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CRIMPRO (JUSTICE SABIO)

Notes

CHAMP 2C 2002
Page 1 of 56

CRIMPRO REVIEWER

Requisites for Valid Exercise of CJ:

Preliminary Chapter

a.

jurisdiction over SUBJECT MATTER


Elements of Jurisdiction over SUBJECT
MATTER:
1. nature of the offense / penalty
2. the fact that the offense was committed
within territorial jurisdiction
* jurisdiction of the subject matter is
determined by the statute in force at the time
of the commencement of the action, not the
time of the commission of the offense.

b.
-

jurisdiction over the TERRITORY


that the offense must have been committed or
any one of its essential ingredients occurred
within the jurisdiction of the court
cannot be waived
territory where the court has jurisdiction to take
cognizance or to try the offense allegedly
committed by the accused.
Determined by the allegations in the complaint or
information, once shown, the court may validly
take cognizance.
One cannot be held to answer for a crime
committed except by him in the jurisdiction where
it was committed.
Where the court has no jurisdiction of the crime
at the time of the filing of the complaint, court
should simply dismiss it. (not order the transfer)
* except the SC and CA which may properly refer
the case to the court of proper jurisdiction
Remedy if there is no territorial jurisdiction and
case was already filed
you file a motion to
quash on ground of lack or want of jurisdiction
Jurisdiction is a substantive right and cannot be
waived. Venue is merely procedural, and may be
waived by agreement.

Crimpro =
method prescribed by law for the
apprehension and prosecution of a person accused of
any criminal offense and for their punishment, in case
of conviction.
=
concerned with the procedural
steps through which a criminal case passes,
commencing with the initial investigation of the crime,
and concluding with the unconditional release of the
offender
=
the network of laws and rules which
govern the procedural administration of criminal
justice.
Sources of Crimpro:
1. Spanish Law
2. G.O. No 58
3. Amendatory Acts by Philippine Commission
4. Quasi acts Phil Bill of 1902, Jones Law,
Tydings McDuffie, Constitution
5. Rules of Court
6. RAs, PDs, Civil Code,
7. Judicial Decisions
8. Speedy Trial Act 1998
9. Circulars
10. Revised Rules of Crim Pro
3 Systems of Crim Pro
1. inquisitorial detection and prosecution of the
offender is exercised by the official and agents of
the law, not merely left to the initiative of the
private parties
2. accusatorial accusation is exercised by every
citizen or member of a group of the injured party.
There is the right of the offender to confront and
be confronted by his accuser.
3. Mixed system combination of both. Example,
preliminary investigation is inquisitorial, but once
the criminal action is filed in court, and there is a
cross examination, then the accused has the
right to confront and cross examine accuser.

court proceedings are not inquisitorial but


accusatorial
Criminal Jurisdiction (CJ)
authority to hear and try a particular offense and
impose punishment therefor.
Determined by:
a) Geographical limits of the territory over
which it presides
b) The nature of the action (civil or
criminal) it is empowered to hear and
decide
*the
non-concurrence
of
these
2
requirements may be challenged by the
accused at any stage of the proceedings.
CHAMP REYNO 2C 2002

Jurisdiction of the MTC, MTC and MCTC:


determined by the Nature of PENALTY
1. violations of city or municipal ordinances
2. offenses punishable by <6 years of imprisonment
3. offense by public officers in relation to their office,
punishable by 4 yrs 2 mos, to 6 yrs.
4. Where the only penalty is a fine, and <P4,000
Jurisdiction of the RTC and SANDIGANBAYAN:
determined by the Nature of the OFFENSE
Regular Courts = Civil Courts
Court Martial are not courts within the Philippine
judicial system, because they pertain to the executive
department, and are simply instrumentalities of the
executive branch. They are not regular courts.
c.

jurisdiction
ACCUSED

over

the

PERSON

OF

THE

*any objection to the procedure leading to the


arrest must be opportunely raised before the
accused enters his plea, otherwise, it is a waiver

CHAMP 2C 2002
Page 2 of 56
How acquired:
1) By virtue of arrest (w/ w/o WOA)
2) Voluntary appearance (surrender to proper
authorities)
* He cannot raise question of jurisdiction over person
of the accused if he enters a plea instead of objecting
to the manner of arrest
If a person questions the jurisdiction of the court
over his person, he must not raise other question,
otherwise, he has waived it. (because he is
inconsistent by raising other issues)
Failure to file a motion to quash the information on
the ground of defective arrest, is a waiver of the right
to question the jurisdiction over his person.
Once jurisdiction is acquired by the court, it may not
be lost until termination. It is still not lost upon the
escape of the accused, and the Court may proceed
with trial in absentia, provided that there was an
arraignment.
If the accused has been validly arraigned, and
becomes absent, court cannot lose jurisdiction.
If there was no valid arraignment yet, and the
accused escapes, court loses jurisdiction.
General Rules or Principles:
jurisdiction of the court is determined by the
geographical limits and nature of the action
jurisdiction is conferred by the Constitution or by
law only (sovereign authority)
jurisdiction cannot be fixed by the will of the
parties nor can it be acquired or diminished by
any act of the parties
Court may allow presentation of additional
evidence to prove jurisdiction
Lack of jurisdiction may be interposed at any
stage of the proceeding
Court may motu propro raise or consider such
objections at any stage of the proceeding (for
example when he fails to file a motion to quash)
Any conviction or acquittal before a court without
jurisdiction is void, not a bar to subsequent
prosecution
Once jurisdiction is acquired, it is retained by the
court until the termination of the litigation, except
when the law provides otherwise
RULES OF COURT
RULE 110 PROSECUTION OF OFFENSES:
Section 1. INSTITUTION OF CRIMINAL ACTIONS.
Criminal Actions shall be instituted as follows:
1) For
offenses
where
a
preliminary
investigation is required pursuant to Sec 1
Rule 112, by filing a COMPLAINT with the

2)

3)

proper officer for the purpose of conducting


the requisite preliminary investigation.
For all other offenses, by filing a COMPLAINT
or INFORMATION directly to the MTC, or
MCTC, or the COMPLAINT with the Office of
the Prosecutor. In Manila, and other chartered
City, the complaint shall be filed with the
office of the prosecutor unless otherwise
provided
The institution of the criminal action shall
interrupt the running of the prescription
period of the offense charged unless
otherwise provided.
preliminary investigation is required for offenses
punishable by at least 4yrs, 2mos, 1day.

Institution for offenses which require preliminary


investigation, the criminal action is instituted by filing a
complaint with the appropriate officer
Commencement where the complaint or information
is filed in court.
For those requiring PI, complaint is filed and the
officer decides whether or not to file it
For those not requiring PI and private crimes, a
complaint or information is filed directly in court by the
offended party.
FIRST STEP: NOT THE PROSECUTOR, NOT THE
COURT, BUT:
Under the Katarungan Pambarangay Law, a
conciliation proceeding is mandatory. It is where you
get a certification from the Lupon of the Barangay to
allowing you to file a case.
Conciliation is a pre-condition to the filing of the
complaint in court.
there must be a confrontation between the parties
before the Lupon Chairman.
IF THERE IS NOT CONCILIATION REACHED AT
THE LUPON, then YOU CAN FILE COMPLAINT
WITH PROSECUTOR or GO DIRECTLY TO COURT
When to go directly to court:
1. where the accused is under detention
2. when he has been deprived of personal liberty
petition for habeas corpus
3. actions coupled with provisional remedies such
as injunction, attachment, support pendente lite.
4. Others where the action is barred by statute of
limitations.
When amicable settlement is NOT required:
1. when one party is the government or any
subdivision or instrumentality thereof
2. is a public officer or employee and the dispute
pertains to his office
3. offense punishable by >1 yr or > P5000
4. dispute on real properties
5. dispute on parties of inter-barangay (different
cities municipalities)

CRIMPRO (JUSTICE SABIO)


Notes

Section 2. THE COMPLAINT OR INFORMATION.


The complaint or information shall be in WRITING,
and in the NAME of the PEOPLE of the Philippines
and against all persons who appear to be
responsible for the offense involved.
Purpose why in writing:
1. To furnish the accused of the description of the
charge against him and enable him to make his
defense
2. Avail himself of protection against further
prosecution for the same cause (in case of
conviction or acquittal)
3. To inform the court of the facts alleged so that it
may decide whether they are sufficient to support
conviction.
Section 3. COMPLAINT DEFINED.
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 in charged with the enforcement of the law
violated.
Who may file a complaint
1. the offended party he who is INJURED or
FEELING IS OFFENDED
2. any peace officer
3. any public officer charged with the enforcement
of the law violated
General rule: Criminal prosecution may NOT be
restrained or stayed by any injunction. This is
because a crime is an outrage against the peace and
order of society
Except: (where a complaint or information may be
enjoined by an injunction)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

to protect constitutional rights of accused


avoid oppression and multiplicity of suit
when there is a prejudicial question
gadalej
under an invalid law
there is double jeopardy
court has no jurisdiction.
persecution instead of prosecution
charges are manifestly false and for vengeance
no prima facie case

Section 4. INFORMATION DEFINED.


An information is an accusation in writing
charging a person with an offense, subscribed by
the prosecutor and filed with the court.
Complaint
- by a private party
- supported by oath of
complainant
- filed with prosecutor (in
cases where PI is
required)

Information
- by the prosecutor
- no need
- filed with court

CHAMP 2C 2002
Page 3 of 56

Section 5. WHO MUST PROSECUTE


All criminal actions commenced by a
complaint or information shall be prosecuted
under the DIRECTION and CONTROL of the
PROSECUTOR. However in MTC or MCTC,
when the prosecutor assigned is not
available, the offended party, or any peace
officer or any public officer charged with the
enforcement of the law violated may
prosecute the case. This authority shall
cease upon actual intervetion of the
prosecutor or upon elevation to the RTC.
In the crimes of ADULTERY AND CONCUBINAGE,
they shall not be prosecuted except upon a
COMPLAINT filed by the OFFENDED SPOUSE.
The offended party cannot institute the criminal
prosecution without including the guilty parties, if
both are alive, nor in any case, if the offended
party has consented to the offense or has
pardoned the offenders.
The offenses of SEDUCTION, ABDUCTION, ACTS
OF LASCIVIOUSNESS, shall not be prosecuted
except upon the complaint filed by the offended
party or her parents, grandparents, guardians, nor
in any case, if the offender hs expressly pardoned
the any of them. If the offended party dies or
becomes incapacitated before she can file the
complaint, and she has no parents, grandparents,
or guardian, the State shall initiate the criminal
action in her behalf.
(note: new rule Acts of lasciviousness no longer a
private crime but a crime against persons.)
No criminal action for DEFAMATION which
consists of the imputation of any of the offenses
mentioned above shall be brought except upon
the instance and complaint of the offended party
*note the Rape is now a crime against person, and is
not a private crime. Hence, the state may prosecute
the offender even without a complaint filed by the
offended party.
General Principles:
Before The Case Is Filed In Court: (Fiscals
Discretion)
1. prosecutor cannot be compelled to file a criminal
action where he is not convinced that he has
evidence to support the allegations thereof. The
manner of the prosecution of the case is within
the sound discretion of the Prosecutor.
2. Court cannot interfere with the fiscals discretion
and control of prosecution
3. Court cannot compel the fiscal to prosecute or file
an information within a certain period of time.

CHAMP 2C 2002
Page 4 of 56
*Remedy to appeal the Prosecutors decision
directed to the DOJ (motion to review). The DOJ or
President may reverse or modify the decision of the
Prosecutor.
After The Case Is Filed In Court:
1. The jurisdiction of the court becomes vested, and
continues until the termination of the case.
2. Prosecutor has no more control over the case,
although he has direction and control of the
prosecution. He cannot impose his opinion on the
court.
3. Any disposition of the case (A motion to dismiss dismissal, motion for reinvestigation, conviction,
acquittal), rests in the sound discretion of the
Court.
4. Any disposition the fiscal feels should be proper,
should be addressed for consideration of the
court. (such as reinvestigation)
5. Complaint may not be withdrawn by the fiscal
without the courts consent motion to dismiss
solely on the court.
When The Prosecutor Has Already Filed A Case In
Court And The Offended Party Appealed To The
DOJ:
When the DOJ has already given due course to the
petition for review,
1. Court should suspend the arraignment of the
accused
2. Court should wait for the decision of the DOJ.
*However, there is a SC advisory that, the DOJ
should as far as practicable, refrain from entertaining
a petition for review, or appeal the decision of the
prosecutor, when the complaint or information has
already been filed in Court.
in order not to undermine the integrity and
independence of the court.
The ultimate test of the independence and integrity
of the RTC is not the filing of the motions to suspend
the proceedings or defer arraignment, but the filing of
a motion to dismiss or to withdraw the information on
the basis of a resolution of the petition for review at
the DOJ.
Still, even after the DOJ review, the RTC may deny
or grant the motion to dismiss, not out of
subservience to the DOJ, but because of his faithful
exercise of judicial prerogative and that he is
convinced that there was indeed no sufficient
evidence against the accused (own assessment of
evidence).
Fiscal May Be Compelled to Prosecute:
*Duty of Public Prosecutor
The fiscal or prosecutor
should not shirk from his responsibility much less
leave the prosecution of the case in the hands of a
private prosecutor. Criminal action shall at all times be
prosecuted under his direction and control. Otherwise
the whole proceedings will be null and void. (He may
turn over the case to another prosecutor.)

Control of Prosecution:
1.
2.

What case to file

Whom to prosecute
Manner of (how)
prosecution
4. Withdraw information
before arraignment

3.

Control of Court After


Case is Filed:
1. suspension
of
arraignment
2. reinvestigation
3. prosecution by fiscal
4.

dismissal

5.

downgrading
offense

of

Limitations on Courts Control: (After Case is Filed)


1. Prosecution is entitled to notice of hearing
2. Court must await the result of petition for review
at DOJ
3. Prosecutions decision to maintain prosecution
should be respected by court
4. Ultimate test is where the fiscal files a motion to
dismiss or withdraw
5. Court
has
authority
to
review
DOJs
recommendation and reject if in case of
GADALEJ
6. Make an independent assessment of evidence
Crimes Prosecuted Upon Complaint of Offended
Party PRIVATE CRIMES (Crimes against Chastity)
1. adultery and concubinage
by offended spouse
only (not yet divorced spouse)
2. seduction, abduction, acts of lasciviousness
by
offended party, her parents, grandparents,
guardians, or by the State (exclusively and
successively)
3. defamation
by offended party
*but the offended party may pardon the offender and
no case will be filed
Why By the Offended Party only?
It is out of consideration for the aggrieved party who
might prefer to suffer the outrage in silence rather
than to go through the embarrassment and scandal of
a public trial.
But, once the complaint is already filed, no pardon to
the offender may be made. Instead, the full force of
the law is applied. Hence, after the filing of the
complaint, no more pardoning.
Filing of Complaint by Offended Party is
Jurisdictional meaning in relation to Private
Crimes: Jurisdiction in not affected in cases of Private
Crimes.
It is only upon the complaint that starts the
prosecutory proceeding. It is not the complaint itself
which confers jurisdiction upon the courts to try the
case but merely starts to turn the wheels of justice.
Jurisdiction is still conferred by law. The complaint or
information is only a means by which such jurisdiction
is invoked, or gives the court the occasion for
exercising its jurisdiction.

CRIMPRO (JUSTICE SABIO)


Notes
In Crimes against Chastity, the offended girl is not
required to sign the information filed by the fiscal.
Fiscal may adopt the complaint and make part of the
information to be filed. The filing thereof is sufficient to
initiate a valid prosecution.
Libel

imputation of the above offenses


filed by the
offended party

Must be made with the sworn complaint of the


offended party

Cannot be prosecuted de officio

Death of the offended party does NOT extinguish


criminal liability of the accused.
Section 6. SUFFICIENCY OF COMPLAINT OR
INFORMATION.
A complaint or information is sufficient if it states
the:
1. NAME of the accused,
2. DESIGNATION of the offense given by the
statute
3. ACTS/ OMISSIONS complained of as
constituting the offense
4. NAME of the offended party
5. Approximate DATE of the commission of the
offense,
6. PLACE where the offense was committed
When an offense is committed by more than one
person, all of them shall be included in the
complaint or information.
-

Every element of the crime must be alleged in the


complaint or information, to enable the accused
to prepare for his defense as he is not presumed
to have an independent knowledge of the facts
that constitute the offense.
Reasonable certainty of the statement of the
crime is sufficient. Charge must reasonable
indicate the exact offense alleged to have been
committed.
Matters of evidence need not be averred
A fatally defective information is NOT necessarily
void, when
1. There was no objection raised
2. Defect was supplied by competent proof
(example, non-allegation of minority, is valid
when evidence was adduced that offended
party is indeed a minor)
Substantially defective information cannot be
cured by evidence because it is a void
information in the first place (such as when it
does not charge any offense at all!)

Section 7. NAME OF THE ACCUSED.


The complaint or information must state the name
and the surname of the accused, or any
appellation or nickname by which he has been or
is known. If his name cannot be ascertained, he
must be described under a fictitious name with a
statement that his true name is unknown.

CHAMP 2C 2002
Page 5 of 56
If his true name is thereafter disclosed by him or
appears in some manner to the court, such true
name shall be inserted in the complaint or
information and on record.
-

Error on name should be raised on arraignment.


Verbal motion to correct spelling sufficient.

When is error on name irreversible?


When he has been properly identified by the victim,
the name is of no consequence because he has
already been identified as a person.
Section 8. DESIGNATION OF THE OFFENSE.
The complaint or information shall state the
designation of the offense given by the statute,
aver the acts and omissions constituting the
offense, and specify the qualifying and
aggravating circumstances. If there is no
designation of the offense, reference shall be
made to the section or subsection of the statue
punishing it.
Purpose:
fully apprise the accused of the true charge
against him.
constitutional right to be informed of the nature
and cause of the accusation against him
General Principles:

include aggravating or qualifying circumstances


must be alleged in the information, otherwise
even if they are proven by evidence, they may
not be considered in judgment.

Need to designate the statute violated. However,


even if there was a failure to designate the
statute, or an erroneous specification of the law
violated, it is still a valid information if the facts
alleged clearly recites the facts constituting the
offense charged.

Title of information and designation of offense is


not controlling. The Actual facts recited in the
information determines the true nature of the
crime. (allegations prevail over designation)

If no name has been given to the offense alleged,


the defect is merely of form and does not
prejudice the substantial rights of the accused.
This is true when the facts pleaded are clearly
constitutive of a specific offense.

The real question is not that he did not commit a


crime given in the law some technical and
specific name, but did he perform the acts
alleged in the information.

An accused cannot be convicted under one act


when he is charged with a violation of another if
the change from one statute to the other involves:
1. Change in the theory of trial
2. Requires a different defense
3. Surprises the accused in any way
CHAMP REYNO 2C 2002

CHAMP 2C 2002
Page 6 of 56
Section 9. CAUSE OF THE ACCUSATION.
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the statute,
but in terms sufficient to enable a person of
common understanding to know what offense is
being charged as well as its qualifying and
aggravating circumstances and for the court to
pronounce judgment.
Purpose:
The factor that characterizes the charge is the actual
recital of the facts and not the title or specification of
the provision of law alleged to have been violated.
Reiterates purpose:
a) To furnish the accused of the description of
the charge against him and enable him to
make his defense
b) Avail himself of protection against further
prosecution for the same cause (in case of
conviction or acquittal)
c) To inform the court of the facts alleged so
that it may decide whether they are sufficient
to support conviction.

purpose of alleging relationship or minority for


the imposition of the proper penalty
state habitual delinquency
dates of
commission of previous crimes, date of last
conviction or release, date of other previous
conviction or release.

Negative Allegations:

Negative Allegations when a statute exempts or


makes certain particulars excepted out of its
general clause, defining a crime concerning a
class or species.

It is NOT necessary to allege that a person is


NOT under the exception (not necessary to deny)
because the exception is a matter of defense
which the accused must prove.
(example, Opium law prohibits use of opium,
except by doctors.
prosecutor need not state
that accused is not under a medical condition)

HOWEVER, if the language of the law defining


the offense is so entirely separable from the
exception that the ingredients constituting the
offense may be accurately and clearly defined
without reference to such exception, then
negative allegation may be incorporated.
(example, Illegal possession of firearms
illegal
except when there is a license
prosecutor may
state that accused was without a license it is an
ingredient of the crime)
Section 10. PLACE OF COMMISSION OF THE
OFFENSE.
The complaint or information is sufficient if it can
be understood from its allegations that the
offense was committed or that some of its

essential ingredients occurred at some place


within the jurisdiction of the court, unless the
particular place where it was committed
constitutes an essential element of the offense
charged or is necessary for its identification.
Purpose:
- to show that there is TERRITORIAL JURISDICTION
because crimes are jurisdictional.
Crimes where PLACE is essential:
1. violation of domicile
2. penalty on keeper
3. trespass to dwelling
4. violation of election laws (30-meter
carrying weapons prohibited)

radius

special purpose: to determine VENUE for LIBEL.


Section 11. DATE OF COMMISSION OF THE
OFFENSE.
It is NOT necessary to state in the complaint or
information the precise date the offense was
committed EXCEPT when is it MATERIAL
ingredient to the offense. The offense may be
alleged to have been committed at a date as near
as possible to the actual date of its commission.
Purpose:
- for the defense of the accused,
- more importantly, to determine the applicable law at
the time of the commission of the offense.
DATE
ESSENTIAL
1. Infanticide
2. Sunday Statutes
3. Abortion

IRRELEVANT
1. rape
2. dangerous drugs law

- The complaint is sufficient if the evidence shows that


the offense was committed at anytime within the
period of the statute of limitations and before the
commencement of the action. (ON OR ABOUT)
*Justice Sabio: 1 month diff in rape violates the right
of the accused.
Section 12. NAME OF THE OFFENDED PARTY.
The complaint or information must state the name
and surname of the person against whom or
against whose property the offense was
committed or any appellation or nickname by
which he has been or is known. If his true name
cannot be ascertained, he must be described
under a fictitious name.
In OFFENSES AGAINST PROPERTY, if the name
of the offended party is unknown, the property
must be described with such particularity to
properly identify the offense charged.

CRIMPRO (JUSTICE SABIO)


Notes

CHAMP 2C 2002
Page 7 of 56

If the true name is thereafter disclosed or


ascertained shall cause such true name to be
inserted
If the offended party is a juridical person, it is
sufficient to state its name or any name or
designation by which it is known, without need of
averring that it is a juridical person or that is it
organized in accordance with existing laws.
-

Errors in the name are mere formal defects and


are deemed immaterial and not prejudicial to the
substantial rights of the accused.
Variance between the allegations of the
information and the evidence offered does not
entitle the accused to an acquittal.

Crimes where NAME of offended party essential:


1. slander
2. robbery with violence upon person
Section 13. DUPLICITY OF OFFENSE.
A complaint or information must charge ONLY
ONE offense, EXCEPT when the law prescribes a
SINGLE PUNISHMENT FOR VARIOUS OFFENSES.
Purpose:
To give accused necessary information to enable
him to make defense
More importantly, to not confuse him in his
defense
*Generally, information is defective when it charges 2
or more offenses.
Exception,
- When he is charged with more than one offense and
he MAKES NO OBJECTION thereto before trial.
- A motion to quash on ground of multiple offenses
should be filed before trial, otherwise it is deemed
WAIVED, and he may be convicted for as many
offenses as are charged and proved. (separate
findings of fact and law)
- Hence, he must object thereto, otherwise
prosecution may submit evidence for each and all
offenses.
When NOT duplicitous:

when the law prescribes a single penalty for


various offenses complex crime
Article 48
RPC: when a single act constitutes 2 or more
grave or less grave felonies, or when an offense
is a necessary means for committing another, the
penalty for the most serious crime shall be
imposed, the same to be applied in its maximum
period.
* The allegations do not necessarily have to
charge a complex crime as defined by law. It is
sufficient that the information contains allegations
which state that one offense was necessary
means to commit the other.

Where the different acts or specifications


charging the accused were MERELY TO

DESCRIBE or TO NARRATE the different and


specific acts, the sum total of which constitutes
the crime, the information cannot be assailed on
the ground that it charges more than 1 offense.
This is because those different acts or offenses
serve merely as a basis for the prosecution of the
one single crime.
There is also no duplicity when the other offense
described is but and INGREDIENT or an
essential element of the real offense.
No duplicity when the acts charged were merely
DIFFERENT MEANS of committing the same
offense, notwithstanding the fact that they are
prohibited by separate sections of the statute.

