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Republic of the Philippines

DEPARTMENT OF JUSTICE
Office of the City Prosecutor
__________________________

,
Complainant,

FOR: ADULTERY

-versusRespondents.

VERIFIED MOTION FOR RECONSIDERATION

RESPONDENT, through the undersigned counsel, move this Honorable Office


for a reconsideration of its Resolution dated February 16, 2015, a copy of which was
received on February 26, 2015 upon the following considerations and further avers
that:
PREFATORY STATEMENT
The determination of the existence of probable cause lies
within the discretion of the prosecuting officers after
conducting a preliminary investigation in accordance with
the guidelines set forth in the 2000 Revised Rules of
Criminal Procedure.
Prosecutors however, are not given an unregulated
authority to determine the existence of probable cause.
They must abide by the cardinal rules of justice and fairplay. Specifically, in order that probable cause to file a
criminal case may be arrived at, the elements of the crime
charged should be determined to be present through the

careful consideration and examination of competent


evidence.
Furthermore,

since

the

conduct

of

preliminary

investigation do not require a confrontation between the


parties and their witnesses, the Rules has made it
mandatory that the Affidavits Complainant, as well as the
Affidavits of Witnesses, must be subscribed and sworn to
before any prosecutor or government official authorized to
administer oath.
The Ratiocination for the requirement is to exclude selfserving and unreliable evidence for purposes of the
preliminary investigation and to ensure that the affidavits
supporting the factual allegations in the Complaint have
been sworn before a competent officer and that the affiant
has signed the same in the formers presence declaring on
oath the truth of the statement made considering that
this becomes part of the bases in finding probable guilt
against the respondent.
Ultimately, those Affidavits and statements that do not
conform to the requirement of the Rules are accorded as
self-serving and hearsay and thus are not admissible as
evidence.
TIMELINESS OF THE MOTION
1.

On _______________, Respondent received a copy of the Resolution,

______________________, issued by this Honorable Office finding probable cause for


the case of Adultery against herein Respondent. The dispositive portion of the said
Resolution reads as follows:

WHEREFORE,

finding

probable

cause,

the

undersigned recommends the filing of the information for


Adultery against the respondents _______________ at the
_________________________

2.

Pursuant to the Rules on Procedure in The Investigation, Prosecution

and Trial of Criminal Cases, specifically, Part III, Section 56 thereof, Respondent is
given 10 days from the receipt of the Resolution, or until __________________ to file a
Motion for Reconsideration;

3.

However, __________________ falls on a Sunday, thus Respondent has

until the next working day, _______________ to file the motion;

4.

Therefore, the filing of this Motion for Reconsideration;

GROUNDS FOR THE FILING OF THE MOTION FOR


RECONSIDERATION

5.

The Recommendation for filing the Information made by the Honorable

Office of the City Prosecutor is SOLELY based on the Affidavit Complaint and the
Judicial Affidavits of the witnesses that were submitted to the aforesaid Honorable
Office;

6.

It is worth noting that no other pieces of evidence were offered to prove

nor support the charge of Adultery against herein Respondent;

I.

It is mandatory that the Affidavit

Complaint
Affidavits

and
of

the

Witnesses

supporting
must

be

subscribed and sworn to before the


authorized officers. Otherwise, it is

considered an unsworn statement; and


unsworn statements are considered
hearsay

and

self-serving,

thus,

inadmissible in evidence.

7.

Herein Respondent, maintains that the Affidavit Complaint as well as

the Judicial Affidavits of the Witnesses should not have been entertained and
considered as evidence by the Honorable Prosecutor for the reason that it was not
subscribed and sworn to before an authorized officer or even before a
public prosecutor as mandated by the Revised Rules of Criminal Procedure,
hence a mere scrap of paper;

8.

Specifically, Rule 112, section 3, paragraph (a) of the 2000 Revised

Rules of Criminal Procedure mandates the procedure as to the conduct of


investigations, whether a preliminary investigation is required to be conducted or
not. To wit:

Section 3.

Procedure. The preliminary investigation shall be

conducted in the following manner:


(a)

The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any
prosecutor

or

government

official

authorized

to

administer oath, or, in their absence or unavailability, before a


notary public, each of who must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily

executed

and

understood

(underscoring and emphasis ours)

their

affidavits.

9.

The above-mentioned provision unambiguously mandates that the

Affidavits must be subscribed and sworn to before a prosecutor or government


official authorized to administer oath;

10.

It is ONLY IN THE ABSENCE OR UNAVAILABILITY of the

foregoing officials that such affidavits may be certified before a notary public;

11.

