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REMEDIAL LAW REVIEWER

UP LAW

2012

BAR REVIEWER

RRREEEMMMEEEDDDIIIAAALLL

LAW

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Criminal Procedure

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Criminal Procedure

 

REMEDIAL LAW

Criminal Procedure Civil Procedure Evidence Special Proceedings

I. General Matters

II. Prosecution of Offenses

III. Prosecution of Civil Action

IV. Preliminary Investigation

 

V. Arrest

 
 

VI. Bail

VII. Rights of the Accused

VIII. Arraignment and Plea

IX. Motion to Quash

X. Pre-trial

XI. Trial

XII. Judgment

XIII. New Trial or Reconsideration

XIV. New Appeal

XV. Search and Seizure

XVI. Provisional Remedies

I. GENERAL MATTERS

A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused

Jurisdiction over Subject Matter Jurisdiction over the class of cases to which the particular case belongs; It is defined by law; determined by the extent of the penalty which the law imposes based on the facts as recited in the complaint/information constitutive of the offense charged.

General rule: The court‘s jurisdiction to try a criminal action is to be determined by the law at

the time of the institution of the action. [Palana vs People (2007)] Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction already obtained by a court.

- Principle of adherence of jurisdiction/continuing jurisdiction- jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. Once vested, it cannot be withdrawn or defeated by a subsequent valid amendment of the information. [People vs Chupeco (1965)]

Exception: Where the succeeding statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal, which will continue the proceeding.

Jurisdiction over the Person of the Accused The person charged with the offense must have been brought to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. [Antiporda vs Garchitorena (1999), citing Arula vs Espino (1969)]

Acquired either by:

ARREST of person or

VOLUNTARY SUBMISSION by the person

is

accomplished by:

His pleading to the merits (filing a motion to quash (except if the ground is to question the jurisdiction of the court, e.g. re validity of arrest, over the person [Miranda vs Tuliao (2006)]), appearing for arraignment, or entering trial) or

By filing Bail

Voluntary

appearance

of

the

accused

Jurisdiction Over the Subject Matter

Jurisdiction Over The Person of the Accused

Derived from the law. It can never be acquired solely by consent of the accused.

May

be

acquired

by

consent of the accused

or

by

waiver

of

objections.

The absence of court‘s

Failure of the accused to make objection in time would constitute a waiver of the objection.

jurisdiction

over

the

subject matter may be

raised

at

any

stage of

the

proceeding.

The

 

right

to

make

such

objection

is

never

waived.

 

B. Requisites for exercise of criminal jurisdiction

WON the court has jurisdiction over the offense by virtue of the imposable penalty and its nature (SUBJECT MATTER JURISDICTION)

WON the court has jurisdiction over the person of the accused

WON the action has been filed within the TERRITORIAL JURIDICTION of the court

- Refers to VENUE (see below) or the place where the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. [Sec 15(a), Rule 110]

- For transitory/ continuing offenses, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People vs Grospe (1988)]

C. Jurisdiction of Criminal courts

How Determined

Determined by the allegations of the complaint or information.

By examination of the complaint/information to ascertain that the facts set out and punishment fall under jurisdiction of court. [People vs Ocaya

(1978)]

Jurisdiction over Complex Crimes (2003 Bar):

lodged with the court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. [Cuyos vs Hon. Garcia (1988)]

Military Courts

General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units who commit crimes under the RPC or special laws, regardless of who the co-accused or victims are.

Jurisdiction of Courts

REMEDIAL LAW REVIEWER

Exception: When, as determined by the ordinary court during arraignment, the offense is service- oriented, then it will be tried by the court martial. Provided: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts.

such crimes/offenses be tried by the proper civil courts. 13   MTC/MeTC/MCTC     RTC  

13

 

MTC/MeTC/MCTC

   

RTC

 

SANDIGANBAYAN

 

Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32(1), BP 129]

Exclusive original jurisdiction in all criminal cases not within the

Exclusive original jurisdiction in those cases expressly

 

exclusive

jurisdiction

of

any

 

enumerated in PD

1606,

as

court/tribunal/body. [Sec. 20, BP

amended by RA 8249: violations

129]

of

RA

3019,

RA

1379,

and

Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties,

including the civil liability arising from such offenses or predicated thereon, irrespective of kind,

Exception: Those now falling under the exclusive and

concurrent jurisdiction of the Sandiganbayan, which shall hereafter be exclusively taken

cognizance of by the latter. [Sec. 20, BP 129]

Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years,

Chapter II, Section 2, Title VII, Book II of the RPC Officials enumerated are the ff:

- Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation

 

nature, value, or amount thereof. [Sec. 32(2), BP 129]

 

or where one

or

more

of

the

 

and Position Classification Act of 1989 (RA 6758)

-

Provided, however, that in

victims is a minor at the time of the commission of the offense [RA

- Members of Congress and officials thereof classified as

 

offenses involving damage to

property

through

criminal

9344]

Grade'27'and up under the

negligence

they

shall

have

Cases against minors cognizable under the Dangerous Drugs Act, as amended [RA 8369, Family Courts Act of 1997]

Violations of Republic Act No. 7610, the Child Abuse Act.

Cases of domestic violence against

 
 

exclusive original jurisdiction thereof. [Sec. 32(2), BP 129] Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. [Sec. 32, BP 129]

 

Compensation and Position Classification Act of 1989

- Members of the judiciary without prejudice to the provisions of the Constitution

- Chairmen and members of Constitutional Commissions,

Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution, October 15, 1991]

- Violations of traffic laws/rules/ regulations;

 

women and children.

If

an act

 

committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to

without prejudice to the provisions of the Constitution

Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office

Requisites:

- Violations of rental law;

   

- Cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed

P10,000.

criminal proceedings and the corresponding penalties. [RA 8369, Family Courts Act of 1997]

Violations of intellectual property rights [A.M. No. 03-03-03-SC (2003); RA 8293]

Money Laundering Cases [RA 9160] Exception: those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan

 

- Accused is any one of the public officials enumerated in subsec. (a) of Sec. 4 of Ra 8249, grade 27 or higher

- Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes

 

- The offender commits such other offense or felony in relation to his office

Exception: a criminal case falling under the aforementioned list where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

Cases filed in pursuant to and in connection with EO 1, 2, 14, 14- A, issued in 1986

14 REMEDIAL LAW REVIEWER MTC/MeTC/MCTC RTC SANDIGANBAYAN  Violations of BP 22 [A.M. No. 00-11-

14

REMEDIAL LAW REVIEWER

MTC/MeTC/MCTC

RTC

SANDIGANBAYAN

Violations of BP 22 [A.M. No. 00-11- 01-SC (2003)]

   

Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129]

4. When injunction may be issued to restrain criminal prosecution

General rule: The prosecution of a criminal case, even at the stage of preliminary investigation and reinvestigation, may not be enjoined by prohibition/injunction.

Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Exceptions (Bar 1999)

To afford protection to the constitutional rights of the accused;

Necessary for the orderly administration for justice or to avoid multiplicity of actions;

There is a prejudicial question which is sub judice;

The acts of the officer are without or in excess of authority;

The prosecution is under an invalid law/ordinance/regulation;

When double jeopardy is clearly apparent;

The court has no jurisdiction over the offense;

A case of persecution rather than prosecution;

The charges are manifestly false and motivated by the lust for vengeance;

There is clearly no prima facie case against the accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]

Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

II. PROSECUTION OF OFFENSES

1. Criminal actions, how instituted (Bar 1999)

In general

A criminal action is commenced in this jurisdiction by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation.

Institution and Commencement of actions

For

preliminary

investigation pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine), the criminal action is instituted by filing the complaint with the appropriate officer for PI. [Sec. 1(a), Rule 110]

offenses

which

require

a

In offenses cognizable by inferior courts, the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. [Sec. 1(b), Rule 110] In Metropolitan Manila and other chartered cities, the complaint may be filed with the office of the public prosecutor unless otherwise provided in their charters. [Sec. 1(b), Rule 110] The criminal action is commenced when the complaint or information is filed in court.

Effect of the Institution of criminal action on the prescriptive period (Bar 1993)

General Rule: The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. [Sec. 1, Rule 110]

Prescription is interrupted with the filing of the case even if the court is without jurisdiction, even if it be merely for purposes of preliminary examination or investigation. [Francisco vs CA (1983)]

Exception: The Court held that the interruption of the prescriptive period upon the institution of the complaint under Sec.1 of Rule 110 does not apply to cases for violation of special acts and municipal

ordinances. This is governed by Act No. 3326 and is

interrupted

judicial

proceedings (not administrative proceedings) for its investigation and punishment. [Zaldivia vs Reyes

(1992)]

only

by

the

institution

of

However, in Sanrio Company Ltd. vs Lim (2008), the SC confirmed that under Section 2 of Act 3326, the prescriptive period for violation of special laws starts on the day such an offense was committed and is interrupted by the institution of proceedings against the respondent. In this case petitioner filed its complaint-affidavit with the TAPP of DOJ, and as such the prescriptive period was tolled.

