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Criminal Procedure-Reviewer

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PRELIMINARY CHAPTER

 What is criminal procedure?

Criminal procedure is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in case of conviction.

 What is criminal procedure concerned with?

Criminal procedure is concerned with the procedural steps through which the criminal case passes, commencing with the initial investigation of a crime and concluding with the unconditional release of the offender.  It is a generic term used to describe the network of laws and rules which govern the procedural administration of criminal justice.

What are the sources of criminal procedure?

 What are the three systems of criminal procedure?

The judicial set-up in the Philippines is accusatorial or adversary in nature.  It contemplates two contending parties before the court, which hears them impartially and renders judgment only after trial.

 Distinguish between criminal law and criminal procedure.

Criminal law is substantive; it defines crimes, treats of their nature, and provides for their punishment.  Criminal procedure, on the other hand, is remedial or procedural; it provides for the method by which a person accused of a crime is arrested, tried and punished.  Criminal law declares what acts are punishable, while criminal procedure provides how the act is to be punished.

 How are the rules of criminal procedure construed?

The rules of criminal procedure shall be liberally construed in favor of the accused and strictly against the state to even the odds in favor of the accused against whom the entire machinery of the state is mobilized.

 What is jurisdiction?

Jurisdiction (in general) is the power or authority given by the law to a court or tribunal to hear and determine certain controversies.  It is the power of courts to hear and determine a controversy involving rights which are demandable and enforceable.

 Distinguish jurisdiction from venue.

Venue is defined as the particular country or geographical area in which a court with jurisdiction may hear and determine a case.  It means the place of trial.  On the other hand, jurisdiction is the power of the court to decide the case on the merits.  Venue is thus procedural, while jurisdiction is substantive.  In civil cases, venue may be waived or stipulated by the parties.  On the other hand, jurisdiction is granted by law or the Constitution and cannot be waived or stipulated.

 What is criminal jurisdiction?

Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment for it.

 What are the elements of jurisdiction in criminal cases?

 What are the requisites for a valid exercise of criminal jurisdiction?

 What is jurisdiction over the subject matter?

It is the power to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers.

 Which law determines the jurisdiction of the court – the law in force at the time of the commission of the offense or the one in force as of the time when the action is filed?

Jurisdiction is determined by the law as of the time when the action is filed, not when the offense was committed.  The exception to this rule is where jurisdiction is dependent on the nature of the position of the accused at the time of the commission of the offense.  In this case, jurisdiction is determined by the law in force at the time of the commission of the offense.

 What is adherence of jurisdiction?

The principle of Adherence of Jurisdiction means that once jurisdiction is vested in the court, it is retained up to the end of the litigation.  It remains with the court until the case is finally terminated.  The exception to this is where

a subsequent statute changing the jurisdiction of a court is given retroactive effect, it can divest a court of jurisdiction over cases already pending before it before the effectivity of the statute.

 A was charged with an offense whose penalty was below 6 years.  The case was filed with the MTC.  After trial, the MTC convicted him of an offense with a higher penalty.  A questioned the conviction, claiming that the MTC had no jurisdiction over the offense since the penalty prescribed for it was higher than 6 years.  Is A correct?

A is wrong.  Jurisdiction over the subject matter is determined by the authority of the court to impose the penalty imposable given the allegation in the information.  It is not determined by the penalty that may be meted out to the offender after trial but to the extent of the penalty which the law imposes for the crime charged in the complaint.

 If during the proceedings, the court finds that it has no jurisdiction, how should it proceed?

Where the court has no jurisdiction, lower courts should simply dismiss the case.  On the other hand, the Supreme Court and the Court of Appeals may refer the case to the court of proper jurisdiction.

 What is the jurisdiction of Municipal Trial Courts in criminal cases?

 What is the jurisdiction of Regional Trial Courts in criminal cases?

 What is the meaning of the term “regular courts”?

Regular courts refer to civil courts as opposed to military courts or courts martial.  Military courts have no jurisdiction over civilians.

 Which court has jurisdiction over a complex crime?

Jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and more serious penalty on an offense forming part of the complex crime.

 What is territorial jurisdiction?

The requirement of territorial jurisdiction means that a criminal action should be filed in the place where the crime was committed, except in those cases provided by Article 2 of the Revised Penal Code.

 How is jurisdiction over the person of the accused acquired?

Jurisdiction over the person of the accused is acquired upon his arrest or upon his voluntary appearance or submission to the court.

 Can jurisdiction over the person of the accused be waived?

Yes, unlike jurisdiction over the offense which is conferred by law or the Constitution, jurisdiction over the person of the accused may be waived.  For example, any objection to the procedure leading to the arrest must be opportunely raised before the accused enters his plea, or it is deemed waived.

 X was charged in court with an offense.  X filed a motion to quash on the ground that the court had no jurisdiction over his person because the arrest was illegal and because the information was incomplete.  Can X invoke lack of jurisdiction of the court over his person?

No, X cannot invoke the lack of jurisdiction of the court.  One who desires to object to the jurisdiction of the court over his person must appear in court for that purpose only, and if he raises other questions, he waives the objection.

 Is the presence of the accused necessary in order for the court to act on a motion?

It is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss a case or grant other relief.  The outright dismissal of the case even before the court acquires jurisdiction over the person of the accused is allowed, except in applications for bail, in which case, the presence of the accused is mandatory.

RULE 110 PROSECUTION OF OFFENSES

 How are criminal actions instituted?

Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.

(b) For all other offenses, by filing the complaint or information directly with the MTC or the complaint with the office of the prosecutor.

 What is the effect of the institution of the criminal action on the period of prescription of the offense?

The institution of the criminal action shall interrupt the running of the period of prescription of the offense unless otherwise provided in special laws.  The rule does not apply to violations of municipal ordinances and special laws.  The prescriptive periods for violations of special laws are interrupted only by the institution of judicial proceedings for their investigation and punishment, while violations of municipal ordinances prescribe after two months.

 Distinguish “institution” from “commencement” of an action.

For offenses which require a preliminary investigation, the criminal action is instituted by filing the complaint for preliminary investigation.  The criminal action is commenced when the complaint or information is filed in court.

 Can the offended party go directly to court to file a criminal action?

No.  Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman.  The Lupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman.  The complaint may also be filed if the settlement is repudiated by the parties.

 Are there exceptions when the parties may go directly to court?

 When are amicable settlements not allowed?

 What is the form required for the complaint or information?

The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved.

 Why should a complaint or information be in the name of the People of the Philippines?

Criminal actions must be commenced in the name of the People because just as a crime is an outrage against the peace and security of the people at large, so must its vindication be in the name of the People.  However, it the action is instituted in the name of the offended party or of a particular city, the defect is merely of form and may be cured at any state of the trial.

 Why should the complaint or information be in writing?

The complaint or information should be in writing so that the court has a basis for its decision, to inform the accused of the nature and cause of the accusation to allow him to present his defense, and so that nobody will forget the charge, given the fallibility of human memory.

 What is a complaint?

A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.

 Who may file a complaint?

The complaint may be filed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.

 Who is the “offended party”?

The offended party is the person actually injured or whose feeling is offended.  He is the one to whom the offender is also civilly liable under Article 100 of the RPC.  

 If the offended party dies before he is able to file a complaint, can his heirs file it in his behalf?

No.  The right to file a criminal action is personal and abates upon the death of the offended party.  It is not transmissible to the heirs.

 Can you file a criminal complaint against a juridical person?

No, a criminal action cannot lie against a juridical person.  It the corporation violates the law, the officer, through whom the corporation acts, answers criminally for his acts.

 May criminal prosecutions be enjoined?

No.  Public interest requires that criminal acts must be immediately investigated and prosecuted for the protection of society.

 What are the exceptions to the rule that criminal prosecutions may not be enjoined?

 If the complaint is not sworn to by the offended party, is it void?

No. A complaint presented by a private person when not sworn to by him is not necessarily void.  The want of an oath is a mere defect of form which does not affect the substantial rights of the defendant on the merits. 

 When is a complaint required?

A sworn written complaint is required if the offense is one which cannot be prosecuted de officio, or is private in nature (adultery, concubinage, abduction, seduction, acts of lasciviousness, defamation consisting in the imputation of any of the above offenses), or where it pertains to those cases which need to be endorsed by specific public authorities (Anti-Dummy Board with respect to the Anti-Dummy Law, National Water and Air Pollution Control Commission with respect to the Anti-Pollution Law).

 What is an information?

An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.

 What is the difference between a complaint and an information?

COMPLAINTINFORMATION
May be signed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violatedAlways signed by prosecuting officer
Sworn to by the person signing itNeed not be under oath since the prosecuting officer filing it is already acting under his oath of office
May be filed either with the office of the prosecutor or with the courtAlways filed with the court

 Who must prosecute criminal actions?

The general rule is that all criminal actions commenced by the filing of a complaint or information shall be prosecuted under the direction and control of the prosecutor.  However, in the Municipal Trial Courts and Municipal Circuit Trial Courts, if the prosecutor is not available, the offended party, any peace officer, or other officer charged with the enforcement of the law violated may prosecute.  This authority ceases upon actual intervention by a prosecutor or upon elevation of the case to the RTC.

 Can a prosecutor be compelled to file a particular complaint or information?

No.  A prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof.  The exercise of such judgment and discretion may generally not be compelled by mandamus, except if the prosecutor shows evident bias in filing the information and refuses to include a co-accused without justification.  But before filing for mandamus to compel a fiscal to include another co-accused in the information, the party must first avail himself of other remedies such as the filing of a motion for inclusion.

 To whom should you appeal the decision of the prosecutor?

The decision of the prosecutor may be modified by the Secretary of Justice or in special cases by the President of the Philippines.

 Is the prosecutor required to be physically present in the trial of a criminal case?

According to People v. Beriales (1976 case), he should be present.  If he is not physically present, it cannot be said that the prosecution was under his direction and control.

But in People v. Malinao and Bravo v. CA, it was held that the proceedings are valid even without the physical presence of the Fiscal who left the prosecution to the private prosecutor under his supervision and control.

 After the case is filed in court, to whom should a motion to dismiss be addressed?

Once the information is filed in court, the court acquires jurisdiction.  Whatever disposition the prosecutor may feel should be proper in the case thereafter should be addressed for the consideration of the court, subject only to the limitation that the court should not impair the substantial rights of the accused or the right of the people to due process.

 Where should a motion for reinvestigation be filed?

After a complaint or information has already been filed in court, a motion for reinvestigation should be addressed to the trial judge and to him alone.

 If, after he has filed the case, the prosecutor thinks that a prima facie case exists, can he refuse to prosecute?

No, he cannot refuse to prosecute.  He is obliged by law to proceed and prosecute the criminal action.  He cannot impose his opinion on the court.

 What is the distinction between the control by the prosecution and the control by the court?

Before a case is filed in court, the prosecution has control over the following:

After a case is filed in court, the court has control over the following:

 What are the limitations on the control by the Court?

(SINNATRa)

 What are the crimes that must be prosecuted upon complaint of the offended party?

 What is a private crime?

Private offenses are those which cannot be prosecuted except upon complaint filed by the aggrieved party.  Strictly speaking, there is no such thing as a private offense since all offenses are an outrage against the State.  They are denominated as private offenses only to give deference to the offended party who may prefer not to file the case instead of going through the scandal of a public trial. 

 After a complaint for a private crime has been filed in court, what is the effect of pardon by the offended party?

The pardon by the offended party will not have any effect on the prosecution of the offense.  Once a complaint has been filed in court, jurisdiction over the offense will be acquired and will continue to be exercised by the court until termination of the case.

 What is the meaning of the statement that compliance with the rule is jurisdictional?

This means that the complaint filed by the offended party is what starts the prosecution, without which the courts cannot exercise their jurisdiction.  Compliance with the rule does not confer jurisdiction because it is the law which confers jurisdiction upon the courts.

 Can the father file a complaint on behalf of his daughter for concubinage?

No.  The rule allowing the parents, grandparents, and guardians to file a complaint on behalf of the minor applies only to the offenses of seduction, abduction, and acts of lasciviousness.  A complaint for adultery or concubinage may be filed only by the offended spouse.

 If the offended party in abduction, seduction, and acts of lasciviousness is of age, can her parents file the complaint for her?

No.  If the offended party is already of age, she has the exclusive right to file the complaint unless she becomes incapacitated.  The parents, grandparents, and guardian only have exclusive, successive authority to file the case if the offended party is still a minor.

 If the offended party dies during the pendency of the case, is the criminal liability of the accused extinguished?

No.

 X filed a sworn complaint for acts of lasciviousness before the prosecutor.  Before the prosecutor could file the case in court, X died.  Can the prosecutor still file the information in court?

Yes.  The desire of X to file the case is evident by her filing of her sworn complaint with the prosecutor.

 An information for robbery with rape was filed against X.  X moved to dismiss the information on the ground that there was no complaint filed by the offended party.  Should the case be dismissed?

No.  In robbery with rape, the complaint of the offended party is not necessary since the offense of robbery is not a private offense.  The prosecution can be commenced without the complaint of the offended party.

 When is a complaint or information deemed sufficient?

A complaint or information is sufficient if it states:

 When is the error in the name of the accused not fatal to an information?

Error in the name of the accused will not nullify the information if it contains sufficient description of the person of the accused.

 When should the error in the name or identity be raised by the accused?

The error should be raised before arraignment, or else it is deemed waived.

 X was charged with homicide.  Can he be possibly be convicted of murder?

Yes.  If the recitals in the complaint or information of the acts and omissions constituting the offense actually allege murder, X can be convicted of murder.  This is because it is the recital of facts and not the designation of the offense that is controlling.

