Notes in Criminal Procedure - Rules 110-127 (Final)

NOTES IN CRIMINAL PROCEDURE (Atty. T. Salvador III - Lecturer) Jurisdiction o In criminal procedure, venue is jurisdictional - the place where the crime was committed is the place where the action is to be instituted. It cannot be the subject of stipulation or agreement, and is not subject to waiver. Rule 4 does not apply in criminal cases. 1. The venue for purposes of instituting an action cannot be the subject of stipulation, or agreement, and is not subject to waiver. What can be transferred is the “venue of trial,” but only with the consent of the Supreme Court.1 2. But if the crime or offense is a continuing or transitory offense, the action can be instituted in the place or any of the places where the elements or the ingredients of the crime were committed. o Is Sec. 152 of Rule 110 inconsistent with the rule that venue is jurisdictional? No, it is not inconsistent. The basic provision of Sec. 15 says that the action can be instituted in the place or any of the places where the elements or the ingredients of the crime were committed because there are certain offenses which you call “continuing offenses” or “transitory offenses,” i.e. crimes which can be committed in one, or two, or three places. 1. Where will you file an action for violation of B.P. 22 if you were issued a check in Manila, but the check bounced upon deposit in a bank in Makati? You can file it in the place where the check bounced, i.e. in Makati, or in the place where the check was issued or drawn, i.e. in Manila, because violation of B.P. 22 is a transitory offense. But the thing is, it is easier to prove that the check bounced in Makati because at the dorsal portion of the check, you will see that there is a stamp of the bank that such check was received and the reason why it bounced. o Where will you file violations of the penal provisions of the Labor Code, Corporation Code, and Agrarian Reform Law? Violations of the penal provisions of laws have to be filed with the Office of the Prosecutor – because it is the Office of Prosecutor which determines “probable cause” for purposes of filing the action. 1. There are laws which seem to be non-penal laws, e.g. Labor Code, Corporation Code, Agrarian Reform Law, but for as long as there is a penal provision, the case will have to be filed with the Office of the Prosecutor.

Transfer of venue of trial is done for the protection of the witnesses both for the prosecution and for the accused, and for the orderly administration of justice. 1

2

Rule 110, Sec. 15. Place where action is to be instituted. — (a) “Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed.”

jjsummer&rain#foursisons©2015-0135

Jurisdiction of Criminal Courts o Under RA No. 7691, for purposes of jurisdiction, the basis is the number of years of imprisonment, regardless of the amount of fine or accessory penalty. 1. If the crime or offense is punishable with imprisonment not exceeding six (6) years, jurisdiction lies with the MeTC or the MTC, as the case may be, regardless of the amount of fine or accessory penalty. 2. If the crime or offense is punishable with imprisonment exceeding six (6) years, jurisdiction lies with the RTC, regardless of fine or accessory penalty. o Under Administrative Circular 09-94, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court. 1. If the crime or offense is punishable by a fine not exceeding four thousand pesos (PhP 4,000), jurisdiction is with the MeTC or MTC, as the case may be. 2. If the crime or offense is punishable by a fine exceeding four thousand pesos (PhP 4,000), jurisdiction is with the RTC. o Do we need to distinguish whether the crime is committed within or outside of Metro Manila to determine the court which has jurisdiction over the crime? No, there is no need to distinguish whether the crime is committed within or outside of Metro Manila. The crime of rape committed in Metro Manila does not make the crime less of a rape when committed in Isabela. A crime would not change even if it is committed within or outside of Metro Manila. o Do we need to distinguish whether the crime is committed within or outside of Metro Manila “for purposes of institution of an action?” Yes, because the distinction of whether the crime is committed within or outside of Metro Manila is material when we talk of “institution of an action.” You will have to consider whether the crime is committed in a chartered city or not. Jurisdiction of the Ombudsman o “Under Section 163 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed by any public officer or employee during his/her tenure.” (Samson vs. Restrivera, 2011) o “Section 194 of R.A. No. 6770 also states that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which are unfair or irregular. Thus, even if the complaint concerns an act of the public official or employee which is not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from the performance of official duty. Since the law does not distinguish, neither should we.” (Id.)

RA No. 6770, Sec. 16. Applicability. – “The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.”

3

RA No. 6770, Sec. 19. Administrative Complaints. – “The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: xxxx (2) Are xxxx unfair xxxx; xxxx (6) Are otherwise irregular xxxx.”

4

jjsummer&rain#foursisons©2015-0136

o Is the Office of the Ombudsman a court? No, the Office of the Ombudsman is not a court, nor a quasi-court. o Can the Office of the Ombudsman prosecute cases within the jurisdiction of the regular courts? Yes, the Ombudsman can prosecute cases as long as it involves a public officer, even if the case falls before the regular courts. Besides, all prosecutors can be appointed as “Ombudsman Prosecutors.” 1. “The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11(4c) of RA 6770.” (Castro vs. Deloria, 2009) 2. “Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.” (Id.) o Can the Ombudsman initiate an investigation even without a complaint? Yes, the Ombudsman can initiate a complaint even without a complaint. Under Section 13 (1),5 Article XI of the 1987 Constitution, the Ombudsman can investigate on its own or on complaint [even an anonymous complaint] by any person any act or omission of any public official or employee when such act or omission appears to be illegal, unjust, or improper. This investigation is not for purposes of preliminary investigation, but is done only to determine, initially, whether or not there is basis to later file a case against you. 1. Can the Office of the Ombudsman conduct preliminary investigation? Yes, the Office of the Ombudsman can conduct preliminary investigation – hence it can file an information if it finds probable cause. 2. Can the Office of the Prosecutor initiate an investigation even without a sworn complaint? No, the Office of the Prosecutor cannot initiate an investigation without a sworn complaint.

Art. XI, Section 13. “The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.” 5

jjsummer&rain#foursisons©2015-0137

Jurisdiction of the Sandiganbayan o The general rule is that a public official must (1) occupy a position with SG-27 and higher, and (2) that the crime or offense must have been committed in relation to his office, i.e. without the office, the crime or offense would not have been committed, in order that the Sandiganbayan could exercise jurisdiction over him. The exceptions are as follow: 1. Even if the accused public officer occupies a position with an SG lower than 27, but if the position that he occupies falls under the enumeration of PD No. 1606 – he still falls under the jurisdiction of the Sandiganbayan. 2. A private individual charged together with an SG-27 public officer or higher, or with one of the persons enumerated under PD No. 1606 also falls under the jurisdiction of the Sandiganbayan. o Can ordinary offenses, i.e. not cases for graft, bribery, plunder, still fall within the jurisdiction of the Sandiganbayan? Yes, if the accused occupies a position with SG27 and higher, and it was committed in relation to the office. “The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.” (Serana vs. Sandiganbayan, 2008). o Does the crime of rape committed by an incumbent mayor fall under the jurisdiction of the Sandiganbayan? No, the crime of rape committed by an incumbent mayor does not fall under the jurisdiction of the Sandiganbayan because such crime is not an offense committed in relation to his office. You do not need to be a mayor to commit rape. 1. “In Montilla vs. Hilario (1951), cited in the case of Sanchez vs. Demetriou (1993), the court described the "offense committed in relation to the office" as follows: “The relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code.” 2. “Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator, being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime.” (Id.) o Can a public officer not occupying a position with SG-27 and higher who commits a crime in relation to his office fall under the jurisdiction of the Sandiganbayan? Yes, a public officer not occupying a position with SG-27 and higher can still fall under the jurisdiction of the Sandiganbayan if the position that he occupies falls under the enumeration of PD No. 1606 – the law that determines the jurisdiction of the Sandiganbayan. 1. “It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People, we held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes

jjsummer&rain#foursisons©2015-0138

other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.” (Serana vs. Sandiganbayan, 2008). 2. “Compensation is not an essential element of public office. At most, it is merely incidental to the public office. Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.” (Id.) o Should a private person be impleaded in a complaint against a public officer and tried in the Sandiganbayan, or should the private person be charged separately before the regular courts? A private individual charged together with an SG-27 public officer or higher, or with one of the persons enumerated under PD No. 1606 must be indicted and tried before the Sandiganbayan. 1. As long as there is an SG-27 public officer or higher impleaded in the complaint, even private persons, and public officers with SG lower than 27 must be indicted and tried together with the SG-27 public officer in the Sandiganbayan. 2. “In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.” (PD No. 1606, Sec. 4, par. 5). Office of the Special Prosecutor o The Office of the Special Prosecutor (“OSP”) is under the Office of the Ombudsman. The Office of the Ombudsman, through the OSP, prosecutes a case before the Sandiganbayan – the OSP is the fiscal or prosecutor when it comes to the Sandiganbayan. 1. The OSP’s power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. However, Ombudsman may direct the Special Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of RA 6770. o Can the Special Prosecutor, after there is an order of amendment of the information from the Ombudsman, file the information with the Sandiganbayan without the approval of the Ombudsman? No, the Special Prosecutor cannot file an information without the approval of the Ombudsman for the simple reason that the power to file an information is lodged with the Ombudsman, and not with the OSP. 1. “The OSP is merely a component of the Office of the Ombudsman and may only act under the supervision and control, and upon authority of the Ombudsman.” (Lazatin vs. Desierto, 2009). 2. “The power to prosecute carries with it the power to authorize the filing of informations, which power had not been delegated to the OSP.” (Perez vs. Sandiganbayan, 2006).