* compound crime 1 single act produces several


offenses
* complex crime 1 act (offense) necessary to
commit another
* special complex crime ex. Robbery with homicide
with rape. 1 crime only
Delito Continuado there should be a plurality of acts
performed during a period of time, unity of penal
provision violated, and unity of criminal intent and
purpose, which means that 2 or more violations of the
same penal provisions are united in one and the
same intent or resolution leading to the perpetration of
the same criminal purpose or aim.
Ex. Single larceny theft of 13 cows or 7 roosters,
When there is no delito continuado:
estafa committed on different occasions
malversation and falsification on different
occasions
pressing trigger only once, killing 4 people.
Complex and compound Crimes
1 offense only
estafa thru falsification
rebellion complex (people vs. hernandez)
reckless imprudence cases + damage to
property, + less serious physical injuries
Illegal possession of firearms and unlawful killing
1 complex + aggravating circumstance
not complex
Separate offense
-subversion and illegal possession of firearms
separate,
Section 14. AMENDMENT OR SUBSTITUTION.
A complaint or information may be amended in
form or in substance, without leave of court, at
any time before the accused enters his plea. After
plea and during trial, a formal amendment may be
made only with the leave of court and when it can
be done without causing prejudice to the rights of
the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged or
excludes any accused in the complaint or
information, can be made only upon motion by
the prosecutor, with notice to the offended party,

CHAMP 2C 2002
Page 8 of 56
and with leave of court. The court shall state its
reason
If it appears that 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 filing of a new one
charging the proper offense in accordance with
sec 19 rule 119, provided that the accused shall
not be placed in double jeopardy
First paragraph AMENDMENT

BEFORE PLEA

Prosecution
is
free to amend in
form
or
in
substance
provided it does
not
downgrades/exclu
des
without leave of
court
ex. Homicide
murder
(necessarily
included,
ingredient
or
element)

BEFORE PLEA
WHICH
DOWNGRADES
OR EXCLUDES

through motion by
prosecutor only
with leave of court
with notice to
offended party

AFTER
PLEA
DURING TRIAL
formal
amendment only,
no substantial
provided,
no
prejudice to the
rights
of
the
accused
with leave of court
nd

no need for a 2
plea
or
arraignment

Third Paragraph SUBSTITUTION


Anytime before judgment, mistake:
prosecutor files a new complaint
court (may motu proprio) dismiss original
complaint
Limitations on Substitution:
1. no judgment rendered yet
2. accused cannot be convicted of the offense
charged or any other offense necessarily
included
3. accused shall not be placed in double jeopardy,
ex. Estafa
BP22 or Theft
Estafa (2 separate
and distinct offenses, hence no double jeopardy
* substitution after plea is not allowed!
Why With Leave Of Court? Purpose:
* To prevent the prosecution from abusing the
process of amendment before plea by dropping any of
the accused from the information and or reducing the
offense charged.
- Only a valid information may be amended.
When are the rights of the accused prejudiced by an
amendment? (SUBSTANTIAL) TEST:

when a defense under the complaint or


information as it originally stood, would no longer
be available after the amendment

when any evidence the accused might have


would no longer be available after amendment

when any evidence the accused might have


would be inapplicable to the amended complaint
or information

When amendment not prejudicial to the rights of the


accused? (FORMAL) TEST:

That which neither adversely affects the


substantial rights of the accused

Does not alter the nature of the offense originally


charged

Does not involve a change in the basic theory of


the prosecution

Does not involve a change that would require the


accused to undergo any material change or
modification of his defense

Ex. Additional allegations of habitual delinquency,


intent to gain, change in items, articles
Change in date of the commission of crime?
depends!
formal, as long as there is no great disparity as to
defy approximation in the commission of one and
the same offense.
1 month is substantial
2 kinds of jeopardy:
a. same act
b. same offense
Attachment of jeopardy:
a. after arraignment valid plea
b. valid complaint
c. court of competent jurisdiction
d. first case was not yet dismissed upon the
accuseds own initiative (convicted/ acquitted/
dismissed on the merits)
AMENDMENT
either
formal
or
substantial
- before plea, without
leave of court

- when formal, no need


for another preliminary
investigation,
arraignment
- refers to same offense
charged in the original
information or that which
is necessarily included in
original information
- can invoke double
jeopardy. if there is
identity of offenses, then
the accused must be
convicted of the charge
necessarily included that
is proven

CHAMP REYNO 2C 2002

SUBSTITUTION
- substantial only
- always with leave of
court because original
information has to be
dismissed before a new
one is filed
needs
a
new
preliminary investigation
and arraignment for the
new charge
- presupposes a new
information involving a
different offense NOT
necessarily included in
the original charge
Cannot invoke double
jeopardy because there
is no identity of offenses

CRIMPRO (JUSTICE SABIO)


Notes
Rule on supervening events:
1. event has not yet happened at the time of the
filing of the original information
2. no error or oversight by the prosecutor (fault not
attributable to him)
3. supervening event must be a direct cause of the
offender (injury
killed later, not through some
other
independent
cause
like
medical
complications)
ex. Frustrated to consummated murder due to
supervening event of death is FORMAL only.
Section 15. PLACE WHERE ACTION TO BE
INSTITUTED.
Subject to existing laws, the criminal action shall
be instituted and tried in the court of the
municipality or territory where the offense was
committed or any of its essential ingredients
occurred.
Where an offesne is committed in a trian, aircraft,
or other public or private vehicle in the course of
its trip, the criminal action shall be instituted and
tried in the court of municipality or territory where
such train, aircraft or vehicle passed during its
trip, includng the place of its arrival and
departure.
Where an offense is committed on board a vessel
in the course of its voyage, the criminal action
shall be instituted and tried in the court of the first
port of entry or any municipality or territory where
the vessel passed during such voyage, subject to
the generally accepted principles of international
law.
Crimes committed outside the Philippines but
punishable under RPC Art 2, shall be cognizable
in the court where the criminal action is first filed.
Purpose:
- So as not to compel the defendant to move and
appear in a different court from that of the province
where the crime was committed.
- So as not to cause him great inconvenience in
looking for his witnesses and other evidence in
another place.
General Principles:
- Generally, improper venue is a lack of jurisdiction.
Venue is an essential element of jurisdiction.
- A good complaint or information is one which alleges
that a crime was committed within the territorial
jurisdiction of the court where the complaint or
information was filed and that said court has authority
to try it.
- Where the place of the commission of the offense
was not specifically charged, the place may be shown
by evidence.
Change venue of trial

Court has the power

CHAMP 2C 2002
Page 9 of 56
Change of venue of Preliminiary investigation
DOJ
has the power since it has control and supervision of
the conduct of the PI.
Transitory and Continuing Offense:
where consummation occur in one municipality or
territory and some in another,
court of either
has jurisdiction to try the offense. (concurrent)
TRANSITORY CRIMES
where any of the
essential ingredients
took place
first court taking
cognizance
shall
exclude the others
estafa, malversation,
abduction

CONTINUING CRIMES
consummated in one
place, yet by the
nature
of
the
offense, is deemed
continuing
libel, rebellion

Adultery is not a continuing offense


Estafa transitory: elements: damage and deceit.
(see book)
Abduction when moved from place to place
(concurrent jurisdiction)
Kidnapping place of deprivation of liberty (only one
jurisdiction)
Falsification of private document place where
document is falsified
Perjury where there was intent to give false
evidence (not where it was subscribed and sworn)
Libel
a. offended party is public official or private person
where article was first printed or published
b. offended party is private
where he actually
resided
c. public officer whose office is in Manila
in RTC
Manila
d. public officer whose office is outside Manila
where he holds office
Review Art 2 RPC
Except in treaties and laws of preferential
application
a. should commit and offense while on a Philippine
ship or airship
b. forge or counterfeit coin or currency issued by the
Government
c. introduction into the country of the obligations
and securities in (b)
d. while being public officers, should commit an
offense in the exercise of their functions (ex.
Ambassadors)
e. should commit any crime against national
security and the law of nations.

CHAMP 2C 2002
Page 10 of 56
Section 16. INTERVENTION OF OFFENDED
PARTY.
Where the civil action for recovery of civil liability
is instituted in the criminal action pursuant to
Rule 111, the offended party may intervene by
counsel in the prosecution of the offense.
* Generally, the prosecution is under the direction and
control of the fiscal. However, the offended party may
intervene in the proceeding, personally or by counsel,
especially in cases of private crimes.
Prosecution of offenses is a public function.
Exception,
(When no motion to intervene allowed):
When the offended party
a. waives his right to a civil action or
b. expressly reserves his right to institute a civil
action for damages arising from the offense
charged.
c. When he has actually instituted the civil action
arising from offense.
RULE 111 PROSECUTION OF CIVIL ACTION

the subject thereof may be litigated in a separate


civil action.
case of
(So as no to confuse the situation
malicious prosecution)
Exception, when there can be no reservation:
The criminal action for violation of BP22 shall be
deemed to include the corresponding civil action
and may not be waived by a reservation to file
such civil action separately.
(why? Because the monetary damages in the check
are included naman eh,)

Read book for full details.


Juridical Basis of Implied Institution of Civil Action with
Criminal Action: (Dual Concept of Civil Liability)

Art 2176 Whoever by act or omission causes


damage to another, there being fault or
negligence, is obliged to pay damage done (no
existing contractual relation
quasi delict or
culpa aquiliana)

Art 100 RPC every person criminally liable shall


also be civilly liable.
-

Section 1. INSTITUTION OF CRIMINAL AND CIVIL


ACTION.
When a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the offense charged shall be deemed
instituted with the criminal action unless the
offended party waives his right to the civil action,
reserves the right to institute it separately, or
institutes is prior to the criminal action.
Reservation of right When?
The reservation of the right to institute separately
the civil action shall be made:
1) Before the prosecution starts presenting its
evidence AND
2) Under the circumstances affording the
offended party a reasonable opportunity to
make such reservation
(Purpose of Reservation: To prevent the offended
party from recovering damages twice for the same act
or omission)
When the offended party seeks to enforce civil
liability against the accused by way of MENTL
damages without specifying the amount thereof,
the filing fees therefor shall constitute a first lien
on the judgment awarding such damages.
When the amount of damages, other than actual,
is specified, the corresponding filing fees shall be
paid by the offended party upon filing thereof in
court.
No filing fees shall be required for actual
damages
rd

No counterclaim, cross claim, 3 party complaint


may be filed by the accused in the criminal case,
but any cause of action which could have been

Responsibility for the fault or negligence for quasi


delict is entirely separate and distinct from the
civil liability from negligence under the RPC,
subject only to the limitation that the plaintiff
cannot recover damages twice from the same act
or omission of the defendant.

2 Separate and Distinct Sources of Civil Liability


CIVIL
LIABILITY CIVIL
LIABILITY
ARISING FROM CRIME ARISING FROM QUASIor Delict
DELICT Culpa Aquiliana/
Quasi- Delict
affects public interest
Only private concern
against the State as a violation
against
the
political entity whose individual member of the
laws it has violated
society
punishes or corrects;
restitution,
reparation,
indemnification
of
consequential damages
- only when there is a law
punishing them
waivable
resrevation

indemnifies for material


damage (repairs)
- includes all acts of any
kind of fault or negligence

through

-deemed instituted in the


criminal action
-liability is dependent on
conviction or acquittal in
criminal case

- also called independent


civil
actions
(entirely
separate and distinct)
-liability
proceeds
independently of the
criminal action

CRIMPRO (JUSTICE SABIO)


Notes
-generally criminal case
proceeds before civil
case (except P/Q)
Hence,
civil
case
reserved
may
be
suspended until final
judgment of the criminal
case
As to finding of final
judgment that the act or
omission from which the
civil liability may arise did
not exist, civil liability
based
on
crime
EXTINGUISHED
Upon death of accused,
action is extinguished

-may be brought by the


injured party even during
the pendency of the
criminal case
Hence, civil action may
NOT be suspended
As to finding of final
judgment that the act or
omission from which the
civil liability may arise did
not exist, civil liability
based on quasi-delict is
NOT EXTINGUISHED
Upon death of accused,
action
is
proceeded
against the estate or
legal representatives.

- The same act or omission which gives rise to 2


sources of civil liability maybe be prosecuted separate
and independently of each other, subject only to the
limitation that the satisfaction of either bars recovery
of the other. Plaintiff cannot recover damages twice
from the same act or omission of the defendant.
- WHEN A CRIMINAL ACTION IS FILED, WHAT IS
DEEMED IMPLIEDLY INSTITUTED IS ONLY THE
CIVIL LIABILITY ARISING FROM THE CRIME (ART
100 RPC). Hence, he may be held civilly liable in a
criminal action, only if he is found to be criminally
liable. If he is acquitted criminally, he cannot be held
civilly liable (Art 100 RPC).
Under the present rules, the civil action is not only
limited to 2176, but may include 32, 33, 34
Independent Civil Actions Based on Art 32, 33, 34,
2176
which are other sources of obligation:
Allows the injured party to file a civil action for
damages entirely separate and distinct from the
criminal action
Requires only a preponderance of evidence.
Under the present rules, the civil action based on
quasi-delict 2176, is NO LONGER INSTITUTED in
the criminal action.
Employer-employee relationship
Action must be separate. Employer cannot be
civilly liable for the quasi-delict of his employee
Employers liability is limited only to the civil
action deemed instituted with the criminal (civil
liability arising from the crime)
Employers Subsidiary Liability:
when the employee is insolvent
Filing Fees as a Lien
Why? In a criminal action, there is already a public
prosecutor. In a civil action, there is a lawyer. Only

CHAMP 2C 2002
Page 11 of 56
when a separate civil action is instituted may civil
liability for attorneys fees be recovered.
(???)
Section
2.
SEPARATE
CIVIL
ACTION
SUSPENDED.
After criminal action has 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 said civil
action has already been instituted, the latter shall
be SUSPENDED, in whatever stage is may be
found, before judgment on the merits. The
suspension shall last until final judgment is
rendered in the criminal action. Nevertheless,
before judgment on the merits is rendered on the
civil action, the same may, upon motion of the
offended party, be consolidated with the criminal
action in the court trying the criminal action. In
case of consolidation, the evidence already
adduced in the civil action shall be deemed
automatically reproduced in the criminal action
without prejudice to the right of the prosecution to
cross examine the witness and of the parties to
present additional evidence. The consolidated
criminal and civil action shall be tried and decided
jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action, which cannot be instituted separately or
those whose proceeding has been suspended
shall be tolled.
GENERALLY,
The extinction of the penal action does not carry
with it the extinction of the civil action.
EXCEPTION,
However, the civil action based on delict shall be
deemed extinguished if there is a finding in final
judgment in the criminal action that the act or
omission from which the civil liability may arise
DID NOT EXIST.
* Generally, CRIMINAL ACTION PROCEEDS AHEAD
OF CIVIL ACTION (which has been reserved by the
offended party).
* And therefore, the civil liablity arising from crime
must be suspended (if it was filed before the criminal
action) or cannot be instituted (if none yet) during the
pendency of the criminal action.
* All these must await the final judgment in the
criminal action.
* Exception
prejudicial question (P/Q)
* NEVERTHELESS, they may be consolidated and
tried and decided jointly.

CHAMP REYNO 2C 2002

CHAMP 2C 2002
Page 12 of 56
Why consolidate?
A court may order several actions pending before it to
be tried together when they arise from the same act,
even or transaction, involve the same issues and
substantially the same evidence, in order to:
a. avoid multiplicity of suits
b. guard against oppression and abuse
c. prevent delays
d. clear congested dockets
e. simplify the work
oo nga naman
In short, the attainment of justice at the least expense
and vexation possible.
Effects of Acquittal:
Extinction of the penal action does NOT carry with it
the extinction of the civil. However, the civil liability
based on delict may be extinguished if there is a
finding in a final judgment that the act or omission
from which the civil liability may arise did not exist.
this refers only to the civil liability deemed instituted
in the criminal action (Art 100 RPC)
Duty of Court to award Civil Liability no matter what:
It seems fairly obvious, however, that despite the
ACQUITTAL of the accused, then the court
should AWARD civil liability to the offended party.
When to award even in acquittal:
a. acquittal based on reasonable doubt
b. decision contains a declaration that the
liability of the accused in not criminal but
only civil
c. civil liability is not derived from the criminal
act of which he was acquitted.
This duty may be compellable by mandamus
Except, NO AWARD: if there was a finding of final
judgment the act or omission from which the civil
liability may arise did not exist. (Here the civil liability
based on crime is extinguished.)
In other words, the acquittal based on the finding
that the facts upon which the civil liability did not exist,
bars the civil action based on crime.
The civil liability based on quasi-delict is NOT
extinguished even by such finding of final judgment
the act or omission from which the civil liability may
arise did not exist.
Ex. Person charged with homicide. Pleaded selfdefense. Naturally, he will be acquitted.
Here, his civil liability for the crime (art 100 RPC) is
also extinguished by virtue of acquittal. After all, he
has no criminal liability at all.
In an independent civil action for quasi delict, the
acquittal or conviction in the criminal case is
ENTIREEEELY IRRELEVANT in the civil case.
Section 3. INDEPENDENT CIVIL ACTION.
In cases provided in Art 32,33,34, 2176, the
independent civil action may be brought by the
offended party. It shall proceed independently of
the criminal action and shall require only a
preponderance of evidence. In no case, however,
may the offended party recover damages 2x for

the same act or omission charged in the criminal


action.

note: this civil action based on quasi-delict is


NOT suspended even when the criminal action is
instituted
yet although not related at all to the criminal
case, they may be consolidated with the criminal
case

Section 4. EFFECT OF DEATH OF CIVIL ACTIONS.


The death of the accused after arraignment and
during the pendency of the criminal action shall
EXTINGUISH THE CIVIL LIABILITY ARISING FROM
DELICT. However, the INDEPENDENT CIVIL
ACTION instituted or which thereafter is instituted
to enforce liability arising from other sources of
obligation may be CONTINUED AGAINST THE
ESTATE OR LEGAL REPRESENTATIVES of the
accused after proper substitution. The heirs of the
accused may be substituted for the deceased
without requiring the appointment of an executor
or administrator and the court may appoint a
guardian ad litem for minor heirs.
The court shall forthwith order said legal
representative to appear and be substituted within
30 days from notice.
A final judgment entered in favor of the .offended
party shall be enforced in a manner especially
provided for in the Rules for proseucting claims
against the estate of the deceased.
If the accused dies before arraignment, the case
shall be dismissed without prejudice to ANY civil
action of the offended party may file against the
estate of the deceased.
The death of the accused AFTER arraignment and
DURING pendency extinguishes civil liability arising
from delict only.
the claim for civil liability from any other sources of
obligation survives even the death of the accused.
(This separate civil action may be enforced against
the administrator or estate of the accused.)
Section 5. JUDGMENT IN CIVIL NOT A BAR.
A final judgment rendered in a civil action
absolving the defendant from civil liability is not a
bar to a criminal action against the defendant for
the same act or omission subject of the civil
action.
* While every person criminally liable is also civilly
liable, the converse is not true.
* Extinction of the penal action does NOT carry with it
the extinction of the civil. However, the civil based on
delict may be extinguished if there is a finding in a
final judgment that the act or omission from which the
civil liability may arise did not exist.

CRIMPRO (JUSTICE SABIO)


Notes
* But if it was only a civil action, and the accused is
absolved thereof, the same is not a bar to a criminal
action, UNLESS THE CIVIL IS A PREJUDICIAL
QUESTION (P/Q).
Section 6. SUSPENSION BECAUSE OF P/Q.
A petition for suspension of the criminal action
based upon the pendency of a prejudicial
question in a civil action may be filed in the office
of the prosecutor or court conducting the PI.
When the criminal action has been filed in court,
the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests.
Section 7. ELEMENTS OF P/Q.
Elements:
a. the previously instituted civil action involves
a ISSUE similar or intimately related to the
issue raised in the subsequent criminal
action.
b. The resolution of such issued determines
whether or not the criminal action may
proceed.
* Definition: a similar issue in a civil action separate
and distinct from the crime but so intimately related to
the pending criminal action as to determine the guilt
or innocence of the accused.
*This is an exception to the rule that criminal action
proceeds ahead of the civil.
there is no P/Q where one case is administrative
and the other is civil only.
Examples: read book, especially bigamy part., validity
or nullity of Sale (civil) prejudicial to estafa based on
such Deed of Sale (criminal
RULE 112 PRELIMINARY INVESTIGATION
Section 1. DEFINITION. WHEN REQUIRED.
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.
Except as provided in Sec 7 hereof, a PI is
required to be conducted before the filing of the
complaint or information for an offense where the
penalty prescribed by law is at least 4yrs, 2mos,
1day without regard to fine.
- Purpose: To determine whether there is sufficient
ground to engender a well-grounded belief that a
crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.

CHAMP 2C 2002
Page 13 of 56

a.
b.

c.

d.

for the investigation officer to determine if a crime


has been committed
to protect the accused from the inconvenience,
expense and burden of defending himself in a
formal trial unless the reasonable probability of
his guilt shall have been first ascertained
to secure the innocent against hasty, malicious
and oppressive prosecution, and protect him from
an open and public accusation of a crime, trouble
and anxiety from the public.
To protect the state from having to conduct
useless expensive trials

Scope of PI:
it is merely inquisitorial
only to discover the persons who may be
reasonably charged with a crime
it is NOT a trial on the merits
does NOT place the person in jeopardy
Nature:
Statutory in character and may be invoked only
when specifically created by statute.
Where there is no statute, the same cannot be
demanded
NOT a fundamental constitutional right,
may be WAIVED expressly or by silence.
(waived only by the accused alone, and upon
failure to invoke right at the time of plea)
Component part of due process, hence a
SUBSTANTIAL RIGHT.
(What are the elements of due process?)
(Notice and hearing only)
(PI becomes and element only if granted by the
statute)
*similarly, bail and appeal are not elements of the due
process except when granted by constitution or by
law
- Probable cause merely implies probability of guilt
and should be determined in summary manner. PI is
NOT part of the trial and it is only in a trial where an
accused can demand full exercise of his rights.
(Hence, there is no right to cross-examine at PI.)
- A PI or reinvestigation is summary in nature.
Prosecutor needs only to see complainants sworn
statements and that of his witnesses and the counteraffidavits of the respondent and his witnesses.
- There is therefore no right to cross-examination.
Absence of PI:
Hence, an absence of a PI is NOT a ground to
quash the complaint or information.
Does not impair validity of complaint or
information, or make it defective, nor the warrant
of arrest
Does not justify accuseds release
It does not affect the courts jurisdiction, but
merely the regularity of the proceedings.

CHAMP 2C 2002
Page 14 of 56
* How does the absence affect the regularity of
proceedings?
when there was no PI, the accused may
invoke the same and raise the issue in court,
before entering their plea, the court, instead of
dismissing the complaint, should conduct such
investigation or order fiscal to do so, or remand
case to inferior court so that a PI may be
conducted. (In short, the court SUSPENDS its
proceedings before arraignment.)

same), a NEW PI MUST BE CONDUCTED and


cannot be cured by a simple amendment

Waiver:
The right to PI may be waived by failure to invoke
the right prior to or at least the time of the plea
(during arraignment). After a plea of not guilty is
entered, the accused is deemed to have
foregone the right of PI and abandoned the right
to question any irregularity that surrounds it.
It must be made expressly or impliedly, in a clear
and unequivocal manner.
The right is not waived even if the accused had
filed an application for bail, and arraigned over
his objections and the trial on the merits had
already begun, and where the accused had from
the beginning demanded the a PI be conducted,
and had forthwith brought the cause on certiorari
to the SC.

Motion for Reinvestigation: Reinvestigations


When a case is filed already and there is a
request for reinvestigation, the Court acquires
jurisdiction over the case already, and the motion
for reinvestigation must be addressed to the
JUDGE only. (not the DOJ, Prosecutor, Fiscal)

Presumption of regularity:
- In the absence of evidence to the contrary, the Court
will presume that the fiscal or officer who conducted
the PI did so in accordance with law.
Effect of lack of certification:
The lack of authentication or certification of the
fiscal conducting the PI does not impair the
validity of the information filed.
These may all
be better ventilated during the actual trial rather
than at the PI stage.
Substitutions:
conduct new PI
If after PI, a case is already filed in Court and
was dismissed because a new complaint will be
filed by substitution (charging a different offense
based on the same PI), he must conduct another
PI.
Matter of fair play to conduct a new PI should he
raise the category of the offense
Amendment:
new PI not necessary
No PI is necessary when there is only an
amendment and which does not change the
nature of the crime charged.
Where the amendment is not substantial
Formal amendment only
Cognate offense
Crime originally charged is related to the
amended charge and an inquiry would elicit
substantially the same facts
* But where the information is null and void on its
face, (as when there is lack of authority to file the

When there is NO RIGHT TO PI:


When a person is lawfully arrested without a
warrant of arrest (inflagrante delicto).
Nevertheless, he may still ask for a PI if he
wants, provided he signs a waiver of Art 125
RPC, meaning he is no longer going to question
the police arbitrary detention.

