Criminal Procedure Notes Based on Riano

Criminal Procedure Notes based on Riano

 1. 2.

Prosecution of Criminal Action: Under the supervision of the PUBLIC PROSECUTOR Direct supervision Control

   1. 2. 3. 

When PRIVATE PROSECUTOR intervenes Allowed ONLY where the civil action is INSTITUTED in the criminal action Remember that civil actions are deemed instituted If the offended party Waives Reserves Institutes civil action prior to the criminal action The PRIVATE PROSECUTOR CANNOT INTERVENE!

    

Exception on the involvement of the private prosecutor: If he is authorized to do so in writing He may prosecute up to the end of the trial Provided, the authorization shall be given by either the Chief of the Prosecution Office or the Regional State Prosecutor AND, must be approved by the court HOWEVER, it may be revoked or withdrawn by the public prosecutor any time Since prosecution is under the control and supervision of the PUBLIC PROSECUTOR, it follows that the SC CANNOT compel the former to file and information, or prosecute a person if he believes that there is no probable cause in doing the same! Exception: grave abuse of discretion on the public prosecutor Hierarchy: DOJ ------ SEC of Justice ------- PROSECUTORS

Criminal action in MTC or MCTC – prosecuted under the public prosecutor If public prosecutor is absent or not available, may be prosecuted by: 1. Offended party 2. Any peace officer 3. Public officer charged with the enforcement of the law violated III PROSECUTION OF PRIVATE CRIMES What are these crimes? 1. Adultery 2. Concubinage NOTE: these crimes shall not be prosecuted except upon a complaint filed by the offended spouse

 

RULE: PROSECUTOR CANNOT PROSECUTE THE CASE WHERE NO COMPLAINT IS FILED BY THE OFFENDED SPOUSE Cannot be instituted against one party alone! AGAINST BOTH GUILTY PARTIES! Cases where it cannot be prosecuted If the offended party has consented to the offense or has pardoned the offenders (express/implied) 3. Seduction 3. Abduction 3. Acts of lasciviousness

1. 2. 3. 4.

SAME RULE: cannot be prosecuted except upon a complaint filed by the: Offended party – even if minor, still has the right to initiate Parents Grandparents or legal guardian State 6. Defamation -- should be the imputation of the offenses of adultery, concubinage, seduction, abduction, and acts of lasciviousness SIMILAR RULE: filed by the offended party V COMPLAINT OR INFORMATION

     

   

Complaint, defined. Sworn written statement Charging a person with an offense Subscribed by the offended party, any peace officer, or other public officer Name: People of the Philippines Private offended parties – only as witnesses Thus they may not appeal the dismissal of a criminal case or the acquittal ONLY the civil aspect In so doing, the private offended party who appeals must prosecute in his own personal capacity So how then can a dismissal or acquittal of the criminal case be appealed? CAN ONLY BE APPEALED BY THE OSG Reason: private offended party has no legal personality to do so Chapter12, Title III, Book IV of the Admin. Code Only the OSG can bring and/or defend actions on behalf of the Republic or represent the people or the State in criminal proceedings pending in the Supreme Court and the CA

Information, defined.

       

1. 2. 3.

b. c. d.

Accusation in writing Not required to be sworn; because the prosecutor is under the oath of his office Charging a person with an offense Subscribed by the prosecutor And filed with the court Name: People of the Phils What happens if there is infirmity of the signature in the information? The information confers jurisdiction on the court, thus if there is infirmity – invalid An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent The complaint or information should include the ff (sufficiency test): Name – all of the accused Designation of the offense given by the statute Acts/omissions complained of - should be described with such particularity as to appraise the accused, with reasonable certainty, of the offense charged 1. Offense being charged 2. Acts or omissions complained of 3. Qualifying and aggravating circumstances Name of the offended party Approximate date of the commission – unless material element/ingredient of the crime Place where the offense was committed Purpose: TO ENABLE THE ACCUSED TO SUITABLE PREPARE FOR HIS DEFENSE, SINCE HE IS PRESUMED TO HAVE NO INDEPENDENT KNOWLEDGE OF THE FACTS THAT CONSTITUTE THE OFFENSE! Note: sufficiency of information is not negated by an incomplete or defective designation of the crime. Failure to specify the correct crime committed will not bar conviction of the accused. Question: When is the right time to question the sufficiency or validity of the information or complaint? Answer: before arraignment or during trial, otherwise, deemed waived. Actions: 1) bill of particulars; 2) quashal of the information Question: What should be given preference, the designation of the crime in the information or the allegation of the facts? Answer: The allegation of facts is controlling because the nature and character of the crime charged are determined not by the designation of the

specific crime, but by the facts alleged in the information. So even if the information is defective, the allegation of facts must be preferred over the defective information. Allegation in the information, not the technical name given by the prosecutor. Question: What happens if there is a mistake on the name of the accused? Answer: A mistake in the name of the accused is not equivalent, and does not necessarily amount to, a mistake in the identity of the accused especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. However, the identity must be proven. In offenses against property – it is enough that the property is described with such particularity as to properly identify the offense charged.    

Statement of the qualifying and aggravating circumstances: Needed since without it, the accused cannot be convicted of qualifying or aggravating circumstance even if proven in court Even if an aggravating circumstance had been proven, but was not alleged, courts will not award exemplary damages! Reason: tantamount to denial of due process since the accused is deprived to be informed of the charges against him! How about mitigating? – no need. The accused may be convicted with mitigating circumstances, since the nature of it is in favor of the accused VI. VENUE OF CRIMINAL ACTIONS Criminal action shall be instituted and tried in the court of the municipality or territory: a. Where the offense was committed b. Where any of its essential ingredients occurred

        

VII. AMENDMENT OR SUBSTITUTION OF THE COMPLAINT INFORMATION Before plea or arraignment – leave of court not required Without leave of court Any formal or substantial amendment may be made After plea or arraignment Amendment is prohibited Except if beneficial to the accused Before plea or arraignment – leave of court required where: The amendment downgrades the nature of the offense charged; The amendment excludes any accused Formal Amendment, defined.

