Criminal procedure lecture notes

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Criminal Procedure 2/5/13 - ARREST -Before going to the Rules on Arrest i would like to give the idea of CHECKPOINT. - now in fact is a very good subject matter of bar exams - first & foremost not all checkpoints are illegal offense - the first case that drop out in the history of our judicial system is the case of BAGWANG VS DE VILLA. - the determination of a probable cause wherein conducting searches & seizures under the Constitution it is lodge with the judge under sec 2 art 2 - the right of every person against unreasonable arrest, search & seizure,di ba, ok, kaya nga sabi ko nga doon sa ano, well you can have a barong barong house but the king of England cannot enter, but all the forces of the king of England cannot dare to enter the place. Talaga napa ka sacred ng ating privacy to be left alone. - accdg to justice cruz it is a very delicate policy to encourage the setting up a check because you will be killed at will of the men manning a checkpoint, as in the case of Atimonan, but the majority decision, checkpoint is a necessary measure to protect the state and for the benefit of the public as a measure of territorial defense. - generally. checkpoint is considered as can be deemed as in the case of Bagwang vs De villa that, it is a security measure to enable the police authorities to pursue its mission of establishing an effective territorial defense for the benefit of the public PROVIDED that the vehicle is neither searched nor its occupants subjected to body search and the inspection of the vehicle is merely visual, so that if you happen to pass a checkpoint,they cannot

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instruct you to open the trunk - its merely visual. now question, since its visual what about vehicles which are heavily tainted, can the police men manning the checkpoint order the driver to roll down his window? ANS: YES, if it is heavily tainted it cannot effect a visual view on the vehicle & there is a jurisprudence to support on that. Now, another thing to consider as i’ve said checkpoint per se is not illegal in other words, not all but it will be the setting up of checkpoints should not base under the circumstances, you cannot just set up a checkpoint as a matter of policy. checkpoints are being set up by exigency of the circumstances because it is based on that circumstances. when the election period commence on jan 13 there is a necessity to set up checkpoint because it is an order from the COMELEC deputizing the police authorities to set up checkpoint in order to enforce the gun ban law. now, as an EXCEPTION, the general rule is you will set up a checkpoint as required by the exigency of circumstances, provided its merely routinary check & visual searched as an exception to the general rule, you can have an extensive search on the vehicle provided the policemen have probable cause to conduct an extensive search. probable cause- such facts & circumstances which could lead a reasonable & prudent mind to believe that an offense had been committed & that the object sought in connection with the offense are in the place sought to be searched. ibig sabihin pag duaman yung vehicle visual search in the course of visual searched of the vehicle nangangamoy, ang amoy ay hindi yung usual pag ang tao ay hindi naka paligo kundi amoy ng marijuana, with that given

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fact, can you do extensive search? ANS: YES.because there is probable cause given by the fact that there is a smell of marijuana coupled if you see inside the vehicle a bag halfway open & although wrapped in a newspaper but there is something an odor which is distinct of that of marijuana. Is there a circumstances telling to show that there is probable cause to conduct an extensive search? ANS: YES, and therefore the vehicle can be totally search & the policemen can inquire what’s the contents of that bag. If & when it turned up to be marijuana then that could be subject to seizure. WHY, because marijuana is a dangerous drugs if the motorist could not present any authority, that is a prima facie presumption that the possession of marijuana is illegal. Can it be seized? ANS: YES because that is an evidence of the crime of illegal possession of marijuana penalized under Art 9127. The GENERAL RULE - is visual EXCEPTION - probable cause to conduct a extensive search. - People vs Diaz et al GR 141137 jan 20, 2004 .now in this case, the person involved here, & the y happen to pass by a checkpoint & they disregarded the checkpoint imbes na huminto tuloy tuloy, that lead the policeman manning the checkpoint to stop them & after they were stop Diaz was having a backpack, in his possession there emit an odor of marijuana & because of that facts & circumstances providing the policemen of evidence that a crime was being committed in there presence they can conduct an extensive search. Now & remember class i am emphasizing these yung pagconduct ng search without warrant is an exception, there ought to be an order from the court, a warrant from the court for an extensive search for the arrest of person, the general

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rule there ought to be a warrant of arrest or search warrant. now well another thing that you have to consider in order of setting up of checkpoint & the conduct of men manning the checkpoint can be given the presumption of the regularity to the performance of their official duty. you have to strictly observed their SOPs (special operating procedures), their manner. In the case of policemen-ito ang tatandaan ninyo- that they should be in proper uniform. pag nag gawa ng checkpoint there not in proper uniform any search could be question & even if there is a contraband that would be seized in the process & they are not in their proper uniform, the uniform required here is the GOA (General Office Attire) & not the combat uniform or camouflage hindi yon, although they are in uniform but not their combat attire. another one, the checkpoint should be lead by an official in case of Atimonan checkpoint, was it lead by an officer? ANS: YES, by Col Marantan. another one to take note there ought to be a signage that there is a checkpoint, ex. checkpoint on COMELEC for gun ban. In that signage the name of the team leader should be conspicuously written. there should be a marked police vehicle. what is a marked? alam ba ninyo yong police vehicle- ito yong basic requirements on the part of the police authorities.

- 10 REQUIREMENTS: * checkpoints must be well lighted, properly identified & manned by uniformed personnel. upon approached, you have to slow down, kasi kung nagbibilis ka, mabilis ka & you disregard the checkpoint that is a circumstance to have an initial suspicion that there is something that you are hiding

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something. remember, upon approached, slow down, pag ka gabi dim your headlights. & turn on the cabin lights, sa loob, wala ka naman tinatago, tapos never step out of the vehicle. * lock all doors of the vehicle during the inspection-since only visual inspection is allowed. * Never subject to physical & body search. * Motorist are not being required to open the load compartment, trunk or back compartment. * be courteous, but firm to answer,assert your rights, have a presence of mind when answering. * keep you driver’s license & proper registration certificate. * be ready to use your mobile phones at anytime & dial an emergency numbers if in case. -Now for your information, what would be the actuation of police authority if somebody passing through a checkpoint commits traffic violation: If you are flagged down by a policeman, at the checkpoint for a traffic violation, question will be - ito magandang question ito sa finals- those motorist who have been flagged down by policemen on account of violation of traffic rules, are they considered under arrest? or their act of violating traffic rules constitute commission of a crime in the presence of the police enforcer? Halimbawa, nagmamaneho ka ng motor at wala kang helmet is that a traffic rule violation? Is there a traffic ordinance being violated? IF you are caught violating & the police officer will bring you the the police station, is that proper? In traffic violation, does not authorize policemen to placed you under arrest,remember class, what is the meaning of ARREST.

- ARREST is the taking of a person in the custody of the law for purposes that he may be bound to answer for the commission of an offense. -and another thing, if you are under arrest can you be searched by the police who arrested you? ANS: YES, as in search incidental to lawful arrest. Now, if you are not under arrest, if its merely a violation of traffic rules,you are not consider under arrest. the police should only to stop you & their duty is that they should only inquire something & will just ask for the driver’s license, then you will be released & stopping you on account of traffic violation does not constitute arrest. - If it does not constitute arrest,then the policeman searched you? ANS: NO, but it would be different if there could be a lawful arrest, you can be search for dangerous weapon & evidence in the commission of the crime. - anong justification, the RA 4136 (Land Transportation & Traffic Rule). - if they ask your driver’s license, ibigay & then you have to pay a corresponding fine within 72 hours. - in lieu of confiscation of your license you will be issued by a traffic citation ticket. This traffic citation ticket will authorized you to still drive within 72 hours. - Now, if you will not pay the corresponding fine that could be, sabi “the failure of the driver to settle his case within 15 days from the date of apprehension will be come to a suspension & revocation of license. - what is the basis of checkpoint - it’s because the deputization of policeman by the COMELEC & the purpose is to ensure free, orderly & peaceful election. - Now, after election the City act of checkpoint can be done, for example, robberies are rampant, the city of Naga, in order to portray the proliferation of the

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riding in tandem can the police force of the city of naga can set up checkpoint? ANS: YES, but not at all often without basis that they can simply set up checkpoint by the city of naga by their own caprice. - well the prohibited acts of course, gun ban even though you are a licensee, if you don’t have a permit to carry from the COMELEC pwede ka maaresto. kung wala kang lisensya, naaresto ka, you can be charged ng dalawang krimen violation of RA 66 as amended and gun ban. - can you be convicted of 2 offenses? ANS: NO. - but can you be charged of 2 offenses? ANS:YES, the only thing there, there ought to be a conviction first so that you cannot be deemed prosecuted for illegal possession of unlicensed firearm. so the most that you can be convicted is the violation of gun ban- the prescribed penalty is not less than 1 year & not more than 6 years but the case of illegal possession if it a high powered, medyo mataas man ang penalty. - now, are invitations by policemen constitute an arrest? Is it illegal? ANS: NO,it is not unconstitutional. - what is significant to know is that invitation of a person subjecting to a custodial investigation. If you were invited by a policeman can it be considered you are under custodial investigation? you are invited in the police station for a police line up, thus it constitute custodial investigation? ANS: NO, because police line up is authorized, since it does constitute custodial investigation, why, because it is a general inquiry. - when is the person under custodial investigation- when the investigation zeroes in of his participation in the commission of the crime. pag nag start ng question na nililink ang isang tao in the commission of a

crime, that already constitute custodial investigation & when a person is under custodial investigation he must be afforded of his rights, and what are these rights - his Miranda rights and the counsel who is needed to assist him in the investigation should be not only competent but an independent counsel of his own choice. - it is different in the trial proper, it’s not a strict requirement for the counsel which is required under custodial investigation. the strict requirement of the qualification of a lawyer in court before the process of custodial investigation is because it’s an intimidating circumstances outside the court the probability that the accused or the suspected person might give uncounseled statement. - so invitations are not arrest. - if under custodial investigation you should be afforded of your rights under RA 7413 the rights of a person under custodial investigation. - what are the modes of effecting an arrest. - 1. physical arrest - 2. voluntary submission of the person to the custody of the person making an arrest -HOW DO YOU ARREST A PERSON- there is a great significance, as i’ve said, a while ago abut the proper arrest of a person because if a person is not under arrest there is a big difference as in the case of Larranaga vs CA 287scra 581, if a person is not under arrest under the exceptional circumstances warranting a warrantless arrest you cannot subject him to inquest proceedings because you can only conduct an inquest proceedings when a person was validly arrested under a warrantless situation. -an arrest signifies restraint on the person, depriving one his own will & liberty, finding him to become obedient to the will of the

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law. if you are not deprived of your liberty in order for you to answer for the commission of the offense you cannot be said under arrest. -if you are not lawfully arrested you cannot be searched incidental to that arrest. -How does policeman arrest the person under the Rules, there must be a warrant & inform the person to be arrested of your authority why you are arresting him, except of course, kung tumakbo, the police officer enforcing the warrant would arrest him first then inform him why you arresting him. - Take note that notoriety alone of the person or the criminal to be arrested will not justify the police officer to use unnecessary force. - anong necessary force - it depend upon the circumstances. there is no hard & fast rules what is the necessary force to be enforced in order to arrest the person. - The police officer is a judge on how to properly & reasonably arrest a person under the circumstances, but unlike a civilian, a private individual, the police officer should stand ground, hindi dapat sya tatakbo if there is some resistance hindi sya tatakbo agad, the police should stand ground to arrest a person. kung hindi armed & dangerous the person & does not resist do not use your firearm, must use reasonable force. - jurisprudence says that police officer in the performance of his duties must stand ground.

2/7/2013 -What is that period mention in the Rules to effect the arrest in 10 days? - So if you will submit a report stating that the accused cannot be located because he is not there in his address & you have already served it, now, is it require to submit the or return the warrant of arrest? ANS: NO.