Section 2. OFFICERS AUTHORIZED TO CONDUCT


PI
a. provincial or city prosecutors and their
assistants
b. judges of the MTC and MCTC
c. national and regional state prosecutors
d. other officers authorized by law (Comelec,
ombudsman)
Their authority to conduct PI shall include all
crimes cognizable by the proper court in their
respective territorial jurisdiction
*Note: RTC Judges cannot conduct PI anymore.
Judiciary Reorganization Act.
*Comelec is vested with the power and authority to
conduct PI in cases involving all election offenses
exclusive power over the election laws
*Ombudsman all kinds of malfeasance by any
officer or employee during the tenure of his office; its
power to investigate is dependent on the cases
cognizable by the Sandiganbayan;
- must determine if the crime was committed
by the employee in relation to his office.
*PCGG OSG is empowered to file and prosecute
cases under EO 1 (marcos cronies); also other cases
involving graft and corruption that the President may
assign to the PCGG
*Only the SC in cases of administrative cases of
court personnel.
Section 3. PROCEDURE.
The PI 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 witness
as well as other supporting documents to
establish probable cause. They shall be in
such number of copies as are respondents,

CRIMPRO (JUSTICE SABIO)


Notes

b.

c.

d.

e.

f.

plus 2 copies for official file. The affidavits


shall be subscribed and sworn to before any
prosecutor or government official authorized
to administer such oath, or in their absence
or unavailability, by 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 their
affidavits.
Within 10 days after filing of the complaint,
the Investigating officer shall either dismiss it
if he finds no ground to continue with the
investigation, or issue a subpoena to the
respondent attaching to it a copy of the
complaint and its supporting affidavits and
documents.
Respondent shall have the right to examine
the evidence submitted by the complainant
which he may not have been furnished (and
copy them at his expense). If the evidence is
voluminous, he may be required to specify
only those which he intends to present
against the respondent (and be made
available for xerox by respondent at his
expense).
Within 10 days from receipt of supoena, with
the complaint and supporting affidavits and
documents, the respondents shall submit his
counter-affidavit and that of his witness and
others supporting documents relied for his
defense.
Counter
affidavits
shall
be
subscribed and sworn to The respondent
shall not be allowed to file a motion to
dismiss in lieu of counter-affidavit
If the respondent cannot be supoenaed or
does not submit counter-affidavits within the
10 days, the investigating officer shall resolve
the complaint based on the evidence
presented by the complainant.
The investigating officer may set a hearing if
there are facts and issues to be clarified from
a party or a witness. The parties can be
present at such hearing without the right to
examine or cross-examine. They may
however submit to the investigating officer
questions which may be asked to the party or
witness concerned.
Hearing must be conducted within 10 days
from receipt of counter-affidavits, etc. It shall
be terminated within 5 days.
Within 10 days after PI, the investigating
officer shall determine whether or not there is
a sufficient ground to hold the respondent for
trial.

* Note that PI is merely an inquisitorial proceeding but


is considered a JUDICIAL PROCEEDING before a
quasi-judicial officer.
* PI is not a trial. The PI officer inquires into the facts
concerning the commission of a crime with an end in
view of determining whether or not an information
may be prepared against the accused.

CHAMP 2C 2002
Page 15 of 56
* It is in effect, the REALISTIC JUDICIAL APPRAISAL
of the merits of the case.
JUDICIAL INQUIRY.
Judicial because there is an opportunity to be heard
and for the production and weighing of evidence and
a decision is rendered thereon.
Substantive due process intrinsic validity of the law
Procedural due process law which hears before it
condemns, proceeds upon inquiry, and renders
judgment only upon evidence presented (This is your
Constitutional Law!!!)
* Investigator, although not a judge but a quasijudicial officer,
impartial, cold neutrality of an
impartial judge.
2 Stages: CI and PI (old distinction)
Criminal investigation the fact-finding inquiry,
gathering of evidence, and interview of witnesses,
PI ascertaining if there is sufficient evidence to bring
a person in trial. (prima facie case)
The law enforcer who conducted the criminal
investigation (gathering evidence, filed complaint),
cannot be allowed to conduct the preliminary
investigation of his own complaint. One cannot be a
prosecutor and a judge at the same time.
But now, THERE IS ONLY 1 STAGE.
Probable Cause: (PC)
such facts and circumstances which would lead a
reasonably prudent, and discreet man to believe
that an offense was committed and that the
person sought to be charged may have
committed such crime.
Based on opinion and reasonable belief only, not
actual certainty, nor only clear and convincing
evidence, nor on beyond reasonable doubt
That more likely than not that a crime has been
committed and was committed by the suspects
More than bare suspicion, less than certainty to
justify conviction
Summary Nature Of PC Determination In PI:
There is no need for full and exhaustive display
of evidence. It is for the presentation only of such
evidence as may engender a well-grounded
belief that an offense has been committed and
that the accused if probability guilty thereof.
Summary in nature decide merely on the
affidavits and counter-affidavits presented
Low quantum of evidence need to support a
finding of PC
No full exercise of rights (right to confront and
cross-examine),
but the accused may propound question thru
the investigating officer
*warrant of arrest may be issued, even before
completion of entire PI proceeeding
see Rule 112 sec 6 authorizing judge to order
arrest even before the end of PI, if the court is
satisfied that a PC exists and the arrest is needed to

CHAMP 2C 2002
Page 16 of 56
put the accused under immediate custody in order not
to frustrate the ends of justice.
Presence of Counsel:
NOT MANDATORY in PI, because PI is merely
summary and a public proceeding, there is
nothing adversarial because it is based on
affidavits only. (no evil sought to be avoided is
present)
Recent jurisprudence; yes the counsel must be
present during the PI as the accused may not be
well-versed in the science of the law
Note that even in a Custodial Investigation, there
is already a right to counsel, what more in a PI.
Right to Discovery Procedures
Respondent shall have the right to examine the
evidence submitted by the complainant which he
may not have been furnished and to copy them at
his expense. If the evidence is voluminous, the
complainant may be required to specify only
those which he intends to raise against the
respondent, and these shall be made available
for examination or copying at the respondents
expense.
Designation of Offense:
What is stated in the affidavits is not conclusive
as to the true nature of the crime
Accuseds Presence or Absence in PI:
presence of the accused in the PI is NOT a
condition sine qua non for the validity of the
proceedings
what is important is that efforts were made to
reach him, and an opportunity to controvert the
evidence of the complaint were afforded him
a
PI ex-parte may be conducted if he does not
appear
Completion of PI:
No motion for reconsideration (MR) shall be
entertained after the information has been filed in
court, except only upon the order of the court.
Section 4. RESOLUTION OF THE INVESTIGATING
OFFICER/ REVIEW.
If the investigating prosecutor finds cause to hold
the respondent for trial
prepare the resolution and information
certify under oath that he has personally
examined the complainant and his witnesses, that
there is reasonable ground to believe that a crime
has been committed and the accused is probably
guilty thereof, that the accused was informed of
the complaint and the evidence submitted against
him, and that he was given opportunity to submit
controverting evidence
Otherwise (if he finds no cause to hold the
respondent for trial), he shall recommend the
dismissal of the complaint.

Within 5 days from this resolution


forward the record of the case to the provincial
or city prosecutor, chief state prosecutor,
ombudsman or his deputy .
They would then act on the resolution within 10
days from receipt of records
When the investigating prosecutor recommends
dismissal,
but
his
recommendation
is
disapproved by provincial on the ground that
PC exists, the latter may file the information
against the respondent, or direct another
prosecutor to do the same (file) without need for
conducting a new PI.
If upon by petition of proper party, or the DOJ
motu proprio, reverses or modifies the resolution
of the provincial he shall direct the prosecutor
concerned either to file the corresponding
information, without need for conducting a new
PI, or to dismiss or move for the dismissal of the
complaint or information.
Discretion of the Prosecutor:
the investigating fiscal has the discretion to
determine the specificity and adequacy of the
averments of the offense charged.
The institution of the criminal action depends
upon the sound discretion of the fiscal. (quasijudicial discretion to determine whether or not a
case should be filed in court).
Absence of PI itself:
not a ground for a motion to quash information
raise issue in court so that it may suspend its
proceedings and order the prosecutor or the
inferior court to conduct PI.
Remedy of accused in the Absence of PI, what the
accused must do:
a. refuse to enter a plea on arraignment and object
to further proceedings
b. insist on a PI
c. file a certiorari or prohibition
d. raise the lack of PI as an error on appeal
Designation of the offense:
designation of offense by fiscal is not binding
upon the court
Appeals to DOJ
DOJ/ President has supervision and control of
fiscals
He may alter, modify, nullify fiscals decision.
SC Advisory: DOJ must as far as practicable to
refrain from entertaining a petition for review or
appeal the decision of fiscal when the complaint
or information has already been filed in Court.
(once jurisdiction is vested by filing of the same in
Court, control is on the court already.)

CRIMPRO (JUSTICE SABIO)


Notes
-

However, if the case was already in court, but the


DOJ had already given due course to the appeal,
the Court must suspend proceedings and defer
arraignment and wait for any opinion of the DOJ
on any matter they may have.

Who determines PC? 2 kinds:


EXECUTIVE
JUDICIAL
- determination of PC for - determination of PC for
the filing of the complaint the issuance of WOA
or information
- by prosecution
- by Judge
* Generally. whether or not the case is to be filed is
not for the court to determine. Where the information
has been field (and there is no manifest error, gadalej
on the part of prosecutor), it is not for the accused to
pre-empt the trial by filing a motion to quash the
information.
* Generally, the filing of the case is the prerogative of
the fiscal, and he MAY NOT be compelled by
MANDAMUS to file an information if he is truly
convinced that he does not have the necessary
evidence against the individual.
Why Certiorari/Mandamus will not lie?
it is an exercise of discretion!
For certiorari to lie, there must be no appeal
available. (but in PI, there is such remedy.)
* Exception, when the public prosecutor finds PC
exists as against several person but only files an
information against one person, then a
MANDAMUS will lie to compel him to include
those whom he has excluded.
* Exception, when there is a GADALEJ,
MANDAMUS will lie, provided there is no other
remedy or that he has exhausted all other
remedies available
* Any motion to dismiss the information, the court
must exercise judicial prerogative. He is not bound to
simply accept the prosecutions decision.
Remedy of Complainant if Prosecutor/DOJ/MTC finds
no PC:
a. file a motion for reinvestigation
b. institute a INDEPENDENT civil action (art 35)
SC does not determine PC except,
(same as where a complaint or information may be
enjoined by an injunction)
a.
b.
c.
d.
e.
f.
g.
h.
i.

to protect constitutional rights of accused


avoid oppression and multiplicity of suit
when there is a prejudicial question
gadalej
under an invalid law
there is double jeopardy
persecution instead of prosecution
charges are manifestly false and for vengeance
no prima facie case

CHAMP 2C 2002
Page 17 of 56
Section 5. RESOLUTION OF JUDGE and REVIEW.
(WHERE MTC JUDGE CONDUCTED PI)
Within 10 days after PI, the investigating judge
shall transmit the RESOLUTION OF THE CASE to
the provincial for appropriate action. The
resolution shall state the findings of fact and law
supporting such action together with the
RECORDS of the case: (warrants, affidavits,
counter-a, other supporting evidence, undertaking
of bail, transcripts of proceedings of PI, order of
cancellation of bail bond)
Within 30 days after the receipt of RECORDs, the
provincial shall review the resolution of the
investigating judge on the existence of PC. The
ruling shall expressly and clearly state the facts
and the law on which the same was based and the
parties shall be furnished with copies thereof.
They shall aslo order the release of the accused
who is detained if no PC is found.
* After filing of complaint, MTC judge has 10days to
terminate PI and act upon it and decide (sec 4)
* After such termination, MTC judge has 10 days to
resolve and to transmit the records of the PI case to
the prosecutors. (sec 5)
* After transmittal, prosecutors have 30 days from
receipt to review the resolution of the MTC judge.

It is the ministerial duty of the investigating judge


to resolve the case within 10 days from the date
of the termination of the PI. He has no choice.
Failure to resolve may warrant the dismissal of
the JUDGE himself as a dereliction of duty.
After the MTC judge transmits the resolution and
forwards the records to the Prosecutor, the
Prosecutor may file the information as is, or
change it, or dismiss it

FOR PROBABLE CAUSE


PI by Prosecutor
may change the
designation of the
crime charged
has direction and
control of all criminal
actions
superior to that of
the MTC judge

PI by MTC Judge
may not change the
nature of the crime
charged after the PI
must make a finding
whether or not there
is prima facie case
even if he is a judge,
he is performing a
non-judicial function
(ministerial duty)

Section 6. WHEN WOA MAY ISSUE.


a. By RTC Within 10 days from filing of
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence.
(Judge must determine the existence of PC within 10
days from filing of information.)
He may immediately dismiss the case if
evidence on record clearly fails to establish PC.
If he finds PC, he shall issue a WOA, or a
commitment order if accused has already been

CHAMP 2C 2002
Page 18 of 56
arrested pursuant to a warrant issued by the
(MTC) judge who conducted the PI
(If he has already been arrested, the judge must
within the same period of 10 days, determine the
existence of PC and issue a commitment order.)
In case of doubt on the existence of PC, the
judge may order the prosecutor to present
additional evidence within 5 days from notice and
the issue must be resolved 30 days from filing of
complaint or information.
(Judge may also disregard the prosecutors report
and require the submission of additional evidence to
determine existence of PC.)
b. By MTC The PI cases falling under the
original jurisdiction of MTC, MTCC. MCTC may be
conducted by either the judge or prosecutor.
When conducted by prosecutor, the procedure
is the same as above section (a). If his findings
and recommendations are affirmed by the
provincial he shall issue a WOA. However,
without waiting for the conclusion of the
investigation, the judge may issue a WOA if he
finds after an examination in writing and under
oath of the complaint or witnesses in the form of
searching questions and answers, that a PC
exists and that there is a necessity of placing the
respondent under immediate custody in order not
to frustrate the ends of justice.
c. When WOA not necessary A WOA shall not
issue if the accused is already under detention
pursuant to a warrant issued by the MTC in
accordance with (b) of this section or is for an
offense penalized by a fine only. The court shall
then proceed in the exercise of its original
jurisdiction.
* Judge is the only person authorized to determine
personally the existence of probable cause.
* He must personally evaluate the prosecutors report,
the evidence adduced during the PI.
Offenses that may be filed with MTC for PI (MTC
judge will conduct PI):

A case cognizable by the RTC may be filed with


the MTC for PI.

Even if it is cognizable by the MTC because it is


an offense where penalty is at least 4yrs, 2mos,
1day.
In either case, the MTC judge is authorized to
issue a WOA if there is a necessity of placing the
accused under immediate custody, in order not to
frustrate the ends of justice.
WOA, Defined:
a legal process issued by competent authority
directing the arrest of a person/persons upon
grounds stated therein. It is usually directed to
regular officers of the law.
John Doe Warrants

generally invalid as they are in the nature of a


general warrant, but VALID IF WITH a
DESCRIPTIO PERSONAE.

Personally Examine:
No WOA shall issue except upon probable
cause to be determined personally by the judge
examining under oath or affirmation the
complainant or the witnesses he may produce,
particularly describing the place to be searched
or things or persons to be seized.
Personal knowledge
Personal examination records
-

Probing questions and answers


not
perfunctory or answerable only by Yes or No
Searching Q&As circumstances attendant to
help formulate the mind of the judge to determine
PC. Not merely perfunctory or not just what
appears on information.

Use of independent judgment


not merely
reliance on prosecutors certification (But he may
use the questions previously asked by the
prosecutor)
He may require additional evidence
if he is not
satisfied.

Examination under Oath sworn statements


subscribed to and sworn by before the Judge
to make him liable for perjury, just in case.

Personally Evaluate Documents


Not really personally examine witnesses but,
personal evaluation of the evidence attached to
the records of the case
Summary of Principles for PC on WOA:
1. There is a difference between the prosecutor and
the judge in the determination of PC.
2. The Trial Judge cannot rely solely on the report
of the prosecutor. He must use personal,
separate,
independent
judgment,
using
supporting evidence other than the prosecutors
bare report and certification.
3. It is not required that the complete records of the
case during the PI be submitted and examined by
the judge. He needs only sufficient supporting
documents upon which to make his independent
judgment. Personally determine PC in the
issuance of WOA.
Conditions for Issuance of WOA by MTC Investigating
Judge: (all 3 must be present)
1. has examined in writing and under oath the
complainant and his witnesses using searching
answers and questions
2. be satisfied that PC exists
3. that there is a necessity to place him under
immediate custody in order no to frustrate the
ends of justice.

CRIMPRO (JUSTICE SABIO)


Notes
Remedy if no WOA was issued by MTC judge (judge
ruled in favor of accused)
Not mandamus but
Prosecutor must file the case to the RTC so that a
WOA may be issued at once.
Section
7.
WHEN
ACCUSED
LAWFULLY
ARRESTED WITHOUT A WARRANT.
When a person is lawfully arrested without a WOA
involving an offense requiring PI, the complaint or
information may be filed by the prosecutor
without the need for such investigation
PROVIDED THAT AN INQUEST had been
conducted in accordance with existing rules.
In the absence or unavailability of INQUEST
PROSECUTOR, the complaint may be filed by the
offended party or peace officer directly with the
proper court, on the basis of the affidavit of the
offended party and or arresting person.
Before the complaint or information is filed, the
person arrested may ask for a PI in accordance
with this rule but he must sign a WAIVER of Art
125 RPC, in the presence of counsel. He may then
apply for bail and the investigation must be
terminated within 15 days.
After filing of complaint or information in court
without PI, the accused may within 5 days from
the time he learns of the file, ask for a PI with the
same right to adduce evidence in his defense.
(Remedy

Ask for a PI)

This rule also applies to those arrested without


warrant

Summary:
1. If the person lawfully arrested without a warrant
for an offense which requires a PI, BEFORE a
complaint or information is filed, he may ask for
the PI (with the Inquest Officer) but must sign the
WAIVER. Such PI must be terminated within 15
days.
2. If the person is lawfully arrested without a warrant
for an offense which requires a PI, AFTER the
complaint or information is filed, he may ask for
PI within 5 days from the time he learns of the
filing (with right to adduce evidence)
INQUEST:
an informal and summary investigation
conducted by a public prosecutor in a criminal
case involving persons arrested and detained
without the benefit of a WOA, for the purpose of
determining whether or not said persons should
remain under custody.
PI
Arrested with warrant of
arrest
CHAMP REYNO 2C 2002

INQUEST
Arrested without warrant
of arrest

CHAMP 2C 2002
Page 19 of 56
What are the safeguards to his rights (person arrested
without a WOA): in an INQUEST
DOJ Circular 61 requires the arresting officer to
bring him before the inquest fiscal who shall
determine whether or not person should remain
in custody or be released for lack of evidence or
for further investigation.
Report of inquest fiscal must be reduced in
writing
Report must be SIGNED by the accused.
(thumbmark will do if he is no-read-no-write)
Section 8. RECORDS
A complaint or information filed in court shall be
supported by affidavits and counter-affidavits of
the parties and their witnesses, together with
other supporting evidence and the resolution of
the case.
The record of the PI (whether conducted by judge
or prosecutor), shall NOT form part of the record
of the case.
Why not? it is useless!! an exercise in futility. PI is
only summary in nature, no hearing was conducted
on the affidavits.
However, the court, on its own initiative or motion
of any party, may order the production of the
record or any of its part necessary in the
resolution of the case or any incident therein, or
when it is to be introduced as an evidence in the
case by the requesting party.
Section 9. CASES NOT REQUIRING PI
See book. Same provisions. See comments under
sec 6.

RULE 113 - ARREST


Section 1. DEFINITION.
Arrest is the taking of the person into custody in
order that he may be bound to answer for the
commission of an offense.
Section 2. HOW MADE.
An arrest is made by an actual restrain upon the
person to be arrested, or by his submission to the
custody of the person making the arrest.
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not
be subject to greater restraint than is necessary
for his detention.
What Constitutes Arrest:
-Intent to effect an arrest (acting under some real or
pretended legal authority for taking the person into
custody)
(+) plus,

CHAMP 2C 2002
Page 20 of 56
-Person understands that he is in the power of the
one arresting the arrest and submits in consequence
(conscious of restraint on his liberty)
Police Must Stand His Ground:
*No unnecessary force or unreasonable force
*Use only reasonable force necessary to secure and
detain the offender, overcome his resistance, prevent
his escape, recapture him if he escapes, and protect
himself from bodily harm.
Section 3. DUTY OF ARRESTING OFFICER.
It shall be the duty of the officer executing the
warrant to arrest the person and deliver him to the
nearest police station or jail without unnecessary
delay
Section 4. EXECUTION OF WARRANT.
The head of the office to whom the WOA was
delivered for its execution shall cause the warrant
to be executed within 10 days from receipt. Within
10 days after expiration of the period, the officer
to whom it is assigned for execution shall make a
report to the judge who issued it. In case of his
failure to effect the arrest, he shall state the
reasons therefor.
-

Warrant need not be returned but only a report to


the judge who issued it.
It does not become stale or functus officio and
remains valid until arrest is effected or warrant
lifted by judge.
A SW is valid only for 10 days.

Section 5. WARRANTLESS ARREST


A peace officer or a private person, may without a
warrant, arrest a person:
a.

b.

c.

when in his presence, the person sought to


be arrested has committed, is actually
committing, or is attempting to commit an
offense. (INFLAGRANTE DELICTO)
When an offense has just in fact been
committed, and he has probable cause to
believe based on personal knowledge of the
facts and circumstances that the person
sought to be arrested has committed it. (HOT
PURSUIT)
When the person sought to be arrested is a
prisoner who has escaped a penal
establishment or place where establishment
or a place where he is serving final judgment
or is temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
(ESCAPEE)

* So many comments, conflicting cases


no hard
and fast rule for probable cause or personal
knowledge.

Probable cause based on Personal knowledge =


actual belief or reasonable grounds of suspicion.
When reasonable?
- In the absence of an actual belief of the arresting
officers, the suspicion must be based on actual facts,
supported by circumstances sufficiently strong in
themselves to create a probable cause of guilt of the
person sought to be arrested, coupled with good faith
on the part of the peace officers making the arrest.
Generally, no WOA = no arrest
Exceptions, sec 5 rule 113.
provided they are reasonable
Rules:
1. that the authority or agent had reasonable cause
to believe that an unlawful act, amounting to a
crime had been committed
2. that the authority or agent had sufficient reason
to believe that the person arrested participated in
the commission of such unlawful act or crime.
Inflagrante Delicto:
Knowledge of the commission of the crime in
ones presence must at the time of arrest, not
after. It must precede arrest.
Arrest cannot be justified by discovery thereafter
that a person was committing a crime
It is not enough that a crime is actually being
committed in his presence, The person or peace
officer making the arrest must be personally
aware of the commission of such crime.
Buy-bust operations
valid form of entrapment
Principle of Continuity
Some tell-tale signs
PC exists
a. distinct odor of marijuana
b. informer positively identifies accused who
was acting suspiciously
c. accused fled when accosted by police
Hot Pursuit:
Elements:
a. offense has been committed
crime must
in fact been committed ??? abandoned
doctrine?
b. offense has just been committed
immediacy in point of time, very short time
ago, almost immediately
c. probable cause based on personal
knowledge of the facts and circumstances
that person to be arrested committed it.
not tip of informer, not merely based on
surveillance reports, not disclosure by
eyewitness, not information from unknown
source
CHAMP REYNO 2C 2002

CRIMPRO (JUSTICE SABIO)


Notes
General test:
there must be objective facts or overt acts
committed in the presence of the arresting officer
reasonably perceived as a crime.
Would the facts available to the officer at the time
of the arrest warrant a man of reasonable caution
in the belief that the action taken was
appreciated.
Needs only a significantly lower quantum of proof
to establish PC than guilt
Note: Even if the arrested person is later found to be
innocent and acquitted, the arresting officers are NOT
liable, provided they comply with the conditions for
arrest. Otherwise, they can be held liable for arbitrary
detention.
Section 6. TIME.
An arrest may be made on any day and at any
time of the day or night.
Section 7. METHOD WITH WOA
When making an arrest by virtue of a warrant, the
officer shall
inform the person to be arrested the cause of
the arrest, the fact that a warrant has been issued
for his arrest,
except when he flees or forcibly resists before
the officer has had opportunity to inform him so,
or when the giving of such information would
imperil the arrest.
The officer need not have the warrant in his
possession at the time of the arrest, but after
arrest, if the person so requires, the warrant shall
be shown to him as soon as practicable.
Section 8. METHOD WITHOUT WOA (OFFICER)
When making an arrest without a warrant, the
officer shall
inform the person to be arrested of his
authority and the cause of his arrest,
unless the later is either engaged in the
commission of the offense, or is pursued
immediately thereafter, has escaped, flees,
forcibly resists arrest before
Aside from doing all these, the peace officer must
also inform the accused of his rights: (some cop stuff)
1. you have the right to remain silent, any statement
you make may be used against you as evidence
2. you have the right to be informed of his right to
be assisted at all times, of an independent and
competent counsel preferably of his own choice,
3. if you have no lawyer, or cannot afford the
services of one, you will be provided with one.
4. Right to communicate or confer through
telephone, radio, etc, his lawyer and any
immediate family member, doctor, priest, minister
chosen by him
5. Right to waive any of such rights provided may
voluntarily and in the presence of counsel
See book for all the rights

CHAMP 2C 2002
Page 21 of 56

Section 9. METHOD
WITHOUT WOA (BY
PRIVATE PERSON)
When making an arrest, a private person shall,
inform the person of the intention to arrest him
and the cause of the arrest,
unless the later is engaged
Section
10.
OFFICER
MAY
SUMMON
ASSISTANCE.
An officer making a lawful arrest may orally
summon as many persons as he deems
necessary to assist him in effecting the arrest.
Every person so summoned by an officer shall
assist him in effecting the arrest when he can
render such assistance without detriment to
himself.
Section 11. RIGHT TO BREAK INTO BLDG.
An officer, in order to make an arrest either WITH
OR WITHOUT WOA, may break into building or
any enclosure where the person sought to be
arrested is or is reasonably believed to be, if he is
refused admittance thereto, after announcing his
authority and purpose.
Section 12. RIGHT TO BREAK OUT.
Whenever an officer has entered a building or
enclosure, he may break out therefrom when
necessary to liberate himself.
Section 13. ARREST AFTER ESCAPE OR
RESCUE.
If a person lawfully arrested escapes or is
rescued, any person may immediately pursue or
retake him without a WOA at any time and any
place in the Philippines.
Section 14. RIGHT OF ATTORNEY AND RELATIVE
TO VISIT.
Any member of the Philippine bar shall, at the
request of the person arrested or of another
acting in his behalf, have the right to visit and
confer privately with such person in jail or in any
other place of custody at any hour of the day or
night. Subject to reasonable regulations, a relative
of the person arrested can also exercise the same
right.
*Any illegality in arrest must be raised before plea.