jjsummer&rain#foursisons©2015-0139

o What is a Hold-Departure Order (“HDO”)? An HDO can only be issued by an RTC in accordance with SC Circular No. 39-97 which provides that: “Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.” When there is an HDO, you cannot depart from the PH. However, you can still file a “motion to travel” – which if granted, you will be allowed to do so. 1. “Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically provides that hold-departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts. Clearly then, criminal cases within the exclusive jurisdiction of first level courts do not fall within the ambit of the circular, and it was an error on the part of respondent judge to have issued one in the instant case.” (Mondejar vs. Buban, 2001) o Can an Executive Judge of the RTC issue an HDO in connection with a case pending in the MTC? No, an Executive Judge of the RTC cannot issue an HDO in connection with a case pending in the MTC, because the case falls under the jurisdiction of the MTC. o Can an Executive Judge of the RTC issue an HDO in connection with a case pending in another RTC Branch? No, an Executive Judge of the RTC cannot issue an HDO in pending in another RTC Branch. It is only the presiding judge of the court where the case is pending who can issue an HDO. o Can the Sandiganbayan issue an HDO? Yes, the Sandiganbayan can issue an HDO because once an information is filed with the Sandiganbayan, an HDO is automatically issued – this is the first order of the day; while in the RTC, an HDO is not automatic. You have to apply for it subject to the discretion of the court. o Can an HDO be lifted? Yes, an HDO can be lifted. But in the Sandiganbayan, even if an HDO can be lifted, the Sandiganbayan does not lift it. What is provided at the bottom portion of an HDO issued by the Sandiganbayan is that you can apply for a “motion to travel.” 1. In the Sandiganbayan, as long as your case is pending, you have an HDO. Every time you want to travel, you must first file a “motion to travel,” and you post a bond. 2. In the RTC, you can also apply for a “motion to travel,” but the HDO can be lifted if the court sees no reason that an HDO should remain. o What cases are under the jurisdiction of the Ombudsman? How about of the Department of Justice (“DOJ”)? 1. The Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and has authority to take-over such case at any stage from any investigative agency; while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code. 2. “Congress itself acknowledged the significant role played by the Office of Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said law gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage, from any investigatory agency, the investigation of such cases. This power to take over a case at any time is not given to other investigative bodies. All this means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power.” (DOJ vs. Liwag, 2005).

jjsummer&rain#foursisons©2015-0140

3. The court further held: “Clearly, therefore, while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code, this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the Ombudsman to investigate complaints specifically directed against public officers and employees. The Office of the Ombudsman is a constitutional creation. In contrast, the DOJ is an extension of the executive department, bereft of the constitutional independence granted to the Ombudsman.” (Id.)

jjsummer&rain#foursisons©2015-0141

RULE 110: Prosecution of Offenses o Sufficiency of complaint or information. — “A complaint or information6 is sufficient if: 1. It states the name of the accused;7 2. The designation of the offense given by the statute;8 3. The acts or omissions complained of as constituting the offense;9 4. The place where the offense was committed.10 5. The approximate date of the commission of the offense;11 and 6. The name of the offended party.12 When an offense is committed by more than one person, all of them shall be included in the complaint or information.” (Rule 110, Sec. 6) o Can an information contain more than one (1) offense? No, as a general rule, an information cannot contain more than one (1) offense. One information for every offense committed. Every information will have to be proven in court. 1. Rule 110, Sec. 13: “A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.” 2. Rule 120, Sec. 3: “When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.” o What is your remedy if the information contains more than one (1) offense? Your remedy is to file a “motion to quash” under Rule 117. One of the grounds for a motion to quash Rule 110, Sec. 4. “An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.” 6

7 Rule 110, Sec. 7. “The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name [“John Doe” for male, “Jane Doe” for female] with a statement that his true name is unknown.

If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record.” (Annotation supplied). Rule 110, Sec. 8. “The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.” 8

9 Rule 110, Sec. 9. “The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.”

Rule 110, Sec. 10. “The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification.” 10

Rule 110, Sec. 11. “It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.”

11

Rule 110, Sec. 12. “The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. 12

(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law.”

jjsummer&rain#foursisons©2015-0142

is that the information contains more than one (1) offense, unless the offense charged is a complex crime, i.e. a single punishment for various offenses is prescribed by law. o Can the information be amended? What is the reference point? Yes, an information can be amended under Rule 110, Sec. 14. The reference point is the “plea.” 1. Before plea, a complaint or information can be amended, both “in form” and “in substance,” without leave of court. a. Downgrading of the nature of the offense can only be made before plea upon motion, with leave of court, and with notice to the offended party. b. Exclusion or removal of any accused from the complaint or information must also be made before plea, upon motion, with leave of court, and with notice to the offended party. 2. After plea, a complaint or information can only be amended, with leave of court, “in form” for as long as such amendment will not prejudice the rights of the accused. a. If the nature of the defense of the accused will vary even if the amendment is a matter of form; or if by reason of the amendment, the offense was made graver, then it will prejudice the rights of the accused. o Substitution of Information (Rule 110, Sec. 14, par. 3): “If it appears at any time 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 119,13 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.” 1. This is not amendment. This is a situation where an information that has already been filed will be replaced by a new information if the prosecution is convinced that they will be unable to prove the previously filed information for as long as the accused will not be placed in double jeopardy.

Rule 119, 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.” 13

jjsummer&rain#foursisons©2015-0143

RULE 111: Prosecution of Civil Action o Once a criminal action is instituted, the civil aspect arising from the offense charged is likewise instituted, unless the offended party waives the civil action, i.e. unilateral relinquishment of the civil aspect; or reserves the right to institute it separately, but you have to reserve at any time before the prosecution commences its presentation of evidence taking into consideration the circumstances of the case; or institutes the civil action prior to the criminal action. o Can the reserved right to institute the civil aspect of the crime be proceeded by the court side-by-side with the criminal aspect? No, the civil case must wait after the criminal case is terminated, i.e. fully completed. o Can you reserve the right to institute the civil aspect in a BP22 case? No, you cannot reserve the right to institute the civil aspect in a BP22 case.14 o Can you file the civil aspect in a BP22 case ahead of the criminal case? Yes, but the very moment that the criminal case is filed, the civil case is suspended (with an option to consolidate) in whatever stage – the law has preference for criminal cases over civil cases. 1. Consolidation of the criminal aspect and the civil aspect of the same delict only happens when the civil action is instituted prior to the criminal case. You do not reserve the right to institute the civil action, and then eventually ask for its consolidation with the criminal case. 2. The evidence so far presented in the civil case can be reproduced in the criminal case subject to cross-examination. o What is a prejudicial question? A prejudicial question is a question that is determinative of the guilt or innocence of the accused. The issue which is determinative of the guilt or innocence of the accused must be resolved in the civil case, not in the criminal case – it is for this reason that the criminal case must be suspended. The rationale for the suspension on the ground of a prejudicial question is to avoid conflicting decisions. Please take note that the civil action must have been instituted ahead of the criminal case. 1. “For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal.” (Reyes vs. Rossi, 2013) 2. “It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.” (Id.)

Rule 111, Sec. 1 (b), 1st par. “The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.” 14

jjsummer&rain#foursisons©2015-0144

o Can an action for rescission of sale be a prejudicial question? No, rescission of contract is not a prejudicial question. The mere issuance of a worthless check was already the offense in itself. 1. “The rescission of a contract of sale is not a prejudicial question that will warrant the suspension of the criminal proceedings commenced to prosecute the buyer for violations of the Bouncing Checks Law (Batas Pambansa Blg. 22) arising from the dishonor of the checks the buyer issued in connection with the sale.” (Id.) 2. “The issue in the criminal actions upon the violations of Batas Pambansa Blg. 22 is, therefore, whether or not Reyes issued the dishonored checks knowing them to be without funds upon presentment. On the other hand, the issue in the civil action for rescission is whether or not the breach in the fulfilment of Advanced Foundation’s obligation warranted the rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced Foundation would be found to have committed material breach as to warrant the rescission of the contract, such result would not necessarily mean that Reyes would be absolved of the criminal responsibility for issuing the dishonored checks because, as the aforementioned elements show, he already committed the violations upon the dishonor of the checks that he had issued at a time when the conditional sale was still fully binding upon the parties.” (Id.) 3. “The pendency of the civil case does not bar the continuation of the proceedings in the preliminary investigation on the ground that it poses a prejudicial question. Considering that the contracts are deemed to be valid until rescinded, the consideration and obligatory effect thereof are also deemed to have been validly made, thus demandable. Consequently, there was no failure of consideration at the time when the subject checks were dishonored.” (Id.) o Does the daily interest rate of 5% of the subject checks, being contra bonos mores and hence null and void, constitutes a prejudicial question in a BP22 case? No, the interest rate does not pose a prejudicial question. 1. “Whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued.” (Sps. Jose vs. Sps. Suarez, 2008). o Where do you a file a motion to suspend proceedings on the ground of prejudicial question? You can file the motion to suspend proceedings before the Office of the Prosecutor conducting preliminary investigation; or in court where the criminal case is pending at any time before the prosecution rests its case.15

Rule 111, Sec. 6. Suspension by reason of prejudicial question. — “A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.”

15

jjsummer&rain#foursisons©2015-0145

RULE 112: Preliminary Investigation o What is a preliminary investigation? A preliminary investigation is a procedure by which the prosecutor conducts an investigation to ascertain whether there is probable cause to believe that a crime has been committed. All that the law requires is probability, hence the quantum of “proof beyond reasonable doubt” does not yet apply. 1. What criminal cases would require preliminary investigation? Crimes or offenses where the penalty of imprisonment is at least four (4) years, two (2) months, and (1) day, regardless of the amount of fine, require preliminary investigation. Cases where the penalty is less than the abovementioned period of imprisonment do not need to undergo preliminary investigation. 2. The Office of the Prosecutor is a very powerful office, because without them filing the information, there is no criminal case. If you become a lawyer, and your client is the respondent, the best way is to end the case at the level of the prosecutor. Do not dare go to trial if you can end the case at the level of the prosecutor – because once the case is filed in court, “sakit na ng ulo yan,” e.g. warrant of arrest, bail bond, HDO, etc. o Can the DOJ conduct preliminary investigation and thereafter file an information? Yes, the DOJ prosecutors can be directed by the Secretary of Justice to conduct preliminary investigation and file an information. 1. How about the rule that “venue is jurisdictional” in criminal cases? The DOJ’s power is national in scope, so any crime committed within the PH can be taken cognizance of, especially the controversial cases. o Can an MTC or MeTC Judge conduct preliminary investigation? No, an MTC or MeTC judge can no longer conduct preliminary investigation by virtue of AM No. 05-8-26SC which amended Rules 112 and 114 of the Revised Rules on Criminal Procedure by removing the conduct of preliminary investigation from judges of the first level courts. o Where will you file an information for a crime, which requires preliminary investigation, committed in a chartered city? How about those cases which do not require preliminary investigation? How about cases subject of summary procedure? 1. All cases committed in a chartered city, whether or not16 requiring preliminary investigation, or subject to summary procedure, i.e. a crime where the penalty does not exceed six (6) months, must be filed with the Office of the City Prosecutor. Under the second sentence of Sec. 1 (b) of Rule 110, an information for crimes or offenses committed in Manila and in other chartered cities, shall be filed with the Office of the Prosecutor, unless otherwise provided in the cities’ charters. o Where will you file an information for a crime, which requires preliminary investigation, committed outside of a chartered city? How about those cases which do not require preliminary investigation? How about cases subject of summary procedure? 1. In cases requiring preliminary investigation, the information must be filed with the Office of the Prosecutor.