A perusal of the record of this case evidently shows that the

Complainant has not even alleged the unavailability of the prosecutor or any other
government official who is authorized to administer oath to excuse the fact that only
an Acknowledgment was made in his Affidavit Complaint;

12.

Likewise, the Judicial Affidavits of the witnesses that were attached to

the Affidavit Complaint were likewise not subscribed and sworn to before any
prosecutor or government official authorized to administer oath;

13.

To excuse the above-mentioned fact that the Judicial Affidavits of the

Witnesses were only attested to before a notary public, the Complainant once again
offered no proof or allegation regarding the unavailability of the prosecutor or any
other government official who is authorized to administer oath to justify the noncompliance with the mandate of the Rules;

14.

More importantly, the case of MARIE CALLO-CLARIDAD vs. PHILIP

RONALD P. ESTEBAN and TEODORA ALYN ESTEBAN 1 is instructive in


determining the ramifications of the failure to comply with the said certification
requirement. To state:
xxx

The CA explained that the requirement for the


certifications under the aforecited rule was designed
to avoid self-serving and unreliable evidence from
being considered for purposes of the preliminary
investigation, the present rules for which do not require a
1

G.R. No. 191567, March 20, 2013

confrontation between the parties and their witnesses;


hence, the certifications were mandatory, to wit:
In Oporto, Jr. vs. Monserate2, it was held that the
requirement set forth under Section 3, Rule 112 of
the

Revised

Rules

of

Criminal

Procedure

is

mandatory. This is so because the rules on preliminary


investigation do not require a confrontation between the
parties. Preliminary investigation is ordinarily conducted
through submission of affidavits and supporting
documents, through submission of affidavits and
supporting documents, through the exchange of pleadings.
Thus, it can be inferred that the rationale for
requiring the affidavits of witnesses to be sworn to
before a competent officer so as to ensure that the
affidavits supporting the factual allegations in the
Complaint have been sworn before a competent
officer and that the affiant has signed the same in
the formers presence declaring on oath the truth of
the statement made considering that this becomes
part of the bases in finding probable guilt against
the respondent. Well-settled is the rule that persons, such
as an employee, whose unsworn declarations in behalf of a
party, or the employees employer in this case, are not
admissible in favor of the latter. Further, it has been
held that unsworn statements or declarations are
self-serving and self-serving declarations are not
admissible in evidence as proof of the facts asserted,
whether they arose by implication from acts and
conduct or were made orally or reduced in writing.
The vital objection to the admission to this kind of
evidence is its hearsay character.

15.

As a consequence of the non-compliance with the Rules, the Supreme

Court has clearly held that such UNSWORN STATEMENTS in both the Judicial
Affidavits accompanying the Affidavit Complaint including the Judicial Affidavit of
the Complainant himself are all self-serving and are not admissible in evidence as
proof of the facts asserted. Thus, all the foregoing Judicial Affidavits deserve no
probative value and should be treated as mere scraps of paper;

A.M. No. MTJ-96-1109, April 16, 2001

16.

Hence, the Honorable Office of the City Prosecutor erred in considering

and giving weight to the Judicial Affidavits of the Complainant, as well as the
Judicial Affidavits of his witnesses since all of their Judicial Affidavits were not
subscribed and sworn to before any prosecutor or government official authorized to
administer oath;

II.

The

affidavits

Rules
must

require
be

that

the

subscribed

and

sworn to BEFORE THE AUTHORIZED


OFFICERS in the absence of the latter,
any notary public. The execution of an
Acknowledgement is not enough.

17.

The Supreme Court in the case of MAXIMINO GAMIDO Y

BUENAVENTURA, VS. NEW BILIBID PRISONS (NBP) OFFICIALS defined the


phrase subscribed and sworn to. To state:

To subscribe literally means to write underneath, as one's


name; to sign at the end of a document (Black's Law Dictionary,
Fifth ed., 1279). To swear means to put on oath; to declare on
oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a
Jurat, the affiant must sign the document in the presence of and
take his oath before a notary public or any other person
authorized to administer oaths.
18.

In this instant case, the Affidavit Complaint were merely acknowledged

before a consulate officer in the Philippine Embassy in Washington D.C., United


States of America and WAS NEVER SUBSCRIBED AND SWORN TO before the
said consulate officer;

19.

Specifically, the aforementioned ACKNOWLEDGMENT in the

Affidavit Complaint merely states that the Complainant is the same person who
executed the annexed document which is the Affidavit-Complaint executed on the

14th day of October by the Complainant. Further, the said Acknowledgement states
that For the contents of the annexed document, the Embassy assumes no
responsibility;

20.

