper cases;
- adoption of any evidence presented during
the preliminary investigation;
- disclosure of defenses of alibi, insanity, self-
defense, exercise of public authority and
justifying or exempting circumstances; and
- such other matters that would limit the facts
in issue.
 Define factual and legal issues;
 Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall
contain the time frames for the different
stages of the proceeding up to
promulgation of decision and use the time
frame for each stage in setting the trial
dates;
 Require the parties to submit to the Branch
COC the names, addresses and contact
numbers of witnesses that need to be
summoned by subpoena; and
 Consider modification of order of trial if
the accused admits the charge but
interposes a lawful defense. [SC AM 03-1-
09-SC]
3. Pre-trial agreement
Form
General Rule: Court approval is required.
REMEDIAL LAW REVIEWER
Exception: Agreements not covering matters
referred to in Rule 118, Sec. 1 [SC A.M. No. 03-1-09-
SC]
47
Required form of pre-trial agreement
1. Must be in writing
2. Signed by the accused
3. Signed by his counsel
Otherwise, it cannot be used against the accused
(i.e. inadmissible in evidence). The constitutional
right to present evidence is waived expressly.
Purpose for signature requirement: [People vs Uy
(2000)]
1. To safeguard the rights of the accused against
improvident or unauthorized agreements or
admissions which his counsel may have entered
into without his knowledge.
2. To eliminate any doubt on the conformity of the
accused to the facts agreed upon.
Effect
 The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated (2008
Bar)
 Even if placed at a disadvantageous position, a
party may not be allowed to rescind them
unilaterally; he must assume the consequences
of the disadvantage [Bayas vs Sandiganbayan
(2002)].
4. Non-appearance during pre-trial
[Rule 118, Sec. 3]
If counsel for the accused or the prosecutor 1) does
not appear at the pre-trial conference and 2) does
not offer an acceptable excuse, the court may
impose proper sanctions or penalties (reprimand,
fine or imprisonment).
Rationale: to enforce the mandatory requirement of
pre-trial in criminal cases [Rule 118, Sec. 1].
Note: The accused is not included because his
constitutional right to remain silent may be violated.
The accused is not required to attend (unless
ordered by the court) and is merely required to sign
the written agreement arrived at in the pre-trial
conference, if he agrees to the contents of such.
5. Pre-trial order [Rule 118, Sec. 4]
Issuance
 Issued by the court
 Within 10 days after the pre-trial. [SC AM 03-1-
09-SC]
 Judgment of acquittal based on pre-trial despite
disputed documents and issues of fact amounts
to grave error and renders the judgment void
[People vs Santiago (1989)].
Contents
a) Actions taken;
b) Facts stipulated;
 REMEDIAL LAW REVIEWER
c) Evidence marked;
d)
e)
Admissions made;
The number of witnesses to be presented; and
48
f) The schedule of trial.
(Note: Letters d) to f) are added by SC AM 03-1-09-
SC to the requirements under Rule 118, Sec. 4)
Effect
a) Binds the Parties
 The accused must move to correct any
mistake or modify the pre-trial order.
Otherwise, it will be deemed to have waived
and be barred from questioning
 If the matters taken up and embodied in the
pre-trial order were not in accordance with
what was really stipulated upon, objections
should be interposed as soon as the pre-trial
order is issued. [People v. Abelita (1992)]
 The procedure is substantially the same in
civil cases, except that any modification of
the pre-trial order in civil cases must be made
before the trial. No such limitation is
provided for in criminal cases (1997 Bar).
b) Limits the trial to those matters not disposed of
c) Control the course of the action during trial
 Exception: If modified by the court to
prevent manifest injustice.
6. Referral of some cases for Court
Annexed Mediation and Judicial
Dispute Resolution
A.M. No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE
OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE- TRIAL AND
USE OF DEPOSITION-DISCOVERY MEASURES
RESOLUTION
CRIMINAL CASES
After the arraignment, the court shall forthwith set
the pre-trial conference within thirty days from the
date of arraignment, and issue an order:
(a) Requiring the private offended party to appear
thereat for purposes of plea-bargaining except
for violations of the Comprehensive Dangerous
Drugs Act of 2002, and for other matters
requiring his presence;
(b) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be
set at least three days prior to the pre-trial to
mark the documents or exhibits to be presented
by the parties and copies thereof to be attached
to the records after comparison and to consider
other matters as may aid in its prompt
disposition; and
(c) Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown. In mediatable
cases, the judge shall refer the parties and their
counsel to the PMC unit for purposes of
mediation if available.
XI. TRIAL
1. Instances when presence of accused is
required by law
2. Requisite before trial can be suspended
on account of absence of witness
3. Trial in Absentia
4. Remedy when accused is not brought to
trial within the prescribed period
5. Requisites for discharge of accused to
become a state witness
6. Effects of Discharge of accused as state
witness
7. Demurrer to Evidence
1. Instances when presence of
accused is required by law
Presence is mandatory:
 For purposes of identification;
 At arraignment; [Rule 116, Sec. 1(b)]
 At the promulgation of judgment;
Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
 [Rule 119, Sec. 15]
When it satisfactorily appears that a witness for
the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to
leave the Philippines with no definite date of
returning, he may forthwith be conditionally
examined before the court where the case is
pending.
Such examination, in the presence of the
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted
in behalf of or against the accused.
2. Requisites before trial can be
suspended on account of absence of
witness
Absence or unavailability of an essential witness
 ―Absent‖ means that his whereabouts are
unknown or cannot be determined by due
diligence.
 ―Unavailable‖ means that his whereabouts are
known but presence for trial cannot be obtained
by due diligence.
The period of delay resulting from the absence or
unavailability of an essential witness shall be
 REMEDIAL LAW REVIEWER

excluded in computing the time within which trial DISMISSAL WITHOUT DISMISSAL WITH
must commence. [Rule 119, Sec. 3] PREJUDICE PREJUDICE
Terminates the case but 49
3. Trial in Absentia (1998 Bar) reserving, however, to
the plaintiff the right to
Requisites: file a new complaint
1. Accused has been arraigned; which is entirely new
2. He was duly notified of trial; and different from that
3. His failure to appear is unjustified. which was dismissed

Purpose: To speed up disposition of cases. 5. Requisites for discharge of accused

General rule: The right to be present at one‘s trial to become a state witness
may be waived.
Discharge of a co-accused
Exceptions: At certain stages: [Lavides v. CA (2000)] General rule: It is the duty of the prosecutor to
 Arraignment and plea include all the accused in the
 Promulgation of sentence, unless for light complaint/information.
offense
 During trial whenever necessary for ID purposes Exception: Prosecutor may ask the court to
discharge one of them after complying with the
Exception to the exception: If the accused conditions prescribed by law. [Rule 119, Sec. 17]
unqualifiedly admits in open court after arraignment  This applies only when the information has
that he is the person named as the defendant in the already been filed in court.
case on trial.
Requisites [Rule 119, Sec. 17]
(1) Two or more persons are jointly charged with
4. Remedy when accused is not the commission of any offense.
brought to trial within the prescribed (2) Upon motion of the prosecution before resting
period its case
 Petition for discharge is filed before the
Effect of delay [Rule 119, Sec. 9] defense has offered its evidence. [People v.
 On motion of the accused, the information may Aniňon (1988)]
be dismissed on the ground of denial of his right (3) Hearing in support of the discharge where the
to speedy trial (2007 Bar). prosecution is to present evidence and the
 Must be raised prior to trial; otherwise, the right sworn statement of each proposed state
to dismiss is considered waived under Rule 119, witness.
section 9. (4) The court is satisfied of the ff:
 Burden of Proof (a) Absolute necessity for the testimony of the
- The accused has the burden of proving the accused whose discharge is requested;
ground of denial of right to speedy trial for  He alone has the knowledge of the
the motion. crime, and not when his testimony
- The prosecution has the burden of going would simply corroborate or strengthen
forward with the evidence to establish the the evidence in the hands of the
exclusion of time under Rule 119, Sec. 3. prosecution. [Flores v. Sandiganbayan
 Subject to the rules on double jeopardy. Hence, (1983)]
if with prejudice, the case cannot be revived  E.g. When there is a conspiracy and the
anymore. crime is committed clandestinely, the
discharge of a conspirator is necessary
DISMISSAL WITHOUT DISMISSAL WITH to testify against the other conspirator.
PREJUDICE PREJUDICE [Chua v. CA (1996)]
(b) There is no other direct evidence available
Adjudication on the
for the proper prosecution of the offense,
merits, and final
except the testimony of the said accused;
Allows new suit for the disposition, barring the
(c) The testimony can be substantially
same cause of action right to bring or
corroborated in its material points;
maintain an action on
(d) The accused does not appear to be the
the same claim or cause
most guilty;
Imports contemplation of
 Gravity or nature of acts he committed
further proceedings, and
are compared to those of his co-
when they appear in an
Is res judicata as to accused.
order or decree, it shows
every matter litigated  Not merely the fact that in law the same
that the judicial act is
penalty is imposable on all.
not intended to be res
(e) The accused has not, at any time, been
judicata of the merits
convicted of any offense involving moral
turpitude
 REMEDIAL LAW REVIEWER

may then oppose within a non-extendible period

Note: The rule on the discharge of an accused to be of 5 days from receipt.
50 utilized as state witness clearly looks at his actual  If leave of court is granted, the demurrer must be
and individual participation in the commission of the filed within a non-extendible period of 10 days
crime, which may or may not have been perpetrated from notice. Prosecution may oppose within a
in conspiracy with the other accused. [People v. similar period.
Ocimar (1992)]
Effect of granting motion for leave to file
6. Effects of Discharge of accused as demurrer
state witness  The court may dismiss the action on the ground of
insufficiency of evidence. [Rule 119, Sec. 23]
 Sufficient evidence for frustrating a demurrer is
Effect of discharge evidence that proves: [Gutib v. CA (1999)]
General rule: The order of discharge shall: [Rule
- Commission; and
119, Sec. 18]
- Precise degree of participation.
 Amount to an acquittal of the discharged accused;
o E.g. Proof of the possession of recently
 Bar future prosecutions for the same offense.
stolen goods taken together with proof of
the commission of the theft, may be and
Exception: If the accused fails/refuses to testify
generally will be sufficient to establish the
against his co-accused in accordance with his sworn
guilt of the accused, if there is nothing in
statement constituting the basis for his discharge.
the record to raise a doubt as to the guilty
character of the possession, though there is
 Any error in asking for and in granting the
no presumption to that effect. [U.S. v.
discharge cannot deprive the discharged of the
Catimbang (1916)]
acquittal and the constitutional guaranty against
double jeopardy. [People v. Verceles (2002)]
Effect of denial of motion for leave to file
 Subsequent amendment of the information does
not affect discharge. [People v. Taruc (1962)] demurrer
 Order denying the motion for leave or order
denying the demurrer itself, is not reviewable by
7. Demurrer to Evidence (1998, 2001, appeal or by certiorari before judgment. [Rule
2004 Bar) 119, Sec. 23]
 It is interlocutory, but it may be assigned as error
Definition: Objection by one of the parties to the and reviewed in the appeal that may be taken
effect that the evidence which his adversary from the decision on the merits [Cruz v. People
produced is insufficient in point of law, whether true (1999)]
or not, to make out a case or sustain the issue.
[Gutib v. CA (1999)] Right of the accused to present evidence
after demurrer is denied [Rule 119, Sec. 23]
Purpose: In light of the constitutional right to be
presumed innocent and of the privilege against self- FILED WITH LEAVE OF FILED WITHOUT LEAVE
incrimination [Goldstein, 1960] for the accused to COURT OF COURT
test the sufficiency of prosecution‘s evidence before May adduce evidence in Waives the right to
presenting his defense. his defense present evidence
Purpose: To determine Submits the case for
 There is no material difference between the WON demurrer was filed judgment on the basis of
Motion to Acquit of the accused before the TC and merely to stall the the evidence for the
the demurrer to evidence. The only difference: If proceedings prosecution
the MTD is ordered, it is tantamount to an Implied leave of court is If there are 2 or more
acquittal, but the order of denial of the demurrer no longer sufficient and accused and only one
to evidence is not reviewable by appeal or prevents accused from presents a demurrer
certiorari before judgment. presenting evidence without leave of court,
 Purpose: to prevent the filing of demurrer based [e.g. accused files
on frivolous and flimsy grounds. motion with reservation General rule: The court
to present evidence in may defer resolution
How initiated [Rule 119, Sec. 23] case motion is denied] until decision is rendered
 By the court motu proprio, after giving the on the other accused
prosecution the opportunity to be heard;
 Upon demurrer to evidence filed by the accused: Exception: If it can be
-With leave of court; shown from the decision
-Without leave of court. that the resolution on
the demurrer was
Motion for leave to file demurrer [Rule 119, rendered not only on the
Sec. 23] basis of the
 It must specifically state its grounds. prosecution‘s evidence
 It must be filed within a non-extendible period of but also on the evidence
5 days after the prosecution rests. Prosecution adduced by his co-
accused

