Rule 121-New Trial & Recon

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

Rule 121 NEW TRIAL OR RECONSIDERATION

SECTION 1. New trial or reconsideration. – At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) NEW TRIAL Q: What is the effect of the filing of a motion for new trial on the double jeopardy rule? A: An accused who files a motion for new trial WAIVES the protection of double jeopardy, so that if the motion is granted, he can be tried and convicted of the graver offense charged in the complaint or information. (Trono vs. U.S. 11 Phil. 726; Santos vs. People, 64 Phil. 10) Actually, it is like an appeal eh – when an accused appeals the judgment against him, he is waiving his right against double jeopardy. And it has happened several times in the past where the accused was charged with murder and convicted of homicide. He was not contented. When he filed an appeal, he was convicted of murder. Sometimes, appeal can give you a worse situation. It happened here in Davao where a lawyer was charged as a principal for falsification of documents that he notarized. The judge convicted him of falsification but merely as an accomplice. Binabaan ba! But I think the intention of the judge was to allow the lawyer to ask for probation. Pero hindi nakuntento ang lawyer. He appealed to the CA. Naloko na! Nasamot gyud! The CA convicted him as principal. And what was worse, the CA said that since the accused was a lawyer, let a copy of the decision be brought to the SC for disbarment proceedings. Na disbarred pa! That’s what happens for appealing! Alright, and take note, at any time before a judgment of conviction become final. Now this is one provision which you have to compare with Rule 120, Section 7 on Modification of Judgment. Q: Compare and Distinguish New Trial from Modification of Judgment. A: Similarity: Both may be resorted to before the judgment of conviction becomes final. Distinctions: 1. In new trial, by the very nature of its purpose and what is to be done, both parties intervene; whereas, in modification of judgment, the court moto propio may act provided the consent of the accused is required; 2. In new trial, if the motion is granted, the original judgment is vacated and a new judgement shall be rendered; whereas, in modification of judgment, the integrity of the decision already rendered is unaffected, except for the proposed changes, although the entire decision may have to be rewritten. (People vs. Tamayo, 86 Phil. 209)

Now, there is a new section in the New Rules which created confusion – Rule 119 Section 24. SEC. 24. Reopening.– At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order granting it. (n) When do you make the motion for reopening? At anytime before the judgment of conviction becomes final? Pareho di ba! The language of the 3 provisions are identical, motion for: (1) reopening of trial; (2) modification of judgment of conviction; and (3) new trial or reconsideration That is a new provision. So that when I looked at the new Rules, talagang nalito ako. Ano ba itong reopening of trial. How is this different from the others?

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

That is why, during the seminar in Men Seng last November 30 on the New Rules, I brought this out, eh. Would somebody be kind enough to tell the difference between the three? Everything kasi is done before the judgment of conviction becomes final! Of course, nobody stood up there to tell me the difference. Kaya nalito ako. Former Solicitor General Galvez, when he was here, told me that “typographical error man yung Rule 119 ba, hindi man ganyan ang aming recommendation.” Why nga naman will you reopen after judgment of conviction? Reopenning is done before judgment is rendered. Ito naman, paglabas! Naloko na! It created a lot of confusion. So if we believe Galvez, the confusion is caused by a typographical error, which according to him is not the language of the Rules submitted to the SC and somebody tinkered with that provision. There is also a rule on New Trial in civil cases under Rule 37, you know the grounds: FAME, NDE, etc. And there are some rules there to follow such as the motion for new trial must be supported by affidavits of merits, or the motion for reconsideration must point out specifically the error committed by the trial court, and the portion of the decision not supported by the evidence. Otherwise, if you do not comply with these requisites, what is the name of your motion? PRO FORMA. Pro Forma, meaning the filing of your motion for new trial or reconsideration will NOT interrupt the period to appeal. That is the effect. This is now the question: Q: Is there such a thing as pro forma motion for new trial or reconsideration in criminal cases? Where your motion is obviously dilatory? Your grounds are too general, too vague, too ambiguous? No affidavit of merits? And therefore if it is denied, there is no more right to appeal by the accused applying the pro forma rule? A: The SC ruled in the past that the pro forma rule in civil cases DOES NOT apply to criminal cases. In criminal cases, a general statement of the grounds for new trial is sufficient. (People vs. Colmenares, 57 O.G. 3714) Even if you do not go into details because you expect your motion to be denied, but the filing will still interrupt the period. It is too harsh if the remedy of appeal will be removed from the accused simply because of a motion for new trial which is not prepared properly. So the pro forma rule will not apply in criminal cases. The filing of a motion for new trial or reconsideration will always interrupt the running of the period to appeal. Q: Alright, what are the grounds for new trial? A: Section 2: SEC. 2. Grounds for a new trial. – The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. Q: What are the grounds for a new trial? A: Under Section, the following are the grounds: 1. Errors of law; Example: In one case, during the trial, the trial court excluded a defense witness from testifying based on an erroneous interpretation of the rules of evidence. The judge disqualified him. But it turned out that the witness was not disqualified. That is an error of law. For all you know, if his testimony will be given, the accused will be acquitted. Therefore, a new trial should be granted where he should be allowed to testify. (People vs. Estefa, 86 Phil. 104) 2. irregularities prejudicial to the substantial rights of the accused;