It is worthy to note that the Complainant never made an explanation

why he resorted to an Acknowledgment before the consular official considering the


fact that consular officials have the power and authority to administer an oath and
thus is one of the government officials contemplated in the above stated provision of
the Rules;

21.

Furthermore, Section 1 of Rule II of A.M. No. 02-8-13-SC or the 2004

RULES ON NOTARIAL PRACTICE defines an ACKNOWLEDGMENT as:

Section 1. Acknowledgment. - Acknowledgment


refers to an act in which an individual on a single
occasion:
(a)
appears in person before the notary public
and presents an integrally complete instrument or
document;
(b)
is attested to be personally known to the
notary public or identified by the notary public
through competent evidence of identity as defined by
these Rules; and
(c) represents to the notary public that the
signature on the instrument or document was
voluntarily affixed by him for the purposes stated in
the instrument or document, declares that he has
executed the instrument or document as his free and
voluntary act and deed, and, if he acts in a
particular representative capacity, that he has the
authority to sign in that capacity.

22.

As defined above, an Acknowledgment only imparts that the signature

on the document was voluntarily affixed by the person executing the document for
the purposes stated in the document, and that he declares that he has executed the
document as his free and voluntary act and deed;

23.

Clear enough, nowhere in an Acknowledgment can one see nor deduce

compliance with the requirements of Rule 112, Section 3 of the Revised Rules of
Criminal Procedure, which is the declaration under oath as to the truthfulness of
the statements embodied in the Affidavit Complaint before a competent officer.

24.

The same holds true with regard to the Affidavit of Witnesses

accompanying the Affidavit Complaint. While it be proper under the Judicial


Affidavit Rule to have the affiant subscribe the same before any notary public, this
act is INSUFFICIENT in a case before the Office of the Prosecutor since it does not
conform to the mandatory requirements of the Rules with regard to preliminary
investigation;

25.

Thus, an Acknowledgment, as well as the subscription before a notary

public cannot be interpreted to comply with the requirement of the aforementioned


Rules;

III.

Pursuant to part III, Section

14, of the Manual for Prosecutors,

THE OUTRIGHT DISMISSAL OF


THE COMPLAINT IS WARRANTED
if the Complaint and its supporting
Affidavits

subscribed
prescribed

have

and

under

not

Criminal Procedure

been

sworn
the

to

Rules

duly
as

on

26.
The Manual for Prosecutors Part III, Section 14, paragraph (e) clearly
provide that if the Complaint and the supporting Affidavits are not properly
subscribed and sworn to as prescribed under the Rules on Criminal Procedure, the
same shall cause its outright dismissal. To wit:
SEC. 14. Dismissal of complaint. - The following, among others, shall
constitute sufficient basis for the outright dismissal of a complaint:
a)

that the offense charged in the complaint was

committed outside the territorial jurisdiction of the


Office of the Investigating Officer;
b)

that, at the time of the filing of the complaint, the


offense charged therein had already prescribed;

c)

that the complainant is not authorized under the


provisions of pertinent laws to file the complaint;

d)

that the acts and/or omissions alleged in the complaint


and/or the supporting affidavits do not sufficiently
show that a criminal offense or violation of a penal law
has been committed; or

e)
that the complaint and the supporting affidavits
are unsigned and/or have not been duly subscribed
and sworn to as prescribed under the Rules on
Criminal Procedure.
27.

In addition, the Honorable Prosecutor stated in its Resolution that:


Now, whether or not the said documents were
properly subscribed and notarized as mandated by
the judicial affidavit rule is a matter beyond the
jurisdiction of the undersigned to determine as we
are only interested in the criminal culpability of the
respondents.

28.

However, it is well settled that the Prosecutor is mandated, not by the

Judicial Affidavit Rule, but instead by the Rule 112, Section 3, Paragraph (a) of the
Revised Rules of Criminal Procedure to accept and give weight only to those
affidavits that are properly subscribed and sworn to before any prosecutor or
government official authorized to administer oath;
29.

Besides, the issue in this case is not only with regard to the compliance

of the Complaint and the supporting affidavits with the Judicial Affidavit Rule
alone, but importantly with its conformity with the requirements of the Rules of
Criminal Procedure;

30.

The

Honorable

Prosecutor

is

thus

gently

reminded

of

his

responsibilities to give weight and consideration only to Complaint and supporting


Affidavits that are properly subscribed and sworn to before any prosecutor or

government official authorized to administer oath, in conformity with the Rules of


Criminal Procedure as well as the Manual for Prosecutors;

31.

Be it noted that Prosecutors are endowed with ample powers in order

that they may properly fulfill their assigned role in the administration of justice. It
should be realized, however, that when a man is hailed to court on a criminal
charge, it brings in its wake problems not only for the accused but for his family as
well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to
deliberate thereon to determine the existence of a prima facie case before filing the
information in court. Anything less would be a dereliction of duty3.