XII. JUDGMENT
1. Requisites of a judgment
2. Contents of Judgment
3. Promulgation of judgment; instances of
promulgation of judgment in absentia
4. When does judgment become final (four
instances)
1. Requisites of a judgment
Form [Rule 120, Sec. 1]
 Written in official language.
- If given verbally, it is incomplete. It does
not have an effect before it was actually
reduced to writing and signed by the judge.
[People v. Catolico (1972)]
- A verbal order dismissing the case can be
rescinded without prejudicing the rights of
the accused – No double jeopardy arises.
[Abaya v. Garcia (1988)]
- The remedy for a verbal judgment is to
appeal or file a petition for mandamus to
compel the court to put the decision in
writing.
 Personally and directly prepared by the judge.
- Every decision must state distinctly and
clearly the factual and legal basis
therefore. [Art. 8, Sec. 6, Consti]
- Judges must nonetheless be allowed to
synthesize and simplify their decisions
considering the heavy load of trial judges
for as long as there is compliance with
minimum essence of factual and legal
bases.
o He may quote from narration of facts by
the OSG in his brief or memoranda of
both parties and adopt the same as his
own. [Hernandez v. CA (1993)]
o Common sense dictates that he be given
complete liberty to express his opinion,
unrestrained by any fear that a higher
court might call down. [People v.
Meneses (1998)]
 Signed by the judge.
- The judge who presided over the entire
trial would be in a better position to
ascertain the truth or falsity of the
testimonies.
- But the judge who only took over can
render a valid decision by relying on the
transcript. It does not violate due process.
[People v. Badon (1999)]
 Contains clearly and distinctly a statement of
facts proved and the law upon which judgment
is based.
- There is sufficient compliance if the
decision summarizes the evidence of both
parties, synthesizes the findings and
concisely narrates how the offense was
committed.
- Failure on the part of the TC to make a
finding of fact is a revocable error.
REMEDIAL LAW REVIEWER
- There is no law that requires a specific
finding of facts with respect to the
evidence for the defense. [Reyes v. People
(2006)] 51
Judge who penned the decision need not be the
one who heard the case
The fact alone that the judge who heard the
evidence was not the one who rendered the
judgment but merely relied on the record of the
case does not render his judgment erroneous or
irregular.
The Court generally will not find any
misapprehension of facts as it can be fairly assumed
under the principle of regularity of performance of
duties of public officers that the transcript of
stenographic notes were thoroughly scrutinized and
evaluated by the judge himself. [Concepcion v.
Court of Appeals (2000)]
2. Contents of Judgment
1) Conviction
The judgment of conviction shall state:
(1) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances which attended its commission.
 If a decision does not contain a dispositive
portion but the last two paragraphs embody
the court‘s conclusions, then the decision is
valid. [People v. Valeriano (1993)]
 The TC should express not only its
conclusion but also the provision of the law
violated for the purpose of informing the
accused of the nature of the crime and the
law penalizing the same.
 There is no need to state the particular
paragraph and article in the RPC, so long as
the offense is clearly understood from the
facts.
 Mere failure to specify the particular
provision of law does not invalidate the
decision, if it did actually apply the proper
provision.
(2) The participation of the accused in the offense,
whether as principal, accomplice or accessory
after the fact.
(3) The penalty imposed upon the accused.
 The penalty should not be imposed in the
alternative. There should be no doubt as to
the offense committed and the penalty for
it.
(4) The civil liability or damages caused by his
wrongful act/omission to be recovered from the
accused by the offended party, if there is any,
unless the enforcement of the civil liability by a
separate civil action has been reserved/waived.
 REMEDIAL LAW REVIEWER
PROOF BEYOND REASONABLE DOUBT – Degree of
proof which produces conviction in an unprejudiced
52 mind. [People v. Bacalzo (1991)]
Judgment for two or more offenses
 General rule: Complaint/information must
charge only one offense.
Exception: Cases in which existing laws
prescribe a single punishment for various
offenses.
 General rule: Duplicitous information is subject
to a motion to quash.
Exception: Defect is waived when accused fails
to move for quashal.
- THUS, where the accused fails to object to
2 or more offenses charged in a single
information/complaint before trial [Rule
120, Sec. 3], the court may:
o Convict him of as many offenses as are
charged and proved; and
Exception: One of the offenses has
been a necessary means for committing
the other offense and where both have
been the result of a single act.
o Impose on him the penalty for each
offense, setting out separately the
findings of fact and law in each
offense.
Exception: Maximum duration of
offense: Follow the three-fold rule on
the service of penalty.
Judgment in case of variance between allegation
and proof
 General rule: The defendant can be convicted
only of the crime with which he is charged.
 Rationale: He has the right to be informed of
the nature of the offense with which he is
charged before he is put on trial. [People v.
Guevarra]
However, minor variance between the
information and the evidence:
- Does not alter the nature of the offense;
- Does not determine or qualify the crime or
penalty;
- Cannot be ground for acquittal.
 Exception: He can be convicted of an offense
proved provided it is included in the charge, or
of an offense charged which is included in that
which is proved. [Rule 120, Sec. 4]
- The accused can be convicted of an offense
only when it is both charged and proven.
- The mere fact that the evidence presented
would indicate that a lesser offense outside
the court‘s jurisdiction was committed does
not deprive the court of its jurisdiction,
which had vested in it under the allegations
in the information.
 Exception to the exception: Where there are
facts that supervened after the filing of the
information which change the nature of the
offense.
When an offense includes or is included in another
[Rule 120, Sec. 5]
The offense charged necessarily includes the offense
proved when some of the essential
elements/ingredients of the former, as alleged in
the complaint/information, constitute the latter.
An offense charged is necessarily included in the
offense proved when the essential ingredients of the
former constitute or form part of those constituting
the latter.
Effect
 The accused shall be convicted of: [Rule 120,
Sec. 4]
1) The offense proved which is included in the
offense charged; or
2) The offense charged which is included in
the offense proved
 The right to be informed of the charges has not
been violated because where an accused is
charged with a specific crime, he is duly
informed also of lesser crimes/offenses included
therein. [People v. Villamar (1998)]
 Where a complex crime is charged and the
evidence fails to support the charge as to one of
the component offenses, the accused can be
convicted of the one which is proven.
State liability for unjust conviction
 The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
victims of unjust imprisonment/detention and
victims of violent crimes. [RA 7309]
 Requirements for compensation:
1) Unjust accusation;
2) Unjust conviction; and
- It is the same as knowingly rendering
an unjust judgment - It is contrary to
law or is not supported by the evidence
and the same is made with conscious
and deliberate intent to do an
injustice. [Art. 204, RPC]
3) Unjust imprisonment.
2) Acquittal
Definition: A finding of not guilty based on the
merits, either:
 The evidence does not show that his guilt is
beyond reasonable doubt; or
 A dismissal of the case after the prosecution has
rested its case and upon motion of the accused
on the ground that the evidence fails to show
beyond doubt that accused is guilty.
REASONABLE DOUBT – Doubt engendered by an
investigation of the whole proof and an inability,
after such investigation, to let the mind rest upon
the certainty of guilt.
Rationale: It is always better to err in acquitting
than in punishing. [People v. Lizada (1993)]

ACQUITTAL DISMISSAL
[Rule 120] [Rule 117]
Terminates the case
Decision on the merits
Not on the merits and no
based on a finding that
finding of guilt is made
the accused is not guilty
 The judgment shall state whether:
1) The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2) It merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission from which the civil liability
might arise did not exist.
- #2 does not extinguish the civil liability
arising from his acts, since the civil liability
arose not from a crime but from the
damage caused by such acts, which can be
proven by a lower quantum of evidence.
General rule: The court has authority to express
disapproval of certain acts even if judgment is for
acquittal.
Exception: The court is not permitted to censure
the accused in a judgment for acquittal – no matter
how light, a censure is still a punishment.
- No court has the power to mete out
punishment. A finding of guilt must
precede the punishment.
- This reprehension, however, must be
relevant to the issue in the case. If
irrelevant/impertinent, they should be
stricken out or expunged from the record
like any other extraneous matters. [People
v. Meneses (1998)]
 Acquittal based on reasonable ground does not
bar a separate civil action based on quasi-delict.
[Lontoc v. MD Transit (1988)]
 The Court may hold accused civilly liable even
when it acquits him. Acquittal extinguishes civil
liability only when the judgment includes a
declaration that the facts from which the civil
liability might arise did not exist.
- The court may nonetheless hold the accused
civilly liable in favor of the offended party,
or it may deny the award of civil damages
expressly or impliedly by being silent on the
matter.
- The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal, in his name and not in the name of
the People
 The Judge acquitting an accused cannot punish
him at the same time
3. Promulgation of judgment;
instances of promulgation of
judgment in absentia (1997 Bar)
REMEDIAL LAW REVIEWER
Promulgation: An official proclamation or
announcement of a judgment or order.
53
Two things are essential and necessary for the valid
promulgation of a court decision:
1. There must be a judge or judges legally
appointed or elected and actually acting either
de jure or de facto, and
2. The said judgment must be duly signed and
promulgated during the incumbency of the judge
who signed it. [Miguel v Municipal Trial Court
(1986)]
Judgment/sentence does not become a
judgment/sentence in law until it is:
1) Read and announced to the defendant; or
2) Has become a part of the record of the court.
[US v. CFI of Manila, 24 Phil 321]
Where there is no promulgation of judgment, no
right to appeal accrues.
Notice for Promulgation
 Clerk of Court gives notice to accused personally
or through bondsman or warden and counsel.
 If the accused jumps bail or escapes from prison
and was tried in absentia, notice will be served
in last known address. [Rule 120, Sec. 6]
Sin perjuicio judgment: A judgment without a
statement of the facts in support of its conclusion to
be later supplemented by the final judgment. [Dizon
v. Lopez (1997)]
 Merely reading the dispositive portion of the
decision is not sufficient.
 Judgment must state the facts and the law on
which it is based.
 While SC has expressed approval of the practice
of some judges withholding the dispositive
portion from their opinions until the very last
moment of promulgation in order to prevent
leakage, such refers to the preparation of the
decision and not to promulgation.
 There is no more reason to keep it a secret at
the stage of promulgation.
a. Promulgation where judge is absent [Rule 120,
Sec. 6]
The judgment may be promulgated by the clerk of
court when the judge is absent or outside the
province or city.
b. Presence of accused required; exception [Rule
120, Sec. 6]
General rule: Presence of the accused is mandatory.
Exception: convictions for light offenses
Conviction for He may appear through
light offense counsel/representative
Promulgation in
To prevent subversion of judicial
process and enable enforcement
absentia
of civil liability
 REMEDIAL LAW REVIEWER
No appeal is necessary; judgment
is final and executory
54 - Note the old rule that presence
Verdict of
of the accused during
acquittal
promulgation of judgment is
required only in case of
conviction
 If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the ROC against the judgment and the court
shall order his arrest.
- However, within 15 days from promulgation
of judgment, he may surrender and file a
motion for leave of court to avail of these
remedies. He shall state the reasons for his
absence.
- If he proves his absence was for a justifiable
cause, shall be allowed to avail of the
remedies within 15 days from notice.
 Promulgation when accused is
confined/detained in another city
- It will be done in the RTC who has
jurisdiction over the place of confinement.
 Failure to appear at the scheduled date of
promulgation
- Promulgation is made by recording the
judgment in the criminal docket and serving
a copy at the accused‘s last known address
or through counsel.
 Promulgation date where judge no longer a
judge is void.
- If at the time of the promulgation, the
judge penning the decision has ceased being
a judge of the court, the decision would not
be an act of the court. [People v.
Dimalanta]
- Promulgation by a succeeding judge
produces no legal effect since it cannot
restore validity to a document already void.
4. When does judgment become final
(four instances) [Rule 120, Sec. 7]
Judgment becomes final:
1) After the lapse of the period for perfecting an
appeal;
2) When the sentence has been partially/totally
satisfied or served;
3) The accused has expressly waived in writing his
right to appeal, or
4) When the accused applies for probation, and
thereby waives right to appeal. [Regalado]
Exception: cases where death penalty was
imposed—automatic review; judgment does not
become final after the promulgation and by the
TC‘s issuance of a commitment order.
 Before the judgment becomes final, the TC has
plenary power to make, either on motion or
motu proprio, such amendment or alterations as
it may deem best, within the frame of law, to
promote the ends of justice.
 After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors.
When judgment of acquittal becomes final
 It is immediately final and executory.
 The State may not seek its review without
placing the accused in double jeopardy.
XIII. NEW TRIAL OR
RECONSIDERATION
1. Grounds for New Trial
2. Grounds for Reconsideration
3. Requisites before a new trial may be
granted on ground of newly discovered
evidence
4. Effects of granting a new trial or
reconsideration
5. Application of Neypes Doctrine in Criminal
Cases
1. Grounds for New Trial [Rule 121,
Sec. 2]
 That errors of law or irregularities prejudicial to
the substantial rights of the accused have been
committed during the trial;
General rule: Error of the defense counsel in
the conduct of the trial is neither an error of
law nor an irregularity.
Exception: Acquittal would in all probability
have followed the introduction of certain
testimony which was not submitted at the trial
under improper or injudicious advice of
incompetent counsel.
- Irregularities must be with such seriousness
as to affect prejudicially the substantial
rights of the accused.
 That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced
and admitted would probably change the
judgment.
2. Grounds for Reconsideration
 Errors of law or fact in the judgment, which
requires no further proceedings. [Rule 121, Sec.
3]
Rationale: To afford the TC the opportunity to
correct its own mistakes and to avoid
unnecessary appeals.
3. Requisites before a new trial may
be granted on ground of newly
discovered evidence
 REMEDIAL LAW REVIEWER