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

Example: In one case, the trial court compelled the accused, over his objection, to submit to trial without the assistance of his counsel. (People vs. Enriquez, L-4934, November 28, 1951) If the accused is convicted because of such irregularity, this is a valid ground for new trial. Besides, why should the judge punish the accused? He should punish the lawyer. 3. Newly discovered evidence; this is similar to civil cases, newly discovered evidence. The requisites are the same: a.) discovered after trial; b.) it could not have been discovered before trial even with the use of reasonable diligence c.) and if introduced and admitted would probably change the decision

Q: May a new trial be granted on the ground of loss of stenographic notes? A: NO. The loss of stenographic notes after trial is NOT such an irregularity as would justify a new trial. The remedy of the accused is to have the missing evidence reconstituted. (People vs. Castelo, L10774, February 16, 1961) There is a case, the trial is concluded, and the accused is convicted. Within the period of 15 days from promulgation, here comes the accused filing a motion for new trial on the ground that the prosecution witness has executed an affidavit recanting his testimony. The prosecution witness, in effect, is saying that what he said during the trial is not true. Q: May a new trial be granted on the ground of loss of recantation of prosecution witnesses? A: As a GENERAL RULE, recantation is NOT a ground for new trial, otherwise there would never be an end to criminal litigation. “The Court has looked with disfavor upon retraction of testimonies previously given in court. Thus, the Court has ruled against the grant of a new trial on the basis of a retraction by a witness. The rationale for the rule is obvious: Affidavits of retraction can easily be secured from poor and ignorant witnesses usually for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it may later be repudiated. So courts are wary or reluctant to allow a new trial based on retracted testimony.” (People vs. Clamor, July 1, 1991; People vs. Soria, October 4, 1996) Q: Is there an EXCEPTION? A: YES, when it is made to appear that there is no evidence sustaining the judgment of conviction other than the testimony of the recanting witness. (U.S. vs. Dacir, 26 Phil. 503) When aside from the testimonies of the retracting witness or witnesses there is no other evidence to support a judgment of conviction, a new trial may be granted. (People vs. Clamor, July 1, 1991)

GOMEZ vs. IAC April 9, 1985 HELD: “It is conceded that the State has the sovereign right to prosecute criminal offenses under the full control of the fiscal and that the dismissal of criminal cases by the execution of an affidavit of desistance by the complainant is not looked upon with favor. However, it is also true that an affidavit of desistance may create serious doubts as to the liability of the accused. At the very least, it calls for a second hard look at the records of the case and the basis for the judgment of conviction. Jurisprudence on the effect of desistance notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper.”

Sometimes I have seen affidavits of recantation made by the complainant, alam mo kung anong nakalagay? – “I have lost interest in continuing the case.” Pero tapos na, naka-testify na siya. And on the basis of that, a new trial was granted. Mali man iyan ba. Para mag-new trial, dapat na sabihin

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

niya, “Mali ang mga sinabi ko!” If you say that you are not interested, you are not really repudiating what you said. That is what the SC emphasized in the 1998 case of