 X was charged with estafa, but the recital of facts actually alleges theft.  Can X be convicted of theft?

Yes, because it is the recital, not the designation of the offense that is controlling.

 X was charged with estafa, and the recital of facts allege estafa.  Can X be convicted of theft?

No.  The two crimes have elements that are different from each other.  To convict X of theft under an information that alleges estafa would violate his right to be informed of the nature and cause of the accusation against him.

 X was charged with rape committed through force and intimidation.  Can he be convicted of rape where the woman is deprived of reason or is otherwise unconscious?

No.  Where the law distinguishes between two cases of violation of its provision, the complaint or information must specify under which of the two cases the defendant is being charged.

 In what case can an accused not be convicted of a crime different from that designated in the complaint or information even if the recitals allege the commission of the crime?

If it involves: 

 X was accused of illegal possession of firearms, but the information did not allege that X did not have any license to possess the firearm.  Is the information valid?

No.  The absence of the license is an essential element of the offense.  Therefore, it should be alleged in the complaint or information.

 X was charged with illegal possession of opium.  X contends that the information was invalid for failure to allege that he did not have a prescription from a physician.  Is X correct?

No.  The absence of the prescription is not an essential element of the offense and is only a matter of defense.  It need not be alleged in the information.

  What are the offenses in which the particular place where the offense was committed is essential?

 What are the offenses in which the time of the commission of the offense is essential?

  In what case is the name of the offended party dispensable?

In offenses against property, the name of the offended party may be dispensed with as long as the object taken or destroyed is particularly described to property identify the offense.

 In what cases is the name of the offended party indispensable?

Slander, robbery with violence or intimidation.

 What is the rule on duplicity of offenses?

A complaint or information must charge only one offense, except when the law provides only one punishment for various offenses (compound and complex crimes under Art. 48 of the RPC and special complex crimes).

 What is the effect of the failure of the accused to object to a duplicitous information?

If the accused fails to object before arraignment, the right is deemed waived, and he may be convicted of as many offenses as there are charged.

 X fired his gun once, but the bullet killed two persons.  He was charged with two counts of homicide in one information.  Can he be convicted under that information?

Yes.  It falls under the exception to the rule.  This is a compound crime in which one act results in two or more grave or less grave felonies.  The law provides only one penalty for the two offenses.

 X was charged with both robbery and estafa in one information.  Can he be convicted of both offenses?

It depends.  If he objects to the duplicitous information before arraignment, he cannot be convicted under the information.  But if he fails to object before arraignment, he can be convicted of as many offenses as there are in the information.

 What is the principle of absorption?

In cases of rebellion, other crimes committed in the course of the crime are deemed absorbed in the crime of rebellion either as a means necessary for its commission or as an unintended effect of rebellion.  They cannot be charged as separate offenses in themselves.  The exception is when the common crimes are committed without any political motivation.  In such a case, they will not be absorbed by rebellion.

 If homicide or murder is committed with the use of an unlicensed firearm, how many offenses are there?

There is only one offense – murder or homicide aggravated by the use of unlicensed firearm.  This is by special provision of RA 8294.  (Dissenting opinion of J. Sabio – How can you complex when one is an RPC offense/malum in se  and the other is a violation of a special law/malum prohibitum?)

 X was speeding on a highway when his car collided with another car.  The other car was totally wrecked and the driver of the other car suffered serious physical injuries.  How many informations or complaints should be filed against X?

Only one information should be filed for serious physical injuries and damage to property through reckless imprudence.  The information against X cannot be split into two because there was only one negligent act resulting in serious physical injuries and damage to property.

 Same case, but the injuries suffered by the driver were only slight physical injuries.  How many informations should be filed?

Two informations – one for the slight physical injuries and the other for damage to property.  Light felonies cannot be complexed.

 When can a complaint or information be amended?

BEFORE PLEA, a complaint or information can be amended in form or in substance without leave of court, except if the amendment will downgrade the offense or drop an accused from the complaint or information.  In such a case, the following requisites must be observed:

AFTER PLEA, only formal amendments may be made only with leave of court and when it can be done without causing prejudice to the rights of the accused.

 When can a complaint or information be substituted?

A complaint or information may be substituted if at any time before judgment, it appears that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged or of any other offense necessarily included therein, provided that he will not be placed in double jeopardy.

 What are the distinctions between amendment and substitution?

 When are the rights of the accused prejudiced by an amendment?

 What are substantial amendments?

After plea, substantial amendments are prohibited.  These are amendments involving the recital of facts constituting the offense and determinative of the jurisdiction of the court.  All other matters are merely of form.

 Is an additional allegation of habitual delinquency and recidivism a substantial amendment?

No.  These allegations only relate to the range of the imposable penalty but not the nature of the offense.

 Is an additional allegation of conspiracy a substantial amendment?

Yes because it changes the theory of the defense.  It makes the accused liable not only for his own acts but also for those of his co-conspirators. (Old J. Sabio answer)

The new answer is: No, it is not a substantial amendment in the following example: X is charged with murder as principal.  Later, the complaint is amended to include two other persons who allegedly conspired with X.  Can X invoke double jeopardy on the ground that the amendment is substantial?  No.  The amendment is merely a formal amendment because it does not prejudice the rights of X, who was charged as a principal to begin with.

 Is a change in the items stolen by the accused a substantial amendment?

Yes because it affects the essence of the imputed crime and would deprive the accused of the opportunity to meet all the allegations in preparation of his defense.

 Is a change in the nature of the offense due to supervening event a substantial amendment?

No, it is merely a formal amendment.

 Can the court order the dismissal of the original complaint before a new one is filed in substitution?

No.  The court will not order the dismissal until the new information is filed.

 Where should a criminal action be instituted?

a. In the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred (Exception: Sandiganbayan cases)

b. If committed in a train, aircraft, or other public or private vehicle: in the court of any municipality or territory where the vehicle passed during its trip, including the place of departure or arrival

c.  If committed on board a vessel in the course of its voyage: in the court of the first port of entry or of any municipality or territory where the vessel passed during the voyage, subject to the generally accepted principles of international law

d. Crimes committed outside the Phil but punishable under Article 2 of the RPC: any court where the action is first filed.

 What is a continuing or transitory offense?

Transitory offenses are crimes where some acts material and essential to the crimes and requisite to their commission occur in one municipality or territory and some in another.  Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing.  Examples are estafa, abduction, malversation, libel, kidnapping, violation of BP22.

 How do you determine jurisdiction over a continuing crime?

The courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction.  But the court which first acquires jurisdiction excludes the other courts.

 What are the rules on venue in libel cases?

a. The criminal action for libel may be filed in the RTC of the province or the city where the libelous article is printed and first published.

b. If the offended party is a private individual, the criminal action may also be filed in the RTC of the province where he actually resided at the time of the commission of the offense.

c. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the criminal action may be filed in the RTC of Manila.

d. If the offended party is a public officer whose office is outside Manila, the action may be filed in the RTC of the province or city where he held office at the time of the commission of the offense.

 Can the offended party intervene in the prosecution of the criminal action?

Yes, except if he has waived, has reserved his right, or has already instituted the criminal action.  The reason for this rule is because of Article 100 of the RPC which provides that every person criminally liable shall also be civilly liable and also because there are certain offenses which cannot be prosecuted except upon complaint of the offended party.

 Do the offended parties have the right to move for the dismissal of a case?

No.  The right belongs only to the government prosecutor who is the representative of the plaintiff.

 Can the offended party file a civil action for certiorari in his own name if the RTC dismisses an information?

Yes.  In case of grave abuse of discretion amounting to lack of jurisdiction, the petition may be filed by the offended party because the offended party has an interest in the civil aspect of the case.

RULE 111 PROSECUTION OF CIVIL ACTION

 What is the general rule?

The general rule is when a criminal action is instituted, the civil action for the recovery of the civil liability arising from the offense charged under Article 100 of the RPC shall be deemed instituted with the criminal action.

 What are the exceptions?

The civil action is not deemed instituted in the following cases:

 What is the civil action that is deemed instituted with the criminal action?

Only the civil action for the recovery of civil liability arising from the offense under Article 100 of the RPC, not the independent civil actions under Article 32, 33, 34 and 2176 of the Civil Code.

 What is the dual concept of civil liability?

This means that civil liability may arise from crimes or from quasi-delicts.  Thus, a negligent act causing damage may produce two kinds of civil liability – one arising from crime and another from quasi-delict.  The only limitation is that the offended party may not recover twice from the same act.

 What are the differences between a crime and a quasi-delict?

 What constitutes civil liability?

According to Article 104 of the RPC, it constitutes restitution, reparation, and indemnification for consequential damages.

 What is the basis for the broader concept of civil liability?

The broader concept of civil liability means that every person criminally liable is also civilly liable.  This is because in a criminal offense, there are two offended parties – the state and the private offended party.

 If the complaint does not contain an allegation of damages, is the offender still liable for them?

Yes because every person criminally liable is also civilly liable.  This is subject to the exception when the offended party has waived or has reserved the right to institute the civil action separately.

 When should the reservation be made?

The reservation should be made before the prosecution presents its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

 What is the reason for the rule requiring reservation?

The reason is to prevent double recovery from the same act or omission.

 Can the accused file a counterclaim in the criminal case?

No.

 In a BP 22 case, can the offended party make a reservation of the civil action?

No.  The criminal action shall be deemed to include the civil action, and the offended party is not allowed to make the reservation.  The actual damages and the filing fees shall be equivalent to the value of the check.

 When is the separate civil action suspended?

After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the civil action was instituted, the civil action shall be suspended in whatever stage it may be found before judgment on the merits.  The suspension shall last until final judgment is rendered in the criminal action.

Nonetheless, the civil action may be consolidated with the criminal action at any time before judgment on the merits upon motion of the offended party with the court trying the criminal action.  The evidence presented at the civil action shall be deemed reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witness presented by the offended party in the criminal case and of the parties to present additional evidence.  The consolidated criminal actions shall be tried and decided jointly.

Exception: When there is a prejudicial question in a previously filed civil action, it should be resolved first.

 Are the independent civil actions also deemed suspended with the filing of the criminal action?

No.  Only the civil action arising from the crime under Article 100 is suspended.  The independent civil actions are not suspended and may continue even if the criminal action has been instituted.  However, the offended party may not recover twice from the same act.  He should only get the bigger award.

 What is the effect of an acquittal on the civil action?

The general rule is the civil action is not necessarily extinguished by the acquittal of the accused.  Even if the accused is acquitted, the court can still award civil liability in the following cases:

However, if the decision contains a finding that the act from which the civil liability may arise does not exist, the civil liability is extinguished.

 Can you compel a judge by mandamus to award civil damages?

Yes because every person criminally liable is also civilly liable and also because even if the accused is acquitted, there are cases when he is still civilly liable.

 What is the reason for allowing the civil liability to subsist in spite of the acquittal of the accused?

This is because the parties in the criminal and civil action are different – in the criminal action, the party is the state, while in the civil action, the party is the private offended party.  Also, the two actions required different quantum of evidence.  The criminal action requires proof of guilt beyond reasonable doubt, while the civil action requires mere preponderance of evidence.

 What are the independent civil actions?

The independent civil actions are those provided in Articles 32, 33, 34, and 2176 of the Civil Code.  They may proceed independently of the criminal action and shall require only a preponderance of evidence.

 What is the effect of the death of the accused on the criminal and civil actions?

If the accused dies after arraignment and during the pendency of the criminal action, both the criminal and civil liability arising from the crime shall be extinguished.  However, the independent civil actions may be filed against the estate of the accused after proper substitution, and the heirs of the accused may also be substituted for the deceased.

If the accused dies before arraignment, the case shall be dismissed, without prejudice to any civil action that the offended party may file against the estate of the deceased.

 When the defendant is absolved of civil liability in a civil action, can a criminal action still be filed against him?

Yes.  While every person criminally liable is also civilly liable, the converse is not true.  Therefore, even if the defendant is absolved of civil liability in a civil action, a criminal action can still be filed against him.  Besides, the state is a party in a criminal action, while only the private offended party is a party in the civil action.  Moreover, the quantum of evidence in the civil action is only preponderance of evidence, while that required in the criminal action is proof beyond reasonable doubt. 

 What is a prejudicial question?

A prejudicial question is one based on a fact separate and distinct from the crime but is so intimately related to it that it determines the guilt or innocence of the accused.

 What are the elements of a prejudicial question?

 When is an action for annulment of marriage prejudicial to a bigamy case?

An action for annulment of marriage is prejudicial to a bigamy case only if the accused in the bigamy charge is also the one asking for annulment of the second (bigamous) marriage based on vitiation of consent.  This is because in such a case, if the court declares that the party’s consent was indeed vitiated and annuls the marriage, then it would also mean that the party did not willingly commit the crime of bigamy.  It would thus be determinative of the guilt or innocence of the accused.

RULE 112 PRELIMINARY INVESTIGATION

 What is preliminary investigation?

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

 When is it required?

Before a complaint or information is filed, preliminary investigation is required for all offenses punishable by imprisonment of at least 4 years, 2 months, and 1 day, regardless of the fine, except if the accused was arrested by virtue of a lawful arrest without warrant.  In such a case, the complaint or information may be filed without a preliminary investigation unless the accused asks for a preliminary investigation and waives his rights under Article 125 of the RPC.

 What is the purpose of a preliminary investigation?

 What is the scope of preliminary investigation?