RULE 114 - BAIL


Section 1. DEFINITION.
Bail is the security given for the release of the
person in custody of the law, furnished by him or
a bondsman, TO GUARANTEE HIS APPEARANCE
before any court as required under the conditions
hereunder specified. Bail may be given the form
of

CHAMP 2C 2002
Page 22 of 56
-

corporate surety
property bond
cash deposit
recognizance

Purpose:
To ensure appearance of accused in court when
required by the court
Constitutional Basis Sec 13 Bill or Rights.:
- All persons, except those charged with offenses
punishable by Reclusion Perpetua, when the
evidence of guild is strong, shall before conviction, be
bailable by sufficient sureties or release on
recognizance as maybe provided by law. The right to
bail shall not be impaired even when the privilege of
writ of habeas corpus is suspended. Excessive bail
shall not be required.
constitutional right to bail
Concept:
- Flows from the presumption of innocence, hence he
may not be detained unless his guilt is proved beyond
reasonable doubt.
All persons, whether charged or not, are BEFORE
CONVICTION, entitled to bail as a matter of right. The
only exception here is when he is charged with a
capital offense and the evidence of guilt is strong.
In Custody
Right to bail accrues only when a person is
arrested or deprived of liberty.
One who is in custody of the law, may apply for
bail.
How custody acquired?
1. by virtue of W or Wless arrest
2. by virtue of voluntary submission to the
jurisdiction of the court (surrendering to the
proper authorities)
*need not be actually detained
*filing of case in court a person is already
subject to the jurisdiction of the court, hence he
may already file for bail
exception, Paderanga vs. CA case in the
hospital yet the lawyer of the accused manifested
to the court that he was submitting himself to the
court.
*Personal appearance necessary in application for
bail.
In applications for BAIL, the accused must be in
custody of law to be entitled to BAIL.
must have
personal appearance
you cannot file for bail when you are not yet
arrested. (premature)
The requirement for personal appearance or
constructive custody applies only in a petition for
BAIL. In other motions, non-appearance does not

prevent the court from deciding or action upon such


motion.
Exceptions: In Paderanga vs. CA, the accused filed
his application for bail, even before he was actually
and physically arrested, because he was confined in
the hospital and his counsel manifested before the
court that he was submitting himself to the jurisdiction
of the court.
constructive custody sufficient, not actual.
generally, physical presence of the accused in
important for the bail to be acted upon,
Waiver of right to bail by agreement
an application for bail shall NOT bar the accused
from challenging the validity of his arrest or the
legality of the warrant issued, or from assailing
the regularity or questioning the absence of the
PI, provided that he raises them before entering a
plea.
Posting of Bail is NOT a Waiver to
procedural defects.
Section 2. CONDITIONS OF BAIL, IMPLICATIONS.
a. the undertaking shall be effective upon
approval and unless cancelled, shall remain
in force at all stages of the case until
promulgation of the judgment of the RTC,
irrespective of whether the case was
originally filed or appealed to it.
b. Accused shall appear before the proper court
whenever required
c. Failure of the accused to appear at the trial
without justification and despite due notice
shall be deemed a waiver of his right to be
present thereat. Hence trial may proceed
notwithstanding his absence (trial in
absentia)
d. Bondsman shall surrender the accused to the
court for execution of final judgment.
* Otherwise stated,
1. Before conviction, accused shall answer the
complaint or information
2. After conviction, shall surrender himself in
execution of the judgment that the appellate court
my render
3. Remanded for new trial, shall appear in court to
which it may be remanded and submit himself to
the orders and processes thereof.
Failure of the accused to perform any of these
conditions, the bond given in security thereof shall be
forfeited.
*Bondsmen must be screened/ evaluated by court
(reputation, solvency, promtitude)
Court may impose other conditions in bail:
a. increase amount of bail bond
b. to report to the court periodically and make an
accounting of his movements
c. warning of trial in absentia
d. restrict travel (hold departure order)

CRIMPRO (JUSTICE SABIO)


Notes

Section 3. RELEASE OR TRANSFER


No person under detention by legal process shall
be released or transferred except upon order of
the court or when he is admitted to bail.
Section 4. BAIL, MATTER OF RIGHT, EXCEPTION.
General Rule:
All persons in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or
released on recognizance as prescribed by law or
this Rule.
before or after conviction by the MTC, MTC,
MTCC, MCTC
before conviction by the RTC
Exception:
[Unless the offense] is punishable by death,
reclusion perpetua or life imprisonment, AND
where the evidence of guilt is strong.
Section 5. BAIL. DISCRETIONARY.
General Rule:
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary.
The application for bail may be filed and acted
upon by the trial court despite the filing of notice
of appeal, provided that it has not transmitted the
original record to the appellate court. However, if
the decision of the trial court convicting the
accused changed the nature of the offense from
non-bailable to bailable, the application for bail
can only be filed with and resolved by the
appellate court.
Should the court grant the application, the
accused may be allowed to continue on
provisional liberty during the pendency of the
appeal under the same bail subject to the consent
of the bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail, or his bail shall be cancelled
upon showing by the prosecutor, with notice to
the accused of the following or other similar
circumstances:
a.
recidivist,
quasi-recidivist,
habitual
delinquent, or committed a crime
aggravated by reiteracion
b.
he has previously escaped from legal
confinement, evaded sentence, or
violated conditions of bail without valid
justification
c.
he committed the offense while under
probation,
parole,
or
conditional
pardon.
d.
Circumstances
that
indicate
the
probability of flight if released on bail
e.
There is undue risk that he may commit
another crime during the pendency of
the appeal.

CHAMP 2C 2002
Page 23 of 56
The appellate court may, motu proprio, or on
motion of any party, review the resolution of the
RTC after notice to the adverse party in either
case.
* Summary of Rules:
Before Conviction:
Generally, bail is a matter of right for all persons
charged criminally in the lower court
always
bailable as a matter of right
Bailable even if a,b,c,d,e circumstances
Exceptions, when he is charged with a capital
offense AND the evidence of guilt is strong
RTC shall only deny the bail as it is neither a
matter of right nor discretion
*When evidence is not strong, then it becomes
discretionary
BEFORE
RIGHT
all
offenses
whether charged
or not charged yet
- even if under the
a,b,c,d,e
circumstances
- even if charged
with
a
capital
offense but there
was no PI (trial
with
his
objections)
- conviction by
MTC, MCTC
AFTER
RIGHT
- conviction by
MTC, MCTC
-

DISCRETION
charged
with
capital offense
BUT evidence
of guilt weak
deportation
proceedings by
CID

DISCRETION
all
offenses
regardless of crime
charged
-

DENY
- charged with
capital offense
AND evidence
of guilt strong
- not available
for military

DENY
- penalty imposed
exceeds 6 years
AND under the
a,b,c,d,e
circumstances
- convicted with a
capital
offense,
even
if
he
appeals

After Conviction:
matter of discretion, regardless of the charge
If the court imposed a penalty of imprisonment
(meaning after conviction), exceeding 6 years
then bail is still a matter of discretion
Exceptions, when under any of the a,b,c,d,e
circumstances
RTC shall only deny bail, it is
not discretionary
On Appeal:
Even if there is no notice of appeal if the decision
of the trial court convicting the accused changes
the nature of the offense from non-bailable to
bailable, the application for bail can only be filed
with and resolved by the appellate court.

CHAMP 2C 2002
Page 24 of 56
Section 6. CAPITAL OFFENSE DEFINITON.
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.
Refers to the imposable penalty as prescribed by
law, not what the court would eventually impose
(regardless of the attendant circumstances).
Why?
To allow bail on the basis of the penalty to be actually
imposed would require consideration not only of the
evidence of the commission of the crime but also
evidence of the aggravating and mitigating
circumstances. There would then be a need for a
complete trial, which would defeat the purpose of bail,
which is to entitle the accused of provisional liberty
pending trial. (Flows from the presumption of
innocence)
Section 7. CAPITAL OFFENSE NON-BAILABLE.
No person charged with a capital offense, or an
offense punishable by RP, or life imprisonment,
shall be admitted to bail, when evidence of guilt is
strong, regardless of the stage of the criminal
prosecution.
Why?
The exception to the fundamental right to be bailed
should be applied in direct ration to the extent of
probability of the evasion or escape of the accused of
his prosecution.
Hearing for Bail Mandatory:
for cases involving discretionary bail only (capital
punishment)
if its is a right, then there is no need for hearing
because it is always granted as a matter of right.
Hearing is required with the participation of both
the defense and a duly notified representative of
the prosecution to ascertain whether or not the
evidence of guilt is strong.
Prosecution for must be given opportunity to
present evidence, being entitled to due process
At the hearing, the accused may rightfully crossexamine the witness presented by the
prosecution and introduce his own evidence for
rebuttal.
Additional rules for pending or on appeal cases:
1. An accused is charged with a capital offense or
punishable by RP, and after trial is convicted, he
is no longer entitled to bail as a matter of right
because evidence of guilt is strong.
2. When an accused is charge with an offense
which under the law existing at the time of its
commission and time of application for bail is
punishable by < RP or RP and is out on bail, and
after trial is convicted for a lesser offense that
charge, he may be allowed to remain free
pending the resolution of appeal.

3.

When an accused is charge with an offense


which under the law existing at the time of its
commission and time of application for bail is
punishable by < RP or RP and is out on bail, and
after trial is convicted of the same charge, his
bond shall be cancelled and the accused shall be
placed in confinement pending the resolution of
his appeal.

Section 8. BURDEN OF PROOF.


At the hearing for an application for bail filed by a
person who is in custody for the commission of
an offense punishable by death, RP or life
imprisonment, the prosecution has the burden of
showing that the evidence of guilt is strong. The
evidence presented during the hearing shall be
automatically reproduced at the trial but, upon
motion of either party, the court may recall any
witness for additional examination unless the
latter is dead, outside the Phils. or otherwise
unable to testify.
Summary Hearing:
As a proper exercise of judicial discretion,
evidence of guilt must be submitted to the court,
with the accused having the right to crossexamine and introduce own evidence for his
rebuttal.
Brief and speedy method of receiving and
considering the evidence of guilt as far as
practicable and consistent with the purpose of the
hearing.
Does not try on the merits, avoiding unnecessary
thoroughness and reducing to the reasonable
minimum the amount of corroboration on the
details.
Bail may be granted only after a hearing thereon
conducted by the judge to determine whether or
not the prosecutions evidence of guilt is strong.
Mere readings on the affidavits not sufficient. The
fact that the MTC judge conducting the PI
granted bail before, does not justify that it will be
granted now.
Prosecutors Absence/ No Objection in Hearing:
Even if the prosecution is absent, Court must
proceed with the hearing.
Court cannot motu proprio grant the bail just
because the of the prosecutions failure to
appear. (non-appearance)
If the prosecution refuses to adduce evidence or
fails to interpose any objection to the motion for
bail, it is still mandatory for the court to conduct a
hearing or ask searching and clarificatory
questions from which it may infer the strength of
evidence of guilt or lack thereof against the
accused.
Notice of Hearing:
Upon filing of application, prosecutor must be
given reasonable notice of hearing.

CRIMPRO (JUSTICE SABIO)


Notes
Summary of Evidence/ Result of Hearing:
The order granting or denying bail must contain a
summary of the evidence of the prosecution,
followed by a conclusion on whether or not the
evidence of guilt is strong.
Otherwise, without stating the reasons, the order
granting or denying bail is voidable and defective.
An order which does not contain such finding
should not be sustained nor given any semblance
of validity.
Summary must be complete.
Cancellation of Bail:
same procedure as an application for bail
When is Evidence of Guilt Strong:
evident proof clear and strong evidence which
leads a well-guarded dispassionate judgment to
the conclusion that the offense has been
committed as charged, that the accused is the
guilty agent, and that he will probably be
punished capitally if the law is administered
presumption great circumstances testified to
are such that the inference of guilt naturally to be
drawn therefrom is strong, clear and convincing
to an unbiased judgment and excludes all
reasonable probability of any other conclusion.
Section 9. AMOUNT OF BAIL GUIDELINES.
(not whether or not bail is to be issued)
a. financial ability of accused
b. nature and circumstance accused
c. penalty for offense charged
d. character and reputation
e. age and health
f. weight of evidence against accused
g. probability of accused appearing
h. forfeiture of other bail
i. fact of being a fugitive from justice when
arrested
j. pendency of other cases where he is on
bail.
Excessive bail shall not be required.
Section 10. CORPORATE SURETY.
Any domestic or foreign corporation, licensed as
a surety in accordance with law, and currently
authorized to act as such, may provide bail by a
bond, subscribed jointly by the accused and an
officer of the corporation duly authorized by its
board of directors.
Bail is neither punitive nor revenue raising.
A surety bond does not require an actual financial
outlay on the part of the bondsman or the property
owner. It is only the reputation and credit standing of
the bondsman or the expectancy of price at which the
property can be sold, is placed in the hands of the
court to guarantee the production of the body of the
accused a various proceedings leading to his
conviction or acquittal.

CHAMP 2C 2002
Page 25 of 56

Section 11. PROPERTY BOND.


A property bond is an undertaking constituted as
lien on the real property given as security for the
amount of the bail. Within 10 days after approval
of bond, accused shall cause the annotation of
the lien on the TCT with the Register of Deeds
and submit to the court his compliance. His
failure to do so shall be sufficient cause for the
cancellation of the property bond and he may be
arrested or detained.
Section 12. QUALIFICATION OF SURETIES.
The qualifications of sureties in a property bond:
a. must be a resident owner or real estate in the
Philippines
b. only 1 surety
his real estate must be worth
at least the amount of the undertaking
c. 2 or more sureties
provided that the sums
must be equivalent to the whole amount of
the bail demanded
Every surety must be worth the amount specified
in his own undertaking over and above all just
debts, obligations and properties exempt from
execution.
*Family home may not be executed
Section 13. JUSTIFICATION OF SURETIES
Every surety shall justify by affidavit taken before
the judge that he possesses the qualifications
prescribed in the preceding section. He shall
describe the property given as security, stating
the nature of his title, encumbrances, number and
amount of other bails other liabilities No bail
shall be approved unless the surety is qualified.
Section 14. CASH BOND DEPOSIT.
The accused or any person acting in his behalf
may deposit cash with the nearest collector of
BIR, or provincial, city or municipal treasurer on
the amount of bail fixed by the court or
recommended by prosecutor. Upon submission of
proper certificate of deposit the accused shall
be discharged from custody. The money
deposited shall be considered as bail and applied
to the payment of fine and costs, while the excess
shall be returned to the accused or to whoever
made the deposit.
Section 15. RECOGNIZANCE.
Whenever allowed by law or Rules, the court may
release a person in custody on his own
recognizance or that of a responsible person (of
the community).

RA 6036
Recognizance instead of bail for penalty <6 mos
and/or fine <P2000.
* Instead of bail, he shall be required to sign a sworn
statement binding himself, pending the final decision
of his case, to report to the Clerk of Court periodically

CHAMP 2C 2002
Page 26 of 56
every 2 weeks. The court may in its discretion and
consent of the accused, require further that he be
placed under custody and subject to the authority of a
responsible person in the community who may be
willing to accept the responsible. Any violation of the
sworn statement, the Court shall order his immediate
arrest unless he files bail.
Youthful Offender unable to furnish bail, committed
to the care of the DSWD who shall be responsible for
his appearance in court whenever necessary.
Section 16. BAIL WHEN NOT REQUIRED.
No bail shall be required when the law or these
rules so provide.
When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense charged,
he shall be released immediately, without
prejudice to the continuation of the trial or the
proceeding on appeal. If the maximum penalty to
which the accused may be sentenced is destierro,
he shall be released after 30 days of preventive
imprisonment.
A person in custody for a period equal to or more
than a minimum of the principal penalty
prescribed for the offense charged, without
application of the I.S.L. or any modifying
circumstance, he shall be released on a reduced
bail or on his own recognizance at the discretion
of the court.
Section 17. BAIL, WHERE FILED.
Bail in the amount fixed may be filed with the
court where the case is pending, or in the
absence or unavailability of the judge thereof,
with any RTC judge, MTC judge, MTC judge,
MCTC judge in the province or municipality. If the
accused is arrested in the province, city or
municipality other than where the case is
pending, bail may also be filed with any regional
trial court of said place, or if no judge thereof is
available, with any MTC, MTC, MCTC judge
therein.
Where the grant of bail is a matter of discretion, or
the accused seeks to be released on
recognizance, the application may be only filed in
the court where the case is pending, whether on
preliminary investigation, trial or appeal.
Any person in custody who is not yet charged in
the court may apply for bail with any court in the
province, city or municipality where he is held.
When bail is denied by the trial court, the remedy is
a special civil action in the CA and not in the SC.
Section 18. NOTICE TO PROSECUTOR.

In the application for bail, the court must give


reasonable notice of the hearing to the prosecutor
or require him to submit his recommendation.
Duty to serve the notice to all parties concerned at
least 3 days prior to hearing.
When admission to bail is a matter of discretion,
the court must require that reasonable notice of
hearing of the application for bail be given to the fiscal
and such notice is necessary because the burden of
showing the evidence of guilt is strong is on the
prosecutor.
Section 19. RELEASE ON BAIL.
The accused must be discharged upon approval
of the bail by the judge with whom it was filed.
When bail is filed with a court other than where
the case is pending, the judge who accepted the
bail shall forward it, together with the order of
release and other supporting documents, to the
court where the case is pending, which may, for
good reason, require a different one to be filed.
Steps:
1. the application for bail must be filed in court
where the case is pending. In the absence or
unavailability of the judge thereof, the application
for bail may be filed with another branch of the
same court within the province or city.
2. If the accused is arrested in the province, city or
municipality other than where the case is
pending, bail may be filed with any RTC of that
place. If there is no judge available there, then
with any MTC, MCTC judge also there.
Section 20. INCREASE/ DECREASE.
After the accused is admitted to bail, the court
may, upon good cause, either increase or reduce
its amount. When increased, the accused may be
committed to custody if he does not give bail in
the increased amount within a reasonable period.
An accused held to answer a criminal charge, who
is released without bail upon filing of the
complaint or information, may, at any subsequent
stage of the proceeding, and whenever the
evidence of guilt is strong, be required to give bail
in the fixed amount, or in lieu thereof, committed
to custody.
Section 21. FORFIETURE OF BAIL.
When the presence of the accused is required by
court, his bondsman shall be notified to produce
him before the court on a given date and time. If
the accused fails to appear in person as required,
his bail shall be declared forfeited and the
bondsman is given 30 days within which to
produce their principal and to show cause why no
judgment should be rendered against them for the
amount of their bail. Within the said period, the
bondsman shall:

CRIMPRO (JUSTICE SABIO)


Notes
a.

produce the body of the principal or give


reason for his non-production
b. explain why the accused did not appear
in court when first required to do so.
Failing these 2 requisites, a judgment shall be
rendered against the bondsman, jointly and
severally, for the amount of bail. The court shall
not reduce or otherwise mitigate the liability of the
bondsman, unless the accused has been
surrendered or is acquitted.
Bondsman is duty-bound to produce the person of
the accused. If the bondsman fails to take such action
the trial court may consider it negligent in the
performance of its duty.
Scope and Nature of Bondsmans Duty:
Their custody of him is the continuation of the
original imprisonment, and though they cannot
actually confine him they are subrogated to all
the rights and means which government
possesses to make their control of him effective.
Where the accused jumps bail after being
arraigned, the trial shall continue and the
bondsman shall be held to their undertaking as
sureties.
The matter of reducing the bondsmans liability
under a forfeited bond is a matter of judicial
discretion.
Exemptions/ Reductions from Liability: Requisites to
Justify:
To justify exemption from liability on a bail bond
or a reduction thereof, the 2 must be both
present:
a. production or surrender of the accused
within 30 days from notice of order or giving
the reason for its non-production
b. satisfactory explanation for the nonappearance of the accused when first
required by the court to appear.
- Hence the mere production or appearance of the
accused within the period set by court after his failure
to appear when first required by the court would NOT
suffice to exonerate liability of bondsman. It is still
necessary for him to give satisfactory reason why he
failed to appear when first required to do so.
(personal appearance no sufficient
satisfactory
explanation required)
- If the principal knowingly and intentionally jumps
bail, they surety is still not exempted from liability for
he would be deemed to have been remiss in his duty
as jailer of the accused. As jailer or custodian of the
accused, its obligation is to producte to body of the
accused whenever so required. Failure to do so is a
violation of the condition of bond
forfeiture of bail
bond is in order.
If no sufficient reason appears or is given by the
bondsman for not having been able to present the
accused within the time specified above (30 days),

CHAMP 2C 2002
Page 27 of 56
the court may then render judgment against the
bondsman for the amount represented by bail bond.
What are the Satisfactory Explanations Accepted:
1. act of god (principal dies before the
performance, performance of bond rendered
impossible)
2. act of obligee (creditor) if the court is
abolished without qualification
3. act of law when arrested by the State
where the obligation is given and sent out by
the governor, upon requisition of the
governor of another State (by request of
another state).
4. by surrender of the principal or his re-arrest
in the same manner
*3 situations above mean the sureties are
exonerated from their non-production of the
person of the accused.
When not exonerated: When Liable Still:
1. When the bondsman permitted accused to
escape, he is not exonerated.
2. When bondsman never delivered nor
attempted to deliver the body of the accused
to court
Other Charges, Other Proceedings:
The subsequent arrest of the accused on another
charge, or in other proceedings, while he is out
on bail does NOT operate ipso facto as a
discharge of his bail. Even if while in custody on
another charge, he escapes or again discharged
on bail, and his bails are bound to produce him.
Death of the Accused Principal:
The death of the principal after judgment on a
bail bond is obtained does not necessarily
release sureties from obligation
Death must be before breach (or demand by the
court).
Order of forfeiture conditional and interlocutory,
there being something more to be done such as the
production of the accused within 30 days.
Order of confiscation independent of the order of
forfeiture. It is a judgment ultimately determining the
liability of the surety, final and executory at once.
Section 22. CANCELLATION OF BAIL.
Upon application of the bondsman, with due
notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof
of his death. The bail shall be deemed
automatically cancelled upon acquittal of the
accused, dismissal of the case or execution of the
judgment of conviction.
In all instances, the cancellation shall be without
prejudice to any liability on the bail.

CHAMP 2C 2002
Page 28 of 56
-

Sureties do not guarantee that their principal will


no longer commit a crime while out on liberty. (As
free). Their only undertaking is to present him
when called for by the court.

- Appeal for order of execution of forfeiture of bail


must be perfected within the non-extendible 15 days
following notification of sureties.
Section 23. ARREST OF ACCUSED OUT ON BAIL.
For the purpose of surrendering the accused, the
bondsman may arrest him, or upon written
authority endorsed on a certified true copy of the
undertaking, cause him to be arrested by a police
officer or any other person of suitable age and
discretion.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts
to depart from the Philippines without permission
of the court where the case is pending.
Right of Sureties or Court to Rearrest Accused:
Although sureties may no hold him as prisoner,
sureties may seize him and deliver him up at any
time, and if that cannot be done at once, imprison
him until it can be done.
They become jailers of the principal accused.
Their custody of him is the continuation of the
original imprisonment, and though they cannot
actually confine him they are subrogated to all
the rights and means which government
possesses to make their control of him effective.
Arrest may be made by the bail, either in person
or by agent. They may pursue him, and if
resistance be apprehended, they may at all times
command the assistance of police officers.
A court, with or without sureties from accused,
has the power to order the arrest of an accused
person released on bail if it is shown that he is
attempting or planning to escape or is in hiding.
Section 24. NO BAIL AFTER FINAL JUDGMENT,
EXCEPTION.
No bail shall be allowed after a judgment of
conviction has become final. If before such
finality, the accused applies for probation he may
be allowed temporary liberty under his bail. When
no bail was filed or if the accused is incapable of
filing one, the court may allow his release on
recognizance to the custody of a responsible
member of the community. In no case shall be be
allowed after the accused has commenced to
serve sentence.
Section
25.
COURT
SUPERVISION
OF
DETAINEES.
Court shall exercise supervision over all persons
in custody for the purpose of eliminating
unnecessary detention. Judges shall conduct
monthly personal inspections of the provincial
jails in their respective jurisdictions.