Requisites: That the evidence - [Jose v. CA (1997)] GROUND EFFECT COURT MAY
a) Was discovered after the trial; Newly- Evidence Allow
b) Could not have been discovered and produced at discovered already introduction of
the trial even with the exercise of reasonable evidence adduced shall other such 55
diligence. [US v. Pico (1982)] stand and the evidence in the
 Burden of proving this is on the accused. newly- interest of
[US v. Torrente (1922)] discovered and justice
c) Is material, not merely such other
cumulative/corroborative/impeaching; and evidence shall
d) Is of such weight that it would probably change be taken and
the judgment if admitted. considered
 It must be of weighty influence and will together with
affect the result of the trial. [People v. the evidence
Alfaro (2003)] already in the
record
Exceptions:
 ―Interest of justice‖ as gauge for introduction of Remedy against GAD in granting MNT/MFR:
new evidence Certiorari or prohibition. Otherwise, the prosecution
- In People v. Almendras (2003), the court may no longer have opportunity to question the
ruled that a motion for a new trial may be order if accused is acquitted after a new trial is
granted on a ground not specifically conducted (because there will be double jeopardy).
provided in the rules, provided that it is [Luciano v. Estrella (1970)]
sought in the interest of justice. In that
case, the relief of a new trial was granted 5. Application of Neypes Doctrine in
to a client who has suffered by reason of
his/her counsel‘s gross mistake and Criminal Cases
negligence.
 When there is variance in 2 reports Fresh Period to Appeal after Denial of MNT/MR.
- In People v. del Mundo (1996), the court Henceforth, this ―fresh period rule‖ shall also apply
allowed the presentation in a new trial of a to Rule 40 governing appeals from the Municipal
police report, not new, and which could Trial Courts to the Regional Trial Courts; Rule 42 on
have been discovered with due diligence, petitions for review from the Regional Trial Courts to
because the evidence contained in such was the Court of Appeals; Rule 43 on appeals from quasi-
at such variance with the health officer‘s judicial agencies to the Court of Appeals and Rule 45
report at trial, that its contents raised governing appeals by certiorari to the Supreme
doubts to the guilt of the accused. Court. (Neypes v. CA, 2005)

4. Effects of granting a new trial or

reconsideration [Rule 121, Sec. 6] XIV. APPEAL
1. Effect of an Appeal
In all cases: 2. Where to appeal
 The original judgment set aside or vacated; 3. How appeal taken
 A new judgment is rendered accordingly.
4. Effect of appeal by any of several accused
 Specific effects when granted upon different
grounds: 5. Grounds for dismissal of appeal

GROUND EFFECT COURT MAY 1. Effect of an Appeal

Errors of law or All proceedings Allow An appeal in a criminal proceeding throws the whole
irregularities and evidence introduction of case open for review and it becomes the duty of the
committed affected shall additional appellate court to correct an error as may be found
during the trial be set aside evidence in the in the appealed judgment, WON it is made the
and taken interest of subject of assignment of errors. [People v. Calayca
anew justice (1999)]

If error or 2. Where to appeal [Rule 122, Sec. 2]

irregularity
goes into the APPEAL IN FOR CASES DECIDED BY
jurisdiction,
The RTC MTC/MeTC/MCTC
the entire
The RTC or MTC/MeTC/MCTC (if it is
proceeding is
Sandiganbayan government duty-related - i.e.
void and must
filed under EO 1, 2, 4 and 14-A)
be set aside
The CA RTC (if it involves questions of fact
and of law)
 REMEDIAL LAW REVIEWER

APPEAL IN FOR CASES DECIDED BY 2) Criminal cases governed by the Revised Rules on
The SC RTC Summary Procedure.
56 a) If it involves questions of law
only  Offenses falling under the MTC/MCTC‘s
b) If it involves constitutionality Jurisdiction: [Salcedo v. Nobles-Bans (1985)]
or validity of any - Notwithstanding the uniform procedure
treaty/law/ordinance/EO/ rule, if the offense falls under the
regulation or the jurisdiction jurisdiction of the MTC/MCTC,
of the inferior court complaint/information may be filed directly
c) In criminal cases involving with said courts or with the City
offenses for which the penalty Prosecutor‘s Office.
imposed is death or life  Offenses falling under the MeTC‘s Jurisdiction:
imprisonment [Salcedo v. Nobles-Bans (1985)]
d) Other offenses, which, - In Metro Manila and other chartered cities,
although not so punished, criminal cases shall be commenced only by
arose out of the same information; thus, the complaint may be
occurrence or which may have filed only with the Office of the City
been committed by the Prosecutor
accused on the same occasion, - If the case is directly filed with the court,
as that giving rise to the more the case should not be dismissed. The court
serious offense should just refer it to the City Prosecutor
The SC CA or Sandiganbayan for the filing of the corresponding
information.
3. How appeal taken  Cases governed by the Revised Rules on
Summary Procedure:
[Rule 122, Sec. 6 and 9] a) Violations of traffic laws/ rules/
regulations;
b) Violations of the rental law;
When appeal to be taken
c) Violations of municipal/city ordinances;
Within 15 days from promulgation of the judgment
d) Violations of BP 22;
or from notice of the final order appealed from.
e) All other criminal cases where the penalty
is imprisonment not exceeding 6 months or
The period to appeal shall be suspended from the
a fine not exceeding P1,000 or both,
time a MNT or MR is filed until notice of the order
irrespective of other imposable penalties
overruling the motion has been served upon the
(accessory or otherwise) or of the civil
accused or his counsel.
liability arising from it.
  However, in offenses involving damage to
Transmission of record to RTC property through criminal negligence where
Within 5 days from perfection of the appeal, the imposable fine does not exceed P 10,000, the
COC shall transmit the original record to the Uniform Procedure Rule shall govern (i.e. it is
appropriate RTC. not governed by Revised Rules on Summary
 Procedure).
Notification of parties  Revised Rules on Summary Procedure also does
Upon receipt of the complete record, TSN and not apply to criminal cases where the offense
evidence of the case, the RTC COC shall notify the charged is necessarily related to another
parties of such fact. criminal case subject to the ordinary procedure.

Submission of memoranda/briefs The Revised Rules on Summary
Within 15 days from receipt of said notice, the
Procedure
parties may submit memoranda/briefs, or may be
required by the RTC to do so.
I. Commencement of action [Sec. 11]

Decision  The filing of the criminal case shall be either by
After submission of such memoranda/briefs or upon complaint or by information.
the expiration of the period to file the same, the - However, in Metropolitan Manila and in
RTC shall decide the case on the basis of the entire chartered cities, commencement shall be
record of the case and of such memoranda/briefs as only be by information.
may have been filed. Exception: When the offense cannot be
prosecuted de oficio.
[Rule 123, Sec. 1]  The complaint/information shall be
General rule: The procedure to be observed in the accompanied by the affidavits of the complaint
MeTC/MTC/MCTC shall be the same as that in the and of his witnesses.
RTC. - No. of copies = [No. of accused + 2 copies
for the court‘s files]
Exceptions: - If the required no. of copies is not complied
1) Where a particular provision applies only to with within 5 days from date of filing, the
either of said courts; case may be dismissed.

