Inigo - Rule 119 Trial

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 119 Trial

Rule 119

TRIAL SECTION 1. Time to prepare for trial. – After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order. (sec. 6, cir. 38-98) SEC. 2. Continuous trial until terminated; postponements. – Trial once commenced 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. (2a) The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trail on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. (sec. 8, cir. 3898). The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial. (n)

After the accused is arraigned, there is a minimum of 15 days to prepared for the trial. And then continuous trial until terminated. The trial period shall not exceed 180 days, taken from the Speedy Trial Act and SC Circulars. They are now incorporated in the new rules. There are many provisions here which are new in the sense that they are found in the rules for the first time. However, even before the new rules took effect, they were considered as already existing provisions because of the Speedy Trial Act and SC Circular 38-98. Ngayon, nandito na. So we will not go over them one by one. I will just point them out. The new provisions are Section 3 up to Section 10: SEC. 3. Exclusions.- The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) Delay resulting from an examination of the physical and mental condition of the accused; (2) Delay resulting from proceedings with respect to other criminal charges against the accused; (3) Delay resulting from extraordinary remedies against interlocutory orders; (4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; (5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) Delay resulting from a finding of existence of a prejudicial question; and (7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, 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. (e) A reasonable period of delay when the 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.

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(f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, 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 interestof the public and the accused in a speedy trial. (sec. 9, cir. 38-98) SEC. 4. Factors for granting continuance. – The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3(f) of this Rule. (a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and (b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein. In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the court’s calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor. (sec. 10, cir. 38-98) SEC. 5. Time limit following an order for new trial. – If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend but not to exceed one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred eighty (180) days from notice of said order for new trial. (sec 11, cir. 38-98) SEC. 6. Extended time limit.- Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days. (sec. 7, cir. 38-98) SEC. 7. Public attorney’s duties where accused is imprisoned. – If the public attorney assigned to defend a person charged with a crime knows that he latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is 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 requiring such person to so advise the prisoner of his right and demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purpose of trial, the prisoner shall be made available accordingly. (sec. 12, cir. 38-98) SEC. 8. Sanctions. – In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows: (1) By imposing on a counsel privately retained in connection with the defense o fan accused, a fine not exceeding twenty thousand pesos (P20,000.00); (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days.

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Rule 119 Trial

The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules. (sec. 13, cir. 38-98)

There is something here in Section 8 that I want to bring out – mga kastigo, sanctions ba! Alam mo ang kawawa dito, mga abogado eh – fiscals, defense counsels, even the PAO lawyers – if they are responsible for delaying the trial of the criminal case. Just imagine, P20,000 if it is the private defense lawyer. That is the maximum of course. Ang PAO naman, P5,000 – 75% discount! Ma-suspend ka pa. SEC. 9. Remedy where accused is not brought to trial within the time limit. – If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (sec. 14, cir. 38-98) SEC. 10. 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 section 14(2), article III, of the 1987 Constitution. (sec. 15, cir. 38-98)

Take note of Section 9 and 10. Please correlate this on the rights of the accused to speedy trial as mention in Section 1[h] of Rule 115 on the rights of the accused. SEC. 11. Order of trial. – The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages, if any, arising, from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. (3a)

The order of the trial in the criminal case is almost the same pattern as in civil cases. Q: Who presents evidence first? A: The prosecution. Under Section 11 [a], “The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.” So you prove the charge and the civil liability. Q: Ano yung “in the proper case”? A: That is because if the civil liability has already been reserved, ah wala na – forget evidence of civil liability where there is already reservation. Pero kung hindi, then it is deemed instituted with the criminal case. Under paragraph [b], provisional remedies are allowed in criminal cases, like attachments, etc. in the same way if the civil action is deem instituted, the offended party can ask a preliminary attachment of the property under Rule 127. Paragraph [e] refers to “trial in reverse.” The best example is when the accused raises self-defense. The burden of proof is automatically shifted to the accused. But this should be included during the pre-trial as provided under Rule 118, Section 1 [e]: SECTION 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court,

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Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: x x x x x x x (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; x x x x x x x

Q: Is there such a thing as deposition-taking in criminal cases? A: YES, under Section 12: SEC. 12. Application for examination of witness for accused before trial. – When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that the will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. (4a)

Q: How is deposition in criminal cases being done? A: Read Section 13: SEC. 13. Examination of defense witness; how made. – If the court is satisfied that the examination of a witness for the accused is necessary, an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. (5a)