In Panaguiton, Jr. vs DOJ (2008), the Court declared that they cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. It can also be effectively tolled by the filing of the BP 22 petition before the Office of the Prosecutor.

In SEC v Interport Resources Corporation (2008), the Court held that the prescriptive period is interrupted by commencing the proceedings for the prosecution of the accused, accomplished by initiating the preliminary investigation by the SEC, which was declared as equivalent to the PI conducted by the DOJ in criminal cases.

Note: The above cases involve violation of special laws. [Riano]

2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000)

General Rule: All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor [Rule 110, Sec. 5]

The public prosecutor is a quasi-judicial officer and a representative of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.

Exception: In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court‘s approval. The authority will continue up to the end of the trial even in the absence of a public prosecutor until revoked or withdrawn.

The private prosecutor is the attorney representing the offended where the civil action for recovery of civil liability is instituted with the criminal case.

Cases that cannot be prosecuted de oficio

Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party are the following:

Adultery/concubinage [Sec. 5, Rule 110]

Seduction, abduction, acts of lasciviousness

Defamation which consists of imputation of any of the foregoing offenses.

Rationale: The aggrieved party might prefer to suffer the outrage in silence rather than go through the scandal of a public trial.

Offended parties who can file the complaint

In adultery and concubinage The offended spouse. Both guilty parties should be included if both are alive. [Sec 5, Rule 110] However, a criminal prosecution will not prosper if the offended party consented to the offense.

Seduction, abduction and acts of lasciviousness The offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by them. [Sec 5, Rule

110]

In oral defamation can only be brought upon instance and upon complaint of the offended party.

Effect of

Death of offended party - Once a complaint is filed, the will of the offended party is ascertained and the action

REMEDIAL LAW REVIEWER

proceeds. Death after filing the complaint would not deprive the court of the jurisdiction to try the case.

- The State shall initiate the action on behalf of the offended party in case of his death/incapacity and he has no known parents/grandparents/ guardians.

- In adultery/concubinage, such death does not extinguish the criminal liability of accused.

Desistance by offended party

liability of accused.  Desistance by offended party 15 - It does not bar the People

15

- It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity.

- An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action.

Pardon by offended party

- In rape, seduction, abduction and acts of lasciviousness of a minor The pardon will be effective if given by both parents and the offended party.

- In seduction, abduction and acts of lasciviousness - Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5]

- The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna

(1902)]

- If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender.

General rule: Pardon must be made before the filing of the criminal complaint in court.

Exception: In rape, where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence.

If there is more than one accused, the pardon must be extended to all offenders.

Marriage between offender and offended party.

Pardon or desistance extinguishes civil liability.

Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations.

Under Sec. 27 of RA 7610, complaints on cases of

in the law committed

against children, may be filed by any of the ff:

Offended party

Parents or guardians

Ascendant or collateral relative within the third degree of consanguinity

unlawful

acts

mentioned

Officer, social worker, or representative of a licensed child-caring institution

Officer or social worker of the DSWD

Barangay chairman

16 REMEDIAL LAW REVIEWER  At least 3 concerned, responsible citizens where the violation occurred.

16

REMEDIAL LAW REVIEWER

At least 3 concerned, responsible citizens where the violation occurred.

3. Criminal actions, when enjoined

General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction.

Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Exceptions (Bar 1999)

To afford protection to the constitutional rights of the accused;

Necessary for the orderly administration for justice or to avoid multiplicity of actions;

There is a prejudicial question which is sub judice;

The acts of the officer are without or in excess of authority;

The prosecutions is under an invalid law/ordinance/regulation;

When double jeopardy is clearly apparent;

The court has no jurisdiction over the offense;

A case of persecution rather than prosecution;

The charges are manifestly false and motivated by the lust for vengeance;

There is clearly no prima facie case against the accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]

Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

4. Control of prosecution

General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. [Sec. 5, Rule 110]

Exception: In case of heavy work schedule of the

public prosecutor or in the event of lack of public prosecutors,

The private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.

The authority may be revoked or withdrawn. [Sec. 5, Rule 110]

Criminal action is still prosecuted under the direction and control of the public prosecutor. [Riano]

Extent of the prosecutor’s control

Prior to the filing of the case

- The prosecutor has the discretion to file or not to file a criminal action.