- What is required? - What is an alias warrant? - in the first place, the court will not issue a warrant if the address is not known because the Constitutional provision is very clear, when you issue a warrant of arrest the particular name of the street of a person, place & the place to be seized, that’s why, otherwise it will be a general warrant. - now, an alias warrant it refers to the situation where the court has already issue a warrant of arrest sometimes the police officer would submit the report or return the warrant issued by the court so that if they surrender the copy of the warrant of arrest then in which case the judge will see it on the record &there is a statement that the accused cannot be arrested & he cannot be located in his given address so the court mandated to archive the case & issue an alias warrant. - an alias warrant is what we call the warrant of arrest which was issued for the 2nd time, it is not the original warrant & that is why it is called an alias warrant. - so the subsequent warrant of arrest issue in lieu of original warrant of arrest that is what we called an alias warrant. - the warrant of arrest is effective until it is served. - the warrant should not be returned by the arresting officer. all he has to do is submit a report to the court within 10 days if you cannot served it just report. (Reporting your honor that until today i did not served the warrant) the arresting officer can retain the copy of the original warrant of arrest until such time it is served. - that’s why when you will be ask the distinction between the search warrant & warrant of arrest, there is no such thing as alias search warrant & the search warrant is

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likewise should be enforced within 10 days, otherwise it ceases its validity. - supposing it will be served after the expiration what happen to the search - the search would be illegal. - supposing there will be a sizable quantity of shabu & the search warrant was served after its validity, it lapsed for a period of 1 day & a report said that the stock is at the place ought to be search & they proceeded the search, what will happen to the search -it is illegal, can you use the evidence - no, that is what we called the fruit of the poisonous tree. - if you are a civilian effecting a warrantless arrest what are procedure to be followed you witness somebody killed another person, can you arrest that person? Can you recite the Miranda rights? - that person should announce his intention why he is arresting that person - it is not the duty of the private person to say the Miranda rights because they are not trained when effecting an arrest. Its different with the police officer, but if the private citizen knows about the miranda warning, then that private citizen can say it. the basic is that, when a private person knows that somebody commits a crime he can effect an arrest, but the duty belong to the police officer. in fact it is institutionalized under RA 7430. - upon arrest the following must be confiscated: 1. objects subject of the offense or intended to use in the crime. objects which are the fruits of the c r i m e - c e l l p h o n e p a g cellphone ang ninakaw) 2. dangerous weapons 3. objects whose possession of which s illegal per se *These are what we called searched incidental to a lawful arrest.

- what happen if there would be searched first before arrest, is it correct? ANS:NO, first there must be a valid warrantless arrest - when can a person effect a valid warrantless arrest: In his presence the person sought be arrested is actually committing a crime, has been committed a crime & attempting to commit a crime. - in attempting to commit a crime is not in the Rules before what has been wittten before is “about to commit a crime” it was deleted because it does have little significance, it was “attempting to commit” because if there was attempt there is already a penallty, it’s one stage in the execution of a crime, so when a person commits to execute the commission of a crime but did not pursue it other than his continuous desistance. EX. Pag kuha nya ng baril hindi pala nakalagay ang magazine, instead ang nakalagay doon Philippine Star, pagbaril nya, wala, but there’s already commencement of the crime. Can you arrest him in your presence? YES. there is already an attempt or an overt act to commit the crime. it is the overt act that is punishable. - this is what we called in your presence when a crime is committed & you effect an arrest is called in FLAGRANTE DELICTO. - other instance where you can effect a valid warrantless arrest. Is when a crime has just been committed & the person - the word “has just been committed” is very important because in order to effect a warrantless arrest under paragraph B, the crime has just been committed which is related to some extent of immediacy and the person has probable cause to believe based on personal knowledge that the person to be arrested has committed it. - In flagrante delicto arrest the requisites would be that we use your sense, that if can

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smell something that of marijuana, & you’re an expert on that, & at the distance, that constitute if somebody is using marijuana, & you smell at the distance.... - HOT PURSUIT - the crime has just been committed & you’re following up. - how about if 3 days has already elapsed or 1 week has elapsed can you still effect an arrest? What is the standard time if which you can effect an arrest in hot pursuit arrest? first, in FLAGRANTE DELICTO ARREST there ought to be a circumstances in which either instances , as in sense of smell, when you sense,for example a peculiar smell of marijuana, even though at the distance, you can effect the arrest because it is within the context that in fact the crime has been committed in your presence. the case of (People vs. Evaristo G.R. No. 93828, Dec. 11, 1992). - FACTS: Peace officers while on patrol, heard burst of gunfire & proceeded to investigate in the house of appellant where they were given permission to enter accidentally discovering the firearm in the latter’s possession. Accused-appellant found guilty of illegal possession of firearms contends that the seizure of the evidence is inadmissible because it was not authorized by a valid warrant. ISSUE: WON the evidence obtained without warrant in an accidental discovery of the evidence is admissible. HELD: YES, the firearms seized was valid & lawful for being incidental to a lawful arrest. An offense was committed in the presence or within the view of an officer, within the meaning of the Rule authorizing an arrest without a warrant. - The requisites for a flagrante delicto arrest should be the person sought to be arrested

must execute an overt act indicating that the crime has just been committed, is actually committing or is attempting to commit the crime. such overt act is that, in the presence or in the view of the arresting officer & if we speak of probable cause - is such facts & circumstances indicating that the person to be arrested is committing a crime, is actually committing or the crime has just been committed in order to effect a flagrante arrest. - in the case of HOT PURSUIT the crime has just been committed it is not the matter of time, there must be immediacy, but still it depends on the circumstances. - what is the condition - the condition is that there is no intervening period in the pursue in effecting an arrest in hot pursuit from the time of the commission of the crime, tuloy tuloy (P vs. omar ) the arrest was happened 6 days after the commission of the crime, he was arrested in Davao & the kidnapping happened in Quezon City & yet the arrest is still valid, REASON - from the moment the police officer came to their personal knowledge about the facts & circumstances indicating that the person committed the crime, tuloy tuloy an kanilang paghabol, & there are facts & circumstances that give them basis to arrest the person. 2/19/2013 - Somebody ask me if a person arrested, under the rules can be search incidental to a lawful arrest. Now, the question is, to what extent will be that search should be conducted, should be only limited on his person or within the immediate vicinity, ito yung mga tinatanong ng mga police officer. - now, if you try to recall the case of Nolasco vs. Pano she was arrested around 100m, there was a warrant of arrest & the arrest

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took place around 50 to 100m from the house & when she was arrested her house was searched with seditious articles which linked her with the NPA & there were papers & effects which are evidence to proved that she is a member of NPA or communist group & it planned to overthrow the government, there was a question whether those evidence seized from her house could be use against her & could be justify under search incidental to a lawful arrest. - Karamihan tanong ng mga police, Sir to what extent we can search a person incidental to a lawful arrest. The rule is it should be limited on his person. - And what about his immediate vicinity, i think so, for as long as the place where he was arrested & it appears to be within his vicinity & control. - Now if a person arrested in her residence, inside her residence can the police officer search the entire house? for example, the person was arrested in the living room, can the police officer go to her bedroom to search & seized evidence in connection with the crime. The correct answer, it would be limited to his person & his immediate vicinity. kasi, if it is only limited to his person how about kung may tinago sya. don’t you think you can seized that evidence? of course & the search incidental to a lawful arrest - there should be a lawful arrest first before search it cannot be otherwise. - Lawful arrest before search. People vs Hon Bonifacio Sanz Maceda G.R. No. 89591-96 Jan. 24, 2000 -Hon Sanz Maceda is the presiding judge of the RTC of Antique & he is now in Las Pinas - the accused is a lawyer & instead that he should be incarcerated he was placed under the custody of the trial court, question, is he

under detention, was he validly arrested arrested & under detention? - as we have said, when there is an effective restraint of the liberty of the person he is considered under arrest otherwise if he is free & can do whatever rights & he is not under restraint his liberty then we cannot say that he is under arrest. - Now, another thing is that he is placed under custody for him in order to answer a definite case otherwise it could be illegal detention or arbitrary detention as the case maybe. - illegal detention there are private person responsible for depriving his liberty -he was involved in the killing of Evelio Javier -Now, accdg to the case the lawyers who filed those cases of the validity of the 1973 Constitution. - in connection with the circumstances with the warranting a valid of warrantless arrest such as flagrante delicto arrest & hot pursuit arrest, & we have discussed search incidental to a lawful arrest I think whatever question that might crop up you can effectively answer. - Another doctrine in connection with this is search of evidence in plain view, plain view it is seeing in distance, maliwanag, nakikita mo, a particular evidence but it does end there but there are requisites: 1) the law enforcer officer is in a position where he has a clear view of a particular area or prior justification of intrusion - when is there a prompt prior justification of an intrusion, for example, if a police officer is armed with a search warrant & he enters the house & implement the search warrant there was a prior valid intrusion; what is that valid prior intrusion - by virtue of a search warrant.

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- Now, the contents of the search warrant is to search & seized drugs, dangerous drugs such as shabu, & in the course o implementation, nakakita sya ng baril, can he seized it, ANS: YES, it can be justified under the doctrine. 2) said officer inadvertently comes across a piece of incriminating evidence - hindi naman yon ang purpose but as he continue to search the house nakita nya sa cabinet may baril ay ngayon pag wala kang lisensya o hanapin mo saan ang lisensya mo, at wala kang lisensya, so incriminating evidence pero so you can seize. 3) in this immediately acquired by said officer that the item seized maybe the evidence of the crime or contraband or otherwise subject to seizure, like for example, baril may gun ban ngayon kaya it’s your duty to possess such license without that it’s subject to seizure. now, another rule that you have to take note search of moving vehicle doctrine - in this case you don’t have to secure a search warrant, why, because of necessity. Moving vehicles of course, can quickly moved out from one place to another, that is why this is an exception to the general rule - that prior to the search the law enforcement officer should be armed by a search warrant. this is born out of practical consideration. you can just imagine, may nakita kayong contraband & let us say, it’s very fast but take note that although a search of moving vehicle as an exception to the general rule, you can search it, however, if the law enforcement officer has still time to procure search warrant, sasabihin, 3 days from now may dadaan na particular vehicle with plate no. ganito ganito fully loaded with sacks of shabu although it is a moving vehicle, because of your information & you still have the time to procure a search

warrant then you need to go to court because in the course of the evaluation of the circumstances to justifying the seizure under that law time will be considered by the court. -Remember class, in terms of interpretation of exception to the general it is always construed against the government, against the law enforcement authorities. So take note of the time. - the stop & frisk rule - how do we apply this - well, when there are invitations that a private person shows unusual conduct suspicious conduct especially kung bulky dito sa tagiliran, that would be an indication na may baril dyan. can you apply this stop & frisk rule doctrine? ANS: YES, do you need probable cause - NO only unusual & suspicious conduct but this doctrine is search merely of outer clothing, hindi pwede ipasok yong kamay mo sa kanyang bulsa, lalo na sa underwear, baka ibang evidence ang makita mo, assuming there is an evidence. -Another thing that you have to consider is the consented warrantless search - usually ito ang gingamit “ Pumayag eh kaya sinearch namin” for example, a moving vehicle with a prior info that it has a seizable quantity of marijuana placed at its back trunk now, you cannot open it, you cannot order to open it & search, sabi natin sa checkpoint dapat visual lang. alam nyo sa magagaling na police officers marunong sila makakuha ng consent, yung kanilang power to persuade na anyway “kung wala ka talagang tinatago buksan mo na yan yung likuran ng sasakyan mo kasi may information kung voluntary that could be justified under the consented warrantless search.