Under the Local Government Code, crimes or offenses the penalty of which does not exceed one (1) year imprisonment require prior barangay conciliation. 16

jjsummer&rain#foursisons©2015-0146

2. In cases not requiring preliminary investigation, and in those cases subject to summary procedure, you have two (2) options, i.e. you can file it with the Office of the Prosecutor, or you can directly file it with the MTC (direct filing).17 o Do all cases falling within the jurisdiction of the RTC require preliminary investigation? Yes, all cases falling within the jurisdiction of the RTC require preliminary investigation before it is filed with the court. 1. Since the jurisdiction of the RTC is over criminal cases the penalty of which exceed imprisonment of six (6) years, it is automatic that all criminal cases cognizable by the RTC require preliminary investigation – it being required for cases punishable by imprisonment of at least four (4) years, two (2) months, and one (1) day. o Do all cases falling within the jurisdiction of the MTC require preliminary investigation? No, not all cases falling within the jurisdiction of the MTC require preliminary investigation before it is filed with the court. 1. Since preliminary investigation is required only for cases punishable by imprisonment of at least four (4) years, two (2) months, and one (1) day, and some cases falling under the jurisdiction of the MTC are not punishable by the aforementioned period, then not all cases falling within the jurisdiction of the MTC require preliminary investigation. Duties of the Prosecutor o It is the public prosecutor’s duties to conduct preliminary investigation, under Rule 112, Sec. 3; to prosecute, under Rule 110, Sec. 5; and to conduct inquest, under Rule 112, Sec. 6. Duty to Conduct Preliminary Investigation o Let us say that you are a lawyer, and a client comes to you to ask for help on filing a criminal case for robbery. Upon seeing the merits of the case, you then prepare a complaint-affidavit duly subscribed and sworn to by the complainant before any public prosecutor or government official authorized to administer oath. Only in the absence or unavailability of the aforementioned persons can you appear before a notary public. o You now have a complaint-affidavit duly sworn to by the complainant – which will be filed with the Office of the Prosecutor, accompanied by payment for filing fees. The Office of the Prosecutor will assess you a minimum fee for the processing of your complaint. The case will then be raffled. 1. For purposes of criminal cases, actual damages are not assessed filing fees, except a complaint for violation of BP 22 – because for BP 22, actual damages, which is the value of the check, is assessed filing fees. o Upon raffling of the case, it gets to be assigned to, let us say, an Assistant City Prosecutor who then issues a subpoena together with the complaint-affidavit. 1. Is the proper service of the subpoena and the complaint-affidavit necessary for the Office of the Prosecutor to acquire jurisdiction over the person of the respondent? No, proper service of the subpoena is not necessary to acquire jurisdiction over the respondent. “If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the

Why the direct filing with the MTC? Jurisdiction of the MTC is over cases not exceeding imprisonment of six (6) years; and since the case does not require preliminary investigation, i.e. its period of imprisonment is less than four (4) years, two (2) months, and one (1) day, it is the MTC which has jurisdiction over the case. 17

jjsummer&rain#foursisons©2015-0147

investigating officer shall resolve the complaint based on the evidence presented by the complainant.” [Rule 112, Sec. 3 (d)]. 2. Preliminary investigation is only a statutory right. Even without a preliminary investigation, the case will proceed – this is what you will wish for if you are the complainant. It is a wrong advice for you to tell your client, “magtago ka muna, huwag mong sagutin,” because the proper service of subpoena is not necessary. With or without a counter-affidavit, the Assistant Prosecutor can come up with a resolution. “Wag mong pagtaguan yan. Pinakamagaling, sumagot ka.” o The respondent within ten (10) days from receipt of the subpoena with the complaintaffidavit shall submit his sworn counter-affidavit and that of his witnesses. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. 1. The minimum requirement of law to say that there is preliminary investigation is that a subpoena and complaint-affidavit have been served and the respondent is given ten (10) days to file a counter-affidavit. However, in practice and depending on the leeway given by the prosecutor, the complainant may file a reply-affidavit, while the respondent may file a rejoinder-affidavit, and so forth, and so on. 2. When you talk of “no preliminary investigation” being conducted, the process that is followed is only up to Sec. 3 (a) of Rule 112.18 The subpoena and the complaint-affidavit will not be issued by the Assistant Prosecutor. Forget about the counter-affidavit. The Assistant Prosecutor prepares a resolution and makes his recommendation which will then be elevated to the City or Provincial Prosecutor. o After a counter-affidavit has been filed, the Assistant Prosecutor can now prepare a resolution and make his recommendation which will then be elevated to the City or Provincial Prosecutor. 1. If his recommendation is to file the complaint in court, he prepares an information. 2. If his recommendation is to dismiss the complaint, no information is prepared. o Within five (5) days from the Assistant Prosecutor’s resolution, he shall forward the record of the case to the City or Provincial Prosecutor or Chief State Prosecutor who shall then act on the resolution within ten (10) days from receipt thereof and shall immediately inform the parties of such action. 1. If the City or Provincial Prosecutor agrees with the recommendation to file the complaint in court, he approves the resolution, and signs the information – the resolution is served upon the parties and the information is filed in court. 2. If the City or Provincial Prosecutor approves the recommendation of dismissal, the resolution will be released to the parties. 3. If the City or Provincial Prosecutor does not agree to the recommendation of dismissal of the Assistant Prosecutor, he can on his own prepare an information and file the same in court, or he can require another Assistant Prosecutor to prepare an

18

Rule 112, Sec. 3. Procedure. — “The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.”

jjsummer&rain#foursisons©2015-0148

information and file the same in court without conducting another preliminary investigation. o Can an Assistant Prosecutor, upon finding of the existence or non-existence of probable cause, file or dismiss the case? No, he cannot file nor dismiss the case on his own. An Assistant Prosecutor can only act if his recommendation is approved by the City or Provincial Prosecutor. An Assistant Prosecutor’s recommendation has no value if not approved by the City or Provincial Prosecutor. There is no exception to this rule. o Where do you go if you do not agree with the finding of the City or Provincial Prosecutor? An aggrieved party may go to the Department of Justice (“DOJ”) under DOJ Circular No. 70, Sec. 4.19 1. The petition for review must be filed within a period of fifteen (15) days from receipt of the resolution or of the denial of the motion for reconsideration if one has been filed within fifteen (15) days from receipt of the assailed resolution. 2. “If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.” [Rule 112, Sec. 4, par. (5)]. 3. Only decisions or resolutions that went through preliminary investigation or reinvestigation can be reviewed by the DOJ. If the case was not subjected to preliminary investigation, you cannot elevate it to the DOJ, e.g. a BP 22 case is subject to summary procedure - it is not subject to preliminary investigation, hence you cannot elevate it to the DOJ for review. o Does the record of preliminary investigation form part of the record of the case? No, the record of the preliminary investigation does not form part of the record of the case. Only the affidavits and the counter-affidavits, together with the information, will form part of the records elevated to the court.20 Duty to Prosecute o As a general rule, all criminal actions shall be prosecuted under the “control and direction of the public prosecutor.” No proceedings in trial shall proceed without the presence of the public prosecutor. 1. If the schedule of the public prosecutor does not permit, however, or in case there are no public prosecutors, a private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case, subject to the approval of the court.

DOJ Circular No. 70, Sec. 4: “An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution.” 19

Rule 112, Sec. 7 (b). Record of preliminary investigation. —“The record of the preliminary investigation conducted by a prosecutor or other officers as may be authorized by law shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party.” 20

jjsummer&rain#foursisons©2015-0149

2. Once so authorized, the private prosecutor shall continue to prosecute the case until the termination of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. o Should the presentation of evidence by the defense be declared null and void in the absence of the public prosecutor despite the fact that the public prosecutor has already completed the presentation of evidence of the prosecution? Yes, the presentation of the evidence of the defense is null and void it being conducted in the absence of the public prosecutor. 1. Even though the public prosecutor has completed the presentation of the evidence of the prosecution, it is he who should raise objections to the presentation of the evidence of the defense, i.e. whether the evidence presented is admissible or not. Hence, his presence is indispensable. Any proceedings conducted in the absence of the public prosecutor is null and void. 2. “Respondents act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a private prosecutor designated for the purpose is thus a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses. Respondents’ intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be, cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State.” (State Prosecutor vs. Judge Ayco, 2005). o Can a minor institute an action by himself? Yes, a minor, by himself, can institute an action involving seduction, abduction and acts of lasciviousness. “The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness, independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so…” [Rule 110, Sec. 5, par. (4)]. 1. “Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided…” (Id.) o In the crimes of adultery and concubinage,21 the rule is you always have to implead not only the offending spouse, but also the paramour, unless of course, the offenders have been pardoned by the offended party, or the offended party consented to the crime. 1. The requirement that both the offending spouse and the paramour be impleaded will not apply if one of the offenders has died, or that the paramour is not aware that there is in fact a pre-existing marriage. o In the crime of defamation22 in connection with CASAA,23 only the offended party can institute the action.