II. Referral to Lupon [Sec. 18]
 If the case requires referral to the Lupong
Tagapamayapa under PD 1508 and this is not
complied with, it shall be dismissed without
prejudice. The case may be revived only after
compliance with the requirement.
 Exception: Criminal cases of warrantless arrest.
III. Court’s duty [Sec. 12]
 If commenced by complaint:
- Based on the complaint/ affidavits/
evidence, the court may dismiss the case
outright for being patently without
basis/merit and order the release of the
accused (if in custody).
 If commenced by information or if not dismissed
according to #1:
- The court shall order the accused to submit
his counter-affidavit and the affidavits of
his witnesses as well as any evidence on his
behalf (with copies served on the
complainant/prosecutor) not later than 10
days from receipt of order.
- The prosecution may file reply affidavits
within 10 days after receipt of the counter-
affidavits.
IV. Prohibited pleadings and motions [Sec. 19]
(1) MTD;
 Exception: On grounds of either:
a) LOJ over subject matter;
b) Failure to refer to Lupon.
(2) Motion for bill of particulars;
(3) MNT/MR or motion for re-opening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension to file;
(6) Memoranda;
(7) Petition for certiorari/mandamus/prohibition
against any interlocutory order;
(8) Motion to declare defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) 3rd-party complaints;
(12) Interventions.
V. Arraignment [Sec. 13]
 If the court finds no cause/ground to hold the
accused for trial, it shall order the dismissal of
the case; otherwise, the court shall set the case
for arraignment and trial.
 If the accused is in custody for the crime
charged, he shall be immediately arraigned. If
he enters a plea of guilty, he shall forthwith be
sentenced.
VI. Preliminary conference [Sec. 14]
 Before conducting the trial, the court shall call
the parties to a preliminary conference for:
(1) Stipulation of facts;
- Refusal/failure to stipulate shall not
prejudice the accused.
REMEDIAL LAW REVIEWER
(2) Plea bargaining;
- No admission by the accused shall be
used against him unless reduced to
writing and signed by the accused and 57
his counsel.
(3) Other matters to clarify the issues and to
ensure a speedy disposition of the case.
VII. Trial [Sec. 15]
 The submitted affidavits shall constitute the
direct testimonies of the witnesses/affiants.
They shall be subject to cross, re-direct and re-
cross examinations.
 If the affiant fails to testify, his affidavit will
not be considered as competent evidence for
the party presenting his affidavit. However, the
adverse party may utilize his affidavit for any
admissible purpose.
 A witness cannot testify unless his affidavit was
previously submitted to the court according to
Sec. 12.
- Exception: On rebuttal or sur-rebuttal.
 If a party wishes to present additional
affidavits/counter-affidavits, he should so
manifest (and his purpose) during the
preliminary conference.
 If the court allows the additional
affidavits/counter-affidavits, they shall be
submitted to the court and served on the
adverse party within 3 days from the
termination of the preliminary conference.
 If it is the prosecution who submits additional
affidavits, the defense may file counter-
affidavits thereto (copy furnished the
prosecution) within 3 days from service.
VIII.Arrest of the accused [Sec. 16]
 The court shall not order the arrest of the
accused.
- Exception: For failure to appear whenever
required.
 Release of the accused shall be by bail or on
recognizance.
IX. Judgment [Sec. 17]
If trial was conducted, the court shall promulgate
judgment within 30 days after termination of trial.
X. Appeal [Sec. 21]
Judgment may be appealed to RTC per Sec. 22, BP
129.
Procedure in the CA
a. Parties and title [Rule 124, Sec. 1]
 In all criminal cases appealed to the CA:
- APPELLANT – The party appealing;
- APPELLEE – The party adverse to the
appellant.
 The title of the case shall remain as it was in
the court of origin (i.e. People v. John Doe).
 REMEDIAL LAW REVIEWER
b. Appointment of counsel de oficio [Rule 124,
Sec. 2]
58
The counsel de oficio cannot dismiss the appeal and
[US v. Lafuente (1918)] neither can he admit findings
of fact by the TC without the consent of his client
[People v. Isaac (1952)].
c. Brief for appellant [Rule 124, Sec. 3]
 Appellant shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service
of 2 copies on the appellee.
 It shall be filed within 30 days from receipt by
the appellant (his counsel) of the CA clerk of
court‘s notice that the evidence is already
attached to the record.
 Purpose: To show grounds for reversal of
judgment and to point out the
errors/irregularities in the lower court‘s
proceedings.
d. Brief for appellee [Rule 124, Sec. 4]
 Appellee shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service
of 2 copies on the appellant.
 It shall be filed within 30 days from receipt of
the appellant‘s brief.
 Purpose: To meet/refute the appellant‘s
submissions.
e. Reply to appelle’s brief [Rule 124, Sec. 4]
 Appellant may (i.e. optional) file a reply brief
covering matters raised in the appellee‘s brief
but not in the brief of the appellant.
 It must be filed within 20 days from receipt of
the appellee‘s brief.
f. Extension of time for filing briefs [Rule 124,
Sec. 5]
 General rule: Extension of time for the filing of
briefs is not allowed
- Exception: for good and sufficient cause
 It is sought through a motion for extension,
which must be filed before the expiration of the
time sought to be extended.
 Grant of extension rests on the court‘s
discretion. [Piedad v. Batuyong (1974)]
 Court may grant as many extensions as may be
asked. [Gregorio v. CA (1976) ]
g. Form of briefs [Rule 124, Sec. 6]
 Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
 Mimeographed copies are not allowed.
h. Contents of brief
The briefs in criminal cases shall have the same
contents as provided in Rule 44, Sec. 13-14. [Rule
124, Sec. 7]
1. Appellant’s brief:
[Rule 44, Sec. 13]
a) SUBJECT INDEX – Digest of the arguments and
page references, and a table of: (1) cases
alphabetically arranged; and (2) books and
statutes cited, with references to the pages
where they are cited.
b) ASSIGNMENT OF ERRORS – Errors urged
separately, distinctly and concisely; stated
without repetition and numbered consecutively.
c) STATEMENT OF THE CASE – Clear and concise
statement of the nature of the action, a
summary of the proceedings, the appealed court
rulings and orders, the nature of the judgment
and any other matters necessary to an
understanding of the nature of the controversy,
with page references to the record.
d) STATEMENT OF FACTS – Clear and concise
narrative statement of the facts admitted by
both parties and of those in controversy,
together with the substance of the related
proof, in sufficient detail to make it clearly
intelligible and with page references to the
record.
e) ISSUES – Clear and concise statement of issues of
fact/law submitted to the court for its
judgment.
f) ARGUMENTS – Appellant‘s arguments on each
assignment of error, with page references to the
record. The authorities relied upon shall be
cited by the page of the report at which the
case begins and the page of the report on which
the citation is found.
g) RELIEF – Specification of the order/judgment
which the appellant seeks. In cases not brought
up by record on appeal, the appellant‘s brief
shall contain (as an appendix) a copy of the
judgment or final order appealed from.
h) Attachment: Certified true copy of the decision
or final order appealed from. [Rule 124, Sec. 7]
2. Appellee’s brief:
[Rule 44, Sec. 14]
a) Subject index.
b) STATEMENT OF FACTS – Statement that appellee
accepts the statement of facts in the
appellant‘s brief; or COUNTER-STATEMENT OF
FACTS – Points out the
insufficiencies/inaccuracies appellee believes to
exist in the appellant‘s statement of facts, with
references to the supporting pages of the
record. Matters in the appellant‘s statement of
facts should not be repeated.
c) ARGUMENTS – Appellee‘s arguments on each
assignment of error, with page references to the
record. The authorities relied upon shall be
cited by the page of the report at which the
case begins and the page of the report on which
the citation is found.
i. Dismissal of appeal for abandonment or failure
to prosecute [Rule 124, Sec. 8]
Grounds:
 Appellant fails to file his brief within the
prescribed time;
Exception: Where the appellant is
represented by a counsel de oficio.

- If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal
should not be dismissed.
o However, dismissal is proper despite lack
of notice:
a) If appellant has filed a MFR or motion
to set aside the order dismissing the
appeal, in which he stated the reason
why he failed to file his brief on time
and the appellate court denied the
motion after considering reason.
[Baradi v. People (1948)]
b) If appeal was dismissed without notice
but appellant took no steps to have
the appeal reinstated. Such action
amounts to abandonment. [Salvador
v. Reyes (1949)]
 If the appellant escapes from
prison/confinement, jumps bail or flees to a
foreign country during the pendency of the
appeal.
- Rationale: Escape of appellant during the
pendency of the appeal implies a
withdrawal of the appeal. Hence, judgment
of the TC becomes final. [US v. Ravidas
(1905)]
- Likewise, when accused flees after the case
has been submitted for decision, he is
deemed to have waived his right to appeal.
[People v. Ang Gioc (1941)]
o Exception: Appeal will not be dismissed
despite escape:
a) In one exceptional case, the appellant
took advantage of a mass jailbreak
(because, according to his counsel de
oficio he was innocent and wanted to
elude an unjust punishment) but was
recaptured 2 hours after, the SC said
circumstances were not sufficient to
justify dismissal of the appeal.
[People v. Valencia (1949)]
b) If there was absolutely no evidence
against the accused as found by the
appellate court, he should be
acquitted in order to prevent an
injustice by technicalities. [People v.
Buenaventura (1994)]
c) In case of automatic review. [People v.
Cornelio (1971)]
 CA may dismiss the appeal upon appellee‘s
motion or motu proprio.
Prompt disposition of appeal
[Rule 124, Sec. 9]
 Appeals of accused who are under detention are
given precedence in their disposition over other
appeals.
 The CA shall hear and decide the appeal at the
earliest practicable time with due regard to the
parties‘ rights.
 The accused need not be present in court during
the hearing of the appeal.
- Proceedings on appeal will not be stayed in
a criminal case on account of the absence
of the accused as his presence is not
necessary at said hearing. [US v. Lewis]
REMEDIAL LAW REVIEWER
Reversal / modification of judgment on appeal
[Rule 124, Sec. 10]
 General rule: No judgment shall be 59
reversed/modified.
- Exception: When the CA, after an
examination of the record and of the
parties‘ evidence, is of the opinion that
error was committed and such error
injuriously affected the appellant‘s
substantial rights.
 When it involves credibility of witnesses,
appellate courts will not generally disturb the
TC‘s findings.
 Rationale: The TC is in a better position to
decide the question, having seen and heard the
witnesses themselves. [People v. Cabiling
(1976)]
Scope of CA’s judgment
[Rule 124, Sec. 11]
The CA may:
1) Reverse/affirm/modify the judgment;
2) Increase/reduce the penalty imposed by the TC;
3) Remand the case to the RTC for new trial or
retrial;
4) Dismiss the case.
- When the accused appeals from the
sentence of the TC, he waives the
constitutional safeguard against double
jeopardy and throws the whole case open to
the review of the appellate court, which is
then called upon to render such judgment
as law and justice dictate, WON favorable
to the accused and WON made the subject
of assignment of errors. [Ko Bu Lin v. CA
(1982)]
CA’s power to receive evidence
[Rule 124, Sec. 12]
 The CA has power to try cases and conduct
hearings, receive evidence and perform any and
all acts necessary to resolve factual issues in
cases:
1) Falling within its original jurisdiction;
2) Involving claims for damages arising from
provisional remedies;
3) Where the court grants a new trial based
only on the ground of newly-discovered
evidence.
 CA‘s trials and hearings must be continuous and
completed within 3 months, unless extended by
the Chief Justice.
Quorum in the CA
[Sec. 11, BP 129]
 3 CA Justices constitute a quorum for the
sessions of a division.
 The unanimous vote of the 3 Justices of a
division is necessary for the pronouncement of a
judgment or final resolution
 Decision is reached through a consultation
before the writing of the opinion by a member
of the division.
 If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee to
designate 2 additional Justices to sit temporarily
 REMEDIAL LAW REVIEWER
with them. They shall then form a special
division of 5 members.
60 - The concurrence of a majority of that
special division is necessary for the
pronouncement of a judgment or final
resolution.
- Designation of the additional Justices shall
be made strictly by raffle and rotation
among all other CA Justices.
Certification or appeal of cases to the SC
[Rule 124, Sec. 13]
1) If the CA finds that death penalty should be
imposed:
 AUTOMATIC REVIEW – CA shall render
judgment but refrain from making an entry
of judgment. It shall then certify the case
and elevate its entire record to the SC for
review. The accused does not have to do
anything.
 Note: Death penalty has been abolished.
2) If the judgment also imposes a lesser penalty for
offenses committed on the same occasion or
which arose from the same occurrence that gave
rise to the more severe offense for which death
is imposed, and the accused appeals:
 The appeal shall be automatically included
in the case certified for review in the SC
3) If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
 It shall render and enter judgment imposing
such penalty.
 Appeal here is not automatic. The accused
has to file a notice of appeal with the CA.
Judgment transmitted and filed in TC
 When the CA‘s entry of judgment is issued, a
certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken. [Rule 124, Sec. 17]
 This copy of the entry serves as the formal
notice to the court from which the appeal was
taken of the disposition of the case in the
appellate court, so that the judgment may be
executed and/or placed or noted in the proper
file.
MNT during the pendency of appeal in the CA
[Rule 124, Sec. 14]
 Appellant may file MNT on the ground of newly
discovered evidence material to his defense any
time:
- After the appeal from the lower court has
been perfected, but
- Before the CA judgment convicting him
becomes final.
 The motion shall conform to Rule 121, Sec. 4.
 If the CA grants a MNT, it may either: [Rule 124,
Sec. 15]
1) Conduct the hearing and receive evidence;
2) Refer the trial to the court of origin.
MFR of CA judgment
[Rule 124, Sec. 16]
 MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party.
 The mittimus shall be stayed during the MFR‘s
pendency.
- General rule: No party shall be allowed a
2nd MFR of a judgment or final order. [Sec.
11, BP 129]
- Exception: Where the 1st MFR resulted in a
reversal or substantial modification of the
original decision or final resolution.
In this case, the party adversely
affected by the reversal/modification may
himself file a MFR of the latest judgment of
the court, because with respect to him, said
motion is a first pleading of that nature.
Applicable civil procedure rules
[Rule 124, Sec. 18]
Provisions of Rules 42, 44-46 and 48-56 relating to
procedure in the CA and the SC in original and
appealed civil cases, shall be applied to criminal
cases insofar as they are applicable and not
inconsistent with the provision of this Rule.
Procedure in the SC
a. Uniform procedure
[Rule 125, Sec. 1]
General rule: The procedure in the SC in original
and in appealed cases shall be the same as in the
CA.
Exception: If the Constitution or law provides
otherwise.
b. What the SC may do on review
 In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, WON they were
assigned as errors. [People v. Olfindo (1924)]
 It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed. [Macali v. Revilla (1926)]
 It may also assess and award civil indemnity.
[Quemel v. CA (1946)]
c. Ways by which a case may reach the SC
i. Automatic review
 It is not a matter of right on the part of the
accused, but a matter of law.
 Hence, the escape of the accused does not
relieve the SC of the burden of
automatically reviewing the case. [US v.
Laguna (1910)]
 When available:
- When the RTC judgment upon the
accused imposes death penalty. [Rule
122, Sec. 10]
- When the RTC decision is appealed to
CA and the latter is of the opinion that
the penalty imposed should be death or
life imprisonment. CA judgment is
imposed but no entry of judgment is
made; instead, the case is certified and
the entire record is elevated to the SC
for review. [Rule 124, Sec. 13]