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What are the Parameters for the court to determine that the actuation of the consented warrantless search is valid: - whether consent to the search is in fact voluntary is a question of fact to be determine from to the totality of all the circumstances relevant to this determination are the following characteristics of the person giving consent by which consent is given: 1. the age of the defendant or the suspect - if it is a minor could say there is a valid consent?ANS: hindi 2. whether the defendant was in a public or secluded location - the location consideration - kung in a secluded location medyo hindi basta basta tanggapin ng husgado, most likely the person is under such an intimidating situation to give consent. The interpretation of the court is that there is no valid consent kasi in a secluded location, kasi if in a public location that would be different the court will consider that there was a valid consent of the search. 3. whether the defendant objected to the search or passively look on. for example, nag object & definitely there was no consent papaano kung passive lang syawala syang reaction, basta tumingin lang sya sige mag search kayo dyan - so there could be no valid consented warrantless search. 4. the education & intelligence of the defendant - well kung no read no write na defendant mukhang may question tayo in respect to the consent given, the education & intelligence of the defendant. 5. the presence of coercive police procedures -

6. the defendant’s belief that no incriminating evidence could be found - pag sinabi nyo OK search mo ako wala naman dyan - so there is a valid consent, the defendant’s belief that no incriminating evidence could be found. 7. the nature of police questioning 8. the environment in which the questioning took place. 9. the possibility that possibly vulnerable to subjective state of the person consenting - the case of Rodel luz vs CA, G.R. No. 197788, Feb 29, 2012 - I decided this case here & I justified the search incidental to a lawful arrest but the SC said, applying doctrines in US there was no consented valid warrantless search. This case is about, ganito nagmamaneho sya ng motor wala syang helmet at napadaan sa isang station dito, flag down eh malapit lang sa station kinuha sya.Ngayon nong nasa loob na sya ng presento the accused behave suspiciously, panay ang, so pinalabas kung anong laman ng kanyang jacket at may isan container ng binuksan ang laman shabu, at hinuli sya at charge with illegal possession. ito ang mahirap tiningnan ko kung papaano ma convict ito kasi madaling araw eh dahil first before you search there must be a lawful arrest. the classification ay the search must incidental to a lawful arrest sabi ko he was violating an ordinance not wearing the helmet since he violated an ordinance he can be searched incidental to a lawful arrest punta sa CA sustained pagdating sa SC reversed that’s the beauty of stretching your mind. tiningnan yong batas pag ikaw ay hinuhuli ng traffic rules you are not said to be placed under arrest the police officer should take your license, confiscate your license & issue citation ticket. when you are temporarily hold for violation of traffic rules you are not said to be under arrest &

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therefore you cannot be search incidental to a lawful arrest. Ito yong isang argument ni CJ. - #2 - about consented warrantless search under that circumstances could there be a consented warrantless search? sabi you cannot be justify, first nasa station sya, he is in an intimidating situation, anong oras, madaling araw, at wala syang kasama, mahirap mapaniwalaan that it could be justify under consented warrantless search. pero both of us, the CA, were reversed by the SC. we learned from how we interpret the law & the facts but at least we achieved our purpose the accused were not able to do hi drug pushing activities. -as additional readings - Posadas vs Hon. Ombudsman G.R.No. 131492 Sep 29 2000 ang situation dito may mga eyewitnesses pwede ba yong eyewitnesses of the commission of the crime dadalhin ng police? sino ba ang responsibility ng killing, alam mo sir nakita namin. the crime happened usually after 1 day, 2 days pero may eyewitnesses. pwede ba yong eyewitnesses dadalhin para umaresto ng tao said to be responsible in the commission of the crime. sino ba ang responsible, sila po, can the police officer arrest that person? can it be justified under hot pursuit arrest meron kang eyewitness. this case of Posadas vs. Hon.Ombudsman, Roger Posadas is the former University president of UP, he is involve in the killing of Dennis Ventura, the hazing case, they were charge for obstruction of justice, they prevented the NBI to arrest those students who were believed in the hazing & killing of Ventura, and the Ombudsman filed a case against them for obstruction of justice & they filed a certiorari case before the SC. So SC said hindi talaga ma justify under hot pursuit arrest. First wala silang personal knowledge, tinuturo lang, so

what should be done by the police officer if in cases there are eyewitness ang gawin mo dyan mag file ka ng kaso or mag apply ka ng warrant of arrest pending filing of the criminal case. - another one this would help you to better understand about Sec 5 of Rule 113 - the case of Sammy Malacat vs. CA G.R.No. 123595 Dec, People vs Tudtud G.R.No. 144037 Sept 26, 2003 - in Sammy Malacat case try to read the separate opinion of CJustice Panganiban, he summarize the related cases about the valid warrantless arrest. - People vs. Anthony Cuizon et al gr no. 109287 april 18,1996 - Yung case ni People vs Tudtud this is about the reliable information & in the course sa checkpoint makikita dyan, halimbawa mayroon isang supot sa loob ng sasakyan pero hindi pa open naka close ang supot but you have a prior information na may supot na daladala na may shabu, pwede mo ba yan ma search & seize? Kasi iba iba ang decision ng SC eh, pero dito sa case na ito it distinguishes kung kailan maka pag search & seize on the basis of reliable information but the safest rule is that may reliable information plus may overt act before you can arrest & search. There must be a probable cause which contemplates that there must be an overt act to show that the person sought to be arrested is committing a crime in your presence or just committed an offense. - Now lastly that you have to take note in our discussion of arrest - the right of the arrested person to visitation by lawyer or relatives the right of the person arrested to confer privately with a lawyer is absolute & it can be demanded at anytime unlike with respect to relatives regulated yan eh hindi at anytime unlike in the case of lawyers

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talagang, the accused right to confer with his lawyer privately is absolute. - The failure to afford that would subject the concerned police officer to administrative & criminal prosecution. - Now, in relation to that visitation, RA 7438 this is an act defines certain rights of the person arrested, detained or under custodial investigation as well as the duties of the arresting, detaining & investigating officer & providing penalties for violations thereof. - Take note class that there is a penalty of imprisonment - a police officer who fails to inform the Miranda Rights of the arrested or detained person will subject to criminal prosecution. - now, when is a person under custodial investigation? Is police line up constitute custodial investigation? ANS: NO, because police line up involves general inquiry, but, when is a person under custodial investigation? when the investigation zeroes in to his participation in the commission of an offense, sa kanya naka focus that means the person is under custodial investigation & therefor his rights under RA 7438 will be observed & should be observed. - In respect to cases under inquest if the arrested, lawfully arrested person who is presented for inquest & in the course of the inquest proceedings he manifested that he wants to avail of his right to preliminary investigation he is required to execute a waiver under Art. 125 & in the execution of the waiver he should be assisted by counsel otherwise without the assistance of counsel that waiver is null & void. - Is invitation constitute an arrest?ANS: NO, does it constitute custodial investigation? YES, under RA 7438. Now, waiver of the right to counsel should be done in writing & with the assistance of counsel.

- And by the way, if a person is under custodial investigation, his right is not only a competent counsel but it should be independent also. If the counsel is competent only & is not independent there is something irregularity in the observance of the rights of the person arrested, detained or under custodial investigation. - Now, what’s the purpose of custodial investigation? Is it illegal? NO, hindi naman mali or illegal kapag pasalitain ka kung ano ang participation mo to extract the truth, it is not illegal, what is illegal is you are subjected to a coercive & intimidating circumstances in which your statements are taken without the presence of counsel. - The purpose of custodial investigation is of course is to extract extrajudicial confession. - But you know it’s ok, however in doing so the rights of the person should be afforded under that circumstances because while there maybe a statements given voluntary if it was assisted by a competent & independent counsel of choice the statements given while it is true, it cannot be made in evidence against that person giving that testimony. - supposing in a crime of murder the accused make an extra judicial confession can he be convicted? If there are other evidence showing his culpability in the crime of charge of murder? aside from extra judicial confession which was invalidly secure can the accused be convicted? ANS: YES, as long as there are other evidence, sabihin natin, inadmissible yung extra judicial confession if there are other evidence proving that he is involved in the commission of crime charge, he can be convicted. - But with respect to illegally obtained extrajudicial confession it cannot used in evidence in any proceedings whether

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administrative, civil or criminal because that is also within the ambit what we call the fruits of of the poisonous tree. 2/21/2013 - BAIL - Rule 114 - Can you tell us what is BAIL? Bail is given for as a security or to guarantee the appearance of a particular accused who is charged of a criminal offense. - What is the condition that the bail should be granted to the accused? - What the prerequisites in which bail is granted to the accused? Can the court, for example, a person is accused of homicide, homicide is a bailable offense & that could be avail as a matter of right before conviction. - Now, in order that a person can be protected under the threat of being arrested, that person ---- to the court to apply for bail, will the court, usually the recommended bail for homicide is P40,000.00, you went to the court to apply for bail for ---- will the court process his application. - we discussed extensively the distinction between the jurisdiction over the person accused & custody of the law. as we have said, when we speak of jurisdiction the court can acquire jurisdiction over the person of the accused even if not appearing before the court, mere filing a pleading the court can already acquire jurisdiction over that person except of course those cases which we called those special appearance cases. - but in the case of application for bail it is required that the accused should be under the custody of the law not jurisdiction because jurisdiction can be acquired through filing a pleading. - so in cases of application for for bail it’s a must that the person or the accused should

be in the custody of the law. - when is the accused under the custody of the law - a person is in the custody of the law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities - state the Constitutional provision of availing bail. “All persons except those charged with offenses punishable with reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Sec 13, Art III, 1987 Constitution)” - so all persons except those charge with offenses punishable by reclusion perpetua - which is cumbersome life imprisonment or reclusion perpetua - by, the way the basic distinction between life imprisonment & reclusion perpetua - 1.) in life imprisonment are the penalties imposed on those offenses punished by special law whereas reclusion perpetua refers to felonies under the RPC; (2) in reclusion perpetua there are accessories penalties & in life imprisonment there is not. But the question which more burdensome - reclusion perpetua or life imprisonment? - Life imprisonment is more burdensome because it no definite period while reclusion perpetua is an an indivisible penalty yet it has a legal duration of 20 yrs & 1 day to 40 yrs. In life imprisonment there is no legal duration. - what is the rationale granting the bail to the accused charged with an offense - the

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fundamental basis why the person facing criminal charges is because of the presumption of innocence & what you said in respect to purposes in a meanwhile that the accused held for trial when there is a bailable offense it is inadherence to honor the presumption of innocence of every person charged. - So the purposes of bail: 1.) to relieve an accused from the rigors of imprisonment until his conviction & yet to secure his appearance at the trial 2) to honor the presumption of innocence until his guilt is proven beyond reasonable doubt; 3) to enable him to prepare for his defense without being subject to punishment prior to conviction; - di ba papaano ka magkaroon ng wide livery to look for your witnesses & to prepare for your defenses if you are incarcerated. So if it is a bailable offenses you should be granted. - Now, a person is charge with the crime of homicide & after preliminary investigation the prosecutor found probable cause & accordingly he filed an information of homicide against the accused before the trial court in the information there is a line in the bottom recommended bail P40,000.00. Now here comes the accused he surrendered to the court & at the same time he applied for bail. Should the court set up the application for hearing? - Have you seen an information? - it is an affidavit in writing prepared by the prosecutor charging the persons of a particular offense, there is a recommended bail P40,000.00 which is the bail for homicide. Now, the accused come to avail under that circumstances , is the court set that up for hearing? The person is under the

custody of the law by surrendering & therefore being under the custody of the law he can apply for bail. It should not be set for hearing because there is a recommended bail in the information. - What is contemplated that there will be a hearing is when there is no recommended bail because you have to apply the factors obtaining to determine the appropriate amount that you will placed for bail. -When is bail excessive Yap vs CA, G.R.No. 141529 june 6, 2001 here the accused was charge of estafa & the court imposed a bail of P5.5M under the circumstances it is very obvious an excessive bail. You can just imagine stabbing somebody & killed & the recommended bail is P40,000.00 here, estafa is a property crime the prescribed bail is P5.5M. SC said quoting Justice Jackson “ granting that P5.5M as a bail is a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” -If you will be ask is there an instance that the court can inquire a person who is not accused in crime be required to post bail? The court can require a witness to post bail in order to secure his appearance even if he is not indicted. - What is your basis - Under Rule 119 Sec 14. - another legal basis wherein a person who is not yet charge in court can apply for bail, his application for bail can be granted aside from witness, person who is not yet to be charge - can he apply for bail? Sec 7 Rule 112 provides that before the complaint or information is filed, the person arrested will ask for a preliminary investigation in accordance with the rule but he must signed a waiver of the provisions under Art 125 of RPC as amended in the presence of his