OR

       

New allegations which relate only to the range of the penalty Which does not charge another offense different or distinct from that charged in the original one Additional allegations which do not alter the prosecution’s theory Does not adversely affect any substantial right An amendment that merely adds specifications to eliminate vagueness in the information Not to introduce new and material facts Merely states with additional precision something which is already contained in the original information Adds nothing essential for conviction Facts of a case: prosecutor entered his amendment by crossing out the word Homicide and instead wrote the word Murder Issue: Is it a formal or substantial amendment? Ruling: Only a formal amendment. The only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for murder are exactly the same as those already alleged in the original information for homicide, as there was not at all any change in the act imputed to the accused. In allowing formal amendments in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused.

1. 2.

1. 2. 3.

 

Test whether the rights of the accused are prejudiced by the amendment of a complaint or information is: whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and When any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended information are identical with those of the original information for homicide, there could not be any effect on the prosecution’s theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner. SUBSTITUTION OF COMPLAINT OR INFORMATION if it appears at any time before judgment that a mistake has been made in charging the proper offense if it becomes manifest that the accused cannot be convicted of the offense charges or of any other offense necessarily included therein, the court

       

   

  

shall commit the accused to answer for the proper offense by requiring the filing of the proper information. Accused shall not be discharged if there appears good cause to detain him. After the proper information is filed, it shall dismiss the original case in such a case, the court shall dismiss the original complaint or information once the new one charging the proper offense is filed provided, accused will not be placed in double jeopardy may be made before or after arraignment Substitution, distinguished/defined substantial change with leave of court as the original information has to be dismissed requires another preliminary investigation and the accused has to plead anew to the new information filed new information involves a different offense which does not include or is not necessarily included in the original charge, hence, accused cannot claim double jeopardy! Amended information entails: formal or substantial amendment before plea can be without leave of court, etc only to form – no need for preliminary investigation amendment of the same offense charged – hence, substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy! CHAPTER III – PROSECUTION OF CIVIL ACTION when criminal action is instituted, the civil action is deemed included every person criminally liable for felony is also civilly liable the rule on implied institution of the civil action does not apply before the filing of the criminal action or information --- when there is no criminal case yet against the respondents as when the Ombudsman is still in the process of finding probable cause to prosecute the respondent Civil liability arising from the crime – the governing law is rules of Criminal Procedure not rules of civil procedure! Exception: civil action other than the one arising from the crime is not suspended by the commencement of the criminal action because they may proceed independently of the criminal proceedings. Reservation of the civil action should be made before the prosecution starts presenting its evidence!



Note: after the criminal action is commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action! Preference is given to the resolution of the criminal action



 

If the civil action was commenced before the institution of the criminal action, the civil action shall be suspended in whatever stage it may be found before judgment on the merits, once the criminal action is filed. The suspension shall last until final judgment is rendered in the criminal action Exception: does not apply to independent civil action since they are distinct and separate from the civil action arising from the offense committed Another exception: prejudicial question RULE on counterclaims, etc: NO COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY CLAIM IN A CRIMINAL CASE may be filed by the accused in the criminal case but any cause of action which could have been the subject may be litigated in a separate civil action. Note that a criminal case is not the proper proceedings to determine the private complainant’s civil liability. A court trying a criminal case is limited to determining the guilt of the accused, and if proper, to determine his civil liability those arising only from offense.



 



CAUSE OF DEATH of the accused: If the accused dies after arraignment and during the pendency of the criminal action – the civil liability arising from the crime – extinguished (but this does not preclude the offended party from filing a separate civil action based on other sources of obligation may be continued) Dies before arraignment – case dismissed but the offended party may file the proper civil action Death prior to final judgment – terminates criminal liability and only civil liability directly arising from and based solely on the offense committed (again, does not bar for filing a separate civil action on other sources of obligation) Death during pendency of his appeal with SC – totally extinguished the criminal and civil action based solely on the crime. Reason: no final judgment of conviction was yet rendered by the time of his death. Novation of contract: extinguishment of criminal liability Criminal liability is not affected by a compromise or novation of contract It may affect the civil liability but not the criminal aspect since it is a public offense which must be prosecuted and punished by the government. EFFECT OF ACQUITTAL OR EXTINCTION OF THE PENAL ACTION ON THE CIVIL ACTION OR CIVIL LIABILITY Degree of evidence: mere preponderance of evidence Note: extinction of the penal action does not carry with it the extinction of the civil action where: a. Acquittal is based on reasonable doubt b. Court declares that the liability is only civil



c. Civil liability does not arise from or is not based upon the crime of which he was acquitted However, extinction of the civil action based on delict – deemed extinguished Provided, there is a fining in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist! Note: when the trial court acquits or dismisses the case on the ground of lack of evidence to prove guilt beyond reasonable doubt, the civil action is not automatically extinguished since liability on civil action can be determined based on mere preponderance of evidence! Hence, there is a requirement to state whether the prosecution absolutely failed to prove his guilt or merely failed to prove beyond reasonable doubt – in either case it shall determine if the act or omission from which the civil liability might arise did not exist Example: may be acquitted but if his negligence is proved by mere preponderance of evidence, he may still be civilly liable Elementary rule: payment of civil liability does not extinguish criminal liability

            

PREJUDICIAL QUESTION, defined Previously instituted civil action issued involved in a civil case which is similar or intimately related to the issue raised in the criminal case resolution of which determines whether or not the criminal action may proceed civil action instituted previously or ahead of the criminal action; must precede the criminal action civil action requires a decision before a final judgment can be rendered in the criminal action proceedings in the second case may be suspended to await the resolution of the prejudicial question in the first case existence of two actions –civil action and criminal action the issue in the civil case needs to be resolved first before it is determined whether or not the criminal case should proceed or whether or not there should be, in the criminal case, a judgment of acquittal or conviction the issue raised in the civil action is determinative of the guilt of the accused in the criminal aspect the issue in the civil case is determinative of the issue in the criminal case; the resolution of such issue determines whether or not the criminal action may proceed it follows that if the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can proceed

independently of each other, that is, the criminal action can proceed without waiting for the resolution of the issues in the civil case Reason: to avoid two conflicting decisions REQUISITES: 1. civil case involves facts intimately related to those upon which the criminal prosecution would be based; 2. in the resolution of the issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined 3. jurisdiction to try said questions must be lodged in another tribunal 1. 2. 3. 4. 5. 6. 1. 2.