ii. Ordinary appeal
When available:
 When the penalty imposed by the RTC
is life imprisonment, decision is
appealable directly to the SC by filing a
notice of appeal with the RTC. [Rule
122, Sec. 3]
 When an accused was charged with 2 or
more offenses committed on the same
occasion or arising out of the same
occurrence, and in one of those 2
cases, he was sentenced to life
imprisonment or death penalty, the
appeal with respect to the others,
though punished with a lesser penalty,
is to the SC. [Rule 122, Sec. 3]
 When the penalty of reclusion perpetua
or death is imposed on some of the
defendants and a lesser penalty on the
other co-defendants, on account of
their varying degree of participation in
the commission of the offense or due to
the presence of modifying
circumstances, in which case the
decision on the non-life convicts is
directly appealable to the SC. [People
v. Carino]
 In these cases, the SC reviews not only
errors of law but also the findings of
fact by the TC.
iii. Petition for review on certiorari
 When available:
- When constitutionality/validity of any
treaty, executive agreement, law,
ordinance or executive order or
regulation is in question.
o When validity of law is questioned
by an accused convicted under it
by the TC, the SC cannot review
the evidence or pass upon any
other question of law which may
appear on the record, but will only
confine itself to the question of
the in/validity of that law.
[Trinidad v. Sweeney (1904)]
- When the jurisdiction of any inferior
court is in issue.
- When only an error or question of law is
involved.
- On decisions of the CA and the
Sandiganbayan.
o As a rule, review here is limited to
errors of law.
 General rule: Certiorari is used to correct
only errors of jurisdiction and not errors of
judgment of an inferior court. For errors of
judgment, ordinary appeal is available.
Exception: Cases where certiorari is
granted despite existence of the remedy of
appeal:
1. Where public welfare and advancement
of public policy so dictate.
2. Where the broader interests of justice
so require.
REMEDIAL LAW REVIEWER
3. Where the orders complained of were
found to be completely null and void.
4. Where appeal was not considered as
the appropriate remedy. 61
d. Failure to specify appellate court
Failure of appellant to specify in his notice of appeal
the court to which the appeal is being made is not
fatal. [RA 296]
e. Erroneous choice / mode of appeal
 In the case of People v. Resuello (1969), the
contention of the adverse party that the
ordinary appeal filed by appellant shall be
dismissed because the proper remedy is petition
for review on certiorari (only questions of law
were involved) was rejected.
 The SC said that in cases similarly situated, and
as long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without
prejudice to requiring the appellant to file the
necessary petition for review on certiorari which
is also a form of appeal.
f. Review of CA decisions
 The procedure for the review by the SC of CA
decisions on criminal shall be the same as in
civil cases. [Rule 125, Sec. 2]
 General rule: The SC‘s appellate jurisdiction in
cases brought to it from the CA is limited to
reviewing and revising the errors of law incurred
by the latter.
- The CA‘s findings of fact are final.
- If an appeal in the SC involves questions of
facts, the SC has no jurisdiction and should
dismiss appeal. [Guico v. Mayuga (1963)]
- Exception: [Vargas v. CA; Napolis v. CA
(1972)]
o When the conclusion is a finding founded
entirely on
speculations/surmises/conjectures;
o When the inference made is manifestly
mistaken/absurd/impossible;
o When there is GAD;
o When the judgment is based on a
misapprehension of facts;
o When the findings of facts are conflicting;
o When the CA, in making its findings, went
beyond the issues of the case and the
same are contrary to the admissions of
both appellant and appellee.
g. Decisions if opinion is equally divided
[Rule 125, Sec. 3]
 When the SC en banc is equally divided in
opinion or the necessary majority cannot be had
on WON to acquit the appellant, the case shall
again be deliberated upon.
- If no decision is reached after re-
deliberation, the lower court‘s judgment of
conviction shall be reversed and the
accused is acquitted.
 If case is decided by a division of the SC whose
members are equally divided, the case shall be
heard and decided by the SC en banc.
 REMEDIAL LAW REVIEWER
h. Constitutional provisions on SC composition
[Art. 8, Sec. 4, Consti]
62  SC Composition: 1 Chief Justice + 14 Associate
Justices.
 SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
 No doctrine or principle of law laid down by the
SC in a decision rendered en banc or in division
may be modified/reversed.
4. Effect of appeal by any of several
accused [Rule 122, Sec. 11]
 General rule: An appeal taken by one or more
of several accused shall not affect those who did
not appeal.
- As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
- As to the co-accused who did not appeal,
the judgment of the TC insofar as it relates
to him becomes final and the appellate
court has no power to interfere with it.
[Salvatierra v. CA (1996)]
Exception: Insofar as the judgment of the
appellate court is favorable and applicable to
those who did not appeal or who withdrew his
appeal. [People v. Escano]
 The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of
the judgment or order appealed from.
5. Grounds for dismissal of appeal
When appeal by the people will not lie
 The People/State cannot appeal when it will put
the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a
new and independent cause but extends also to
appeal in the same case by the prosecution
after jeopardy had attached. [Republic v. CA]
 The prosecution cannot appeal from a judgment
of acquittal
- Rationale: A verdict of that nature is
immediately final and to try on the merits,
even in an appellate court, places the
accused in double jeopardy. [Central Bank
v. CA (1989)]
 Dismissal of case upon filing of demurrer by the
accused was held to be final even though based
on erroneous interpretation of the law. Hence,
an appeal therefrom by the prosecution would
constitute double jeopardy. [US v. Kilayko
(1916)]
 Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable. [People v. Duran (1960)]
 An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the
trial court or to include in a judgment a penalty
erroneously omitted. [People v. Paet (1956)]
 The preclusion against appeal by the State from
judgments or final orders having the effect of
acquittal, applies even though accused did not
raise question of jeopardy. [People v. Ferrer
(1956)]
XV. SEARCH AND SEIZURE
1. Nature of search warrant
2. Distinguish from warrant of arrest
3. Application for search warrant, where
filed
4. Probable Cause
5. Personal examination by judge of the
applicant and witnesses
6. Particularity of place to be searched and
things to be seized
7. Personal property to be seized
8. Exceptions to search warrant
requirement
a. Search incident to lawful arrest
b. Consented search
c. Search of moving vehicle
d. Checkpoints; body checks in airport
e. Plain view situation
f. Stop and frisk situation
g. Enforcement of custom laws
9. Remedies from unlawful search and
seizure
1. Nature of search warrant
Concept
Definition
It 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 in the
warrant and bring it before the court. (Rule 126,
Sec. 1)
If it is without the judge‘s signature: it is fatally
defective.
Nature of a Search Warrant
A search warrant (SW) is in the nature of a criminal
process akin to a writ of discovery, employed by the
state to procure relevant evidence of a crime.
[Malaloan v. CA (1994)]
 A search warrant is in the nature of a criminal
process, and may be invoked only in furtherance
of public prosecutions;
 Search warrants have no relation to civil process
or trials; and
 They are not available to individuals in the
course of civil proceedings;
 It is not for the maintenance of any mere
private right;
 It is interlocutory in character – it leaves
something more to be done, which is the
determination of the guilt of the accused.
 REMEDIAL LAW REVIEWER

character of the articles procured [Rodriguez v.

Constitutional Safeguard against Unreasonable Villamiel (1937)]
Search and Seizures
Constitutional Protection is Against Public 63
 Rule 126 is an implementation of Art. III, Sec. 2 Officers’ Acts, Not Private Persons
of the 1987 Constitution.
- The right of the people to be secure in their People v. Marti (1991); also People v. Bongcarawan
persons / houses / papers / effects against (2002): Search and seizure clauses are restraints
unreasonable searches and seizures of upon the government and its agents, not upon
whatever nature or for any purpose shall private individuals.
not be violated.
- No search warrant or warrant of arrest In the case at bar, the evidence was primarily
shall issue except upon probable cause to discovered by a private person, acting in a private
be determined personally by the judge after capacity and without the intervention and
the examination under oath/affirmation of participation of state authorities.
the complaint and the witness he may
produce, and particularly describing the The private person made an inspection as part of a
place to be searched, and the reasonable standard operating procedure / a
things/persons to be seized. (Art. III, Sec. precautionary measure before delivery of packages
2, 1987 Const.) to the Bureau of Customs. The mere presence of the
- The privacy of communication and NBI agents did not convert the reasonable search
correspondence shall be inviolable except into a warrantless search and seizure proscribed by
upon lawful order of the court, or when the constitution.
public safety/order requires otherwise, as
prescribed by law. (Art. III, Sec. 3, 1987 However, if the private person is acting upon orders
Const.) of government officials, the principle of agency
applies, because in fact such private person is acting
 Exclusionary rule: Any evidence obtained in in the interest of government, and is therefore
violation of this or the preceding section shall subject to the prohibition against unreasonable
be inadmissible for any purpose in any searches and seizures.
proceeding. (Art. III, Sec. 3, Par. 2, 1987
Const.) General rule: Search of property is unreasonable
unless it has been authorized by a valid search
 Doctrine of attenuation: Despite the illegality warrant.
in obtaining evidence, such evidence may be
admissible if the connection between the Exceptions: Valid warrantless searches.
evidence and the illegal method is sufficiently
remote or attenuated so as to dissipitate the 2. Distinguish from warrant of arrest
taint [Wong Sun v. US (1963)]
Search Warrant Warrant of Arrest
 Rationale Will be issued only upon The witness must be
- What is sought to be guarded is man‘s probable cause in examined personally by
prerogative to choose who is allowed entry
connection with one the judge.
to his residence. His privacy must not be
specific offense to be
disturbed by the government, except in
determined by the judge
cases of overriding social need, and then
or such other responsible
only under the stringent procedural officers authorized by
safeguards. [Villanueva v. Querubin (1972)] law.
- A man‘s house is his castle. However, he
Examination under oath Examination must be
may not use his castle as a citadel for
or affirmation of the under oath.
aggression against his neighbors, nor can he
complaint and the
within its walls create such disorders as to
witnesses he may
affect their peace. [US v. Vallejo (1908)]
produce.
It must particularly Examination must be
 This constitutional guarantee is NOT a blanket
describe the place to be reduced to writing in the
prohibition against ALL searches and seizures. It
searched and the things form of searching
operates only against ―unreasonable‖ searches
to be seized. questions and answers.
and seizures.
Generally served in the May be made at any time
day time, unless there of the day or night.
 What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely be a direction in the
a judicial question, determinable from a warrant that it may be
consideration of the circumstances involved, served at any time of the
including the purpose of the search, the day or night.
presence or absence of probable cause, the Valid for ten (10) days. Does not expire (No
manner in which the search and seizure was terminal life).
made, the place or thing searched, and the
 REMEDIAL LAW REVIEWER
3. Application for search warrant,
where filed
64
Application
Where filed (Rule 126, Sec. 2)
 Any court within whose territorial jurisdiction
the crime was committed.
 For compelling reasons stated in the
application:
- If the place of the commission of the crime
is known, any court within the judicial
region where the crime was committed.
- Any court within the judicial region where
the warrant shall be enforced.
 However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.
Exception:
Malaloan v. CA (1994) subject to Rule 126, Sec. 1
 If a case has not yet been filed, it may be filed
in a court with a territorial jurisdiction other
than that where the illegal articles sought to be
seized are located.
 This is aside from the consideration that a
criminal action may be filed in different venues
under the rules for continuing crimes, or where
different trial courts have concurrent original
jurisdiction over the same criminal offense.
 The ruling may be applicable:
- When the crime is found to have been
committed in a particular place WITHIN the
judicial region.
- Where a particular court, by reason of its
territorial area, has jurisdiction.
- And where prosecutor, who filed the
complaint or information in said court, has
territorial jurisdiction different from the
court within the same judicial region which
actually issued the warrant.
Search guidelines under Circular No. 19, s. 1987
 All applications for search warrants relating to
violations of:
- The Anti-Subversion Act;
- Crimes against public order as defined in
the RPC;
- Illegal possession of firearms and/or
ammunition; and
- Violations of the Dangerous Drugs Act of
1972, as amended,
shall no longer be raffled and shall immediately
be taken cognizance of and acted upon by the
Executive Judge of the Regional Trial Court,
Metropolitan Trial Court, and Municipal Trial
Court under whose jurisdiction the place to be
searched is located.
 In the absence of the Executive Judge, the Vice-
Executive Judge shall take cognizance of and
personally act on the same. In the absence of
the Executive Judge or Vice-Executive Judge,
the application may be taken cognizance of and
acted upon by any judge of the Court where the
application is filed.
 Applications filed after office hours, during
Saturdays, Sundays and holidays, shall likewise
be taken cognizance of and acted upon by any
judge of the court having jurisdiction of the
place to be searched, but in such cases the
applicant shall certify and state the facts under
oath, to the satisfaction of the judge, and its
issuance is urgent.
 Any judge acting on such application shall
immediately and without delay personally
conduct the examination of the applicant and
his witnesses to prevent the possible leakage of
information. He shall observe the procedures,
safeguards, and guidelines for the issuance of
search warrants provided for in this Court's
Administrative Circular No. 13, dated October 1,
1985.
A.M. No. 99-10-09-SC (Resolution Clarifying the
Guidelines on the Application for and
Enforceability of Search Warrants)
 The following are authorized to act on all
applications for search warrants involving
heinous crimes, illegal gambling, dangerous
drugs and illegal possession of firearms: The
Executive Judge and Vice Executive Judges of
the RTC of Manila and Quezon City filed by the
PNP, NBI, the Presidential Anti-Organized Crime
Task Force (PAOC-TF) and the Reaction Against
Crime Task Force (REACT-TF) with the RTC of
Manila and QC.
 The applications shall be personally endorsed by
the Heads of said agencies, for the search of
places to be particularly described therein, and
the seizure of property or things as prescribed in
the Rules of Court, and to issue the warrants of
arrest, if justified, which may be served in the
places outside the territorial jurisdiction of said
courts.
 The authorized judges shall keep a special
docket book listing the details of the
applications and the results of the searches and
seizures made pursuant to the warrants issued.
 Although A.M. No. 99-10-09-SC provides a
personal endorsement of the application by the
―Heads‖ of the agencies mentioned, it was held
that nothing in this rule prohibits such heads
from delegating the ministerial duty of
endorsing the application for search warrants to
their assistant heads, as long as it is not
inconsistent with law (Admin. Code). [Marimla
v. People (2009)]
Substance of application
Requisites for issuing a search warrant
A SW shall not issue except:
a. Upon probable cause in connection with one
specific offense;
b. To be determined personally by the judge;
c. After examination under oath or affirmation of
the complainant and the witness he may
produce;
d. Particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines. (Rule 126, Sec. 4)
 Absence of the requisites will cause the
nullification of the SW.