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counsel. Notwithstanding his waiver, he may apply for bail while the investigation be terminated within 15 days. - What is contemplated in this provision - the proceeding contemplated in this provision is in cases where a person is subjected to inquest proceeding, in other words that person who was lawfully arrested under warrantless arrest under oath, so that if he avail his right to preliminary investigation he execute a waiver Art 125 & there will be an investigation - no charge is filed before the court in fact the inquest proceeding is given 15 days to study the case whether there is probable cause, but in the meanwhile since he is still detained can he apply for bail even though he maybe charge in the process? ANS: YES, because of Sec 7. The rationale behind here is that once a person is under the custody of the law he has the right to bail except of course if he is charge of a crime punishable by reclusion perpetua or capital offense. -

in extradition proceedings he is immediately arrested & he is deprived of his liberty, he may even be incarcerated, question, can he apply for bail? Remember in extradition proceedings there is no criminal charge - so what is really the rule. Can a person under extradition proceeding & who is detained can he apply for bail? ANS: YES he can because a person the moment he is deprived of his liberty he can apply for bail, the analogy here, if the person under extradition proceeding can apply for bail which is discretionary of the Commissioner of Immigration there is no reason why a person under extradition proceeding cannot apply for bail when his liberty has been restrained. - The answer is that the person facing the extradition proceeding when he is detained

he can apply for bail. Now, on the part of the court what is the criteria to grant bail to a person under extradition proceeding according to Justice Herrera citing CJ Puno, that the evidence required in the application in the grant of bail for person under extradition proceeding the quantum of proof is CLEAR & CONVINCING EVIDENCE, that evidence which is lower that proof beyond reasonable doubt but higher than preponderance of evidence. Clear & convincing evidence that the applicant or the person applying for bail in an extradition proceeding is not a flight risk & will comply all the orders & processes of the extradition proceedings. - Before the court prior to the granting of bail will require a condition that the accused be arraigned first. The question is - is that practice to require an arraignment is valid? Ganito kasi ang court kung minsan gusto lang makasiguro, OK arraign muna kita bago i grant yung bail mo, bakit ganon ang posture ng ibang ibang courts - dahil kung ikaw ay ginrant bail na arraign ka na kahit wala ka pwede ipatuloy ang kaso ito ang sinasabi natin Trial in Absentia. The exception of the case, the accused jump bail he is not yet arraigned & after availing bail, libre sya he jump bail, what happens to the case he was not yet arraigned - ano ang mangyayari sa case - may wisdom ito - na prior to the arraignment or prior to the draft for application for bail dapat ma arraign may wisdom din yan, syempre kahit na sya sumipot the court proceedings will not be held hostage & it can proceed in absentia. But why is it the SC said that is not valid Judge Lavides case, sabi ng SC mali yan you can just imagine it is a requirement before a person should be granted for bail ma forfeit ang kanyang right to file a motion to quash di ba, because motion to quash

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should be filed before arraignment otherwise that right is considered waived, except of course on the ground of lack of jurisdiction. - this also happens in the case of Serrapio vs Sandiganbayan, the Sandiganbayan refused to grant the bail without first having arraigned. - Requiring arraignment before grant of bail is not valid. 2/26/2013 There are 4 forms of bail - corporate surety, property bond, cash deposit, & recognizance. - Determine how much bond is it is usually stated in the information if it is a bailable offense. Usually the information state how much at the bottom of said information, for example, homicide, there is a portion there, bail recommended P40,000.00. now, when the information contains already a recommended bail there is no need for hearing because it is already the prosecutor who placed the recommended bail. - All the accused should do is, surrender to the court so he would placed under the custody of the law & then pay the corresponding amount of the recommended bail with undertaking with mug shots front, left, right profile - this is required. The affidavit of undertaking, that he would appear when required by court, & that if in case he fails to appear the case will proceed in absentia & sometimes it is also required where is the residence of the accused so that in cases he is serve with the processes of the court he can be located. - With respect to corporate surety the bonding company must be accredited first by the SC. You cannot just simply go to a particular bonding company & apply for personal bail

of the amount stated in the information. That valid company should be accredited by the SC, anyway it is just a matter of administrative requirements. And the court is very strict on that. - What is the effect if the accused will present a fake corporate surety? He can be arrested, in case the court is mislead & granted with an application on the basis of a fake corporate surety. - What is the difference between the filing of the cash bond & surety bond - if you file a cash bond that cash bond will be returned to you no deduction nor interest unlike if you will apply for a corporate surety bond there is a corresponding fee or percentage & it is usually effective ----until for between you & the loaner bond & you need to renew that. In so far as the court is concerned, that corporate surety bond is effective until cancelled by the court. - wala kang cash at wala ka naman pambayad ng fee for the corporate surety you can use the property bond. & the property bond, of course, not necessarily under your name but somebody could act as your bondsman as loaner for that particular property. - But all you have to do once its approved you need to registered it in the Registry of Deeds otherwise within 10 days it will be cancelled. - Now if it is unregistered what will you do its the same process you have to register it with the ROD plus caused the annotation & the tax declaration of the said property in the province or city where the property lies & it should be done within 10 days otherwise the court will cancel the property bond. - Recognizance - is an obligation of record, enter into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual

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condition in criminal cases being the appearance of the accused for trial. - surety of the state for the prosecution of the principal are required. - layman’s term actually, somebody whether there is guarantee for the court that he undertakes to produce & insure the presence of the accused when required during the trial. But not all cases that he can use this form of bail - the recognizance - not all cases. - the husband of the mariners college, managing officer of mariner’s college, Judge Ampuan was a former Judge of Quezon City & there was a case na constitute with Mayor Lim, he was indicted for a crime in which the penalty exceeds 6 months & Mayor Lim was trying to seek for the release of the accused under recognizance. The crime the prescribe penalty of that crime is more than 6 months, & Judge Ampuan declined politely the request of Mayor Lim. Was Judge Ampuan correct? He was correct in declining the request because not all cases can be subjected to recognizance by a person. Usually it’s the politician who undertake this recognizance. The politician will go to the court “Your honor i am willing to constitute myself as a dealer & guaranty the presence of the accused when required. But under the Rules class, recognizance can be avail for or maybe allowed in the following instances: (1) when the charge against the accused is for violation of a municipal or city ordinance, light felony & all criminal offense the prescribe penalty of which is not higher than 6 months imprisonment and /or fine of P2,000.00 or both, provided that the accused should establish to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or

bail bond. (RA 6036). (2) When the accused has been in the custody for the period of equal to or more than the possible maximum imprisonment of the crime charge to which he or she may be sentenced. In the case of destierro if he is incarcerated for 30 days he can be released after 30 days on recognizance. Halimbawa, the crime is punishable by arresto mayor, the penalty of arresto mayor has a range of 30 days & 1 day to 6 months. Now, the accused has already been on preventive detention for 6 months can he released on recognizance? ANS:YES. because he has already been incarcerated for 6 months. kung destierro ang prescribe penalty for cases of death under exceptional circumstance wherein the husband caught his wife in flagrante delicto & he killed them while in the act of making babies. You can kill both of them & the prescribe penalty is destierro, for purposes of protecting the accused from the harm that the relatives of the victims will bring to him. - And if you will be ask whether somebody has been sentenced with destierro can commit evasion of sentence? ANS: YES, because destierro constitute also restriction of your freedom or liberty so you can commit the evasion of sentence. (3)

at the discretion of the court if the accused has been in custody for a period of equal to or more than the minimum of the principal penalty prescribed for the offense charged, without applying the indeterminate sentence law or any modifying circumstances. (4) Under RA 9344 with respect to child 15 yrs old or below taking custody shall be released to his parents, or guardian or in

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the absence of thereof the child’s nearest relative. - if the parents, guardian or nearest relatives cannot be located or they refused to take custody, the child maybe released to any of the following: the duly registered nongovernment organization, the barangay official or a member of the barangay counsel for the protection of the child, the local social welfare & the dev’t officer or where appropriate the dept. of DSWD. - Now, class as much as possible when the accused is a minor which we call the child in conflict with law, the law provides that as much as possible there should be an alternative dispositions instead of detaining them they should given to the care & custody of his parents or gov’t. institution which taking care of children & lately I heard that Congress is planning that the age of the criminal responsibility should be reduced. - there are so much objection now with respect to the present law that the age of criminal responsibility because at present 15 yrs & below is totally exempt, above 15 but below 18 depending whether the child in conflict with law acted with discernment whether he knows what is right or wrong. - What are the conditions of bail? Well in Sec 2 clearly stated but just to simplify it actually to guaranty the penance of the accused in all the stages of the trial & becomes effective upon approval of the court. - Well finding the application for bail sufficient in required & substance - the judge approved. The dealer of the accused is directed to release the accused until further orders & then of course the undertaking would be he should appear in those instances under the rules in which the

accused is required to appear before the court. - in the issuance of a bench warrant - it is only that court that issued it that can revoke it, it cannot be interfered by other court and even in an ordinary case when the case is filed for a particular accused & he is at large, let us say, a case of homicide was filed before RTC Naga but the accused cannot be located his given address in Naga & he was found in Manila, Can he apply for bail in Manila? ANS: YES, because accdg to the rules he can apply bail to the place where he was arrested. - Now, but in he case of bench warrant - it cannot be interfered by other court it is only that court that issued the bench warrant who can make any disposition of the warrant. - In all stages, by the way tatanungin ko sainyo sa finals - In what stages or instances wherein the appearance of the accused is required by the Rules: It should be personally done by the accused himself. So during arraignment. What else - during promulgation - for the purposes of identifying the accused. - But there ought to be an order from the court that his presence is required to be present for purposes of identification - there must be an order. ( you are hereby directed to appear on this particular date for trial ) - During the arraignment you must be present, in promulgation class, if that is only light offenses promulgation can be done in absentia by the accused provided, his lawyer is present. - but in cases before the RTC, can promulgation proceed without the presence of the accused ? ordinarily the accused should appear during promulgation but in instances where the accused has been duly notified & needed to appear during the promulgation, can the court proceed with

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the promulgation? ANS: If duly notified pwede. - How it is done? ANS: It is done by recording the judgment in the criminal docket of the court & serving the copy of the decision to the accused at his last known address & also his counsel - that’s how you promulgate in absentia. - But you there were an instance that happened in Baguio a judge got angry because the accused was not present when his decision was about to be promulgate it was only the counsel of the accused who appear. Now, the case was called & the accused was conspicuously absent it was only the lawyer who appear & the judge ask where is the accused “Your honor I tried to contact the accused but I cannot locate him” according to the judge “Let’s proceed with the promulgation & Atty so & so do not sit down you remain standing, OK Branch Clerk promulgate the decision, of course the lawyer pleaded to the court “Your honor can I take my seat?” No you remain standing that’s how promulgation should be done, but the counsel really pleaded to the court because according to him he was not the accused if he stand up katawatawa sya eh para sya na ang akusado, but the judge did not mind his pleadings so napilitan na yung abogado, at lahat na mga present during the presentation during the trial ay nakatingin sa kanya as if sya ang na convict at convicted. TAMA BA YONG GINAWA NG JUDGE ? Right after the promulgation he filed a complaint, an administrative complaint sabi nya “grabe pinahiya sya eh” those are one of the cases which accused were filed against the judge & unfortunately the judge was dismissed by the SC. of course not only in that incident but other several incidents. You know of the accused is not present you can proceed promulgation in absentia - it’s not

how you do it - “you are hereby ordered considering the accused is not present Let this decision be promulgated by recording to the criminal docket & serving a copy to the accused at his last known address & to his counsel.” - Take note class that there should no movement of prisoners in the detention cell without the court order otherwise, may malilintikan dyan sa jail warden. - Lately, in the new drug case in Cavite, the accused was rescued by the syndicate yung mga robbery...I was the one who filed the case, I was surprised na hindi pa yon tapos. because when i left that case there was an appointment by the judiciary, halos patapos na yung prosecution eh. Its about a drug laboratory. Kaya dapat maingat ka doon that you just cannot simply transfer an accused from their detention cell without the court order, even if the accused is suffering an ailment unless it is an emergency case the jail warden has no authority to bring the accused to the hospital. the jail warden should ask permission of the court. This is specifically provided under Sec 3. - Now, ito na ang pinaka importante that you need to consider in BAIL - WHEN BAIL IS A MATTER OF RIGHT & WHEN BAIL IS A MATTER OF DISCRETION. - Sec 4 & Sec 5 is very basic cases of course cases from MTC before & after conviction bail is a matter of right. - when we speak of AS a matter of right the court has no discretion kung hindi i grant yan otherwise if the court exercise excessive discretion grave abuse of discretion yon kaya nga a matter of right. The court is not required to exercise discretion it cannot afford to exercise discretion if the court exercise discretion in cases bail a matter of right that’s grave abuse of discretion.