Preliminary investigation is merely inquisitorial and it is often the only means of discovering whether the offense has been committed and the persons responsible for it to enable the fiscal to prepare his complaint or information.  It is not a trial on the merits and has no purpose but to determine whether there is probable cause to believe that an offense has been committed and that the accused is probably guilty of it.  It does not place the accused in jeopardy.

 Is the right to a preliminary investigation a fundamental right?

No, it is a statutory right and may be waived expressly or by silence.  It is also not an element of due process, unless it is expressly granted by law.

 Can an accused demand the right to confront and cross-examine his witnesses during the preliminary investigation?

No.  The preliminary investigation is not part of the trial.  It is summary and inquisitorial in nature, and its function is not to determine the guilt of the accused but merely to determine the existence of probable cause.

 Is the lack of a preliminary investigation a ground for dismissing a complaint?

No.  The absence of a preliminary investigation does not affect the jurisdiction of the court but merely the regularity of the proceedings.  The court cannot dismiss the complaint on this ground, and it should instead conduct the investigation or order the fiscal or lower court to do it.

 What is the effect of the absence of a certification that a preliminary investigation was conducted?

It is of no consequence.  What is important is that there was actually an investigation, that the accused was informed thereof and was allowed to present controverting evidence.

 When should the right to preliminary investigation be invoked?

The accused should invoke it before plea, or else, it is deemed waived.

 What if the court denies the invocation of the right to a preliminary investigation, what is the remedy of the accused?

He must immediately appeal it to the appellate court.  He cannot later raise the issue for the first time on appeal.

 If the complaint or information is amended, should a new preliminary investigation be conducted?

No.

 If the complaint or information is substituted, should a new preliminary investigation be conducted?

Yes.

 Who may conduct a preliminary investigation?

 Can RTC judges conduct a preliminary investigation?

No.  Although this should not be confused with the authority of the RTC to conduct an examination for the purpose of determining probable cause when issuing a warrant of arrest.

 What is the procedure in conducting a preliminary investigation?

 The respondent shall have the right to examine the evidence, etc, etc.

 Is a preliminary investigation a judicial proceeding?

Yes because there is an opportunity to be heard and the production and weighing of evidence upon which a decision is rendered.  Since it is a judicial proceeding, the requirement of due process in judicial proceedings is also required in preliminary investigations.

 What is the difference between criminal investigation and preliminary investigation?

Criminal investigation is a fact-finding investigation carried out by law-enforcement officers for the purpose of determining whether they should file a complaint for preliminary investigation.  Preliminary investigation is conducted for the purpose of determining if there is probable cause to hold a person for trial.

 What is probable cause?

Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

 Is the presence of counsel in the preliminary investigation mandatory?

No.  Preliminary investigation is a summary proceeding and is merely inquisitorial in nature.  The accused cannot yet invoke the full exercise of his rights. 

 How does the investigating prosecutor resolve the findings after preliminary investigation?

without need for a new preliminary investigation.

 If there was no preliminary investigation conducted, what is the remedy of the accused?

(RICA P)

 What should the Secretary of Justice do if an information that has already been filed in court is appealed to him?

He  should, as far as practicable, refrain from entertaining the appeal.  The matter should be left to the determination of the Court.

 If the Secretary of Justice gives due course to the appeal, what should the trial judge do?

He should suspend proceedings and defer arraignment pending the resolution of the appeal.

 Is the determination of probable cause a judicial or executive function?

It depends.  If it is made in a preliminary investigation for the purpose of determining whether there is reasonable ground to believe that the accused has committed the offense and should be held for trial, it is an executive function.  If it is made for the issuance of a warrant of arrest by a judge, it is a judicial function.

 Can the accused file a motion to quash based on insufficiency of evidence?

No.  He cannot pre-empt trial by filing a motion to quash on the ground of insufficiency of evidence.  Whether the function of determining probable cause has been correctly discharged by the prosecutor is a matter that the trial court itself does not and may not pass upon.

 Is the finding of a judge that probable cause exists for the purpose of issuing a warrant of arrest subject to judicial review?

No.  It would be asking the court to examine and assess such evidence as has been submitted by the parties before trial and on the basis thereof, make a conclusion as whether or not it suffices to establish the guilt of the accused.

 What is the remedy of the complainant if the Secretary of Justice does not allow the filing of a criminal complaint against the accused because of insufficiency of evidence?

He can file a civil action for damages against the offender based on Article 35 of the Civil Code.  This would require a mere preponderance of evidence.

 What are the remedies of a party against whom a warrant of arrest has been issued?

(no certiorari)

 What is the procedure in resolving a complaint when the preliminary investigation is conducted by a judge?

 What happens if the judge fails to resolve the case within 10 days from the termination of the investigation?

This constitutes dereliction of duty and is a ground for dismissal of the judge.

 What is the difference between preliminary investigation conducted by the prosecutor and one conducted by the judge?

The prosecutor is not bound by the designation of the offense in the complaint.  After preliminary investigation, he may file any case as warranted by the facts.  The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed.

 If the investigating judge did not issue a warrant for the arrest of the accused during the preliminary investigation, what is the remedy of the prosecutor if he believes that the accused should be immediately placed under custody?

He should file the information in court, so that the RTC may issue the warrant of arrest.  He should not file for mandamus because that could take two years to resolve.

 What is a warrant of arrest?

A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon grounds stated therein.

 When may a warrant of arrest be issued?

By the RTC 

By the MTC

 What are the kinds of offenses that may be filed with the MTC for preliminary investigation?

 When is a warrant of arrest not necessary?

 Are “John Doe” warrants valid?

Generally, John Doe warrants are void because they violate the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested.  But if there is sufficient description to identify the person to be arrested, then the warrant is valid.

 What are the principles governing the finding of probable cause for the issuance of a warrant of arrest?

 How should the complaint or information be filed when the accused is lawfully arrested without warrant?

The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules.  In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer.

 What is the remedy of the person arrested without warrant if he wants a preliminary investigation?

Before the complaint or information is filed, he may ask for one provided that he signs a waiver of his rights under Article 125 of the RPC in the presence of counsel.  He may still apply for bail in spite of the waiver.  The investigation must be terminated within 15 days.

After the complaint of information is filed but before arraignment, the accused may, within 5 days from the time he learns of his filing, ask for a preliminary investigation.

 What is an inquest?

An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case 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 charged in court.

 What are the guidelines to safeguard the rights of an accused who has been arrested without a warrant?

 What is the procedure in cases not requiring a preliminary investigation?

RULE 113 ARREST

 What is arrest?

Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

 How is an arrest made?

Arrest is made by an actual restraint of the person to be arrested or by his submission to the custody of the person making the arrest.

 What does it mean when jurisprudence says that the officer, in making the arrest, must “stand his ground”?

It means that the officer may use such force as is reasonably necessary to effect the arrest.

 What is the duty of the arresting officer who arrests a person?

He must deliver the person immediately to the nearest jail or police station.

 Within what period must a warrant of arrest be served?

There is no time period.  A warrant of arrest is valid until the arrest is effected or until it is lifted.  The head of the office to whom the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned for execution must make a report to the judge who issued it within 10 days from the expiration of the period.  If he fails to execute it, he should state the reasons therefor.

 When is an arrest without warrant lawful?

A peace officer or private person may arrest without warrant:

 A police officer was chasing a person who had just committed an offense.  The person went inside a house, so the police officer followed.  Inside the house, the police officer saw drugs lying around.  Can he confiscate the drugs?  Can he use them as evidence?

Yes.  The plain view doctrine is applicable in this case because there was a prior valid intrusion, the police officer inadvertently discovered the evidence, he had a right to be there, and the evidence was immediately apparent.

 What if the officer merely peeks through the window of the house and sees the drugs – can he confiscate them?  Can he use them as evidence?

He can confiscate them, without prejudice to his liability for violation of domicile.  He cannot use them as evidence because the seizure cannot be justified under the plain view doctrine, there being no previous valid intrusion.  

 When should an arrest be made?

It can be made on any day and at any time of the day and night.

 Can an officer arrest a person against whom a warrant has been issued even if he does not have the warrant with him?

Yes, but after the arrest, if the person arrested requires, it must be shown to him as soon as practicable.

SECTION 14 BAIL

 What is bail?

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.

 What are the forms of bail?

Bail may be in the form of:

 What is recognizance?

Recognizance is an obligation of record, entered into before a court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

 When is bail a matter of right and when is it a matter of discretion?

In the MTC, it is a matter of right before or after conviction, regardless of the offense.

In the RTC, it is a matter of right before conviction, except for offenses punishable by death, reclusion perpetua, or life sentence and the evidence of guilt is strong, in which case it is discretionary.  After conviction, bail is a matter of discretion regardless of the offense.  The application for bail may be filed and acted upon by the trial court as long as the original record of the case has not been transmitted to the appellate court.  However, if the decision of the trial court changed the nature of the offense from non-bailable to bailable, the application should be addressed  and resolved by the appellate court.

 When can the prosecution move for the cancellation or denial of bail of the accused?

If the penalty imposed by the trial court is imprisonment greater than 6 years, the prosecution may move for denial or cancellation of the bail of the accused, with notice to the accused, upon showing of the following circumstances:

 When is a bail hearing necessary?

Bail hearing is mandatory when bail is a matter of discretion.  It is incumbent upon the prosecution to show that the evidence of guilt is strong.  Even if the prosecution is absent or refuses to present evidence, the court cannot grant bail without conducting a hearing.  The court must first be convinced that the evidence does not warrant the denial of bail.

 What is required of the judge who denies an application for bail?

The order should contain a summary of the evidence presented and the reason for the denial, otherwise it shall be void.  This is in order to safeguard the constitutional right to presumption of innocence and also because there is a need for clear grounds before a person can be denied of his liberty.

 If there is a likelihood that the accused would jump bail, what should the court do?

 What is a capital offense?

A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

 What are the duties of the trial judge in case an application for bail is filed?

 What are the guidelines in setting the amount of bail?

 Where should bail be filed?

It may be filed with the court where the case is pending.  In the absence of the judge thereof, bail may be filed with any RTC or MTC 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 and RTC of said place, or if no judge is available, with any MTC judge therein.  

But where bail is a matter of discretion or where the accused seeks to be released on recognizance, bail may only be filed in the court where the case is pending.

Any person in custody who is not yet charged may apply for bail with any court in the province, city or municipality where he is held.

 What is the remedy of the accused if he is denied bail?

He should file a special civil action in the CA, not the SC within 60 days.

 Does an application for bail bar the accused from questioning the validity or his arrest, the validity of the warrant, or the manner of conducting the preliminary investigation?

No, provided that he raises these questions before plea.

RULE 115 RIGHTS OF THE ACCUSED

 What are the rights of the accused in criminal prosecutions?

Due Process

 What are the two aspects of the right to due process?

 Is it necessary to have trial-type proceedings in order to satisfy the requirement of due process?

No.  There is no need for trial-type proceedings in order to satisfy due process.  What is important is that there was an opportunity to be heard.  Notice and hearing are the minimum requirements of due process.

 In general, what are the requirements of procedural due process?

 In criminal cases, what are the requirements of procedural due process?

The requirements in criminal cases are more stringent.  They are:

Presumption of Innocence

 What is the meaning of the right of presumption of innocence?

The right means that the presumption must be overcome by evidence of guilt beyond reasonable doubt.  Guilt beyond reasonable doubt means that there is moral certainty as to the guilt of the accused.  Conviction should be based on the strength of the prosecution and not on the weakness of the defense.  The significance of this is that accusation is not synonymous with guilt.

 What are the exceptions to the constitutional presumption of innocence?

Examples: 

 What is a “reverse trial”?

Usually, the prosecution presents its evidence to establish the guilt of the accused first.  But a reverse trial happens if the accused admits the killing but claims self-defense.  He must first establish the elements of self-defense in order to overturn the presumption that he was guilty of the offense.

Right to be present at the trial

 What are the requisites of a valid trial in absentia?

 Can the right to be present at the trial be waived?

Yes, except in the following situations, where the presence of the accused at the trial is required:

Right to Counsel

 Is there a difference between the right to counsel during custodial investigation and the right to counsel during the trial?

Yes.  In custodial investigation, the right to counsel can only be waived in writing AND with the assistance of counsel.  The counsel required in custodial investigation is competent and independent counsel, preferably of his own (the suspect’s) choice.

During the trial, the right to counsel means the right to effective counsel.

The requirement is stricter during custodial investigation because a trial is done in public, while custodial investigation is not.  The danger that confessions will be extracted against the will of the defendant during custodial investigation does not really exist during trial.

During trial the purpose of counsel is not so much to protect him from being forced to confess but to defend the accused.

Why is the right to counsel afforded during trial?

The right to counsel is embraced in the right to be heard.

 When should the right to counsel be invoked?

The right to counsel may be invoked at any stage of the proceedings, even on appeal.  However, it can also be waived.  The accused is deemed to have waived his right to counsel when he voluntarily submits himself to the jurisdiction of the Court and proceeds with his defense.

But in US v. Escalante and People v. Nang Kay (p. 532 of Herrera Textbook), the Court held that the defendant cannot raise the question of his right to have an attorney for the first time on appeal.  If the question is not raised in the trial court, the prosecution may go to trial.  The question will not be considered in the appellate court for the first time when the accused fails to raise it in the lower court.

Is the duty of the court to appoint counsel-de-oficio mandatory at all times?

No.  The duty to appoint counsel-do-oficio is mandatory only up to arraignment.

 Does the mistake of counsel bind the client?

As a rule, the mistake of counsel binds the client.  Therefore, the client cannot question a decision on the ground that counsel was an idiot.  However, an exception to this is if counsel misrepresents himself as a lawyer, and he turns out to be a fake lawyer.  In this case, the accused is entitled to a new trial because his right to be represented by a member of the bar was violated.  He was thus denied of his right to counsel and to due process.