- The prosecutor is vested with discretion as to who is to prosecute and for what; he cannot be compelled to file a particular information. However, if the evidence presented at the PI leaves no doubt as to what crime was committed and by whom, then mandamus is available to compel the prosecuting officer to file the corresponding complaint or information

in accordance with the evidence [Bernabe vs Bolinas, (1966)].

After a case is filed

- Once a criminal case has been filed in court, it is the prosecutor‘s duty, regardless of his personal convictions or opinions, to proceed with the presentation of his evidence to enable the court to arrive at its own judgment as to the accused‘s culpability.

- After an action has been filed in court, the prosecutor has no power to dismiss the action without the court‘s consent.

While the Secretary of Justice has the authority to review the acts of his subordinates in criminal cases, the court has always has the discretion to try a motion to dismiss which the prosecution may file after the Secretary of Justice reverses an appealed decision. [Roberts Jr. vs CA, (1996)]

The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice.

Effects of the lack of intervention by the fiscal in the trial

Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it can‘t be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People vs Beriales, (1976)].

5.

Information

Sufficiency

Complaint defined

of

Complaint

or

A sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. [Sec. 3, Rule

110]

Persons authorized to file the complaint:

- Offended party

- Any peace officer

- Other public officer charged with the enforcement of the law violated.

Filed in the name of the People of the Philippines. [Sec 2, Rule 110]

Complaint refers to private crimes.

Criminal cases under the Revised Rules on Summary Procedure shall be either by complaint or by information; provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of an information (which means by the prosecutor), except when the offense cannot be prosecuted de oficio.

The complaint must be under oath. But lack of

oath is not a formal defect and will not invalidate

a judgment.

Information defined

An accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court. [Sec. 4, Rule 110; People vs Cinco (2009)]

It

is filed by the prosecutor and need not be under

oath. But it must be signed and subscribed by the fiscal/prosecutor.

What the prosecutor signs under oath is the certification that he has conducted the required preliminary investigation (PI). Lack of certification does not invalidate judgment. [People vs. Bulaong

 

(1981)]

Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction. Lack of authority of the officer signing the information is an infirmity in the information, and cannot be cured by silence, acquiescence, or even by express consent. [Cudia v CA (1998)]

Information refers to public crimes.

The "complaint" referred to in Rule 110 contemplates one filed in court, not with the fiscal. In that case, the proceeding must be started by the aggrieved party himself.

As a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it.

But a "complaint" filed with the fiscal prior to a judicial action may be filed by any competent person. [Ebarle v. Sucaldito (1987)]

Form & Substance

Sufficiency of complaint or information

A complaint or information is sufficient if it states:

the name of the accused;

the designation of the offense given by the statute;

the acts or omissions complained of as constituting the offense;

the name of the offended party;

the approximate date of the commission of the offense; and

the place where the offense was committed. [Sec. 6, Rule 110]

Test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty, of the offense charged. [Lazarte, Jr. vs Sandiganbayan (2009)]

The

information‘s validity and sufficiency is to enable

the accused to suitably prepare for his defense, since he is presumed to have no independent

the

purpose

of

the

requirement

for

REMEDIAL LAW REVIEWER

knowledege of the facts that constitute the offense. [People vs Cinco (2009)]

Name of the accused

It must include the name and surname of the accused, as well as any appellation or nickname by which he has been or is known.

If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. His true name will be inserted if eventually disclosed or appears in some manner to the court. [Sec. 7, Rule

110]

or appears in some manner to the court. [Sec. 7, Rule 110] 17  If there

17

If there are more than 1 accused, name all of them. [Sec. 6, Rule 110]

Place of commission of offense

General rule: It is sufficient if it can be understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court.

Exception: If the particular place where it was committed:

Constitutes an essential element of the offenses charged; OR

Is necessary for its identification. [Sec. 10, Rule

110]

Time of commission of the offense

General rule: The precise date is not necessary.

Exception: When the date is a material ingredient of the offense. [Sec. 11, Rule 110]

The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly.

Need not be exact

- As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused, then the information is valid.

When date is so remote: defective

- The allegation in the information of ―on or about the year 1992‖ is defective as it violates Sec. 11, Rule 110 and the accused’s right to be informed of the nature and cause of the accusation against him, because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992.

Remedy in case of defect in averment of time

- A motion for a bill of particulars under Sec. 6, Rule 116.

- The accused may also file a MTQ on the ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him. But defect in the date is not a ground for MTQ under Rule 116.