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- & before & after, yung cases ng kahit na convict na, for example an offense the prescribed penalty is presion mayor, before conviction pwede mag bail, after conviction, convicted na sya pwede mag bail as a matter of right. - Now, of course before conviction, cases within the jurisdiction of RTC, not punishable by reclusion perpetua, by death, life imprisonment - a matter of right yan. - Now, after that, the judgment of conviction by the RTC in cases of an offense not punishable by death,reclusion perpetua or life imprisonment,the nature of bail becomes discretion. - what about if the crime is a non bailable offense, non bailable offense before you can be granted the bail there ought to be a hearing in the process of evaluation of the evidence presented by the prosecution during the trial wala naman qualifying circumstance that would raise the killing to murder sinabi lang ng court this is not a case of murder but a case of homicide. Ngayon can the accused apply for bail? YES, because that’s a matter of discretion & who ask on that note. Supposing that the application is filed in court in the RTC that convicted accused can the RTC that convicted the accused can process the affidavit? ANS: YES, for purposes of transmittal to the CA in case if there is an appeal. - What happens if the accused is convicted in which the prescribed penalty is more than 6 yrs but not more than 20 yrs, well the accused can be granted on the same bail subject to the consent of a bondsman, & without the presence of 5 mitigating circumstance like repeat offender ay hindi na pupwede. - The Rule is in cases of conviction like murder, it is non bailable, in case of Leviste

he was only convicted of homicide instead of murder ngayon nag apply sya ng bail sa CA, sabi nya medyo masama ang pakiramdam ko, I know bail in this case is a matter of discretion since I have a valid justification to grant bail for me on account of his health pwede, mag grant ang aking application for bail. You know class, sabi ng SC pag ang akusado ay convicted kailangan mas mataas ang antas ng pag process, did the court should exercise a discriminating view as much as possible if it cannot justify the reasons for the grant of bail it should be denied. - But in cases of the presence of 5 mitigating circumstances talaga no bail should be allowed. - And what are these 5 mitigating circumstances: 1) repeat offenders, recidivist, quasi recidivist or habitual delinquent or commission of crime aggravated by the circumstances of reiteracion. 2) Previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification. 3) Commission of an offense while on probation, parole or under conditional pardon. 4) Circumstances of the accused or his case indicates the probability of flight if released on bail 5) Undue risk of commission of another crime by the accused during pendency of appeal. - After conviction if the accused apply for bail, the prescribe penalty is 6 yrs & 1 & there are presence of these 5 mitigating circumstance the bail should be denied & should be provided with notice to the accused & a hearing should be conducted to

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determine the presence of these 5 mitigating circumstances. - You will notice we still have what we call the capital offense, for purposes of discussion, remember class in our criminal statute, the RPC, still the penalty of death remains in our criminal statute, for example, murder - what is the prescribe penalty for murder - reclusion perpetua to death, in case of qualified rape when the victim died & the commission of rape was attended with the use of bladed instrument or weapon, that’s a qualified rape & when the victim became insane - that’s qualified rape, so the prescribed penalty is still reclusion perpetua to death. - Now question, do we have still what we call capital offense? ANS: YES, but the court cannot imposed for that prescribe penalty for that capital offense due to the enactment of RA 9346 - An act prohibiting the imposition of death penalty in the Phil, which was promulgated on June 24, 2000. - While capital offense remains in the criminal statute, still we cannot avoid talking about capital offense, but was has been removed here is the imposition of the penalty of death. There was no abolition or specific amendment, only prohibition of the death penalty. - Technically there is no capital offense because we cannot imposed the death penalty in view of RA 9346, however death penalty as a penalty still remains in the statute. 3/5/2013

competent & independent counsel, in the trial you just need an effective counsel because the danger that the counsel in the voluntary statement that he made is removed, as a matter of fact the counsel in the course of trial, his obligation to tell his client to tell the truth, kung sasabihin na “atty. aamin na ako kasi ginawa ko talaga eh”, can you prevent him? The rule of the lawyer is not to prevent the accused who wants to plead guilty. - As counsel it is your duty to tell the truth. - The right to counsel during the trial - what you need is an effective counsel. An effective counsel does not prevent you from telling the truth & to plead guilty to the offense charge. - The right to counsel is not an absolute right & can be waived & the accused can represent himself. - During the trial there are questions during cross that the accused maybe subjected to a criminal prosecution, the accused can invoke his right to remain silent. He can invoke it at anytime & it could not be taken against him. However, his mere silence is that effective but his failure to present evidence that could definitely affect his defense, can you just imagine if he does not present any evidence in his favor that the court will rely only on the evidence of the prosecution, so most likely the accused can be convicted unless the evidence presented by the prosecution is requiring quantum of proof to prove the guilt of the accused beyond reasonable ground.

RIGHT OF THE ACCUSED

Right to Counsel - To briefly emphasize the right to counsel, the difference between the right to counsel in custodial investigation & during trial - in custodial investigation you need a

- Another right of the accused is to be exempt from being compelled to a witness against himself - in the course of the trial the objection that you can make is “objection your honor the accused may interpose that the accused should not

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answer that because the accused is invoking his right against self-incrimination” . Well what is contemplated here is actually the exercise of intelligence. If it is only mechanical like lifting up your shirt to determine whether you have a tattoo on your chest, any objection to that cannot be sustained because it does not account to compulsion as it would not exercise intelligence. - But in the prosecution of falsification of public documents, if the accused will be required to write down his signature, writing his signature would entail the exercise of his intelligence thus the accused properly & interposed an objection against this tight against self-incrimination. - Your right to be exempt from being compelled to be a witness against himself. Imagine if you will allow that scene, papirmahin mo sya, & it is strikingly similar to the falsified document the accused would be convicted of the crime charged. So if you were the counsel you have to be alert to invoke that right from being compelled to be a witness against yourself let the prosecution prove its case. - Actually the trend now in SC is allowing the DNA test, as a matter of fact a lot of cases which were dismissed & the accused were acquitted because of the result of the DNA test, as in the case of Webb they were invoking let’s look up the specimen that you gathered & compare to our sperm if it could match. eh hindi pig present ng prosecution so kung may sinasabi na there is a spermatozoa in the remains of the private parts & then you are very sure that it is not your sperm you better avail this DNA test. - The Right To Confront the Witnesses well usually this happens when the witness is presented, you have to cross examine to

test the credibility of the witness, so cross examination is the tool to determine whether a particular witness is telling the truth or not thats why this right to cross examination to confront witness is a very important right of the accused. - there are instances that you cannot anymore cross examine the witness because he could no longer found, the witness is already 6 feet under, so you cannot excavate his grave & bring him to the court to testify, but class, in the event that said witness who could no longer be found whether he is abroad or already dead, the testimony that he give in another proceedings invoking the same parties in which the other party was given the opportunity to cross examine that testimony can be utilized. - How do you do that - this is what being done - you just get the transcript, the REQUISITES are: the parties are the same party which involve in the other proceedings, the other party was given the opportunity to cross examine that unavailable witness who is already dead, abroad or no longer be found & then that transcript of the stenographer during the testimony of that witness should be presented in court & mark it as an exhibit, you will say “your honor i have here the stenographic note of the witness in which we are the same parties the prosecution was given the opportunity to present & i would like to avail the testimony of this particular witness who is no longer available & that is my right & I am marking this stenographic note of testimony of the witness as part of my evidence - then mark it as a particular exhibit.” and don’t forget at the end of your presentation of evidence you formally offer it, kasi it’s a documentary evidence, although testimonial pa rin ang contents but

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of course but for purposes of formally offering it like it should be treated like an ordinary document formally offered in court. Don’t forget that. - To Have Compulsory Process Issued to secure the Attendance of Witnesses & Production of Other Evidence in His Behalf - supposing you know a witness, a government official who has the custody of the document in which your defense will be strengthened & you need his testimony & this official refuses to testify, you have the right to ask the court to compel that public official to testify. - YOU ask the court for a subpoena for that particular witness to be present & testify in court - that’s the right of the accused to have a compulsory process. - And remember that between the powers of government & the right of the State in its citizens , talagang you can just imagine the disparity of the position, hence, in order that the accused would not be wrongfully convicted he should be afforded of the opportunity to defend himself, & one them is to have that right to compulsory process to ask the court “Your honor may I ask for a subpoena for a particular public official & I have already talk to him & he refuses to testify”. You can ask the court for the issuance of the subpoena. - What is the consequence of the failure of the public officer to obey the subpoena of the court - will he could be cited in contempt & you can just imagine if the court resort to incarcerate you until such time you comply the order of the court to testify. - You can just imagine if a person is wrongfully convicted simply because he was deprived of the opportunity to secure an evidence & it is the duty of the State also that the case of the people should be based

on truth & justice, hindi lang a matter of persecution.

- The Right to have a speedy, impartial public trial - how do you invoke this right to speedy trial - well, if you will examine the jurisprudence on this matter, first you have to demand, & usually if you demand there are already several postponements, for example, arraignment, if you are a detained accused for a particular crime, let’s say the case of murder, under the Rules from the time your case was raffled, the court should set your case for arraignment within 10 days after raffle. Now, if you will not be arraigned in that period & several postponements until it is already 1 yr, 2 yrs & you are not yet been arraigned, then you can invoke your right to a speedy trial. - For 1 year hindi ka na arraigned it is a clear violation of your right to a speedy trial. Now, & if the court found that talagang the prosecution is remissed despite repeated warnings, & by the way the determination whether there is already an undue delay could not be ascertained merely by falsification of giving you ample time, it’s about whether the prosecution has been given ample opportunity, repeatedly warned by the court & yet failed to perform its duty in which case the court has no other choice but to sustain the invocation by the accused of his right to a speedy trial & if you will look at the jurisprudence, usually yung case di pa nachacharge, for example yung case ni Tatad for the case of failure to file his SAL (Statement of Assets & Liabilities). - Sen. Tatad was charge without invoking this right about 6 yrs it was fully filed sa Sandiganbayan, he move for the dismissal invoking his right to speedy trial & it was

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sustained. Ito ay simpleng kaso ng hindi pag file ng SALN, it took the office of the Ombudsman 6 yrs kaya nga noon inano yung Ombudsman na ang kanilang theme song is Monalisa-bakit Monalisa - the cases just lie there & they die there. - there is no hard & fast rule about to invoke the right to a speedy trial what is important is you invoke it & the prosecution is given ample time & failed to perform its duty. - IMPARTIAL of course dapat hindi bias ang court. otherwise wala ka pa rin chance, importantly it is impartial. - it should not be the prosecutor, it should not be the investigator prosecutor ang judge it should be an impartial tribunal otherwise if it is not impartial therefore parang sa case ni Galman vs Pamaran- sabi sa Malacanan mag moro moro nalang kayo dyan it was invalidated, the proceedings were invalidated because there was no impartial public trial. - Is it always that trial be open to public? well there are cases but ordinarily it should be open public trial. but there are cases, for example,in case of private crimes, in case of rape, you can just imagine if the person who is a victim of rape & everybody wanted to hear her testimony. You know with the behavior of Filipino wanted to know every tsismis. The court in order for the protection of the private complainant will exclude the public. So that the private complainant can really without embarrassment recount the ordeal she suffered from the accused. Right to appeal - in the case of Neplum Inc. vs Evelyn Orbeso GR No. 141986 July 11, 2002, sabi ng SC “appeal is not part of due process.” This case is about the right to appeal, the nature of the right to appeal. According to SC “It should be stressed that the right to appeal is

neither a natural right nor a part of due process. It is merely a procedural remedy of statutory origin and may be exercised only in the manner prescribed by the provisions of law authorizing its exercise. Hence, its requirements must be strictly complied with. The failure of petitioner to file a timely notice of appeal from the Judgment, thus rendering the Judgment final and executory, is not a denial of due process. It might have lost its right to appeal, but it was not denied its day in court.” - lastly in our topic of the right of the accused, read this case of People vs Mahinay, GR No. 122485 Feb 1, 1999 - here the SC capsulized the concept of the so called Miranda rights of the accused. There are 11 you just read. Maybe i will ask in the finals, what are the Miranda rights of the accused, pwede ba? Rule 116 : Arraignment & Plea - I was talking with the clerk of court, “Have you experienced conducting an arraignment? sabi sa akin, Judge hindi ako judge clerk of court ako, i don’t have power to conduct an arraignment, sabi ko sigurado ka, let us read the provision of Sec 1 Rule 116 - sabi The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or the clerk - although hindi sinasabi dito na branch clerk of court di ba? Actually what is referred here is the branch clerk. - Can the branch clerk really conduct an arraignment? The rules say so but technically class it is only allowed by the rules but in practice there is no judge that delegated the conduct of arraignment his clerk of court. sabi nga ng isang clerk of court judge ang ibig lang sabihin nyan ano

