CrimPro Codal Memory Aid Finals
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec4 – Information defined RULE 110 – PROSECUTION OF OFFENSES Information – accusation in writing charging a person with an offense Sec1 – Institution of criminal actions è Subscribed by the: 1) 2)
Offenses where a preliminary investigation is required (Sec1Rule112) o Filing the complaint to the proper officer è purpose of conducting the requisite preliminary investigation All other offenses o MTC and MCTC or office of the prosecutor o In manila and other chartered cities è office of the prosecutor (unless otherwise provided)
1) 2)
Sec5 – Who must prosecute criminal actions -‐ -‐
è Institution of the criminal action – interrupt the running of the period of prescription (unless otherwise provided by special laws) IMPOSSIVIEW: Institution of criminal actions 1. 2.
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If the crime is committed in a chartered city (no need to distinguish) a. Office of the prosecutor If the crime is committed outside a chartered city (need to distinguish) a. If Preliminary investigation if required i. Office of the prosecutor b. If preliminary investigation is not required i. MTC ii. Office of the prosecutor (no prohibition)
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è Only a prosecutor or ombudsman may conduct preliminary investigations Interruption of prescription 1. 2.
Ordinary crimes – filing before the office of the prosecutor Special laws (Act3326) – filing in court a. Exception(s): BP22, Anti-‐graft, intellectual property (filing for PI) è supported by jurisprudence
Shall be in writing In the name of the “People of the Philippines vs. the accused”
Sec3 – Complaint defined Complaint – sworn written statement charging a person with an offense è Subscribed by the: 1) 2) 3)
Offended party Any peace officer Other public officer (charged with the enforcement of the law violated) è (public offense)
All criminal actions commenced by a complaint or information – prosecuted under the direction and control of the prosecutor In case of heavy work schedule or lack of public prosecutors o Private prosecutors – authorized in writing by the Chief of Prosecution Office. or the Regional State Prosecution Subject to the approval of the Court è Continue up to the end of the trial even in the absence of a public prosecutor (unless revoked/withdrawn) Crimes of Adultery and Concubinage, may be filed by the: 1) Offended spouse è cannot institute criminal prosecution without including the guilty parties if: o Both are alive o Has not consented o Has not pardoned the offenders Offenses of Seduction, Abduction and Acts of Lasciviousness, may be filed by the: (in order) 1) Offended party 2) Parents 3) Grandparents 4) Guardian 5) State (offended party dies/incapacitated and has no known parents/grandparents/guardian) è Minor – has the right to initiate the prosecution of such offenses independently of her parents/grandparents/guardian (unless incompetent/incapable)
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Sec2 – Complaint or Information 1) 2)
Prosecutor Filed with the court
Crime of Defamation, may be filed by the: 1) Offended party
IMPOSSIVIEW: Public Prosecutor – has the control of the conduct of the criminal case DOJ – has the power to review the discretionary powers of the prosecutor (Petition for review 15days from receipt of resolution or denial of MR) CA – may review the decision of the DOJ (Rule 65 GADALEJ) or to the Office of the President (if it involves penalties of death, RP, or Life imprisonment) Duties the Prosecutor 1. 2. 3.
Conduct Preliminary Investigation In charge or in control over the prosecution of the case May conduct inquest proceedings
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec10 – Place of commission of the offense Private prosecutor – cannot proceed with the trial in the absence of the public prosecutor è reset of proceedings Certification from the chief of prosecution office/regional state prosecutor/regional prosecutor è 1) Where the offense was committed allow the private prosecutor to proceed even in the absence of a public prosecutor 2) Where some of its essential ingredients occurred Sec6 – Sufficiency of complaint or information (MEMORIZE) IMPOSSIVIEW: The following must be stated: “An approximation will suffice unless the place of commission is a material element of the offense” 1) Name of the accused Sec11 – Date of commission of the offense 2) Designation of the offense given by the statute It is not necessary to state the precise dated the offense was committed (except when it is a 3) Acts or omissions complained of material ingredient of the offense) 4) Name of the offended party 5) Approximate date of commission IMPOSSIVIEW: 6) Place where the offense was committed Sometime in the month of April 1998 – valid On or about May 1998 – valid Sec7 – Name of the accused On or about 2004 – invalid è possibilities are so huge (1992, 1994, 2003, etc.) è there should be The complaint or information must state the: some limitations Sec12 – Name of the offended party 1) Name and Surname 2) Appellation or Nickname 3) Fictitious name (name cannot be ascertained) 1) Name and Surname o Juridical person è sufficient to state any name or designation (without need of averring that it is organized in accordance with law) è If the true name is thereafter disclosed, it shall be inserted 2) Property – (If the name of the offended party is unknown) must be described as to properly identify the offenses charged IMPOSSIVIEW: 3) Appellation or Nickname Appellation – must be the name of the person known to the public 4) Fictitious name Fictitious name – John/Jane Doe Sec8 – Designation of the offense Sec13 – Duplicity of the offense The complaint or information shall state the: Complaint or Information – must charge ONLY ONE offense (except when the law prescribes a single punishment for various offenses) 1) Designation of the offense given by the statute (ex. Violation of sec.2 of PD123) IMPOSSIVIEW: 2) Aver the acts or omissions constituting the offense GR: Every information must charge only one offense 3) Specify its qualifying and aggravating circumstances E: when there is a single punishment for various offenses (ex. Complex crimes) è Such defect may be waived if there was no objection on the part of the accused (Sec3Rule120) è If there is no designation, reference shall be made to the sec/sub-‐sec of the statute punishing it Sec14 – Amendment or Substitution IMPOSSIVIEW: 1) Amendment before accused enters his plea Aggravating (even generic) and qualifying circumstances – must be alleged o Without leave of court Mitigating circumstances – it is up to the defendant to allege such circumstances o In substance è There’s no need to allege the exact wording of the law è all that is required by the law is a o In form statement that falls within such aggravating, generic or qualifying circumstances 2) Formal Amendment after plea and during trial o With leave of court Sec9 – Cause of the accusation o Without prejudice to the rights of the accused Acts or Omissions and the Qualifying and Aggravating circumstance – must be stated in ordinary and 3) Amendment before plea which downgrades the nature of the offense or concise language è in terms sufficient to enable a person of common understanding to know what excludes any accused offense is being charged as well as its qualifying and aggravating circumstances and for the court to o Motion by prosecutor pronounce judgment o Notice to the offended party o Leave of court 4) Mistake (before judgment)
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
Ugh… life. Atty. Salvador certiorari but to go to trial without prejudice to o The court shall dismiss the original complaint or information upon filing a reiterating the special defenses new one charging the proper offense in accordance with Sec19 Rule119 Objections not raised is deemed a waiver (must not be placed in double jeopardy) IMPOSSIVIEW: Amendments – as long as it will not prejudice the rights of the accused 1. 2.
Except: 1. 2. 3.
2. 3. 4. 5.
New allegations which relates only to the range of penalty the court might impose in the course of the conviction (did not change the imposable penalty but merely the range) Amendments 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 and will not surprise the accused Amendments which do not adversely affect any substantial right of the accused Amendments that merely adds specifications to eliminate vagueness of the information
When there is a motion for bill of particulars Filing of a motion to dismiss under Rule16
Motion to Exclude – to exclude an accused even before an accused pleas to exclude him •
Must be filed before plea
Substitution of Information – it is when the prosecution is convinced that it would not be able to convict or to cause the conviction of the accused Motion to Quash v Motion to Dismiss Motion to QUASH Filed at anytime before the accused pleas in a CRIMINAL case Must be in writing (can be signed by the accused himself or by counsel If granted – the case may be re-‐filed Except: 1. Extinguishment of crime 2. Prescription 3. Double jeopardy If denied (Lazarte v SB) – not correctible by
By: James Francis Villanueva Francis Xavier Razon
Objections not raised is deemed a waiver
Lack of jurisdiction Prescription Double jeopardy
1) 2)
3) 4)
1. 2. 3.
Violation of the Human Security Act (acts of terrorism) Crimes or offenses against Filipino citizens though committed outside the Philippines Offenses against diplomatic officers or offenses committed within diplomatic premises of the Philippines though committed outside the Philippines
Sec16 – Intervention of the offended party in criminal action Civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule111 è the offended party may intervene by counsel in the prosecution of the offense IMPOSSIVIEW: When a private prosecutor enters his appearance for the civil liability of the offended party è intervention in a criminal case Motion for intervention è CA or SC subject to their discretion whether to entertain it or not
Motion to DISMISS Filed before an answer within the reglamentary period to file an answer in a CIVIL case Must be in writing If granted (Rule 16) – the case may be re-‐filed Except: 1. Res judicata 2. Statute of limitations 3. Payment/waiver/abandonment or extinguishment of obligation 4. Unenforceable (SoF)
Subject to existing laws o Where the offense was committed o Where any of its essential ingredients occurred Train/Aircraft/Public or Private Vehicle o Where it passed during its trip o Place of arrival o Place of departure Vessel o 1st port of entry o Where it passed during its voyage Art2 RPC o Where the criminal action is 1st filed
IMPOSSIVIEW: Other exceptions to the rule that venue is jurisdictional
Instances where the court may order for an amendment without a motion to amend under Rule10 1. 2.
Sec15 – Place where action is to be instituted
Before plea a. Form b. Substance After plea a. Form
Substantial Amendments – consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court Formal Amendments 1.
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Leave of court is required Motion for intervention in civil cases (Sec2Rule19) è before the rendition of judgment in the trial court
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec3 – When civil action may proceed independently RULE 111 – PROSECUTION OF CIVIL ACTION Independent civil action shall proceed and only preponderance of evidences is required under the Sec1 – Institution of criminal and civil actions following: Criminal action is instituted – civil action arising from civil liability è deemed instituted with the criminal action unless: 1) Art32 – violation of basic rights and liberties indicated therein 2) Art33 – cases of fraud, defamation and physical injuries 1) Waives the civil action 3) Art34 – when a city/municipal police force refuses/fails to render aid/protection to 2) Reserves the right to institute it separately – shall be made before the prosecution any person in case danger to life or property starts presenting its evidence (before the prosecution presents evidences and under the 4) Art2176 – quasi-‐delicts – criminal action è NO substitution circumstances affording the offended party a reasonable opportunity to make such “In no case may the offended party recover the damages twice for the same act or reservation) omission charged in the criminal action” 3) Institutes the civil action prior to the criminal action IMPOSSIVIEW: Rules on Filing Fees 1) 2) 3)
1)
Moral/nominal/temperate/exemplary damages (w/out specifying the amount thereof) – filing fees – 1st lien on the judgment awarding such damages Amount of damages is specified – corresponding filing fees shall be paid upon filing in court Actual damages – no filing fees required (except as provided in these rules) è Counterclaim, cross-‐claim or 3rd party claim – cannot be filed by the accused in the criminal case -‐ Any cause of action w/c could have been the subject there of è separate civil action
Violations of BP22 -‐ -‐ -‐ -‐
Deemed to include the corresponding civil action No reservation to file civil action separately shall be allowed Filing fees based on all damages – so that the government would not be used as a collection arm (moral, exemplary, nominal, temperate, actual, and liquidated) Summary procedure (no direct examination but submission of judicial affidavits, subject to cross-‐examination)
Civil action filed separately and trial thereof has not yet commenced – may be consolidated with the criminal action è joinder of actions/consolidation Sec2 – When separate civil action is suspended -‐
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Sec4 – Effect of death on civil actions
Separate civil action – suspended after the criminal action commences (cannot be instituted until final judgment of the criminal action) o If filed before the criminal action è suspended in whatever stage it may be found Consolidation (before judgment on the merits is rendered in the civil action) o Upon the motion of the offended party o Evidence adduced in the civil action shall be deemed automatically reproduced in the criminal action (without prejudice to cross-‐examine the witnesses) o Tried and decided jointly Prescription of civil action (pendency of the criminal action) è tolled Extinction of penal action – does NOT carry with it the extinction of the civil action Civil action based on delict – extinguished è finding in a final judgment in the criminal action that the act or omission from w/c the civil liability may arise did not exist
2)
Death of the accused AFTER arraignment and during the pendency of the criminal action a. Extinguish criminal action and civil liability arising from delict b. Independent civil action – may be continued against the estate/legal representative of the accused (substitution of a party to the case within 30 days from notice è captioned as a civil case arising from a criminal action) i. Arising from other obligations: 1. Law 2. Contract 3. Quasi-‐delict 4. Quasi-‐contract Death BEFORE arraignment a. Extinguishment of the criminal action ONLY b. Without prejudice to any civil action against the estate of the deceased
Sec5 – Judgment in civil action not a bar -‐
Final judgment rendered in a civil action absolving the defendant from civil liability – NOT a bar to a criminal action for the same act or omission subject of the civil action
Sec6 – Suspension by reason prejudicial question -‐
Petition for suspension of criminal action based upon a prejudicial question o Filed in the office of the prosecutor or; o Court conducting preliminary investigation è before the prosecution rests its case
IMPOSSIVIEW: 2 opportunities to file a suspension 1. 2.