 Is the right to counsel absolute?

No.  The right of choice must be reasonably exercised.  The accused cannot insist on counsel that he cannot afford, one who is not a member of the bar, or one who declines for a valid reason, such as conflict of interest.  Also, the right of the accused to choose counsel is subject to the right of the state to due process and to speedy and adequate justice.

 When can the accused defend himself in person?

The accused can defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel.

Right to be a Witness on His Own Behalf

 What is the weight of the testimony of an accused who testifies on his own behalf but refuses to be cross-examined?

The testimony will not be given weight.  It will not have probative value because the prosecution was not given a chance to test the credibility of the testimony through cross-examination.

Right Against Self-Incrimination

 What is the scope of the right against self-incrimination?

The right against self-incrimination covers testimonial compulsion only and the compulsion to produce incriminating documents, papers, and chattels.  It does not cover the compulsion to produce real or physical evidence using the body of the accused.

 Is there an exception to the right against self-incrimination?

The right cannot be invoked when the State has the right to inspect documents under its police power, such as documents of corporations.

 What is the rationale for protecting the right against self-incrimination?

There are two reasons:  

 Who may invoke the right against self-incrimination, and when can they invoke the right?

But, once the accused waives his right and chooses to testify in his own behalf, he may be cross-examined on matters covered in his direct examination.  He cannot refuse to answer questions during cross-examination by claiming that the answer that he will give could incriminate him for the crime with which he was charged.  

However, if the question during cross-examination relates to a crime different from that with which he was charged, he can still invoke the right and refuse to answer.

 Can the accused or witness invoke the right against self-incrimination if he is asked about past criminality?

It depends.  If he can still be prosecuted for it, questions about past criminal liability are still covered by the protection of the right against self-incrimination.  But if he cannot be prosecuted for it anymore, he cannot invoke the right.

 What are the rights of the accused in the matter of testifying or producing evidence?

 What are immunity statutes?

The immunity statutes are classified into two – use immunity statutes and transactional immunity statutes.

Use immunity prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. (Therefore, the witness can still be prosecuted, but the compelled testimony cannot be used against him.)

Transactional immunity grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. (Here, the witness cannot be prosecuted at all.)  Examples are state witnesses and those who furnish information about violations of the Internal Revenue Code, even if they themselves offered bribes to the public official.

 What is the effect of the refusal of the accused to refuse to testify in his behalf?

As a general rule, the silence of the accused should not prejudice him.

However, in the following cases, an unfavorable inference is drawn from the failure of the accused to testify:

 Is DNA testing covered by the right against self-incrimination?

No (recent SC ruling).

Right of Confrontation

 What is the meaning of the right of confrontation?

It means that the accused can only be tried using those witnesses that meet him face to face at the trial who give testimony in his presence, with the opportunity to cross-examine them.

 What are the reasons for the right?

 Can the right of confrontation be waived?

Yes, it can be waived either expressly or impliedly.  It is waived impliedly when an accused waives his right to be present at the trial.  The right of confrontation may also be waived by conduct amounting to a renunciation of the right to cross-examine.  When the party was given an opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone, he is deemed to have waived the right.

 What happens to the testimony of a witness who dies or becomes unavailable?

It depends.  If the other party had the opportunity to cross-examine the witness before he died or became unavailable, the testimony may be used as evidence.  However, if the other party did not even have the opportunity to cross-examine before the subsequent death or unavailability of the witness, the testimony will have no probative value.  (An opportunity to cross-examine is all that is necessary in order to allow the use of the testimony of the witness.  There need not be an actual cross-examination, as long as there was an opportunity to do so.)

Right to Compulsory Process

 What is the right to compulsory process?

It is the right of the accused to have a subpoena and/or a subpoena duces tecum issued in his behalf in order to compel the attendance of witnesses and the production of other evidence.

 What happens if a witness refuses to testify when required?

The court should order the witness to give bail or even order his arrest, if necessary.  Failure to obey a subpoena amounts to contempt of court.

Right to Speedy, Public, and Impartial Trial

 How should the trial be conducted?

The trial should be speedy, public, and impartial.

 What is the meaning of the right to speedy trial?

The right means that the trial should be conducted according to the law of criminal procedure and the rules and regulations, free from vexations, capricious, and oppressive delays.

 When should the arraignment and pre-trial be held?

According to the Speedy Trial Act and Circular 38-98, arraignment and pre-trial if the accused pleads not guilty should be held within 30 days from the date the court acquires jurisdiction of the person of the accused.

 Within how many days should the trial be completed?

In no case shall the entire period exceed 180 days from the first day of trial, except as otherwise authorized by the Court Administrator.

 What is the remedy of an accused whose right to speedy trial is violated?

The accused has the following remedies:

 What is the limitation on the right of an accused to a speedy trial?

The limitation is that the State should not be deprived of its day in court.  The right of the State/the prosecution to due process should be respected.

The prosecution and the complainant fail to attend the first hearing.  The court postpones the hearing to another date.  Is there a violation of the right to speedy trial?

No.  The right to speedy trial is violated when there are unjustified postponements of the trial, and a long period of time is allowed to elapse without the case being tried for no justifiable reason.

What is the meaning of the right to a public trial?

It means that anyone interested in observing the manner that a judge conducts the proceedings in his courtroom may do so.

 Why should a trial be conducted in public?

The trial should be public in order to prevent abuses that may be committed by the court to the prejudice of the defendant.  Moreover, the accused is entitled to the moral support of his friends and relatives.

 Is there an exception to the requirement of publicity?

Yes.  The court may bar the public in certain cases, such as when the evidence to be presented may be offensive to decency or public morals, or in rape cases, where the purpose of some persons in attending is merely to ogle at the parties.

 Is it okay to hold the trial in the chambers of the judge?

Yes.  There is no violation of the right to a public trial, since the public is not excluded from attending the trial.

 In so-called trials by publicity, when can the publicity be considered prejudicial to the accused?

To warrant a finding of prejudicial publicity, there must be allegations and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity.

Right to Appeal, When Allowed

 Is the right to appeal a fundamental right?

No.  The right to appeal is a statutory right, except in the case of the minimum appellate jurisdiction of the Supreme Court granted by the Constitution.  Anyone who seeks to exercise the right to appeal must comply with the requirements of the rules.

 Can the right to appeal be waived?

Yes, it can be waived expressly or impliedly.

 What is the effect of the flight of the accused on his right to appeal?

When the accused flees after the case has been submitted to the court for decision, he will be deemed to have waived his right to appeal from the judgment rendered against him.

RULE 116 ARRAIGNMENT AND PLEA

 Where should the accused be arraigned?

The accused must be arraigned before the court where the complaint was filed or assigned for trial.

 How is arraignment made?

Arraignment is made: 

 Can there be an arraignment without the presence of the accused?

No.  The accused must be present at the arraignment and must personally enter his plea.

 What is the effect of the refusal of the accused to enter a plea?

If the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

 X is charged with homicide.  He pleads guilty but presents evidence to establish self-defense.  What should the court do?

The court should withdraw the plea and enter a plea of not guilty.

 When should the arraignment be held?

The general rule is that the accused should be arraigned within 30 days from the date the court acquires jurisdiction over the person of the accused.  The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

However, in the following cases, the accused should be arraigned with a shorter period:

 Can the lawyer of the accused enter a plea for him?

No.  The accused must personally enter his plea.

 What is the importance of arraignment?

Arraignment is the means for bringing the accused into court and informing him of the nature and cause of the accusation against him.  During arraignment, he is made fully aware of possible loss of freedom or life.  He is informed why the prosecuting arm of the State is mobilized against him.  It is necessary in order to fix the identity of the accused, to inform him of the charge, and to give him an opportunity to plead.

 During the arraignment, is the judge duty-bound to point out that an information is duplicitous?

No.  The judge has no obligation to point out the duplicitousness or any other defect in an information during arraignment.  The obligation to move to quash a defective information belongs to the accused, whose failure to do so constitutes a waiver of the right to object.

 X was tried for murder without having been arraigned.  At the trial, X’s counsel presented witnesses and cross-examined the prosecution witnesses.  It was only after the case was submitted for decision that X was arraigned.  X was convicted.  Can X invoke the failure of the court to arraign him before trial as a ground for questioning the conviction?

No.  The failure of the court to arraign X before trial was conducted did not prejudice the rights of X since he was able to present evidence and cross-examine the witnesses of the prosecution.  The error was cured by the subsequent arraignment.

 Is the accused presumed to have been arraigned in the absence of proof to the contrary?

Yes.  In view of the presumption of regularity in the performance of official duties, it can be presumed that a person accused of a crime was arraigned, in the absence of proof to the contrary.  However, the presumption of regularity is not applied when the penalty imposed is death.  When the life of a person is at stake, the court cannot presume that there was an arraignment; it has to be sure that there was one.

 Is the accused entitled to know in advance the names of all of the prosecution witnesses?

No.  The success of the prosecution might be endangered if this right were granted to the accused.  The witnesses might be subjected to pressure or coercion.  The right time for the accused to know their identities is when they take the witness stand.

 Can the prosecution call witnesses that are not listed in the information?

Yes.  The prosecution may call at the trial witnesses other than those named in the complaint or information.

 X was charged with homicide.  He entered a plea of guilty.  He was later allowed to testify in order to prove the mitigating circumstance of incomplete self-defense.  At the trial, he presented evidence to prove that he acted in complete self-defense.  The court acquitted him.  Later, X was again charged with physical injuries.  X invoked double jeopardy.  Can X be prosecuted again for physical injuries?

Yes.  There was no double jeopardy.  In order for double jeopardy to attach, there must have been a valid plea to the first offense.  In this case, the presentation by X of evidence to prove complete self-defense had the effect of vacating his plea of guilt.  When the plea of guilt was vacated, the court should have ordered him to plead again, or at least should have directed that a new plea of not guilty be entered for him.  Because the court did not do this, at the time of the acquittal, there was actually no standing plea for X.  Since there was no valid plea, there can be no double jeopardy.

 Can a person who pleaded guilty still be acquitted?

Yes.  When an accused pleads guilty, it does not necessarily follow that he will be convicted.  Additional evidence independent of the guilty plea may be considered by the judge to ensure that the plea of guilt was intelligently made.  The totality of evidence should determine whether the accused should be convicted or acquitted.

 When can the accused plead guilty to a lesser offense?

At arraignment, the accused may plead guilty to a lesser offense which is necessarily included in the offense charged, provided that the offended party and the prosecutor give their consent.

After arraignment BUT BEFORE TRIAL, the accused may still be allowed to plead guilty to a lesser offense, after he withdraws his plea of not guilty.  In such a case, the complaint or information need not be amended.

When the penalty imposable for the offense is at least 6 years and 1 day or a fine exceeding P12,000, the prosecutor must first submit his recommendation to the City or Provincial Prosecutor or to the Chief State Prosecutor for approval.  If the recommendation is approved, the trial prosecutor may then consent to the plea of guilty to a lesser offense.

 What should the court do when the accused pleads guilty to a capital offense?

The court should: 

 Does a plea of guilty mean an admission even of the aggravating circumstances?

Yes.  A plea of guilty results in the admission of all the material facts in the complaint or information, including the aggravating circumstances.  Because of this, the court should only accept a clear, definite, and unconditional plea of guilty.

 When can the plea of guilty be considered a mitigating circumstance?

It is mitigating if made before the prosecution starts to present evidence.

 What is the meaning of the duty of the judge to conduct a “searching inquiry”?

In all cases, the judge must convince himself: (1) that the accused is entering the plea of guilty voluntarily and intelligently; and (2) that he is truly guilty and that there exists a rational basis for a finding of guilt based on his testimony.

In addition, the judge must inform the accused of the exact length of imprisonment and the certainty that he will serve it at the national penitentiary or a penal colony.  The judge must dispel any false notion that the accused may have that he will get off lightly because of his plea of guilt.

 Is it mandatory for the prosecution to present proof of aggravating circumstances?

Yes.  It is mandatory in order to establish the precise degree of culpability and the imposable penalty.  Otherwise, there is an improvident plea of guilty.

 Can a court validly convict an accused based on an improvident plea of guilty?

Yes.  If there is adequate evidence of the guilt of the accused independent of the improvident plea of guilty, the court may still convict the accused.  The conviction will be set aside only if the plea of guilt is the sole basis of the judgment.

 What should the court do when the accused pleads guilty to a non-capital offense?

The court may receive evidence from the parties to determine the penalty to be imposed.  Unlike in a plea of guilty to a capital offense, the reception of evidence in this case is not mandatory.  It is merely discretionary on the court.

 When can the validity of a plea of guilty be attacked?

Generally, a plea of guilty cannot be attacked if it is made voluntarily and intelligently.  It can only be attacked if it was induced by threats, misrepresentation, or bribes.  When the consensual character of the plea is called into question or when it is shown that the defendant was not fully apprised of its consequences, the plea can be challenged.

 Can an improvident plea of guilty be withdrawn as a matter of right?

No.  The withdrawal of the plea of guilty is not a matter of strict right to the accused but is within the discretion of the court.  The reason for this is that trial has already commenced; withdrawal of the plea will change the theory of the case and will put all of the past proceedings to waste.  Therefore, it may only be withdrawn with permission of the court.  

Moreover, there is a presumption that the plea was made voluntarily.  The court must decide whether the consent of the accused was, in fact, vitiated when he entered his plea.