18 REMEDIAL LAW REVIEWER Name of the offended party [Sec. 12, Rule 110]  If

18

REMEDIAL LAW REVIEWER

Name of the offended party [Sec. 12, Rule 110]

If an offense against person: Name and surname; nickname/appellation; fictitious name, if real name is unknown.

If an offense against property:

- If name is unknown, particularly describe the property to identify the offense;

- If the name is later known, insert it;

- If a juridical person, name or known name; without need to aver that it is juridical.

Where the name of the injured party is necessary as matter of essential description of the crime charged, the complaint must invest such person with individuality by either naming him or alleging that his name is unknown.

In crimes against property, ownership must be alleged as matter essential to the proper description of the offense. [US vs Lahoylahoy (1918)] Designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. [Sayson vs People (1988), cited in Ricarze vs CA (2007)]

A mistake in the name of the accused is not equivalent to a mistake in the identity especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. [People vs Amodia

(2009)]

An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial. [Frias vs People (2007)]

Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved for a bill of particulars or for quashal of information before arraignment, otherwise he is deemed to have waived his objections to such a defect. [People vs Teodoro (2009)]

6. Designation of Offense

Aver the acts and omissions constituting the offense.

Specify the qualifying and aggravating circumstances for them to be considered in the imposition of the penalty. [Sec. 8 and 9, Rule 110; People vs Tampos (2009)] (Bar 2001)

This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof.

In case of a conflict between the designation of the crime and the recital of ultimate facts constituting the offense, the latter prevails over the former. [People vs Quemeggen (2009)]

Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to

make sure the accused fully understands what he is being charged with. [Guy vs People (2009)]

7. Cause of the Accusation

A variance between the allegation in the information

and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. [Matrido v People (2009)]

Purpose

To enable a person of common understanding to know what offense is intended to be charged;

To enable the court to pronounce proper judgment.

Allegations required to safeguard right to be informed

Allegations must be in ordinary or concise language, sufficient to enable a person of common understanding to know what offense is being charged.

This must be done both for the offense charged and the circumstances involved in its commission. [Sec. 9, Rule 110]

The prosecutor‘s characterization of the crime is immaterial and purposeless. The facts stated in the body of the complaint/information determine the crime of which the accused stands charged and for which he must be tried.

Qualifying and aggravating circumstances must be alleged; otherwise, they are not to be considered even if proven during the trial. [Sec. 8, Rule 110]

What to allege

Where the law prescribes exceptions General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions.

Where exceptions form as ingredients of offense

If

the exception is needed for defining the offense,

then the information should negate the exception.

[US vs Chan Toco (1908)]

Where complex crime is charged

Where what is alleged in the information is a complex crime and the evidence fails to support the

charge as to one of the component offenses, the

defendant can only be convicted of the offense proven.

8. Duplicity of the Offense; Exception (Bar 2005)

General rule: The information must charge only one offense. [Sec. 13, Rule 110]

Objection to a complaint or information which charges more than one offense must be timely interposed before trial. [Sec 3, Rule 120] Failure to do so constitutes a waiver, [People v Tabio (2008)] and the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense. [Sec 3, Rule 120]

Exception: When the law prescribes a single punishment for various offenses

Purpose : To give the accused the necessary knowledge of the charge to enable him to prepare his defense. Hence, when an information charges more than one offense, the accused may file a MTQ on the ground of duplicity of offenses.

Several

duplicitous

modes

of

committing

offense

not

General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective.

Exceptions:

Complex crimes

Special complex crimes

Continuous crimes

Crimes susceptible of being committed in various modes

Crimes which another offense is an ingredient [People vs Camerino (1960)]

9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002)

Amendments in form and substance before plea

General rule: It must be made before the accused enters his plea.

Exception:

nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court. The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order.

the

If

the

amendment

downgrades

REMEDIAL LAW REVIEWER

Amendments made after plea and during trial

Formal can only be made under two conditions

-

Leave of court must be secured

-

It

does not cause prejudice to the rights of the

- It does not cause prejudice to the rights of the 19 accused. [Sec 14, Rule

19

accused. [Sec 14, Rule 110] The test as to WON

a defendant is prejudiced by the amendment of

information is o WON a defense under the information as it originally stood would be available after the amendment is made, and o WON any evidence defendant might have would be equally applicable to the information in the one form as in the other.