Before the prosecutor conducts preliminary investigation In court before the prosecution rests its case
Sec7 – Elements of prejudicial question 1) 2) 3)
Previously instituted civil action Issue similar and intimately related to the issue raised in the subsequent criminal action Resolution of such determines whether or not the criminal action may proceed
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador IMPOSSIVIEW: “For a prejudicial question in a civil case to suspend a criminal action, it must appear that not only the said case involves facts intimately related to those of the criminal prosecution, but it should also establish the guilt or innocence of the accused” – (Majestrado v. People) Acquittal that does not bar a civil action (Nuiguid v Nicdao) 1. 2. 3.
o
RULE 112 – PRELIMINARY INVESTIGATION
Sec1 – Preliminary investigation defined; when require
o
Preliminary investigation o Inquiry or proceeding to determine whether there is sufficient ground to believe that the crime has been committed and the respondent is probably guilty and should be held for trial o 4yrs2mos&1day without regard to the fine
o
IMPOSSIVIEW: RTC – preliminary investigation: exceeding 6yrs MTC – preliminary investigation: 4yrs2mos&1day to 6yrs Sec2 – Officers authorized to conduct preliminary investigation 1) 2) 3)
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o
Provincial or city prosecutors and their assistants National and regional state prosecutors Other officers that may be authorized by law
Sec3 – Procedure The preliminary investigation shall be conducted: Complaint Form:(Sec3-‐A) o Address of the respondent o Affidavits of the complainant and his witnesses o Other supporting documents to establish probable cause o Copies: no. of respondents + 2 copies for the original file Procedure: o Subscribed and sworn before any: (must certify that he personally examined the affiants and satisfied that he voluntarily executed and understood their affidavits) § Prosecutor § Government official authorized to administer oath § Notary public o Within 10 days after filing the complaint
By: James Francis Villanueva Francis Xavier Razon
Investigating officer • Dismiss – no ground to continue • Issue a subpoena – attaching the complaint and supporting affidavits § Respondent • Right to examine the evidences (not have been furnished at his expense) § Complainant – evidence is voluminous • Be required to specify those which he intends to present § Objects as evidence – may be requested at for examination, copying or photographing Within 10 days from the receipt of the subpoena § Respondent § Submit his counter-‐affidavit (subscribed and sworn and shall not be allowed to file a motion to dismiss in lieu of a counter-‐affidavit) • Witnesses • Supporting documents If Respondent cannot be subpoenad or if subpoenad does not submit counter-‐affidavits within the 10 day period § Investigating officer • Resolve the complaint based on the evidences presented by the complainant Within 10 days from the submission of the counter-‐affidavits and other documents § Investigating officer • Set a hearing for clarifying the facts and issues from a party/witness • Without the right to examine/cross-‐examine • Terminated within 5 days Within 10 days after the investigation § Investigating officer • Determine whether or not there is sufficient ground to hold the respondent for trial §
Acquittal is based on reasonable doubt, as only preponderance of evidence is required in civil cases Where the court declared the accused’s liability is not criminal but only civil Where the civil liability does not arise or is not based upon the criminal act of which the accused was not acquitted
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Sec4 – Resolution of investigating prosecutor and its review -‐
Resolution and information of the INVESTIGATING PROSECUTOR o Certify under oath that he/authorized officer § Personally examined the complainant and witnesses § Reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof § Accused was informed of the complaint and of the evidence against him § Opportunity to submit controverting evidences o Within 5 days from his resolution § Forward the record of the case to the: (act within 10 days) • Provincial/city prosecutor • Chief state prosecutor • Ombudsman or his deputy • è No complaint/information may be filed/dismissed without authority of the one’s provided above
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador o Investigating prosecutor recommends the dismissal of the complaint § If disapproved by the one’s above (probable cause exists) • File information himself, or • Direct assistant prosecutor/state prosecutor to file • èWITHOUT another preliminary investigation o Reverses/Modifications by the DOJ § Sec. of Justice • Direct the prosecutor concerned to file the corresponding information (without another preliminary investigation), or • Dismiss/move for dismissal of the complaint with notice to the parties
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Sec5 – When warrant of arrest may issue -‐
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RTC (Sec5-‐A) o Within 10 days from the filing of the complaint § Judge • Personally evaluate the resolution of the prosecutor • No probable cause – dismiss • Probable cause – issue a warrant or commitment order o Doubt on the existence of probable cause § Judge • Order the prosecutor to present additional evidences (within 5 days from notice) • Must be resolved by the court within 30 days from filing MTC o Preliminary investigation by a PROSECUTOR § Issuance of warrant in accordance to Sec5-‐A o Cases not requiring preliminary investigation (Sec8) § Issuance of warrant arrest (discretion) § Summons
IMPOSSIVIEW: Rules on summary procedure GR: MTC will not issue a warrant of arrest E: despite repeated notices è failure to appear during trial When warrant of arrest not necessary 1. 2. 3.
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By: James Francis Villanueva Francis Xavier Razon
Absence or unavailability of an INQUEST PROSECUTOR complaint may be filed directly by: o Offended party o Peace officer BEFORE the complaint is filed o Person arrested § Request for preliminary investigation § Sign a waiver (Art125RPC) in the presence of his counsel § Apply for bail – investigation must be terminated within 15 days from inception AFTER the complaint is filed without investigation o Accused – within 5 days from knowledge of filing § Ask for preliminary investigation § Right to adduce evidences
Is not the same with preliminary investigation è not a determination of probable cause Inquest prosecutor – will decide what to do o Detain o Release for further preliminary investigation (the affidavit of the arresting officer will take place of the affidavit-‐complaint)
Sec7 – Records -‐
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Records supporting the information or complaint o Information/complaint filed in court – shall be supported by the affidavits and counter-‐affidavits of the parties and their witnesses + supporting documents + resolution on the case Record of preliminary investigation o Shall not form part of the record of the case o Court/motion of any party – order the production of the record § Necessary in the resolution § Introduced as evidence
Sec8 – Cases not requiring a preliminary investigation nor covered by the rule on summary procedure -‐ -‐
Sec6 – When accused lawfully arrested without warrant When lawfully arrested without a warrant involving an offense which requires a preliminary investigation o May be filed without investigation o Inquest must be conducted
IMPOSSIVIEW: Inquest – valid warrantless arrest for offenses that requires preliminary investigation
Accused is already under detention When lawfully arrested without warrant (Sec5Rule113) Offense penalized with fine only
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If filed with the prosecutor (offense LESS THAN 4yrs2mos1day) o Act within 10 days from filing o Sec3-‐A of this rule If filed with the MTC o Act within 10 days from filing o Sec3-‐A of this rule o No probable cause – dismiss o May require additional evidence within 10 days from notice o If no necessity for arrest è summons
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador IMPOSSIVIEW: Illustration of Rule112 Preliminary Investigation c/o: Daniel Darvin
By: James Francis Villanueva Francis Xavier Razon
Case Remanded COMMISSION OF THE CRIME
Not Arrested
Valid Warrantless Arrest
Inquest Report
POLICE INVESTIGATION Examination of the Complainant and the Witnesses if any
COMPLAINT
PRELIMINARY INVESTIGATION
Filed before the
Prosecutor’s Office
INQUEST Respondent submits his notarized
DISMISSAL!
COUNTER AFFIDAVIT w/ affidavits and supporting documents
Submitted for Approval of the City / Provincial Prosecutor
Issuance of
DISMISSED!
SUB POENA against the suspect
PROBABLE CAUSE! Accused is taken into custody
* No motion to dismiss may be filed yet
DISMISSAL! Filing of the INFORMATION before the Court
Judge conducts a Preliminary Examination or Preliminary Inquiry
* Must be Issuance of w/in a 10 days WARRANT OF ARREST or COMMITMENT ORDER
Remand to Prosecutor’s Office
Execution of the Warrant of Arrest
ARRAIGNMENT
PRE-TRIAL
JUDGMENT
TRIAL PROPER
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
Ugh… life. Atty. Salvador RULE 113 – ARREST Sec7 – Method of arrest by officer by virtue of a warrant Sec1 – Definition of arrest Arrest – taking of a person into custody in order that he may be bound to answer for the commission of an offense IMPOSSIVIEW: Juvenile and Welfare Act of 2006 & Rules of the SC on Child in Conflict with the Law 1. 2. 3.
Below 15yrs of age -‐ exempt from criminal liability Above 15 & below 18 (without discernment) -‐ exempt from criminal liability Above 15 & below 18 (with discernment) -‐ diversion (method of conciliation, mediation and rehabilitating the accused) a. Offense below 6yrs -‐ barangay b. Offense exceeding 6yrs – court
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Actual restraint of the person being arrested Submission to the custody of the person making the arrest
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Head of the office to whom the warrant of arrest was delivered o Execute within 10 days from its receipt Within 10 days after the expiration of the period o Officer to whom it was assigned – shall make a report to the judge who issued the warrant
Sec5 – Arrest without a warrant; when lawful -‐
Any peace officer or private person may arrest without a warrant: o In flagrante delicto – it must be committed in his presence o Hot pursuit – he must have personal knowledge of the facts and circumstances of probable cause (applies only to crimes that has just been committed) o Fugitive – he can be arrested without a warrant
IMPOSSIVIEW: Probable cause – facts and circumstances which would lead a reasonably prudent man to believe that a crime has just been committed or is being committed or is about to be committed by the person being accused Sec6 – Time of making arrest Any day at any time of the day or night
OFFICER shall inform the person of his authority and the cause for his arrest, except o Engaged in the commission of an offense o Pursued immediately after commission o Escaped, flees or forcibly resists o Giving the information will imperil the arrest
Sec9 – Method of arrest by private person -‐
è No violence or unnecessary force shall be used in making an arrest è shall not be subjected to a greater restraint than necessary for his detention Sec3 – Duty of the arresting officer To arrest and deliver him to the nearest police station/jail without unnecessary delay Sec4 – Execution of warrant
Officer shall inform the person to be arrested of the cause of arrest and the fact that a warrant has been issued for his arrest, except: o Flees or forcibly resists arrest o Giving information will imperil the arrest The officer NEED NOT have the warrant in his possession at the time of arrest o After arrest (upon request of person arrested) – show the warrant as soon as practicable
Sec8 – Method of arrest by officer without a warrant
è Determined by the age at the time of the commission of the offense Sec2 – Arrest; how made 1) 2)
By: James Francis Villanueva Francis Xavier Razon
PRIVATE PERSON shall inform the person of his authority and the cause for his arrest, except o Engaged in the commission of an offense o Pursued immediately after commission o Escaped, flees or forcibly resists o Giving the information will imperil the arrest
Sec10 – Officer may summon assistance -‐ -‐
Officer making a lawful arrest – may orally summon as many persons as he deems necessary to assist him in effecting the arrest Every person summoned – shall assist him in effecting the arrest when he can render such assistance without detriment
Sec11 – Right of officer to break into building or enclosure -‐
An officer in order to make an arrest by virtue of a warrant or Sec5 o May break into any building/enclosure where the person is to be arrested è if he is refused admittance thereto (after announcing authority and purpose)
Sec12 – Right to breakout from building or enclosure -‐
The officer who entered the building/enclosure may breakout therefrom when necessary to liberate himself
Sec13 – Arrest after escape or rescue -‐
If person lawfully arrested escapes or is rescued – any person may immediately pursue or retake him without a warrant at any time and in any day (fugitive)
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador Sec14 – Right of attorney or relative to visit person arrested -‐
Any member of the Philippine bar or a relative (at request) – shall have the right to visit and confer privately with such person in the jail or any place of custody o At any hour of the day or night o Subject to reasonable regulations
RULE 114 – BAIL Sec1 – Bail defined Bail – is the security given for the release of a person in custody of the law, furnished by: 1. 2.
3. 4.
1.
Him Bondsman
2.
3.
Corporate surety Property bond Cash deposit Recognizance
2.
Valid warrantless arrest (inquest) a. You CANNOT apply for bail if you are subjected to an INQUEST è pre-‐mature application i. The prosecutor will still look on the arrest report and the affidavit of the arresting officer è release for further preliminary investigation or detention ii. If subjected to detention è BAIL Arrest by virtue of a warrant a. GR: for as long as there is deprivation of liberty è BAIL (constitutional right) b. E: non-‐bailable offenses
2.
Cash bond (Sec14) a. It will be returned if: i. Acquitted ii. Dismissed iii. Convicted but no civil liability (if cash bond is to be applied to cover the civil liability) b. The lawyer is not entitled to the cash bond c. Must be of the full amount Surety bond (Sec10) – bond issued by a surety company
By: James Francis Villanueva Francis Xavier Razon
The accused must only pay a PREMIUM to such company and it must be RENEWED annually b. Must be accredited by the SC Property bond (Sec11) a. The owner MUST be a resident of the Philippines (IMPORTANT) Recognizance (Sec15)
The undertaking shall be effective upon approval, and unless cancelled è shall remain in force at all stages of the case until promulgation of the judgment of the RTC (irrespective of whether the case was originally filed in or appealed to it) The accused shall appear before the proper court whenever required by the court or these rules a. The failure of the accused to appear at the trial without justification and despite due notice è deemed a waiver of his right to be present thereat è trial in absentia The bondsman è surrender the accused to the court for execution of the final execution a. Original papers shall state the following: i. Full name of the accused ii. Amount of undertaking iii. Conditions required by this section iv. Photographs (passport size, taken within the last 6mos. Showing the face, left and right)
IMPOSSIVIEW: Conditions for bail 1. 2.
è Arraignment – is NOT a prerequisite to an application of bail (Serapio v Sandiganbayan) Kinds of Bails 1.
Note: you do NOT need a CERTIFICATION OF ARREST to be able to apply for bail è amounts to voluntary surrender Sec2 – Condition of the bail; requirements
IMPOSSIVIEW: 1.
a.
è Guarantee his appearance before any court as required under the conditions hereinafter specified Kinds of bail 1. 2. 3. 4.