The grounds are almost identical. This is deposition actually. Only, it is called conditional examination. That is the term used here. Take note, connect this with Section 1[f], Rule 115 – rights of the accused. Section 12 is an exception to the right to confront and cross-examine because you cannot insist during the trial to confront and cross-examine the witness under Rule 115 Section 1[f] when we was already examined under Section 12. Q: Is the remedy of deposition-taking also available to the prosecution? A: YES, under Section 15: SEC. 15. Examination of witness for the prosecution. – When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. (7a)

Let us try to compare Section 13 (defense) and Section 15 (prosecution): Let’s go to the defense witness under Section 13: Q: Before whom will the examination of the witness be taken? A: It DEPENDS – before the judge, or if not practicable, a member of the bar in good standing designated by the judge in the order.

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Now, you compare that with Section 15. In Section 15, you will notice: “he may forthwith be conditionally examined before the court where the case is pending.” Unlike in Section 13 – before the judge, or if not practicable, a member of the bar in good standing… it is more lenient no? Q: What is the reason why the law is more generous to the defense witness? A: According to one case through Justice Feria, this is because the government has the resources to get he testimony of its witnesses. Pero ang defense may have a hard time lalo na kapag pobre. SEC. 14. Bail to secure appearance of material witness. – When the court is satisfied, upon proof of oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. (6a)

It seems that the prosecution here is under the mercy of his witnesses. Meaning, kung ayaw ng testigo, wala kang magawa. But under Section 14, you can ask the court to order the witness to post bail. And if he refuses to post bail, he can be arrested. This is an instance where a witness can be jailed ahead of the accused. But actually the truth is in most cases, prosecution witnesses do not appear not because ayaw but because takot! They are afraid of what will happen like the accused might harass them. And the law knows that. That is why there is also another alternative – RA 6981, The Witness Protection Program which took effect last April of 1991. You read that so you will have an idea. SEC. 16. Trial of several accused. – When two or more accused are jointly charged with an offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any accused, orders separate trial for one or more accused. (8a)

Remember that there can be a joint trial of two or more criminal cases if they arose of the same incident like Judee fired her AK-47 and killed two or more people one after the other. But you cannot file one information because that will be duplicitous. There must be one information for every one homicide and then you move for a joint trial. Q: Now, how do you compare this rule with civil cases? A: In civil cases, when there is a common question of fact or law involving two or more parties, there is such a thing as filing only one complaint – joinder of causes of action or parties. But in criminal cases, that is not allowed. Consolidation in criminal cases in only for the purpose of joint trial lang and you cannot have one information charging more than one offense.

DISCHARGE OF AN ACCUSED TO BE STATE WITNESS SEC. 17. Discharge of accused to be state 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 direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) 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. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. (9a)

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SEC. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. (10a)

Let’s take Section 17 and Section 18 together. Discharge of an accused to be state witness means that you will convert an accused to become “Hudas,” save his neck but hang them all! Under Section 18, once the witness is discharged under Section 17, he is now CONSIDERED ACQUITTED and there is no way for him to be brought back in the case EXCEPT when he changes his mind and ayaw na niyang mag-testify. That is the only exception. Q: What are the requirements before a witness can be discharged? A: Section 17 enumerates the requirements. “SAID ACCUSED DOES NOT APPEAR TO BE THE MOST GUILTY.” Let’s comment on some of the requirements. One of the most important requirements for the discharge of an accused is the fourth one – “Said accused does not appear to be the most guilty.” Based from what I read from time to time, even lawyers have been commenting on this. It seems they are misquoting this eh, like 2 days ago, a lawyer said that we must discharge the accused because he is the least guilty. That is not what the law says! What the law says is, HE DOES NOT APPEAR TO BE THE MOST GUILTY. And it is not the same with HE IS THE LEAST GUILTY. EXAMPLE: Mortz, Pao and Jet. Mortz – principal; Pao – accomplice; Jet – accessory. Pagsinabi mong “the least guilty,” hindi mo puwedeng gamitin si Pao. Si Jet dapat ang gamitin mo because he is the least guilty. [Tsk! tsk! Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong “he does not appear to be the most guilty”, you can use Pao, although there is somebody to be less guilty. Basta ang importante, hindi si Mortz. So, there is a difference between the two phrases. Q: What do you mean by the phrase “does not appear to be the most guilty’”? A: There are cases: PEOPLE vs. OCIMAR August 17, 1992 FACTS: This case involved a hold-upping incident, committed in a bus in Manila while traveling in the North Express Way. There were four (4) hold-uppers who rode in the bus. When they reach a certain point, they stood up and pulled to their guns and robbed the passengers. And they placed themselves strategically: One of them stood behind the driver, “o, wag kang kikilos, drive ka lang.” Yung iba namang dito. Kanya-kanyang silang role eh. The others were the ones who divested the passengers, “mga pitaka ninyo, relo… lahat!” Now, there was one passenger there who was a military man wearing civilian clothes and may baril siya. So he wanted to fight back but one of them saw him. Pag-bunot niya, inunahan siya! So accused A shot that passenger. Accused D naman saw A shoot the victim. And of course all of them were charged with Robbery with Homicide in conspiracy - the act of one is the act of all. The prosecution wants to utilize D – the one who is behind the driver – as state witness. The other accused objected claiming conspiracy – “we are all coprincipal – the act of one is the act of all. So why do you say you are not the most guilty? Pare-pareho lang tayo. Same penalty.” ISSUE: Will accused D be qualified under the phrase “does not appear to be the most guilty”?