Ascertain
number
of
detainees,
proper
accommodation, health, conditions of jail
facilities... order segregation of sexes and minors
from adults, ensure observance of their right to
confer privately with counsel
A monthly report of such visitation shall be
submitted to the Court Administrator
Constitutional basis:
The employment of physical or psychological or
degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be
dealt with by law.
Section 26. BAIL NOT A WAIVER.
An application for or admission to bail shall not
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued
therefore, or from assailing the regularity or
questioning the absence of PI of the charge
against him, provided that he raises all of these
before entering his plea. The court shall resolve
the matter as early as practicable but not later
than the start of the trial of the case.
CHAMP REYNO 2C 2002

CRIMPRO (JUSTICE SABIO)


Notes

RULE 115 - RIGHTS OF THE ACCUSED


RIGHTS OF THE ACCUSED
In all criminal prosecutions, the accused shall be
entitled to the following rights:
-

the rights of the accused are provided for by law


or in the constitution

Due process
a.
substantive intrinsic validity of the law
(legislative power)
b. procedural a law which hears before it condemns,
proceeds with inquiry, and renders judgment only
after hearing the merits
Essence of Due Process:
-hearing before conviction and before an impartial and
disinterested tribunal
-BUT, judicial proceedings are NOT part of criminal
due process, except only when required by law
-Hence, due process need not always end up in a trial
- may be waived
Elements of Criminal Due Process:
1. court of competent jurisdiction
2. proceeded against the orderly process of law
3. punished only after inquiry and investigation
4. notice to accused and opportunity to be heard and
submit evidence
5. judgment awarded within the authority of the law
a. To be presumed innocent until the contrary is
proven beyond reasonable doubt
-

accusation is not synonymous with guilt, hence


there is always a presumption of innocence
The burden of proof is on the prosecution to
overcome such presumption by proof beyond
reasonable doubt (moral certainty)
Proof against him must survive the test of reason,
and the strongest judgment must not be
permitted to sway judgment

Who presents evidence first:


Generally,
Prosecution presents evidence first before the
defense.
Defense may file a demurrer to evidence after the
presentation of prosecutions evidence, to
terminate the proceedings believing that the
prosecution has failed to present evidence
sufficient to overcome presumption.
Otherwise, the task of the defense is to create a
doubt in the mind of the judge.
Exception,
In case of self-defense, in which case there is a
reverse trial (with consent of the accused). (defense
first)

CHAMP 2C 2002
Page 29 of 56

Reasonable Doubt:
doubt engendered by an investigation of the
whole proof and the inability to let the mind rest
easy upon the certainty of guilt
b. To be Informed of the nature and cause of the
accusation against him
When is complaint or information sufficient:
see comments on Rule 110
reasonable certainty in the statement of the
crime, and the charge is set forth with such
particularity as will reasonably indicate the exact
offense
Accused must be Arraigned (Purpose):
see comments on Rule 116
a. to inform the accused of why he was indicted and
what penal offense he is faced (notify him of the
cause he is required to meet
b. to bring the accused into court
c. to know the precise charge
c.

To be present and defend in person and by


counsel at every stage of the proceedings
from the arraignment to the promulgation of
the judgment

Requisites of a valid trial in absentia:


1. prior valid arraignment
2. duly notified of the trial
3. failure to appear is unjustifiable
When is the Presence of Accused Mandatory:
A. arraignment
B. promulgation of judgment
except: conviction for light offense (lawyer is
sufficient)
except: when in absentia
C. when prosecution intends to present witnesses
who will identify the accused
except: when he has already be unqualifiedly
identified in open court (ex. He identifies himself
in open court.)
-

the accuseds failure to appear during trial is


deemed a waiver of his right to be present only
for such date, not on other dates
when his failure to appear is because he
escapes, he shall be deemed to have waived his
right to be present for all subsequent dates, until
custody is regained

Waiver of Right to be Present


-this does not mean that the prosecution is deprived
of its right to require the presence of the accused for
purposes of identification by its witnesses vital for te
conviction of the accused,
-Hence, despite waiver, he can still be ordered
arrested for purposes of identification

CHAMP 2C 2002
Page 30 of 56
-He may waive only his right, but not his duty or
obligation to the court
Termination of the Trial in Absentia:
court will decide based upon the evidence
presented in court as he was already given an
opportunity to be heard
what the constitution guarantees him is a fair trial,
not a continued enjoyment of his freedom even if
his guilt is proved.
Absence cannot justify the delay.
Effects of Trial in Absentia: (escape)
loses his right to confront and cross-examine
loses his right to present evidence on his behalf
court will rule based on the evidence presented
by prosecution
court will not wait for his re-appearance/arrest
Right to Counsel:
included in the right to be heard
without a competent counsel, having skill in the
science of the law and rules of procedure, he
may be convicted not because he is guilty but
because he does not know how to establish his
innocence.
To minimize the imbalance in the adversarial
system where the accused is pitted against the
awesome prosecutory machinery of the state.
Available from the beginning of custodial
investigation all the way to judgment and appeal
Must be a reasonably effective counsel
Duty of the court to assign a counsel
Right to counsel

Custodial Investigation
- competent and
independent counsel
preferably his own choice
Why?
- directed against abuses
and evils of obtaining
confessions under the pain
of torture, etc.

Trial Proper
- reasonably effective
counsel
Why?
- since it is already a public
trial, no more evil,
- what is required is only that
he is able to prove his
innocence and defend
himself through counsel

right to counsel is absolute and may be invoked


even on appeal
appointment of counsel de officio mandatory only
at the time of arraignment, hence, if his lawyer
fails to appear during trial, the absence of his
counsel (of his own choice) is inexcusable
Violation of Right to counsel = GROUND FOR
NEW TRIAL, deprivation of due process
Ex. Fake lawyer
entitled to a new lawyer
Counsel de parte is a waivable right, and he may
voluntarily submit himself to the court and
proceed with his defense
After filing of case, there is a continuing right to
counsel during the critical stages of pre-trial
(see book)

d.
e.

Right to counsel de parte is NOT ABSOLUTE


when he insists on a specific lawyer whom he
cannot afford (ex. JPE) or he chose someone
who is not a member of the bar, or for conflict of
interests
He may defend himself in person only when the
court sufficiently believes that he can properly
protect his right without the assistance of counsel
To testify as a witness in his own behalf but
subject to cross examination on matters
covered by direct examination
To be exempt from being compelled to be a
witness against himself

Right against self incrimination (ntsa)


To incriminate = that which tends to expose
oneself to CRIMINAL liability (not civil).
It is a mandatory provision, based on the grounds
of PUBLIC POLICY and HUMANITY, because it
would place the witness against the strongest
temptation to commit perjury and because it is an
extortion of a confession through duress which
the law abhors
Based on the right to remain silent and forego
testimony (against compulsory disclosure moral
coercion)
Right against self-incrimination: Rules
By Witness Only
By Accused Himself
may be compelled to
may refused to
take the witness stand
altogether take the
may only refuse to
witness stand
may refuse to answer
answer as questions
are being asked
any or all questions
But, the right may be waived
provided he allows
himself to be crossexamined by the
prosecution
otherwise, his direct
testimony only is
worthless because it
deprives the State due
process

Rules for the Accused:


1. to be exempt from being a witness against himself
2. to testify as witness in his own behalf; but if he
offers himself as a witness, he may be cross
examined and he cannot refuse to answer on the
ground of self-incrimination
3. however, his neglect or refusal to become a
witness shall not prejudice him

the question propounded must be for the crime of


which he is accused (he may decline to answer
it)
Scope of Privilege:
testimonial compulsion
production of incriminating documents, articles,
papers

CRIMPRO (JUSTICE SABIO)


Notes
Scope:
Included (He can refuse
Protected)
GENERALLY,
COMMUNICATIVE
AND
INTELLIGENT ACTS

production
of
inculpatory documents

giving of specimen
handwriting

forced re-enactments

(see book for more


examples)

Immunity Statutes:
Use Immunity
- prohibits the use of
coerced testimony to the
criminal prosecution itself

Excluded (He cannot refuse


Not Protected)
GENERALLY,
MECHANICAL ACTS

fingerprinting

photographing

standing,
walking,
making gestures

blood test

government documents
such
as
public
documents
and
corporation documents
which the government
has the right to inspect

Transactional Immunity
- grants immunity to the
witness for prosecution for
an offense to which his
compelled testimony relates

See book for different statutes granting immunity


f.

To confront and cross-examine the witness


against him at the trial

right to confrontation guarantees the right to


cross-examination
available
in
criminal
proceedings,
civil
proceedings, and administrative proceedings

Purpose:
1. to cross examine the witness and test his
testimony
2. for the court to observe the deportment and
appearance of the witness and test his credibility
because this will serve as a basis for the
appellate court who no longer tries on the
facts and simply accepts the findings of fact
of the RTC
-

may be waived by trial in absentia


right to cross-examine is a fundamental right that
is part of due process
generally, testimony of a witness is not
considered complete until it has been cross
examined (part of due process)
except, when the party has the opportunity to
cross, but does not do so, he is deemed to have
waived the right and thus the testimony given on
direct is allowed to remain in the record

g. to have a compulsory process to secure the


attendance of the witnesses and the production of
evidence on his behalf
witness may be compelled to post bail as may be
deemed proper for such appearance
if the subpoena is issued and the witnesses fail to
appear, the court should order their arrest if
necessary

CHAMP 2C 2002
Page 31 of 56

h. right to speedy trial


-

a speedy trial is one conducted according to the


law, and free from vexatious, capricious and
oppressive delays
must be balanced with the right of the state to
due process, hence, the interest of the public
should not be jeopardized by light causes

Speedy Disposition of Cases


- addressed to the tribunal

Speedy Trial
- addressed to the partylitigants

When violated:
when a long period of time is allowed to elapse
without having the case tried and decided
When NOT violated:
by mere postponement with reasonable
continuance, provided there is an inquiry as why
there is a need for postponement
Remedy: Speedy Trial Act
1. motion to dismiss when the accused is not
brought to trial within the time limit, the
information may be dismissed on the motion of
the accused
2. mandamus to compel the dismissal of the
information or be release on habeas corpus if
detained
3. demand trial and then dismissal proceed with
the trial, with the prosecution presenting evidence
(and consequently), it fails to establish guilt
beyond reasonable doubt then he is acquitted
bar to another prosecution for the same offense
*all the 3 remedies for dismissal are equivalent to
acquittal and bars the subsequent prosecution of the
accused, even if it was at the instance of the accused.
Public Trial:
intended to protect the accused
so that the public may see that he is dealt fairly
and not unjustly condemned
sufficient if FRIENDS, RELATIVES, COUNSEL
are present, as long as no one is excluded
right may be waived
Right to Appeal:
merely a statutory right, not a constitutional right
must comply with the requirements of the Rules
ex. Certificate of non-forum shopping
15 day period for filing an appeal
may be waived = flight of the accused,
subsequent failure to appear.
CHAMP REYNO 2C 2002

CHAMP 2C 2002
Page 32 of 56

RULE 116 - ARRAIGNMENT AND PLEA


Sec 1. ARRAIGNMENT AND PLEA, HOW MADE
a) The accused must be arraigned before the
court where the complaint or information was
filed or assigned for trial. The arraignment
shall be made in OPEN COURT, by the judge
or clerk by FURNISHING the accused with a
copy of the complaint or information,
READING the same in the language or dialect
known to him, and ASKING him whether he
pleads guilty or not guilty. The prosecution
may call at the trial witnesses other than
those name in the complaint or information.
b) The accused must be PRESENT at the
arraignment and PERSONALLY ENTER his
plea. Both arraignment and plea shall be
made of record, but failure to do so shall not
affect the validity of the proceedings
c) When the accused REFUSES to plead or
makes a conditional plea, a plea of not guilty
shall be entered for him
(A formal plea of not guilty must be entered by the
court if an accused admits the truth of some or all of
the allegations in the information, but interposes
excuses or additional facts which if duly established
would exempt him in whole or in part from criminal
liability.)
d) When the accused pleads GUILTY, but
presents exculpatory evidence, his plea shall
be deemed withdrawn and a plea of not guilty
shall be entered for him
(Ex. When he pleads guilty but invokes the mitigating
circumstance of incomplete self-defense plea of not
guilty shall be entered)
e) When the accused is under PREVENTIVE
DETENTION, his case shall be raffled and its
records transmitted to the judge to whom the
case was raffled within 3 days from the filing
of the information or complaint. The accused
shall be ARRAGINED WITHIN 10 days from
the date of the raffle. The pre-trial conference
of his case shall be held within 10 days after
arraignment.
f) The private offended party shall be required
to appear at the arraignment for purposes of
plea bargaining, determination of civil
liability, and other matters requiring his
presence. In case of failure of the offended
party to appear despite due notice, the court
may allow the accused to enter plea of guilty
to a lesser offense which is necessarily
included in the offense charged in conformity
of the trial prosecutor alone.
(The presence of the offended party is NOW
REQUIRED during arraignment and also to discuss
the matter of civil liability.)
g) Unless a shorter perod is provided by special
law or SC circular, the ARRAIGNMENT SHALL

BE HELD 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 the
computation of the period.
(Among the cases where a shorter period is given
are:
when the complainant is about to depart from the
Phils with no date of return, in which case the
arraignment shall commence within 3 days
Child Abuse Act 3 days
Note: When is arraignment suspended: (rule116s11)
a. accused is suffering from unsound mental
condition, rendering him unable to fully
understand the charge against him,
b. there exists a prejudicial question
c. a pending petition for review for resolution under
the DOJ (but the period of suspension shall not
exceed 60 days)
Time limit for Arraignment:
30 days
Old Rule lawyer may enter a plea
New Rule accused must personally enter his plea,
even if it is for a light offense only
Importance of Arraignment
a. to bring the accused to court
b. to inform him of the nature and cause of
accusation against him
c. where the rights of the accused are brought into
reality
*Note that trial in absentia is only possible after
arraignment
Amended Information needs a new arraignment,
unless only an formal amendment
Duplicitousness the judge is under no obligation to
point out the duplicitousness or other defects of an
information since it is on the accused that the law
reposes the obligation to move to quash the
information on the ground of duplicity.
Arraignment done after the prosecution has presented
evidence is VALID does not prejudice the rights of
the accused considering he has full opportunity of
cross-examining the witnesses
Manner of Arraignment:
language or dialect known to him court
interpreter
accused is not entitled to know in advance all the
names of the witnesses for the prosecution
because they may be subject to coercion not to
testify

CRIMPRO (JUSTICE SABIO)


Notes
-

presentation of witnesses not listed in the


information is valid and does not disqualify them
from being witnesses
the existence of a plea is an essential requisite of
double jeopardy

Can he be Acquitted Despite Plea of Guilty:


Yes. There is no rule which provides that simply
because the accused pleaded guilty to the
charge that his conviction automatically follows.
Additional evidence must be considered by the
judge, otherwise he can still be acquitted.
Sec 2. PLEA OF GUILTY TO A LESSER OFFENSE
At arraignment the accused with the consent of
the offended party and the prosecutor, may be
allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in
the offense charged. After arraignment but before
trial, the accused may still be allowed to plead
guilty to said lesser offense, after withdrawing his
plea of not guilty. No amendment of complaint or
information is necessary.
Requisites for a change of plea (NG
G):
1) with consent of offended party and prosecutor
2) for an offense necessarily included therein (thats
why no need for a amended complaint)
a) same crime embraced
b) element or frustration thereof
3) before the prosecution presents its evidence
except: (when allowed after prosecution presents
its evidence)
- when the prosecution does not have sufficient
evidence to establish guilt for the crime charged
Sec 3. PLEA OF GUILTY TO CAPITAL OFFENSE
When the accused pleads guilty to a capital
offense, the court shall conduct a searching
inquiry into
the
voluntariness
and
full
comprehension of the consequences of his plea,
and shall require the prosecution to prove his
guilt and the precise degree of culpability. The
accused may present evidence in his behalf.
-

applicable to cases of capital offenses only


(murder, rape)

Mandatory Steps No waiver by the accused


1) court must conduct a searching inquiry
determine voluntariness and certainty of guilt
2) court must require prosecution to present
evidence and prove the guilty of the accused
(through the requisite quantum of evidence)
3) court may allow the accused to present evidence
prove the exact liability of the accused
-

only a clear, definite and unconditional plea of


guilty by an accused must be accepted by the
court. It is to be regarded as a mitigating
circumstance when seasonably interjected, that
is, before the prosecution presents its evidence

CHAMP 2C 2002
Page 33 of 56
trial judge must satisfy himself that the accused
pleading guilty is truly guilty in a searching inquiry
searching inquiry should include question
regarding the custodial investigation
plea of guilt must not therefore been given
improvidently
he must still be accorded his constitutional rights
(ie. The right to e informed of his right to present
evidence)
Improvident Plea
when the plea of guilt is the sole basis for the
judgment of conviction
Convictions based on improvident plea must be
set aside
Convictions must be predicated on evidence
proving the commission of the offense and not on
the plea alone
Hence, only a judgment that is based on a guilty
plea and some other evidence is a valid
judgment.
-

Sec 4. PLEA OF GUILTY TO NON-CAPITAL


OFFENSE
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.
-

the court has the same 3 duties in sec 3.


But, the prosecutions duty to present evidence is
NOT MANDATORY for a non-capital offense
Judgment may be pronounced at once!
Presentation of evidence is merely to determine
the proper penalty to be imposed

Sec 5. WITHDRAWAL OF IMPROVIDENT PLEA


At any time before the judgment of conviction
becomes final, the court may permit and
improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty.
-

matter of discretion so as not to waste the courts


time (not a matter of right for the accused)
where the accused has voluntarily entered a plea
of guilty with full realization of its meaning and
consequence, the court may not allow the
withdrawal of his plea of guilt.
Also, when the accused has already been
committed to prison or has commenced to serve
his sentence, the court can no longer alter its
decision

Sec 6. FOUR-FOLD DUTY OF THE COURT


Before arraignment, the court shall inform the
accused of his right to counsel and ask him if he
desires to have one. Unless the accused is
allowed to defend himself in person or has
employed the counsel of his choice, the court
must assign a counsel de officio to defend him.
1)
2)

inform the accused of his right to counsel before


being arraigned
ask him if he desires the aid of counsel

CHAMP 2C 2002
Page 34 of 56
3)
4)

and if he desires and is unable to employ a


counsel, he shall be provided with one (the court
must assign a counsel de officio)
or if he desires to procure an counsel of his own,
the court must grant him a reasonable time
therefor.
constitutional right, failure of the court to comply
with this duty is a denial of due process

Sec 7. APPOINTMENT OF COUNSEL DE OFFICIO.


The court, considering the GRAVITY of the
offense and the DIFFICULTY of the QUESTIONS
that may arise, shall appoint a counsel de officio
such members of the bar in good standing who,
by reason of their experience and ability, can
competently defend the accused. But in localities
where such members of the bar are not available,
the court may appoint any person, resident of the
province and of good repute for probity and
ability to defend the accused.
-

a private prosecutor assisting the public


prosecutor cannot be appointed as counsel de
officio for the accused
entitled to be represented by a member of the bar
considering the legal prerequisites and the skills
needed in court proceedings
While his right to counsel is immutable, the option
to secure the services of a counsel de parte is
not absolute.
the court may refuse the request of the accused
that a certain attorney be assigned to him on the
ground that he is of more legal experience. But
where counsel has been assigned to him and has
acted without the accused objection, the latters
conviction cannot be set aside on the ground that
it was not the accused choice of counsel.

Duty of the Court

During Arraignment
-affirmative duty
-inform the accused of his
rights and extend them to
him
-court must perform upon its
own motion
-court acts upon its own
volition,
regardless
of
whether
the
accused
requests it
-silence of the court is error,
unless the accused waives
such right

During Trial
-rights are exercised by the
accused himself
-accused must demand the
benefits
himself,
upon
request of the accused
-mere silence of the court is
not error

Public Attorneys see book nalang


-

where the counsel de officio lacked sympathy for


the defendants cause but nevertheless
undertook the defense and performed his duties,
the right of the defendant to be represented by
counsel was duly accorded.

Even when the counsel de officio appeared only


at the end of the direct examination for the
prosecution, but was still given the opportunity to
cross examine and the accused made no
objection, the right to counsel has been
substantially satisfied
Presumption of Regularity that the accused has
been informed of the right to counsel
Right to counsel may be waived

Sec 8. TIME FOR COUNSEL DE OFFICIO TO


PREPARE.
Whenever a counsel de officio is appointed by the
court to defend the accused at the arraignment,
he shall be given a reasonable time to consult
with the accused as to his plea before proceeding
with the arraignment.
Sec 9. BILL OF PARTICULARS.
The accused may, before arraignment, move for a
bill of particulars to enable him to properly plead
and prepare for trial. The motion shall specify the
alleged defects of the complaint or information
and the details desired.
-

the accused should be fully apprised of the true


charges against him
Basis: right to be informed of the nature and
cause of the accusation against him
An accused who believes that he is not
sufficiently informed of the crime and he is not in
a position to defend himself properly and
adequately can move for specifications.
to avoid any possible surprise detrimental to his
rights and interests, ambiguous phrases should
not be permitted in the complaint or information
if there are any ambiguities, the court shall order
its elimination of surplusages or require the filing
of an amended complaint
Ex. Failing to allege the time of commission of
the offense
file a BOP, not a Motion to Quash.

Waiver:
Failure to move for specifications deprives him of
the right to object to evidence which could be
lawfully introduced and admitted under such
information which is of more or less general
terms
Vagueness in the complaint or information can
therefore be cured by evidence
Sec 10. PRODUCTION OR INSPECTION OF
MATERIAL EVIDENCE.
Upon motion of the accused showing good cause
with notice to the parties, the court in order to
prevent
SURPRISE,
SUPPRESSION,
or
ALTERATION may order the prosecution to
produce and permit the INSPECTION, COPYING,
PHOTOGRAPHING of any written statement given
by the complainant and other witnesses in any

CRIMPRO (JUSTICE SABIO)


Notes
investigation of the offense conducted by the
prosecution or other investigating officers, as well
as any designated documents, papers which
constitute or contain evidence material to any
matter involved in the case and which are in the
possession or under the control of the
prosecution, police or other law investigating
agencies.
Mode of Discovery Discovery Procedure
refers to the right of the accused to move for
production or inspection of material evidence in
possession of the prosecution.
The defense may request, showing good reasons
for granting the same, that they be inspected,
copied or photographed.
Purpose:
to enable him to prepare for his
defense and for trial
Sec 11. SUSPENSION OF ARRAIGNMENT.
Upon motion of the proper party, the arraignment
shall be suspended in the following cases:
a) When the accused appears to be suffering
from UNSOUND MENTAL CONDITION, which
effectively renders him UNABLE TO FULLY
UNDERSTAND the charge against him and TO
PLEAD INTELLIGENTLY thereto. In such
case, the court shall order his mental
examination,
and
if
necessary,
his
confinement for such purpose
b) There exists a PREJUDICIAL QUESTION
c) A PETITION FOR REVIEW of the resolution of
the prosecutor is PENDING at either the DOJ
or the OP. Provided, that the period of
suspension shall not exceed 60 days counted
from the filing of the petition with the
reviewing office.
RULE 117 - MOTION TO QUASH
Sec 1. TIME TO MOVE TO QUASH.
At ANY TIME BEFORE ENTERING HIS PLEA, the
accused may move to quash the complaint or
information
Sec 2. FORM AND CONTENTS.
The motion to quash shall be in writing, signed by
the accused or his counsel and shall distinctly
specify its FACTUAL and LEGAL GROUNDS. The
court shall consider no ground other than those
stated in the motion, except for lack of jurisdiction
over the offense charged.
-

motion to quash = criminal case


motion to dismiss = civil case

- MTQ must specify the very weakness which the


movant believes he sees in the complaint or
information.

CHAMP 2C 2002
Page 35 of 56
for the quick determination of whether there is a
valid charge against the defendant
Factual and Legal Grounds:
facts outside the information may itself be
introduced to prove such grounds.
-

What are the factual and legal grounds?


see sec 3.
Sec 3. GROUNDS FOR MTQ.
The accused may move to quash the complaint or
information on any of the following grounds:
a) that the FACTS CHARGED DO NOT
CONSTITUTE AN OFFENSE
(This cannot be waived.)
b) that the COURT trying the case has NO
JURISDICTION OVER THE OFFENSE charged
(This cannot be waived.
Want of jurisdiction may
be raised at any stage of the proceedings)
c) that the COURT trying the case has NO
JURISDICTION OVER THE PERSON OF THE
ACCUSED
d) That the OFFICER WHO FILED the
information had NO AUTHORITY to do so
e) That
it
does
NOT
CONFORM
SUBSTANTIALLY to the prescribed FORM
f)
That MORE THAN ONE OFFENSE is charged,
except when the law prescribes a single
punishment for various offenses
g) That the criminal ACTION or LIABILITY has
been EXTINGUISHED
(This cannot be waived.)
h) That it contains AVERMENTS, which if true,
would constitute a LEGAL EXCUSE or
JUSTIFICATION
(Ex. Self-Defense)
i)
That the accused has been PREVIOUSLY
CONVICTED or ACQUITTED of the offense
charged, or the case against him was
DISMISSED OR OTHERWISE TERMINATED
without the express consent of the accused.
(Double or Prior Jeopardy) (This cannot be waived.)
Four grounds which cannot be waived:
1) failure to charge an offense
2) lack of jurisdiction over the offense
3) extinction of criminal action or liability
4) double jeopardy
Generally, matters of defense are not valid grounds
for a MTQ, because these must be proven in court
Exceptions: extinction of criminal liability,
prescription, double jeopardy
however, justifying or exempting circumstances
(such as an act of self-defense) may be invoked
in a MTQ
Facts Do Not Constitute the Offense Charged:
the complaint or information must show on its fact
the facts and circumstances necessary to
constitute and offense.

CHAMP 2C 2002
Page 36 of 56
-

If the statute excepts certain persons or classes


from liability, then the complaint must show that
the person charged does not belong to such
class.