Application for bail a. Originally filed to the RTC è effective b. Originally file to the MTC but appealed to the RTC è effective Trial in absentia – the trial could proceed in absentia a. Deemed the accused waived his appearance in court b. Bondsman – commits to bring the accused to court for purposes of promulgation of judgment c. GR: EXECUTION – if there is a sentence, the accused will have to serve sentence d. E: CONDITION (Sec1(c)Rule115) – the appearance can be waived if it is stipulated in the bail
Sec3 – No release or transfer except on court order or bail -‐
No person under detention by legal process shall be released or transferred (except 1. upon order of the court or 2. bail)
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec4 – Bail, a matter of right; exception IMPOSSIVIEW: All persons in custody shall be admitted to bail as a matter of right (with sufficient Note: to avoid confusion, Sec5 covers only AFTER CONVICTION in the RTC where the penalty is NOT sureties/recognizance) death, life imprisonment or RP If the accused is charged with murder (non-‐bailable) but convicted with homicide (bailable) è if it is before the RTC after convition è bail subject to the court’s discretion (Laviste v CA) 1. BEFORE or AFTER conviction by the: Where to file this kind of scenario: APPELLATE COURT a. MeTC b. MTC Exercise of discretion – the judge determines whether or not to grant such bail c. MTC in cities d. MCTC 2. BEFORE conviction by the RTC (not punishable by death, RP, life imprisonment) 1. Discretionary bail 2. Petition for bail for non-‐bailable offenses (different from discretionary bail) (Sec7) IMPOSSIVIEW: Bail a matter of right Sec6 – Capital offense, defined Capital offense – is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death 1. MeTC/MTC/MCTC (BEFORE or AFTER conviction – not yet final and executory) a. Bail a matter of right Sec7 – Capital offense or an offense punishable by RP or life imprisonment, non-‐bailable 2. RTC (BEFORE conviction) Person charged with a capital offense or an offense punishable by RP or life imprisonment – shall a. Exceeding 6yrs (not death/life imprisonment/RP) NOT be admitted to bail if evidence of guilt is strong (regardless of the stage of the criminal i. Bail a matter of right prosecution) Matter of right – the existence of a high degree of probability that the defendant will abscond confers Sec8 – Burden of proof in bail application upon the court NO greater discretion than to INCREASE the bond è to deny him with his right to bail is in violation of his right (Miguel v Maceda) -‐ Application of a person in custody for the commission of an offense (punishable by death, RP, life imprisonment) Sec5 – Bail, when discretionary o Prosecution è burden of showing that evidence of guilt is strong o Evidence presented during the bail hearing shall be automatically -‐ AFTER conviction by the RTC (offense not punishable by death, RP, life imprisonment) reproduced at the trial è admission of bail is discretionary § Upon motion of either party è the court may recall any witness -‐ Application for bail may be filed and acted upon by the trial court despite the filing of a for additional examination (unless dead, outside the Philippines notice of appeal è provided that it has not transmitted the original record to the or unable to testify) appellate court -‐ If the decision of the trial court convicting the accused changed the nature from non-‐ Sec9 – Amount of bail; guidelines bailable to bailable è the application can only be filed with and resolved by the The judge who issued the warrant or granted the application shall fix a reasonable amount appellate court of bail considering the following factors: (not exclusive) -‐ Should the court grant the application è the accused may be allowed to continue on provisional liberty during the pendency of the appeal (same bail subject to the consent of the bondsman) 1. Financial ability of the accused to give bail -‐ Imprisonment exceeding 6yrs è the accused shall be denied bail/cancelled upon 2. Nature and circumstances of the offense showing: (immediate denial for bail) 3. Penalty for the offense charged a. That he is a recidivist, quasi-‐recidivist or habitual delinquent or has 4. Character and reputation of the accused committed the crime aggravated by reiteration 5. Age and health of the accused b. That he has previously escaped from legal confinement, evaded 6. Weight of the evidence against the accused sentence, or violated the conditions of his bail without valid 7. Probability of the accused appearing at the trial justification 8. Forfeiture of other bail c. That he committed the offense while under probation, parole, or 9. The fact that the accused was a fugitive from justice when arrested conditional pardon; 10. Pendency of other cases where the accused is on bail d. That the circumstances of his case indicate the probability of flight if IMPOSSIVIEW: released on bail; or Prosecutor – is the one who recommends the amount of bail è there is a recommended bail when e. That there is undue risk that he may commit another crime during the the prosecutor files the information pendency of the appeal Court – only determines whether to INCREASE or REDUCE the amount of bail
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec14 – Deposit of cash as bail Sec10 – Corporate surety Any domestic or foreign corporation (licensed as a surety in accordance with law and currently authorized to act as such) è may provide bail by a bond subscribed jointly by -‐ The accused or any person acting in his behalf may deposit the amount of bail fixed the accused and an officer of the corporation duly authorized by its board of directors by the court or recommended by the prosecutor who investigated or filed the case in cash with: Sec11 – Property bond, how posted o The nearest collector of internal revenue o Provincial, city, or municipal treasurer -‐ Property bond – is an undertaking constituted as lien on the real property given as o Clerk of court where the case is pending security for the amount of bail -‐ Upon submission of a proper certificate of deposit and a written undertaking -‐ Within 10days after the approval of the bond (showing compliance with the requirements of Sec2Rule114) è the accused shall be o Accused discharged from custody § If the land is registered -‐ The money deposited shall be considered as bail and applied to the payment of fine and costs • Caused the annotation of the lien on the certificate of -‐ The excess, if any è returned to the accused or to whoever made the deposit title on file with the register of deeds § If the land is unregistered • In the registration book on the space provided in the IMPOSSIVIEW: Note: A judge is not authorized to receive the deposit of cash as bail nor should such cash be kept in register of deeds (in the province where the land lies) his office (Lachica v Tormis) • On the corresponding tax declaration in the office of the provincial/city/municipal assessor concerned Sec15 – Recognizance § Submit to the court his compliance (ESSENTIAL) Whenever allowed by law or these Rules, the court è may release a person in custody on his own • Failure to do so shall be sufficient cause for the recognizance or that of a responsible person cancellation of the property bond and his re-‐arrest and detention Sec16 – Bail, when not required; reduced bail or recognizance No bail shall be required when the law or these Rules so provide Sec12 – Qualifications of sureties in property bond 1. 2. 3.
Sec13 – Justification of sureties Justification by affidavit taken before the judge by sureties 1. 2.
2.
Person has been in custody for a period equal to or more than the possible MAXIMUM imprisonment prescribed for the offense charged a. Released immediately (without prejudice to the continuation of the trial or the proceedings on appeal) b. If the maximum penalty is destierro i. Released after 30days of preventive imprisonment Person in custody for a period equal to or more than the MINIMUM of the principal penalty prescribed for the offense charged (without application of the Indeterminate Sentence Law or any modifying circumstance) a. Released on a reduced bail or on his own recognizance (discretion of the court)
IMPOSSIVIEW:
That he possesses the qualifications prescribed in the preceding section He shall describe the property given as security, stating the: a. Nature of his title, its encumbrances, b. The number and amount of other bails entered into by him and still un-‐ discharged c. Other liabilities
è The court may examine the sureties upon oath concerning their sufficiency in such manners it may deem proper. No bail shall be approved unless the surety is qualified
1.
Each must be a resident owner of real estate within the Philippines (ESSENTIAL) Where there is only one surety a. Real estate must be worth at least the amount of the undertaking If there are two or more sureties a. Each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. è In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution
1. 2.
Accused served the maximum penalty a. Released WITHOUT prejudice to the CONTINUATION of his case Accused served the minimum penalty without consideration of the ISLAW a. Reduced bail b. Recognizance
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador Sec17 – Bail, where filed 3. 1.
2. 3.
Bail in the amount fixed may be filed with the court: a. Where the case is pending, or in the absence or unavailability of the judge thereof: i. Any RTC judge/MeTC judge/MTC judge/MCTC judge in the province, city, or municipality. b. If the accused is arrested in a province, city, or municipality other than where the case is pending, è RTC of said place, or if no judge thereof is available, with: i. Any MeTC judge/MTC judge/MCTC judge therein. Bail is a matter of discretion, or the accused seeks to be released on recognizance a. Court where the case is pending (whether on preliminary investigation/trial/appeal) Any person in custody who is not yet charged in court a. May apply for bail with any court in the province/city/municipality where he is held
IMPOSSIVIEW: 4 Scenarios of Sec17 1. 2. 3. 4. 5.
If the accused is arrested in the place where the case is pending a. In the court where the action is pending b. If the judge is ABSENT or UNAVAILABLE è any RTC/MTC If the accused is arrested in the place other than where the action is pending a. Any RTC where the accused was arrested or where it is pending (impractical) b. If the judge is ABSENT or UNAVAILABLE è any MTC therein Where bail is a matter of discretion or requires an application for recognizance a. In the court where the action is pending When there is yet no pending case a. In the court where the accused is held (venue is jurisdictional) When the accused is not yet arrested but there is a case already pending a. In the court where the action is pending b. Bail cannot be applied to a court other than were it is pending
Sec18 – Notice of application to prosecutor In the application for bail under Sec8Rule114 è the court MUST give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation IMPOSSIVIEW: Characteristics of a hearing in an application for bail (Serapio v Sandiganbayan) 1. 2.
Summary Mandatory
Duties of a judge in case of an application for bail (Mabutas v Perello) 1. 2.
Notify the prosecutor of the hearing for the application of bail or require him to submit a recommendation Where bail is a matter of discretion è MANDATORY HEARING for the application for bail (whether or not the prosecutor presents evidences)
4.
By: James Francis Villanueva Francis Xavier Razon
Decide whether the guilt of the accused is strong based on the summary evidence of the prosecution If the guilt of the accused is NOT strong è discharge the accused upon the approval of the bail bond
Note: under the rules on bail, a hearing is mandatory in granting bail whether it is a matter of right or discretion (Domingo v Pagatayan) Sec19 – Release on Bail 1. 2.
The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with Sec17Rule114 When bail is filed with a court other than where the case is pending a. The judge who accepted the bail shall forward it (together with the order of release and other supporting papers) è to the court where the case is pending (which may, for good reason, require a different one to be filed)
IMPOSSIVIEW: Note: If the accused is arrested in a place other than where the action is pending è the BAIL RECORDS must be transmitted to the court where the case is pending (duty of the judge) è If the judge is not satisfied on the bail submitted where he was arrested è the judge may require a NEW bail Sec20 – Increase or reduction of bail 1.
2.
After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount a. When increased i. The accused may be committed to custody if he does not give bail in the increased amount within a reasonable period An accused held to answer a criminal charge (released without bail upon filing of the complaint or information) may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court a. Be required to give bail in the amount fixed b. Or in lieu thereof, committed to custody
Sec21 – Forfeiture of bail 1. 2.
When the presence of the accused is required by the court or these Rules a. Bondsmen è shall be notified to produce him before the court on a given date and time If the accused fails to appear in person as required è his bail shall be declared forfeited a. Within 30days of such forfeiture, the bondsmen must: 1. Produce the body of their principal or give the reason for his non-‐production 2. Explain why the accused did not appear before the court when first required to do so è Failing in these two requisites, a judgment shall be rendered against the bondsmen (jointly and severally) è for the amount of the bail.
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador è The court shall not reduce or otherwise mitigate the liability of the bondsmen (unless the accused has been surrendered or is acquitted) Sec22 – Cancellation of bail 1.
Upon application of the bondsmen, with due notice to the prosecutor a. Bail may be cancelled: i. Surrender of the accused ii. Proof of his death b. Bail shall be deemed automatically cancelled: i. Acquittal of the accused ii. Dismissal of the case iii. Execution of the judgment of conviction
4.
Petition for Certiorari under Rule65 (GADALEJ) AND Consent from the Office of the Solicitor General
Sec23 – Arrest of accused out on bail 1.
2.
For the purpose of surrendering the accused a. Bondsmen may arrest him b. Cause him to be arrested by a police officer c. Any other person of suitable age and discretion è Upon written authority endorsed on a certified copy of the undertaking An accused released on bail a. May be re-‐arrested (without the necessity of a warrant) i. Attempts to depart from the Philippines (without permission of the court where the case is pending)
3. 4.
No bail shall be allowed after a judgment of conviction has become final If before such finality, the accused applies for probation a. He may be allowed temporary liberty under his bail. When no bail was filed/the accused is incapable of filing one a. The court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence
IMPOSSIVIEW: GR: No bail shall be allowed after a judgment of conviction has become final E: Application of PROBATION before finality (continuity of the original bail given) or RECOCNIZANCE (financial incapacity) (Sec15) Sec25 – Court supervision of detainees 1. 2.
The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the RTCs shall:
By: James Francis Villanueva Francis Xavier Razon
Conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions b. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities c. They shall order the segregation of sexes and of minors from adults d. Ensure the observance of the right of detainees to confer privately with counsel e. Strive to eliminate conditions inimical to the detainees In cities and municipalities to be specified by the Supreme Court a. The municipal trial judges or municipal circuit trial judges shall: i. Conduct monthly personal inspections of the municipal jails in their respective municipalities ii. Submit a report to the executive judge of the Regional Trial Court having jurisdiction therein A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state: a. The total number of detainees b. The names of those held for more than 30days c. The duration of detention d. The crime charged e. The status of the case f. The cause for detention g. Other pertinent information
Sec26 – Bail not a bar to objections on legal arrest, lack of or irregular preliminary investigation 1.
2.
Sec24 – No bail after final judgment; exception 1. 2.
a.
3.
IMPOSSIVIEW: Remedy for acquittal where double jeopardy has already set in 1. 2.
An application for or admission to bail shall not bar the accused from challenging: (must be raised before entering plea) a. The validity of his arrest b. The legality of the warrant issued therefor c. Regularity or questioning the absence of a preliminary investigation of the charge against him The court shall resolve the matter as early as practicable (not later than the start of the trial of the case)
RULE 115 – RIGHTS OF THE ACCUSED Sec1 – Rights of the accused at the trial In all criminal prosecutions, the accused shall be entitled to the following rights: A. B. C.