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HELD: YES. When you say “he does not appear to be the most guilty”, you do not apply the rule on conspiracy. But you apply the rule on individual acts. In reality, who is more guilty? The one who really shot the victim or the one who is just behind the driver? The reality is, the most guilty is the one who shot, although for purposes of the RPC both of you are co-principal. So, you look at it that way. Do not apply the principle of the act-of-the-one-is-the-act-of-all. You consider the most guilty in terms of the participation. “By ‘most guilty’ means the highest degree of culpability in terms of participation in the commission of the offense and not the severity of the penalty imposed. While all the accused maybe given the same penalty but by reason of culpability one may be least guilty if we take into account his degree of participation in the perpetuation of the offense.” Q: Generally, when the fiscal, after criminal investigation, believes that one of them can be a state witness, therefore he will not include his name in the information. Is it allowed? A: NO, you have to include him first before he can be a state witness. Let the court decide whether he will be a state witness or not. You cannot discharge on your own. Remember under the Rules, the prosecutor is bound to file the information against ALL those who appear to be responsible including this guy who you want to use as state witness. But when you reach the court, you file a motion to discharge and let the court who will do it. And under the New Rules, there must be a HEARING to determine whether there should be discharge or not. That’s why the rule said, “the trial court must require the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge.” So, there must be an affidavit and there must be a hearing. In the 1985 Rules, there was no need of a hearing. No need for the prosecution to present evidence. Normally the fiscal will just file a motion that we would like to use this witness and the court will discharge. Now, hindi na pwede yan because in most cases in the past, a person is discharge and it turns out that he is the most guilty. To avoid that possibility, there is now need to present affidavit, etc. and there must be a hearing. The court will require presentation of evidence and it will decide whether or not to discharge. Now, sabi ng court in the hearing for the discharge of the accused, “There is no need to discharge him. Motion to discharge, denied!” So sabi ng accused, “Kawawa na ako nito because I already admitted the crime in my affidavit! Tapos, hindi pala ako qualified! [‘nak ng pating naman o!].” What will happened to you now? You Look at the last paragraph of Section 17: “Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.”

So that is fair enough because the affidavit which is practically an admission of his participation, then if he is not discharged, do not use it against him. It is inadmissible as evidence against him. The leading case in this issue is the 1993 case of PEOPLE vs. CA AND INSPECTOR JOE PRING 223 SCRA 475 FACTS: Pring was involved in kidnapping and one policeman testified against him – Nonilo Arile. There was a motion to discharge Arile to testify against Pring. Then the prosecution gave the defense the affidavit of Arile. Based on that, the court ordered the discharge of Arile. Pring questioned the procedure. This is the first case where the SC applied this rule on hearing on the discharge of an accused. Sabi ni Pring, “Where is the hearing?” Prosecution: “Yon palang motion to discharge na binigay namin sa inyo?” Pring: “Ah, hindi naman hearing yun!