Rule 110, Sec. 5, par. (2). “The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.” 21

Rule 110, Sec. 5, par. (5). “No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.” 22

College of Arts and Sciences Alumni Association Food Center, UP Diliman, Q.C. . “CASAA” stands for the private crimes of: “Concubinage, Adultery, Seduction, Abduction and, Acts of Lasciviousness.” 23

jjsummer&rain#foursisons©2015-0150

Duty to Conduct Inquest o “A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducted.” (Leviste vs. Alameda, 2010). o “Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court.” (Id.) o An inquest only applies when a person is arrested without a warrant. It is done not to determine probable cause. The purpose of an inquest is to determine if the suspect (not yet an accused), i.e. the person arrested, should be detained, if the evidence against him is strong, or should be released for further preliminary investigation.

jjsummer&rain#foursisons©2015-0151

RULE 113: Arrest o “Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. [It] is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.” (Rule 113, Secs. 1 and 2) o Can a warrant of arrest be applied for in anticipation of a commission of a crime? No, a warrant of arrest cannot be applied for in anticipation of a commission of a crime. But a search warrant can be applied for if there is probable cause for its issuance. o Arrest with Warrant: Let us say that you were arrested by the police armed with a warrant of arrest – which means that there is already an information filed in court, which further means that there is already a determination of probable cause. 1. You will then be brought to the nearest police station where you will be detained - you will not be placed on inquest since an inquest only applies to warrantless arrests. Your lawyer can file an application for bail in the court where your case is pending. o If an information which requires preliminary investigation is filed in court, the court has the following options: 1. The court shall issue a warrant of arrest if the judge, upon personal evaluation of the resolution of the prosecutor and its supporting evidence, finds probable cause to place the accused under custody; or 2. The court may immediately dismiss the case if the evidence on record clearly fails to establish probable cause to hold the accused for trial (judicial determination of probable cause); or 3. The court may, in case of doubt on the existence of probable cause, require a hearing for presentation of further evidence to determine if there exists a probable cause to hold the accused for trial (judicial determination of probable cause). o If an information which does not require preliminary investigation is filed in court, the court has the following options: 1. The court shall issue a warrant of arrest if the judge, upon personal evaluation of the resolution of the prosecutor and its supporting evidence, finds probable cause to place the accused under custody; or 2. The court may issue summons, instead of a warrant of arrest, if the judge is satisfied that there is no probable cause to place the accused under custody; or 3. The court may immediately dismiss the case if the evidence on record clearly fails to establish probable cause to hold the accused for trial (judicial determination of probable cause); or 4. The court may, in case of doubt on the existence of probable cause, require a hearing for presentation of further evidence to determine if there exists a probable cause to hold the accused for trial (judicial determination of probable cause).

jjsummer&rain#foursisons©2015-0152

o If an information which falls under summary procedure is filed in court, the court has the following options: 1. The court shall issue an order, not a warrant of arrest nor summons, requiring the accused to file his counter-affidavit within a period of ten (10) days. The only instance where a warrant of arrest will be issued is when the accused fails to appear whenever required by the court; or 2. The court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. o Warrantless Arrest:24 Let us say that you were caught by the police, without a warrant of arrest, in a raid conducted in a bar. You will then be brought to the nearest police station where your arrest will be booked. The arresting officer then will prepare a sworn arrest report (narrative report). 1. The arresting officer will then bring you (suspect), together with the sworn arrest report, to an inquest prosecutor who will, in your presence, examine the records. 2. The inquest prosecutor, upon examination of the records, can order you to be detained if the evidence against you is strong, or released for further preliminary investigation if the evidence is not strong.25 o Can you file a motion for reconsideration of the inquest prosecutor’s order of detention? How about a petition for review? No, you cannot file a motion for reconsideration or a petition for review of the inquest prosecutor’s order of detention. 26 1. In cases subject of inquest, you should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary because only decisions or resolutions of the City or Provincial Prosecutor that went through preliminary investigation or re-investigation can be reviewed by the DOJ Secretary. o If the inquest prosecutor orders your detention, he will prepare an information to be approved by the City or Provincial Prosecutor – if approved, it will be filed in court. You now have a number of options: 1. Before the filing of complaint or information in court, you can immediately apply for bail in accordance with Rule 114, Sec. 17 (c)27 since there is already a deprivation of 24

Instances of Lawful Warrantless Arrest: 1. 2. 3. 4. 5.

Rule 113, Sec. 5 (a): “When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;” Rule 113, Sec. 5 (b): “When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;” Rule 113, Sec. 5 (c): “When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.” Rule 113, Sec. 13: “If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him [together with the rescuer] without a warrant at any time and in any place within the Philippines.” Rule 114, Sec. 23, par. (2): “An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.”

The release mentioned herein does not mean dismissal of the case – you are only released for further preliminary investigation, which means that you have to go through the procedure for regular preliminary investigation outlined in Rule 112, Sec. 3. The sworn arrest report will be equivalent to a complaint-affidavit filed by the arresting officer. 25

“The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested person. Notably, the rules on inquest do not provide for a motion for reconsideration. Contrary to petitioner’s position that private complainant should have appealed to the DOJ Secretary, such remedy is not immediately available in cases subject of inquest.” (Leviste vs. Alameda, 2010). 26

jjsummer&rain#foursisons©2015-0153

liberty; or you can avail of preliminary investigation, provided you duly sign a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code – this is for the protection of the police officers because you will be detained without a charge. 2. After the complaint or information is filed in court, you can apply for bail; or within five (5) days from the time you learn of its filing, you can ask for a preliminary investigation by filing a “motion for re-investigation.” For all intents and purposes, you are simply asking for preliminary investigation. What you are praying for in your motion is the return of the records to the Office of the Prosecutor for preliminary investigation in accordance with Rule 112, Sec. 3. o Is the legality of a warrantless arrest jurisdictional? “A warrantless arrest is not a jurisdictional defect and any objection to it is waived when the person arrested submits to arraignment without any objection, as in this case. Accused-appellants are questioning their arrest for the first time on appeal and are, therefore, deemed to have waived their right to the constitutional protection against illegal arrests and searches.” (People vs. Aminola, 2010). 1. “An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case.” (Rule 114, Sec. 26).

Rule 114, Sec. 17 (c): “Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held.” 27

jjsummer&rain#foursisons©2015-0154

RULE 114: Bail o “Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety,28 property bond,29 cash deposit,30 or recognizance.31” (Rule 114, Sec. 1) o Factors to be considered by the court in granting bail - These are some of the factors to be considered by the court to determine whether or not the bail recommended is something which is fair and reasonable: 1. Financial ability of the accused to give bail; 2. Nature and circumstances of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Age and health of the accused; 6. Weight of the evidence against the accused; 7. Probability of the accused appearing at the trial; 8. Forfeiture of other bail; 9. The fact that the accused was a fugitive from justice when arrested; and 10. Pendency of other cases where the accused is on bail. o Bail, matter of right: 1. All cases within the jurisdiction of the MTC, whether before or after conviction for as long as it is not yet final and executory, are bailable as a matter of right. 2. All cases within the jurisdiction of the RTC, except those punishable by death, reclusion perpetua, or life imprisonment, before conviction are bailable as a matter of right. o Bail, matter of discretion: 1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, and none of the enumerated circumstances32 under Rule 114, Sec. 5, par. 3 is present, bail becomes a matter of discretion.

28 Corporate surety or bail bond furnished by a surety (bonding) company accredited by the Supreme Court. If the recommended bail is PhP 100K, you do not post that amount – what you will pay is the premium for the service of the bonding company.

The court allows a property bond subject the requirement that the owner of the property is a resident of the PH, but it is the duty of the accused to cause the annotation of the property bond within a period of ten (10) days from issuance of the order. 29

30

Cash bond in an amount equivalent to the amount of bail recommended.

When you talk of recognizance, there is no money involved. It is simply the character of a person who commits your appearance in court. 31

Rule 114, Sec. 5, par. 3: “If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

32

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.”

jjsummer&rain#foursisons©2015-0155

2. If any of the enumerated circumstances under Rule 114, Sec. 5, par. 3 is present, bail is no longer a matter of discretion – bail shall be denied. (Leviste vs. Court of Appeals, 2010). o Non-bailable offenses:33 1. “It is a misconception that when an accused is charged with the crime of murder, he is not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail to an accused charged with an offense that carries with it the penalty of reclusion perpetua xxx is discretionary on the part of the trial court. In other words, accused is still entitled to bail but no longer "as a matter of right." Instead, it is discretionary and calls for a judicial determination that the evidence of guilt is not strong in order to grant bail. The prosecution is accorded ample opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong.” (San Miguel vs. Maceda, 2007). 2. “Where bail is a matter of right and prior absconding and forfeiture is not excepted from such right, bail must be allowed irrespective of such circumstance. The existence of a high degree of probability that the defendant will abscond confers upon the court no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the other provision that excessive bail shall not be required.” (Id.) 3. “Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8.” (Serapio vs. Sandiganbayan, 2003). 4. Under Rule 114, Sec. 8,34 “there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong. The prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose. When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.” (Id.) o What is your remedy if you were charged with a non-bailable offense and was thereafter detained? Your remedy is to file a “petition for bail” wherein you have to convince the court that the evidence against you is not strong. If the court is convinced that the evidence against you is not strong, the court will release you on bail during the pendency of the action. o What is the nature of proceedings in a “petition for bail?” The proceedings are summary in nature, “meaning such brief and speedy method of receiving and considering the Rule 114, Sec. 7: “No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.” 33

Rule 114, Sec. 8: “At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.” 34

jjsummer&rain#foursisons©2015-0156

evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail.” (Serapio vs. Sandiganbayan, 2003). 1. “The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.” (Id.) o Can there be joint bail hearings in a “petition for bail?” Yes, there can be joint bail hearings. “Joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime.” (Id.) 1. “The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court.” (Id.) 2. “However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner’s petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing.” (Id.) o Can a person detained for a non-bailable offense be released upon issuance of a custody receipt? No, a person detained cannot be released upon issuance of a mere custody receipt. Rule 114, Sec. 3 is explicit in stating that: “No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.” 1. “It is undisputed that accused were charged with a non-bailable offense; that they were released from detention on the basis merely of the Custody Receipt signed by the respondent, which was a clear violation of Section 3, Rule 114 of the Rules of Court which explicitly provides that no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. As a court employee, respondent is cognizant of this requirement as in fact he admitted in his Comment that a motion for temporary release should have been filed in court.” (Orbe vs. Digandang, 2009) o Can the court grant a petition for bail without giving the prosecution the opportunity to be heard or comment? No, the court cannot grant a petition for bail without giving the prosecution an opportunity to discharge its burden of proving that the evidence of guilt against the accused is strong. If the court grants the petition for bail without allowing the prosecution to present its side, the proceedings will be null and void, and any order will also be null and void. 1. “A hearing is indispensable for the court to ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused, in cases where the offense is punishable by death, reclusion perpetua or life imprisonment.” (Domingo vs. Executive Judge, 2003).

jjsummer&rain#foursisons©2015-0157

2. “After hearing, the court’s order granting or refusing bail must contain a summary of the evidence for the prosecution and based thereon, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail may be invalidated because the summary of evidence for the prosecution which contains the judge’s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense.” (Id.) 3. “The manifestation of the prosecutor that he is not ready to present any witness to prove that the prosecution’s evidence against the accused is strong, is never a basis for the outright grant of bail without a preliminary hearing on the matter. A hearing is required even when the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail.” (Id.) o Can you still apply for bail if an accused is already convicted of a non-bailable offense? No, you can no longer apply for bail since there is already a conviction – clearly, the evidence of guilt is strong. o Can you still apply for bail if the conviction for a bailable offense has already become final and executory? No, you can no longer apply for bail after a judgment of conviction has become final and executory.35 You are instead required to serve sentence. 1. But even if there is already a judgment, but before it becomes final and executory, you can apply for probation to be allowed temporary liberty on bail or based on your original bail if you have an existing bail, or you can be released on recognizance. o What happens to a pending case where the accused has suffered the maximum imprisonment prescribed for the offense charged if and when he is held to be liable? The case will not be dismissed, but the accused will be immediately released without prejudice to the continuation of the trial or the proceedings on appeal.36 1. However, in practice, the accused will just change his plea from “not guilty” to “guilty” since he has already served the maximum penalty for the offense charged in order that the proceedings be immediately terminated and he be immediately released. In cases like this, the truth is the offended party can no longer be located that is why the pending case lingered for a number of years. The proper procedure should have been to allow the hearing of the case to be rescheduled at least two (2) or three (3) times, and then file a motion to dismiss on the ground of violation of the accused’s right to speedy trial.