To be presumed innocent (until the contrary is proved beyond reasonable doubt) To be informed of the nature and cause of the accusation against him To be present and defend in person and by counsel at every stage of the proceedings è from arraignment to promulgation of the judgment a. Accused may è waive his presence at the trial pursuant to the stipulations set forth in his bail (unless his presence is specifically ordered by the court for purposes of identification) i. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. b. When an accused under custody escapes
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon i. He shall be deemed to have waived his right to be present on all 4. Compulsory process Subpoena (Rule21) subsequent trial dates until custody over him is regained. c. Upon motion, the accused may be allowed to defend himself in person è sufficiently appears to the court that he can properly protect his rights 1. Subpoena ad testificandum – summoned to testify as witness without the assistance of counsel 2. Subpoena duces tecum – compelled to present documents D. To testify as a witness in his own behalf but subject to cross-‐examination on matters covered by direct examination (His silence shall not in any manner prejudice Quashing of a subpoena him) E. To be exempt from being compelled to be a witness against himself 1. Subpoena ad testificandum F. To confront and cross-‐examine the witnesses against him at the trial. a. Failure to tender kilometrage a. Either party may utilize as part of its evidence the testimony of a witness b. Failure to tender witness fees who is: 2. Subpoena deuces tecum i. Deceased, a. Failure to tender kilometrage ii. Out of or can not with due diligence be found in the Philippines, b. Failure to tender witness fees iii. Unavailable, or otherwise unable to testify c. Failure to describe the books to be presented b. Given in another case or proceeding (judicial or administrative, involving d. Failure to tender the cost of production the same parties and subject matter) è the adverse party having the opportunity to cross-‐examine him. Kilometrage -‐ “if you’re within 100km from the place of hearing è your G. To have compulsory process issued to secure the attendance of witnesses and attendance may be compelled, if you refuse è bench warrant” production of other evidence in his behalf Remedy if the person is more than 100km away H. To have speedy, impartial and public trial I. To appeal in all cases allowed and in the manner prescribed by law 1. Deposition(Rule23) – civil cases IMPOSSIVIEW: 1. Presumption of innocence – will only arise when the person accused is charged with a criminal offense “When the circumstances are capable of 2 or more inferences, one of which is consistent with the presumption of innocence, while the other is compatible with guilt è the presumption of innocence must prevail and the court must acquit” (People v Dimalanta) è The evidence of the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense 2. Right to be informed of the nature and cause of the accusation against him If the accused does not know the local language or even English è there should be an authorized interpreter to satisfy the minimum requirements of due process 3. Right to a counsel Entitlement to a counsel 1. 2.
Counsel de parte – is a counsel of choice of the accused Counsel de officio – the counsel being appointed by the courts a. Instances of appointment: i. During arraignment ii. For purposes of trial – to certify that the accused has been informed of his right to counsel and his right to a counsel de officio before the records are elevated on appeal iii. If the accused signs his appeal by himself (Rule124Sec2) iv. If the accused is in prison v. Appointment by the SC – they have their own guidelines and it is NOT in the code
2.
Rule119(Sec(s)12,13&15)
Bench warrant – is a warrant issued by the court in the exercise of its judicial authority to compel the attendance of a person in court Contempt – when any person refuses to appear in court or to testify Direct Contempt Indirect Contempt Grounds Acts of disrespect or Failure to comply with the disobedience in the presence of subpoena (Rule71Sec3) the judge or in court Initiation No formal complaint required 1. Verified petition è irritation will suffice filed and docketed separately 2. Formal charge by the court motu propio Remedy Certiorari Appeal 5. Confront and cross-‐examination of witnesses Any testimony or deposition given to a judicial or administrative proceeding may be presented even if the witness is already DEAD or UNAVAILABLE or even it was obtained for a DIFFERENT PROCEEDING è as long as there is an OPPORTUNITY TO CROSS-‐EXAMINE (exception to the hearsay rule (Rule115Sec1(f) in relation to Rule130Sec47)) 6. Right against self-‐incrimination “This right is limited only to ORAL testimony” – communicative in essence “As long as it is a mechanical act and it does not involve any application of intellect and discretion, it may be allowed and it is not incriminating” 2007 Rules of DNA Evidence – shows the paternity of the father 1. 2.
99.9% or higher – disputable presumption Below 99.9% -‐ corroborative evidence
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador 3. Negative paternity – conclusive evidence Post-‐DNA Conviction – there can be a Post-‐DNA Conviction examination even without an order if such examination is material to show innocence and it would change the outcome of the case (Habeas Corpus – remedy upon proof of innocence) 7. Right to a speedy trial “The prosecution cannot invoke the right to speedy trial è it is lodge upon the defense to invoke it” “The right applies only to criminal proceedings ècounter part is Rule70Sec3 (failure to prosecute in civil cases)” Kinds of speedy trial 1. 2.
Speedy disposition of cases (Consti) Anytime as long as the action is pending Habeas Corpus – “Assuming that the accused remains to be detained, he may resort to a petition of habeas corpus” (Caballes v CA)
Anytime before trial (Sec9Rule119) Remedy Rule65 – “For extraordinary & compelling reasons, the availability of another remedy does not preclude a resort to a special civil action under Rule65” (Lumanlao v Peralta) “These are not mutually exclusive, the denial of one does not bar the other” RULE 116 – ARRAIGNMENT & PLEA Sec1 – Arraignment and plea; how made A.
B. C. D. E.
The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. a. The arraignment shall be made in open court by the judge or clerk by: i. Furnishing the accused with a copy of the complaint or information ii. Reading the same in the language or dialect known to him iii. Asking him whether he pleads guilty or not guilty. b. The prosecution may call at the trial witnesses other than those named in the complaint or information. The accused must be present at the arraignment and must personally enter his plea a. Both arraignment and plea shall be made of record (failure to do so shall NOT affect the validity of the proceedings) When the accused refuses to plead or makes a conditional plea è plea of not guilty When the accused pleads guilty (but presents exculpatory evidence) è plea shall be deemed withdrawn è plea of not guilty When the accused is under preventive detention: a. His case shall be raffled i. Its records transmitted to the judge to whom the case was raffled within 3days from the filing of the information or complaint b. The accused shall be arraigned within 10days from the date of the raffle
By: James Francis Villanueva Francis Xavier Razon
c.
F.
G.
Speedy trial under the rules on criminal procedure Speedy disposition of cases under the constitution Speedy Trial (CrimPro)
Initiation
The pre-‐trial conference of his case shall be held within 10days after arraignment The private offended party shall be required to appear at the arraignment for purposes of: a. Plea bargaining b. Determination of civil liability c. Other matters requiring his presence è In case of failure of the offended party to appear despite due notice, i. The court may allow the accused to enter a plea of guilty to a lesser offense (which is necessarily included in the offense charged with the conformity of the trial prosecutor alone) Arraignment è held within 30days from the date the court acquires jurisdiction over the person of the accused (unless a shorter period is provided by special law or Supreme Court circular) a. Excluded in computing the period i. The time of the pendency of a motion to quash ii. The time of the pendency of a bill of particulars iii. Other causes justifying suspension of the arraignment
IMPOSSIVIEW: GR: When the trial proceeds without the accused being arraigned, which renders proceedings defective E: “the procedural defect was cured when the counsel participated in the trial without raising any objection that his client had yet to be arraigned. In fact, his counsel cross-‐examined the prosecution witness; moreover, no protest was made when the appellant was subsequently arraigned” (People v Trinidad) “Any objection, defect or irregularity attending an arrest must be made BEFORE the accused enters his plea or arraignment and having failed to move for the quashing of information against him before arraignment, the appellant is estopped from questioning the legality of arrest” (People v Astrologo) “If the accused keeps on failing to appear for arraignment despite repeated notice, the case may be archived or petition for provisional dismissal” Kinds of plea of not guilty 1. 2. 3.
Refusal to enter a plea Plea of guilt with an exculpatory defense or self-‐defense Conditional plea
GR: The presence of the offended party is not required during arraignment E: When the accused enters a plea of guilt to a lesser offense (purpose of determining civil liability) or when required by courts Reason: Because the offended party is only a witness for the state (Complaining witness) Commencement of arraignment 1.
2.
If the accused is not preventively detained a. Within 30days from the time the court acquires jurisdiction over the person of the accused and WITHIN such 30days but AFTER arraignment there should be PRE-‐TRIAL (Rule116 Sec1(f) in relation with Rule118Sec1) If the accused is preventively detained (3:10:10) a. Within 3days from the filing of the information è the case will be raffled
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador b. From the time the raffle is concluded è Within 10days, arraignment will be scheduled c. Within 10days from arraignment, pre-‐trial will be scheduled Sec2 – Plea of guilty to a lesser offense 1. 2. 3.
At arraignment, è accused (with the consent of the offended party and the prosecutor) a. May be allowed by the trial court to plead guilty to a lesser offense (which is necessarily included in the offense charged) After arraignment but before trial è accused a. May still be allowed to plead guilty to the said lesser offense è after withdrawing his plea of not guilty No amendment of the complaint or information is necessary
Sec3 – Plea of guilty to capital offense; reception of evidence -‐
-‐
When the accused pleads guilty to a capital offense, the court: o Shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea o Shall require the prosecution to prove his guilt and the precise degree of culpability The accused may present evidence in his behalf
Sec4 – Plea of guilty to non-‐capital offense; reception of evidence, discretionary -‐
When the accused pleads guilty to a non-‐capital offense, the court: o May receive evidence from the parties (determine the penalty to be imposed)
Sec5 – Withdrawal of improvident plea of guilty -‐
At any time before the judgment of conviction becomes final, the court: o May permit an improvident plea of guilty to be withdrawn è Substituted by a plea of not guilty
IMPOSSIVIEW: (Sec(s)2-‐5) Kinds of plea of guilty 1.
2.
Plea of guilt to a lesser offense (Sec2) – Plea bargaining a. Even if the offended party is absent (for as long as there was notice to the offended party and the prosecution) è the plea may proceed (if it is necessarily included in the offense charged) b. May plea to a lesser offense after arraignment but BEFORE trial Plea of guilt to a capital offense (Sec3) – despite the plea of guilt, there is a mandatory hearing required for the presentation of evidences to establish the exact culpability of the accused Guidelines of judges for searching inquiries (People v Ulit) 1. 2.
Inquire about the circumstances on custodial and preliminary investigation Ask the defense counsel whether he has conferred with and completely explained to the accused the consequences of his plea
By: James Francis Villanueva Francis Xavier Razon
3.
3. 4.
Elicit information on personality profile of the accused (does the accused really know what the plea is all about) 4. Inform the accused of exact length of imprisonment/nature of penalty under law 5. Require the accused to fully narrate the incident Plea of guilty to a non-‐capital offense (Sec3) – hearing is not mandatory, it is required when determining the exact penalty for the offense Improvident plea (Sec4) – it is a plea of guilt where the consequence thereof is not known to the accused (the accused did not intelligently enter his plea) a. Improvident plea to a case involving a penalty of Life imprisonment/RP i. SC will not render judgment but will only remand the case for further proceedings b. Improvident plea but there are other evidences pointing on the culpability of the accused i. The SC will render a judgment “If there is an improvident plea but there are evidences sufficient to establish his guilt è the court shall NOT disregarded such plea and render judgment based on the evidences presented”
Sec6 – Duty of court to inform accused of his right to counsel -‐ -‐
Before arraignment, the court: o Shall inform the accused of his right to counsel o Ask him if he desires to have one. The court must assign a counsel de oficio to defend him, unless: o The accused is allowed to defend himself in person o Has employed counsel of his choice
Sec7 – Appointment of counsel de oficio -‐
-‐
The court, (considering the gravity of the offense and the difficulty of the questions that may arise) shall appoint as counsel de oficio: o Members of the bar in good standing who, (by reason of their experience and ability) can competently defend the accused Localities where such members of the bar are not available, the court may appoint è Any person, resident of the province (good repute for probity and ability)
Sec8 – Time for counsel de oficio to prepare for arraignment -‐
If counsel de oficio is appointed during the arraignment: o Shall be given a reasonable time to consult with the accused as to his plea (before proceeding with the arraignment)
Sec9 – Bill of particular -‐ -‐
The accused (before arraignment) o May move for a bill of particulars è enable him properly to plead and prepare for trial The motion shall specify: o The alleged defects of the complaint or information o The details desired
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador IMPOSSIVIEW: Bill of particulars – when accused asks the court to identify the defects of the complaint or information and indicate the details desired
By: James Francis Villanueva Francis Xavier Razon
RULE 117 – MOTION TO QUASH
“A party required to submit a bill of particulars may appear to comply but in essence did not answer the question è dismissal of the case (failure to comply with an order of the court)” (Sec3Rule17) (Virata v Sandiganbayan) Sec10 – Production or inspection of material evidence in possession of prosecution -‐
-‐
Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent: a. Surprise b. Suppression c. Alteration May order the prosecution to produce and permit the inspection and copying or photographing of: a. Any written statement given by the complainant and other witnesses in any investigation of the offense (conducted by the prosecution or other investigating officers) b. Any designated (not otherwise privileged): a. Documents, papers, books, accounts, letters, photographs, objects, or tangible things, i. Constitutes or contains evidence material to any matter involved in the case ii. In the possession or under the control of the prosecution, police, or other law investigating agencies
Sec1 – Time to move to quash -‐
IMPOSSIVIEW: Motion to quash – filed by the accused before plea and ideally before arraignment questioning the efficacy of the complaint/information Sec2 – Form and contents 1.
2.
Arraignment may be suspended in the following cases a. The accused appears to be suffering from an unsound mental condition (effectively renders him unable to fully understand the charge against him and to plead intelligently thereto) i. The court shall order his mental examination ii. If necessary, his confinement for such purpose b. There exists a prejudicial question c. A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President i. Period of suspension must NOT exceed 60days counted from the filing of the petition with the reviewing office
IMPOSSIVIEW: Instances where arraignment is suspended 1. 2. 3.
If the accused is of unsound mind (right to be informed) Prejudicial question Petition for review with the DOJ – suspension of 60days a. If the DOJ is unable to complete its resolution within 60days è the court will arraign i. A motion must be submitted to inform the court of such petition for review for the courts to be aware and act on such suspension
The motion to quash shall be: a. In writing b. Signed by the accused or his counsel c. Shall distinctly specify its factual and legal grounds The court shall consider no ground other than those stated in the motion (except lack of jurisdiction over the offense charged)
Sec3 – Grounds The accused may move to quash the complaint or information on any of following grounds: A. B.