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nandyan pa rin yung judge it’s only the reading that being delegated to the branch clerk. sabi ko remember the conjunction here is ‘or’ in other words in the absence of judge its the clerk of court. - Technically it would seem that the clerk of court is allowed to conduct an arraignment, now, sabi nya reading lang yon, NO, because the process of arraignment consist of 3 PROCESS - (1) furnished the accused with copy of the complaint or information, (2) reading in the language known to the accused (3) ask the accused whether he pleads guilty or not. - There are 3 processes in the arraignment the furnishing a copy of the information, reading of the information in the language known to the accused, & asking the accused whether he pleads guilty or not. - and mind you class, in arraignment there are lots of possibilities, anong mga scenario nila, alright, call the case, is the accused ready for arraignment? sasabihin ng defense counsel, yes your honor we’re ready for arraignment, alright for the accused - ready for arraignment? in what language do you wanted to read the information Bicol, English or Tagalog? Bicol lang po. alright, have you been furnished with a copy of the information - non yet, ok clerk of court furnished the accused the copy of the information, now, read the information in the language known to the accused - after reading it’s very - now, you have already furnished the accused with the copy of the information, & read the information in the language known to the accused, the next & last process is to ask the accused - what is your plea? guilty or not guilty - yung ibang akusado sasabihin sa yo - your honor it is your duty to find out whether i am guilty of not, eh ano ngayon ang i enter mo that’s the answer of the accused, kaya sabi ng clerk of

court ayaw nila mag conduct ng arraignment, eh kung ang sagot ng accused ay ‘your honor you’re asking that question whether i’m guilty or not it is your duty to know’ - what will you enter? NOT GUILTY. - may scenario pa dyan na - oh what is your plea guilty or not guilty - eh yung accused parang galit sayo - ang daming talagang scenario na kung minsan matatawa ka or maiinis. - ano ngayon ang ilalagay mo doon sa record. kailangan i complete mo ang record yung certificate of arraignment, importante yun sa administrative purposes to check whether there was an arraignment conducted. - so in that case you will enter “NOT GUILTY” a plea - another - ‘what is your plea’ - your honor i moved for suspension of arraignment, eh dapat sinabi mo yan kanina pa nabasa na ang information tapos ngayon ka lang nagsabi, eh anong ground mo why you are asking for the suspension of your arraignment - dito nalang ba magtatapos yon. dapat bago pa i conduct ang arraignment nyo you have to announce the suspension, what is your ground for suspension of the arraignment - because your honor i have a pending petition for review with the DOJ with respect to the resolution which will became the basis of the resolution of this information which was read awhile ago - can you sustain that? it depends, if he can prove that he did file a petition for review the you can suspend but for a limited period of 60 days. - now, in the course of the course of the arraignment, the judge ask the accused what is your plea guilty or not guilty - eh nakatingin sa itaas, tinitingnan ang butiki, eh ano ang gagawin ngayon ng judge, doon na sya naki pag usap sa butiki, hindi ka na pinapansin, well you know that’s a scenario

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that there might be some problem in the mind of the accused, the accused can not be sound mind, he might not be physically & mentally ready to enter the rigors of the trial - you have to suspend the arraignment, kaya hindi madali ang arraignment. ang daming scenarion dyan. - another scenario that - your honor i plead guilty as charge because i killed him in self defense, what you should enter in the record - NOT GUILTY. - supposing the accused enters a plea of guilty to a capital offense what will the judge do he should conduct a searching question before accepting the plea of guilty - to ascertained the degree of his participation & not only that, ito ang nakakatawa sa rules natin, nagsabi na - your honor guilty talaga ako, pero it doesn’t stop there even in the course of proving & searching question by the court, the court should not stop there in cases of the accused pleaded guilty to a capital offense, the court should require the prosecution to present evidence. You can just imagine, in order to really ascertained that the accused really committed the crime. - what about if it is not a capital offense well, reception of evidence is discretionary, but nonetheless, it is important for the court to ask a searching question to determine the voluntariness & the comprehension of the consequences of this plea of guilt. - There are a lot of possibilities in arraignment, you know yung PAO lawyer pag ang akusado ay represented by a PAO lawyer ay talagang madali eh, kasi ang PAO lawyer sasabihin - aminin mo nalang, kaya, but you know hindi naman mali ang pag papaamin mo eh kung ginawa talaga, if there is no defense & the accused really committed, it’s better to be truthful to the court because if you convicted there it’s a mitigating circumstance.

3/7/2013 - Is there an instance where the public prosecutor can enter into plea bargaining without the consent of the private offended party? The requirement - (1) there must be a consent by the public prosecutor; (2) the private complainant has been duly notified & despite notice the private complainant failed to appear, in which case the prosecutor can enter into plea bargaining. - Just to give you scenario, i think i gave you almost all the possibilities - during arraignment - basically, if the accused is assisted by counsel at the first instance when the case is called for arraignment the judge will ask - do you have a lawyer? If you don’t have a lawyer the court would like to inform you of the right to counsel of your own choice. If you cannot afford the counsel the court will appoint counsel de officio for purposes of arraignment. - Counsel de officio - has a reasonable period in which to prepare for the arraignment, you know class the arraignment should should not be taken lightly, because once you are arraigned you waived your rights to file a motion to quash the information except of course in cases of double jeopardy has set in & in case wherein the court has no jurisdiction over the case filed & in case the criminal action or civil liability has already been extinguished. - so, there is a need to study the information, for example, there is an illegal arrest well you file a motion to quash on the ground of lack jurisdiction when there is an illegal arrest, & you do it before plea, otherwise, if you enter a plea & you did not placed it you waived your rights. So whatever illegality that attended to that illegal arrest would be

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deemed waived & cure. You cannot anymore say it’s an illegal arrest. - for the counsel de officio dapat pinag aaralan yan eh. - in the course of arraignment & the judge ask the accused what is his plea, & the accused, he ask for a plea bargaining ‘your honor i want to plea guilty to a lesser offense’, for example the charge is attempted homicide, your honor i am willing to plea guilty to a lesser offense. When the accused manifest that proposal he’s actually entering a plea bargaining. - as we have said in the case of Daan vs Sandiganbayan, “plea bargaining is a process whereby the accused & the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involved the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that that for the graver charge.” - in that case, the court will ask the prosecution - prosecutor any comment usually the prosecution will ask for deferment of arraignment on the ground that they did not secure the consent or conformity of the city prosecutor. - Remember class that in RTC level, 2nd level court , the plea bargaining there , pursuant to DOJ circular when the prescribed penalty is more than 6 yrs you need the consent of the city prosecutor. When the case is called again & there is already the conformity by the provincial or city prosecutor, the arraignment will push true & the accused will be allowed to plead guilty to a lesser offense. - What happens to the information? Is there a need to amend the information? No need, what is important is that, in plea bargaining

there must be consent from the offended party & the prosecutor, in cases where there is a presence of the private offended party & he was duly notified kay nga present sya, unless the private offended party was duly notified & failed to appear without justifiable cause, in which case the prosecutor can give consent. - Is there a need to amend the information? NO NEED, the requirement of the plea bargaining is that (1) the right in which the accused would want to plea guilty into a lesser offense must be necessarily included in the offense charge. - When is an offense charge necessarily included? When some of its elements or essential ingredients are part or forming part of the lesser offense or vice versa. - For example in the case of attempted homicide & physical injuries - may buhay dyan - except for the intent to kill, some of the injuries inflicted or infliction of an unlawful act which resulted to the injury is an essential ingredients involved in those crimes, so necessarily included. - so dalawa lang ang requirements: (1) consent of the private offended party & the prosecutor (2) that the lesser offense includes the essential elements in the charge or vice versa. - As in the case of murder or homicide - their elements are practically the same, except for qualifying circumstance. But the essential ingredients are common to both of them. - For example, the charge is homicide & you plea guilty to acts of lasciviousness medyo malayo, walang commonality of essential ingredients. so the court approving that kind of plea bargaining is committing grave abuse of discretion. Imagine the charge is homicide & the proposal to plea bargaining is acts of lasciviousness. is there a

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commonality of the essential; ingredients between the two offenses? Wala eh. - What about acts of lasciviousness & rape? pwede pa. The difference only is the intent to penetrate, in acts of lasciviousness there no intent to penetrate. - What kind of instrument used to penetrate? that’s the accused to contemplate, remember class, if you use any instrument - it constitute rape. That is rape by sexual assault. - A woman can also commit rape, if she insert something into another woman that’s rape by sexual assault. - We already discussing plea bargaining as the subject matter for pre trial. You know plea bargaining as in the case of Gen Garcia that caused the impeachment & eventually the resignation of Ombudsman Guttierrez. The office of the Ombudsman entered into a plea bargain with Gen Garcia that he would only plea guilty to a lesser offense & that he would return 1/2 of what he had stolen from the government & caused an uproar to the Filipino people & triggered a congressional investigation. But let us look up the legality of the plea bargaining entered into by the office of the ombudsman. - accdg, to some legal minds, the State is the offended party, in such a case it should be the AFP who was directly affected therefore there ought to be consent of the AFP represented by the Chief of Staff or the Ombudsman, but some say, its the Chief of Staff or the SolGen, but some say its the CG, AFP or the Ombudsman. I think, because this is still pending before the SC, I believe that consent the office of the ombudsman is valid, because with respect to graft cases, it is already the representative of the gov’t. BASIS: Laraya vs Pe CA-GR SP

80927 feb 4, 2005 dito pinaliwanag ng SC kung sino ang makakapag bigay ng consent for plea bargaining In cases what we call victim less offenses or crimes which has no private offended party. Ex. violation of dangerous drugs act - no private offended party but cannot be subject to plea bargain. In cases of violation of fisheries law. - If there is a violation of Fisheries act - it is a victim less offense. - SC sated - In cases of victimless offenses, pag nasa lower court it is enough that the prosecutor can represent the gov’t & give consent. Pag dating sa CA & SC - SolGen. If there is no conformity with the SolGen the authority dito is based on the admin code of the phil. which vest upon the SolGen to represent the gov’t in criminal cases before the higher courts, so in higher courts ang pwedeng lang mag consent dyan sa victimless offenses sufficient na ang Solgen in behalf of the gov’t. - In the lower courts - RTC/MTC - it is enough the consent of the public prosecutor suffices to give validity of the plea bargaining. - In cases before the Sandiganbayan - it is the office of the Ombudsman to prosecute & decide cases, that is why that the consent of the office of the Ombudsman to enter into plea in the case of Gen Garcia it might not morally right but legally right. - In the cases of plea bargaining you have to read the case Amatan vs Judge Vicente Aujero, A.M. RTJ-95-986, Sept 27, 1995, what is this case - here Judge Aujerio agreed to approved the plea bargaining of the parties invoking the right to plea bargain. he allowed the accused to plea guilty to a lesser offense. The charge is homicide may patay & plead to attempted homicide, & there is a consent from the offended party. Sabi ng SC it defies logic may patay tapos attempted

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homicide - although inadmonish dito si judge aujerio pero sabi ng SC before arraignment ang sinasabi dyan sa old Rule, in which this case had happened sabi kasi doon the accused provided with the consent of the offended party & the prosecution can be allowed to a lower offense whether it is necessarily included in the offense charge or not. kaya nga inallow. Pero sabi ng SC In instances where a literal application of a provision of law would lead to injustice or to a result so directly in opposition with the dictates of logic and everyday common sense as to be unconscionable, the Civil Code 5 admonishes judges to take principles of right and justice at heart. - So how can you allowed an accused to enter plea for attempted homicide when there was a person who died. - we also discussed last meeting about a scenario of an accused who pleaded guilty to a capital offense, the requirements in order that the of plea of guilty to a capital offense to be accepted there are 3 REQUISITES THAT must conform: (1) judge must conduct an inquiry into the voluntariness & full comprehension of the consequences of the accused made; (2) require the prosecution to prove the guilt of the accused at the precise degree of his culpability; (3) inquire WON the accused wishes to present evidence on his behalf & allow him in doing so he desire - ibig sabihin the fact na nag plead guilty to a capital offense ay tapos na ang boksing, hindi eh. kailangan magtanong ang judge ng circumstances na kung bakit ka nag plead guilty ka, alam ba nya ang consequences, kailang malalaman nya capital offense ito, it doesn’t mean that when you plead guilty you will be given a lifetime penalty, remember the penalty for capital offense is death & that is an indivisible penalty, hindi

ka naman pwede maka divide ng penalty of death. - People vs Galas G.R. NO. 139413-15 Mar 20, 2001 - plead guilty to a capital offense. - the reception of evidence is discretionary. - as we have said when there is defect on the information all you have to do is file the petition for bill of particulars, you an also file for the production or inspection of the material evidence in possession of prosecution. - GROUNDS FOR SUSPENSION OF AN ARRAIGNMENT - 1)the new ground here is the case about the petition for review - 2) the accused appears to be suffering from an UNSOUND MENTAL condition have the accused medically examined until such time he is ready to face the rigors of trial - 3)if there is an existence of PREJUDICIAL QUESTION - this last ground is a new provision in came about because of the different position of judges, there are judges, at the time before this provision was instituted in the new rule, that would definitely suspend the arraignment until such time the Sec of Justice will be able to resolve the petition for review. but there are judges na arraigned na, in case of Mogul, now to give the parameters & avoid this conflicting positions of judges they set the time limit, so that within 60 days from the time of filing for petition for review with the DOJ, walang discretion ang court - it has to suspend, may petition for review the accused would move for the suspension of arraignment. - in most cases & in usual cases that the accused would move for suspension of arraignment, why, because the requirements for petition for review is that the accused should not have been arraigned - eh kung na