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Hearing means, ilagay mo si Arile sa witness stand subject to cross-examination because even under Section 17, evidence adduced to support the discharge shall automatically form part of the trial. Meaning, the state witness will not testify again. So what is contemplated here is personal testimony and not the affidavit.” ISSUE: Is the argument of Pring correct? HELD: NO. Hearing means, you have the opportunity to read what he will say and the opportunity to object. Yan ang ibig sabihin ng hearing. Hindi kailangan na he will be questioned personally in court. That satisfies the requirement of hearing. “Hence, in resolving the issue in this petition, the proper question we should address is: Was there a failure to observe the spirit and intent of Section 17, Rule 119 in the case at bar? We rule in the NEGATIVE. The prosecution has submitted the sworn statement of accused Nonilo Arile and its evidence showing that the conditions for discharge have been met. Neither can it be denied that the defense was able to oppose the motion to discharge Nonilo Arile. With both litigants able to present their side, the lack of actual hearing was not fatal enough to undermine the court's ability to determine whether the conditions prescribed under Section 17, Rule 119 were satisfied.” So there is already substantial compliance with the hearing. And that was the first case interpreting this new provision after the 1985 Rules. But for the merits, later na-acquit man si Pring ba which is a different issue. Yung dito, discharge lang ang issue eh. On the merits, he was acquitted. But after one year from his acquittal, pinatay naman siya ng ABB. Sabi nila (ABB), kung nakaligtas ka sa court, sa amin hindi ka makaligtas. That’s what happened there. Q: Normally, when is an accused discharged? A: He is discharged before he testifies. You will use him. That’s why he is going to be discharged. However, in the 1992 case of ROSALES vs. COURT OF APPEALS 215 SCRA 102 FACTS: The prosecution wants to use an accused as a witness and he was willing. Sabi ng prosecution, “We will file a motion to discharge you to be state witness.” The accused said, “Hwag! Hwag!.. if you will do that patay ako! Patayin talaga nila ako. They will not allow me to testify.” But still the prosecution used him. He took a stand and he pointed to all his companions. So he testified first bago nag-file ng motion to discharge ang prosecution. ISSUE: Is that correct? Can the testimony come ahead before the discharge? HELD: YES because of the peculiar fact – his life is in danger eh. Anyway according to the law, should the discharge be made, is should be made by the prosecution before resting its case (Section 17). In the case at bar, at that moment, the prosecution has not rested its case. So puwede. “While it is the usual practice of the prosecution to present the accused who turns state witness only after his discharge, the trial court may nevertheless sanction his discharge after his testimony if circumstances so warrant. In the case before Us, the imminent risk to his life justified the deviation from the normal course of procedure as a measure to protect him while at the same time ensuring his undaunted cooperation with the prosecution. Indeed, as is explicit from the Rule, as long as the motion for discharge of an accused to be utilized as a state witness is filed before the prosecution rests, the trial court should, if warranted, grant it.”

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Q: What happens if an accused who is the most guilty is erroneously discharged – ang mga naiwan, yung mga pipitsugin? Is the erroneous discharge valid? Is he deemed acquitted? A: The SC said YES. Even if there is a mistake, he is now acquitted once he is discharged. His testimony is admissible. In the case of BOGO-MEDELLIN CO. vs. JUDGE PEDRO SON 209 SCRA 329 (May 27, 1992) HELD: “Any witting or unwitting error of the prosecution in asking for the discharge of an accused and of the trial court in granting the petition for discharge, so long as no question of jurisdiction is involved, would not deprive the discharged accused of the acquittal that is specified in Section 10 of Rule 119 and of the constitutional guarantee against double jeopardy. It is also relevant to note that the improper or mistaken discharge of an accused would not affect his competency as a witness or render inadmissible his testimony.” Q: Let’s go back to Evidence. He is the most guilty. His discharge was wrong. Is his testimony admissible? A: YES, because he can perceive and perceiving and he can make known his perception to others. That is the only qualification. There is no violation of marital disqualification or attorney-client confidentiality, etc. Wala man! So you go back to Evidence. The testimony of the witness is qualified although it might be polluted and he did it to save his game – that is not enough to make his testimony inadmissible. Q: One thing more, who can discharge the witness? A: The court where the very case is pending. That’s the rule – the court where the case is pending. BAR QUESTION: What happens when an accused is discharged, and after he is discharged, sabi ng prosecution, “Teka muna nagkamali ako, di pala kita kailangan. Balik ka!” Can it be done? A: Sabi ng SC, NO, acquitted na yan! The only reason for him to come back is, he is asked to testify pero ayaw niya. Prosecution: “But I don’t need him.” SC: that is your fault because first, why did you ask for his discharge? So once he is discharged, he is deemed acquitted whether you use him or do not use him. The only way for him to come back is, you want to use him but he does not want to testify because he is double-crossing the Government. Lets go further. There is another law, about this witness. You try to compare this principle with the provision of RA 6981 – The Witness Protection Act. Under RA 6981, the fiscal would not even include you in the charge anymore, for as long as the DOJ will say that he is qualified, he is covered by the Witness Protection Program. Under the law, the fiscal should not include him anymore. Unlike in criminal procedure kailangan isali ka muna bago ka i-discharge. Sa RA 6981 naman, hindi ka na kasali. That is why the constitutionality of the law was challenged in the case of WEBB vs. DE LEON August 23, 1995 FACTS: State witness Alfaro admitted that she was with them. She admitted kasama siyang nagpunta sa bahay ng mga Vizconde. And then she was placed in the Witness Protection Program and was used against Hubert Webb. And according to Webb, the provision of the Witness Protection Act – which authorizes the DOJ to place somebody in the Witness Protection Program, and once he certifies that she is covered, the fiscal is no longer allowed to file a case against her (state witness) – is violative of the judicial prerogative to discharge a witness because you jumping the gun on the court. According to Webb, it should be the court that will discharge and not the DOJ. The law is not valid because it is an encroachment of a judicial prerogative. It is