Sec11 – Suspension of arraignment -‐
At any time BEFORE entering his plea è the accused may move to quash the complaint for information
C. D. E. F. G. H. I.
That the facts charged do not constitute an offense a. The elements of the act does not constitute an offense That the court trying the case has no jurisdiction over the offense charged a. The court must look into the allegations of the information to know whether it has jurisdiction or not That the court trying the case has no jurisdiction over the person of the accused That the officer who filed the information had no authority to do so That it does not conform substantially to the prescribed form a. Ex. Written, certified, etc. That more than one offense is charged (except when a single punishment for various offenses is prescribed by law) That the criminal action or liability has been extinguished a. Ex. prescription That it contains averments which, if true, would constitute a legal excuse or justification a. Ex. Self-‐defense That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated (without his express consent)
IMPOSSIVIEW: “If the ground is granted, the court can order for its amendment. The prosecution will be given some time to complete the information, if they fail to do so è dismissal” Lack of authority to file the case – a state prosecutor lacks authority if there is: (Turingan v Garfin) 1. 2.
No directive from the Secretary of justice No written approval of the information by the city prosecutor
17
IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec7 – Former conviction or acquittal; double jeopardy “A prosecutor must certify the information that he has served a copy of the complaint to the accused, who was then the respondent, and the respondent-‐accused was given an opportunity to present his side” 1. When an accused has been convicted/acquitted or the case against him dismissed/terminated (without his express consent) è upon a valid What to not to allege (on the part of the prosecution) complaint/information or other formal charge (sufficient in form and substance) to sustain a conviction and after the accused had pleaded to the charge 1. Self-‐defense by the accused a. The conviction/acquittal/dismissal of the case shall be a bar: 2. Mitigating circumstances i. To another prosecution for the offense charged, or 3. 2 or more offenses in 1 information (unless it is a complex crime) ii. For any attempt to commit the same or frustration thereof, or 4. Double jeopardy iii. For any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information 2. The conviction of the accused shall NOT be a bar to another prosecution for an offense Sec4 – Amendment of complaint or information which necessarily includes the offense charged in the former complaint or information under any of the following instances: 1. If the motion to quash is based on an alleged defect of the complaint or information (can a. The graver offense developed due to supervening facts (arising from the same be cured by amendment) act or omission constituting the former charge) a. The court shall order that an amendment be made b. The facts constituting the graver charge became known or were discovered 2. If it is based on the ground that the facts charged do not constitute an offense only after a plea was entered in the former complaint or information a. Prosecution shall be given an opportunity to correct the defect by amendment c. The plea of guilty to the lesser offense was made without the consent of the 3. The motion shall be granted prosecutor and of the offended party (except as provided in Rule116Sec1(f)) a. If the prosecution fails to make the amendment 3. When the accused satisfies or serves in whole or in part the judgment b. The complaint or information still suffers from the same defect despite the a. He shall be credited with the same in the event of conviction for the graver amendment offense Sec5 – Effect of sustaining the motion to quash IMPOSSIVIEW: Requisites of double jeopardy 1. If the motion to quash is sustained a. The court may order that another complaint or information be filed (except as 1. 1st jeopardy must have attached prior to the 2nd provided in Sec6) 2. 1st jeopardy must have terminated 2. If the order is made 3. 2nd jeopardy must be for the same offense as that in the 1st a. The accused (if in custody) i. Shall not be discharged unless admitted to bail Requisites for the attachment of legal jeopardy 3. If no order is made or if having been made (no new information is filed within the time specified in the order or within such further time as the court may allow for good cause) a. The accused, if in custody, 1. A court with competent jurisdiction i. Shall be discharged (unless he is also in custody for another charge) 2. A complaint/information 3. A valid plea 4. Acquittal/conviction/ dismissal (without the consent of the accused) IMPOSSIVIEW: Meritorious motion to quash Art3Sec21 1987 Constitution Termination of jeopardy -‐ Grant for lack of jurisdiction – re-‐filed -‐ Grant for lack of authority of prosecution – re-‐filed -‐ Double jeopardy – cannot re-‐file 1. Acquittal -‐ Prescription – cannot re-‐file 2. Final conviction -‐ Violation of speedy trial – cannot re-‐file 3. Dismissal without express consent of the accused Sec6 – Order sustaining the motion to quash not a bar to another prosecution; exception -‐
An order sustaining the motion to quash è NOT a bar to another prosecution for the same offense (unless the motion was based on the grounds specified in Sec3(g)&(i))
Same evidence test (same offense) 1. 2. 3.
Whether one offense is identical with the other Whether it is an attempt or frustration of the other Whether one offense necessarily includes or is included in the other
18
IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Rules (same offense) GR: Dismissal with the express consent of the accused will not lead to a double jeopardy E: 1. Statute & ordinance è offenses need not be the same however, they flow from the same act è double jeopardy 1. Demurrer to evidence 2. Statute & statute/Stat prov1 & Stat prov2 è1 act, 2 distinct offenses è no double 2. Dismissal of the case on grounds of speedy trial jeopardy a. VCO: 3. Supervening Events i. Vexatious 1. 1st offense existent & 2nd offense existent (at the same time) è double jeopardy ii. Capricious 2. 1st offense existent & 2nd offense supervened è no double jeopardy iii. Oppressive delays b. Exclusions (Rule119Sec3) – delays caused in trial other than delays caused by: i. Petition for certiorari “If facts constituting a graver offense were only discovered after plea è no double jeopardy” ii. Other pending cases Ex. Tumultuous affray, after plea it was discovered that there was intent to kill iii. Jurisdiction over the person of the accused or other accused iv. Unsound mind Sec8 – Provisional dismissal v. Unavailability or absence of witnesses è As long as the prosecution does something, the court ordinarily 1. A case shall not be provisionally dismissed (except with the express consent of the accused will not dismiss and with notice to the offended party) 2. Provisional dismissal (less than or equal to 6yrs imprisonment/fine (any amount)/both) Sec9 – Failure to move to quash or to allege any ground therefor a. Shall become permanent 1yr after issuance of the order without the case having been revived 3. Provisional dismissal (more than 6yrs) -‐ The failure of the accused to assert any ground of a motion to quash before he pleads a. Shall become permanent 2yrs after issuance of the order without the case to the complaint or information (did not file a motion to quash or failed to allege the having been revived same in said motion) o Shall be deemed a waiver of any objections (except those under Sec3(a),(b), (g)&(i)) IMPOSSIVIEW: Provisional dismissal – dismissal with the consent of the accused -‐ Any dismissal where the accused consents (express/implied) and it is TEMPORARY in character RULE 118 – PRE-‐TRIAL -‐ Double jeopardy will not attach è acquittal/conviction/dismissal WITHOUT the Sec1 – Pre-‐trial; mandatory in criminal cases express consent of the accused § Deals with dismissal which are PERMANENT in nature 1. In all criminal cases cognizable by the SB/RTC/MeTC/MT/MCTC, 2.
Notice to the offended party è will not suffice -‐
The notice of dismissal should also be given to the PUBLIC PROSECUTOR (it is the prosecutor who shall revive the case and not the offended party) § The period will only commence to run once the public prosecutor receives the notice
Motion to quash v Provisional dismissal Motion to quash Filed by the accused Forms and contents (Sec2) Assails the validity of a criminal complaint/information Allowed before arraignment/plea The information quashed è stays quashed until it is revived
Provisional dismissal Filed either by the accused/prosecution/both Sec2 – not applicable to provisional dismissal Grounded on reasons other than the defects of the complaint/information May be made anytime even during trial A provisional dismissal by its own terms è is an impairment until the time-‐bar applies
The court shall, after arraignment AND within 30days from the date the court acquires jurisdiction over the person of the accused, (unless a shorter period is provided for in special laws/circulars of the SC), order a pre-‐trial conference to consider the following: a. Plea bargaining b. Stipulation of facts (not mandatory, no obligation to stipulate) – to do away with proving the same again in trial c. Marking for identification of evidence of the parties d. Waiver of objections to admissibility of evidence e. Modification of the order of trial if the accused admits the charge but interposes a lawful defense f. Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case
IMPOSSIVIEW: “All witnesses should be named in the pre-‐trial brief and all documents must be marked. Otherwise, it will not be allowed by court unless, in the interest of justice”
19
IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Kinds of preliminary conference IMPOSSIVIEW: Rules on absences 1. Preliminary conference under the Guidelines and Modes of Discovery of 2004 (before the clerk of court; summary procedure) 1. If the accused is absent during pre-‐trial è he prosecution CANNOT present evidence ex-‐ a. Marking of evidences (preliminary marking) parte è violation of due process a. Evidence will have value during trial è not yet considered as a. Evidence ex-‐parte applies only to civil cases “evidence” in its strict sense (authenticated, examined, identified, etc.) 2. If the prosecution/offended party is absent è the case will not be affected b. Admissions a. The offended party is only a complaining witness c. Naming of witnesses b. Sanctions/penalties may be charged against him d. Identification of trial dates Sec4 – Pre-‐trial order 2. Preliminary conference in the CA (Rule48) 3. Preliminary conference in the SC -‐ After the pre-‐trial conference the court shall issue an order reciting: a. Stipulation of facts in cases of original actions o The actions taken b. Grant for motion for new trial o The facts stipulated GR: You cannot compromise criminal cases è an offer of compromise of an accused is an admission of o Evidence marked liability (Rule130Sec27) -‐ Such order shall: (unless modified by the court to prevent manifest injustice) E: Judicial dispute resolution of 2006 è certain criminal offenses that by its nature are allowed by o Bind the parties, the SC to be compromised as to its CIVIL ASPECT o Limit the trial to matters not disposed of o Control the course of the action during the trial 1. Theft 2. 3. 4.
Libel B.P.22 Criminal negligence
“If the civil aspect is compromised – the criminal case will not be dismissed but the defense must obtain an affidavit of desistance from the offended party (not because the offended party is no longer interested but to show that the crime was not actually committed)” “The accused must not move for the dismissal of the case based from the compromise è let the prosecution be the one to move the affidavit è for double jeopardy to bar another prosecution for the same offense”
IMPOSSIVIEW: “The matters agreed upon during the pre-‐trial conference as stated in the pre-‐trial order shall bind the parties” (People v Guzman)
RULE 119 – TRIAL Sec1 – Time to prepare for trial -‐
Sec2 – Pre-‐trial agreement 1.
2.
All agreements or admissions made or entered during the pre-‐trial conference shall be: a. Reduced in writing b. Signed by the accused and counsel è Otherwise, they cannot be used against the accused The agreements covering the matters referred to in Sec1 shall be approved by the court
-‐
Sec2 – Continuous trial until terminated; postponements -‐
IMPOSSIVIEW: Rules on admissions by the accuses (People v Ancheta) 1. 2.
-‐
Must be in writing Signed by the accused and his counsel
Sec3 – Non-‐appearance at pre-‐trial conference -‐
If the counsel for the accused or the prosecutor: o Does not appear at the pre-‐trial conference o Does not offer an acceptable excuse for his lack of cooperation è The court may impose proper sanctions or penalties
After a plea of not guilty is entered (Accused) o Shall have at least 15days to prepare for trial. The trial shall commence within 30days from receipt of the pre-‐trial order
-‐
Trial once commenced o Shall continue from day to day as far as practicable until terminated § It may be postponed for a reasonable period of time for good cause The court (after consultation with the prosecutor and defense counsel) o Set the case for continuous trial on a weekly or other short-‐term trial calendar at the earliest possible time (to ensure speedy trial) § Shall not exceed 180days from the 1st day of trial (except as otherwise authorized by the SC) The time limitations provided under this section and the preceding section o Shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador Sec3 – Exclusions The following periods of delay shall be excluded in computing the time within which trial must commence: A.
B.
C. D.
E. F.
Other proceedings concerning the accused (non-‐exclusive) a. Examination of the physical and mental condition of the accused b. Proceedings with respect to other criminal charges against the accused c. Extraordinary remedies against interlocutory orders d. Pre-‐trial proceedings (the delay shall not exceed 30days) e. Orders of inhibition/change of venue of cases/transfer from other courts f. Prejudicial question g. Accused is actually under advisement (the delay shall not exceed 30days) Absence or unavailability of an essential witness a. Considered absent – when his whereabouts are unknown or cannot be determined by due diligence b. Considered unavailable – whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence Mental incompetence or physical inability of the accused to stand trial If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense a. Any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge Accused is joined for trial with a co-‐accused (over whom the court has not acquired jurisdiction) or as to whom the time for trial has not run and no motion for separate trial has been granted Continuance granted by any court motu proprio, or on motion of either the accused/counsel/prosecution a. If the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial
IMPOSSIVIEW: Exclusions – the portions of delay, which is excluded from the time required by law to complete a case è Burden of proof is upon the prosecution to prove that the exclusions are present
c.
1. 2.
3.
Whether or not the failure to grant a continuance in the proceeding would make: a. A continuation of such proceeding impossible b. Result in a miscarriage of justice Whether or not the case taken as a whole: a. Is novel/unusual and complex è due to the number of accused or the nature of the prosecution b. Unreasonable to expect adequate preparation within the periods of time established therein Continuance under Sec3(f)Rule119 shall NOT be granted: a. Congestion of the court's calendar b. Lack of diligent preparation
By: James Francis Villanueva Francis Xavier Razon
Failure to obtain available witnesses on the part of the prosecutor
IMPOSSIVIEW: Grounds for continuance: 1. 2.
WON to grant a continuance will lead to the miscarriage of justice WON the issues presented in the civil case is so novel/unusual/complex that it will require more time for the parties and their counsel to prepare
Sec5 – Time limit following an order for new trial -‐ -‐
If the accused is to be tried again pursuant to an order for a new trial o Trial shall commence within 30days from notice of the order If the period becomes impractical due to unavailability of witnesses and other factors o The court may extend it (shall not exceed 180days from notice of said order for a new trial)
Sec6 – Extended time limit Arraignment to trial time limits (reckoning point: from Sept. 15, 1998) 1. 2. 3.