3. 4.

1. 2. 3. 4. 5.

Not a prejudicial question if: both cases are criminal both civil both cases are administrative one case is administrative and other civil one case is administrative and other criminal criminal case was instituted prior to the civil case! Effect of the prejudicial question: suspension for the criminal action may be filed the criminal case may be suspended pending the final determination of the issues in the civil case – this is the exception on the general rule that if the civil action was commenced before the institution of the criminal action, the civil action shall be suspended in whatever stage it may be found before judgment on the merits, once the criminal action is commenced – the suspension shall last until final judgment is rendered in the criminal action accords a civil case a preferential treatment and constitutes an exception to the general rule that the civil action shall be suspended when the criminal action is instituted however, suspension does not include dismissal therefore, double jeopardy cannot be invoke Where and when to file the petition for suspension does not need to wait for the criminal case to be filed in court, it is sufficient that there be previously instituted civil case – it may be filed in the stage of preliminary investigation the petition for suspension should be filed in the criminal case not in the civil case since what is suspended is the criminal case right?? Lol where? – in the office of the prosecutor conducting the preliminary investigation any time before the prosecution rests Case illustrations:

Preliminary Investigation

Preliminary Examination

by the prosecutor

by the judge

purpose: whether the accused should be held for trial or if he should be released Nature: executive, since it is part of the prosecutor’s job

purpose: to determine probable cause for the issuance of a warrant of arrest Nature: judicial

Irregularity of arrest (not in accordance with Rule 113, Sec5(a)&(b) Inquest proceeding shall not proceed Release of the detainee *if the evidence warrants preliminary investigation, the prosecutor may serve notice to the detainee

Proper arrest Inquest shall proceed Detainee may ask for bail (?) Prosecutor should ask the detainee if he wants to avail preliminary investigation (remember: purpose of preliminary investigation is to determine the probability of guilt of the accused, and whether he should be held for trial

Case (People v. Aminnudi n)

Facts More than two days before the arrest, the officers received a tip that the accused was on board an identified vessel and carrying marijuana; acting on the information they waited for the accused and approached him as he descended the ship and arrested him.

(People v. Molina)

The accused were arrested while inside a pedicab despite the absence of any outward indications of a crime being committed.

(Malacat v. CA).

People v. Mengot e.

There was a telephone call from an alleged informer that suspicious looking men were at a street corner. The operatives dispatched to the place, they saw three men who was looking from side to side clutching his abdomen. The operatives approached the men and introduce themselves as policemen. Two of them tried to run away but the attempt was foiled. The search yielded a revolver in the possession of Mengote and a fan knife in the pocket of another.

Ruling marijuana is inadmissible since it was not incident to a lawful arrest. The accused was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. He was just descending the ship; no outward indication that called for his arrest. To all appearances, he was like any other passengers innocently disembarking from the vessel. The officers could have obtained a warrant since they had reasonable time to apply Invalid arrest made merely on the basis of reliable information that the persons arrested were carrying marijuana A warrantless arrest cannot be justified where no crime is being committed at the time of the arrest because no crime may be inferred from the fact that the eyes of the person arrested were moving fast and looking at every person passing by The requirements of a warrantless arrest were not complied with. There was no offense which could have been suggested by the acts of Mengote of looking from side to side while holding his abdomen. These are obviously not sinister acts. He was not skulking in the shadows but walking in the clear light of day. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was at least being attempted in their presence.

People v Laguio.

Two men who were arrested told the officers that they knew of a scheduled delivery of shabu by their employer WW. The police operatives proceeded to the place and found WW who came out of the apartment towards a parked car, the officers approached him, introduced themselves and upon hearing that he was WW, immediately he frisked him and asked him to open the back compartment of the car. When frisked, an unlicensed pistol with live ammunitions was found inside his pocket. The operatives searched the car and found shabu, unlicensed pistol, etc

the facts and circumstances did not manifest any suspicious behavior on the part of WW that would reasonably invite the attention of the police. He was merely walking from the apartment and was about to enter a parked car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto. It is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.

Case People v. Anita Claudio

Facts The accused was carrying a woven buri-like plastic bag which appeared to contain camote tops, boarded a bus. Overt act: instead of placing the bag by her side, which is the usual practice of a traveler, she placed the same on the back seat where a trained antinarcotics agent was seated. Since the act of the accused was unusual, the suspicion of the agent was aroused. Feeling that something was unusual, the agent inserted his finger inside the bag where he felt another plastic bag in the bottom from which emanated the smell of marijuana. Right after she got off the bus, the agent arrested

Ruling

People v. Tanglib en.

People v Maspil

Case

the accused. Two police officers together with a barangay tanod were conducting surveillance operations in a bus station to check on persons who may be engaging in the traffic of dangerous drugs based on information supplied by informers. They noticed a person carrying a red travelling bag who was acting suspiciously. When asked to open the bag, the accused did so only after the officers identified themselves. Found in the bag were marijuana leaves. Because of confidential reports from informers that two persons would be transporting a large quantity of marijuana, officers set up a checkpoint to monitor, inspect, and scrutinize vehicles. A couple of hours after midnight, a jeepney was flagged down in the checkpoint. On board were the persons identified by the informers who were also with the policemen manning the checkpoint. When the sacks and tin cans were opened, they contained marijuana leaves

Facts

there was a valid warrantless arrest and a valid warrantless search, since the officers were faced by an “on-the-spot” information which required them to act swiftly.