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an intrusion for it is only the court which has the power under the rules on criminal procedure to discharge an accused as state witness. ISSUE #1: Is Webb’s argument valid? HELD: “Webb’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution.” ISSUE #2: How do you reconcile this ruling with the rule that only the court has the power to discharge? HELD: Simple! In the Witness Protection Program, the accused is NOT even accused in any case yet. Wala pa! But once he is accused, you need the consent of the court to discharge, that is kapag kasali na! Pero kung hindi pa kasali, there is no need for the court’s consent to decide because that is an executive function. ISSUE #3: And why is the court’s consent necessary once the accused is charged in court? HELD: This is because the court has already acquired jurisdiction over the person of the accused. So the SC said, “Section 17 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision the court is given the power to discharge as state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.” ISSUE #4: Is it wise for Congress to enact this law? Why will Congress enact this kind of law that will determine that the witness will not be included in the information? HELD: YES. It is a wise legislation. “Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. The Witness Protection Act is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify.” SEC. 19. When mistake has been made in charging the proper offense. – When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the 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. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (11a)

You co-relate Section 19 with the last paragraph of Section 14, Rule 110: If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

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So the same ‘no? The accused shall be discharge because of a wrong information upon filing of the correct one. So Section 14 of Rule 110 and Section 19 of Rule 119 talk of the same thing. QUESTION: how will you distinguish the two provisions? Kung tingnan mo mukang pareho eh. But for academic purposes, there are differences made by Justice Regalado in the 1994 case of GALVEZ VS. CA (237 SCRA 685) Alam mo itong si Regalado, siya din ang nag-distinguish ng amendment and substitution of information under Rule 110 which was asked in the bar and thoroughly discussed in the case of TEEHANKEE VS. MADAYAG. In the case of Galvez naman, gi-distinguish naman niya ang Section 14 Rule 110 and Section 19 Rule 119. Q: Distinguish Section 14 of Rule 110 and Section 19 of Rule 119. A: For academic purposes, the following are the distinctions: 1. Rule 119 is the rule specifically governing the trial stage; whereas Rule 110 provides the procedural governance for the prosecution of offenses; 2. Rule 119 is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and re-filing of the informations therein contemplated; whereas Rule 110 is directed to the prosecutor who can and should institute remedial measures for the dismissal of the original information and the re-filing of the correct one, otherwise he would be recreant to his duties; 3. In Rule 119, evidence is necessarily being presented, hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes; whereas In Rule 110, since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation; and 4. In Rule 119, the permissible stage for effecting that substitution is “at any time before judgment”; whereas In Rule 110, it is sufficient that “it appears…that a mistake has been made in charging the proper offense…” which situation contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. So after I read the case of Galvez, I said Regalado has a very sharp mind. Masyadong matalas and utak ba! A very small distinction, makita niya eh. And it takes pain to analyze. That is the product of a sharp mind. But no wonder because pag-kuha niya ng bar, 96.70% gud ang average niyan! He is the highest for the record. Sabi nila si Marcos. Yes, but that is not official. Istorya lang yun. Si Marcos nag oral examination before the SC pero binabaan ang average. But on record, it is Regalado who is the highest in the bar. Nobody has beaten that. Makita ninyo man ba sa decisions niya. Masyadong matalas, very sharp! SEC. 20. Appointment of acting prosecutor. – When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 or for any other reason, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. (12a) SEC. 21. Exclusion of the public. – The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. (13a)