PEOPLE vs. GARCIA 288 SCRA 382 [1998] HELD: “To warrant a new trial, the affidavit of desistance must constitute a recantation and not a mere withdrawal from the prosecution of the case. The complainant's affidavit of desistance did not constitute a recantation, because she did not deny the truth of her complaint but merely sought to be allowed to withdraw and discontinue the case because she wished to start life anew and live normally again. She never absolved or exculpated the accused. In other words, a recantation of a prior statement or testimony must necessarily renounce the said statement or testimony and withdraw it formally and publicly.” Parang ganito ba: “Yung sabi ko noon na ni-rape niya ako, di man na tinood ba, pumayag man ako ba!” Yan, baliktarin mo lahat ang sinabi mo. Hindi yung: “I am not interested, kapoy na, ayoko na.” Hindi pwede yan, that is not recantation because you are not disowning what you said earlier. Now we will go to one last point. PROBLEM: Let us assume that Sheriff was convicted purely because of the testimony of the complainant, Thaddeus. Now, Thaddeus makes an affidavit stating that everything he said is not true. Meaning he is really recanting – binabawi niya lahat ng sinabi niya. Q: Is this a ground for new trial? A: Following jurisprudence, YES. It becomes now an exceptional case. There will be a new trial. Q: What do you mean new trial? A: We will now restart the case. Q: Who will testify? A: Eh di si Thaddeus! – yung complainant, who will be asked: “During the trial this is what you said, what are you saying now?” As he answers, Thaddeus must say under oath that he lied before and this is the truth… [amen!] Q: After that, can the court say that the accused is now acquitted because now Thaddeus is telling the truth when before Thaddeus was not telling the truth? Is this what will happen? A: The SC said NO. The only thing that will happen is that a new trial will be granted. But this does not mean that the accused shall be acquitted. When we say new trial, this means that the court should hear the testimony of the complainant again. BUT after testifying, the court may say, “You say you were lying before and you are telling the truth now, but the court does not believe you because as far as the court is concerned, you were telling the truth before and you are lying now.” Therefore the conviction stands. That is possible. Because some lawyers believe that if a new trial is granted, sigurado na acquitted na ang accused. NO, the SC never guaranteed that. It will only be a ground for new trial without a guarantee whether the decision will be reversed or not. But in practice, lutong Macau lahat iyan. Usapan nalang iyan between the lawyer and the fiscal tapos kasali pa ang judge. That is what is happening, I know that. But if you follow the rules, there is no guarantee that if new trial is granted, the accused will be acquitted. There is no rule that says that when a witness testifies twice, the court will always believe the latest testimony. And the SC has emphasized that in many cases, one of them is the case of PEOPLE vs. CLAMOR July 01, 1991

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

HELD: “Where a witness testifies for the prosecution and retracts his or her testimony and subsequently testifies for the defense, the test in determining which testimony to believe is one of comparison coupled with the application of the general rules in evidence.” So you apply what you know about evidence, about credibility, appreciation of evidence. “The rule should be that a testimony solemnly given in court should not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each given carefully scrutinized, the reasons or motives for the change carefully scrutinized — in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth.” Of course, if the court believes that the second testimony is accurate and the witness lied during the first, then acquit! But if the court believes that the witness was telling the truth in the first testimony, the conviction stands. So take note of that because these are misunderstood concepts eh.

RECONSIDERATION

Now, ano naman ang Reconsideration?

The same as in civil cases.

SEC. 3. Ground for reconsideration.– The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. (3a) SEC. 4. Form of motion and notice to the prosecutor. – The motion for new trial or reconsideration shall be in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence, the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the prosecutor. (4a) SEC. 5. Hearing on motion. – Where a motion for new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. (5a) Q: Is there an instance when a MOTION for reconsideration or new trial is PROHIBITED? A: YES – when the case is tried in the MTC under the Summary Rules. Bawal man iyan ba! That’s a prohibited motion. Now you just take note of that. Under Section 19[c] of the Revised Summary Rules, a motion for reconsideration or new trial of a final judgment is prohibited. Q: Of course, what are the effects of granting the motion for new trial or reconsideration. A: You have Section 6: SEC. 6. Effects of granting a new trial or reconsideration. – The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. (6a)

Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 121 New Trial Or Reconsideration

Q: Will there be really a trial de novo or will there just be a reopening of the trial to introduce the newly discovered evidence? A: Under paragraph [c] which we already discussed: “In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly.” Q: Suppose after new trial, the court still finds the accused guilty? A: There will be another judgment but definitely the original judgment is already set aside. When the court grants the motion, wala na iyon! Regardless of whether the new judgment will be the same or not. So with that, we are now through with Rule 121.

SPACE-FILLER #8:

A friend and I were shopping for dresses for her threeyear-old girls to wear to a wedding. In the shop, another girl staring intently at Sarah and Becky asked, “Are those girls twins?” “Actually they’re triplets,” I explained. “They have a brother at home.” “Wow,” she replied. “They sure look like twins to me.” Source: Reader’s Digest, November 2000