Again, the Court distinguish Maspil from Aminnudin. In Aminnudin, the officers were aware of the identity of the accused, his planned criminal enterprise and the vessel he would be taking, and the officers had sufficient time to obtain a search warrant. In Maspil, the officers had no exact description of the vehicle of the accused, and no idea of the definite time of its arrival. A jeepney on the road is not the same as a passenger boat the route and time of arrival of which are more or less certain and which ordinarily cannot deviate or alter its course or select another destination.

Judgment

Abelita III v. Doria WHAT: shootin g incident

People v Acol.

People v Gerent e.

1.

A team was dispatched to investigate. The investigation disclosed that a victim was wounded and that the witness tagged the petitioner as the one involved and that he had just left the scene of the crime. After tracking down the petitioner, he was invited to the police headquarters but the petitioner sped off. Two robbers divested the passengers of a jeepney of their belongings including the jacket of one passenger. The passengers immediately sought the help of police officers which formed a team to track down the suspects. One of the passengers, who went with the police officers, saw one of the robbers casually walking in the same vicinity and wearing his jacket. The police station received a report of a mauling incident, right away the officers went to the crime scene and found a piece of wood with blood stains, a hollow block and two pouches of marijuana. A witness told the police that the accused was one of those who killed the victim. They proceeded to the house of the accused and arrested him.

The petitioner’s act of trying to get away, coupled with the incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities.

The warrantless arrest of the accused was sustained by the Court as well within the hot pursuit exception.

based on their knowledge of the circumstances of the death of the victim and the report of an eyewitness, in arresting the accused, the officers had personal knowledge of facts leading them to believe that it was the accused who was one of the perpetrators of the crime.

Private respondent filed an action for frustrated parricide, then several months after, she filed another action for the declaration of the nullity of their marriage. The petitioner filed an urgent motion to suspend the proceedings. Ruling: no prejudicial question since the criminal action was first filed before the civil case. For a prejudicial question to exist, the civil action must be instituted first before the filing of the criminal action. Moreover, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide.

2.

Respondent contracted his first marriage. Without said marriage having been annulled, nullified, or terminated, the same respondent contracted a second marriage with the petitioner. Based on petitioner’s complaint-affidavit, information for bigamy was filed against respondent. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy. Issue: whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy. Ruling: the civil action for declaration of the nullity of the marriage was not determinative of the issue in the bigamy case, the Court placed emphasis on Art40 of the Family Code which requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. Without it, the first marriage is presumed to be subsisting. Thus, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Therefore, a decision in the civil case was not essential to the determination of the criminal charge – not a prejudicial question.

CHAPTER IV – PRELIMINARY INVESTIGATION

       

“Is the respondent probably guilty and therefore, should go to trial?” Nature: INQUIRY PROCEEDING / Judicial Proceeding Purpose: TO DETERMINE whether there is SUFFICIENT GROUND to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial Function: executive not a judicial function The only means of discovering the persons who may be reasonably charged with a crime To enable the fiscal to prepare his complaint or information Lasts for 10 days Not a trial nor a part of it Does not involve the examination of witnesses The purpose is not to declare the respondent guilty beyond reasonable doubt Does not require confrontation between the parties Conducted through submission of affidavits and supporting documents, and through exchange of pleadings

To determine: Whether a crime has been committed Whether the respondent is probably guilty thereof Prosecutor’s duties: 1. To determine the existence of probable case 2. To file information 1. 2.



What is probable cause in preliminary investigation? Implies probability of guilt

      

Requires more than bare suspicion The prosecutor does not: determine the guilt or innocence exercise adjudication nor rule-making functions Ultimate purpose: to secure the innocent against hasty, malicious and oppressive prosecution to protect him from an open and public accusation of a crime to protect the State from useless and expensive prosecution designed to free a respondent from the inconvenience, expense, stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding Is the prosecutor a quasi-judicial officer? No. A preliminary investigation is not a trial of the case on the merits, and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal. Is the substantial right of the accused to a preliminary investigation waivable? Yes. It is deemed waived for failure to invoke the right prior to or at the time of the plea/arraignment.

         

PROBABLE CAUSE , defined. existence of facts and circumstances as would lead a person of ordinary caution to entertain an honest and strong suspicion that the accused is guilty of the crime subject of the investigation based only on opinion and reasonable belief implies probability of guilt Requires: requires more than bare suspicion but less evidence elements of the crime charged should be present since every crime is defined by its elements, without which there should be no criminal It does not does not import absolute certainty need not be based on clear and convincing evidence of guilt





does not pronounce guilt (only the probability of guilt which would lead the accused to stand trial) require a full and exhaustive presentation of the parties’ evidence Discretion: The determination lies within the discretion of the prosecuting officers after conducting a preliminary investigation. Merely binds over the suspects to stand trial

1. 2.

Kinds of determination of probable cause Judicial – made by judge Executive – made by the prosecutor during preliminary investigation

 

When required? Preliminary investigation is required in a criminal offense has a penalty of at least 4yrs, 2months, and 1 day. 1. 2.

 

Procedures for cases not requiring preliminary investigation: Directly submit with the prosecutor; or By filing an information or complaint with the MTC – conducted by the judge Application for bail: while a preliminary investigation is undertaken, the person arrested is still under detention to effect release, he may apply for bail since he is not yet charged in court After plea has been entered/after arraignment: -deemed to have waived the absence of preliminary investigation



Remand to the prosecutor: if the accused wants a preliminary investigation, the court will not dismiss, BUT remand the case to the prosecutor so that investigation may be conducted the Sandiganbayan will hold in abeyance any further proceedings

1. 2.