Section 21 is an exception to the rule found in Rule 115 about the right of the accused to a public trial. There are some exceptions to that right. And under Section 21:

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1. the court may, moto propio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. Normally this applies in trial for the crime of rape or in crimes against chastity, where the nature of the evidence is such that the public may want to go there because they only want to listen to these sadiscious details of the testimony. The public can be excluded. Only the lawyers, the parties are allowed inside. Yaan! 2. on motion of the accused, the court may exclude the public. That is his right to speedy trial. Kung ayaw niya, e di okey lang! Aside from the two exceptions, the other grounds where the public can be excluded, based on American Jurisprudence are: 1. To prevent disorder; 2. To prevent embarrassment to a witness; 3. To limit attendance to seating capacity. This is the very issue now. I’ve been reading current newspaper reports that everybody is anticipating that the case against Erap will be filed in the Sandiganbayan. The DOJ wants everything to be televised all over again. They are filing a petition before the Supreme Court. There is a standing order of the Supreme Court prohibiting it. It should not be televised because of what happened in the Aquino libel case [Aquino vs. Beltran]. Because of that, ayaw na ng SC na i-televised. It becomes a sarswela – show ba! – rather than an a public trial. Now, they want to justify it on the ground that this involves public interest so the SC should relax the rules. I cannot anticipate how the SC will resolve the matter because everybody has gotten used to the impeachment trial so everybody wants to hear what is happening, especially if the person involved is Erap. Such a standing memorandum was not applied to the impeachment trial because it was not a judicial trial but a political trial. It is the Senate which controls the rules, not the courts. This is the difference. But this case is before the Sandiganbayan which is a different story. Because definitely many people would like to go there but how do you get a seat them all in the Sandiganbayan? You will have to exclude hundreds, if not thousands and allow only the entry of a few. But if it is televised, then everybody can watch again. SEC. 22. 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 may be tried jointly at the discretion of the court. (14a)

Do not confuse this consolidation here in Rule 119 with the consolidation in Rule 111. In Rule 111, you are consolidating the criminal case and the civil case – the civil case which is brought separately will be consolidated with the criminal case. Here in Rule 119, you are consolidating two or more criminal cases which are identical, founded on the same facts or forming part of the same series of offense of similar character. This is similar to consolidation in Rule 31 on civil cases. But in civil cases, we can allow related cases to be filed together eh – joinder of parties, which is not allowed in criminal cases. The only practice allowed in criminal cases is consolidation. But there could be no such thing as joinder of accused in one information. Let’s go to Section 23 on Demurrer – one of the most important provisions in Rule 119. SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence

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and submits the case for judgment on the basis of the evidence for the prosecution. (15a) The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. 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 or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)

Demurrer is a motion to dismiss. After the prosecution has rested its case, based on the order of trial, the accused now presents his case. But sabi ng accused, “Well, I will present evidence on the assumption that the prosecution has proven prima facie the crime and my guilt. [meaning the presumption of innocence has already been disputively rebutted ba!].” But suppose the prosecution has not proven the facts or not proven the crime or my guilt, “why will I present evidence? Why will I prove my innocence when I’m still presumed innocent?” Yaan! Yan ang demurrer. The same thing in civil cases – why will you prove your defense when the plaintiff failed to prove his cause of action? So instead of presenting evidence, he will file a demurrer. Actually it’s a motion to dismiss. Now of course, it is now emphasized in paragraph 1 that a demurrer may be filed with or without leave of court. Leave of court means before your demurrer, you file muna a motion for permission to file the demurrer. The court grants permission, you file the demurrer. You can still file the demurrer even without the permission of the court. If you file demurrer with or without leave and it is granted, then you have no problem because the accused will be acquitted. The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to prove at least the guilt of the accused. If the demurrer was filed with prior leave of court and it is subsequently denied, the accused is allowed to present evidence to prove his defense. But if you filed the demurrer without prior leave of court and the demurrer is denied, then you are already convicted because the accused has forfeited his right to present evidence. It is practically equivalent to a waiver of his right to present evidence. So conviction automatically follows. This is what the rules say. What is the rationale behind this? The 1997 case of PEOPLE vs. TURINGAN 282 SCRA 424 HELD: “The rationale for the rule is that when the accused moves for dismissal on the ground of insufficiency of the prosecution evidence, he does so in the belief that said evidence is insufficient to convict and, therefore, any need for him to present any evidence is negated. It is said that an accused cannot be allowed to wager on the outcome of judicial proceedings by espousing inconsistent viewpoints whenever dictated by convenience. The purpose behind the rule is also to avoid the dilatory practice of filing motions for dismissal as a demurrer to the evidence of the prosecution and, after denial thereof, the defense would then claim the right to present its evidence.” So, there is an inconsistency in saying that the prosecution’s evidence is not sufficient, and yet when it is denied, “OK, I will present evidence.” Ahh di puwede yan! And many defense counsels in the past have filed demurrer just to delay the presentation of evidence when there is no chance for said demurrer to be granted. BERNARDO vs. COURT OF APPEALS