 X is charged with homicide.  He pleads guilty, but tells the judge “hindi ko sinasadya.”  Is his plea valid?

No.  In order to be valid, the plea of guilty must be unconditional.  In this case, when X said “hindi ko sinasadya,” he made a qualified plea of guilty.  This is not a valid plea of guilty.  A plea of not guilty should be entered instead.

 When a defendant appears without an attorney during arraignment, what should the court do?

The court has a four-fold duty:

 What is the reason for this four-fold duty?

The right to be heard would be of little avail if it does not include the right to be heard by counsel.

 What is the effect of the failure of the court to comply with these duties?

It is a violation of due process.

 What is a counsel de oficio?

Counsel de oficio is counsel appointed by the court to represent and defend the accused in case he cannot afford to employ one himself.

 Who can be appointed as counsel de oficio?

The court, considering the gravity of the offense and the difficulty of the questions that may arise shall appoint as counsel de oficio:

But, in localities where such members of the bar are not available, the court may appoint any person who is:

 What is the difference between the duty of the court to appoint counsel de oficio during arraignment and during trial?

During arraignment, the court has the affirmative duty to inform the accused of his right to counsel and to provide him with one in case he cannot afford it.  The court must act on its own volition, unless the right is waived by the accused.

On the other hand, during trial, it is the accused who must assert his right to counsel.  The court will not act unless the accused invokes his rights.

 Can a non-lawyer represent the accused during arraignment?

No.  During arraignment, it is the obligation of the court to ensure that the accused is represented by a lawyer because it is the first time when the accused is informed of the nature and cause of the accusation against him.  This is a task which only a lawyer can do.

But during trial, there is no such duty.  The accused must ask for a lawyer, or else, the right is deemed waived.  He can even defend himself personally.

 May an accused be validly represented by a non-lawyer at the trial?

If the accused knowingly engaged the services of the non-lawyer, he is bound by the non-lawyer’s actions.  But if he did not know that he was being represented by a non-lawyer, the judgment is void because of the misrepresentation.

 What are the duties of the pubic attorney if the accused assigned to him is imprisoned?

 What is a bill of particulars?

It is a more specific allegation.  A defendant in a criminal case who believes or feels that he is not sufficiently informed of the crime with which he is charged and not in a position to defend himself properly and adequately could move for a bill or particulars or specifications.

 What is the purpose of a bill of particulars?

It is to allow the accused to prepare for his defense.

 When can the accused move for a bill of particulars?

The accused must move for a bill of particulars before arraignment.  Otherwise, the right is deemed waived.

 What should be contained in the motion for a bill or particulars?

It should specify the alleged defects of the complaint or information and the details desired.

 What is the right to modes of discovery?

It is the right of the accused to move for the production or inspection or material evidence in the possession of the prosecution.  It authorizes the defense to inspect, copy, or photograph any evidence of the prosecution in its possession after obtaining permission of the court.

 What is the purpose of this right?

The purpose is to prevent surprise to the accused and the suppression or alteration of evidence.

 Is this right available during preliminary investigation?

Yes, when indispensable to protect his constitutional right to life, liberty, and property. (Webb v. de Leon)

 What are the grounds for suspending arraignment?

 What is the test to determine whether the insanity of the accused should warrant the suspension of the proceedings?

The test is whether the accused will have a fair trial with the assistance of counsel, in spite of his insanity.  Not every aberration of the mind or exhibition of mental deficiency is sufficient to justify suspension.

RULE 117 MOTION TO QUASH

 When can the accused file a motion to quash?

At any time before entering his plea, the accused may move to quash the complaint or information.

 What is the form required for a motion to quash?

 Can the court dismiss the case based on grounds that are not alleged in the motion to quash?

As a general rule, no.  The court cannot consider any ground other than those stated in the motion to quash.  The exception is lack of jurisdiction over the offense charged.  If this is the ground for dismissing the case, it need not be alleged in the motion to quash since it goes into the very competence of the court to pass upon the case.

 What are the grounds that the accused may invoke to quash a complaint or information?

 X filed a motion to quash an information on the ground that he was in the US when the crime charged was committed.  Should the motion be granted?

The motion should be denied.  The accused is already making a defense.  Matters of defense are generally not a ground for a motion to quash.  They should be presented at the trial.

 What is meant by the statement that “a motion to quash hypothetically admits allegations of fact in the information”?

It means that the accused argues that assuming that the facts charged are true, the information should still be dismissed based on the ground invoked by the defendant.  Therefore, since the defendant assumes that the facts in the information are true, only these facts should be taken into account when the court resolves the motion to quash.  Other facts, such as matters of defense, which are not in the information should not be considered.  Exceptions to this rule are when the grounds invoked to quash the information are extinction of criminal liability, prescription, and former jeopardy.  In these cases, additional facts are allowed.

 Can the accused move to quash on the ground that he was denied due process?

No.  Denial of due process is not one of the grounds for a motion to quash.

 X filed a motion to quash on the following grounds: that the court lacked jurisdiction over the person of the accused and that the complaint charged more than one offense.  Can the court grant the motion on the ground of lack of jurisdiction over the person of the accused?

No.  A motion to quash on  the ground of lack of jurisdiction over the person of the accused must be based only on this ground.  If other grounds are included, there is a waiver, and the accused is deemed to have submitted himself to the jurisdiction of the court.

 What is the effect of an information that was signed by an unauthorized person?

It is a VALID information signed by a competent officer which, among other requisites, confers jurisdiction over the person of the accused and the subject matter of the accusation.  Thus, an infirmity in the information such as lack of authority of the officer signing it cannot be cured by silence, acquiescence, express consent, or even amendment.

 What happens if the defendant enters his plea before filing a motion to quash?

By entering his plea before filing the motion to quash, the defendant waives FORMAL objections to the complaint or information.

But if the ground for the motion is any of the following, there is no waiver.  The ground may be raised at any stage of the proceeding:

 How is criminal liability extinguished?

Under Article 89 of the RPC, criminal liability is extinguished by:

 X and Y were charged with adultery.  While the case was being tried, X died.  What happens to the criminal liability of X and Y?

The criminal liability of X is extinguished.  The criminal liability of Y subsists.  The death of one of several accused will not be a cause for dismissal of the criminal action as against the other accused.

 What is the effect of the death of the offended party on the criminal liability of the accused?

Where the offense charged in a criminal complaint or information is one against the state, involving peace and order, the death of the offended party before final conviction of the defendant will not abate the prosecution.  Neither does the death of the offended party in private crimes abate the prosecution.

 What are the means by which criminal liability is partially extinguished?

 What are the distinctions between pardon and amnesty?


AMNESTYPARDON
TYPE OF OFFENSEPolitical offensesInfractions of the peace (common crimes)
BENEFICIARYClasses of personsAn individual
CONCURRENCE OF CONGRESSNecessaryNot necessary
ACCEPTANCEBeneficiary need not acceptNeed for distinct acts of acceptance on the part of the pardonee
JUDICIAL NOTICECourts take judicial notice because it is a public actCourts do not take judicial notice because it is a private act of the President.  Therefore, it must be proved in court.
EFFECT Abolishes the offense (looks backward)Relieves the offender from the consequences of the offense (looks forward)
WHEN IT MAY BE GRANTEDBefore or after prosecutionOnly after conviction by final judgment

 What is the effect of absolute pardon upon criminal liability?

Absolute pardon blots out the crime.  It removes all disabilities resulting from the conviction, such as the political rights of the accused.

 What is the effect of pardon by the offended party upon criminal liability?

As a general rule, pardon by the offended party does not extinguish criminal liability.  Only civil liability is extinguished by express waiver of the offended party.

However, pardon granted before the institution of the criminal proceedings in cases of adultery, concubinage, seduction, abduction, and acts of lasciviousness shall extinguish criminal liability.

 What is the effect of marriage of the offender with the offended party in private crimes?

It shall extinguish the criminal action or remit the penalty already imposed.  This applies even to co-principals, accomplices, and accessories.

However, where multiple rape is committed, marriage of the offended party with one defendant extinguishes the latter’s liability and that of his accessories or accomplices for a single crime of rape cannot extend to the other acts of rape.

 If the offender in rape is the legal husband of the offended party, how can the husband’s criminal liability be extinguished?

The subsequent forgiveness by the wife shall extinguish the criminal action or the penalty.  But the penalty shall not be abated if the marriage is void ab initio.

 Why is prescription a ground for a motion to quash?

This is meant to exhort the prosecution not to delay; otherwise, they will lose the right to prosecute.  It is also meant to secure the best evidence that can be obtained.

 What are the prescriptive periods of crimes?

OFFENSEPRESCRIPTIVE PERIOD
Punishable by death, reclusion perpetua, or reclusion temporal20 years
Punishable by other afflictive penalties10 years
Punishable by arresto mayor5 years
Libel or other similar offenses2 years
Oral defamation and slander by deed6 months
Light offenses2 months

 Can the accused still raise prescription as a defense even after conviction?  Can the defense of prescription be waived?

The accused can still raise prescription as a defense even after conviction.  The defense cannot be waived.  This is because the criminal action is totally extinguished by the expiration of the prescriptive period.  The State thereby loses or waives its right to prosecute and punish it.

 What is the proper action of the court when the accused raises the defense of prescription?

The proper action for the court is to exercise its jurisdiction and to decide the case upon the merits, holding the action to have prescribed and absolving the defendant.  The court should not inhibit itself because it does not lose jurisdiction over the subject matter or the person of the accused by prescription.  

 What is the effect of prescription of the offense on the civil liability of the accused?

The extinction of the penal action does not carry with it the extinction of the civil action to enforce civil liability arising from the offense charged, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist.

 What should the court do if the accused moves to quash the complaint or information on grounds that can be cured by amendment (ex: duplicitous)?

The court should order that the amendment be made.

 What should the court do if the accused moves to quash on the ground that the facts charged do not constitute an offense?

The court should give the prosecution the opportunity to correct the defect by amendment.  If the prosecution fails to make the amendment, or if, after it makes the amendment, the complaint or information still suffers from the same defect, the court should grant/sustain the motion to quash.

 What is the effect if a motion to quash is sustained?

The court may order that another complaint or information be filed against the accused for the same offense, except if the ground for sustaining the motion to quash is either: 

The grant of a motion to quash on these two grounds is a bar to another prosecution for the same offense.

If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail.

If no order is made, or if no new information was filed within the time specified by the court, the accused, if in custody, shall be discharged.

 What is the remedy of the accused if the court denies his motion to quash?

The accused cannot appeal an order overruling his motion to quash.  This is because an order denying a motion to quash is interlocutory; it does not dispose of the case upon its merits.  The accused should go to trial and raise it as an error on appeal later.

 What are the two kinds of jeopardy?

 What are the requisites for the accused to raise the defense of double jeopardy?

To raise the defense of double jeopardy, the following requisites must be present:

 What are the requisites for the first jeopardy to attach?

  A crime was committed in Makati.  The case was filed in Pasay.  When the prosecution realized that the complaint should have been filed in Makati, it filed the case in Makati.  Can the accused invoke double jeopardy?

No.  The court in Pasay had no jurisdiction; therefore, the accused was in no danger of being placed in jeopardy.  The first jeopardy did not validly attach.

 For purposes of double jeopardy, when is a complaint or information valid?

A complaint or information is valid if it can support a judgment of conviction.  It the complaint or information is not valid, it would violate the right of the accused to be informed of the nature and cause of the accusation against him.  If he is convicted under this complaint or information, the conviction is null and void.  If the conviction is null and void, there can be no first jeopardy.

 X was charged with qualified theft.  X moved to dismiss on the ground of insufficiency of the information.  The case was dismissed.  Subsequently, the prosecution filed a corrected information.  Can X plead double jeopardy?

No.  The first jeopardy did not attach because the first information was not valid. 

 X was charged with theft.  During the trial, the prosecution was able to prove estafa.  X was acquitted of theft.  Can X be prosecuted for estafa later without placing him in double jeopardy?

Yes.  For jeopardy to attach, the basis is the crime charged in the complaint or information, and not the one proved at the trial.  In this case, the crime charged in the first information was theft.  X was therefore placed in jeopardy of being convicted of theft.  Since estafa is not an offense which is included or necessarily includes theft, X can still be prosecuted for estafa without placing him in double jeopardy.

 The estafa case against X was dismissed, but the dismissal contained a reservation of the right to file another action.  Can another estafa case be filed against X without placing him in double jeopardy?

Yes.  To raise the defense of double jeopardy, the firs jeopardy must have been validly terminated.  This means that there must have been either a conviction or an acquittal, or an unconditional dismissal of the case.  A provisional dismissal, such as this one, does not validly terminate the first jeopardy.

Note, however, that in the second kind of jeopardy (one act punished by a law and an ordinance), the first jeopardy can only be terminated either by conviction or acquittal, and not by dismissal of the case without the express consent of the accused.

 X was charged with theft.  On the day of the trial, the prosecution could not go to trial because important witnesses were unable to appear.  Counsel for the accused moved to dismiss the case.  The court dismissed the case provisionally.  Subsequently, X was charged with theft again.  Can X invoke double jeopardy?

No.  The case was dismissed upon motion of counsel for the accused, so it was not dismissed without his express consent.  Moreover, the dismissal was only provisional, which is not a valid termination of the first jeopardy.  In order to validly terminate the first jeopardy, the dismissal must have been unconditional.

 X was charged with slight physical injuries.  On his motion, the case was dismissed during the trial.  Another case for assault upon a person in authority was filed against him.  Can X invoke double jeopardy?

No.  The first jeopardy was not terminated through either conviction, acquittal, or dismissal without the express consent of X.  The first case was dismissed upon motion of X himself.  Therefore, he cannot invoke double jeopardy.