Lack/Irregularity of Preliminary investigation will not affect: court’s jurisdiction validity of the information or render it ineffective



What is the effect of denial of a motion for reinvestigation? cannot invalidate the information



INQUEST PROCEEDINGS   

(summary investigation):

for persons detained a person is lawfully arrested without a warrant involving an offense which requires preliminary investigation

    

 

not a preliminary investigation; distinct does not follow the procedure on preliminary investigation CONDUCTED WHEN: (by the inquest officer/prosecutor) a person has been lawfully arrested and detained without warrant WHERE: police stations/headquarters of the PNP, unless otherwise directed (which is why it is an informal and summary proceeding) Deemed COMMENCED: from the time the Inquest Officer receives the complaint and referral documents detained persons should be present during inquest proceedings Purpose: to determine whether or not the person detained should remain under custody and then charged in court – ahh ok!!! Grrrr!!

- PN NOT REQUIRED even if offense requires preliminary investigation Substitute – INQUEST PROCEEDING? 1. a person is arrested lawfully without a warrant note: he may ask for a preliminary investigation* note: inquest proceedings apply 2. in flagrante delicto Reason: preliminary investigation is not required since the person is lawfully arrested Riano: if he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of a preliminary investigation. Question: What is the use of inquest proceeding? Question: Is an inquest a substitute of preliminary investigation? Question: Is it needed in lieu of preliminary investigation? Answer: an inquest proceeding shall normally apply when a person is lawfully arrested without a warrant *When may the person lawfully arrested without warrant ask for a preliminary investigation? - before the complaint/information is filed but he must sign a waiver under Article 125 of the RPC (imposes a penalty on the officer) - after filing, within 5 days from the time he learns of its filing

Duty of the Inquest Prosecutor: to determine if the detained person has been arrested lawfully in accordance with Rule 113, Sec 5 (a) and (b) 1. he may examine the arresting officers on the arrest b. should it be found that it was not in accordance with Rule113, inquest prosecutor shall not proceed with the inquest proceedings. And recommend the release of the detainee ** see the table at the back/below 1.

Inquest must pertain to the offense for which the arrest was made Case: Beltran v. People Facts: Beltran was arrested without a warrant for inciting to sedition based on a speech he gave. Second inquest was based on rebellion. Ruling: Inquest proceedings are proper only when the accused has been lawfully arrested without a warrant. The officers arrested Beltran for inciting to sedition and not for rebellion, therefore the prosecutor could only have conducted an inquest for inciting to sedition and no other! Second inquest – invalid

1. 2. 3.    1. 2.   



STEPS ON PRELIMINARY INVESTIGATION: *initial step: filing of the complaint with the prosecutor (an affidavit of complaint) Contains: address of the respondent affidavits of his witnesses other supporting documents the number of copies to be filed shall – also the number of respondents included plus 2 copies for official file example: 2 respondents – 2 copies + 2 official files = total4 Dismissal of the complaint: (made by the complainant) from filing, prosecutor has 10 days to decide: dismiss issue subpoena to the respondent Rights of the Respondent: right to examine the evidence submitted right to copy the evidence at his expense objects shall be made available for examination, copying, or photographing at the expense of the requesting party (may be respondent or complainant) Filing of counter-affidavit by respondent: within 10days from receipt of subpoena, he is required to submit his counter-affidavit with other documents *reply-affidavit from complainant; rejoinder-affidavit from respondent



      

Effect of no counter-affidavit: ex parte investigation prosecutor shall resolve the complaint based on the evidence presented by the complainant Respondent may be allowed to reopen the case to submit his counter-affidavit; should be done before the prosecutor has issued a resolution; it should contain an explanation for the failure to timely file the counter-affidavit Clarificatory Hearing: set by the prosecutor to clarify facts and issues no right to cross-examine if the parties have questions to ask, it should be addressed to the prosecutor, and the latter shall be the one to ask the questions to the party concerned lasts only for 5 days dispensable within the discretion of the prosecutor

1. 2. 3. 4. 5.

Resolution; final stage of preliminary investigation If the prosecutor finds probable cause to hold the accused for trial, he shall prepare: resolution *information (to be filed in court) or dismissal *the information shall contain a certification, in which he certifies: he personally examined the complainant and witnesses there is reasonable ground that a crime has been committed accused is probably guilty accused was informed of the complaint and evidence he was given an opportunity to submit evidence



Effect of the absence of certification: the information is still considered valid

1. 2. 3.

After resolution – prosecutor shall forward the case to the provincial or city prosecutor or chief state prosecutor or Ombudsman Reason: there should be prior written authority or approval of the provincial, city prosecutor, or chief state prosecutor or Ombudsman before an information or complaint may be filed or dismissed by the prosecutor *Resolution of the investigating prosecutor is not conclusive since it may be reversed or affirmed by the prosecutors earlier cited

no complaint or information may be filed or dismissed by an investigating prosecutor without the prior Reiteration of the rule:

written authority or approval of the provincial or prosecutor, or chief state prosecutor, or the Ombudsman 

           

   

1.

city

When recommendation for dismissal is disapproved: the Ombudsman may file the information or he may direct another assistant prosecutor Motion for Reconsideration aggrieved party may file within 15 days from receipt of the resolution Appeal within 15 days from the denial of the MR appeal to the Secretary of Justice verified comment may be filed by the adverse party, 15 days from receipt of appeal if there is no verified comment, Secretary of Justice may resolve on the basis of the petition if there is probable cause, information may be filed in court proceedings in court should be held in abeyance aggrieved party may file a motion for suspension of arraignment; Rule 116, 11(c) arraignment shall be suspended if a petition for review of the resolution of the prosecutor is pending Secretary may dismiss outright IF an information has been filed and accused has already been arraigned before the filing of the appeal, the appeal shall not be given due course IF, accused has been arraigned after the filing of the petition, any arraignment shall not bar the Secretary of Justice to review Secretary of Justice has the power to affirm, modify, nullify, or reverse the resolution made by his subordinates; has the ultimate power to decide which conflicting theories of the parties should be believed; his finding are not subject to review, except if tainted with grave abuse of discretion (remedy of aggrieved party: petition for certiorari); his decision is final Courts are not empowered to substitute their own judgment, only that of the investigating prosecutor and ultimately that of the Secretary of Justice General rule: Principle of non-interference – leaves the investigating prosecutor sufficient latitude of discretion Exception: when there is grave abuse of discretion Appeal to the Secretary of Justice May be availed of despite the filing of information in court Appeal to the Office of the President; administrative appeal Appeal to the Court of Appeals; judicial appeal Appeal to the Supreme Court Duties of the Judge; upon filing of the complaint/information Personally evaluate the resolution; look into its evidence

2.