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278 SCRA 782 HELD: “The power to grant leave to the accused to file a demurrer is addressed to the sound discretion of the trial court. The purpose is to determine whether the accused in filing his demurrer is merely stalling the proceedings. [Is he really serious or is only delaying the proceedings?] Judicial action to grant prior leave to file demurrer to evidence is discretionary upon the trial court. But to allow the accused to present evidence after he was denied prior leave to file demurrer is not discretionary.”[Meaning, when you file a demurrer without prior leave, you assume the risk eh because once your demurrer is denied, you no longer have a chance to present evidence.] “Once prior leave is denied and the accused still files his demurrer to evidence or motion to dismiss, the court no longer has discretion to allow the accused to present evidence. The only recourse left for the court is to decide the case on the basis of the evidence presented by the prosecution. And, unless there is grave abuse thereof amounting to lack or excess of jurisdiction, the trial court's denial of prior leave to file demurrer to evidence or motion to dismiss may not be disturbed. However, any judgment of conviction by a trial court may still be elevated by the accused to the appellate court.” [You cannot question the order of denial of prior leave, this is discretionary but you can appeal the judgment of conviction itself.] BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the rule of demurrer in criminal cases? A: The following are the distinctions: 1. In civil cases when the demurrer is denied, the defendant will now present his evidence to prove his defense because the defendant does not waive his right to present in the event the demurrer is denied; whereas In criminal cases, if the demurrer of the accused is denied the accused is no longer allowed to present evidence if he had no prior leave; 2. In civil cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff appeals to the appellate court and on appeal the court reverses the order of dismissal, the appellate court renders judgment immediately against the defendant. Goodbye! – talo na ang defendant. There is no more remanding; whereas In criminal cases, if the demurrer is granted, there is no more appeal by the prosecution because the accused has already been acquitted. Otherwise, there will be a case of double jeopardy; 3. In civil cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests without any demurrer by the defendant. There is no such thing as motu propio demurrer; whereas In criminal cases, the court may dismiss the action on its own initiative after giving the prosecution the chance to present its evidence. Demurrer used to composed only of two paragraphs. Under the new rules, there are three (3) new additional paragraphs. The additional provisions are: The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

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The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)

These deadlines were not found before. If you want to file leave, pag-rest, 5 days lang, you file a motion for leave. The prosecution may oppose the leave of within 5 days. After the court grants leave, you file the demurrer within 10 days lang. The obvious purpose here is not to delay the trial. When the court denies the motion for leave or the demurrer itself, as a rule, it is not reviewable. You cannot review it. The remedy is to go to trial and if you are convicted, appeal on the judgment of conviction. But as a general rule, when a demurrer is denied, you cannot go on certiorari. I’m not saying that this is 100% but there are some instances when the court, based on equity, allows it. Take note that when you file a leave of court to file a demurrer, the accused must specifically state the grounds. The 1985 Rules just says you get prior leave. This is what I noticed here among trial courts: after the prosecution rests, sometimes the defense counsel will say, “Your honor, we will file a demurrer. May we ask for leave of court to file the demurrer?” And I noticed that the courts will say “Alright, leave granted, file your demurrer.” Parang naging automatic ba! Pag-hingi mo ng leave, bigay kaagad! I was watching that and I do not seem to agree with that kind of set-up and I had the opportunity once in a criminal case where I was the private prosecutor where after we rested, the defense, in open court said, “Your honor, we would like to ask permission for demurrer.” And the court said, “Granted!”. I said “Your honor, this is not the correct procedure because he doesn’t even say what are his grounds for demurrer. The court should not grant the permission immediately without those grounds.” To my mind, when you file a motion for leave, you must state the grounds to give the court a synopsis or an idea of what you are going to raise so that the court will be attracted to grant. The reason behind this leave is to put a stop to the old practice. The old practice was of granting demurrer immediately and in most cases the demurrer is really without merit. This is why this was placed in the Rules of Court so that the court will weigh whether “ano ba? Pagbigyan ko ba ito o hindi?” Otherwise, we would be going back to the old system. And the judge told me, “Your arguments are sound, but the trouble is there is nothing in the rules which support you so, we’ll just grant leave.” Wala din. Of course, there was a leave, there was a demurrer, and I opposed and it was denied. But ang issue ko, I’ve been harping on that point for so long. You cannot just say leave, you must tell the court what you will raise. Give us an idea so that the court will be convinced to grant leave. If the court will deny the leave, you file it at your own risk. Now, the 2000 Rules states, “The motion for leave of court to file demurrer to evidence shall specifically state its grounds.” Hindi na puwede yung “we intend to file a demurrer, may we ask for leave” without stating the grounds. At least, sabi ko, I have been correct all along in advocating this. So when I read this in the new rules, I said, “Ay salamat! Tama pala ako all along!” Once you know the philosophy of the law, hindi ka man mawala ba! You can always argue from that point. SEC. 24. Reopening. – At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order granting it. (n)