Rule 114, Sec. 24. No bail after final judgment; exception. — “No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, 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.” 35

Rule 114, Sec. 16. Bail, when not required; reduced bail or recognizance. — “No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. 36

A 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, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.”

jjsummer&rain#foursisons©2015-0158

o What happens to an accused who has suffered the minimum imprisonment, without applying the Indeterminate Sentence Law or any modifying circumstance, prescribed for the offense charge if and when he is held to be liable? The case will not be dismissed, but the accused will be released on a reduced bail or upon a recognizance.37 o Where can you apply for bail if upon trial for a non-bailable offense, you were convicted of a bailable offense? The application for bail shall be filed with the appellate court. Rule 114, Sec. 5, par. 1 provides that: “However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.” o Where can you apply for bail as a matter of right if your case is pending in, let us say, Manila RTC Br. 10, and you were arrested in: 1. Tayuman, Manila: You can apply for bail in Manila RTC Br. 10 where the action is pending. The only instance where you can apply for bail in other courts is when the presiding judge of Manila RTC Br. 10 is absent or unavailable.38 2. Calamba, Laguna: You can apply for bail in Manila RTC Br. 10 where the action is pending; or you can apply for bail in any Calamba RTC; or if no RTC judge is available, with any MTC therein. o Where can you apply for bail as a matter of discretion, or recognizance if your case is pending in, let us say, Manila RTC Br. 10, and you were arrested in: 1. Calasiao, Pangasinan: You can only apply for bail in Manila RTC Br. 10 where the action is pending. 2. Calamba, Laguna: You can only apply for bail in Manila RTC Br. 10 where the action is pending.39 o Where can you apply for bail in instances of warrantless arrest? You can apply for bail in the court having jurisdiction over the place where you were arrested40 because venue in criminal cases is jurisdictional – the crime will then be instituted in the place where the crime was committed. o Forfeiture of Bail and Cancellation of Bail: 1. When the accused is required by the court to appear, and he fails to appear despite notice, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Failing to do so, a judgment shall be rendered against the bondsmen for the amount of the bail.41 This is what is provided 37

Id.

Rule 114, Sec. 17 (a): “Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein.” 38

Rule 114, Sec. 17 (b): “Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may be filed only in the court where the case is pending, on trial or appeal.”

39

Rule 114, Sec. 17 (c): “Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held.” 40

Rule 114, Sec. 21. Forfeiture of bail. — “When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as

41

jjsummer&rain#foursisons©2015-0159

for under the Rules. However, in practice, the public prosecutor, upon the absence of the accused, immediately moves for the issuance of a warrant of arrest against the accused and the forfeiture of the bail bond in favor of the government. 2. A bail may be cancelled if there is no need for it anymore. It is automatically cancelled upon acquittal, conviction, or dismissal of the case. It may also be cancelled upon motion if the accused surrenders, or if he dies.42

required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) Produce the body of their principal or give the reason for his non-production; and (b) Explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted.” Rule 114, Sec. 22. Cancellation of bail. — “Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail.”

42

jjsummer&rain#foursisons©2015-0160

RULE 115: Rights of Accused o Is the right against self-incrimination the sole right of the accused? No, the right against self-incrimination is not the sole right of the accused. It can also be invoked by a witness. This right is only limited to testimonial compulsion or acts which are communicative in nature. 1. The difference is that the accused cannot be compelled to sit on the stand; while a witness can be compelled to sit on the stand and only when the incriminating question is asked that his counsel can raise his objection. o Can the right to cross-examination be waived? Yes, the right to cross-examination can be waived, but there must first be an opportunity to cross-examine. o Can the accused avail of a subpoena to secure the attendance of witnesses and production of evidence in his behalf? Yes, the accused can avail of a subpoena as a compulsory process to secure the attendance of witnesses and production of other evidence in his behalf. o There are two (2) kinds of speedy trial: (1) speedy trial under the Rule 115, Sec. 1 (h); and (2) speedy disposition of cases under the Bill of Rights. These are not mutually exclusive – you can use these two at any time for as long as it is available. 1. The right to speedy trial should be invoked at any time before trial. Once trial has started, you can no longer invoke speedy trial; while the right to speedy disposition of cases can be invoked at any time for as long as the case is pending. 2. The right to speedy trial only applies in criminal proceedings; while the right to speedy disposition of cases applies to civil proceedings, judicial, quasi-judicial, or even administrative cases. o How will you know if the right to speedy disposition has already been violated? The court will not dismiss on the ground of violation of speedy trial or speedy disposition of cases if there is an active effort on the part of the prosecution to prosecute. “Jurisprudence dictates that the right is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.” (Coscolluela vs. Sandiganbayan, 2013). o Under Rule 116, Sec. 1 (g) and Rule 118, Sec. 1, arraignment and pre-trial should take place within a period of thirty (30) days from the time the court acquires jurisdiction over the person of the accused, i.e. arrest or voluntary surrender; while under Rule 119, Sec. 6, arraignment to trial should have taken place within a period of eighty (80) days; lastly, under Rule 119, Sec. 2, the period of trial is one hundred eighty (180) days from the first day of trial. The total number of days needed for a case to be disposed of is just two hundred ninety (290) days, i.e. seventy-five (75) days short of a year. This is the mandate of the law. o How come there are cases which are very much alive after one (1) year, five (5) years, ten (10) years, and so on? The delay in the disposition of cases is because of the long list of “exclusions” enumerated under Rule 119, Sec. 3.

jjsummer&rain#foursisons©2015-0161

o Continuance: No continuance (cancellation of hearing) 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. The following factors, among others, shall be considered by a court in determining whether to grant a continuance: 1. 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 2. 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. o Public Trial: A trial is public in the sense that everyone can come to court to attend a hearing for as long as the public is not excluded by the court, but TV networks are not allowed to take videos of the proceedings as it happens. As a general rule, the live TV coverage of a criminal trial is prohibited for reasons of due process. The best that they can do is to take pictures from the back of the courtroom before the trial starts. 1. “Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.” (Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino's Libel Case, 1991). 2. “An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.” (Re: Request for Radio-TV coverage of the Estrada Trial, 2001). 3. An exception to the general rule is the case of the Ampatuans. In said case, the Court made an exemption. It allowed live coverage of the criminal trial, pro hac vice, because of the large number of respondents, the size of the court, the general public interest, etc. (Re. Petition for Radio-TV coverage of the Ampatuan trial, 2011). o Under Rule 115, Sec. 1 (f), a testimony or deposition by a witness taken in another judicial or administrative proceeding involving the same parties and subject matter can be presented as evidence if the witness is dead, unavailable, or no longer resides in the PH, provided there was an opportunity to cross-examine the deponent. This is consistent with Rule 130, Sec. 47 – an exception to the hearsay rule.

jjsummer&rain#foursisons©2015-0162

RULE 116: Arraignment and Plea o Once the information is filed in court, and upon acquisition of jurisdiction over the person of the accused, i.e. by arrest or voluntary surrender, the court shall schedule the accused for arraignment. o Who should appear during arraignment? The accused and his counsel must be present at the arraignment. The accused must personally enter his plea. 1. The private offended party, as a rule, need not appear during arraignment because he is only a witness for the State. An exception is when the court requires the presence of the private offended party for purposes of plea bargaining, i.e. plea of guilt to a lesser offense, determination of civil liability, and other matters requiring his presence. 2. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. o When can you make a “plea of guilty to a lesser offense?” An accused can make a plea of guilty to a lesser offense at any time before trial, provided that the offended party and the public prosecutor consents. 1. The accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. 2. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. o Suspension of Arraignment (Rule 116, Sec. 11): “Upon motion by the proper party, the arraignment shall be suspended in the following cases: 1. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; 2. There exists a prejudicial question; and 3. A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.” o Can an improvident plea be the basis of a conviction? No, an improvident plea, i.e. a plea the consequences of which is not known to the accused, cannot be the basis of a conviction if it is the sole basis of the judgment. 1. “As a general rule, convictions based on an improvident plea of guilty are set aside and the cases are remanded for further proceedings if such plea is the sole basis of judgement. If the trial court, however, relied on sufficient and credible evidence to convict the accused, as it did in this case, the conviction must be sustained, because then it is predicated not merely on the guilty plea but on evidence proving the commission of the offense charged. The manner by which the plea of guilty is made, whether improvidently or not, loses legal significance where the conviction can be

jjsummer&rain#foursisons©2015-0163

based on independent evidence proving the commission of the crime by the accused.” (People vs. Gambao, 2013). o Is a hearing for a plea of guilty to a non-capital offense required? No, a hearing is generally not required for a plea of guilty to a non-capital offense. A hearing is only required if necessary to determine the exact penalty to be imposed on the accused. If the judge knows the penalty, there is no need to conduct a hearing. o Is a hearing for a plea of guilty to a capital offense required? Yes, trial will proceed even if the accused pleads guilty to a capital offense. The court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. o What will happen to the criminal case if the victim dies after the accused was arraigned? The case will proceed. It is only the victim that died – a witness of the state. It is when the accused died that the criminal case shall be dismissed. o Can the trial court appoint a counsel de oficio for purposes of arraignment? For the entire trial? Yes, the trial court can appoint a counsel de oficio for purposes of arraignment and for the duration of the trial. o Can the Court of Appeals appoint a counsel de oficio? Yes, under Rule 122, Sec. 13,43 and Rule 124, Sec. 2,44 the Court of Appeals can appoint a counsel de oficio.