 X was charged with theft.  During trial, the evidence showed that the offense committed was actually estafa.  What should the judge do?

The judge should order the substitution of the complaint for theft with a new one charging estafa.  Upon filing of the substituted complaint, the judge should dismiss the original complaint.  

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.

 What are the requisites for a valid substitution of a complaint or information?

 X was charged with homicide.  On the first day of trial, the prosecution failed to appear.  The court dismissed the case on the ground of violation of the right of the accused to speedy trial.  X was later charged with murder.  Can X invoke double jeopardy?

No.  The first jeopardy was not validly terminated.  The judge who dismissed the case on the ground of violation of the right of X to speedy trial committed grave abuse of discretion in dismissing the case after the prosecution failed to appear once.  This is not a valid dismissal because it deprives the prosecution of due process.  When the judge gravely abuses his discretion in dismissing a case, the dismissal is not valid.  Therefore, X cannot invoke double jeopardy.

 Distinguish between dismissal and acquittal.

Acquittal is always based on the merits.  The accused is acquitted because the evidence does not show his guilt beyond reasonable doubt.  Dismissal does not decide the case on the merits, nor does it determine that the accused is not guilty.  Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance.

 When is a dismissal of the case, even with the express consent of the accused, equivalent to an acquittal, which would constitute a bar to a second jeopardy?  When is it not a bar to a second jeopardy?

A dismissal upon motion of the accused or his counsel negates the application of double jeopardy because the motion of the accused amounts to express consent, EXCEPT:

In these two cases, even upon motion of the accused, the dismissal amounts to an acquittal and would bar a second jeopardy.

But if the accused moves to dismiss on the following grounds, he can still be prosecuted for the same offense because he is deemed to have waived his right against a second jeopardy:

 When will dismissal or termination of the first case not bar a second jeopardy?

The conditions when dismissal or termination will not place the accused in double jeopardy are:

 Before the prosecution could finish presenting its evidence, the accused filed a demurrer to evidence.  The court granted the motion and dismissed the case on the ground of insufficiency of evidence of the prosecution.  Can the accused be prosecuted for the same offense again?

Yes.  There was no double jeopardy because the court exceeded its jurisdiction in dismissing the case even before the prosecution could finish presenting evidence.  It denied the prosecution of its right to due process.  Because of this, the dismissal is null and void and cannot constitute a proper basis for a claim of double jeopardy.

 The prosecutor filed an information against X for homicide.  Before X could be arraigned, the prosecutor withdrew the information, without notice to X.  The prosecutor then filed an information against X for murder.  Can X invoke double jeopardy?

No.  X has not yet been arraigned under the first information.  Therefore, the first jeopardy did not attach.  A nolle prosequi or dismissal entered before the accused is placed on trial and before he pleads is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense.

 If the accused fails to object to the motion to dismiss the case filed by the prosecution, is he deemed to have consented to the dismissal?  Can he still invoke double jeopardy?

No.  Silence does not mean consent to the dismissal.  If the accused fails to object or acquiesces to the dismissal of the case, he can still invoke double jeopardy, since the dismissal was still without his express consent.  He is deemed to have waived his right against double jeopardy if he expressly consents to the dismissal.

 X was charged with murder.  The prosecution moved to dismiss the case.  Counsel for X wrote the words “No objection” at the bottom of the motion to dismiss and signed it.  Can X invoke double jeopardy later on?

No.  X is deemed to have expressly consented to the dismissal of the case when his counsel wrote “No objection at the bottom of the motion to dismiss.  Since the case was dismissed with his express consent, X cannot invoke double jeopardy.

 X was charged with murder.  After the prosecution presented its evidence, X filed a motion to dismiss on the ground that the prosecution failed to prove that the crime was committed within the territorial jurisdiction of the court.  The court dismissed the case.  The prosecution appealed.  Can X invoke double jeopardy?

No.  X cannot invoke double jeopardy.  The dismissal was upon his own motion, so it was with his express consent.  Since the dismissal was with his express consent, he is deemed to have waived his right against double jeopardy.  The only time when a dismissal, even upon motion of the accuse, will bar a second jeopardy is if it is based either on insufficiency of evidence or denial of the right of the accused to speedy trial.  These are not the grounds invoked by X, so he cannot claim double jeopardy.

 X was charged with homicide.  X moved to dismiss on the ground that the court had no jurisdiction.  Believing that it had no jurisdiction, the judge dismissed the case.  Since the court, in fact, had jurisdiction over the case, the prosecution filed another case in the same court.  Can X invoke double jeopardy?

No.  X is estopped from claiming that he was in danger of being convicted during the first case, since he had himself earlier alleged that the court had no jurisdiction.

 X was charged with homicide.  The court, believing that it had no jurisdiction, motu propio dismissed the case.  The prosecution appealed, claiming that the court, in fact, had jurisdiction.  Can X invoke double jeopardy?

Yes.  When the trial court has jurisdiction but mistakenly dismisses the complaint or information on the ground of lack of it, and the dismissal was not at the request of the accused, the dismissal is not appealable because it will place the accused in double jeopardy.

 X was charged with rape.  X moved to dismiss on the ground that the complaint was insufficient because it did not allege lewd designs.  The court dismissed the case.  Later, another case for rape was filed against X.  Can X invoke double jeopardy?

No.  Like the previous problem, X is estopped from claiming that he could have been convicted under the first complaint.  He himself moved to dismiss on the ground that the complaint was insufficient.  He cannot change his position and now claim that he was in danger of being convicted under that complaint.

 X was charged with murder, along with three other people.  X was discharged as a state witness.  Can X be prosecuted again for the same offense?

It depends.  As a general rule, an order discharging an accused as a state witness amounts to an acquittal, and he is barred from being prosecuted again for the same offense.  However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge, he can be prosecuted again.

 Can a person accused of estafa be charged with violation of BP22 without placing him in double jeopardy?

Yes.  Where two different laws define two crimes, prior jeopardy as to one of the is no obstacle to a prosecution of the other although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.  Other examples: Illegal recruitment and estafa, illegal fishing and illegal possession of explosives, alarm and scandal and illegal discharge of firearms, brigandage and illegal possession of firearms, consented abduction and qualified seduction.

But take note of the following:

Possession of a shotgun and a revolver by the same person at the same time is only one act of possession, so there is only one violation of the law.

Conviction for smoking opium bars prosecution for illegal possession of the pipe.  He cannot smoke the opium without the pipe.

Theft of 13 cows at the same time and in the same place is only one act of theft.

Conviction for less serious physical injuries bars prosecution for assault upon a person in authority.

Reckless imprudence resulting in damage to property and serious or less serious physical injuries is only one offense.  If it is slight physical injuries, it can be broken down into two offenses, since a light offense cannot be complexed.

 X installed a jumper cable which allowed him to reduce his electricity bill.  He was prosecuted for violating a municipal ordinance against unauthorized installation of the device.  He was convicted.  Can he still be prosecuted for theft?

No.  Under the second type of jeopardy, when an act is punished by a law and an ordinance, conviction or acquittal under once will bar a prosecution under the other.  (But remember, that there has to be either conviction or acquittal.  Dismissal without the express consent of the accused is not sufficient).

 What are the exceptions to double jeopardy?  When can the accused be charged with a second offense which necessarily includes the offense charged in the former complaint or information?

The conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following circumstances:

 What is the doctrine of supervening fact?

If, after the first prosecution, a new fact supervenes on which the defendant may be held liable, altering the character of the crime and giving rise to a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.

 X was charged with frustrated homicide.  There was nothing to indicated that the victim was going to die.  X was arraigned.  Before trial, the victim dies.  Can X be charged with homicide?

It depends.  If the death of the victim can be traced to the acts of X, and the victim did not contribute to his death with his negligence, X can be charged with homicide.  This is a supervening fact.  But if the act of X was not the proximate cause of death, he cannot be charged with homicide.

 X was charged with reckless imprudence resulting in homicide and was acquitted. The heirs of the victim appealed the civil aspect of the judgment. X claims that the appeal will place him in double jeopardy.  Is X correct?

No.  There was no second jeopardy.  What was elevated on appeal was the civil aspect of the case, not the criminal aspect.  The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged.

 X was charged with murder and was acquitted.  Can the prosecution appeal the acquittal?

No.  The prosecution cannot appeal the acquittal, since it would place the accused in double jeopardy.

Even if the decision of acquittal was erroneous, the prosecution still cannot appeal the decision.  It would still place the accused in double jeopardy.

 When can the prosecution appeal despite the dismissal or termination of the case?

As a general rule, the dismissal or termination of the case after arraignment and plea of the defendant to a valid information shall be a bar to another prosecution for the same offense, an attempt or frustration thereof, or one included or which includes the previous offense.  The exceptions are:

 What is the effect of the appeal by the accused?

If the accused appeals, he waives his right against double jeopardy.  The case is thrown wide open for review and a penalty higher than that of the original conviction could be imposed upon him.

 What should the accused do if the court denies the motion to quash on the ground of double jeopardy?

He should plead not guilty and reiterate his defense of former jeopardy.  In case of conviction, he should appeal from the judgment, on the ground of double jeopardy.

 When can a case be provisionally dismissed?

A case can only be dismissed provisionally if the accused expressly consents, and with notice to the offended party.  Provisional dismissal does not place the accused in double jeopardy.  But, ff the accused objects to the provisional dismissal, a revival of the case would place him in double jeopardy.

 When does the provisional dismissal become final?

The provisional dismissal of offenses punishable by imprisonment exceeding 6 years or a fine of any amount shall become permanent after 1 year without the case having been revived.

For offenses punishable by imprisonment of more than 6 years, the provisional dismissal shall become permanent after 2 years without the case having been revived.

After the provisional dismissal becomes final, the accused cannot be prosecuted anymore.

RULE 118 PRE-TRIAL

 When is pre-trial required?

Pre-trial is mandatory in all criminal cases cognizable by the Sandiganbayan, RTC, MTCs and Municipal Circuit Trial Courts.

 When should it be conducted?

After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused.

 What happens during pre-trial?

The following things are considered:

 What is the form required for the pre-trial agreement?

Any agreement or admission entered into during the pre-trial conference should be:

Otherwise, it cannot be used against the accused.

 What is a pre-trial order?

It is an order issued by the court after the pre-trial conference containing:

The pre-trial order binds the parties, limits the trial to matters not disposed of, and controls the course of the action during the trial, unless modified by the court to prevent manifest injustice.

 What is plea bargaining?  Why is it encouraged?

It is the disposition of criminal charges by agreement between the prosecution and the accused.  It is encouraged because it leads to prompt and final disposition of most criminal cases.  It shortens the time between charge and disposition and enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

 When is plea bargaining not allowed?

It is not allowed under the Dangerous Drugs Act where the imposable penalty is reclusion perpetua to death.

RULE 119 TRIAL

 How much time does the accused have to prepare for trial?

After he enters his plea of not guilty, the accused shall have at least 15 days to prepare for trial.  The trial shall commence within 30 days from receipt of the pre-trial order.

 How long should the trial last?

The entire trial period should not exceed 180 days from the first day of trial, except if authorized by the Supreme Court.

 What are the duties of the presiding judge under the continuous trial system?

The judge should:

 In which cases is the time limitation not applicable?

 What are the periods that should be excluded in computing the time within which trial must commence?

 What are examples of other proceedings concerning the accused which should be excluded from the computation of time?

 When is an essential witness considered absent?

When his whereabouts are unknown or cannot be determined with due diligence.

 When is an essential witness considered unavailable?

When his whereabouts are known but his presence at the trial cannot be obtained with due diligence.

 What are the factors for granting a continuance/postponement?

No continuance 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.

 Is the grant of a motion for continuance or postponement a matter of right?

No.  It is a matter of discretion on the part of the court.

 What are the public attorney’s duties where his client is being preventively detained?

 If the accused is not brought to trial within the time limit required, what is the remedy?

The accused should move to dismiss the information of the ground of denial of his right to speedy trial.  He shall have the burden of proving the motion, but the prosecution shall have the burden or proving that the delay was covered by the allowed exclusions of time.  If the complaint or information is dismissed, the accused can plead double jeopardy to a subsequent prosecution.

The accused must move to dismiss before actually going to trial.  Otherwise, it is a waiver of the right to dismiss.

 What is the order of trial?

The trial proceeds in the following order:

However, when the accused admits the act or omission charged in the complaint or information, but interposes a lawful defense, there will be a reverse trial.

 Distinguish between a negative defense and an affirmative defense.

A negative defense requires the prosecution to prove the guilt of the accused beyond reasonable doubt.  In a negative defense, the accused claims that one of the elements of the offense charged is not present.  It is incumbent upon the prosecution to prove the existence of this element.  For example, in illegal possession of firearms, the accused may interpose the negative defense that he had a license to carry the firearm.  He cannot be compelled by the prosecution to present the license.  It is the duty of the prosecution to prove the absence of the license, which is an essential element of the offense charged.

On the other hand, in an affirmative defense, the accused admits the act or omission charged, but interposes a defense, which if proven, would exculpate him.  For example, the accused admits killing the victim, but he claims that he did it in self-defense.  In this case, the burden of proving the elements of self-defense belong to the accused.  There will be a reverse trial in which the accused will prove the elements of self-defense.  This is because the accused admits the act or omission already.  The prosecution need not prove it anymore.  The accused must now present evidence to justify the commission of the act.

 Who may examine a defense witness?  Who may examine a prosecution witness?

A defense witness may be examined by any judge or by any member of the bar in good standing designated by the judge, or before an inferior court.