Section 24 is a new provision. The judge may motu propio or upon motion reopen the proceedings. Actually, reopening of trial is a remedy which is recognized but not found in the rules. Even the rules on civil procedure, there are motions for new trials but you cannot find a

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rule for the re-opening of trial. But the SC has always recognized that there is such a remedy. EXAMPLE: I will rest my case, the trial is finished and the next step is the decision. But after you rest, you have additional evidence discovered for the first time and therefore could not have been presented beforehand. Q: What will you do? Will you file a motion for new trial based on the newly discovered evidence? A: NO, you cannot – wala pang decision! Motion for new trial based on new evidence is proper only after a decision has been made and the same is not yet final and executory. Q: In the example, wala pang decision eh. What is the proper remedy? A: The correct remedy is motion to reopen the trial because there is no judgment yet. Q: On what grounds? A: Justice and equity. This is the only ground for re-opening because there is no specific ground. Q: Now can the court on its own, re-open a trial, civil or criminal? A: YES. This has happened several times. The case has already been submitted for trial, this happened to me several years ago. The court said “before the court renders a decision, the court would like to conduct an ocular inspection and re-enactment of the alleged crime in the place where the crime was committed.” Motu propio, the court ordered the re-enactment. This is an instance of re-opening the trial. This is allowed because this is an inherent power of the court, if it really wants to find out the truth. You cannot find any provision in the rules regulating that kind of remedy. This is allowed without any specific rule except justice and equity. For the first time, reopening of trial in a criminal case is now found in Section 24 of the 2000 Rules. But there is something wrong here. In reopening of trial, you do it before the case is decided. Dito naman, you do it “at any time before the finality of the judgment of conviction.” Anong klase ito?! How can this be? There is already a judgment of conviction and then, you reopen?? I think the correct motion is a new trial. I remember when Galvez was here to lecture on the Rules on Criminal Procedure. He said that somebody in the Supreme Court nakialam dito eh. The original draft was “anytime before judgment there can be re-opening upon motu propio or motion.” But when the new rules came out, it said “at any time before finality of the judgment of conviction.” – dinagdagan ba! The person who changed it must have thought the committee had erred but the change made it even worse. That’s why the committee wrote a letter to the SC to amend this mistake. Now, there are some special laws that are related to the subject of trial and they are considered as part and parcel of the criminal procedure. I am referring to RA 4908, RA 6033, RA 6034 and RA 6035. RA’s 6033, 6034 and 6035 are also known as the Laurel Laws because the author of these laws is Senator Laurel in the 70’s. RA 4908 – AN ACT REQUIRING JUDGES OF COURTS TO SPEEDILY TRY CRIMINAL CASES WHEREIN THE OFFENDED PARTY IS A PERSON ABOUT TO DEPART FROM THE PHILIPPINES WITH NO DEFINITE DATE OF RETURN RA 6033 – AN ACT REQUIRING COURTS TO GIVE PREFERENCE TO CRIMINAL CASES WHERE THE PARTY OR PARTIES INVOLVE ARE INDIGENTS RA 6034 – AN ACT PROVIDING TRANSPORTATION AND OTHER ALLOWANCES FOR INDIGENT LITIGANTS. RA 6035 – AN ACT REQUIRING STENOGRAPHERS TO GIVE FREE TRANSCRIPT OF NOTES TO INDIGENT AND LOW INCOME LITIGANTS AND PROVIDING A PENALTY FOR THE VIOLATION THEREOF

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So that takes care of Rule 119.

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