1st twelve-‐calendar-‐month period – 180days 2nd twelve-‐month period – 120days 3rd twelve-‐month period – 80days è Notwithstanding the provisions of Sec1(g)Rule116&Sec1Rule119
IMPOSSIVIEW: The 110-‐day limit from arraignment to trial Within 30days è Arraignment + pre-‐tial
Within 80 days Trial
Sec7 – Public attorney's duties where accused is imprisoned 1.
Sec4 – Factors for granting continuance Factors that shall be considered by a court in determining whether to grant a continuance under Sec3(f)Rule119
2.
If the public attorney assigned to defend the accused knows that the latter is preventively detained, either because he is charged with a: a. Bailable crime è no means to post bail b. Non-‐bailable crime c. Serving a term of imprisonment in any penal institution It shall be his duty to do the following: a. Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner è advise the prisoner of his right to demand trial b. Upon receipt of that notice (custodian of the prisoner) i. Shall promptly advise the prisoner of the charge and of his right to demand trial ii. If prisoner informs his custodian that he demands such trial 1. The latter shall cause notice to that effect to be sent promptly to the public attorney c. Upon receipt of such notice (public attorney) i. Shall promptly seek to obtain the presence of the prisoner for trial
21
IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon d. When the custodian of the prisoner receives è properly supported request for Sec11 – Order of trial The trial shall proceed in the following order: the availability of the prisoner for purposes of trial i. The prisoner shall be made available accordingly A. The prosecution Sec8 – Sanctions a. Present evidence to prove the charge In any case in which private counsel for the accused/the public attorney/the prosecutor: b. Civil liability (in proper cases) B. The accused a. Present evidence to prove his defense and damages (arising from the issuance of A. Knowingly allows the case to be set for trial (without disclosing that a necessary witness a provisional remedy in the case) would be unavailable for trial) C. The prosecution and the defense B. Files a motion solely for delay (knows is totally frivolous and without merit) a. May in that order, present rebuttal and sur-‐rebuttal evidence C. Makes a statement for the purpose of obtaining continuance (knows to be false and material i. Unless the court permits them to present additional evidence bearing to the granting of a continuance) upon the main issue D. Willfully fails to proceed to trial without justification è the court may punish such D. Upon admission of the evidence of the parties counsel/attorney/prosecutor: a. The case shall be deemed submitted for decision a. Imposing on a counsel privately retained in connection with the defense of an i. Unless the court directs them to argue orally or to submit written accused memoranda i. Fine not exceeding P20,000.00 E. When the accused admits the act or omission charged in the complaint or information b. Imposing on any appointed counsel de officio/public attorney/prosecutor but interposes a lawful defense i. Fine not exceeding P5,000.00 a. The order of trial may be modified c. Denying any defense counsel/prosecutor the right to practice before the court trying the case for a period not exceeding 30days IMPOSSIVEIW: Order of presentation of evidence – the order may be reversed when the accused presents self-‐ IMPOSSIVIEW: defense or exculpatory defenses (subject to the courts discretion) Private counsel Not exceeding 20,000 fine Not exceeding 30days prevention 1. The prosecution presents evidence Counsel de oficio/Public Not exceeding 5,000 fine Not exceeding 30days 2. The accused presents evidence attorney prevention 3. Presentation of rebuttal and sur-‐rebuttal evidence a. Rebuttal – (subject to the discretion of the court) these are new matters presented by the accused in its presentation of evidence (ex. alibi, self-‐defense, Sec9 – Remedy where accused is not brought to trial within the time limit prescription, etc.) 4. Memoranda/memorandum -‐ If the accused is not brought to trial within the time limit required by Sec1(g)Rule 116 5. Resolution &Sec1 as extended by Sec6Rule119 The information may be dismissed on motion of the accused èdenial of right to speedy trial § The accused è burden of proving the motion § The prosecution è burden of going forward with the evidence to establish the exclusion of time under Sec3 o The dismissal shall be subject to the rules on double jeopardy Failure of the accused to move for dismissal prior to trial è waiver of the right to dismiss under this section o
-‐
Sec10 – Law on speedy trial not a bar to provision on speedy trial in the Constitution -‐
No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Sec14(2)Art3 1987 Constitution
Sec12 – Application for examination of witness for accused before trial -‐ -‐
When the accused has been held to answer for an offense o He may (upon motion with notice to the other parties) è have witnesses conditionally examined in his behalf The motion shall state: o Name and residence of the witness o Substance of his testimony o The witness is: § Sick § Infirm (reasonable ground for believing that he will not be able to attend the trial) § Resides more than 100km from the place of trial and has no means to attend the same § Other similar circumstances exist (unavailable/prevented to appear) è The motion shall be supported by an affidavit of the accused and such other evidence as the court may require
22
IMPOSSIBRU NOTES II Crim Pro Memory Aid
Ugh… life. Atty. Salvador Sec13 – Examination of defense witness; how made Sec16 – Trial of several accused -‐
-‐
-‐ -‐
If the court is satisfied that the examination of a witness for the accused is necessary o Order shall be made directing that the witness be examined at a § Specific date § Time § Place § That a copy of the order be served on the prosecutor at least 3days before the scheduled examination The examination shall be taken before: (in the order of practicability) o A judge o A member of the Bar è designated by the judge o Inferior court è if the order be made by a court of superior jurisdiction The examination shall PROCEED notwithstanding the absence of the prosecutor è must be duly notified of the hearing A written record of the testimony shall be taken
-‐ -‐
-‐
-‐
When the court is satisfied that a material witness will not testify when required o May order (upon motion of either party) the witness to post bail in such sum as may be deemed proper Upon refusal to post bail o The court shall commit him to prison è until he complies, or is legally discharged after his testimony has been taken
Sec15 – Examination of witness for the prosecution -‐ -‐ -‐ -‐ -‐
IMPOSSIVIEW: (Sec(s)12,13&15) Conditional examination of witnesses For the accused Grounds 1. Sick/infirm/unavailable 2. Resides more than 100km Made before:
1. 2. 3.
-‐
When it satisfactorily appears that a witness for the prosecution is: o Too sick or infirm to appear at the trial o Has to leave the Philippines (no definite date of return) He may forthwith be conditionally examined è before the court where the case is pending Such examination (in the presence/absence of the accused (after notice)) o Conducted in the same manner as an examination of the trial Failure/refusal of the ACCUSED to attend the examination after notice o Shall be considered a waiver The statement taken may be admitted in behalf of/against the accused
Any judge in the Phil. Inferior court (directed by a superior court) Any member of the bar in good standing
For the prosecution 1. Sick/infirm/unavailable 2. About to depart from the Phil. w/no definite date of return 1. Before the court or judge where the case is pending
By: James Francis Villanueva Francis Xavier Razon
When two or more accused are jointly charged with an offense o Tried jointly Unless the court (discretion and upon motion of the prosecutor/any accused) o Separate trial for one or more accused
Sec17 – Discharge of accused to be state witness
Sec14 – Bail to secure appearance of material witness -‐
When two or more persons are jointly charged with the commission of any offense (upon motion of the prosecution before resting its case) the court may: o Direct one or more of the accused to be discharged (with their consent) AFTER requiring the prosecution to present evidence è to be a state witness under the following conditions: § Absolute necessity for the testimony of the accused whose discharge is requested § No other direct evidence available for the proper prosecution of the offense committed (except the testimony of said accused) • There is no one who could possibly identify and say that the crime was committed § The testimony of said accused è can be substantially corroborated in its material points • Other evidences that shall prove the crime § Said accused does not appear to be the most guilty § Said accused has not at any time been convicted of any offense involving moral turpitude Evidence adduced in support of the discharge shall automatically form part of the trial o If the court denies the motion for discharge of the accused as state witness è his sworn statement shall be inadmissible in evidence
Sec18 – Discharge of accused operates as acquittal -‐ -‐
The order indicated in the preceding section o Shall amount to an acquittal (from all liabilities) of the discharged accused o Shall be a bar to future prosecution for the same offense Unless the accused fails/refuses to testify against his co-‐accused in accordance with his sworn statement constituting the basis for his discharge
IMPOSSIVIEW: (Sec(s)17&18) “The only instance where the testimony of a discharged accused/discharged witness may be disregarded by the court is when he deliberately fails to testify truthfully in court, in accordance with his commitment è the court can disregard his discharge as a state witness and there will be no acquittal” (Monghe v People) Discharge under the witness protection program • • • • •
Covered by the witness program Discharged by the DOJ Double jeopardy will not apply Exclusion of an accuse Considered as an ordinary witness (he is still liable, liability may be mitigated only)
23
IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador Sec19 – When mistake has been made in charging the proper offense -‐
-‐
When it becomes manifest (any time before judgment) o Mistake has been made in charging the proper offense o Accused cannot be convicted of the offense charged or any other offense necessarily included therein The accused shall not be discharged (if there appears good cause to detain him) o The court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information
Sec20 – Appointment of acting prosecutor -‐
When a prosecutor/his assistant/deputy è disqualified to act under Sec1Rule137/ any other reason o The judge/prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor
Sec21 – Exclusion of the public -‐ -‐
The judge may, motu proprio è exclude the public from the courtroom (if the evidence to be produced is offensive to decency or public morals) He may also (on motion of the accused) è exclude the public from the trial (except court personnel and the counsel of the parties)
Sec22 – Consolidation of trials of related offenses -‐
Charges for offenses founded on the same facts or forming part of a series of offenses of similar character è tried jointly at the discretion of the court
Sec23 – Demurrer to evidence -‐
-‐ -‐ -‐
-‐
-‐
After the prosecution rests its case è the court may dismiss the action on the ground of insufficiency of evidence o On its own initiative (after giving the prosecution the opportunity to be heard) o Upon demurrer to evidence (filed by the accused with/without leave of court) If the court denies the demurrer to evidence filed with leave of court o The accused may adduce evidence in his defense When the demurrer to evidence is filed without leave of court o The accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution The motion for leave of court to file demurrer to evidence o Shall specifically state its grounds o Shall be filed within a non-‐extendible period of 5days after the prosecution rests its case o The prosecution may oppose the motion within a non-‐extendible period of 5days If leave of court is granted o The accused shall file the demurrer to evidence within a non-‐extendible period of 10days from notice o The prosecution may oppose the demurrer to evidence within a similar period from its receipt The order denying the motion for leave of court to file demurrer to evidence/the demurrer itself
o
By: James Francis Villanueva Francis Xavier Razon
Shall not be reviewable by appeal/by certiorari before judgment
IMPOSSIVIEW: Demurrer in civil and criminal cases Civil cases When to file After the plaintiff completes the presentation of his evidence Leave of court Not required
Criminal cases After the prosecution has rested its case 1. LOC (granted) + DTE (denied) – no add’l evidences 2. LOC (denied) + DTE (granted) – no add’l evidences 3. LOC (granted) + DTE (granted) – add’l evidences Filing of certiorari (Rule65) or GADALEJ + MR No appeal/certiorari (wait until Appeal the completion/conclusion of the main case Effect of grant Dismissal of the cases Acquittal of the accused “In criminal cases, demurrer of evidence partakes the nature of a motion to dismiss è failure to prove the guilt of the accused beyond reasonable doubt” (Salazar v People) “When the accused files a demurrer without a leave of court è waiver of right to present evidence and submits the case for decision on the basis of the evidence of the prosecution” “If the demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case” Sec24 – Reopening -‐ -‐
At any time (before finality of the judgment of conviction) the judge may, motu proprio/upon motion (with hearing in either case) o Reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within 30days from the order granting it
RULE 120 – JUDGMENT Sec1 – Judgment; definition and form -‐
Judgment – is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any o It must be written: § Official language § Personally and directly prepared by the judge § Signed by him o Shall contain clearly and distinctly a statement of the facts and the law upon which it is based
24
IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec4 – Judgment in case of variance between allegation and proof IMPOSSIVIEW: Judgment – is the final adjudication on the merits of the case è it is required by law that it is the judge himself who pens the decision (immutable or unalterable) -‐ When there is variance between the offense charge in the complaint/information è than Interlocutory order – there is no final disposition of the case è there still something to be done that the one proved (offense as charged is included in/necessarily includes the offense proved) “There is a valid judgment even if judge who penned the decision only took over from a colleague who o The accused shall be convicted of the offense proved (which is included in the earlier presided over the trial è as long as the judge who rendered the judgment at that time had offense charged, or of the offense charged which is included in the offense authority” (Resayo v People) proved) “The fact that the judge who penned the decision was not the judge who heard the testimony of the witness is not enough reason to overturn the findings of fact of the trial court, or even their Sec5 – When an offense includes or is included in another admissibility” (People v Gallarde) -‐ Offense charged (former) Sec2 – Contents of the judgment o Includes the offense proved (latter) § When some of the essential elements/ingredients of the former (as -‐ If the judgment is of conviction, it shall state: alleged in the complaint or information) constitute the latter o The legal qualification of the offense (acts committed by the accused and the o Included in the offense proved (latter) aggravating/mitigating circumstances which attended its commission) § When the essential ingredients of the former constitute/form part of o The participation of the accused in the offense those constituting the latter (principal/accomplice/accessory) o The penalty imposed upon the accused Sec6 – Promulgation of judgment o The civil liability/damages caused by his act or omission (unless the civil liability by a separate civil action has been reserved or waived) -‐ The judgment is promulgated -‐ In case the judgment is of acquittal, it shall state: o By reading it in the presence of the accused and any judge of the court in which it o Evidence of the prosecution absolutely failed to prove the guilt of the accused was rendered o Failed to prove his guilt beyond reasonable doubt o If the conviction is for a light offense -‐ In either case, the judgment shall: § Judgment may be pronounced in the presence of his o Determine if the act or omission from which the civil liability might arise did not counsel/representative exist o When the judge is absent/outside the province/city § Judgment may be promulgated by the clerk of court IMPOSSIVIEW: -‐ If the accused is confined/detained in another province/city Contents of a judgment: o Judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement/detention (upon request of the court 1. Offense committed which rendered the judgment) 2. Penalty to be imposed -‐ The court promulgating the judgment 3. Participation of the accused (principal, accomplice or accessory) o Shall have authority to: 4. Aggravating/mitigating circumstances § Accept the notice of appeal 5. If it is for acquittal: § Approve the bail bond pending appeal a. Statement of complete non-‐liability o If the trial court convicted the accused from a non-‐bailable to bailable offense b. Failure to prove guilt beyond reasonable doubt § The application for bail è can only be filed and resolved by the 6. Statement of the existence/non-‐existence of civil liability appellate court -‐ The proper clerk of court shall: Sec3 – Judgment for two or more offenses o Give notice to the accused personally/bondsman/warden and counsel o Requiring him to be present at the promulgation of the decision -‐ If the accused was tried in absentia (jumped bail/escaped from prison) -‐ When two or more offenses are charged in a single complaint or information (accused o The notice to him shall be served at his last known address fails to object to it before trial) the court may: -‐ If the accused fails to appear at the scheduled date of promulgation of judgment o Convict him of as many offenses as are charged and proved o The promulgation shall be made by recording the judgment in the criminal o Impose on him the penalty for each offense (setting out separately the findings docket and serving him a copy thereof at his last known address/counsel of fact and law in each offense) -‐ If the judgment is for conviction and the failure of the accused to appear was without justifiable cause o He shall lose the remedies available in these rules against the judgment o The court shall order his arrest. -‐ Within 15days from promulgation of judgment
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon o The accused may surrender and file a motion for leave of court to avail of these RULE 121 – NEW TRIAL OR RECONSIDERATION remedies Sec1 – New trial or reconsideration o He shall state the reasons for his absence è if he proves that his absence was for a justifiable cause -‐ The court may, on motion of the accused/at its own instance + consent of the accused (at § He shall be allowed to avail of said remedies within 15days from any time before a judgment of conviction becomes final) è grant a new trial or notice reconsideration IMPOSSIVIEW: Promulgation of judgment – the accused has to be present in the trial court for the reading of judgment è it is the duty of the court to inform the bondsman if the accused is out on bail at the date of the promulgation (promulgation in criminal cases is different in the CA/SC è presence is not required) If the accused escaped or jumped bail – it will be sent to the last known address If the accused is absent on the date of promulgation è forfeits all of his remedies è He must present himself within 15days from promulgation to avail such remedies GR: The accused must be present during the promulgation of judgment E: Light offenses è the presence of the accused is not required Sec7 – Modification of judgment -‐
-‐
A judgment of conviction may, upon motion of the accused may be: (before it becomes final or before appeal is perfected) o Modified o Set aside Except where the death penalty is imposed, a judgment becomes final: o After the lapse of the period for perfecting an appeal, o When the sentence has been partially or totally satisfied or served o When the accused has waived in writing his right to appeal o Applied for probation