Judge may find that evidence: 1. Fails to establish probable cause (Judge may dismiss) b. Establishes probable cause (Judge shall issue warrant of arrest) (If lawfully arrested – issue a commitment order) c. Engenders a doubt as to the existence of probable cause (Order to submit additional evidence) When warrant of arrest is not necessary: Accused is under detention pursuant to a lawful warrantless arrest, and a complaint or information has already been filed 2. Offense is punishable by fine 3. Case is subject to the Rules on Summary Procedure (inquest?) 1.

BAR Question: Whether the TRIAL COURT may refuse to grant the motion filed by the Provincial Fiscal (upon instructions of the Sec of Justice) and insist on the arraignment and trial on the merits. Answer: YES, the court may deny the motion and require that the trial on the merits proceed for the proper determination of the case. Once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction of the trial court. The fiscal or even the Secretary of Justice cannot impose his opinion on the trial court since it is the best and sole judge on what to do with the case before it. The judge of the trial court is not bound to rely solely on the resolution of the fiscal; he must make a personal evaluation of the case, and satisfy himself that there is indeed a probable cause to issue a warrant of arrest or a commitment order. Further, judge is required to positively state that the evidence presented was insufficient for a prima facie case. It must include the discussion of the merits and state the reasons for granting the motion to withdraw.

Chapter V. ARREST, SEARCH, AND SEIZURE       

How made The taking of the person into custody In order that he may be bound to answer for the offense Need not be actually restrained Sufficient: submission to the custody of the person Control over the person Restraint on his liberty He is not free to leave on his own volition

  

Who will arrest? Law enforcement officers are entrusted with the power to: Conduct investigations Make arrests

 

Perform searches and seizures of persons and their belongings Must be exercised within the boundaries of the law

PROBABLE CAUSE on ARREST 1. Personal knowledge by the arresting officer 2. of facts and circumstances 3. that the arrestee is indeed the perpetrator of the criminal act QUESTION: What if the act of the officer does not amount to an arrest; will the requirements on probable cause and personal knowledge stay? ANSWER: No. It will not be pre-requisites to the legality of the said arrest. REQUISITES FOR ISSUANCE OF A WARRANT OF ARREST; judge’s duties (While on preliminary investigation, it was more on the prosecutor’s duty)

1. 

it shall be issued upon finding of probable cause otherwise, unreasonable, violates the constitutional right to privacy of persons subject to such warrant 2. personally determined by the judge



case: AAA vs. Carbonell: judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause; judge should have taken into consideration the documentary evidence as well as the transcript of stenographic notes Ruling: The judge committed grave abuse of discretion for dismissing the criminal case on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand.

Case: Soliven v. Makasiar – this provision does not mandatorily require the judge to personally examine the complainant and her witnesses. He may opt to: 1. personally evaluate the report and supporting documents submitted by the prosecutor; or 2. disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses



  

but such personal examination is not mandatory and indispensable in the determination of probable cause; the necessity arises only when there is an utter failure of the evidence to show the existence of probable cause; otherwise, the judge may rely on the report of the investigating prosecutor The Judge must: satisfy himself of the existence of probable cause not required to personally examine judges merely determine the probability, not the certainty, of guilt of an accused

 

personally review the initial determination of the prosecutor finding probable cause to see if It is supported by substantial evidence but such personal examination is not mandatory and indispensable in the determination of probable cause; the necessity arises only when there is an utter failure of the evidence to show the existence of probable cause; otherwise, the judge may rely on the report of the investigating prosecutor



PROBABLE CAUSE (on WARRANT OF ARREST), defined assumes the existence of facts that would lead a reasonably discreet and prudent man to believe that a crime has been committed or it was likely to be committed by the person sought to be arrested

     

In determining probable cause: average man weighs the facts and circumstances without resorting to the standards of the rules of evidence of which he has no technical knowledge he relies on common sense demands more than suspicion requires less than evidence

 

 

 

  

Personal determination by the judge in Carbonell case – judge is not required to personally examine the complainant and her witnesses; he may take into consideration the documentary evidence, supporting affidavits however, the Court found that the judge’s finding of lack of probable cause was premised only on the complainant’s and her witnesses’ absence during the hearing scheduled by the judge for the judicial determination of the probable cause therefore, absence of the complainant or the witnesses, or failure or refusal to take the witness stand would not warrant the existing of probable cause #lol #dontstatetheobviousclairy SC found that the judge committed grave abuse of discretion for dismissing the criminal case on the ground that petitioner and her witness failed to comply with his orders to take the witness stand Judge may disregard the fiscal’s report and require the submission of supporting affidavits of witness to aid him in determining probable cause – case: Soliven v Makasiar Judges just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence Personal examination – not mandatory and indispensable; When personal examination is required (literal) Only when there is utter failure to show the existence of probable cause

   

Otherwise, judge may validly rely (not solely – hence, evaluation of documentary evidence) on the report of the prosecutor , provided that he likewise evaluates the documentary evidence in support thereof He should not rely solely on the report of the investigating prosecutor but must also evaluate the documentary evidence and affidavits, and stenographic notes If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted Never allowed to follow blindly the prosecutor

1. 2.

When directly filed with the MTC Judge shall personally evaluate the evidence; or Personally examine in writing and under oath the complainant and his witnesses in the form of searching questions and answers Method of Arrest with a warrant Warrant is issued by a judge Delivered to the proper law enforcement officer for execution Head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt Within 10 days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant In case of his failure to execute, he shall state the reasons for its nonexecution Procedure of arrest by virtue of a warrant; the OFFICER SHALL: Inform the person to be arrested of the cause of his arrest; Inform him of the fact that a warrant has been issued

1. 2. 3.