 If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause (PC) to believe that they
exist, he shall issue the SW, which must be
substantially in the form prescribed by the
Rules. (Rule 126, Sec. 6)
 In issuing or not issuing SWs, judges act
according to the evidence presented to them,
and orders of the judge on the matter are not
final and do not constitute res judicata. [Cruz v.
Dinglasan (1949)]
 The denial of a search warrant on the
insufficiency of the affidavit and deposition is
not a bar to further proceedings, nor is the
issuance of the warrant and its subsequent
discharge res judicata as to the right to the
warrant. [Cruz, supra]
 Courts have declared invalid SWs that did not
comply with the requisites found in the 1987
Const. (and restated in the rules). [Lim v. de
Leon (1975)]
 A court‘s disregard for the requirements
constitutes grave abuse of discretion which
may be remedied by a petition for certiorari
under Rule 65.
Issuance and form of search warrant
 It 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 in
the warrant and bring it before the court. (Rule
126, Sec. 1)
 A search warrant shall not issue except upon
probable cause in connection with one specific
offense to be determined personally by the
judge after examination under oath or
affirmation of the complainant and the witness
he may produce, and particularly describing the
place to be searched and the things to be seized
which may be anywhere in the Philippines.
(Rule 126, Sec. 4)
 If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they
exist, he shall issue the warrant, which must be
substantially in the form prescribed by these
Rules. (Rule 126, Sec. 6)
 SW must be in writing and contain:
- Name of person against whom it is directed;
- Offense for which it was issued;
- The place to be searched and
- The description of the specific things to be
seized;
- A directive to law enforcement officers to
search and seize;
- And for them to bring in court the things
seized;
- Signature of the judge issuing it.
Validity of search warrant
Period of validity: 10 days from its date. Thereafter,
it shall be void. (Rule 126, Sec. 10)
Lifetime of SW ends when a return has already been
made. [Mustang Lumber v. CA (1996)]
REMEDIAL LAW REVIEWER
Service of search warrant
Right to break door or window to effect search 65
 The officer, if refused admittance to the place
of directed search after giving notice of his
purpose and authority, 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 to liberate himself or any person
lawfully aiding him when unlawfully detained
therein. (Rule 126, Sec. 7)
Knock and announce principle: Generally,
officers executing a search must do the
following acts:
- Announce their presence;
- Identify themselves to the accused and to
the persons who rightfully have possession
of the premises to be searched;
- Show to them the search warrant; and
- Explain the warrant in a language or dialect
known and understood by them.
 When unannounced intrusion is permissible:
- Person in the premises refuses to open it
upon demand;
- Person in the premises already knew of the
identity and authority of the officers;
- When the officers have an honest belief
that there is an imminent danger to life and
limb;
- When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officers to believe that an escape or the
destruction of evidence is imminent.
Search of house, room, or premise, to be made in
presence of two witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof 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)
Time of making search
 The warrant must direct that it be served in the
day time, unless the affidavit asserts that the
property is on the person or in the place ordered
to be searched, in which case a direction may
be inserted that it be served at any time of the
day or night. (Rule 126, Sec. 9)
 A SW violates Rule 126, Sec. 9 if the time for
making the search is left blank, thus enabling
the officers to conduct the search in the evening
of the appointed search, causing untold
conveniences to the person searched. [Asian
Surety v. Herrera (1973)]
 Where a search is to be made during the night
time, the authority for executing the same at
that time should appear in the directive on the
face of the SW. [Asian Surety, supra]
 REMEDIAL LAW REVIEWER
Post-service
66 Receipt of property seized
How receipt is given (Rule 126, Sec. 11)
If lawful The officer seizing the property under
occupant the SW must give a detailed receipt for
was the same to the lawful occupant of the
present premises in whose presence the search
and seizure were made.
If he was The officer seizing the property under
not the SW must, in the presence of at
present least 2 witnesses of sufficient age and
discretion residing in the same locality,
leave a receipt in the place in which he
found the seized property.
Delivery of property and inventory thereof to
court (Rule 126, Sec. 12)
 The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath.
 Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall
summon the person to whom the warrant was
issued and require him to explain why no return
was made.
 If the return has been made, the judge shall
ascertain whether Sec. 11 of Rule 126 has been
complied with and shall require that the
property seized be delivered to him. The judge
shall see to it that delivery has been complied
with.
 The return on the search warrant shall be filed
and kept by the custodian of the log book on
search warrants who shall enter therein the
date of the return, the result, and other actions
of the judge.
 A violation of this section shall constitute
contempt of court.
 Goods seized remain under the court‘s custody
and control until the institution of the
appropriate criminal action with the proper
court. [Tenorio v. CA (2003)]
RE: REQUEST OF POLICE DIRECTOR GENERAL
AVELINO I. RAZON FOR AUTHORITY TO DELEGATE
THE ENDORSEMENT OF APPLICATION FOR SEARCH
WARRANT
A.M. No. 08-4-4-SC
SEC. 12. Issuance of search warrants in special
criminal cases by the RTCs of Manila and Quezon
City. – The Executive Judges and, whenever they are
on official leave of absence or are not physically
present in the station, the Vice-Executive Judges of
the RTCs of Manila and Quezon City shall have
authority to act on applications filed by the National
Bureau of Investigation (NBI), the Philippine National
Police (PNP) and the Anti-Crime Task Force (ACTAF),
for search warrants involving heinous crimes, illegal
gambling, illegal possession of firearms and
ammunitions as well as violations of the
Comprehensive Dangerous Drugs Act of 2002, the
Intellectual Property Code, the Anti-Money
Laundering Act of 2001, the Tariff and Customs
Code, as amended, and other relevant laws that may
hereafter be enacted by Congress, and included
herein by the Supreme Court.
The applications shall be endorsed by the heads of
such agencies or their respective duly authorized
officials and shall particularly describe therein the
places to be searched and/or the property or things
to be seized as prescribed in the Rules of Court. The
Executive Judges and Vice-Executive Judges
concerned shall issue the warrants, if justified,
which may be served outside the territorial
jurisdiction of the said courts.
The Executive Judges and the authorized Judges
shall keep a special docket book listing names of
Judges to whom the applications are assigned, the
details of the applications and the results of the
searches and seizures made pursuant to the warrants
issued.
This Section shall be an exception to Section 2 of
Rule 126 of the Rules of Court. (Emphasis supplied.)
4. Probable Cause
Generally
 Issued upon probable cause
Probable cause: Such facts and circumstances
which would lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and that objects sought in
connection with the offense are in the place
sought to be searched.
- This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may
produce and not based on mere hearsay.
- The probable cause must refer only to one
specific offense. [Roan v. Gonzales (1986)]
- A probable cause to arrest does not
necessarily involve a probable cause to
search and vice-versa.
Probable cause justifying warrantless arrest and
warrantless search
This implies probability of guilt and requires more
than bare suspicion but less than evidence which
would justify conviction. It is not determined by a
fixed formula but is resolved according to the facts
of each case.
5. Personal examination by judge of
the applicant and witnesses
Aside from the requirements mandated by Rule 126,
Sec. 4, the rule requires the judge to comply with a
specific procedure in the conduct of the examination
of the complainant and the witnesses he may
produce. The required procedure involves the
following:
 The examination must be personally conducted
by the judge;