Rule 122, Sec. 13. Appointment of counsel de oficio for accused on appeal. — “It shall be the duty of the clerk of court of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry.”

43

Rule 124, Sec. 2. Appointment of counsel de oficio for the accused. — “If it appears from the record of the case as transmitted that (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio.

44

An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within ten (10) days from receipt of the notice to file brief and he establishes his right thereto.”

jjsummer&rain#foursisons©2015-0164

RULE 117: Motion to Quash o What is the nature of a motion to quash? A motion to quash is directed to an information. If a motion to quash is granted, the consequence is generally the dismissal of the case because if there is no information, then there is no case. o When can you file a motion to quash? A motion for provisional dismissal? As a general rule, you can only file a motion to quash at any time before plea - not before arraignment, but at any time before plea; while in a motion for provisional dismissal, you can file the motion at any time for as long as the case is alive and pending. 1. As an exception to the general rule, a motion to quash can be filed even after plea under the following grounds: (1) lack of jurisdiction over the offense charged, following the basic concept that lack of jurisdiction can be raised at any time even on appeal; (2) the facts charged do not constitute an offense; (3) prescription, and (4) double jeopardy. o Can a motion to quash be made orally before the court? How about a provisional dismissal? No, a motion to quash cannot be made orally. It is required that it be in writing; while in a motion for provisional dismissal, there is no requirement that it be in writing. Most of the time, it is made orally before the court. o Are there grounds provided for by law for a motion to quash? How about for a provisional dismissal? For a motion to quash, the grounds provided for by law are enumerated under Sec. 3 of Rule 117; while in a motion for provisional dismissal, the law does not provide any ground – but please note that a provisional dismissal is a dismissal with the consent of the accused, whether expressly or impliedly. o What is the effect of a grant of a motion for provisional dismissal?45 The grant provisionally dismisses the case, subject to revival within a certain period. The provisional dismissal can only become permanent if the provisionally dismissed case is not revived within the following periods. But please note that the dismissal upon the lapse of the period hereunder is not automatic. There must be an order of dismissal from the court: 1. One (1) year from issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment not exceeding six (6) years, or a fine in any amount of the fine, or both; 2. Two (2) years from issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment of more than six (6) years. o Can an information that was dismissed by virtue of a grant of a motion to quash be refiled? An information that was dismissed by virtue of a grant of a motion to quash can be refiled depending on the ground for the grant. However, if the ground relied upon are prescription of crime, prescription of penalty, or double jeopardy - the information cannot be refiled. The periods pertaining to provisional dismissal do not apply to a case that was dismissed by virtue of a grant of a motion to quash.

Rule 117, Sec. 8. Provisional dismissal. — “A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. 45

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.”

jjsummer&rain#foursisons©2015-0165

o Can a defective information be dismissed outright by the court? No, the court cannot dismiss outright a defective information. If the alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. 1. If the motion to quash is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. 2. But if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment, the motion to quash shall be granted. o Double Jeopardy, requisites of: 1. 2. 3. 4.

That there is a valid complaint or information; That there is a court of competent jurisdiction; That there is a valid arraignment and plea; and That the accused had been acquitted, convicted, or the case against him has been dismissed or terminated without his express consent.

o Double Jeopardy, exceptions to: 1. That there are supervening facts arising from the same act or omission; 2. That the facts constituting the graver charge which became known only after plea; 3. That the plea of guilty to the lesser offense was made without the consent of both the public prosecutor and the private offended party, except when it involves an offense which is necessarily included in the offense charged and the private offended party has been previously notified. o The general rule in criminal cases is that any dismissal prompted by the accused or with the express consent of the accused, will not lead to double jeopardy. The exceptions to this rule are (1) demurrer to evidence, and (2) dismissal on the ground of speedy trial.

jjsummer&rain#foursisons©2015-0166

RULE 118: Pre-Trial o Preliminary Conference: At least three (3) days to five (5) days before the scheduled pretrial, there is a “preliminary conference” before the Clerk of Court.46 Before the Clerk of Court, the parties could make admissions, mark documents, name witnesses, and other matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. Whatever is discussed, or taken up before the Clerk of Court will be minuted and will form part of the records of the pre-trial. o Is pre-trial mandatory in criminal cases? Yes, it is mandatory in criminal cases as provided under Sec. 1 of Rule 118. It is indispensable. o Will the absence of the offended party during pre-trial result to the dismissal of the case? No, the absence of the offended party (witness) in the pre-trial will not result to the dismissal of the case – the pre-trial hearing shall only be cancelled. The consequences of absence during pre-trial under Rule 18 in Civil Procedure will not apply in criminal cases. o Pre-trial Proper: All agreements or admissions made or entered during the pre-trial shall be in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements shall be approved by the court. o Can oral admissions be taken against the accused? No, oral admissions in criminal cases cannot be taken against the accused. For an admission to be taken against the accused, it should be in writing and signed by the accused and counsel. o Pre-trial Order: “After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.” (Rule 118, Sec. 4)

A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures). 46

jjsummer&rain#foursisons©2015-0167

RULE 119: Trial o Order of Trial: The prosecution shall first present evidence to prove the charge, and then the accused may present evidence to prove his defense. 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. 1. When the accused presents an exculpatory defense or self-defense, the order of trial may be reversed subject to the discretion of the court. 2. Upon admission of the 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. o “The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.” (Go vs. People, 2012). o What are the grounds for the conditional examination of witnesses? 1. For the prosecution: “When a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending.” (Rule 119, Sec. 15) 2. For the defense: “The witness is sick or infirm as to afford reasonable ground for believing that he 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.” (Rule 119, Sec. 12). “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…” (Rule 119, Sec. 13). o Can you take deposition under Rule 23 in criminal cases? No, Rule 23 has no application in criminal cases considering that deposition taking for criminal cases is provided for by the Rules on Criminal Procedure, i.e. Rule 119, Secs. 12, 13, and 15. 1. “It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise.” (Go vs. People, 2012). o When to file a demurrer to evidence? In criminal cases, you file the demurrer after the prosecution has “rested” its case, i.e. after the formal offer of evidence is acted upon by the court, whether or not it is accepted, or whether certain evidence rejected or denied by the court. You may file a leave of court to file a demurrer to evidence within five (5) days after the prosecution has rested its case. If the court grants you leave, only then will you file the demurrer to evidence within ten (10) days from notice. 1. In civil cases, you file the demurrer after the plaintiff has “completed” the presentation of his evidence, i.e. after the formal offer of evidence is acted upon by the court, whether or not it is accepted, or whether certain evidence rejected or denied by the court.

jjsummer&rain#foursisons©2015-0168

o Do you need leave of court to file a demurrer to evidence? In criminal cases, you may file a demurrer to evidence with or without leave, but you must live with the consequences. 1. If the demurrer is filed with leave of court, and the demurrer is denied, you could still present evidence. If the demurrer is filed without leave of court, and the demurrer is denied, the court could already render a judgment. 2. In civil cases, there is no need for a leave of court to file a demurrer to evidence. o What is the effect of a grant or denial of a demurrer to evidence in criminal cases? 1. If the demurrer is granted, such grant amounts to an acquittal. The general rule is that an acquittal is a final determination of the case – you cannot file a motion for reconsideration nor an appeal. 2. If the demurrer is denied, the effect of the denial depends on whether the demurrer was filed with leave of court, or without leave of court. You cannot file an appeal or a certiorari until after the termination of the case. o The general rule in criminal cases is that “any dismissal prompted by the accused or with the express consent of the accused, will not lead to double jeopardy.” The exceptions to this rule are (1) demurrer to evidence, and (2) dismissal on the ground of speedy trial. o Can a denial of a demurrer to evidence be the subject of a petition for certiorari or an appeal? No, a denial of demurrer to evidence in criminal cases cannot be the subject of a certiorari or an appeal. (Rule 119, Sec. 23, par. 5). Discharge under the Rule 119, Sec. 17, and Exclusion under the Witness Protection Program47 o Under Rule 119, Sec. 17, the information filed in court includes the name of the accusedto-be-discharged who has been arraigned. The accused files an affidavit to support his application to be discharged as a state witness at any time before the prosecution rests its case. 1. If the application to be discharged as a state witness has been granted, such grant “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.” (Rule 119, Sec. 18) Evidence adduced in support of the discharge shall automatically form part of the trial. 2. “If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.” (Rule 119, Sec. 17, par. 7, 2nd sentence).