Sec8 – Entry of judgment -‐
A. B.
Nothing in this Rule shall affect any existing provisions in the laws governing suspension of sentence/probation/parole
That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial è if introduced and admitted would probably change the judgment
IMPOSSIVIEW: Grounds for a new trial Civil case 1. FAME a. Fraud b. Accident c. Mistake d. Excusable negligence 2. Newly discovered evidence Requisites of newly discovered evidence: 1. 2. 3.
Criminal case 1. Errors of fact or irregularities in the proceedings that will prejudice the rights of the accused 2. Newly discovered evidence
The evidence is material It wasn't available during trial despite of diligence To consider such evidence will change the outcome of the case
Sec3 – Ground for reconsideration
After a judgment has become final è entered in accordance with Rule36 o Entry in the books of judgment that only produces the dispositive portion of the case è formalizes the defeat
Sec9 – Existing provisions governing suspension of sentence, probation and parole not affected by this Rule -‐
Sec2 – Grounds for a new trial The court shall grant a new trial on any of the following grounds:
-‐
The court shall grant reconsideration on the ground of errors of law or fact in the judg-‐ ment (which requires no further proceedings)
IMPOSSIVIEW: Grounds for a MR Civil case Errors of fact or law which require no further proceedings
Criminal case Judgment is contrary to law, it is not supported by evidence or the amount of damages awarded is excessive
Sec4 – Form of motion and notice to the prosecutor -‐ -‐
The motion for new trial or reconsideration o Shall be in writing o Shall state the grounds on which it is based If based on a newly-‐discovered evidence
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon o The motion è must be supported by affidavits of witnesses by whom such RULE 122 – APPEAL evidence is expected to be given or by duly authenticated copies of documents Sec1 – Who may appeal which are proposed to be introduced in evidence -‐ Notice of the motion for new trial or reconsideration -‐ Any party may appeal from a judgment or final order (unless the accused will be placed in o Shall be given to the prosecutor double jeopardy) Sec5 – Hearing on motion -‐
Where a motion for new trial calls for resolution of any question of fact è the court may hear evidence thereon by affidavits or otherwise
Sec2 – Where to appeal The appeal may be taken as follows: -‐ -‐ -‐
Sec6 – Effects of granting a new trial or reconsideration The effects of granting a new trial or reconsideration are the following: A.
B.
C.
Filed in SC
Sec3 – How appeal taken
When a new trial is granted on the ground of errors of law or irregularities committed during the trial a. All the proceedings and evidence affected thereby shall be set aside and taken anew b. The court may (in the interest of justice) è allow the introduction of additional evidence When a new trial is granted on the ground of newly-‐discovered evidence a. The evidence already adduced è shall stand b. Newly-‐discovered and such other evidence as the court may, (in the interest of justice, allow to be introduced) i. Shall be taken and considered together with the evidence already in the record In all cases, when the court grants new trial or reconsideration a. The original judgment è shall be set aside/vacated b. New judgment rendered accordingly
IMPOSSIVIEW: Rules on MR or MNT Motion for reconsideration Civil case Criminal case Period of filing Within the Within the reglementary regelementary period period Filed in CA
Motion for new trial Civil case Criminal case Within the Within the regelementary regelementary period period Yes (Rule53) – Yes newly discovered (Sec13Rule124) evidence – newly (From anytime discovered the appeal is evidence perfected until (From anytime the CA lose the appeal is jurisdiction) perfected until the CA lose jurisdiction) Court’s discretion Court’s discretion
To the RTC (cases decided by the MeTC/MTC/MCTC) To the CA/SC in the proper cases provided by law (cases decided by the RTC) To the SC (cases decided by the CA)
A.
B.
C.
D. E.
Appeal to the RTC/CA (cases decided by the RTC in its original jurisdiction) a. Shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from b. By serving a copy thereof upon the adverse party Appeal to the CA (cases decided by the RTC in its appellate jurisdiction) a. Shall be by petition for review under Rule42 i. In relation to Sec8&9Rule122 ii. MTCèRTCèCA (a petition for review may only be filed if the RTC decided the case in its appellate jurisdiction; PP:15days) Appeal to the SC (cases where the penalty imposed by the RTC) is death/RP/ life imprisonment or where a lesser penalty is imposed è offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death/RP/life imprisonment is imposed a. Shall be by filing a notice of appeal in accordance with Sec3(a)Rule122 i. Death penalty -‐ Before the case may be elevated to the SC è CA will render intermediate review (they will render a decision but will not enter a decision) ii. Sec13Rule124 – the only instance where you could file a notice of appeal to the CA (penalty of life imprisonment/RP) No notice of appeal is necessary a. Death penalty is imposed by the RTC è automatically reviewed by the SC (Sec10Rule122) All other appeals to the SC (except as provided in the last paragraph of Sec13Rule124) a. Shall be by petition for review on certiorari under Sec9Rule45
IMPOSSIVIEW: Notice of appeal – is a short document stating that the accused received the decision and his payment of the docket fees Ordinary appeal – an appeal that only has one step Record on appeal – it is a compilation in a sequential order of all the pleadings and orders of that court whose judgment is in question è can only be filed in special proceedings in cases involving multiple appeals è may be filed in civil cases but NOT in criminal cases
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec7 – Transcribing and filing notes of stenographic reporter upon appeal Kinds of ordinary appeals Appeals from the RTC to the CA Appeals from the MTC to the RTC -‐ When notice of appeal is filed by the accused Civil case Criminal case Civil case Criminal case o The trial court (Rule40) (Rule41) o Shall direct the stenographic reporter to transcribe his notes of the proceedings Period of filing 15days (notice of 15days (notice of 15days (notice of 15days (notice of -‐ When filed by the People of the Philippines appeal) or appeal) appeal) or appeal) o The trial court 30days(record 30days(record § Shall direct the stenographic reporter to transcribe such portion of his on appeal) on appeal) notes of the proceedings as the court, upon motion, shall specify in Perfection of Notice of appeal – Notice of appeal – Notice of appeal – Notice of appeal – writing appeal upon filing & upon filing & upon filing & upon filing & o The stenographic reporter payment of the payment of the payment of the payment of the § Shall certify to the correctness of the notes and the transcript thereof docket fees docket fees docket fees docket fees è Original and 4copies Record on appeal Record on appeal § Shall file said original and 4copies with the clerk (without – upon the – upon the unnecessary delay) approval of the approval of the -‐ If death penalty is imposed court court o The stenographic reporter (within 30days from promulgation of sentence) Loss of After the After the After the After the § Shall file with the clerk the original and 4copies of the duly certified jurisdiction expiration of the expiration of the expiration of the expiration of the transcript of his notes of the proceedings period of the period of the period of the period of the o No extension of time for filing of said transcript of stenographic notes shall be other party to other party to other party to other party to granted (except by the SC and only upon justifiable grounds) appeal appeal appeal appeal Conduct of proceedings (Presentation of evidence)
Sec7Rule44 – Appellant’s brief (45days) Sec9Rule44 – reply to appellant’s brief (20days)
Sec3Rule124 – Appellant’s brief (30days) Sec4Rule124 – reply to appellant’s brief (30days)
Sec7Rule40 Memorandum or brief (15days)
Sec9Rule122 Memorandum or brief (15days)
Sec8 – Transmission of papers to appellate court upon appeal -‐
Sec4 – Publication of notice of appeal -‐
If personal service of the copy of the notice of appeal can not be made upon the adverse party or his counsel service may be done by: o Registered mail o Substituted service under Sec(s)7&8Rule13
Sec5 – Waiver of notice -‐ -‐
-‐ -‐
Sec9 – Appeal to the Regional Trial Courts A. B. C.
Appellee – may waive his right to a notice that an appeal has been taken The appellate court (in its discretion) o Entertain an appeal (notwithstanding failure to give such notice if the interests of justice so require)
Sec6 – When appeal, to be taken Appeal – must be taken within 15days from promulgation of the judgment/from notice of the final order appealed from This period for perfecting an appeal shall be suspended: o From the time a MNT/MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel (at which time the balance of the period begins to run)
Within 5days from the filing of the notice of appeal, o Clerk of the court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court § The complete record of the case + said notice § The original and 3copies of the transcript of stenographic notes + records è The other copy of the transcript shall remain in the lower court
Within 5days from perfection of the appeal a. The clerk of court è shall transmit the original record to the appropriate RTC Upon receipt of the complete record of the case transcripts and exhibits a. The clerk of court of the RTC è shall notify the parties of such fact Within 15days from receipt of said notice a. The parties may or may be required by the RTC to submit memoranda/briefs b. After the submission of such memoranda/briefs or upon the expiration of the period to file the same i. RTC è shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed
Sec10 – Transmission of records in case of death penalty -‐
In all cases where the death penalty is imposed by the trial court o The records shall be forwarded to the CA è automatic review and judgment within 20days but not earlier than 15days (from the promulgation of the judgment/notice of denial of a MR/MNT)
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
Ugh… life. Atty. Salvador -‐ The transcript shall also be forwarded within 10days after the filing thereof by the RULE 123 – PROCEDURE IN THE MTC stenographic reporter Sec1 – Uniform Procedure Sec11 – Effect of appeal by any of several accused A. B. C.