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arraign na yan dismissed yung petition for review mo. - within 60 days walang discretion ang court, kung mag insist ang court to arraign you can file a case of grave abuse of discretion amounting to lack of jurisdiction & correctable by certiorari. - Solar Team Entertainment vs People & Hon. How, G.R. No. 140863 Aug 22, 2000 ang scenario dito talaga na suspend ang arraignment indefinitely - case of Dimatulac vs Judge Sesinando Villon, G.R. No. 127107, Oct. 12, 1998 ang nangyari dinowngrade yung charge ng murder to homicide, nag petition for review yung private offended party, then the accused ng pa arraigned sa homicide. Bakit nag pa arraigned, kasi pag na arraigned ka na hindi ka na makasuhan ng muder double jeopardy na eh. Kaya invalidated ang arraignment because there was an undue risk in the arraignment of the accused. - kaya to prevent na scenario na pabilisin, patagalin, binigyan ng time limit, may time bar na 60 days. - IMPROVIDENT PLEA - it is a plea in which it was made without a full information to the consequence of the plea. It can be made in any stages before the resolution of the case.

Rule 117: Motion to Quash - motion to quash is usually the grounds are practically the same with the motion to dismiss of Rule 16 of Civ Pro - the facts charge does not constitute an offense - for example ang allegation dyan ay cheating, the fact charge is cheating, the information it charges the crime of cheating during the exam, it is not a crime it is only an admin offense so it can be quashed on

that ground. - the court trying the case has no jurisdiction over the offense charge - for example, the case of physical injury, the prescribe penalty is less than 6 yrs & you file a case in the RTC, walang jurisdiction. - The court trying the case has no jurisdiction over the person of the accused - here illegally arrested, you can file a motion to quash on the ground of jurisdiction, but if you did not file that before plea - waivedremember that if you did not file before plea all these grounds are waived, except criminal action or liability has been extinguished & double jeopardy - The officer who filed the information has no authority to do so - a lawyer has no authority to file an information. - That it does not conform substantially to the prescribed form - That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses - it is only one criminal information that should be filed, example, in an information for rape sinabi sa charge na in the morning ni rape sya and at the same morning the act was repeated 2 more times, ilang offenses 3, you can move to quash, kailangan isa lang, kung marami ihiwalay mo. - That the criminal action or liability has been extinguished - example, marriage of the offended party, in case of marital rape, but the wife pardon - extinguished - That it contains averments which , if true, would constitute a legal excuse or justification - prescribed na xxx - That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged - there

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are 2 kinds of double jeopardy - same act & same offense & requirements - in respect to the provisional dismissalrequirements: express consent to the accused & due notice to the offended party. Pag cases where the prescribe penalty is 6 yrs & below 1 year - permanent; more than precion coreccional it becomes permanent after 2 yrs.

Rule 118 Pre-Trial - the pre-trial agreement should be in writing & should be approved by the court & signed by the accused. If the pre-trial agreement is not signed it cannot not bound the accused. kaya nga pag may pre-trial proceedings kami tinitingnan namin kaagad kung naka sign na yung accused & his counsel for them to be bound. - What is the effect if the accused is not present during the pre-trial? walang effect yan, kasi hindi naman kailangan pero ang counsel kailangan dyan. Pag wala ang counsel & the prosecutor without justifiable reason the court can impose a sanction & cite them in contempt, & after that within 10 days I usually dictate the pre-trial order right after the proceedings. - yung pre-trial in criminal cases is mandatory unlike before, - take note of the subject matter - subject matter - is usually a way to expedite the proceedings, & the pre-trial order shall control the proceedings, you cannot dictate kung ano ang nag arise na issue yan lang ang ireresolve except of course, it manifest an injustice.

3/9/2013

Rule 119: Trial

- before trial there ought to be a pre-trial, purpose of pre-trial is practically to expedite the proceedings & the opportunity of the parties to enter into plea bargaining, plea bargaining can made during the arraignment, during pre-trial, the ideal stage of plea bargaining is during pre-trial, sometimes the accused would reserve to immediately enter into plea bargaining during arraignment is because they wanted to know the extent & strength of the prosecution, but on the face of the information& its supporting documents if medyo mahirapan sya to be acquitted the option would be to enter into - plea bargaining, & as we have discussed, plea bargaining actually entails a concession between the prosecution & the accused, to allow the accused to plea guilty to a lesser offense,example, the crime is murder homicide, or if the are multiple grounds, for example, multiple counts of rape to isang count nalang, but definitely the court will not approved an absorbed plea bargaining,for example the case of theft & just allow somebody of plea guilty to attempted homicide. - in like manner, that the essential elements of the crime in which the accused would like to plea guilty to a lesser offense is not included in the offense charge, so the offense in which the accused would like to plea guilty, the essential ingredients of the crime charge should include the essential elements to which the accused would like to plea guilty, should be included in the offense charge. - no plea bargaining, what should the court do before trial - the court may refer the case for preliminary conference before the pretrial, usually the preliminary conference is being conducted in the branch clerk of court at least 3 days before the scheduled pre-trial.

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- preliminary conference is conducted by the branch clerk of court, what is the purpose & legal basis - A.M. No. 03-1-09-SC, The rule on guidelines to be observe by the trial court judges & branch clerk of court in the conduct of pre trial & use of depositiondiscovery measures. - that the court upon arraignment & thereafter will issue an order, this is usually the order of the court - when this case was called for an arraignment the accused appeared & was assisted by his counsel, Atty so & so while the prosecution was represented by Prosecutor so & so. Upon arraignment the information was read &translated in the dialect the accused fully understand. When ask, the accused pleaded not guilty. Let the not guilty plea be entered in the criminal case. ..... - in addition to the order of the court, i usually include in the oder, reminding the parties that no evidence shall be introduced during the trial proper in support in the furnished evidence in chief other than those have been presented & marked during the pre-trial, or preliminary conference conducted during the pre-trial, except, for good cause shown. - if you will not present a document, or if you not identify the witness during the pre-trial you cannot anymore question it, on the part of the accused - if you are the counsel you should be guided of the pre-trial order, kasi doon nakalagay kung anong docs ang mga na identify, sino ang mga witnesses, if they were present a witness other than those mentioned in the pre-trial you can object, your honor i object the presentation of the witness, he is not one of the witnesses identified & presented during the pre-trial. - In like manner the document - if you cannot present the document during the pre-trial & then later on you will introduce an evidence,

a doc which was not identified & presented during the preliminary conference & the pre-trial that can be properly objected & usually the court will grant the motion of objecting the intro of a document which was not identified & introduced during the pretrial ang BASIS: yung A.M. No. 03-1-09SC. - Is there an EXCEPTION: there is, kung talagang at the time of filing hindi talaga mahanap, explained it the court & if the court found a justifiable reason or good cause shown it might admit but in terms of percentage it could only constitute 10-20% that the court will grant it because of the assumption that when you file the case everything of the evidence has been gathered. - in the case of the falsification of document, & none of those document which are material evidence to the case were not introduce during the pre-trial, & when the prosecution trying to introduced it, ang galing ng PAO lawyer, he objected, he was introducing beacons of objection, & the court suspended the proceeding & to study the matter because the success of the prosecution lies on the document. - now, there is no more surprises in our criminal proceedings. - Under the Speedy Trial Act you have to divulge your defense. During the pre-trial the court can ask, what is your defense. - If the accused is interposing an affirmative or negative offenses, it’s either denial or alibi. - If the accused interposed an affirmative defense that means he is seeking out a xxx defense or justifiable circumstances. - take not of the A.M. No. 03-1-09-SC it is mandatory for the court to do if there is a necessity to refer the case for a preliminary conference & in most cases that the court

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would refer the case for a preliminary conference. - what about if the parties will deliberately fail to appear during the preliminary conference - they can be cited in contempt of court. - in that preliminary conference the branch clerk of court should prepare what we call minutes of preliminary conference. That minutes - there is a format: STIPULATION OF FACTS (what are the facts stipulated), for example jurisdiction of the court the party is stipulated that this court has jurisdiction over the case & the person of the accused. - Next, DOCUMENTARY & OBJECT EVIDENCE - evidence of the prosecution ito ang kanyang evidnce, evidence for the defense - ito ang kanyang evidence. - WITNESSESS - itong yung witnesses ng prosecution, ito rin ang evidence ng defense. - T H E I S S U E T H AT C O U RT W I L L RESOLVE. (usually WON the accused is guilty of the crime charge) - What is important & significant about minutes - is that it practically shorten the pre-trial. - Another is the advent of diversion of cases which we called the alternative dispute resolution - or the mediation proceedings theft & estafa is usually covered in this & the parties cannot object to this because that is the mandate of the law. - dito pinag uusapan kung papaano ma settleactually the civil aspect of the case, how about if the case comprises 2 aspects criminal & civil. - During the arraignment in estafa, if the parties could not settled amicably the case, then it will be set for pre-trial. - If the parties settled the case amicably, & the accused wanted to dismissed the case - it can be done for provisional dismissal until

the amount agreed has been paid, or the complainant execute an affidavit of desistance. - another one is if for installment - provisional dismissal lang until mabayaran ang utang. - take note of this expanded guidelines under A.M. No. 11-1-6-SC Phija Re: Consolidated & revised guidelines to implement the expanded coverage of court annexed mediation (CAM) & judicial dispute resolution (JDR), Jan 11, 2011 - all the actions of the mediators should conform to what the court on how to dispose of the case, so in other word it is still the court that controls, if the court feels that the agreement is against public policy, public moral it can disregard & then continue with the handling of the case. The action of the mediator is merely recommendatory & the agreements made between the parties are subject to the approval of the court

Rule 119: Trial - trial is just an adjudication to determine the factual factors in order to consult the controversy in a particular case. - Time Frame - ito yung mga periods - you have to distinguish kung ang akusado ay under preventive detention & if out on bail. Kung under preventive detention ay kailangan within 3 days from the filing of his case should be immediately raffled, within 3 days, & right after the raffle, the case should be forwarded to the judge or to the court or branch where the case was raffled off & within 10 days the court should set the case for arraignment, the 10 day period should be reckoned with from the time of raffle, 10 days from raffle, let’s say kung naraffle ang case today, 10 days from today kahit yung case yung folio mapunta,

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eh ibinigay lang sa court or ng ma received ng court 2 days after, kailangan nya eh set yung ika 10th day starting from today yung counting. Now, na arraigned within 10 days, we’re talking about the accused under detention, then another 10 you set that for pre-trial, & if there's preliminary conference you set that at least 3 days before scheduled pre-trial & thereafter set that for trial within 30 days. - now, in cases when the accused is not under preventive detention 30 days from acquisition of jurisdiction over the person of the accused, you set that arraignment within 30 days, then 30 days , pag under detention 10 days ang counting. - What is the period to try a case - according to the Rules, although in both cases, the accused could be given 15 days to prepare for trial, ang sabi ng Rules in both case shall the entire trial period should not exceed 180 days from the first day of the trial, except as otherwise provided by the SC. - So kung 180 days it must be 6 months, the regular as of the present to process the case usually, pina mabilis 2-3 yrs. - the reason for the setting up of the period to try a case is to prevent the delay because, yung sinasabi natin na justice delayed justice denied. You can just imagine if the case will be delayed, eh yung mga witness ng prosecution ay baka wala na, or patay na. Eh maiinip na ang mga witness ng proseution or patay na eh di acquit yung akusado, denied ang justice. - that’s precisely the reason why we are implementing Constitutional right of the accused to a speedy trial. - In fact yung siansabi dito na 180 days in some cases, for example in the Rules of Summary Procedure shorter ang period, the arraignment & trial should be immediately conducted & the decision should be

rendered within 30 days from submission of the case - the cases which are under the Rule on Summary Procedure. - In ordinary cases, trial is 180 days, & from submission of decision within 90 days judgement. Dapat may decision ka na, 90 days from the time the case is submitted for resolution or decision 90 days. ang problema lang kasi dyan acually kaya naman i decide with 15 days, ang problema kasi ang daming kaso. - SUMMARY PROCEDURE - Different Period - RA 7610 involving child abuse cases must be tried within 3 days from arraignment. yung violation of RA 7610 involving child abuse. - RA 9165 - the different periods to try & decide, actually yung drug cases dapat mabilis ang process kasi different ang period, what is period to try a drug case - it must be tried within 60 days, & the decision should be rendered within 15 days from submission of the case. - these are the one of the examples of case in which the SC otherwise provides. - There are delays which are excluded in the computation & Stated in Sec 3 - In granting of course for postponement or continuance - is actually a prayer for postponement. - Ex. - the court cannot grant the request of the parties for postponement on account they are not even ready, hindi yon. dapat specific lang yon even if kung ang essential witness failed to appear but you need to give a justifiable cause otherwise may not anymore entertain & the court can provisional dismissed your case if you cannot present your witness on your specific trial dates.