Effects of MTQ:
hypothetically admits allegations of fact in the
information
Ex. MTQ on the basis of self-defense
It hypothetically admits the death of the
victim, and does not really admit the actual
killing, but merely says that ASSUMING he
killed him, then he has this defense of selfdefense.
Ex. MTQ on the basis of lack of jurisdiction
admits that ASSUMING that the crime
happened, the court however has no
jurisdiction
Want of Jurisdiction:
(This cannot be waived.
Want of jurisdiction
may be raised at any stage of the proceedings)
However, you cannot raise the want of
jurisdiction simultaneously with a defective
information
remember when you raise want of
jurisdiction it must be the only ground, otherwise,
to raise other grounds is to be inconsistent.
Want of Authority of Officer filing the Information:
a special prosecutor appointed by the SOJ to
sign and file informations has long been
recognized and such information cannot be
quashed on that ground.
Refer to Rule 112, Sec 4
Failure of the prosecution to furnish a copy of the
resolution of the PI is NOT a GROUND for MTQ.
A fiscal is without authority to file an information
for a crime committed outside his territorial
jurisdiction (jurisdiction of the prosecutor)
Waiver to MTQ:
when the accused pleads to an information
before he files a MTQ, it is deemed a waiver of all
objections as far as the pleadings are concerned.
However, want of jurisdiction cannot be waived
an may be raised any time, even after the
judgment!
Does not Conform to Prescribed Form:
complaint or information must enable a man of
common understanding to know what offense he
is charged of
see Rule 110, Sec 5-12
mere defects in form or those which do not tend
to prejudice the substantial rights of the accused
will not invalidate the judgment
Duplicity of Offenses:
may be waived, hence, he can be convicted of as
many offenses as are charged and proved
must be raised before entering his plea

Extinction of Criminal Liability:


a) death of the convict
b) service of sentence
c) amnesty
d) absolute pardon
e) prescription of crime
f) prescription of penalty
g) marriage of the offended woman, Art 344RPC
Death of the accused:
personal right of action dies with the accused
however, when several are accused, the death of
one does not extinguish the criminal action
death of the offended party is not a ground
Partial extinction of criminal liability:
a) conditional pardon
b) commutation of sentence
c) allowances for good conduct
Amnesty vs. Pardon total extinguishment of CL
AMNESTY
- looks backward, abolishes
and puts into oblivion the
OFFENSE itself (as if he
had committed no offense)
- public act which the court
should take judicial notice (it
is a law!)
- cannot be waived for it is of
public interest
- may be proved even if not
pleaded (need not be
alleged)
- granted by President with
concurrence of congress
- granted before, during or
after criminal prosecution /
conviction

PARDON
- looks backward and
relieves the offender from
the consequences of his
offense,
abolishes
or
forgives the PUNISHMENT
- courts take no judicial
notice

granted by President
may be granted by
offended party (certain
cases only)
granted
only
after
conviction
by
final
judgment, and provided
he has not appealed, or
his
appeal
be
withdrawn first
if granted by offended
party, must be before
the
institution
of
criminal proceedings

Prescription:
a) Death, RP, RT 20 years
b) Afflictive penalties 10 years
c) AM 5 years
d) Libel 2 years
e) Oral defamation, slander by deed 6 mos
f) Light offenses 2 mos
-

policy of the law that prosecutions be prompt


to exact vigilance from the States subalterns and
to secure for criminal trials the best evidence that
can be obtained.
Criminal cases prescription cannot be
waived
Civil cases can be waived

CRIMPRO (JUSTICE SABIO)


Notes

Effect of Prescription:
State loses its right to prosecute and punish an
offense, or to demand service of the penalty
imposed
Complaint or information is dismissed
Acquits the accused
Computation of Prescription see book
Contains Averments which Constitute a Legal Excuse
or Justification:
justifying circumstances Art 11 RPC
exempting circumstances Art 12 RPC
double jeopardy (see below)
Sec 4. AMENDMENT OF COMPLAINT OR
INFORMATION.
If the MTQ is based on ALLEGED DEFECT of the
complaint or information which CAN BE CURED
BY AMENDMENT, the court shall order that an
amendment be made.
If it is based on the ground that FACTS DO NOT
CONSTITUTE AN OFFENSE, the prosecution shall
be given by the court and opportunity to correct
the defect by amendment. The motion shall be
granted if the prosecution fails to make the
amendment, or the complaint or information still
suffers from the same defect despite amendment.
BASED
DEFECT

ON

ALLEGED

- upon instance of accused,


not the court
- remedy: amendment

BASED ON FACTS DO
NOT CONSTITUTE AN
OFFENSE
- upon instance of accused,
not the court
- remedy: amendment
BUT, if the prosecution fails
to amend, or it still has the
same defect
- remedy: grant MTQ

Grounds stated in the motion and Ground of Want of


jurisdiction may be acted upon by the court, whether
or not mentioned in the motion.
Sec 5. EFFECTS OF GRANTING MTQ.
If the motion to quash is sustained, the court may
order that another complaint or information be
filed except as provided in sec 6. 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 having been made, no new information
is filed within the time specified in the order or
within such further time as the court may allow for
good cause, the accused, if in custody, shall be
discharged unless he is also in custody for
another charge.
-

An order merely overruling a motion to dismiss


an information (or an order denying a MTQ) is
merely interlocutory

CHAMP 2C 2002
Page 37 of 56
-

Interlocutory means that it does not dispose of


the case, since it leaves something more to be
done and adjudicated.
Hence, it is not appealable. Certiorari will not lie.
It may only be appealed after final judgment.

Remedy of accused:
not appeal
he should allow the case to go on to trial and
present his special defenses,
Once an adverse decision is rendered, he may
appeal therefrom in a manner authorized by law.
Sec 6. ORDER SUSTAINING THE MTQ NOT A BAR
TO ANOTHER PROSECUTION.
An order sustaining the MTQ is not a bar to
another prosecution for the same offense unless
the motion is based on the grounds of section 3g
and 3i of this rule
(3g extinction of criminal liability; 3i double jeopardy)
Sec 7. FORMER CONVICTION OR ACQUITTAL.
DOUBLE JEOPARDY.
(Double Jeopardy is a ground for MTQ!)
When an accused has been
a) convicted
b) or acquitted
c) or the case against him dismissed or
otherwise terminated without his express
consent
a)
b)
c)

by a court of competent jurisdiction


upon a valid complaint or information, or
other formal charge sufficient in form and
substance to sustain a conviction
and after the accused has pleaded to the
charge

conviction or acquittal of the accused or the


dismissal of the case [shall be a bar to
another prosecution for the offense charged],
or for any attempt to commit the same or
frustration thereof,
or for any offense which necessarily includes
or is necessarily included in the offense
charged in the former complaint or
information
However, 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:
a) graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge
b) the facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint or
information
c) the plea of guilt to the lesser offense was
made without the consent of the prosecutor
-

CHAMP 2C 2002
Page 38 of 56
and of the offended party, except as provided
for in Rule 116, sec 1f.
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the
judgment, he shall be credit with the same in the
even of conviction for the graver offense.
2 kinds of Double Jeopardy:
Same Offense
- conviction/ acquittal NOT
necessary
- needs only to be placed in
jeopardy of prosecution

Same Act
conviction/
necessary

acquittal

Jeopardy:
when a person is placed in peril because of a
crime charged before the court
When he is charged with an offense and the case
is terminated either by acquittal or conviction, or
in any manner without the consent of the
accused, the latter cannot be again charged with
the same or identical offense.
Second Jeopardy = not really the peril of second
judgment, but peril of being tried and prosecuted
again for the same offense
Requisites of Double Jeopardy:
1) First jeopardy
2) first jeopardy
must have
must have been
attached
validly terminated
- see table below

-not merely
capricious
-assumes a valid
acquittal, and a
valid judgment
-not based on
GADALEJ
dismissal

express consent of the


accused

3) second
jeopardy must e
for the same
offense, or an
offense which
includes, or is
necessarily
included in the
offense first
charged
- also includes the
attempt or
frustration of the
crime
-BUT, see 3
exceptions

Requisites of 1) first jeopardy must have attached


a) court of competent
-jurisdiction is conferred by
jurisdiction
law not by agreement of the
parties
-judge must still be in office
-military courts have no
jurisdiction over civilians
b) valid complaint or
-must aver all the elements
information
of the offense charged
-recital of facts controlling,
not the nomenclature
-test of jeopardy is crime
charged, not what is proved
(ex. Charged with theft,
proven is estafa
you can
be prosecuted for estafa, not
theft)
c) arraginment
-there must be arraignment
d) valid plea
-there must be a plea
e) conviction or acquittal -DJ cannot be invoked
or
dismissal
or where one of the alleged
termination without the complaints is still pending PI

-mere filing of 2 informations


charging the same offense
does not put the accused in
DJ as there is no conviction
or acquittal or termination
yet.
-dismissal must be definite
and unconditional
with the
effect of acquittal
-not provisional, not with the
consent of the accused
-dismissal without prejudice
to the filing of new complaint
or information is NOT a
ground for DJ

Limitations Substitution of New Information:


1) no judgment has been rendered yet
2) the accused cannot be convicted of the offense
charged or of any other offense necessarily
included therein
-

when an accused appeals conviction


to waiver of DJ

amounts

When DJ may be invoked:


1) previous acquittal
2) previous conviction
3) dismissal or termination of the case without the
express consent of the accused
DISMISSAL
-terminates
because

proceedings

Dismissal is not deemed as


acquittal: (cannot invoke DJ)
a) court
has
no
jurisdiction,
b)
the offense was not
committed
in
the
territorial jurisdiction of
the court,
c) insufficiency
of
information
d) nolle prosequi nonsuit or discontinuance; dismissal
entered
before the accused is
placed on trial and
before he is called to
plead is not an acquittal
e) provisional dismissal,
except
when
he
continues to object to
the proceedings (to the
provisional dismissal)

ACQUITTAL
-always on the merits,
because evidence does not
show
guilt
beyond
reasonable doubt
Dismissal may be an
acquittal if: (can invoke DJ)
a) dismissal is based on a
DEMURRER
TO
EVIDENCE filed by the
accused
after
the
prosecution has rested
(judgment
on
the
merits)
b) dismissal is made on
the motion of the
accused because of the
DENIAL OF RIGHT TO
SPEEDY TRIAL
c) discharge accused as
STATE WITNESS
operates as acquittal,
except when he does
not fulfill his promise to
testify

Exceptions when there is NO DJ even when the


second offense charged necessarily includes the
offense charged in the first complaint or information:
a) supervening event after plea must be caused
by the victim, not the accused directly
b) facts constituting a grave offense discovered
after plea

CRIMPRO (JUSTICE SABIO)


Notes

CHAMP 2C 2002
Page 39 of 56

c)

plea of guilty to a lesser offense without the


consent of offended party

RULE 118 - PRE-TRIAL

note: civil liability is not affected by double


jeopardy
where the accused has already been exposed to
double jeopardy, prosecution cannot appeal
Exceptions (where appeal by prosecution of a
dismissal is not DJ):
1) dismissal is made with express consent of
accused
2) dismissal is not based on consideration of
merits
3) question passed upon by appellate court is
purely legal
hence it should have been
remanded to court of origin for further
proceedings

Sec 1. PRE-TRIAL, MANDATORY.


In ALL CRIMINAL CASES, cognizable by SB, RTC,
MTC, MTCC, MTC, MCTC, the court shall AFTER
ARRAIGNMENT, and within 30 days from the date
the court acquires jurisdiction over the person of
the accused, unless a shorter period is provided
for in special laws or circulars of the SC, order a
pre-trial conference to consider the following:
a) plea bargaining
b) stipulation of facts (specially in self-defense so
that you dont have to present witnesses)
c) marking for identification of evidence of the
parties (what you agree upon, you put in writing)
d) waiver of objects to admissibility of evidence
e) modification of the order of treial if the
accused admits the charge but interposes a
lawful defense (in case of reverse trial, when
there is self-defense)
f) such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case.

when the accused appeals, he waives his right to


the plea of DJ case is thrown wide open for
review
if appeal is on criminal liability = waiver of DJ
if appeal is on civil liability = not a waiver of DJ??
error in judgment (demurrer granted) is not
appealable except when the prosecution is
denied the opportunity to argue the case
in
which case it is a case of GADALEJ, hence
certiorari will lie.

--------------- see book for more on sec 7 ------------------Sec 8. PROVISIONAL DISMISSAL.


A Case shall not be provisionally dismissed
except with the express consent of the accused
and with notice to the offended party.
(Presupposes that the accused has been tried.)
The provisional dismissal of offenses punishable
by imprisonment not exceeding 6 years or a fine
of any amount or both, shall become permanent 1
year after issuance of order without the case
having been revived. With respect to offenses
punishable of more than 6 years, their provisional
dismissal shall become permanent 2 years after
issuance of order without the case having been
revived.
(Purpose: to compel the prosecution to be prompt
to present evidence while still available)
Sec 9. FAILURE TO MOVE TO QUASH OR
ALLEGE ANY GROUND THEREFOR.
The failure of the accused to assert any ground of
MTQ before he pleads to the complaint or
information, either because he did not file a MTQ
or failed to allege the same in said motion, shall
be deemed a WAIVER OF ANY OBJECTIONS ON
THE GROUNDS provided for in sec 3a, 3b, 3g, 3i
of this rule.
CHAMP REYNO 2C 2002

Sec 2. PRE-TRIAL AGREEMENT.


All agreements or admissions made or entered
during the pre-trial conference shall be reduced in
WRITING and SIGNED BY THE ACCUSED and
counsel, otherwise they cannot be used against
the accused. The agreements shall be approved
by the court.
Sec 3. NON APPEARANCE AT PRE-TRIAL.
If the counsel for the accused or the prosecutor
does not appear at the pre-trial conference, and
does not offer an acceptable excuse for his lack
of cooperation, the court may impose the proper
sanctions and penalties.
(Non-appearance is NOT a ground for dismissal.)
Sec 4. PRE-TRIAL ORDER.
After the pre-trial conference, the court shall issue
an order reciting the actions taken, the facts
stipulated, and evidence marked. Such order shall
bind the parties, limit the trial to matters not
disposed of, and control the course of the action
during the trial, unless modified by court to
prevent manifest injustice.
(Pre-trial Order contains all agreements made, and a
guide to the court proceedings to determine the flow
of the case in order to avoid delays.)
Plea Bargaining:

Accused:
a) plea to a lesser offense
b) change plea of NG to G to
some counts of a multi-count
indictment
c) change plea of NG to G

In Exchange for:
a) in return for a dismissal of
other counts
b) in return for dismissal of
other counts
c) waiver by the offended
party of the civil liability and
damages, in whole or in part

CHAMP 2C 2002
Page 40 of 56
d) change plea of NG to G

e) bargain on the nature,


duration or amount of the
imposable penalty

d) in return for the


elimination of one, some or
all
of
the
generic
aggravating circumstances

no plea bargaining for DDA offenses, where they


are punishable RP to Death
Pre-trial agreement must be signed by accused,
or his counsel
Stipulation of Evidence see book nalang

d)

Sec 3. EXCLUSIONS. (WHEN DELAY IS


EXCLUDED).
The following periods of delay shall be excluded
in computing the time within which trial must
commence:
a)

any period of delay resulting from other


proceedings concerning the ACCUSED:
1) delay resulting from examination of
physical and mental condition of the
accused
2) delay resulting from the proceedings with
respect to other criminal charges against
the accused
3) delay resulting
from
extraordinary
remedies against interlocutory orders
4) delay
resulting
from
pre-trial
proceedings; provided delay does not
exceed 30 days
5) delay resulting from orders of inhibition,
or proceedings related to change of
venue of cases or transfer from other
courts
6) delay resulting from a finding of the
existence of a prejudicial question
7) delay reasonably attributable to any
period, not to exceed 30 days, during
which any proceeding concerning the
accused is actually under advisement.

b)

Any period of delay resulting from the


ABSENCE or UNAVAILABILITY of WITNESS.
For purposes of this subparagraph, an
essential witness shall be considered absent
when his whereabouts are unknown or his
whereabouts cannot be determined by due
diligence. He shall be considered unavailable
whenever his whereabouts are unknown but
his presence for trial cannot be obtained by
due diligence.
Any period of delay resulting from the mental
incompetence or physical inability of the
accused to stand trial.
If the information is dismissed upon the
motion of the prosecution and thereafter a
charge is filed against the accused for the
same offense, any period of delay from the
date the charge was dismissed to the date the
time limitation would commence to run as to
subsequent charge had there been no
previous charge.
A reasonable period of delay when the
accused is joined for trial with co-accused
over who the court has not yet acquired
jurisdiction, or as to whom the time for trial
has not run and no motion for separate trial
has been granted.
Any period of delay resulting from a
continuance granted by an court motu-

RULE 119 TRIAL


Sec 1. TIME TO PREPARE FOR TRIAL.
After a plea of not guilty is entered, 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.
After Plea 15 days to prepare
Receipt Pre-trial 30 days to commence
-

a trial without the opportunity to prepare for it is


no trial at all, and a conviction based on such trial
is without anything to sustain it. (violation of due
process)
due process = fair and impartial trial with
opportunity to prepare for the defense

Sec 2. CONTINUOUS TRIAL UNTIL TERMINATED.


POSTPONEMENTS.
Trial once commenced shall continue from day to
day as far as practicable until terminated. It may
be postponed for a reasonable period of time for a
good cause.
The court shall, after consultation with the
prosecutor and defense counsel, set the cause for
continuous trial on a weekly or other short-term
trial calendar at the earliest possible time to
ensure speedy trial. In no case shall the entire
trial period exceed 180 days from the first day of
the trial, except as otherwise authorized by the
SC.
(180 day deadline is extendible.)

c)
d)

Continuous trial concept


trials are held on the scheduled dates without
needless postponements
When is the time limitation not applicable:
a) summary proceedings
b) offended party is about to depart from the Phils
with no definite day of return,
except, election cases and habeas corpus cases
(because when you file for a habeas corpus, you
are trying to inquire into the reason for detention)
c) child abuse cases

DDA cases information must be filed in court


within 24 hours from termination of investigation

e)

f)

CRIMPRO (JUSTICE SABIO)


Notes
proprio, or on motion of either the accused or
his counsel, or the prosecution, if the court
granted the continuance on the bases of his
finding set forth in the order that the ends of
justice served by taking such action outweigh
the best interest of the public and the
accused in a speedy trial.
Sec 4. FACTORS FOR GRANTING CONTINUANCE.
The following factors, among others shall be
considered by the court in determining whether to
grant a continuance under sec 3f of this rule.
a) whether or not the failure to grant
continuance in the proceedings would likely
make a continuation of such proceeding
impossible, or result in a miscarriage of
justice
b) whether or not the case taken as a whole is
so novel, unusual and complex, due to the
number of accused or the nature of the
prosecution, or that it is unreasonable to
expect adequate preparation within the
periods of time established therein.
c) In addition no continuance under sec 3f shall
be granted because of 1) the congestion of
the courts calendar 2) or lack of diligent
preparation 3) or failure to obtain available
witnesses on the part of the prosecutor.
Generally,
motion for postponement is granted only for
meritorious grounds
Parties should not assume that the motion will be
granted.
The postponement of trial is a matter which lies in
the discretion of the trial court.
Sec 5. TIME LIMIT FOLLOWING AN ORDER FOR
NEW TRIAL.
If the accused is to be tried against pursuant to an
order for a new trial, the trial shall commence
within 30 days from notice of order, provided that
if the period becomes impractical due to
unavailability of the witnesses and other factors,
the court may extend it but not to exceed 180
days from notice of said order for new trial.
-

180 days = 180 trial days not calendar days


remember that in a pre-trial conference, all of
these dates are arranged, number of hours,
number of witnesses, etc.

Sec 6. EXTENDED TIME LIMIT.


for the first 12 calendar month period, the
time limit with respect to the period from
arraignment to trial imposed by said provision
shall be 180 days. For the second 12 calendar
month period, the time limit shall be 120 days, and
the third 12 calendar month period, the time limit
shall be 80 days.

CHAMP 2C 2002
Page 41 of 56
Sec 7. PUBLIC ATTORNEYS DUTY WHERE
ACCUSED IS IMPRISONED.
If the public attorney assigned to defend a person
charged with a crime knows that the latter is
preventively detained, either because he is
charged with a bailable crime but has no means
to post bail, or is charged with a non-bailable
crime, or is serving a term of imprisonment in any
penal institution, it shall be his duty to do the
following:
a) promptly undertake to obtain the presence of
the prisoner for trial, or cause a notice to be
serve on the person having custody of the
prisoner requiring such person to so advice
the prisoner of his right to demand trial
b) upon receipt of that notice, the custodian of
the prisoner shall promptly advice the
prisoner of the charge and of his right to
demand trial. If at any time thereafter, the
prisoner informs his custodian that he
demands such trial, the latter shall cause
notice to that effect to be sent promptly to the
public attorney.
c) Upon receipt of such notice, the pubic
attorney shall promptly seek to obtain the
presence of the prisoner for trial
d) When the custodian of the prisoner receives
from the PA a properly supported request for
the availability of the prisoner for purposes of
trial, the prisoners shall be made available
accordingly.
Sec 8. SANCTIONS. see book.
Sec 9. REMEDY WHERE THE ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE TIME LIMIT.
If the accused is not brought to trial within the
time limit required by rule 116, sec 1g, the
information may be dismissed on the motion of
the accused on the ground of denial of his right to
speedy trial. The accused shall have the burden of
proving the motion but the prosecution shall have
the burden of going forward with the evidence to
establish the exclusion of time under sec 3 of this
rule. The dismissal shall be subject to the rules on
DJ. Failure of the accused to move for dismissal
prior to trial shall constitute a waiver of the right
to dismiss under this section.
Sec 10. SPEEDY TRIAL NOT A BAR
No provision of law on speedy trial and no rule
implementing the same shall be interpreted as a
bar to any charge of denial of the right to speedy
trial guaranteed in the constitution.
-

motions must contain a notice of hearing.


However, the order of the court granting the
motion to dismiss despite the absence of notice
of hearing is merely an irregularity in the
proceedings. The court still retains its authority to
pass on the merits of the motion
Speedy trial act does NOT prohibit motions for
postponement. But, unlike delays that are

CHAMP 2C 2002
Page 42 of 56
excluded in computing the time within which trial
must commence, no exclusion is allowed during
the trial. IN no case shall the entire trial period
exceed 180 days from the day of first trial, except
as otherwise authorized by the SC.
Sec 11. ORDER OF TRIAL.
The trial shall proceed in the following order:
a) PROSECUTION shall present evidence to
prove the charge and in the proper case, civil
liability.
b) The ACCUSED may present evidence to prove
his defense and damages, if any, arising from
the issuance of a provisional remedy in the
case.
c) The PROSECUTION AND DEFENSE, in that
order, present REBUTTAL AND SURREBUTTAL evidence unless the court in
furtherance of justice, permits them to
present additional evidence bearing upon the
main issue.
d) Upon admission of the evidence of the
parties, the case shall be DEEMED
SUBMITTED FOR DECISION, unless the court
directs them to argue orally, or submit written
memoranda.
(90 days from last evidence, last trial date, or last
pleading filed.)
e) When the ACCUSED ADMITS the act or
omission charged in the complaint or
information, but interposes a LAWFUL
DEFENSE, the order of trial may be modified.
-burden of proof is generally on the prosecution
If the accused pleads not guilty
NEGATIVE DEFENSE
- requires the
PROSECUTION to prove
guilt beyond reasonable
doubt
Ex. Alibi, denial

AFFIRMATIVE DEFENSE
- modifies the order of trial
- requires the ACCUSED to
prove such defense by clear
and convincing evidence
Ex. Self-defense, justifying
or exempting circumstance

Presentation of prosecutions witness:


1) direct examination by prosecution
2) cross exam by defense
--- if defense still fails to overcome, it may present
another evidence ---3) rebuttal* by prosecution, purpose is to give
opportunity to counter evidence
4) sur-rebuttal* by defense
*rebuttal and sur-rebuttal depends upon the discretion
of the court
Separate Trials:
trial of an accessory can proceed without waiting
the result of the separate charge against the
principal.
The determination of liability of the accessory can
proceed independently of the principal.

Sec 12. APPLICATION FOR EXAMINATION OF


WITNESS FOR ACCUSED BEFORE TRIAL.
Sec 13. EXAMINATION OF DEFENSE WITNESS.
Sec 14. BAIL TO SECURE THE APPEARANCE OF
MATERIAL WITNESS.
When the court is satisfied upon proof or oath,
that a material witness will not testify when
required, it may, upon motion of either party,
order the witness to post bail in such sum as may
be deemed proper. Upon refusal to post bail, the
court shall commit him to prison, until he
complies or is legally discharged after his
testimony has been taken.
Sec 15. EXAMINATION
PROSECUTION.

OF

WTINESS

FOR

SEC 16. TRIAL OF SEVERAL ACCUSED.