An appeal taken by one or more of several accused a. Shall not affect those who did not appeal (except insofar as the judgment of the appellate court is favorable and applicable to the latter) The appeal of the offended party from the civil aspect a. Shall not affect the criminal aspect of the judgment/order appealed from Upon perfection of the appeal a. The execution of the judgment/final order appealed from shall be stayed as to the appealing party
IMPOSSIVIEW: “Appeal is applicable only insofar as the judgment is favorable and applicable to the accused è even if the accused did not appeal, but his co-‐accused appealed and its favorable è applies to or covers the non-‐appealing accused” (Lubrica v People) “If the one accused appealed but it was denied and his co-‐accused appealed and it was granted è the favorable decision if favor of the other does not apply to the accused who’s appeal was denied”
-‐
-‐
(Notwithstanding perfection of the appeal) RTC/MeTC/MTC/MCTC o May allow the appellant to withdraw his appeal BEFORE the record has been forwarded by the clerk of court to the proper appellate court as provided in Sec8Rule122 è judgment shall become final The RTC may also (in its discretion) o Allow the appellant from the judgment of a MeTC,/MTC/MCTC è withdraw his appeal § Provided a motion to that effect is filed BEFORE rendition of the judgment in the case on appealè judgment of the court of origin shall become final and the case shall be remanded to the latter court for execution of the judgment
Duty of the clerk of the trial court, upon filing of a notice of appeal o (If confined in prison) to ascertain from the appellant è whether he desires the RTC/CA/SC to appoint a counsel de oficio to defend him o To transmit with the record on a form to be prepared by the clerk of court of the appellate court è a certificate of compliance with this duty and of the response of the appellant to his inquiry
Sec1 – Title of the case -‐
-‐
-‐
If it appears from the record of the case as transmitted that: o The accused is confined in prison o Is without counsel de parte on appeal o Has signed the notice of appeal himself o è The clerk of court of the Court of Appeals shall designate a counsel de oficio An appellant who is (not confined in prison) o Upon request, be assigned a counsel de oficio within 10days from receipt of the notice to file brief and he establishes his right thereto
Sec3 – When brief for appellant to be filed -‐
Within 30days from receipt by the appellant or his counsel of the notice from the clerk of court of the CA that the evidence/oral and documentary è already attached to the record o The appellant è shall file 7copies of his brief with the clerk of court + proof of service of 2copies thereof upon the appellee
Sec4 – When brief for appellee to be filed; reply brief of the appellant -‐
-‐
In all criminal cases appealed to the Court of Appeals, o The party appealing the case è "appellant" o Adverse party è "appellee" o The title of the case shall remain as it was in the court of origin
Sec2 – Appointment of counsel de oficio for the accused
The procedure to be observed in the MeTC/MTC/MCTC o Shall be the same as in the RTC (except where a particular provision applies only to either of said courts and in criminal cases governed by the Revised Rule on Summary Procedure)
RULE 124 – PROCEDURE IN THE CA
Sec13 – Appointment of counsel de oficio for accused on appeal -‐
By: James Francis Villanueva Francis Xavier Razon
Sec12 – Withdrawal of appeal -‐
Within 30days from receipt of the brief of the appellant o The appellee § Shall file 7copies of the brief of the appellee with the clerk of court + proof of service of 2copies thereof upon the appellant Within 20days from receipt of the Brief of the appellee o The appellant § May file a reply brief traversing matters raised in the former but not covered in the brief of the appellant
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
Ugh… life. Atty. Salvador Sec5 – Extension of time for filing briefs Sec12 – Power to receive evidence -‐
Extension of time for the filing of briefs will not be allowed except: o For good and sufficient cause and only if the motion for extension is filed BEFORE the expiration of the time sought to be extended
-‐
Sec6 – Form of briefs -‐
Briefs -‐ shall either be printed/encoded/typewritten (double space on legal size), good quality unglazed paper, 330x216mm
A.
Briefs in criminal cases è shall have the same contents as provided in Sec13&14Rule44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant
B.
Sec8 – Dismissal of appeal for abandonment or failure to prosecute -‐
-‐
CA may (upon motion of the appellee or motu proprio) + notice to the appellant in either case o Dismiss the appeal è appellant fails to file his brief within the time prescribed by this Rule (except where the appellant is represented by a counsel de oficio) CA may also (upon motion of the appellee or motu proprio) o Dismiss the appeal è appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal
C.
-‐
-‐
1.
-‐
2. 3. 4.
The Court of Appeals may: o Reverse o Affirm o Modify the judgment o Increase/reduce the penalty imposed by the trial court o Remand the case to the RTC for new trial/retrial o Dismiss the case
Whenever the CA finds that the penalty of death should be imposed a. The court shall render judgment but refrain from making an entry of judgment b. Certify the case and elevate its entire record to the SC for review When the judgment also imposes a lesser penalty for offenses committed è on the same occasion/same occurrence that gave rise for the penalty of death to be imposed and the accused appeals a. The appeal shall be included in the case certified for review to the SC In cases where CA imposes RP/life imprisonment/lesser penalty a. It shall render a judgment imposing such penalty è may be appealed to the SC (notice of appeal filed in CA)
On appeal or if the penalty is below death/RP/life imprisonment a. Petition for review on certiorari under Rule45 to the SC For original cases and the penalty is RP/life imprisonment a. Notice of appeal and it will be elevated to the SC For original cases and the penalty is death a. Automatic review by the SC Appealed cases and the penalty is death/RP/life imprisonment a. SB will render a judgment but will not enter
Sec14 – Motion for new trial
No judgment shall be reversed/modified unless the CA (after an examination of the record and of the evidence adduced by the parties) o Is of the opinion that error was committed which injuriously affected the substantial rights of the appellant
Sec11 – Scope of judgment
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases: o Falling within its original jurisdiction o Involving claims for damages arising from provisional remedies o Where the court grants a new trial based only on the ground of newly-‐ discovered evidence
Rules of appeal in SB
Appeals of accused who are under detention o Shall be given precedence in their disposition over other appeals The CA shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties o The accused need not be present in court during the hearing of the appeal
Sec10 – Judgment not to be reversed or modified except for substantial error
By: James Francis Villanueva Francis Xavier Razon
IMPOSSIVIEW: “When the penalty to be imposed is death è CA will only render a judgment but NOT enter it (the power to review death cases is given only by the Constitution to the SC)” (People v Mateo)
Sec9 – Prompt disposition of appeals -‐
Sec13 – Certification or appeal of case to the SC
Sec7 – Contents of brief -‐ -‐
-‐
At any time AFTER the appeal from the lower court has been perfected and BEFORE the judgment of the CA convicting the appellant becomes final o The latter may move for a new trial è newly-‐discovered evidence material to his defense (shall conform with the provisions of Sec4Rule121)
Sec15 – Where new trial conducted -‐
When a new trial is granted o CA may conduct the hearing and receive evidence as provided in Sec2Rule124 or refer the trial to the court of origin
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec16 – Reconsideration RULE 125 – SEARCH AND SEIZURE Sec1 – Search warrant defined -‐ MR è shall be filed within 15days from notice of the decision or final order of the CA + Search warrant copies thereof served upon the adverse party (setting forth the grounds in support thereof) -‐ The mittimus è shall be stayed during the pendency of the MR -‐ Order in writing -‐ No party shall be allowed a 2nd MR of a judgment or final order -‐ Issued in the name of the People of the Philippines -‐ Signed by a judge Sec17 – Judgment transmitted and filed in trial court -‐ Directed to a peace officer è commanding him to search for personal property described therein and bring it before the court -‐ When the entry of judgment of the CA is issued o A certified true copy of the judgment shall be attached to the original record IMPOSSIVIEW: which shall be remanded to the clerk of the court from which the appeal was Search warrant – is a legal process employed by the state to procure relevant evidences. It is a police taken weapon issued in the name of the state and it has been likened to be a writ of discovery (United Laboratories v Isip) Sec18 – Application of certain rules in civil procedure to criminal cases Sec2 – Court where application for search warrant shall be filed -‐ The provisions of Rules42,44–46&48–56 relating to procedure in the CA and in the SC in An application for search warrant shall be filed with the following: original and appealed civil cases o Shall be applied to criminal cases insofar as they are applicable and not A. Any court within whose territorial jurisdiction a crime was committed inconsistent with the provisions of Rule124 B. For compelling reasons stated in the application a. Any court within the judicial region where the crime was committed (if the place of the commission of the crime is known) b. Any court within the judicial region where the warrant shall be enforced C. If the criminal action has already been filed RULE 125 – PROCEDURE IN THE SC a. Application shall only be made in the court where the criminal action is pending Sec1 – Uniform procedure -‐
(Unless otherwise provided by the Constitution or by law) the procedure in the SC in original and in appealed cases shall be the same as in the CA
Sec2 – Review of decisions of the Court of Appeals -‐
The procedure for the review by the SC of decisions in criminal cases rendered by the CA shall be the same as in civil cases
Sec3 – Decision if opinion is equally divided -‐
When the SC en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit the appellant è the case shall again be deliberated upon o If no decision is reached after re-‐deliberation è the judgment of conviction of the lower court shall be reversed and the accused acquitted
IMPOSSIVIEW: “The executive judge and whenever they are on official leave of absence or not physically present in the station è the vice executive judge of the RTC of Manila and QC è shall have authority to act on applications filed by the NBI/PNP/Anti-‐Crime Task Force/illegal gambling/illegal possession of firearms/comprehensive dangerous drugs or 2002/intellectual property code/ anti-‐money laundering/tariff and customs code è if granted, may be served anywhere in the Phil.” “If the nature of the violation is a transitory/continuing offense è the warrant may be applied in any court where the elements of the alleged crime was committed” (Sony v Supergreen) Sec3 – Personal property to be seized A search warrant may be issued for the search and seizure of personal property: A. B. C.
Subject of the offense Stolen/embezzled/other proceeds/fruits of the offense Used or intended to be used as the means of committing an offense
Sec4 – Requisites for issuing search warrant
-‐ -‐ -‐ -‐ -‐
Probable cause One specific offense Determined personally by the judge After examination under oath or affirmation of the complainant and the witnesses he may produce Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines
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IMPOSSIBRU NOTES II Crim Pro Memory Aid
By: James Francis Villanueva
Ugh… life. Atty. Salvador Francis Xavier Razon Sec12 – Delivery of property and inventory thereof to court; return and proceedings thereon Sec5 – Examination of complainant; record The judge must, before issuing the warrant: A. The officer must deliver: -‐ Personally examine in the form of searching questions and answers a. The property seized (to the judge who issued the warrant) -‐ In writing and under oath è the complainant and the witnesses he may produce on facts b. A true inventory thereof (duly verified under oath) personally known to them B. 10days after issuance of the search warrant è the issuing judge shall: -‐ Attach to the record their sworn statements, together with the affidavits submitted a. Ascertain if the return has been made i. If none è shall summon the person to whom the warrant was issued and require him to explain why no return was made. Sec6 – Issuance and form of search warrant ii. If the return has been made è ascertain whether Sec11Rule126 has been complied with and shall require that the property seized be -‐ If the judge is satisfied of the existence of facts upon which the application is based or that delivered to him there is probable cause to believe that they exist è he shall issue the warrant (which must b. See to it that Sec11(a) has been complied with be substantially in the form prescribed by these Rules) C. The return on the search warrant a. Shall be filed and kept by the custodian of the log book on search warrants who Sec7 -‐ Right to break door or window to effect search shall enter therein the date of the return, the result, and other actions of the The officer è if refused admittance to the place of directed search after giving notice of his purpose judge and authority D. A violation of this section shall constitute contempt of court -‐
May break open any outer or inner door/window of a house/any part of a house/anything therein to execute the warrant/liberate himself or any person lawfully aiding him when unlawfully detained therein
IMPOSSIVIEW: Procedure of inventory in Dangerous drugs cases 1.
Sec8 – Search of house, room, or premises to be made in presence of two witnesses No search of a house, room, or any other premises shall be made except: -‐ -‐
2.
In the presence of the lawful occupant thereof or any member of his family (In the absence of the occupants/family members) 2witnesses of sufficient age and discretion (residing in the same locality)
3.
Sec9 – Time of making search -‐
The warrant must direct that it be served in the daytime (unless the affidavit asserts that the property is on the person or in the place ordered to be searched è direction may be inserted that it be served at any time of the day or night)
Sec10 – Validity of search warrant Search warrant è valid for 10days from its date Sec11 – Receipt for the property seized Officer seizing property under the warrant -‐
Give a detailed receipt for the same: o Lawful occupant of the premises (in whose presence the search and seizure were made) o (In the absence of the occupants/family members) presence of at least 2witnesses of sufficient age and discretion residing in the same locality § Leave a receipt in the place in which he found the seized property
Sec13 – Search incident to lawful arrest -‐
A person lawfully arrested è may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense (without a search warrant)
IMPOSSIVIEW: GR: The arrest must precede the search E: A search contemporaneous with the arrest, can precede the arrest if there is probable cause to make the arrest at the outset of the search è there could be a search which is almost simultaneous with the arrest (People v Laguio) “A subsequent warrantless search that resulted in a seizure subsequent to a legitimate warrantless arrest is valid è the arresting officers are authorized to search and seize from the offender” (People v Bohol)
Coordinate with the PDEA è to secure a coordination report in order to prepare for a buy-‐ bust operation Assuming the buy-‐bust operation was successful è inventory should be made at the scene of the crime to make sure that there is a proper chain of custody (from the time of seizure up to the time of presentation in court) A physical science report must be submitted è determine the nature of the substance and the examination must be completed within a period of 24hrs (unless the quantity is so huge, it may be extended)
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IMPOSSIBRU NOTES II Crim Pro Memory Aid Ugh… life. Atty. Salvador Valid warrantless searches: 1. 2. 3. 4. 5. 6. 7. 8. 9.
Search as an incident to a lawful arrest Moving vehicles Customs search Plain view Waiver Stop and frisk Airports Exigent and emergency circumstances Spot tips (no reasonable time to obtain a warrant)
C. D.
By: James Francis Villanueva Francis Xavier Razon
officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty When the accused has concealed, removed, or disposed of his property, or is about to do so When the accused resides outside the Philippines
Sec14 – Motion to quash a search warrant or to suppress evidence; where to file -‐ -‐ -‐
A motion to quash a search warrant and/or to suppress evidence obtained thereof o Filed in and acted upon only by the court where the action has been instituted If no criminal action has been instituted o The motion may be filed in and resolved by the court that issued the search warrant If such court failed to resolve the motion and a criminal case is subsequently filed in another court è the motion shall be resolved by the latter court
IMPOSSIVIEW: Motion to quash v motion to suppress Motion to quash When to file Must be filed before the warrant is actually implemented Where to file • If there is no pending criminal case o In the court that issued a warrant • If there is a pending criminal case o Filed in that case
Motion to suppress After the items have already been seized •
•
If there is no pending criminal case o In the court that issued a warrant If there is a pending criminal case o Filed in that case
RULE 125 – PROVISIONAL REMEDIES IN CRIMINAL CASES Sec1 – Availability of provisional remedies -‐
Provisional remedies in civil actions (insofar as they are applicable) o May be availed of in connection with the civil action deemed instituted with the criminal action
Sec2 – Attachment (When the civil action is properly instituted in the criminal action as provided in Rule111)è Offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: A. B.
When the accused is about to abscond from the Philippines When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer,
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