On the other hand, a prosecution witness may only be examined before the judge of the court where the case is pending.

 If there are two or more accused, should they be tried jointly or separately?

As a general rule, when two or more accused are jointly charged with an offense, they should also be tried jointly.  However, the court, in its discretion and upon motion of the prosecutor or any accused, may order separate trial for one of the accused.

 What happens to the evidence presented in the trial of the other accused if a separate trial is granted?

When a separate trial is demanded and granted, it is the duty of the prosecution to repeat and produce all its evidence at each and every trial, unless it had been agreed by the parties that the evidence for the prosecution would not have to be repeated at the second trial and all the accused had been present during the presentation of the evidence of the prosecution and their attorney had the opportunity to cross-examine the witnesses for the prosecution.

 X, a public officer, was charged with malversation of public funds in conspiracy with Y, a civilian.  Should they both be tried in the Sandiganbayan?

Yes.  In case private individuals are charged as co-principals, accomplices, or accessories with public officers, they shall be tried jointly with said public officers in the proper courts which shall exercise exclusive jurisdiction over them.

 What is a state witness?

A state witness is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State.

 When should the application for discharge of the state witness be made?

It should be made upon motion of the prosecution before resting its case.

 What is the procedure?

 What are the requisites in order for a person to be discharged as a state witness?

 Can the court grant the discharge before the prosecution has finished presenting all its evidence?

No.  The court should resolve any motion to discharge only after the prosecution has presented all of its evidence since it is at this time when the court can determine the presence of the requisites above.

Although Chua v. CA (p. 703 of Herrera) says that the prosecution is not required to present all its other evidence before an accused can be discharged.  The accused may be discharged at any time before the defendants have entered upon their defense.

 What is the meaning of “absolute necessity” of the testimony of the proposed state witness?

It means that there is no other evidence to establish the offense other than the testimony of the accused.  For example, where an offense is committed in conspiracy and clandestinely, the discharge of one of the conspirators is necessary in order to provide direct evidence of the commission of the crime.  No one else other than one of the conspirators can testify on what happened among them.

 What is the remedy of the prosecution if the court denies the motion to discharge?

The State can file a petition for certiorari.

 What are the effects of the discharge?

EXCEPT if he fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge.  In this case, he can be prosecuted again AND his admission can be used against him.

 What happens if the court improperly or erroneously discharges an accused as state witness (ex. he has been convicted pala of a crime involving moral turpitude)?

The improper discharge will not render inadmissible his testimony nor detract from his competency as a witness.  It will also not invalidate his acquittal because the acquittal becomes ineffective only if he fails or refuses to testify.

 What happens when the original information under which an accused was discharged is later amended?

A discharge under the original information is just as binding upon the subsequent amended information, since the amended information is just a continuation of the original.

 Can the other conspirators be convicted solely on the basis of the testimony of the discharged state witness?

No.  There must be other evidence to support his testimony.  The testimony of a state witness comes from a polluted source and must be received with caution.  It should be substantially corroborated in its material points.

As an exception however, the testimony of a co-conspirator, even if uncorroborated, will be considered sufficient if given in a straightforward manner and it contains details which could not have been the result of deliberate afterthought.

 When can different offenses be tried jointly?

When the offenses are founded on the same facts or form part of a series of offenses of similar character, the court has the discretion to consolidate and try them jointly.

 What is a demurrer to evidence?

It is a motion to dismiss the case filed by the defense after the prosecution rests on the ground of insufficiency of the evidence of the prosecution.

 What are the ways by which a case may be dismissed on the basis of insufficiency of evidence of the prosecution?

There are two ways:

 How do you file a demurrer to evidence with leave of court?

Within 5 days after the prosecution rests, the accused should file a motion for leave of court to file a demurrer to evidence.  In the motion for leave of court, he should state his grounds.  The prosecution shall have 5 days within which to oppose the motion.  

If the leave of court is granted, the accused shall file the demurrer to evidence within 10 days from notice of the grant of leave of court.  The prosecution may oppose the demurrer to evidence within 10 days from its receipt of the demurrer.

 What is the effect of filing the demurrer to evidence with leave of court?

If the court grants it, the case is dismissed.

If the court denies the demurrer to evidence filed with leave of court, the accused may still adduce evidence in his defense.

 What is the effect of filing the demurrer to evidence without leave of court?

If the court denies the demurrer to evidence without leave of court, the accused is deemed to have waived his right to present evidence and submits the case for judgment on the basis of the evidence of the prosecution.  This is because demurrer to evidence is not a matter of right but is discretionary on the court.  You have to ask for its permission before filing it, or else you lose certain rights.

 What is the remedy of the accused if the demurrer to evidence is denied?

As a general rule, there can be no appeal or certiorari from the denial of the demurrer to evidence, since it is an interlocutory order, which does not pass judgment on the merits of the case.  The codal says that there is no certiorari, but J. Sabio says that if there was grave abuse of discretion, there can be certiorari.

 When can a case be reopened?

At any time before finality of judgment of conviction, the judge may reopen the case either on his own volition or upon motion, with hearing in either case, in order to avoid a miscarriage of justice.

The proceedings should be terminated within 30 days from the order granting the reopening of the case.

RULE 120 JUDGMENT

 What is judgment?

Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any.

 What is the form required for the judgment?

The judgment must:

 If the judge has very strong beliefs against the imposition of the death penalty, can he refuse to impose it upon an accused who is guilty of an offense punishable with death?

No.  The judge must impose the proper penalty provided for by the law, even if he is against it.  If he refuses to do so, it is grave abuse of discretion amounting to lack of jurisdiction.

 What are the contents of the judgment?

If the judgment is of conviction, it shall state the following:

If the judgment is of acquittal, the decision shall state: 

 Is it necessary for the validity of the judgment that the decision be promulgated by the same judge who heard the case?

No.  A judgment promulgated by a judge other than the one who heard the case is valid, provided that the judge who rendered the judgment relied on the records taken during the trial as a basis for his decision.

 Why should the decision be in writing, setting fort the facts and the law on which it is based?

 Is a verbal judgment valid?

No.  A verbal judgment is incomplete because it does not contain findings of fact, and it is not signed by the judge.  It may, however, be corrected by putting it in writing and following the prescribed form.  When it is put in writing, it becomes a full blown judgment.

 Is an erroneous judgment valid?

Yes.  Error in judgment will not invalidate a decision, so long as it conforms with the requirements of the law.

 Is a judgment which imposes a penalty that does not exist or one that is impossible valid?

The judgment is void.  The error goes into the very essence of the penalty and does not merely arise from the misapplication thereof.

 Does the judge need to designate the particular provision of law violated?

If possible, he should.  But if he fails to do so, the judgment is not void, as long as his conclusions are based on some provision of law.

 Can the judge impose a penalty of reclusion perpetua or a fine of P10,000?

No.  The judge cannot impose alternative penalties (using OR).  The penalty imposed must be definite.  When the judge imposes alternative penalties, giving the defendant the right to choose which one to serve, he gives discretion belonging to the court to the accused.

 Can the judge impose a penalty of reclusion perpetua and a fine of P10,000?

Yes, because in this case, the penalty is definite (it uses AND instead of OR).

 What is the importance of using the proper terminology in the imposition of imprisonment penalties?

The judge should use the proper legal terminology of the penalties since each penalty has its distinct accessory penalties and effects.

 What is the remedy of the offended party if the judgment fails to award civil liability?

The offended party can appeal, go on certiorari, or file for mandamus.

 What constitutes civil liability arising from crime?

Civil liability arising from crime includes actual damages, moral damages, exemplary damages, and loss of earning capacity.  

 When may attorney’s fees be awarded?

Attorney’s fees may be awarded only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded.  The reason for this is that there is no attorney in a criminal case, only a public prosecutor, who is compensated by the government.

 What is the difference between “damage” and “damages”?

Damage refers to the actionable loss resulting from another person’s act or omission.

On the other hand, damages refer to the sum of money which can be awarded for the damage done.

 When are exemplary damages awarded?

 What are the mandatory awards in case of rape cases?

In rape cases, a civil indemnity of P50,000 is mandatory.  An award of moral damages is also mandatory without need or pleading or proof.

If it is qualified rape, the mandatory civil indemnity is P75,000.

 What should the offended party prove do if he wants to claim actual damages or loss of earning capacity?

The offended party must show proof of the amount of the pecuniary loss, such as receipts.  However, if death results from the crime or the quasi-delict, the heirs need only to prove the fact of death in order to claim actual or compensatory damages.

 Is there need for proof of pecuniary loss in order that moral, nominal, temperate, liquidated, or exemplary damages may be adjudicated?

No.  Art. 2216 of the Civil Code provides that no proof is needed.  The assessment of the damage depends on the discretion of the court.

 May damages be increased on appeal?

Yes.  An appeal opens the whole case for review by the appellate court, and this includes the award of damages.

 What are nominal damages?

Nominal damages are awarded in recognition of a violation of a right of the plaintiff when no actual damage was done to him.

 What is the civil liability of one who is guilty of illegal possession of firearms?

None.

 What is the effect of the failure of the accused to object to a complaint or information that charges more than one offense before he is arraigned?

The court may convict him of as many offenses as are charged and proved and impose on him the penalty for each offense.  The court must set out separately the findings of fact and law in each offense.

 When does an offense charged necessarily include the offense proved?

An offense charged necessarily includes an offense proved when some of the essential elements or ingredients of the offense charged constitute the offense proved.

Example: Offense charged is homicide.  Offense proved is physical injuries.   Some of the essential elements of homicide constitute physical injuries.  Therefore, the offense charged (homicide) necessarily includes the offense proved (physical injuries).

 When is an offense charged necessarily included in the offense proved?

An offense charged is necessarily included in the offense proved when the essential ingredients of the offense charged constitute or form part of the elements constituting the offense proved.

Example: Offense charged is acts of lasciviousness.  Offense proved is rape.   The essential ingredients of acts of lasciviousness form part of the elements of rape.  Therefore, the offense charged (acts of lasciviousness) is necessarily included in the offense proved (rape).

 What is the rule in case the offense charged is different from the offense proved?

The accused can only be convicted of the lesser offense, which is included in the graver offense either proved or charged.  The reason for this is that the accused can only be convicted of the offense which is both charged and proved.

Example: If the offense charged is rape and the offense proved is acts of lasciviousness, he can only be convicted of acts of lasciviousness.  If the offense charged is less serious physical injuries and the offense proved is serious physical injuries, he can only be convicted of less serious physical injuries.

 X was charged with willful homicide.  What was proved was homicide through reckless imprudence.  Under which offense should X be convicted?

X should be convicted of homicide through reckless imprudence.  The offense done through negligence is lesser than the one done willfully.

 X was charged with rape by force and intimidation.  At the trial, it was proved that X raped a mental retardate.  Can X be convicted or rape of a mental retardate?

There are conflicting decisions:

People v. Abiera says that the accused charged with rape through one mode of commission may still be convicted of the crime if the evidence shows another mode of commission, provided that the accused did not object to such evidence.

People v. Padilla says that the accused cannot be convicted of rape of a mental retardate if it is not alleged in the information.

I think People v. Padilla is a better ruling because to convict the accused would violate his right to be informed of the nature and cause of the accusation against him.

 X was charged with rape.  What was proved at the trial was qualified seduction.  Can X be convicted of qualified seduction?

No.  Although qualified seduction is a lesser offense than rape, the elements of the two are different.  Qualified seduction is not included in the crime of rape.  Therefore, if the court convicts him of qualified seduction, it will violate his right to be informed of the nature and cause of the accusation against him, since some elements of qualified seduction were not charged.

 How is the judgment promulgated?

The judgment is promulgated by reading it in its entirety in the presence of the accused by any judge of the court in which it was rendered.  When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.

 Can there be promulgation of judgment in the absence of the accused?

Judgment must be promulgated in the presence of the accused.  But if the conviction is for a light offense, judgment may be promulgated in the presence of his counsel or representative.  Also, if the accused fails to attend the promulgation, even if he was notified thereof, or if he jumped bail or escaped from prison, judgment may be validly promulgated in absentia.

 What happens if only the dispositive portion of the judgment is read to the accused?

The first jeopardy will not validly terminate.  The judgment must be promulgated in its entirety, not just the dispositive portion.

 Where should judgment be promulgated if the accused is confined in a province outside of the territorial jurisdiction of the court?

If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the RTC with jurisdiction over the place of confinement upon request of the court that rendered the decision.  The court promulgating the judgment can also accept notices of appeal and applications for bail, unless the court that rendered the decision changed the nature of the offense from non-bailable to bailable, in which case, the application for bail can only be filed with the appellate court.

 What happens if the accused fails to appear on the date of promulgation of judgment despite notice?

The promulgation shall be made by recording the judgment in the criminal docket and serving the accused a copy thereof at his last known address or through his counsel.

If the judgment is of conviction, the accused who fails to appear at the promulgation shall lose the remedies available to him against the judgment, and the court shall order his arrest.  

Within 15 days from promulgation, the accused can surrender and file a motion for leave of court to avail of these remedies.  He shall state the reason for his failure to attend the promulgation, and if he is able to justify his absence, he shall be allowed to avail of these remedies within 15 days from notice.

 When may a judgment of conviction be modified or set aside by the court that rendered it?

A judgment of conviction may be modified or set aside by the court that rendered it:

 When does a judgment become final?

Except where death penalty is imposed, judgment becomes final:

 X, a 16 year-old, was charged with theft.  After hearing, the court found that he committed the acts charged.  What should the court do?