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- usually the valid basis for granting continuance is whether or not the failure to grant a continuance in the proceeding would likely make a continuance of such proceeding impossible or result in a miscarriage of justice - WON the case taken as a whole is so novel, unusual & complex, due to number o accused or the nature of the prosecution or that it is unreasonable to expect adequate preparation within the period of time established therein. - Do not go to court if you are not ready - this is a basic rule. - SANCTIONS: in case the private counsel for the accused, the public attorney or the prosecutor knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; - files a motion solely for delay which he knows is totally frivolous & without merit; - willfully fails to proceed to trial without justification consistent with the provisions hereof. - Kinds: criminal, administrative, contempt of court - Private Defense counsel - fine not exceeding P20,000.00 + criminal sanctions if any - Counsel de officio, Public Atty. or Prosecutor - fine not exceeding P5,000.00 + criminal sanctions if any - (Counsel de party - is a private counsel who retained privately by the accused); the right to counsel de officio is absolute but the right to counsel de party is waivable. - In fact the court can deny a defense counsel or prosecutor the right to practice before the judge for a period of not more than 30 days. - What is the REMEDY of the accused who has not been brought for trial within that

period set forth under the Rules: - well you can invoke his right to speedy trial & by the way, the grant of the motion of the accused to a speedy trial would amount to his acquittal unless that ground has no legal basis. - Lumanlaw vs hon. Eduardo Peralta jr.,G.R. NO. 164753, Feb 13, 2006 - here the right to speedy trial can be invoke only when there are visages of what we call V-C-O. (vexatious, capricious & oppressive delays) - if the delays are attended by VCO pwede na mag file ng motion for the dismissal of the case on the ground of violation of your right to speedy trial. - In the case of Lumanlaw, you can just imagine the arraignment took place after 1 yr & 9 months he is been invoking - denied, so he file the petition for mandamus. - This petition for mandamus is an available remedy in case your right where your right is been deprived or recognized? ANS: YES, as in the case of Lumanlaw vs Hon. Peralta - In addition to this case, the case of Dante Tan vs People of the Phil GRNo. 173637, April 21, 2009 - this will further strengthen your knowledge & concept about the right to speedy trial. - the right to speedy trial, if the motion anchored thereon is granted it amounts to an acquittal. - Double jeopardy if the accused had previously convicted, acquitted , or dismissed his case or terminated without his consent. In the case, when he filed the motion there was a consent but if there is a valid ground that in fact. as in the case of Lumanlaw, there was indeed a violationof his to speedy trial then double jeopardy sets in. But in the case of Dante Tan, double jeopardy did not set in, considering that the

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dismissal of his criminal case on theground of violation of his right to speedy trial was without valid basis, therefore there is no reason tho support the order of dismissal. - What is the order of trial - prosecution first then the defense. Prosecution will present private complainant, then testify, then cross examination. GEN. RULE: the prosecution will present his evidence first on the ground that the burden of proving the guilt of the accused beyond reasonable doubt lies with the prosecution. - After the prosecution, it’s the accused that will present his evidence to prove his defense & damages if any arising from the issuance of a provisional remedy. - Rule 127 Sec 1 - the prosecution of the private offended party has the right to ask the court for the issuance of the provisional remedy, usually, attachment, eh kung sa kaso ng estafa, itinatago ng yung na estafa na kagamitan, like jewelries, actually pwede ka mag ask ng provisional remedies for attachment & the accused if they feel that the provisional attachment issue has no legal basis & he suffered damages for such issuance he can present evidence. - now, in cases where the accused interposes self defense - we have to reverse the trial. - Is reverse trial mandatory if the accused interposed the lawful defense? If you look up the provision - sabi, when the accused admits the act or omission charged in the complaint or info but interposes a lawful defense, the trial may be modified. The may, supposing the accused will say YOur honor event hough i am interposing a lawful defense i don’t want to present my evidence first it’s the duty of the prosecution. - Can the court compel the accused? ANS: NO, the word may.

- supposing its the other way around - the accused demanded Your honor i am interposing a lawful defense i want to present my evidence first, the court said No you have to wait until the prosecution finishes his presentation, Can the court be considered to have acted in grave abuse of discretion? ANS: NO, it is not a reversible error, what is actually a reversible error on the part of the court is denial to the parties their opportunity to present their evidence. - But the impact to the court if are interposing a lawful defense & you would want that the prosecution should present first it’s evidence, & did not accept your reversal trial - I think defective yung defense mo. Because ang jurisprudence nagsasabi dyan na if you are interposing a lawful defense you should make it or unfurled your evidence ASAP. IN FACT YOU HAVE TO REPORT IMMEDIATELY TO THE punong Brgy, to the Mayor, to the police authorities what you killed in self defense & the circumstances why you killed in self defense - to give credence of your of your defense that you killed the victim in self defense. So that when you interpose the lawful defense at the first opportunity you demand for a reverse trial & when the court orders a revers trial you should immediately present your evidence otherwise kung magpahuli ka may impact then yan sa case mo in order that totoo ang mga sinasabi mo. - supposing you want to present your evidence, & the prosecution finds na malakas yata ang evidence ng defense what will you do - REBUTTAL. - or narining naman ng akusadao malakas din anng gagawin nya - sur-rebuttal. - After that, can the court entertain additional presentation of evidence? It depends if there is a good cause shown.

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- DISCHARGE OF ACCUSED TO BE A STATE WITNESS: - in cases where circumstantial evidence is at hand of the prosecution medyo mahirap eh at kung walang eyewitness ang hirap mag prosecute so kung maraming akusado at yung isang akusado ay willing maging isang state witness you can vote for the discharge of that accused to be a state witness. well you get the affidavit, kailangan gagawa kayo ng statememt, tingnan mo kung material talaga ang sasabihin nya, makakatulong ba yan. Get the sworn statement, pagbasa mo ay talaga pag ito ma discharge as state witness -convicted - so depended sa statement na gagawin. - If you are convinced, the prosecutor can file a motion to discharge the accused as state witness. & in addition to that motion he has to prove the ff: - there should be absolute necessity for the testimony of the accused whose discharge if requested; - there is no other direct evidence available for the proper prosecution of the offense committed except the testimony of the said accused; - the testimony of said accused can be substantially corroborated in its material points; - said accused does not appear to be the most guilty; - accused has never been convicted of an offense involving moral turpitude. In other words, other than those stated in his sworn statements by the accused soon to be discharge as state witness the prosecution is mandated to proved the following requirements. - Now if the court denies the motion what will happen to the statement - it becomes inadmissible.

- on the other hand, once it is granted, such evidence is automatically form part of the trial. - there is an easy way to discharge the state witness - utilized the RA 6981 - witness protection program. kasi dyan sa witness protection program the prosecution has already the power not to include in the information one of the respondent who is supposed to be an accused in the case, to be as its state witness. so yan ang pianakamadali hindi ka na maghihirap pa. so what you should do is to have the accused be covered by the witness protection program. the process is the same, mag execute ng affidavit & the affidavit is really material to the success of the prosecution. - Another one is the power of the OMBUDSMAN to grant immunity under sec 17 RA 6770 - if you are granted immunity by the ombudsman you are not to charge & discharge. ang hirap magpadischarge ng akusado to serve as state witness the court is look that with disfavor it’s the burden of the prosecution to prove that absolute necessity & that the requirements for the discharge of the accused as state witness kailangan ipakita mo na wla talaga kung hindi mo ito i discharge mukhang cocolapse yung kaso. Usually this happened in kidnapping cases, yung mastermind ay talaga hindi naman front yan at ang akusado in order to get the head of the syndicate you need to discharge the accused as state witness & the discharge amounts to its acquittal, unless you are not faithful in your undertaking to reaffirmed the sworn statement before the court. - DEMURRER TO EVIDENCE - in cases the prosecution feels that its evidence is weak, the remedy, if you are the

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prosecutor, is look for a possible state witness. If the evidence of the prosecution is weak, the court can motu proprio dismissed the case. It is seldom happen here, that the court will automatically dismissed the case unless it is patently from the records, there is no evidence. - Demurrer to evidence is actually a right granted to the accused. It entails that the prosecution after resting its case & it is not sufficient, it has not proven, ano ba ang pinoprove ng prosecution - ang prosecution pinoprove nya ang evidence ng crime, kung murder, may victim, may pinatay tapos ang akusado ay ililink nya doon, eh kung may victim nga, may napatay, nagunshot tapos may parang gap sa kanyang evidence,not positively identified by the witness, eh pwede sya mag file ng demurrer to evidence, but you have to be careful because there is a period. - Take note that the periods here are not extendable. If you want to file a demurrer to evidence in order that you will not be deprive of your right to present your evidence first you have to file a motion for a leave of court to file demurrer of evidence. mas maganda na yan & you should do it within 5 days from the time the prosecution rested its case. - Wihtin 5 days you need to file a leave of court. this is very important because kung maabot dismissed kaagad ang kaso. - within 5 days you need to file a motion of leave of court to file demurrer to evidence & state your ground - insufficiency of evidence. - Demurrer to evidence is peculiar to a criminal proceedings. In civil proceedings this is what we call motion to dismiss. - But demurrer to evidence is peculiar actually to the criminal proceedings.

- within 5 days filed a motion for leave of court to file a demurrer & the grounds insufficiency of evidence. - if it is granted, from receipt of the order granting the motion you need to file your demurrer to evidence, so dalawa ang pleading mo - motion for leave to file demurrer to evidence & demurrer to evidence. - & you should file a demurrer to evidence within the non extendable period of 10 days. - in both cases the prosecution is given the opportunity to present evidence, as we have said its opposition or comment. - What is the effect of denying the motion for leave to file demurrer to evidence - the accused should present its evidence. the order denying you really is not a xxx perhaps a certiorari under rule 65 in an extreme remedy, but the remedy when your motion for leave to file demurrer to evidence is really to present your evidence. - what you can opt do kung talagang suicide ka file ka pa rin ng demurrer to evidence can you do that - you can but, you know the case will be considered submitted for decision, para nalang naging memorandum nalang ang demurrer mo. You will no longer be allowed to present your evidence. The basis of the judgement of the court could be the evidence of the prosecution so gagawa pa ba ng order denying - NO, ang gagawin dyan if you file a demurrer to evidence without leave, judgment na , iseset na ang judgment. Unlike when you file your motion for leave of court - there is an order for you to file your demurrer. Pag may basis, granted yung motion mo to file demurrer. But in cases when there is no leave of court, you set that for promulgation of judgment. - the better course of action is see to it to file a motion for leave to file demurrer to

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evidence you so can still present your evidence if denied.

REOPENING - before judgment become final usually