47

The requisites under Rule 119, Sec. 17, and under the Witness Protection Program is the same, viz: (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.

jjsummer&rain#foursisons©2015-0169

o Under the Witness Protection Program, the excluded accused will not be included by the DOJ in the information – the excluded accused will not be arraigned. 1. The excluded accused, in case he is subsequently charged because he has changed his testimony, cannot invoke the rule on double-jeopardy. There is nothing that prevents the prosecution from suing the excluded accused because there is no valid information against him filed in a court of competent jurisdiction, no arraignment, and no plea. o Can an uncorroborated testimony of a state witness based on circumstantial evidence be a basis of conviction? No, an uncorroborated testimony based on circumstantial evidence cannot be the basis of a conviction. “Corroboration of the account of the state witness is key. It is in fact a requirement for the discharge of an accused to be a state witness under Section 17, Rule 119 of the Rules of Court that the testimony to be given can be substantially corroborated in its material points.” (People vs. Anabe, 2010). This is the general rule. 1. “The Court is not unaware that as an exception to the general rule requiring corroboration, the uncorroborated testimony of a state witness may be sufficient when it is shown to be sincere in itself because it is given unhesitatingly and in a straightforward manner and full of details which, by their nature, could not have been the result of deliberate afterthought. This exception, however, applies only if the state witness is an eyewitness since the testimony would then be direct evidence.” (Id.) 2. “Where, as here, the state witness is not an eyewitness, the testimony partakes of the nature of circumstantial evidence. The rule on circumstantial evidence thus applies. If the testimony is uncorroborated, it does not suffice. It cannot merit full credence. Again, the rule on circumstantial evidence requires that, among other things, there is more than one circumstance and the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstantial evidence suffices to convict an accused of the crime charged only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person.” (Id.) o Can a criminal case be reopened? Yes, a criminal case can be reopened, motu proprio or upon motion, even if a judgment has been rendered for as long as the motion to reopen is filed within the reglementary period, i.e. before the finality of the judgment of conviction. 1. But if the party has not yet submitted his formal offer of evidence, there can be no reopening of the case because the presentation of evidence has not been terminated. At best, what could happen is a recall of the witness or a further presentation of evidence, which is left to the sound discretion of the court.

jjsummer&rain#foursisons©2015-0170

RULE 120: Judgment o Promulgation of Judgment: “The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.” (Rule 120, Sec. 6, 1st par.) 1. The judge will issue a “notice of promulgation” informing the accused and the bondsman of the date and the time of the promulgation of the judgment. If the accused has jumped bail, or has escaped, the notice of promulgation will be sent to his last known address. 2. On the scheduled date of promulgation, the judgment will be read to the accused. As a general rule, the accused should be present on the promulgation of the judgment. An exception to this rule is the promulgation of the judgment for “light offenses.” Accused may be absent on the promulgation date for a light offense. o Can the promulgation proceed despite the absence of the accused on the date of the promulgation of judgment for a crime which is not a light offense? Yes, the promulgation will still proceed despite the absence of the accused. The minimum requirement of law in this case is that the notice of promulgation be sent to his last known address. o What is the consequence of the absence of the accused on the promulgation of judgment for a crime which is not a light offense? The accused forfeits his remedies under the law, unless he reappears within the reglementary period and explains to the court the reason for his absence. 1. “If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.” (Rule 120, Sec. 6, 5th par.) o “In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.” (Rule 120, Sec. 2, 2nd par.) o Can a judgment of conviction be modified? Yes, as provided for by Rule 120, Sec. 7: “A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.” o Can a motion for reconsideration be filed if an accused is acquitted? No, a motion for reconsideration cannot be filed, unless the motion for reconsideration is as to the civil aspect of the case, in which case the conformity of the public prosecutor is not needed.

jjsummer&rain#foursisons©2015-0171

o Can you appeal an acquittal? No, as a general rule, you cannot appeal an acquittal. But there is an exception, i.e. when the acquittal is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, in which case your remedy is a petition for certiorari under Rule 65, with the conformity of the Solicitor-General. 1. “An acquittal, whether ordered by the trial or appellate court, is final and unappealable on the ground of double jeopardy. The only exception is when the trial court acted with grave abuse of discretion or, as we held in Galman v. Sandiganbayan (1986), when there was mistrial. In such instances, the OSG can assail the said judgment in a petition for certiorari establishing that the State was deprived of a fair opportunity to prosecute and prove its case. The rationale behind this exception is that a judgment rendered by the trial court with grave abuse of discretion was issued without jurisdiction. It is, for this reason, void. Consequently, there is no double jeopardy.” (Lejano vs. People, 2011). 2. “In order that a judgment or order of acquittal may be successfully challenged in a petition for certiorari under Rule 65, the petitioner must prove that the trial court, in acquitting the accused, committed not merely errors of judgment, but grave abuse of discretion amounting to lack or excess of jurisdiction. No such grave abuse of discretion can be attributed to respondent Judge in dismissing the instant cases for the denial of private respondents' right to speedy trial.” (People vs. Hernandez, 2006). o “When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.” (Rule 120, Sec. 4)

jjsummer&rain#foursisons©2015-0172

Remedies from a Judgment of Conviction48 (Motion for Reconsideration, Motion for New Trial, and Appeal) o Can you file a petition for annulment of judgment? How about a petition for relief from judgment? No, you can neither file a petition for annulment of judgment under Rule 47, nor a petition for relief from judgment under Rule 38 – these remedies being applicable only to civil cases. They have no counterpart provisions under the Rules on Criminal Procedure. o You remedies from a judgment of conviction are a motion for reconsideration under Rule 121, motion for new trial also under Rule 121, and appeal under Rules 122 to 125 – all of which can only be availed of during the reglementary period. 1. Motion for Reconsideration (Rule 121): You can file a motion for reconsideration on the ground of errors of fact, or errors of law which require no further proceedings. (Rule 121, Sec. 3). There will be a hearing because of the requirement under Rule 15, but there will be no trial all over again. 2. Motion for New Trial (Rule 121): You can file a motion for new trial on the ground of newly-discovered evidence, or errors of law or irregularities prejudicial to the substantial rights of the accused. 3. Appeal (Rules 122 to 125): a. Ordinary Appeal:49 b. Petition for Review:50 c. Petition for Review on Certiorari:51

48

Rule Rule Rule Rule Rule

121: 122: 123: 124: 125:

New Trial or Reconsideration Appeal Procedure in the Municipal Trial Courts Procedure in the Court of Appeals Procedure in the Supreme Court

49 Rule 122, Sec. 3 (a): “The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.” 50 Rule 122, Sec. 3 (b): “The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.”

A Petition for Review under Rule 42 is used to correct errors of judgment. You have a reglementary period of fifteen (15) days to file an appeal, extendible to a period of another fifteen (15) days for as long as you pay docket fees within the reglementary period. You cannot ask for another extension of time, except for the most compelling reason; there is no Rule 43 equivalent in criminal procedure because a quasi-judicial agency has no power to entertain a criminal case. Rule 45, Sec. 9. Rule applicable to both civil and criminal cases. — “The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.” 51

jjsummer&rain#foursisons©2015-0173

o What are your remedies from a judgment of conviction rendered by the MTC? 1. You can file a motion for reconsideration or a motion for new trial under Rule 121 if there are grounds for reconsideration or new trial, unless the motions for reconsideration or new trial are prohibited, e.g. Summary Procedure; or 2. You can appeal the judgment to the RTC by filing a notice of appeal with the MTC under Rule 122, Sec. 3 (a) within the reglementary period, and by serving a copy thereof upon the adverse party. In the RTC’s exercise of its appellate jurisdiction, the parties are required to submit a memoranda to be filed within a period of fifteen (15) days.52 3. If the RTC affirms the judgment of conviction, you can appeal the judgment to the Court of Appeals by filing a petition for review under Rule 42 within the reglementary period and by serving a copy thereof upon the adverse party.53 In the Court of Appeals, what is required to be submitted is an “appellant’s or an appellee’s brief” to be filed within a period of thirty (30) days. The appellant's reply brief may be filed within twenty (20) days from receipt of appellee's brief.54 4. If the Court of Appeals affirms the judgment of conviction, you can appeal the judgment to the Supreme Court by filing a petition for review on certiorari under Rule 45.55 o What are your remedies from a judgment of conviction rendered by the RTC, but not imposing the penalty of death, life imprisonment or reclusion perpetua? 1. Your remedy is to file an appeal to the Court of Appeals by filing a notice of appeal with the RTC under Rule 122, Sec. 3 (a) within the reglementary period, and by serving a copy thereof upon the adverse party.56 2. If the Court of Appeals affirms the conviction, you can appeal the judgment to the Supreme Court by filing a petition for review on certiorari under Rule 45.

Rule 122, Sec. 9 (c): “Within fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed.”

52

53

Supra, note 50.

Rule 124, Sec. 7. Contents of brief. — “The briefs in criminal cases shall have the same contents as provided in Sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant.” 54

55 56

Supra, note 51. Supra, note 49.

jjsummer&rain#foursisons©2015-0174

o What are your remedies from a judgment of conviction rendered by the RTC imposing the penalty of life imprisonment or reclusion perpetua? 1. Your remedy is to file an appeal to the Court of Appeals by filing a notice of appeal with the RTC under Rule 122, Sec. 3 (c). If there are offenses, to which a lesser penalty is imposed, which were committed on the same occasion as the commission of the principal offense, the remedy is still a notice of appeal. These lesser offenses will be elevated together with the principal offense upon filing of a notice of appeal.57 2. If the Court of Appeals affirms the judgment of reclusion perpetua or life imprisonment, or imposes a lesser penalty, it shall “render and enter” the judgment. Your remedy is an appeal to the Supreme Court by filing a notice of appeal with the Court of Appeals.58 This is the only instance that you can file a notice of appeal in the Court of Appeals. o What is your remedy from a judgment of conviction rendered by the RTC imposing the penalty of death? 1. You need not resort to any remedy because a judgment imposing the penalty of death will be automatically elevated to the Court of Appeals for intermediate review.59 2. In case the Court of Appeals affirms the judgment of death, it will “render but not enter” a judgment, i.e. “the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review.” [Rule 124, Sec. 13 (a)]. o Does the “Fresh-Period Rule” (Neypes vs. CA, 2005) apply to criminal cases? Yes, the “Fresh-Period Rule” applies to criminal cases. If you file a motion for reconsideration or a motion for new trial, and it is denied, your period of fifteen (15) days starts to run again upon receipt of the denial. 1. “The provisions of Section 3 of Rule 4160 and Section 6 of Rule 122,61 though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed.” (Yu vs. Tatad, 2011)

Rule 122, Sec. 3 (c): “The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, life imprisonment or where a lesser penalty is imposed for 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, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule.” 57

Rule 124, Sec. 13 (c): “In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.” 58

Rule 122, Sec. 3 (d): “No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule.” 59

Rule 41, Sec. 3. “xxx … The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.” 60

61 Rule 122, Sec. 6. When appeal to be taken. — “An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration 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.”

jjsummer&rain#foursisons©2015-0175

RULE 126: Search and Seizure o “A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.” (Rule 126, Sec. 1). o What is the nature of an application for a search warrant? An application for a search warrant is in the nature of a “special criminal process” – it is not a criminal action. It is akin to a writ of discovery. The requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action. 1. “A search warrant is obtained, not by the filing of a complaint or an information, but by the filing of an application therefor.” (Worldwide Web Corp. vs. People, 2014) 2. The aggrieved party has personality to question an order quashing search warrants. “The conformity of the public prosecutor is not necessary before an aggrieved party moves for reconsideration of an order granting a motion to quash search warrants.” (Id.) o Can you apply for a search warrant in civil cases? No, you cannot apply for a search warrant in civil cases because a search warrant is a “special criminal process” issued in the name of the State, i.e. People of the Philippines. It is a police weapon issued under the police power. 1. “A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining mere private rights. It concerns the public at large as distinguished from the ordinary civil action involving the rights of private persons. It may only be applied for in the furtherance of public prosecution.” (UNILAB vs. Isip, 2005). 2. “However, a private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed; such private party may do so in collaboration with the NBI or such government agency. The party may file an opposition to a motion to quash the search warrant issued by the court, or a motion for the reconsideration of the court order granting such motion to quash.” (Id.) o Search Warrant, requisites of: “A search warrant shall not issue except upon probable cause in connection with one specific offense62 to be determined personally63 by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing64 the place to be searched and the things to be seized which may be anywhere in the Philippines.” (Rule 126, Sec. 4)

62

A search warrant cannot contain multiple offenses.