The court should determine the imposable penalty, including the civil liability.  However, instead of pronouncing a judgment of conviction, the court should automatically suspend the sentence and commit the minor to the DSWD or other institution until he reaches the age of majority.  (And on his 18th birthday, Happy Birthday, he will go straight to jail.  This is so strange.)

The exceptions to suspension of sentence in case of youthful offenders are:

This does not apply if, at the time of sentencing, the offender is already of age, even if he was a minor at the time of the commission of the offense.

 When should an adult offender apply for probation?

The offender should apply for probation after conviction within the period for perfecting an appeal.  

 Can the defendant still file for probation if he has already perfected an appeal?

An application for probation may not be filed if the defendant has already perfected an appeal from the judgment of conviction.  Once the appeal is perfected, it may no longer be withdrawn to apply for probation.

 Can the defendant still appeal if he has filed for probation?

No.  The filing of an application for probation is deemed a waiver of the right to appeal.

 Is the grant of probation a matter of right upon application by the defendant?

No.  It is a mere privilege, and the grant is discretionary upon the court.

 Can there be probation if the penalty is merely a fine?

Yes.  In those cases where the penalty is a fine, and the defendant cannot pay, he has to serve subsidiary imprisonment.  This is where probation or suspension of sentence becomes relevant.

 Can the defendant appeal from an order denying the application for probation?

No.

 What is the court mandated to do before placing an accused on probation?

The court should order a post sentence investigation to determine whether the ends of justice and the best interest of the public will be served by the grant of probation.

 When should the court deny the application for probation?

The application should be denied if the court finds that:

 When does the probation order take effect?

A probation order shall take effect upon its issuance, at which time the court shall inform the offender of the consequences thereof and explain that upon his failure to comply with any of the conditions, he shall serve the penalty imposed for the offense.

 What is the effect of probation on the civil liability of the accused?

Probation does not release civil liability.  However, in its discretion, the court may provide for the manner of payment by the accused of the civil liability during the period of probation.

 What is the duration of the period of probation?

 Ex: Subsidiary imprisonment is 10 days.  The period of probation should not be less than 10 days but not more than 20 days.

 Can the grant of probation be revoked?

Yes.  Probation is revocable before the final discharge of the probationer by the court for violation of any of its conditions.  Once it is revoked, the court should order the arrest of the probationer so that he can serve the sentence originally imposed.  The period of probation is not deducted from the penalty imposed.

 Upon the lapse of the period of probation, is the case against the probationer automatically terminated?

No.  After the period of probation, the court still has to order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation.  Only upon the issuance of this order is the case terminated.  

 What is the effect of the final discharge?

It shall operate to restore the probationer to all civil rights lost or suspended as a result of his conviction.  His is also fully discharged of his liability for any fine imposed as to the offense for which probation was granted.

RULE 121 NEW TRIAL OR RECONSIDERATION

 What is the purpose of a new trial?

It is to temper the severity of a judgment or prevent the failure of justice.

 Distinguish between new trial and reconsideration.

In a new trial, the case is opened again, after judgment, for the reception of new evidence and further proceedings.  It is only proper after rendition or promulgation of judgment.

In a reconsideration, the case is not reopened for further proceeding.  The court is merely asked to reconsider its findings of law in order to make them conformable to the law applicable to the case.

 What are the grounds for a new trial?

 What are the grounds for reconsideration?

Errors of law or fact in the judgment.

 Are the mistakes of counsel in conducting the case valid grounds for a motion for a new trial?

No.  The mistakes of counsel generally bind the client, unless he misrepresented himself as a lawyer when he was in fact a plumber (or some other occupation).  A new trial may also be granted where the incompetency of the counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense and where the error of counsel is serious.

 What are the requisites for granting a new trial on the ground of newly discovered evidence?

 What is a recantation?  Is it a ground for a new trial?

It is when a prior statement is withdrawn formally and publicly by a witness.

It is not a ground for granting a new trial because it makes a mockery of the court and would place the investigation of truth at the mercy of unscrupulous witnesses.  Moreover, retractions are easy to extort out of witnesses.  In contrast, their previous statements are made under oath, in the presence of the judge, and with the opportunity to cross-examine.  Therefore, the original testimony should be given more credence.

However, the exception to this rule is when aside from the testimony of the retracting witness, there is not other evidence to support the conviction of the accused.  In this case, the retraction by the sole witness creates a doubt in the mind of the judge as to the guilt of the accused.  A new trial may be granted.

But if there is other evidence independent of the retracted testimony, there can be no new trial.

 Distinguish between a recantation and an affidavit or desistance.

In a recantation, a witness who previously gave a testimony subsequently declares that his statements were not true.

In an affidavit of desistance, the complainant states that he did not really intend to institute the case and that he is no longer interested in testifying or prosecuting.  It is a ground for dismissing the case only if the prosecution can no longer prove the guilt of the accused beyond reasonable doubt without the testimony of the offended party.

 Can the accused move for a new trial if he has found evidence that would impeach the testimony given by a prosecution witness?

No.  Evidence which merely seeks to impeach the evidence upon which the conviction was based will not constitute grounds for new trial.  It has to be material evidence.

 When is evidence considered to be material?

It is material if there is reasonable likelihood that the testimony or evidence could have produced a different result (the accused would have been acquitted).

 What is the form required for a motion for new trial or motion for reconsideration?

The motion for new trial or reconsideration should:

Notice of the motion for new trial or reconsideration should be given to the prosecutor.

 What is the effect of the grant of the motion for new trial?

 Why is the accused not subjected to double jeopardy when a new trial or reconsideration is granted?

First, because it is only granted upon motion of the accused.  Also, the first jeopardy is never terminated, since the original judgment is set aside and replaced with a new one.

RULE 122 APPEAL

 Is appeal a part of due process:

Appeal is not a part of due process except when provided by law.  If the right to appeal is granted by law, it is statutory and must be exercised in accordance with the procedure laid down by law.  It is compellable by mandamus.

 Where should the appeal be filed?

 Can the prosecution appeal a judgment of acquittal?

No.  A judgment of acquittal becomes final immediately after promulgation.  It cannot even be the subject of certiorari.  The reason for this rule is that an appeal would place the accused in double jeopardy.  However, the offended party may appeal the civil aspect of the case.

 How is appeal taken?

APPEAL TOFROM THE DECISION OFHOW?
RTCMTCFile a notice of appeal with the MTC and serve a copy of the notice to the adverse party
CARTC in the exercise of its original jurisdictionFile a notice of appeal with the RTC and serve a copy of the notice to the adverse party
CARTC in the exercise of its appellate jurisdictionFile a petition for review with the CA under Rule 42
SCRTC where the penalty imposed is reclusion perpetua or 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 offense punishable by death, reclusion perpetua or life imprisonmentFile a notice of appeal with the RTC and serve a copy of the notice to the adverse party
SCRTC imposing the death penaltyAutomatic review by the SC
SCAll other appeals, except the two cases abovePetition for review on certiorari under Rule 45
SCSandiganbayanPetition for review on certiorari under Rule 45

 A, B, C, D, and E were all charged with murder, punishable by death.  A, B, and C were charged as principals.  D was charged as an accomplice.  E was charged as an accessory.  All of them were convicted.  To whom should they appeal?

A, B, and C’s case will be automatically reviewed by the SC without need for notice of appeal, since the penalty imposable is death.  D and E should also appeal to the SC because although the penalty imposable is not death, the offense arose out of the same occurrence that gave rise to the offense punishable by death.  The reason for this rule is so that only one court will review on appeal the single case involving different defendants.  This would prevent a variance or conflict in the decisions of the SC and the CA.

 How is an appeal perfected?

An appeal is perfected by filing a notice of appeal with the court in which the judgment or order was rendered, and by serving a copy thereof upon the adverse party or his attorney within the period for perfecting an appeal.

 Within what period must appeal be perfected?

An appeal must be perfected within 15 days from promulgation of the judgment or from notice of the final order appealed from.

 What is the effect of the perfection of an appeal?

When an appeal has been perfected, the court a quo loses jurisdiction.

 What is the difference between the appeal of a judgment and the appeal of an order?

The appeal from a judgment must be perfected within 15 days from promulgation.  The appeal from an order should be perfected within 15 days from notice of the final order.

 A and B were convicted of murder.  Only A appealed from the conviction.  Should the decision of the appellate court bind B?

It depends.  If the decision of the appellate court would be beneficial to B, it should affect him.  But if the decision would not benefit him, it should not bind him.

 What is the effect of the appeal by the offended party of the civil aspect of the judgment on the criminal aspect?

Nothing.

 Can an appeal that has already been perfected by withdrawn by the appellant?

If the records have not yet been transmitted to the appellate court, the court that rendered the judgment has the discretion to allow the appellant to withdraw the appeal.  If the appeal is withdrawn, the judgment shall become final.

If the records have already been transmitted to the appellate court, only the appellate court may decide whether to grant the motion to withdraw the appeal, and only before the judgment is rendered in the case on appeal.

 Is counsel de oficio still required to represent his client on appeal?

Yes.  The duty of counsel de oficio does not terminate upon judgment of the case.  It continues until appeal.

RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS

Important stuff:

RULE 126 SEARCH AND SEIZURE

 What is a search warrant?

It 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.

 Distinguish between a search warrant and a warrant of arrest.

SEARCH WARRANTWARRANT OF ARREST
The applicant must show:
that the items sought are in fact seizable by virtue of being connected with criminal activity; and
that the items will be found in the place to be searched.		The applicant must show:
probable cause that an offense has been committed; and
that the person to be arrested committed it

The judge must conduct a personal, searching examination of the applicant and his witnessesThe judge need not conduct a personal examination of the applicant and his witnesses.  He may rely on the affidavits of the witnesses and the recommendation of the prosecutor.

 Why are the requirements for the issuance of a search warrant more stringent than the requirements for the issuance of a warrant of arrest?

The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore.  This is why there is no other justification for a search, except a warrant.  On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

 Where should the application for search warrant be filed?

As a general rule, it should be filed with the court within whose territorial jurisdiction the crime was committed.

But for compelling reasons, it can be filed with the court within whose judicial region the offense was committed or where the warrant is to be served.

Example of this:  The drug syndicate stores its drugs in Pasay.  It has connections in Pasay and can easily get a tip when the police officers will file for a search warrant.  To avoid the drug syndicate from getting a tip of the impending search, the police officer may apply for a search warrant in Makati (within the RTC region), stating the compelling reason.

But, if the criminal action has already been filed, the application for a search warrant can only be made in the court where the criminal action is pending.

 What may be the subject of a search warrant?

Personal property, which is:

 What are the requisites for issuing a search warrant?

 When is the affidavit or testimony of the witness said to be based on personal knowledge?

The test is whether perjury could be charged against the witness.

 Is it necessary that the person named in the search warrant be the owner of the things to be seized?

No.  Ownership is of no consequence.  What is relevant is that the property is connected to an offense.

 What are the requisites of the personal examination that the judge must conduct before issuing the search warrant?

The judge must:

 What is a “scatter shot warrant”?

It is a warrant of arrest that is issued for more than one offense.  It is void, since the law requires that a warrant of arrest should only be issued in connection with one specific offense.

 A warrant was issued for the seizure of drugs connected with “violation of the Dangerous Drugs Law.”  Is the warrant valid?

The warrant is valid.  Although there are many ways of violating the Dangerous Drugs Law, it is not a scatter shot warrant since it is in connection with only one penal law.

 Police officers applied for a warrant to search Door #1 of an apartment complex.  The court issued the warrant.  When the went to the apartment complex, they realized that what they thought was Door #1 was actually Door #7.  Can they search Door #7?

No.  What is controlling is what is stated in the warrant, not what the peace officers had in mind, even if they were the ones who gave the description to the court.  This is to prevent abuses in the service of search warrants.

 Can the police officer seize anything that is not included in the warrant?

No.  Anything not included in the warrant cannot be seized EXCEPT if it is mala prohibita, in which case, the seizure can be justified under the plain view doctrine.

Even if the object was related to the crime, but it is not mentioned in the warrant nor is it mala prohibita, it still cannot be seized.

 Police officers went to a house to execute a search warrant.  They found a pistol on the table, but the pistol was not included in the search warrant.  Can they seize the pistol?

No.  It is not mala prohibita, and they have no proof that it is unlicensed.

 What should the police officer or court do to things seized illegally?

Anything seized illegally must be returned to the owner unless it is mala prohibita.  In this case, it should be kept in custodia legis.

 When should the search warrant be executed?

If possible, it should be executed during the daytime.  But in certain cases, such as when the things to be seized are mobile or are in the person of the accused, it can be served during nighttime.

 For how long is the search warrant valid?

It is valid for 10 days, after which the peace officer should make a return to the judge who issued it.  If the peace officer does not make a return, the judge should summon him and require him to explain why no return was made.  If the return was made, the judge should determine if the peace officer issued a receipt to the occupant of the premises from which the things were taken.  The judge shall also order the delivery to the court of the things seized.

 If the warrant was executed even before the expiration of the ten-day period, can the peace officer use the warrant again before it expires?

No.  If the purpose for which it was issued has already been carried out, the warrant cannot be used anymore.  The exception is if the search was not finished within one day, the warrant can still be used the next day, provided that it is still within the 10-day period.

SUMMARY

 It must be made AFTER the arrest.  The objective is to make sure that the life of the peace officer will not be endangered.

 It must be contemporaneous with the arrest in both time and place.

 Only the person whose right may be violated can give the consent; it is a personal right.

 The requisites are:

(1) The person has knowledge of his right against the search;

(2) He freely gives his consent in spite of such knowledge.

 Requisites:

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