 The examination must be in the form of
searching questions and answers;
 The complainant and the witnesses shall be
examined on those facts personally known to
them;
 The statements must be in writing and under
oath; and
 The sworn statements of the complainant and
the witnesses, together with the affidavits
submitted, shall be attached to the record.
(Rule 126, Sec. 5)
Determined by judge himself
SEARCHING QUESTIONS AND ANSWERS:
 Such questions which have the tendency to show
the commission of a crime and the perpetrator
thereof. [Luna v. Plaza (1968)]
 In search cases, the application must be
supported by substantial evidence: that the
items sought are in fact seizable by virtue of
being connected with criminal activity and the
items will be found in the place to be searched.
 A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid.
 Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application. [Yao v. People
(2007)]
Judge must examine under oath or affirmation the
complainant and the witness he may produce
A warrant not based on personal knowledge is void.
 Examination under oath:
OATH: Includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
- The oath required must refer to the truth of
facts within the personal knowledge of the
petitioner or his witnesses, because the
purpose thereof is to convince the
committing magistrate of the existence of
PC. [Alvarez v. CFI (1937)]
- Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of
the complaint or his witnesses, and attach
the same to the record. [Prudente v. Judge
Dayrit (1989), citing Roan]
Instances of invalid examination
 The complainant‘s application for SW and the
witness‘ printed-form deposition were
subscribed and sworn to before the judge, but
the latter did not ask either of the 2 any
questions, the answer to which could possibly be
the basis for determining WON there was PC.
The participation of the judge was limited to
REMEDIAL LAW REVIEWER
listening to the stenographer‘s reading of her
notes, and administering the oath to
complainant and his witnesses. Thus, it cannot
be said that the judge personally conducted the 67
examination required. [Bache v. Ruiz (1971)]
- In the reading of the transcribed notes of
the deposition of the applicant and his
witnesses taken by the clerk of court, the
judge was not able to observe the
deponent‘s demeanor nor to propound
initial and follow-up questions. [Bache,
supra]
 Where the judge issuing the SW acted solely on
the basis of the affidavits of the complainant
and his witnesses, which were sworn to before
another judge, without personally asking the
witnesses questions. [Doce v. CFI (1968)]
Instances of valid examination
The validity of the SW and the affidavits is not
impaired by the fact that they are pre-typewritten
by law enforcement agents, as long as they are
subscribed and sworn to before the judge.
In Luna (regarding warrants of arrests, but
applicable by analogy), the Court said that the law is
complied with where the judge adopts as his own
personal examination the questions asked by the
police investigator, as appearing in the written sworn
statements, which the judge read again to the
witnesses, whether said answers were his, and
whether said answers were true, to which the
witnesses replied in the affirmative, there being no
prohibition to the contrary.
6. Particularity of place to be
searched and things to be seized
Warrant issued must particularly describe the
place to be searched and the persons to be seized
 DESCRIPTION OF PLACE
Description of place to be searched is sufficient
if the officer with the SW can, with reasonable
efforts, ascertain and identify the place
intended. [People v. Veloso (1925)]
- An apparent typographical error will not
necessarily invalidate the SW, as long as the
application contains the correct address.
[Burgos v. Chief of Staff (1984)]
 TEST OF PARTICULARITY
- The executing officer‘s prior knowledge as
to the place intended in the SW is relevant.
- This would seem especially true where the
executing officer is the affiant on whose
affidavit the SW had issued, and when he
knows that the judge who issued the SW
intended the building described in the
affidavit.
- The executing officer may look to the
affidavit in the official court file to resolve
an ambiguity in the SW as to the place to be
searched. [Burgos, supra]
Particularity
Search warrant must be for only one specific
offense.
 REMEDIAL LAW REVIEWER
General rule: The offense alleged must be specific
68 as to enable the judge to find the existence of a
probable cause.
 Definite provisions of the allegedly violated laws
must be referred to.
 No SW shall issue for more than one specific
offense. [RPC] Otherwise, the SW is void.
 The fact that the SW does not specify the
specific offense does not render it a general
warrant. What is important is that the
application for SW states the specific offense
deemed to have been violated by the person
against whom the search warrant is addressed.
 Scatter-shot warrant: One which allows search
for more than one specific offense and is null
and void for being violative of the Constitution.
 A SW issued for an ―illegal traffic of narcotics
and contraband‖ is fatally defective. The latter
is a generic term covering all goods exported
from or imported in the country contrary to
applicable statutes. Necessarily then, more than
one offense could arise from the activity
designated as illegal traffic of narcotics and
contraband. [Castro v. Pabalan (1976)]
Exception: In People v. Marcos (1990), the SW was
declared valid despite lack of mention of specific
offense because the application stated that the
owner of the grocery store against whom the
warrant was directed, had in his possession
unadulterated stocks in violation of the provisions of
Art. 188 and 199 [RPC], which are closely allied
articles as the punishable acts defined in one of
them can be considered as including or is necessarily
included in the other.
Things to be seized must be particularly described
 The SW must not suffer from generality.
Otherwise, the search and seizure of the items
in the implementation of such SW is illegal and
the items seized are inadmissible in evidence.
(Art. III, Sec. 2 of the 1987 Const.)
 Personal property only. SW does not issue for
seizure of immovable properties.
 Ownership of the property seized is immaterial.
It is sufficient that the person against whom SW
is directed has control/possession of the
property. [Burgos, supra]
Purpose: To limit the things to be seized to those
(and only those) particularly described in the SW,
leaving the officers no discretion regarding what
articles they shall seize, to the end that
unreasonable searches and seizures may not be
made and that abuses may not be committed. [Uy
Kheytin v. Villareal (1920)]
General rule: Things to be seized must be described
particularly. General search warrants are not
allowed.
 SWs authorizing the seizure of books of accounts
and records ―showing all the business
transactions‖ of certain persons, regardless of
whether the transactions were legal or illegal,
are general warrants prohibited by law.
[Stonehill v. Diokno (1967)]
 Likewise, a description of things to be seized as
―subversive documents, propaganda materials,
FAs, printing paraphernalia and all other
subversive materials‖ hardly provided a definite
guideline to the executing officers. [Dizon v.
Hon. Castro (1985)]
 And where the language used is too all-
embracing as to include all the paraphernalia of
petitioner in the operation of its business, the
SW is constitutionally objectionable. [Columbia
Pictures v. Flores (1993)]
Exceptions:
 Where, by the nature of the goods to be seized,
their description must be rather general, it is
not required that a technical description be
given, for this would mean that no SW could
issue. [People v. Rubio (1932)]
 The general description of the documents listed
in the SW does not render the SW void if the SW
is severable, and those items not particularly
described may be cut off without destroying the
whole SW. [Uy v. BIR (2001)]
7. Personal property to be seized
The property subject of a search warrant is personal
property, not real property. [Riano (2011)]
What may be seized (Rule 126, Sec. 3)
 Personal property subject of the offense.
 Personal property stolen/embezzled and other
proceeds/fruits of the offense.
 Personal property used or intended to be used
as the means of committing an offense.
The rule does not require that the property to be
seized should be owned by the person against whom
the search warrant is directed. It is sufficient that
the person against whom the warrant is directed has
control of possession of the property sought to be
seized. [Burgos v. Chief of Staff (1984)]
Rules on DNA Evidence A.M. No. 06-11-5-SC
(October 2, 2007)
The appropriate court may, at any time, either motu
proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and
notice to the parties. (Sec. 4)
In a search incidental to an arrest even WITHOUT a
warrant, the person arrested may be searched for
(Rule 126, Sec. 13)
 Dangerous weapons.
 Anything which may have been used or
constitute proof in the commission of the
offense.
8. Exceptions to search warrant
requirement
a. Search incidental to lawful arrest

Warrantless searches allowed as an incident of
lawful arrest
 Generally: Rule 126, Sec. 13, as illustrated by
jurisprudence
 A person lawfully arrested may be searched for
(1) dangerous weapons or anything which may
have been (2) used or (3) constitute proof in the
commission of an offense without a search
warrant. (Rule 126, Sec. 13)
- The arrest must precede the search;
generally, the process cannot be reversed.
Nevertheless, a search substantially
contemporaneous with an arrest can
precede the arrest at if the police have
probable cause to make the arrest at the
outset of the search. [Riano (2011)]
 The rule assumes that the arrest is legal. If the
arrest is illegal, then the search is illegal and as
a result, the things seized are inadmissible as
evidence. [People v. Aruta (1998)]
 The search is confined to his person, but as an
incident of an arrest, the place or premises
where the arrest was made can also be searched
without a search warrant. The extent and
reasonableness of the search must be decided
on its own facts and circumstances. [Nolasco v.
Paño (1985); Note: The MR was partially granted
in 1987 and held that the arrest was unlawful,
thus the search was likewise unlawful.]
- An officer making an arrest may take from
the person arrested any money or property
found upon his person which was used in
the commission of the crime or was the
fruit of the crime or which might furnish
the prisoner with the means of committing
violence or of escaping or which may be
used as evidence in the trial of the case.
[People v. Musa (1997)]
- In People v. Leangsiri (1996), the accused
were lawfully arrested in Rm. 504 of a hotel
and a warrantless search was conducted in
Rm. 413. The search was held to be illegal.
- In Chimel v. California (1969), the US SC
said that there is no justification for
searching through all of the desks drawers
or other closed and concealed areas in the
room where arrest was made. A SW was
needed.
- When one is legally arrested for an offense,
whatever is found in his possession/control
may be seized and used in evidence against
him. [Alvero v. Dizon (1946)]
- Where a search is first undertaken, and an
arrest was effected based on evidence
produced by such search, both search and
arrest are illegal. [Lui v. Matillano (2004)]
b. Consented Search
Consented warrantless search
Rationale: The right to privacy may be waived.
 The consent to a warrantless search must be
voluntary, that is, it must be unequivocal,
specific, and intelligently given,
uncontaminated by any duress or coercion.
Consent to a search is not to be lightly inferred,
REMEDIAL LAW REVIEWER
but must be shown by clear and convincing
evidence. It is the State which has the burden of
proving, by clear and positive testimony, that
the necessary consent was obtained and that it 69
was freely and voluntarily given. [Valdez v.
People (2007)]
 Jurisprudence requires that in case of consented
searches or waiver of the constitutional
guarantee against obtrusive searches, it must
first appear that
(1) the right exists;
(2) the person involved had knowledge, either
actual or constructive, of the existence of
such right; and
(3) the said person had an actual intention to
relinquish the right. [People v. Nuevas
(2007)]
 When one voluntarily submits to a search or
consents to have it made of his
person/premises, he is precluded from later
complaining thereof. [People v. Kagui Malasugui
(1936)]
 A peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is
merely a demonstration of regard for the
supremacy of the law. [People v. Nuevas (2007)]
 When is consented search reasonable: Only if
kept within the bounds of the actual consent.
- A person‘s consent may limit the
extent/scope of a warrantless search in the
same way that the specifications of a
warrant limit the search pursuant thereto.
- Officers may not use a person‘s limited
consent to get inside his home and conduct
a general search.
- The US SC said that a search for a stolen TV
set cannot extend to search of an
individual‘s other papers and documents.
On the other hand, where there is a nexus
between the crime for which the evidence
is sought and the item that is seized, there
is no abuse of the consent to a search.
c. Search of moving vehicle
Search of moving vehicle
Rationale: Peace officers may lawfully conduct
searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can be
quickly moved out of the locality or jurisdiction in
which the warrant may be sought. [People v. Tuazon
(2007)]
 However, these searches would be limited to
visual inspection and the vehicles or their
occupants cannot be subjected to physical or
body searches, except where there is probable
cause to believe that the occupant is a law
offender or the contents of the vehicles are
instruments or proceeds of some criminal
offense.
 The search and seizure without warrant of
vessel and aircrafts for violation of customs laws
has been a traditional exception to the
requirement of SW. [Roldan v. Hon. Arca (1975)]
 REMEDIAL LAW REVIEWER
 Nonetheless, in all cases falling under this
category, there must be a showing of a PC of a
70 violation of the law. [Caroll v. US (1924)]
 Where a vehicle is stopped and subjected to an
extensive search, the warrantless search is valid
only as long as the officers conducting the
search have reasonable or probable cause to
believe before the search that they will find the
instrumentality/evidence pertaining to a crime,
in the vehicle to be searched. [People v. CFI
(1980)]
 Highly regulated by the government, the
vehicle‘s inherent mobility reduces expectation
of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the
occupant committed a criminal activity. [Riano
(2011)]
d. Check points; body checks in
airport
Searches conducted in checkpoints [People v.
Vinecario (2004)]
 They are valid as long as they are warranted by
the exigencies of public order and conducted in
a way least intrusive to motorists.
 The vehicle is neither searched nor its occupants
subjected to a body search (i.e. inspection of
the vehicle is limited to a visual search).
 Routine inspections are not regarded as violative
of an individual‘s right against unreasonable
search:
- Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
- Officer simply looks into a vehicle;
- Officer flashes a light therein without
opening car‘s doors;
- Occupants not subjected to a physical
search;
- Inspection is limited to usual search or
inspection; or
- Routine check is conducted in a fixed area
[People v. CA (2002)]
e. Plain view situation
Plain view doctrine (2008 Bar)
Rationale: Authorities do not consider a mere
observation of what is in plain view, a search.
Thus, objects falling in the plain view of a police
officer who has a right to be in the position to have
that view are not products of a search, may be
seized and may be introduced in evidence. [Harris v.
US (1968)]
Requisites (PIA): [People v. Valdez (1999), People v.
Salanguit (2001)]
- A prior valid intrusion i.e., based on the
valid warrantless arrest in which the police
are legally present in the pursuit of their
official duties;
- Evidence was inadvertently discovered by
the police who have a right to be where
they are;
- Evidence must be immediately apparently
illegal (i.e., drug paraphernalia);
- Plain view justified mere seizure of
evidence without further search.
Limitations: [People v. Musa (1993)]
- It may not be used to launch unbridled
searches and indiscriminate seizures.
- Does not extend to a general exploratory
search made solely to find evidence of
defendant‘s guilt.
 The doctrine is usually applied where a police
officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object.
 Even if an object is in plain view, before it can
be seized without a SW, its incriminating nature
must first be apparent.
 Where police officers are on the premises
pursuant to a valid consent to a search, an item
falling into their plain view may properly be
seized even if the item is not connected with
their purpose in entering.
f. Stop and Frisk situation
STOP AND FRISK: A limited protective search of
outer clothing for weapons. [Malacat v. CA (1997)]
Dual purpose: (1) The general interest of effective
crime prevention and detection; and (2) The more
pressing interest of safety and self-preservation of
the police officer to permit him to take steps to
assure himself that the person with whom he deals
with is not armed with a deadly weapon that could
be used against him. [Esquillo v. People (2010)]
 Where a police officer observes unusual
conduct, which leads him reasonably to
conclude in the light of his experience that
criminal activity may be afoot, and that a
person with whom he is dealing may be armed
and presently dangerous,
 Where in the course of investigating this
behavior he identifies himself as a policeman
and makes reasonable inquiry, and where
nothing in the initial stage of the encounter
serves to dispel his reasonable fear for his own
or others’ safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of outer
clothing of such persons in an attempt to
discover weapons which might be used to
assault him. [Terry v. Ohio (1968)]
 Under this theory, PC is not required to conduct
a ―stop and frisk‖ but, nevertheless, mere
suspicion/hunch will not validate a ―stop and
frisk.‖
- Test: Genuine reason - Reasonable belief
based on genuine reason and in the light of
the officer‘s experience and the
surrounding circumstances, that a crime has
either taken place or is about to take place
and the person to be stopped is armed and
dangerous.