When 2 or more accused are jointly charged with
an offense, they shall be tried jointly unless the
court, in its discretion and upon motion of the
prosecutor or any accused, orders separate trial
for one or more accused.
-

discretionary upon the court, provided


substantial prejudice to any of the accused

no

Sec 17. DISCHARGE OF ACCUSED TO BE A


STATE WITNESS.
When 2 or more persons are jointly charged with
the commission of any offense, upon MOTION OF
THE PROSECUTION BEFORE RESTING ITS CASE,
the court may direct 1 or more of the accused to
be discharged with their consent, so thtat they
may be a witness for the state, when after
requiring the prosecution to present evidence,
and the sworn state of each proposed state
witness at a hearing in support of the discharge,
the court is satisfied that:
(Since it is the prosecutor who must file the motion to
discharge, it must show the following:
REQUISITES OF A DISCHARGE:)
a) there
is
ABSOLUTE
NECESSITY
the
testimony of the accused whose discharged
is requested.
(absolute necessity = principal testimony upon which
the prosecution rests its case)
b) There is NO OTHER DIRECT EVIDENCE
AVAILABLE for the proper prosecution of the
offense committed, EXCEPT THE TESTIMONY
OF THE ACCUSED.
c) The testimony of the said accused can be
SUBSTANTIALLY CORROBORATED in its
material points
d) Said accused does NOT APPEAR TO BE THE
MOST GUILTY
e) Said accused has NOT at any time been
CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE.
Evidence adduce is support of the discharge shall
automatically form part of the trial. If the court

CRIMPRO (JUSTICE SABIO)


Notes
denies a motion for discharge of the accused as
state witness, his sworn statement shall be
inadmissible in evidence.
Sec 18. DISCHARGE OF ACCUSED OPERATES
AS ACQUITTAL.
The order indicated in the preceding section shall
amount to an acquittal of the discharged accused
and shall be A BAR TO FUTURE PROSECUTION
FOR THE SAME OFFENSE, UNLESS THE
ACCUSED FAILS OR REFUSES TO TESTIFY
against his co-accused in accordance with his
sworn statement constituting the basis for his
discharge.
-

government fiscal is free to choose the


witness/es which he deems more qualified or
competent to testify for the prosecution
accused shall be discharged only after the court
has conducted a hearing in support of the
discharge and the court is satisfied that the all of
the requirements are present.
More than one accused may be discharged
depending on the needs of the fiscal and the
discretion of the court
Ex. When there are no other prosecution witness
to substantially corroborate the testimony of a
discharged witness, another may be discharged
to meet the requirement of substantial
corroboration.

Requisites of a Discharge:
1) prosecution must have presented evidence with a
sworn statement of the proposed state witness
2) 5 requisites above.
3) Must be ordered at any time before the accused
and defendants have starts to offer any evidence.
Conspiracy:
when there is a conspiracy, and the crime was
committed clandestinely, with no other witnesses,
the discharge of the conspirator is necessary to
testify against the other conspirator.
Remedy when discharge not granted:
Certiorari.
Effects of a Discharge:
1) evidence adduced in support of a discharge shall
form part of the trial
hence, if the court denies the motion to
discharge, the sworn statement of the accused is
held inadmissible in evidence (meaning his
testimony CANNOT be used against him)
2) discharge of the accused operates as an aquittal
and a bar to further prosecution for the same
offense
Exception, when he fails or refuses to testify
against his co-accused in accordance with his
sworn statement.
3) any future development showing that any or all of
the conditions have actually not been fulfilled,

CHAMP 2C 2002
Page 43 of 56
CANNOT, affect the legal consequences of the
discharge

even a person who has pleaded guilty may be


discharged.

Irregular Discharge:
the improper discharge of an accused will not
render inadmissible his testimony nor detract
from his competency as a witness
Sec 19. MISTAKE IN CHARGING THE PROPER
OFFENSE.
When it has become manifest at any time
BEFORE JUDGEMENT, that a mistake has been
made in charging the proper offense, and the
accused cannot be convicted of the offense
charged, or any other offense necessarily
included therein, the accused shall not be
discharged if there appears good cause to detain
him. In such case, the court shall commit the
accused to answer for the proper offense and
dismiss the case upon the filing of the proper
information.
(This is a case of substitution.)
Sec
20.
APPOINTMENT
OF
ACTING
PROSECUTOR.
When a prosecutor, his assistant or deputy is
disqualified to act due to any grounds stated in
sec 1 of Rule 137 or for any other reason, the
judge or the prosecutor shall communicate with
the SOJ in order that the latter may appoint an
acting prosecutor.
Sec 21. EXCLUSION OF THE PUBLIC.
The judge, may motu proprio, exclude the public
from the court room if the evidence to be
produced during the trial is offensive to the
decency or public morals. He may also on motion
of the accused, exclude the public from the trial
except court personnel and the counsel of the
parties.
Sec 22. CONSOLIDATION OF TRIALS OF
RELATED OFFENSES.
Charges for offenses founded on the same facts
of forming a series of offenses of similar
character may be tried jointly at the discretion of
the court.
-

consolidation is made in order to avoid multiplicity


of suits, guard against oppression and abuse,
prevent delay, clear the clogged dockets of the
courts, simplify the work of the court, save
unnecessary costs

Sec 23. DEMURRER TO EVIDENCE.


After the prosecution rests its case, the court may
dismiss the action upon the ground of
INSUFFICIENCY OF EVIDENCE
1) on its own initiative after giving the
prosecution the opportunity to be heard

CHAMP 2C 2002
Page 44 of 56
2)

upon demurrer to evidence filed by the


accused, with or without leave of court.
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce
evidence in his defense. When the demurrer to
evidence is filed without leave of court, the
accused waives it right to present evidence and
submits the case for judgment on the basis of the
evidence presented by the prosecution.
The motion with leave of court to file a demurrer
to evidence shall specifically state the grounds
and shall be filed within a non-extendible period
of 5 days after prosecution rests its case. The
prosecution may oppose the motion within a nonextendible period of 5 days from receipt.
If leave of court is granted, the accused shall file
the demurrer to evidence within a non-extendible
period of 10 days from notice. The prosecution
may oppose within a similar period (5 days from
receipt).
Demurrer to evidence = in effect you are saying that
the prosecutor has failed to overcome presumption of
innocence.
Demurrer to evidence
Court Motu Proprio
- court must give the
prosecution opportunity to
be heard
Upon Motion of Accused
With leave of Court
- accused may adduce
evidence for his defense

- filed within 5 days after


prosecution rests its case
- prosecution may oppose
the motion within 5 days

Upon Motion of Accused


(with or without leave of
court)
- accused must file the
motion

Sec 24. REOPENING.


At any time before finality of judgment of
conviction, the judge may motu proprio, or upon
motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within 30 days
from the order granting it.
RULE 120 - JUDGMENT
Sec 1. DEFINITION AND FORM.
Judgement 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. It must be
WRITTEN, in OFFICIAL LANGUAGE, personally
and directly prepared by the JUDGED, SIGNED by
him and shall contain clearly and distinctly a
statement of the facts and the law upon which the
same was based.
-

Without leave of Court


- accused waives it right to
present evidence and
submits the case for
decision on the basis of
prosecutions evidence only
(very dangerous!!)

Denial of Demurrer to Evidence


merely interlocutory, does not dispose of the
case
certiorari will NOT lie. cannot be appealed
pending the case (but of course after judgment
you can always appeal)
SPECIAL CASE: denial of demurrer may be
raised on certiorari when it was denied because
of GADALEJ
Remedy of accused:
continue with the trial but continue also to object
and insist on demurrer = waiver of right to
present evidence = case submitted for decision
the decision would be surely adverse, thereafter,
you can appeal. (after judgment)

criticisms are not intended a penalty, but the


accused may move for its elimination if he thinks
it is unwarranted and uncalled for.
Reprehensions must be relevant. If remarks are
irrelevant, it must be stricken off the record.
Courts duty is not merely to say guilty or not
guilty but must reason out its decision and
express its opinion. (bound only by common
sense and propriety)
Courts are not concerned with the morality of the
law
If guilty, the court must impose the proper penalty
and civil liability

Sec 2. CONTENTS OF JUDGMENT.


See table.
ACQUITTAL
It shall state:
1) whether the evidence
of
the
prosecution
absolutely failed to
prove the guilt of the
accused
2) or merely failed to
prove his guilt beyond
reasonable doubt
3) In
either
case,
judgment
shall
determine if the act or
omission from which
the civil liability might
arise did not exist.

CONVICTION
It shall state:
1) the legal qualifications
of
the
offense
constituted by the acts
committed
by
the
accused
2) aggravating
or
mitigating
circumstances
which
attended
the
commission
3) participation of the
accused, whether as
principal, accomplice or
accessory after the fact
4) penalty imposed on the
accused
5) civil liability or damages
caused by his wrongful
act or ommission to be
recovered from the
accused
by
the
offended party, if any,
(unless civil liability is
reserved or waived).

CRIMPRO (JUSTICE SABIO)


Notes

Statement of the Facts and Law:


Every decision of the court shall clearly and distinctly
state the facts and law upon which the same was
based.
to assure the parties that the judgment was
reached through the process of legal reasoning
safeguard the impetuousity of the judge
particularization of evidence
citing authorities in the decision
judge must make an independent assessment,
especially when it is a motion to dismiss
Remedy of accused for failure of decision:
- appeal to the SC
will order the case to be
remanded
Memorandum Decisions:
adoption by reference of the findings and
conclusion of the court a quo
should be used sparingly
When Memo-decisions are used:
1) facts in the main are accepted by both parties
2) no doctrinal complications involved
3) simple litigations only (ordinary collection cases)
In Writing:
so that it will contain the signature of the judge!
Verbal judgment is void
Personally and Directly Prepared by the judge
Designate Particular provisions of Penal code
failure to mention a particular provision is NOT
fatal.
If his conclusions are based upon some
provisions of law, judgment is still valid.
Impose the Proper Sentence:
specify exact penalty prescribed in RPC
definitely, positively and without doubt
alternative sentences are void.
Award Civil Liability:
award the corresponding civil liability
except:
1) judgment that the acts or omissions from
which the civil liability might arise did not
exist
2) when offended party has waived the civil
liability (reservation in a separate civil action)
moral damages, exemplary damages (in case of
aggravating circumstances), loss of earning
capacity
actual damages present receipts
Generally, attys fees are not awarded
because in a criminal case, there is always a
public prosecutor available
Except:
1) when exemplary damages are also awarded
(bad faith)

CHAMP 2C 2002
Page 45 of 56
2)

when there is a separate civil action because


you need your own lawyer here

all defects in judgments may be appealed to the


SC in a petition for certiorari and mandamus

Sec 3. JUDGMENT FOR 2 OR MORE OFFENSES.


When 2 or more offenses are charged in a single
complaint or information but the accused fails to
object to it before the trial, the court may convict
him of as many offenses as are charged and
proved, and impose on him the penalty for each
offense, setting out separately the findings of fact
and law in each offense.
-

failure to object on ground of duplicity (failure to


file a MTQ)

Sec 4. VARIANCE BETWEEN ALLEGATION AND


PROOF.
When there is variance between the offense
charged and that proved, and the offense as
charged is included or necessarily includes the
offense proved, the accused shall be convicted of
the offense proved, which is included in the
offense charged, or of the offense charged which
is included in the offense proved.
Sec 5. OFFENSE INCLUDES OR IS INCLUDED IN
ANOTHER.
An offense charged necessarily includes the
offense proved when some of the essential
elements or ingredients of the former, as alleged
in the complaint or information, constitute the
latter. And an offense charged is necessarily
included in the offense proved when the essential
ingredients of the former constitute or form part
of those constituting the latter.
-

An accused cannot be convicted on any offense


unless it is charged in the complaint or
information which he is tried or is necessarily
included therein.
An accused can only be convicted of an offense
when it is both charged and proved
Variance cannot justify a conviction for either
offense charged or proved unless either is
included in the other.
Note: if you are the judge, the moment you
discover variance, you can direct the prosecution
to substitute the complaint (order dismissal after
the substitution)

Sec 6. PROMULGATION OF JUDGMENT.


The judgment is promulgated by READING it in
the presence of the accused and any judge of the
court which it was rendered. However, if
conviction is for a light offense, the judgment may
be pronounced in the presence of his counsel or
rep. When the judge is outside the province or

CHAMP 2C 2002
Page 46 of 56
city, the judgment may be promulgated by the
clerk of court.
If the accused is confied or detained in another
The proper clerk of court shall give notice to the
accused personally or through his bondman
requiring him to be present at the promulgation of
judgment
If the accused FAILS TO APPEAR at the
scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by
recording the judgment in the criminal docket and
serving him a copy thereof
If the judgment is for conviction, and the failure of
the accused to appear is without justifiable cause,
he shall lose all remedies available in these Rules
against the judgment and the court shall order his
arrest. Within 15 days from promulgation, the
accused may surrender and file a motion for leave
of court to avail of these remedies. He shall state
the reasons for his absence at the scheduled
promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to
avail of said remedies within 15 days from notice.
When:
within 90 days from the submission of the case
for decision
How:
promulgated in its entirety = including civil
liability, otherwise, first jeopardy is not yet
terminated
requiring appearance of accused, except for light
offenses
Effect of Failure to Appear:
waiver of right to appeal and avail of remedies
against the judgment
Remedy:
accused must show up within 15 days, surrender
and file a motion for leave of court
must state reasons for his earlier absence
and that his absence was for a justifiable cause
Sec 7. MODIFICATION OF JUDGMENT.
A Judgment of conviction may upon MOTION OF
THE ACCUSED, be modified or set aside before it
becomes final or before appeal is perfected.
Except where the death penalty is imposed, a
judgment becomes final after the lapse of the
period for perfecting an appeal or when the
sentence has been partially or totally satisfied or
served, or when the accused ha waived in writing
his right to appeal or has applied for probation.
Why modify (instance of accused):
grounds of harsh penalty, failure to consider
circumstances

Conviction
May be Modified (only upon
motion of accused)
- and before the judgment
has become final or appeal
has been perfected
- where death penalty is
imposed, there is automatic
review by SC

Becomes Final
- after lapse of period for
perfecting appeal
- sentence has been partially
or totally satisfied
- accused has expressly
waived in writing his right to
appeal
- accused has applied for
probation

Sec 8. ENTRY OF JUDGMENT.


After a judgment has become final, it shall be
entered in accordance with Rule 36 (which
indicates the finality of judgment).
Sec 9. SUSPENSION OF SENTENCE, PROBATION,
PAROLE.
Nothing in this rule shall affect any existing
provision in the laws governing suspension of
sentence, probation or parole.
Suspension of sentence:
for youthful offenders
governed by Child and
Youth Welfare Code
for adult offenders
governed by Probation Law
Probation

once an appeal has been perfected, there can be


no more probation, even if the appeal is only for
the reduction of penalty (appeal and probation
are exclusive remedies)

on the other hand, the mere filing of application


for probation is a waiver of the right to appeal.

probation is merely a privilege not a right

probation is a mere interlocutory order order


denying probation cannot be appealed

Purpose and Rationale:


to reform the offender and reduce recidivism

application for probation must be filed within the


period for perfecting appeal (15 days also)\

effectivity of probation order is on the date of its


issuance

probation does not release civil liability

period of probation shall not exceed 6 years

available only for offenses punishable by 6 years


or less (not 6 years and 1 day)

mere lapse of period does not terminate


probation
must
be properly discharged
through a court order of termination.
See book for criteria, disqualified offenders, and
conditions for probationothers.
RULE 121 - NEW TRIAL OR RECONSIDERATION
Sec 1. NEW TRIAL OR RECONSIDERATION.
At any time before judgement of CONVICTION be
final, the court may, on MOTION OF THE
ACCUSED, or at ITS OWN INSTANCE but with the

CRIMPRO (JUSTICE SABIO)


Notes
consent of the accused, grant a new trial or
reconsideration.

CHAMP 2C 2002
Page 47 of 56
-

Purpose to temper the severity of judgment and


prevent a miscarriage of justice.
Sec 2. GROUNDS FOR NEW TRIAL.
The court shall grant a new trial on any of the
following grounds:
a) errors of law or irregularities prejudicial to the
substantive rights of the accused have been
committed during trial
b) new and material evidence has been
discovered which the accused could not
have, with reasonable diligence, discovered
and produced during the trial and which if
introduced and admitted would probably
change the judgment
Sec 3. GROUNDS FOR RECONSIDERATION.
The court shall grant reconsideration on the
grounds of errors of fact or law in the judgment,
which requires no further proceedings.
New Trial
Grounds:
1)
errors
of
law or
irregularities prejudicial
to
the
substantive
rights of the accused
have been committed
during trial
2)
new
and
material
evidence has been
discovered which the
accused could not
have, with reasonable
diligence, discovered
and produced during
the trial and which if
introduced
and
admitted
would
probably change the
judgment
When: (rule 124, sec 14-15)
- may be made at any time
after perfection of appeal
and before judgment of the
appellate court
Others:
- generally, mistake or errors
of
counsel
are
NOT
grounds,
except
when
counsel
is
of
gross
incompetence (or appears to
be fake) as to deprive him of
due process
ground for
new trial
new trial is NOT DJ, but
a trial de novo
granting of new trial is a
trial de novo, that is, as
if there had been no
previous trial, placing
the parties in the same
position as they were
prior to the first trial

Reconsideration
Grounds:
1) errors of fact and law in
the JUDGMENT

When: (rule 124 sec 16)


- filed within 15 days from
notice of appeal or final
order, setting forth the
grounds in support thereof
requires
no
further
proceedings
* note: relate to rule 124, sec
16

- previous adjudication is
also wiped out, original
judgment is also set aside
and vacated

previous adjudication is
wiped out
Except, when the order
granting new trial is
restricted to particular
issues only

Sec 4. FORM OF MOTION AND NOTICE.


The motion for new trial or reconsideration shall
be in writing and shall state the grounds on which
it was based. If based on a newly discovered
evidence, the motion must be supported by
affidavits of witnesses by whom such evidence is
expected to be given or by duly authenticated
copies of documents which are proposed to be
introduced in evidence. Notice of the motion for
for new trial or reconsideration shall be given to
the prosecutor.
-

motion must be accompanied by notice of


hearing

Sec 5. HEARING ON MOTION.


Where a motion for NEW TRIAL calls for
resolution of any question of fact,, the court may
hear evidence thereon by affidavits or otherwise.
Sec 6. EFFECTS OF GRANTING
a) when a new trial is granted on the ground of
errors of law or irregularities committed
during the trial, all the proceedings and
evidence affected thereby shall be set aside
and taken anew. The court may, in the interest
of justice allow the introduction of additional
evidence
b) When new trial is granted on ground of newly
discovered evidence, the evidence already
adduced shall stand and the newly
discovered and such other evidence as the
court may, in the interest of justice, allow to
be introduced shall be taken and considered
together with the evidence already on record.
c) In all cases, when the court grants a new trial
or reconsideration, the original judgment
shall be set aside or vacated and the new
judgment rendered accordingly.
Grounds for New Trial
Errors
of
law
and
Irregularities
evidence not complete
or unsatisfactory
mistakes of counsel
(see previous table)
Recantation vs. Affidavit of
Desistance
Recantation person
has already testified
not a ground, except
when there is no other
evidence
Affidavit of desistance
offended
party
no
longer
interested,

Newly discovered evidence


Requisites (2):
1) evidence
was
discovered after trial
1) such cold not have
been discovered earlier
with
reasonable
diligence
2) evidence is material,
not merely cumulative
must go to the merits as to
produce a different result

CHAMP 2C 2002
Page 48 of 56
usually
before
presentation
of
evidence
may be a
ground, provided there
are
other
circumstances
Effects:
1) all the proceedings and
evidence
affected
thereby shall be set
aside and taken anew
2) Original judgment is set
aside or vacated, new
judgment
rendered
accordingly

note relate to rule 124,


sec 14 15:
- may be made at any time
after perfection of appeal
and before judgment of the
appellate court
Effects:
1)
evidence
already
adduced and the
newly
discovered
ones and such other
evidence introduced,
shall be taken and
considered together
with the evidence
already on record.
2)
Original judgment is
set aside or vacated,
new
judgment
rendered accordingly

RULE 121 - APPEAL


Sec 1. WHO MAY APPEAL.
Any party may appeal from a judgment or final
order, unless the accused will be place in double
jeopardy.
-

appeal is only a statutory right, exercised only in


the manner and in accordance with the
provisions of law.
Appeal is a matter of right if allowed by law
only then is it compellable by mandamus

Sec 2. WHERE TO APPEAL.


The appeal may be taken as follows:
Court a quo
Appellate
a) in cases decided by RTC questions of fact
the MTC, MTCC, MTC, and law
MCTC
b) in cases decided by CAor SC (in the proper
the RTC
cases)
*CA- questions of fact
and law
c) in cases decided by SC questions of pure
the CA
law only
Judgment of Acquittal:
Final
and
executory
immediately
after
promulgation, no appeal
(refers only to criminal aspect, not the civil
hence in acquittal, you may still appeal civil)
(appeal of civil aspect by the offended party)
erroneous dismissal may no longer be disturbed
Generally, no reopening of case for purposes of
modification of sentence
would place him in DJ
Except, where there is a reservation in judgment
CHAMP REYNO 2C 2002

Case of Dismissal:
ACQUITTAL IS A GROUND
FOR DJ
- demurrer to evidence
- deprivation of right to
speedy trial

ACQUITTAL IS NOT A
GROUND FOR DJ
- dismissal is made with the
express consent of accused
- dismissal is not based on
consideration of evidence or
merits
- questions are purely legal
(in which case it has to be
remanded to lower court)

No DJ:

note: in acquittal of an accused based on


reasonable doubt, civil liability may still be
awarded

judgment of acquittal that is incomplete (no civil)


is still appealable by offended party

extinction of the penal action does not carry with


it the extinction of the civil action

appeal of the civil liability allowed provided it


will not change the penalty

civil liability may be increased, only if it will not


require an aggravation of the decision in the
criminal case (be convicted of a more serious
offense or sentenced a higher penalty)
Sec 3. HOW APPEAL TAKEN.
Appeal to RTC Appeal to CA
or CA
- for cases - for cases
decided by the decided by the
RTC in the RTC in the
exercise of its exercise of its
original
appellate
jurisdiction
jurisdiction
By filing a By petition for
notice
of review under
appeal
with Rule 42
the
court
which
rendered the
judgment
or
final
order
appealed from
By serving a
copy to the
adverse party

Appeal to SC
- other cases

By filing a
notice
of
appeal
with
the
court
which
rendered the
judgment
or
final
order
appealed from
By serving a
copy to the
adverse party
- for cases
where the RTC
imposed
a
penalty death,
no notice of
appeal
is
necessary
- for all other
appeals to the
SC,
by
a
petition
for
review
on
certiorari
under Rule 45

CRIMPRO (JUSTICE SABIO)


Notes

To avoid conflicting decisions, appellate


jurisdiction is with the SC over cases which arose
out of the same occurrence or was committed on
the same occasion as the case involving RP
pending before the SC.
An automatic review of death penalty cases is
deemed to include appeal of less serious cases

Sec 4. SERVICE OF NOTICE OF APPEAL.


If personal service of the copy of the notice of
appeal cannot be made upon the adverse party or
his counsel, service may be done by registered
mail, or by substitute service pursuant to Rule 13.
Sec 5. WAIVER OF NOTICE OF APPEAL.
The appellee may waive his right to a notice that
an appeal has been taken. The appellate court
may, in its discretion, entertain the appeal
notwithstanding the failure to give such notice if
the interests of justice so require.
Appeals are deemed perfected:
after the interested parties have filed with the
clerk of court a written notice expressly stating
the appeal
must be filed within the period granted by law (15
days)
Effects of a perfected appeal:
the court a quo loses its jurisdiction over the
records and over the subject
court a quo can no longer act on any motion filed
Sec 6. WHEN APPEAL TAKEN.
An appeal must be taken within 15 days from
PROMULGATION of the judgment or from NOTICE
OF FINAL ORDER appealed from. This period for
perfecting an appeal shall be suspended from the
time a motion for a new trial or reconsideration is
filed until notice of the order overrulling the
motion has been served upon the accused or his
counsel at which time the balance of the period
begins to run [again].
-

appeal must be made from promulgation, NOT


from receipt of written judgment

Sec 7. TRANSCRIBING AND FILING NOTES.


When notice of appeal is filed by the accused, the
trial court shall direct the steno-reporter to
transcribe his notes of the proceedings. Wen filed
by the People, the trial court shall direct the
steno-reporter to transcribe such portion of his
notes of the proceedings as the court upon
motion, shall specify in writing
If the death penalty is imposed, the steno-reporter
shall within 30 days from promulgation file with
the clerk the original and 4 copies of the duly
certified transcript of his notes

CHAMP 2C 2002
Page 49 of 56
Sec 8. TRANSMISSION OF PAPERS TO
APPELLATE COURT.
Within 5 days from the filing of the notice of the
appeal, the clerk of court with whom the notice of
appeal was filed must transmit to the clerk of
court of the appellate court the complete records
of the case, together with said notice
Sec 9. APPEALS TO RTC.
a) within 5 days from perfection of appeal, the
clerk of court shall transmit the original
record to the appropriate RTC
b) upon receipt of the complete records of the
case the clerk of court of the RTC shall
notify the parties of such fact
c) within 15 days from receipt of said notice, the
parties may submit a memoranda or briefs
After submission the RTC shall decide the
case on the basis of the entire record of the
case of such memoranda or briefs as may
have been filed.
Sec 10. TRANSMISSION OF RECORDS IN CASE
OF DEATH PENALTY.
In all cases where the DP is imposed by the RTC,
the records shall be forwarded to the SC for
AUTOMATIC REVIEW and judgment within 5 days
th
after the 15 day following the promulgation of
the judgment
Sec 11. APPEAL BY ANY OF SEVERAL
ACCUSED.
a) An appeal taken by one or more of several
accused shall NOT affect those who did not
appeal, except insofar as the judgment of the
appellate court is FAVORABLE and applicable
to the latter.
(Ex. When 5 are convicted, 2 appealed. On appeal
they were exonerated, the other 3 are also
exonerated because the judgment was favorable to
them.
Penal laws are to be construed in favor of
the accused)
b) The appeal by the offended party from civil
liability shall not affect the criminal aspect of
the judgment or order appealed from
c) Upon perfection of appeal, the execution of
the judgment of final order appealed from
shall be stayed as to the appealing party.
Sec 12. WITHDRAWAL OF APPEAL .
Notwithstanding the perfection of appeal, the
RTC, MTC, MCCC, MTC, MCTC, may allow the
APPELLANT TO WITHDRAW HIS APPEAL
BEFORE THE RECORD HAS BEEN FORWARDED
by the clerk of court to the proper appellate court,
in which case the JUDGMENT SHALL BECOME
FINAL. Also, may allow the appellant to
withdraw his appeal provided a motion to that
effect is filed before rendition of judgment of the
court of origin shall become final and the case
shall be remanded to the latter court for execution
of judgment.