32.

With all due respect to the Honorable Prosecutor, It is not only the

technical issues that herein respondent focused on. The rules laid down under Rule
112, section 3 of the 1997 Rules of Court were not merely guide for the prosecutors
to follow or not but are mandatory in nature;

33.

To remind the Honorable Prosecutor, the reason for the requirement

that affidavits must be based on personal knowledge is to guard against hearsay


evidence. The requirement of personal knowledge should have been strictly applied
considering that the allegations in affidavit complaint were not supported with any
evidence. The alleged adulterous relationship was based on his allegation that the
complainant allegedly saw the love messages between the respondents. Aside from
this bare allegations of the Complainant, the narration in the affidavit complaint of
alleged adulterous relationship of the respondents was based on the unsubscribed,
unauthenticated judicial affidavits of his witnesses which was just photocopied from
the cases filed by ________________;

34.

The Honorable Prosecutor is likewise reminded that although the law

has accorded them broad prosecutorial powers, such an authority is not unfettered
because public prosecutors are constrained to adhere to the time-honored principle
that a finding of probable cause requires substantial evidence. And substantial
evidence is that which a reasonable mind might accept as adequate to support a
conclusion ;

Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293, 305 citing Bernardo v. Mendoza,
G.R. No. L-37876, 25 May 1979, 90 SCRA 214, 220; Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, 31 July 1984,
131 SCRA 144, 149.

35.

In this case, for probable cause to exist, it is thus imperative that the

elements of Adultery must be established by COMPETENT EVIDENCE required by


the Rules in Preliminary Investigation;

36.

Furthermore, the Supreme Court in the case of PREFERRED HOME

SPECIALTIES, INC. VS. COURT OF APPEALS enunciated that while probable


cause should be determined in a summary manner, there is a need to examine the
evidence with care to prevent material damage to a potential accuseds
constitutional right to liberty and the guarantees of freedom and fair play, and to
protect the State from the burden of unnecessary expenses in prosecuting alleged
offenses and holding trials arising from false, fraudulent or groundless charges;
37.

Under the same vein, it is likewise worthy to state that Prosecutors are

duty-bound to secure the innocent against hasty, malicious and oppressive


prosecution and to protect him from an open and public accusation of a crime and
from the trouble, expense and anxiety of a public trial ;

38.

Hence the Judicial Affidavits of the Complainant and his Witnesses

should have necessarily been disregarded by the Office of the City Prosecutor for
being hearsay and self-serving; thus, are inadmissible in evidence;

39.

How can the Honorable Prosecutor engender a well-founded belief that

the crimes have been committed and that the Respondent is probably guilty when
there was NO evidence to support the complainants claim? In fact, the complaint
was not even based on personal knowledge worse, it was unsubscribed and unsworn;

40.

Consequently, given that the facts from which the Honorable

Prosecutor has derived its findings from were not even duly established by
competent evidence, what then will be the basis in finding a probable cause for the
crime of adultery?
PRAYER
IN VIEW OF THE FOREGOING, it is respectfully prayed of this Honorable
Office that the Resolution, dated __________________, recommending for the filing of

an information for Adultery against herein Respondents be REVERSED and SET


ASIDE, and that a Resolution be issued DISMISSING the Complaint.
Other reliefs, just and equitable in the premises, are likewise prayed for.
RESPECTFULLY SUBMITTED.
Davao City, Philippines. __________.

NOTICE OF SUBMISSION

Administrative Officer
City Prosecution Office
__________________________

Please take notice that we are submitting the foregoing Motion for the kind
consideration of this Honorable Office immediately upon receipt hereof sans
appearances and without further arguments.
Thank you.

Copy furnished:

VERIFICATION

Republic of the Philippines)


Davao City

)S.S.

x-------------------------------------------x
AFFIDAVIT OF SERVICE
I,

______________,

of

legal

age,

and

with

office

address

at

_______________________________________________________, Philippines, after having been


duly sworn to in accordance with law, depose and state:
1) I am a staff of ______________________, Counsel for the Respondent,
___________________________________, in the above-entitled case;
2) ______________________, I served a Motion for Reconsideration by registered mail
pursuant to Section 7, Rule 13 of the Rules of Court to:
IN

WITNESS

WHEREOF,

have

hereunto

set

my

hand

_________________________________

___________________
Affiant
SUBSCRIBED AND SWORN to before me this ______________________ at Davao
City, Philippines; Affiant exhibiting to me _______________________________.

Doc. No. ____;


Page No. ____;
Book No. ____;
Series of 20___.