The information need not be made when the person to be arrested: Flees Forcibly resists Giving of the information will imperil the arrest

1. 2. 1. 2. 3. 4. 5.

NOTE: The officer need not have the warrant in his possession at the time of the arrest. However, after the arrest, the warrant shall be shown to him as soon as practicable, if the person arrested so requires. The officer also has the duty to deliver the person arrested to the nearest police station or jail without necessary delay. 1. 2. 3. 4. 5.

When the person to be arrested is INSIDE a BUILDING The officer is authorized To break into any building or enclosure In case he is refused admittance After announcing his authority and purpose If necessary, he may break out from said place to liberate himself

LAWFUL WARRANTLESS ARREST* in flagrante delicto – in his presence, the person to be arrested, is actually committing or is attempting to commit an offense 1. citizen’s arrest is allowed b. hot pursuit – an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts/circumstances that the person to be arrested has committed it c. escapee – when the person to be arrested is a prisoner who has escaped *the exception to the general rule that a warrant of arrest is required before an arrest is made 1.

WHAT is CITIZEN’S ARREST?  a private person, may without a warrant, arrest a person when, in his presence, the person to be arrested is in flagrante Who may make the warrantless arrest? 1. Peace officer 2. Private person 3. a bondsman

1. 2. 

Requisites of in flagrante delicto accused must perform an overt act done in the presence or within the view of the arresting officer mere suspicion and reliable information – not justification for a warrantless arrest!

CASES where warrantless arrest is upheld The HOT PURSUIT exception REQUIREMENTS: 1. Offense has just been committed 2. The person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it Note: a warrantless arrest made, one year after the offense was allegedly committed is an illegal arrest! Does not require the officers to personally witness the commission of the offense; PERSONAL KNOWLEDGE must be based on PROBABLE CAUSE – actual belief or reasonable grounds of suspicion. 1.

Reasonable ground: Based on actual facts 1. Supported by circumstances sufficiently strong in themselves to create probable cause of guilt 2. Probable cause with good faith

Method of arrest WITHOUT a WARRANT 1. Arrest by an officer; he shall inform: 1. Of his authority 2. Cause of his arrest  The info need not be given if: a. If the person to be arrested is engaged in the commission of an offense b. In the process of being pursued immediately after its commission c. Escapes or flees d. Forcibly resists before the officer could inform him e. The information will imperil the arrest Officer may:  Summon assistance  Break into a building or an enclosure or break out from it 2. Arrest by private person; he shall inform a. His intention to arrest him b. Cause of his arrest *need not be given under the same conditions above NOTE: the right to break into a building or an enclosure does not apply to private person!! TIME OF ARREST: any day; any time of the day or night



Rights of a person arrested: a. Assisted by counsel at all times Counsel must be independent and competent b. Remain silent c. To be informed of the above rights d. To be visited by the immediate members Custodial investigation – in a form of an “invitation” to person who is investigated in connection with the offense he is suspected to have committed

 

Effect of an ILLEGAL ARREST on JURISDICTION of the court Legality of the arrest affects only the jurisdiction of the court over the person Waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.

Chapter XI JUDGMENT    

Judgment, defined. Adjudication by the court That accused is guilty or not guilty Imposition of the proper penalty And civil liability

1. 2. 3.

Formal Requisites of Judgment: Written in the official language Personally and directly prepared an signed by the judge Must contain clearly and distinctly 1. Statement of facts 2. Law Jurisdictional requirements: a. over the subject matter b. territory c. person of the accused Contents of a judgment of CONVICTION a. legal qualification b. aggravating and mitigating circumstances c. participation of the accused; principal, accomplice, accessory d. penalty imposed e. civil liability or damages

1. ii.

       

Contents of a judgment of ACQUITTAL: state whether the evidence of the prosecution: 1. absolutely failed to prove the guilt 2. merely failed to prove his guilt beyond reasonable doubt determine if the act or omission from which the civil liability might arise did not exist Note: verdict of acquittal is immediately final! Rule on duplicitous complaint or information; two or more offenses in a single information or complaint – 2-in-1 Remedy: MOTION TO QUASH (during arraignment) Exception: when the law prescribes a single punishment for various offenses What happens if the accused fails to object before trial? Waiver May be convicted for as many offenses as are charged and proved, and impose penalty for each offense! Note: can no longer be raised on appeal Judgment rendered by a judge who did not hear the case Valid! Valid even if he merely relied on the records of the case especially where the evidence on record is sufficient to support its conclusion Variance doctrine; variance between allegation and proof a. offense proved is different from the offense charged

b. offense charged is either included in the offense proved or necessarily includes the offense proved General rule: convicted only of the offense charged Exception: variance doctrine; may be convicted of the: 

offense proved which is included in the offense charged or of the offense charged which is included in the offense proved

When an offense includes or is included in another 1. essential elements or ingredients of the constitute or form part the offense proved

offense

charged

Promulgation

of Judgment by reading in the presence of the accused and any judge for light offense – in the presence of counsel or representative may be promulgated by the clerk of court if the judge is absent or outside the province or city 4. if the accused is confined or detained in another province or city, may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention 1. 2. 3.

 

Notice on the promulgation of judgment given by the clerk of court personally to the accused or thru his bondsman or warden and counsel if tried in absentia – served at his last known address

What if the accused fails to appear in the promulgation? 1. Shall be made by recording the judgment in the criminal docket 2. Serve him a copy at his last known address or thru his counsel Judgment for conviction:  Accused fails to appear without just cause  He shall lose the remedies available against the judgment  Court shall order his arrest  Within 15 days from promulgation of judgment, accused may surrender and file a motion for leave of court to avail the remedies Modification of Judgment 1. Upon motion of the accused 2. Before the judgment becomes final or before appeal is perfected When judgment becomes FINAL a. After the lapse of the period for perfecting an appeal; or b. When the sentence has been partially or totally satisfied or served c. When the accused has waived his right to appeal

d. He has applied for probation 

Entry of judgment After judgment has become final, it shall be entered in accordance with Section 8, Rule 120, Rules of Court

II – NEW TRIAL OR RECONSIDERATION (conviction) Who may file? – Accused When filed? – any time before the judgment of conviction becomes final The court may: a. Grant a new trial or reconsideration b. With the consent of the accused c. Without waiting for the motion of the accused

1. 2. 3. 4.