Rule 126, Sec. 5. Examination of complainant; record. — “The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.” Simply submitting affidavits or depositions will not suffice. 63

It would be best to identify the exact address; but if the place to be searched has no numeric address, there must be a reasonable description of the premises in addition to the so-called “lot number” and the “block number.” 64

jjsummer&rain#foursisons©2015-0176

o Where do you file an application for a search warrant? You can file an application for the issuance of a search warrant in any court within whose territorial jurisdiction the crime was committed – you still need to follow the rule on territoriality. 1. “Respondent’s imitation of the general appearance of petitioner’s goods was done allegedly in Cavite. It sold the goods allegedly in Mandaluyong City, Metro Manila. The alleged acts would constitute a transitory or continuing offense. Thus, clearly, under Section 2 (b) of Rule 126, Section 168 of Rep. Act No. 8293 and Article 189 (1) of the Revised Penal Code, petitioner may apply for a search warrant in any court where any element of the alleged offense was committed, including any of the courts within the National Capital Region (Metro Manila).” (Sony Computer vs. Supergreen, 2007). o Can you file an application for the issuance of a search warrant in Pasay City when the place to be searched is in Manila? You can, for compelling reasons, file the application in a court other than the courts in the place where the crime was committed but only within the judicial region.65 o Can you file an application for the issuance of a search warrant before an Executive Judge? Yes, but the application can only be filed by the NBI, the PNP, the ACTAF, and the PDEA, and only before an Executive Judge, or in his absence, before a ViceExecutive Judge of the RTCs of Manila or Quezon City. If the application is granted, the search warrant will be effective in the entire Philippines. This is an exception to Rule 126, Sec. 2. 1. The abovementioned rule is “for search warrants involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court.” (A.M. No. 03-8-02-SC dated 27 January 2004) 2. “The applications shall be endorsed by the heads of such agencies or their respective duly authorized officials and shall particularly describe therein the places to be searched and/or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and Vice-Executive Judges concerned shall issue the warrants, if justified, which may be served outside the territorial jurisdiction of the said courts.” (A.M. No. 08-4-4-SC dated 7 July 2009)

Rule 126, Sec. 2: “For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.” 65

jjsummer&rain#foursisons©2015-0177

Search with Warrant o For a police officer to conduct a valid search, he should be armed with a search warrant. 1. What is your remedy upon learning that a search warrant has been issued against you, and you wish to stop or block the search? You can file a “motion to quash a search warrant” before items have been seized. If items have already been seized, you can file a “motion to suppress evidence” on the ground of inadmissibility.66 2. To whom should the search warrant be presented? The search warrant should be presented to the lawful occupant of the premises, “or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.” (Rule 126, Sec. 8). o In the light of the presentation of the search warrant, the premises have been searched and items have been seized. 1. What is the duty of the searching officer before he leaves the premises? The searching officer who seized property must leave a detailed receipt to the lawful occupant of the premises in whose presence the search and seizure were made, or any member of his family. If the aforementioned persons are absent, the detailed receipt must be left, or posted in the premises in the presence of at least two witnesses of sufficient age and discretion residing in the same locality. 2. What is the duty of the searching officer in relation to the court which issued the search warrant? The searching officer has the duty of delivering the seized property together with an inventory of the seized properties to the court. If the searching officer fails or refuses to deliver the property to the court, he could be held liable for contempt.

Rule 126, Sec. 14. 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 thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.” 66

jjsummer&rain#foursisons©2015-0178

Allowable Warrantless Searches67 o Warrantless search incidental to a lawful arrest. 1. The tests for a valid warrantless search incidental to a lawful arrest are: (1) the item to be searched was within the arrestee’s custody or area of immediate control; and (2) the search was contemporaneous with the arrest. 2. “There is no question that warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.” (People vs. Laguio, 2007). “Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause68 to make the arrest at the outset of the search.” (People vs. Racho, 2010). 3. “Reliable information alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.” (Id.) o Seizure of evidence in “plain view:” 1. “Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.” (People vs. Doria, 1999). 2. “Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.” (Id.) o Search of a moving vehicle: Highly-regulated by the government; the vehicle’s inherent mobility reduces expectation of privacy. But there must be a highly-reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. o Consented warrantless search: But it must appear first (1) “that the right exists; (2) that the person involved had, either actual or constructive, of the existence of such right; and (3) that said person had an actual intention to relinquish such right.” (De Garcia vs. Locsin,

These exceptions, however, “should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause [except in a Terry Search] must still be satisfied before a warrantless search and seizure can be lawfully conducted.” (People vs. Aruta, 1998) (Annotation supplied) 67

Although probable cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. 68

jjsummer&rain#foursisons©2015-0179

1938). Thus, where the accused has voluntarily surrendered his gun, he cannot claim illegality of the seizure. (People vs. Agbot, 1981). o Customs search, or seizure of goods concealed to avoid duties. o “Stop and Frisk” (Terry Search). 1. “While probable cause is not required to conduct a ‘stop and frisk,’ it nevertheless holds that mere suspicion or a hunch will not validate a ‘stop and frisk.’ A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.” (Malacat vs. CA, 1997). 2. “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigation of this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is reasonable search under the Fourth Amendment.” (Terry vs. Ohio, U.S. 1968). o Exigent and Emergency Circumstances. 1. This was applied in a case where there were intelligence reports that the building was being used as headquarters by the RAM during the 1989 coup d’etat. Surveillance indicated rebel activities in the building. Nearby courts were closed and general chaos and disorder prevailed. Under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. “Under such urgency and exigency of the moment, a search warrant should lawfully be dispensed with.” (People vs. De Gracia, 1994). RULE 127: Provisional Remedies in Criminal Cases o Sec. 1. Availability of provisional remedies. — “The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action.” 1. The provisional remedies of preliminary attachment, preliminary injunction, receivership, and support pendente lite can be availed of in criminal cases, except the provisional remedy of replevin since a writ of replevin can only be applied for before an “answer” is filed - there is no “answer” in criminal cases.

jjsummer&rain#foursisons©2015-0180

RA No. 9165: The Comprehensive Dangerous Drugs Act of 2002 o “It is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid warrantless arrest. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. (People vs. Agulay, 2008) o “In drug-related prosecutions, the State bears the burden not only of proving the elements of the offense under R.A. No. 9165, but also of proving the corpus delicti,69 the body of the crime. The dangerous drug is itself the very corpus delicti of the violation of the law.” (People vs. Guzon, 2013). 1. "The prosecution must show that the integrity of the corpus delicti has been preserved. This is crucial in drugs cases because the evidence involved – the seized chemical – is not readily identifiable by sight or touch and can easily be tampered with or substituted. Proof of the corpus delicti in a buy-bust situation requires not only the actual existence of the transacted drugs but also the certainty that the drugs examined and presented in court were the very ones seized. This is a condition sine qua non for conviction since drugs are the main subject of the illegal sale constituting the crime and their existence and identification must be proven for the crime to exist." (Id.) o Chain of Custody Rule: refers to the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. 1. “In the chain of custody in a buy-bust situation, the following links must be established: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.” (People vs. Mendoza, 2011) o Does the failure to comply with the “chain of custody rule” render the seized illegal drug inadmissible? No, failure of police officers to strictly comply with Section 21 of the IRR of RA No. 916570 is not fatal—it does not render the arrest of the suspect illegal nor the evidence adduced against him inadmissible: provided that the non-compliance was under justifiable grounds and as long as the integrity of the seized items are properly preserved. 1. “Even though non-compliance with Sec. 21 of the IRR is excusable, such cannot be relied upon when there is lack of any acceptable justification for failure to do so. This saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds. In the instant case, no justifiable grounds were put forth by the prosecution for the procedural lapses - the lack of inventory on the seized drugs creates reasonable doubt as to the identity of the corpus delicti.” (People vs. Roble, 2011).

69

Corpus delicti means the “actual commission by someone of the particular crime charged.” (People vs. Roble, 2011)

Section 21, IRR of RA No. 9165: “The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.” 70

jjsummer&rain#foursisons©2015-0181

2. “The saving clause in Section 21, IRR of R.A. No. 9165 applies only where the prosecution recognized the procedural lapses, and thereafter cited justifiable grounds. Failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. Equally important, the prosecution must establish that the integrity and the evidentiary value of the seized item are properly preserved.” (People vs. Guzon, 2013). o Is the non-presentation of the poseur-buyer to the witness stand fatal to the prosecution’s case? Yes, the non-presentation of the poseur-buyer as witness is fatal to the prosecution. In a prosecution for illegal sale of dangerous drugs, the prosecution must convincingly prove that the transaction or sale actually transpired. 1. “Well-established is the rule that when the inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. In the present case, accused-appellant’s version of the circumstances leading to his apprehension constitutes a total denial of the prosecution’s allegations. In this regard, this Court has ruled that when there is such a divergence of accounts it becomes incumbent upon the prosecution to rebut appellant’s allegations by presenting the alleged poseur-buyer. This it failed to do, giving rise to the presumption that evidence willfully suppressed would be adverse if produced. [Rule 131, Sec. 5 (e)]. This failure constitutes a total flaw in the prosecution’s evidence since the so-called informant who was never presented as a witness and never identified, is the best witness for the prosecution.” (People vs. Yabut, 1992). 2. “While the Court, in several instances, has affirmed an accused’s conviction notwithstanding the non-presentation of the poseur-buyer in the buy-bust operation, such failure is excusable only when the poseur-buyer’s testimony is merely corroborative, there being some other eyewitness who is competent to testify on the sale transaction.” (People vs. Guzon, 2013).

jjsummer&rain#foursisons©2015-0182