- Based on ―specific and articulable facts‖
and not merely upon the officer‘s bare
suspicion or hunch.
 A genuine reason must exist, in light of the
police officer‘s experience and surrounding
condition, to warrant the belief that the person
has weapons concealed about him.
g. Enforcement of Custom Laws
Customs search
For the enforcement of customs duties and tariff
laws, the Collector of Customs is authorized to
effect searches and seizure. [General Travel
Services v. David (1966)]
The Tariff Code authorizes customs officers to:
 Enter, pass through or search any land,
enclosure, warehouse;
 Inspect/search/examine any vessel/aircraft and
any trunk/package/box/envelope or any person
on board, or stop and examine any
vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited
article introduced into the Philippines contrary
to law.
General rule: The Tariff and Customs Code does not
require a warrant for such searches.
Exception: In the search of a dwelling house, SW is
required.
h. Other exceptions
 Exigent and Emergency Circumstances
Example: There was a prevailing general chaos
and disorder because of an ongoing coup, and
the raid of the office/building was precipitated
by an intelligence report that said office was
being used as HQ by the RAM. Also, the
surveillance team before the raid was fired upon
by the people inside. The raiding team had no
opportunity to apply for warrant as the court
then was closed. There was urgency and
exigency that warrant was lawfully dispensed
with. [People v. de Gracia (1994)]
 Buy-bust Operation: No need for SW (or
warrant of arrest) because the accused is caught
in flagrante delicto.
- A form of entrapment legally employed by
peace officers as an effective way of
apprehending drug dealers in committing an
offense.
- Entrapment: Employment of such ways and
means for the purpose of trapping or
capturing a lawbreaker
- Absence of prior surveillance, much less a
lengthy one, or test buy does not affect the
legality of the buy-bust operation. [People
v. Concepcion (2008)]
 Private Searches and ―State Expansion of
Private Search‖
The evidence was obtained by a private person
acting in a private capacity without state
participation and intervention. It was company
REMEDIAL LAW REVIEWER
SOP. Constitutional rights cannot be invoked
when there is no government interference.
[People v. Marti (1999)]
- Extent of participation by NBI agents is 71
merely CONFIRMATORY and NOT
EXPLORATORY
9. Remedies from unlawful search
and seizure
Who may avail of remedies
 Only the party whose rights have been impaired
thereby; the objection to an unlawful search
and seizure is purely personal and cannot be
availed of by third parties. [Stonehill v. Diokno
(1967); Santos v. Pryce Gases, Inc. (2007)]
 Hence, when a corporation‘s documents were
seized, the corporate officers cannot question
the legality of the search as their personalities
are separate and distinct from that of the
corporation. [Stonehill v. Diokno (1967)]
Remedies
 Employ any means to prevent the search.
- Without a SW, the officer cannot insist on
entering a citizen‘s premises. If he does so,
he becomes an ordinary intruder.
- The person to be searched may resist the
search and employ any means necessary to
prevent it, without incurring any criminal
liability. [People v. Chan Fook (1921)]
 File criminal action against officer.
A public officer/employee who procures a SW
without just cause is criminally liable under Art.
129, RPC (Search warrants maliciously obtained
and abuse in the service of those legally
obtained).
 File a Motion to Quash the illegal SW. - This
remedy is employed if search is not yet
conducted.
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of SW or release of things seized. [Pagkalinawan
v. Gomez (1967)]
Exception: Where the SW is issued by one
court and the criminal action based on the
results of the search is afterwards filed in
another court, the motion may be filed in either
court. [People v. CA (1999)]
What may be raised in the MTQ:
- Existence or non-existence of probable
cause at the time of issuance of the SW;
- Compliance with procedural and substantial
requisites.
Matters of defense are to be raised in the
criminal action. [DOH v. Sy Chi Siong (1989)]
 File a motion to return seized things. - This is
the remedy used if the search was already
 REMEDIAL LAW REVIEWER

conducted and goods were seized as a buyer in good faith, but said goods were
consequence thereof. taken from the purchaser with the use of a
72 - Where the motion will be filed follows the SW although the criminal case for estafa
same rules as 2(c) above. against the accused was still pending, the
goods should be returned to the buyer. The
 Motion to quash a search warrant or to suppress buyer is entitled to possession of goods until
evidence (2005, 2007 Bar) restitution is ordered by the court in the
- A motion to suppress as evidence the criminal case. [Yu v. Honrado (1980)]
objects illegally taken (exclusionary rule) –
any evidence obtained through Waiver of immunity against unreasonable searches
unreasonable searches and seizures shall be and seizure
inadmissible for any purpose in any [Pasion v. Locsin (1938)]
proceeding  The constitutional immunity against
unreasonable searches and seizure is a personal
Rule 126, Sec. 14 Where to file right that may be waived expressly/impliedly.
If criminal action has Court where the action  Waiver cannot be made just by anyone, except
been filed has been instituted. the person whose right is being invaded or one
If no criminal action has Court that issued SW. who is expressly authorized to do so in his
been instituted behalf.
If no criminal action is Court where the
filed and motion is first subsequent criminal  Requisites of a valid waiver:
filed with the court that action has been - It must appear that the right exists;
issued the SW, but it instituted. - That the person involved had knowledge,
failed to resolve the (actual or constructive) of the existence of
motion and a criminal such right;
case is subsequently - That the person had an actual intention to
filed in another court relinquish the right.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz
(1971)]
 No personal examination by the judge.
 More than one specific offense.
 No particular description.
Who may file
 Person injured.
 Person searched.
 Owner of the property.
An accused may file a Motion to Suppress Evidence if
he is not among the persons who can file a Motion to
Quash.
Effect of failure to quash warrant
 Where no MTQ the SW was filed in or resolved
by the issuing court, the interested party may
move in the court where the criminal case is
pending for the suppression of the personal
property seized IF the same is offered therein as
evidence (REGALADO).
 The MTQ a SW and Motion to Suppress Evidence
are alternative, not cumulative remedies.
Effects of illegal search
 Illegally seized evidence may not be admitted in
evidence in any proceeding. (Art. III, Sec. 2,
1987 Const.)
 DISPOSITION OF ILLEGALLY SEIZED PROPERTY
General rule: Goods seized by virtue of an
illegal warrant must be returned. [Castro v.
Pabalan (1976)]
 Criminal Liability
- Violation of the following:
o Violation of domicile (RPC Art. 128)
o SW maliciously obtained (Art. 129)
o Searching domicile without witnesses
(Art. 130)
o Unjust interlocutory order (Art. 206)
- Grounds:
o Against public officer or employer:
 Entering without authority; against
the will; refuses to leave.
 SW procured without just cause or if
with just cause, exceeds his authority
or uses unnecessary severity of force.
 Conducting the search without the
required witnesses.
o Against judge
 For knowingly rendering an unjust
interlocutory order.
 Inexcusable negligence or ignorance.
 Civil Liabilities
- Violation of the following:
o Violation of rights and liberties (Art. 32
[9], CC)
o Malicious prosecution and acts referred to
Art. 32. (Art. 2218, CC)
- Malice or bad faith is not required
- Not only official actions, but makes all
persons who are responsible for the
violation liable for damages [MHP Garments
v. CA (1994)]

Exception: If possession of the things seized is XVI. PROVISIONAL REMEDIES

prohibited by law, they should not be returned.
o However, where the accused obtained goods
from another through payment of bouncing
checks and thereafter sold said goods to a
1. Nature
 Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
 REMEDIAL LAW REVIEWER

connection with the civil action deemed Enforcement Only after acquisition of
instituted with the criminal action [Rule 127, of writ jurisdiction over the person of the
Sec. 1] defendant
 Where the civil action has actually been 73
instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but
may be applied for in the separate civil action
(Regalado).
 If the civil action is suspended on account of
filing of the criminal action: The court with
which the civil case is filed is not thereby
deprived of its authority to issue auxiliary writs
that do not go into the merits of the case
[Ramcar Inc vs. de Leon].
 Not available when:
1. Offended party has waived the civil claim
2. Offended party has reserved the civil claim
3. Offended party has already instituted a
separate civil action
4. Criminal action carries with it no civil
liability

2. Kinds of provisional remedies

 Reference to provisional remedies in Rule 127 is
made in general terms, hence preliminary
injunction, preliminary attachment,
receivership, replevin or support pendent lite
may be availed of. (Riano)
 The accused may present evidence to prove his
defense and damages, if any, arising from the
issuance of a provisional remedy in the case.
[Rule 119, Sec. 11(b)]

Preliminary Attachment

1) When proper [Rule 127, Sec. 2]

When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for the
satisfaction of any judgment that may be recovered
from the accused in the following cases:
1. When the accused is about to abscond from the
Philippines
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the
accused who is a public/corporate officer,
attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any
other person in a fiduciary capacity, or for a
willful violation of duty
3. When the accused has concealed, removed or
disposed of his property, or is about to do so
4. When the accused resides outside the
Philippines

2) Issuance and implementation of the writ

[Gonzalez v. State Properties (2001)]

When
Issuance of May be done before acquisition of
writ jurisdiction over the accused; may
be ex-parte
 REMEDIAL LAW REVIEWER

APPENDIX 1: AVAILABILITY OF BAIL

74 AVAILABLE as a MATTER AVAILABLE as a MATTER OF
NOT AVAILABLE
OF RIGHT DISCRETION
After conviction by the RTC If the accused is charged with a capital offense or
Before or after conviction
imposing a penalty of an offense punishable by reclusion perpetua or life
by the MetTC, MTC, or
imprisonment which does not imprisonment, and the evidence of guilt is strong
MCTC (114.4)
exceed 6 years (114.5) (114.7)
After conviction by the RTC where a penalty of
imprisonment exceeding 6 years but not more than
20 years is imposed and any of the ff.
circumstances is present:
1) Recidivism, quasi-recidivism, habitual
After conviction by the RTC
delinquency, commission of crime aggravated
where a penalty of
by circumstance of reiteration;
Before conviction by the imprisonment exceeding 6
2) Previously escaped from legal confinement,
RTC wheter in the exercise years but not more than 20
evasion of sentence or violation of conditions
of its original or appellate years is imposed and not one
of bail without valid justification;
jurisdiction (114.4) of the circumstances in sec. 5
3) Commission of offense while under probation,
is present, or any other
parole or conditional pardon;
similar circumstances (114.5)
4) Probability of flight;
5) Undue risk that he may commit another crime
during the pendency of appeal. (114.5)
6) Any other circumstances as may be present
and proved
If, prior to the judgment
becoming final or before the
accused serves his sentence,
the accused applies for After judgment has become final or the accused
probation as allowed by law, has commenced to serve his sentence (114.24)
he may be admitted to bail or
released on recognizance
(114.24)

APPENDIX 2: MODES OF REVIEW
ORDINARY APPEAL
Available after any judgment or final
order
Matter of right
 By filing a notice of appeal with the
court that rendered the judgment
and serving a copy on the adverse
party.
 NOTICE OF APPEAL – Written notice
of intention to take appeal. A mere
verbal notice of an intention to
appeal expressed by the accused,
does not perfect an appeal. [People
v. Natividad (1936)]
 When no notice of appeal is given in
writing or no record that any was
given, the cause will be stricken from
the court calendar since there was no
appeal. [US v. Tenorio (1917)]
 But when the accused manifests or
gives notice of his intention to appeal
in open court and files a bond for his
provisional release within 15 days
from the promulgation of the
decision against him, he may be
considered as having perfected his
appeal. [People v. Agasang (1956)]
PETITION FOR REVIEW
Available only when the
petition shows prima facie
that the lower court has
committed an error of fact or
law that will warrant the
reversal/modification of the
decision or final order sought
to be reviewed.
Not a matter of right
REMEDIAL LAW REVIEWER
PETITION FOR REVIEW ON
CERTIORARI
 General Rule: Available only when 75
issues of law are involved; findings of
fact being deemed conceded by the
appellant.
 Exception: SC reviews questions both
of fact and of law in cases decided
by the RTC: [RA 296]
o Where the penalty imposed is life
imprisonment;
o Which involve other offenses
committed on the same occasion
or arising out of the same
occurrence that gave rise to the
more serious offense for which the
penalty of death or life
imprisonment is imposed.
Not a matter of right
 Appeal by PFRC from the decision or
final order of the RTC/CA may be
taken by filing the petition within 15
days from notice of judgment or of
the denial of MFR filed in due time.
 Copy must be served on the court
whose judgment or final order is
sought to be reviewed.
 If no record of appeal has been filed
in the CA, the SC clerk of court, upon
admission of the petition, shall
demand from the CA the elevation of
the whole record of the case. [Rule
45, Sec. 2]
 Provision above governs procedure of
appeal from RTC or Sandiganbayan to
the SC.