Grounds for new trial a. Errors of law b. Irregularities prejudicial to the substantial rights c. New and material evidence has been discovered* Discovered after trial accused could not have discovered and produced Even with the exercise of reasonable diligence And which if introduced would probably change the judgment 1. It must be material 2. Must affect the merits and produce a different result if admitted 3. must concur

Grounds for reconsideration errors of law errors of fact Form: 1. in writing 2. state the grounds 1. if based on new and material evidence it should be supported by affidavits Notice of the motion  given to the prosecutor 1. 2.





When hearing on the motion is required when it calls for a resolution of a question of fact EFFECT: a. based on errors of law or irregularities all the proceedings and evidence affected shall be 1. set aside; and

2. taken anew the court may allow additional evidence b. newly-discovered evidence evidence already adduced shall stand the newly-discovered evidence shall be taken together with the evidence already in record c. in all cases where it is granted original judgment shall be set aside or vacated new judgment shall be rendered

ii. i. ii. i. ii.

III – APPEALS    

Not a natural right Merely a statutory privilege May be exercised in the manner and in accordance with the provisions of law



Once granted by law, its suppression is tantamount to a violation of due process Subject: judgment or final order

 

Who may appeal? Any party Exception: accused will be placed in double jeopardy

 

What if the accused appeals? Waives his right against double jeopardy Runs the risk of being sentenced to a penalty higher than that imposed by the trial court

 

Who may institute proceedings before the CA or SC? Only the OSG or Solicitor General (as appellate counsel) He should be given the opportunity to be heard in behalf of the People. Case: appellate court failed to notify the Solicitor General of its resolution on a petition filed by the accused and failed to require to file its comment – effect: deprivation of a fair opportunity to prosecute and prove its case Rule: a petition for review should be filed by the Solicitor General who is solely vested with the authority to represent the people

  

EFFECT OF APPEAL on CRIMINAL CASE: Opens the entire case for review Appellate court may correct errors; or reverse the trial court’s decision on grounds other than those that the parties raised as errors

 

1. 2. 3. 1. 2. 3.  b. 1. 2. i.

EFFECT of appeal on civil case: in contrast with the criminal case no error will be considered by the appellate court unless stated in the assignment of errors, except when: 1. error affects the jurisdiction 2. affects the validity of the judgment appealed 3. closely related or dependent on an assigned error 4. plain error or a clerical error Change of theory on appeal – not allowed! Rule: A PARTY CANNOT change his theory on appeal nor raise in the appellate court any question of law or of fact that was not raised in the court below or which was not within the issue raised in their pleading WHERE and HOW to appeal? a. RTC – cases decided by MTC Notice of appeal served to the RTC filed with the court which rendered the judgment serve a copy upon the adverse party (personal service) No notice of appeal – RTC imposed the reclusion perpetua; the CA will automatically review the judgment CA or SC – cases decided by RTC Judgment by the RTC in its original jurisdiction 1. Notice of appeal Judgment by the RTC in its appellate jurisdiction 1. File a petition for review b. SC – cases decided by CA Petition for review on certiorari

When appeal is to be taken Within 15 days from promulgation of judgment The period shall be suspended from the time a motion for new trial or reconsideration is filed until overruled May an appeal be withdrawn? Yes. As long as the record has not been transmitted or forwarded to the appellate court. When it is withdrawn – judgment becomes final! 1. Motion to withdraw is filed 2. Filed before the RTC EFFECT of appeal by any of several accused  Only binds those who appealed  Will not affect those who did not appeal  Except: judgment is favorable to others; this time it will bind the others who did not appeal  Except: procedural consequences; the stay of execution will not benefit those accused who failed to file on time Appeal from the civil aspect 1. 2.

 

Shall not affect the criminal aspect Within 15 days from promulgation of judgment Period to apply for probation  Within 15 days from promulgation Stay of execution  Upon perfection of the appeal  procedural consequences; the stay of execution will not benefit those accused who failed to file on time COURT OF APPEALS may dismiss: 1. if the appellant fails to file within the time prescribed 1. except: appellant is represented by a counsel de oficio b. if the appellant escapes Ground for reversal of judgment or its modification Rule: CA is mandated not to reverse or modify a judgment Except: After examination of the record and evidence, it finds that there is an error which injuriously affects the substantial rights of appellant 1. 2.

Rule if the opinion of the Supreme Court en banc is equally divided It shall again be deliberated (re-deliberation) If no decision is reached, judgment of conviction of the lower court shall be reversed and the accused acquitted!

1. 2. 3. 4. 5.

IV PROVISIONAL REMEDIES IN CRIMINAL CASES Remedies available in a civil action; since a civil action is deemed instituted in the criminal case, it follows that provisional remedies are also available, save in cases where the civil action is reserved, or waived, or separately filed To avail: the criminal action must be one with a corresponding civil liability the civil action must be one arising from the offense charged and which is instituted in the said criminal action IF, civil action has been waived, reserved, or instituted separately – the provisional remedy may not be availed of. Instead, it may be applied for in the separate civil action Who may avail? – offended party What are these provisional remedies? Preliminary attachment Preliminary injunction Receivership Replevin Support pendente lite

 

When preliminary attachment is available when the civil action is properly instituted in the criminal action when the accused is about to abscond



  

   

when criminal action is based on claim for money or embezzlement or misappropriation when accused has concealed, removed, or disposed of his property, or is about to do so when the accused resides outside the Phils. May be availed of without the need for a showing that the accused has concealed, removed, or disposed of his property or is about to do so.