CHAMP 2C 2002
Page 50 of 56
1)

court may allow appellant to withdraw appeal as


long as the records have not yet been transmitted

2)

if already transmitted, only the appellate court


may act on the motion for withdrawal of appeal

3)

If already transmitted, and now submitted for


decision, withdrawal of appeal is only
discretionary.

*in short, withdrawal is allowed only before the trial on


appeal, not during, not after.
Sec 13. APPOINTMENT OF COUNSEL DE
OFFICIO.
It shall be the duty of the clerk of court of the trial
court, upon filing of notice of appeal, to ascertain
from the appellant, if confined in prison, whether
he desires the RTC, CA, or SC to appoint a
counsel de officio to defend him and to transmit
the records on a form prepared by the clerk of
court of the appellate court, a certificate of
compliance with this duty and of the response of
the appellant to his inquiry.
RULE 123 - PROCEDURE IN MTC
Sec 1. UNIFORM PROCEDURE.
The procedure to be observed in the MTC, MTC,
MCTC shall be the same as in the RTC, except
where a particular provision applies only to either
of said courts and in criminal cases governed by
the Revised Rule of Summary Procedures.
-

Usually, summary procedures only, not


adversarial
Summary procedures are commenced by a
complaint or information, except in private crimes
which require the complaint of the offended party
Usually by affidavits and counter-affidavits only
court renders judgment based on them

See book for Rules for Summary Procedures:


Important:
Prohibited pleadings in Summary Procedures:
1) motion to dismiss or quash, except for want of
jurisdiction (which as you should know by now,
can be raised at any stage of the proceeding)
2) motion for bill of particulars
3) motion for new trial, reconsideration of judgment
or reopening of trial
4) petition for relief from judgment
5) motion for extension of time to file pleadings
6) memoranda
7) petition for certiorari, mandamus, prohibition
against any interlocutory order
8) motion to declare defendant in default

9)
10)
11)
12)

dilatory motions
reply
third party complaints
interventions

Purpose: to expedite proceedings,


Prohibition does NOT violate right to due process
because summary proceedings are not adversarial.
RULE 124 - PROCEDURE IN CA
Sec 1. TITLE OF THE CASE.
In all criminal cases appealed to the CA, the party
appealing the case shall be called appellant, and
the adverse party the appellee, but the title of the
case shall remain as it was in the court of orgin.
Sec 2. APPOINTMENT OF COUNSEL DE OFFICIO
FOR ACCUSED.
If it appears from the records of the case as
transmitted that
a) the accused is confined in prison,
b) is without counsel de parte on appeal
c) or has signed a notice of appeal himself,
the clerk of court of the CA shall designate a
counsel de oficio.
An appellant who is not confined in prison, may,
upon request, be assigned a counsel de oficio
within 10 days from receipt of the notice to file
brief and he establishes his right thereto.
Sec 3. WHEN BRIEF FOR APPELLANT FILED.
Within 30 days from receipt by the appellat or his
counsel of the notice from the clerk of court of the
CA that the evidence, oral and documentary, is
already attached to the record the appellant shall
file 7 copies of his brief with the clerk of court
which shall be accompanied by proof of service of
2 copies thereof upon the appellee.
Sec 4. WHEN BRIEF FOR APPELLEE FILED.
REPLY BRIEF OF APPELLANT.
Within 30 days from receipt of the brief of the
appellant, the appellee shall file 7 copies of his
brief with the clerk of court which shall be
accompanied by proof of service of 2 copies
thereof upon the appellant.
Within 20 days from receipt of the brief of the
appellee, the appellant may file a reply brief
traversing the matters raised in the former bbut
not covered in the brief of appellant
Appellant the one who appeals
Appellee the one who did not appeal, but is the
adverse party

CHAMP REYNO 2C 2002

CRIMPRO (JUSTICE SABIO)


Notes
Steps:
1) Appellant signs notice of appeal
clerk of court usually assigns counsel de oficio
2) Appellant files brief within 30 days from notice of
clerk of court
copies sent also to appellee
3) Appellee receives copy
4) Appellee files his brief within 30 days from receipt
of appellants brief (the copy received)
copies
sent to the appellant
5) Appellant receives copy
6) Appellant files his reply brief within 20 days from
receipt of appellees brief (the copy received)
reply brief must answer only the appellees brief,
not those covered in his original appellants brief
Sec 5. EXTENSION OF TIME FOR FILING BRIEFS.
Extension time for filing of briefs willnot be
allowed except for good and sufficient cause and
only if the motion for extension is filed before the
expiration of time sought to be extended.

CHAMP 2C 2002
Page 51 of 56

Sec 10. JUDGMENT NOT TO BE REVERSED


EXCEPT FOR SUBSTANTIAL ERROR.
No judgment shall be reversed or modified unless
the CA, after an examination of the record and of
the evidence adduced by the parties, is of the
opinion that error was committed which
injuriously affected the substantive rights of the
appellant.
-

Sec 6. FORM OF BRIEFS.


Sec 7. CONTENTS OF BRIEFS.
(see book!)
Sec
8.
DISMISSAL
OF
APPEAL
FOR
ABANDONMENT OR FAILURE TO PROSECUTE.
The CA may, upon motion of the appellee or motu
proprio and with notice to the appellant in either
case, dismiss the appeal if the APPELLANT FAILS
TO FILE HIS BRIEF WITHIN THE TIME prescribed
by this Rule, EXCEPT WHERE THE APPELLANT
IS REPRESENTED BY COUNSEL DE OFICIO
The CA may also, upon motion of the appellee or
motu proprio, dismiss the appeal if the
APPELLANT ESCAPES FROM PRISON OR
CONFINEMENT OR JUMPS BAIL OR FLEES to a
foreign country during the pendency of appeal.
-

notice to appellant is required


when the accused is represented by a counsel de
officio, the appeal should not be dismissed

Grounds to Dismiss Appeal:


1) failure to file brief on time,
Except when represented by counsel de officio
(In which case it is not dismissed).
2) If he escapes or refuses to surrender to
authorities, he is deemed to have abandoned his
appeal.
Except when the penalty imposed is death
because it is automatic appeal. (In which case it
is only discretionary upon the court)
Sec 9. PROMPT DISPOSITION OF APPEALS.
Appeals of accused who are under detention shall
be given precedence in their disposition over
other appeals. The CA shall hear and decide the
appeal at the earliest practicable time with due
regards to the rights of the parties. The accused
need not be present in court during the hearing of
the appeal.

If the CA does not want to hear the case, the


Justices may just deliberate on the case,
evaluate the recorded evidence on hand and
decide on it.
Accused-appellant need not be present during
such deliberation or even during a hearing

Reversal of judgment is generally prohibited


except for prejudicial error.
As to issue of credibility of witnesses, the
appellate court will generally not disturb the
findings of the trial court, considering it is in a
best position to decide the question having heard
the witnesses themselves and observed their
deportment and manner of testifying during trial.
The first question to be determined is whether or
not the omission from the record of a findings of
fact is prejudicial error.
When the trial court has overlooked important
evidence, the duty of the appellate court is to
revise the findings of facts and render judgment
accordingly

Remedy, Proper Procedure:


The case should be remanded to the court a quo,
without first reversing the judgment, with
instructions to file therewith a finding of the facts
upon which the judgment was based.
Except, if it is impractical to cure by returning the
record to the court a quo
Sec 11. SCOPE OF JUDGMENT.
The CA may REVERSE, AFFIRM, MODIFY the
judgment and INCREASE OR REDUCE the penalty
imposed by the trial court, REMAND the case to
the RTC for new trial or retrial or DISMISS the
case.
Sec 12. POWER TO RECEIVE EVIDENCE.
The CA shall have the power to try the cases and
conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual
issues raised in cases
a) falling within its original jurisdiction
b) involving claims for damages arising from
provisional remedies
c) where the court grants a new trial based only
on the ground of newly discovered evidence.

CHAMP 2C 2002
Page 52 of 56
Sec 13. QUORUM, CERTIFICATION, APPEAL TO
SC.
Three (3) justices of the CA shall constitute
quorum for the sessions of the divisions. The
unanimous vote of the 3 justices of a division
shall be necessary for the pronouncement of a
judgment or final resolution, which shall be
reached in consultation before the writing of the
opinion by a member of the division. In the event
that the 3 justices cannot reach a unanimous
vote, the Presiding Justice shall direct the raffle
committee of the court to designate 2 additional
justices to sit temporarily with them, forming a
special division of 5 members and the
concurrence of the majority (which of course is also
3) of such division shall be necessary for the
pronouncement of a judgment or final resolution.
The designation of such additional justices shall
be made strictly by raffle and rotation among all
other justices of the CA.
Whenever the CA finds that the penalty of Death,
RP or life imprisonment should e imposed in a
case, the court after discussion of evidence and
the law involved, shall render a judgment
imposing [such] penalty as the circumstances
warrant. However it shall refrain from entering the
judgment and forthwith certify the case and
elevate the entire record thereof to the SC for
review.
Quorum and Decision Making:
1) 3 justices form a regular division they must
decide unanimously to pronounce judgment
2) If they cannot unanimously decide, 2 additional
judges come in temporarily
3) 5 justices form a special division they must
decide by majority vote to pronounce judgment
(majority of 5 is still 3)
Death Penalty cases:
1) CA shall only render judgment
2) CA shall refrain from entering judgment
3) CA shall certify the case for review to the SC.
Sec 14. MOTION FOR NEW TRIAL.
At any time after the appeal from the lower court
has been perfected and before the judgment of
the CA convicting the appellant becomes final, the
latter may move for a new trial on a ground of
newly-discovered evidence material to his
defense.
Sec 15. NEW TRIAL CONDUCTED.
When a new trial is granted, the CA may conduct
the hearing and receive evidence as provided in
sec 12 of this rule or refer the trial to the court of
origin.
Sec 16. RECONSIDERATION.
A MR shall be filed within 15 days from notice of
the decision or final order of the CA, with copies
thereof served upon the adverse party, setting for

the grounds in support thereof. The mittimus shall


be stayed during the pendency of the MR. No
nd
party shall be allowed a 2 MR of judgment or
order.
Sec 17. JUDGMENT TRANSMITTED AND FILED.
When the entry of judgment of the CA is issued, a
certified true copy of the judgment shall be
attached to the original record which shall be
remanded to the clerk of court from which the
appeal was taken.
-promulgation of judgment in CA is by serving copies
of the decision to the parties
Sec 18. APPLICATION OF RULES IN CIVIL
PROCEDURE.
RULE 125 - PROCEDURE IN SC
Sec 1. UNIFORM PROCEDURE.
Unless otherwise provided by the Constitution or
by law, the procedure in the SC in original and
appealed cases shall be the same as in the CA.
Sec 2. REVIEW OF DECISIONS OF CA.
The procedure for the review by the SC of
decisions of criminal cases rendered by the CA
shall be the same as in civil cases.
Sec 3. DECISION IF OPINION IS EQUALLY
DIVIDED.
When the SC en banc is equally divided in opinion
or the necessary majority cannot be had on
whether to acquit the appellant, the case shall be
again deliberated upon and if no decision is
reached after re-deliberation, the judgement of
conviction of the lower court shall be reversed
and the accused, acquitted.

RULE 126 - SEARCH AND SEIZURE


Sec 1. SEARCH WARRANT DEFINED.
A search warrant is an order in writing in the
name of the People of the Philippines, signed by a
judge and directed to a peace officer,
commanding him to search before personal
property described therein and bring it before it
court.
-

special and peculiar remedy drastic in its nature


and made necessary because of public
necessity.
Considered merely a process, issued by a court,
not really an action itself

CRIMPRO (JUSTICE SABIO)


Notes
Basis:
sacredness of mans abode
a mans home is
his castle, not even the King of England can
enter it without permission from the owner
Quantum of Evidence Probable Cause
PC = such facts and circumstances which will lead a
reasonably discrete and prudent man that:)
Search warrant (SW)
Warrant of Arrest (WOA)
2 Requisite Facts to be 2 Requisite Facts to be
Established in Application:
Established in Application:
that the items sought that the crime has been
are in connection with a
committed
and the person sought
criminal activity
to
be
arrested
that the items will be
found in the place
committed it
sought to be searched
Process:
Process:
judge must personally judge may rely only on
examine the witnesses
the records of the
etc.
prosecution
must ask searching merely examines the
questions and answers
affidavits

Judge must Personally conduct examination:


examination must be probing
not merely adopt questions and answer
previously asked
Constitutional Basis Bill of Rights Sec 2
Statutory Safeguard Rules of Court
Sec 2. COURT WHERE APPLICATION SHALL BE
FILED.
An application for search warrant shall be filed
with the following:
a) Any court within whose territorial jurisdiction
a crime was committed
b) For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if the
place of the commission of the crime is
known or any court within the judicial region
where the warrant shall be enforced.
However if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.
Venue for filing applications:
Action Not Yet Filed
General Rule:
any
court
which
has
territorial jurisdiction over
which the SW shall be
enforced (nexus between
court issuing and the place
to be searched)
Except,
For compelling reasons:
- before any court within the
judicial region where the
crime was committed

Action Already Filed


- where the criminal action
has been filed, in the court
where
such
action
is
pending

Enforceability:
anywhere in the Philippines

CHAMP 2C 2002
Page 53 of 56

Rationale:
the court where the criminal case is pending shall
have primary jurisdiction over the case
Where the court acquires jurisdiction over a
particular case, it does so to the exclusion of all
other courts
Hence only such court should have the power to
issue ancillary writs and processes
Sec 3. PERSONAL PROPERTY TO BE SEIZED.
A SW may be issued for the search and seizure of
personal property:
a) Subject of the offense
b) Stolen or embezzled and other proceeds or
fruits of the offense
c) Used or intended to be used, as means of
committing an offense
-

The rule does not require that the property to be


seized should be owned by the person against
who such SW is directed.
Ownership is of no consequence

Sec 4. REQUISITES OF SW.


A SW shall not issue except upon probable cause
in connection with ONE SPECIFIC OFFENSE to be
determined personally by the judge after
examining under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the things to be seized which may
be ANYWHERE IN THE PHILIPPINES.
Sec 5. EXAMINATION OF COMPLAINANT.
The judge, must before issuing the warrant,
personally examine in the form of SEARCHING
QUESTIONS AND ANSWERS, in writing and under
oath, the complainant and the witnesses he may
produce on facts PERSONALLY KNOWN to them
and ATTACH TO THE RECORD, their sworn
statements, together with the AFFIDAVITS
submitted.

Good faith can never be a justification. The only


justification for the issuance of SW is compliance
with the requisites

Requisites of SW: (WHAT TO SHOW WHEN YOU


APPLY)
1) based on probable cause
2) determined personally by judge
3) personally examining in the form of searching
Q&As, in writing and under oath, on facts
personally known to them
4) in connection with one specific offense
5) particularization of the place and persons or
things to be seized
6) sworn statements and affidavits attached to
record

CHAMP 2C 2002
Page 54 of 56
Probable Cause
= based on personal knowledge, not merely hearsay
Personal Knowledge, Test:
= whether it has been drawn in such manner that
perjury could be charged thereon if the statement was
found to be false
= not facts merely reported by whom one considers to
be reliable, (Ex. asset)

= Test of Particularity:
1) description is as specific as the
circumstances would ordinarily allow
2) description is a conclusion of FACT, not
of law
which will guide the officer
making the arrest (no doubt in the mind
of the officer)
3) things described are limited to those
which bear direct relation to the offense

Written Depositions:
= not mere affidavits of the complainant and his
witnesses
= not merely conclusions of fact and law
= not merely loose, vague or doubtful basis of fact,
mere suspicion or belief

Severability of SW:
when there is a general description of some of
the documents sought to be seized, it does not
render the entire warrant void,
Those items not particularly described may be
cut off without destroying the whole warrant

When To Take Affidavit:


= rule of thumb: the nearer the time at which the
observation of the offense is alleged to have been
made, the more reasonable the conclusion of
probable cause

Description of Person to be Seized


John Doe warrant valid provided there is a
descriptio personae as will enable the officer to
identify the accused

Competent Proof, Particular Acts and Omissions:


= specific offense must have been alleged in the
application
= probable cause that the best evidence which could
be obtained under the circumstances would constitute
an offense
Determined by the Judge:
= except, the CID in order to carry out a final order of
deportation, or to effect compliance with an order of
contempt (in which case the CID may issue warrants)
Examination:
= must be under oath, even if not in public (secret
chambers of the judge valid)
= must be probing, exhaustive, not merely routinary or
pro forma
= searching questions and answers, not merely
perfunctory (answerable by Yes or No)
= must make his own inquiry
= not merely reading of stenographic notes, nor
rehash the contents of the affidavit
In Connection with One Offense:
= not a scatter shot warrant
specific offense must
have been charged
= case: when it fails to mention the specific section of
the law violated, SC will sustain the warrant (not
considered general warrant)
Particularization:
= specific description of the place to be searched and
things to be seized in order to prevent abuse and
indiscriminate use of the warrant
= not a general warrant - omnibus description
= Exception, if the object is mala in se (it can be
seized at once)

Description of Place to be Seized


Search must be confined strictly to the place
described
Cannot be left to the discretion of the officers
Test:
1) whether the officer enforcing the warrant can
with reasonable effort, ascertain and identify
the place intended to be search
2) officers prior knowledge as to the place
intended in the warrant
3) officer may refer to the affidavit filed in court
to resolve any ambiguity in the place
Sec 6. ISSUANCE AND FORM OF SW.
If the judge is satisfied of the existence of facts
upon which the application is based or that ther is
probable cause to believe that they exist, he shall
isue the warrant, which must be substantially in
the form prescribed by these Rules.
Sec 7. RIGHT TO BREAK DOOR OR WINDOW.
The officer, if refused admittance to the place
directed search after giving notice of his purpose
and authority, may break open any other or inner
door or window of a house, or any part of a house
or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him
when unlawfully detained therein
Sec 8. SEARCH OF HOUSE, ROOM, 2
WITNESSES.
No search of a house, room or any other premises
shall be made except in the presence of a lawful
occupant thereof or any member of his family or
in the absence of the latter, 2 witnesses of
sufficient age and discretion residing in the same
locality.

CRIMPRO (JUSTICE SABIO)


Notes
Sec 9. TIME OF MAKING SEARCH.
The warrant must direct that it be served in the
day time, unless the affidavit asserts that the
property is on the person or in the place ordered
to be searched, in which case a direction may be
inserted that it be served at any time of the day or
night.
-

generally, daytime
nighttime only if the property to be searched in on
the person or in place to be searched (in which
case directions must be followed)

Sec 10. VALIDITY OF SW.


A SW shall be valid for 10 days from its date.
Thereafter, it shall be void.
-

cannot be used everyday for 10 days for a


different purpose each day
if its object cannot be accomplished in one day,
the same may be continued the following days
until completed

Sec 11. RECEIPT FOR THE PROPERTY SEIZED.


The officer seizing the property under the warrant
must give a detailed receipt for the same to the
lawful occupant of the premises in whose
presence the search and seizure were made, or in
the absence of such occupant, must, in the
presence of 2 witnesses of sufficient age and
discretion residing in the same locality, leave a
receipt in the place in which he found the seized
property.
- must give a detailed receipt of property taken to the
lawful occupant
Sec 12. DELIVERY OF PROPERTY AND
INVENTORY.
a) The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof, duly
verified under oath.
b) 10 days after issuance of the SW, the issuing
judge shall ascertain if the return has been
made, and if none, shall summon the person
to whom the warrant was issued, and require
him to explain why no return was made. If
such return has been made, the judge shall
ascertain whether sec 11 has been complied
with and shall require the property seized be
delivered to him. The judge shall see to it that
(a) hereof has been complied with.
c) The return on the SW shall be filed and kept
by the custodian of the log book on SW who
shall enter therein the date of return, the
results and other actions of the judge.
A violation of this section shall constitute
contempt of court.
- approval of the court is necessary to retain the
property seized by the police officers

CHAMP 2C 2002
Page 55 of 56

Sec 13. SEARCH INCIDENTAL TO LAWFUL


ARREST.
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission
of an offense without a search warrant.
-

Not all searches are prohibited, only those that


are unreasonable.

What is Unreasonable:
Those that do not have a valid SW,
Except: valid warrantless arrests

When Search may be made without SW:


1) search incidental to lawful arrest
2) search of moving vehicle
3) waiver or consent
4) evidence in plain view
5) customs searches, (except in dwelling)
6) stop and frisk
7) checkpoints
8) exigent circumstances (all others)
When is there lawful arrest:
those with a warrant (WOA)
those that may be made pursuant to Rule 113
Sec 5
Search Incident to Lawful Arrest:
a search may be made either while the crime is
being committed or just after is has been
committed
when one has been legally arrested for an
offense, whatever may be found in his
possession or control may be seized and used as
evidence against him
Time and Place:
arrest must be contemporaneous with the time
and place
arrest must precede search
obviously, the warrantless search may be made
only in the place of arrest
place: the premises or surroundings under his
immediate control
Property to be seized in search incidental to lawful
arrest:
1) dangerous weapons
2) anything which may be used as proof of the
commission of the offense
Other Warrantless Searches:
a) stop and frisk
observation of unusual conduct which would lead
a reasonably prudent man (a police officer, that
is) that the person may be armed and presently
dangerous
allowed to conduct a limited search of his outer
clothing

CHAMP 2C 2002
Page 56 of 56
Limits: - purpose must be to preserve status quo
momentarily while the police seeks to obtain
more information
1) made in the interest of crime prevention and
detection
2) made in the interest of the safety and selfpreservation of the police officer
b) checkpoints
inherent right of the state to protect its existence
and promote public welfare
the cost of occasional inconvenience and
discomfort, when conducted reasonably, are the
price we pay for an orderly society
c) moving vehicles
because it is not practicable to secure a SW
because the vehicle can be move quickly out of
the jurisdiction where the warrant must be sought
d) waiver
either expressly or impliedly, when one
voluntarily submits to search or consents to have
it made on his person or his premises
1) the right must exist
2) person must have actual or constructive
knowledge of such right
3) actual intention to relinquish such right
e) customs
based on Tariff and Customs Code
except, dwelling house, in which case a warrant
must first be secured from the judge upon
application
f) plain view
1) prior valid intrusion (justification)
- police had the right to be there, legally
present in pursuit of their official duties
2) inadvertent discovery of evidence
- police was not searching for evidence
3) immediate apparent illegality of the evidence
- nexus between the item seized and
criminal behavior, such that the evidence
sought will aid in the apprehension of the
person
4) plain view justified mere seizure of evidence
without further search
- absolute certainty is NOT required, probable cause
to believe that the observed objects are the fruits of a
crime, even though no crime has yet been reported
-

Total Exclusionary Rule any evidence obtained


in violation of the search and seizure clause shall
be inadmissible for any purpose in any
proceedings

Sec 14. MOTION TO QUASH SW.


A motion to quash a search warrant and or to
suppress evidence obtained thereby may be filed
and acted upon ONLY BY THE COURT WHERE
THE ACTION HAS BEEN INSTITUTED. If no
criminal action has been constituted, the motion
may be filed in and resolved by the COURT THAT
ISSUED THE SEARCH WARRANT. However, if
such court failed to resolve the motion and a
criminal case is subsequently filed in another

court, the motion shall be resolved by the latter


court.
- the legality of the SW should be addressed to the
court issuing the SW and not to any other court to
foster judicial stability
RULE 127 - PROVISIONAL REMEDIES
Sec 1. AVAILABILITY OF PROVISION
The provisional remedies in civil actions, insofar
as they are applicable, may be availed of in
connection with the civil action deemed instituted
with the criminal action.
Sec 2. ATTACHMENT.
the offended party may have the property of the
accused attached as a security for the satisfaction
of any judgment that may be recovered from the
accused in the following cases:
a) when the accused is about to abscond from
the Philippines
b) when the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public officer,
officer of a corporation
c) When the accused has concealed, removed,
or disposed of his property, or is about to do
so.
d) When the accused resides outside the Phils.
Purpose of Provisional remedies:
preserve the status quo and securing the
judgment
to protect the rights and interests of party-litigants
Examples:
1) attachment
2) preliminary injunction
3) receivership
4) support pendente lite.
CHAMP REYNO 2C 2002