[People vs Casey (1981)]

Substantial proscribed. [People vs Zulueta

(1951)]

- Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. [Almeda vs Villaluz (1975)]

- Exception: if it is beneficial to the accused. [Ricarze vs CA (2007)]

Substitution a complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy. [Sec 14, Rule 110]

Subject to the Sec 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information.

Distinction between substitution and amendment (Bar 1994)

 

AMENDMENT

   

SUBSTITUTION

 

Formal

or

Substantial

Substantial change form original

changes

 

Can be effected without leave of court

Must

be

with

leave

of

court

Only as to form, there is no need for another PI and retaking of plea

Another PI is entailed and accused has to plead anew

Amended

 

information

Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy

refers

to

the

same

offense charged in the

original

to

an

information or offense which is

included in the original

charge;

 

can invoke

 

double jeopardy

 
REMEDIAL LAW REVIEWER 10. Venue of criminal actions 20 Place where action is to be

REMEDIAL LAW REVIEWER

10. Venue of criminal actions
20

Place where action is to be instituted

Venue of criminal actions shall be instituted and

tried in the court of the municipality or territory

where the offense was committed; or

where any of its essential ingredients occurred. [Sec. 15(a), Rule 110]

How venue or jurisdiction determined

Venue in criminal cases is jurisdictional, being an essential element of jurisdiction.

One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. The place where the accused was arrested is of no moment. [People vs Enriquez]

Where crime is continuing

A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. [People vs Gorospe (1984)]

Written defamation

Action to be instituted and filed in the RTC of the province or city where the libelous article is printed and first published.

Additional rules: if offended party is

- a private individual, the action may also be filed in the province where he actually resides at the time of the commission of the offense.

- a public officer, the action may be filed in the court of the province or city where he held

the time of the commission of the

office at

offense. [Art. 360, RPC]

Note: If information is filed in the place where the defamatory article was printed or first published, it must state that the libelous material was either printed or first published in the place of the filing of the information, and not merely allege that the paper or magazine is of general/considerable circulation. [Riano on Foz, Jr. v People (2009)]

Offense committed on railroad

Action to be instituted and filed in the court of any municipality or territory where said train, aircraft or vehicle passed thru, including place of departure or arrival. [Sec. 15(b), Rule 110]

Rule applies only when the crime was committed in the COURSE of the trip.

Offense committed on a vessel

Action may 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 generally accepted principles of international law. [Sec. 15(c), Rule 110]

Offense committed outside the Philippines

Cognizable by the court where the criminal action is first filed. [Sec. 15(d), Rule 110]

11. Intervention of offended party [Sec. 16, Rule 110]

General rule: An offended party has the right to intervene in the prosecution of a crime

Note: This is still subject to the control of the prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]

Exceptions:

Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party.

Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.

Offended party has already instituted action

Any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic vs Sunga (1988)] - When private prosecutor is allowed to intervene: [A.M. No. 02-2-07-SC] o All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. o In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.

-

- The private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. [Sec. 5, Rule 110]

III. PROSECUTION OF CIVIL ACTION

1. Rule on implied institution of civil action with criminal action

How instituted

General rule: When a criminal action is instituted,

the civil action for the recovery of civil liability

deemed

arising

instituted with the criminal action. [Sec. 1, Rule

111]

from

the

offense

charged

is

Reason: principle that every person criminally liable for a felony is also civilly liable. [Art. 100, RPC]

Exception: If the offended party:

Waives the civil action;

Institutes the civil action prior to the criminal action; or

Reserves the right to institute it separately [ABS- CBN Broadcasting Corporation vs Ombudsman

(2008)]

Exception to this exception

Claims arising out of a dishonored check under BP 22 where ―no reservation to file such civil action separately shall be allowed.‖ (Bar 2001; 2002)

Claims arising from an offense which is cognizable by the Sandiganbayan where there is likewise no right to reserve the filing of the civil action separately from the criminal action. [Sec. 4, PD 1606, as amended by RA 8249]

An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute it, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. [Garcia vs Florido (1973)]

Only civil liability arising from the crime charged as a felony is deemed instituted with the criminal action. Civil actions referred to in Civil Code 32, 33, 34, and 2176 shall remain ―separate, distinct and independent‖ of any criminal prosecution which may be based on the same act. [Phil. Rabbit Bus Lines Inc vs People (2004)]

Does not include civil liability that the offended party waives, reserves or those instituted prior to the criminal action.

2.

independently

When

civil action

may proceed

The reservation of the right to institute separately

the civil action shall be made before the prosecution

under

circumstances

a

starts

presenting

its

evidence

and

the

affording

offended

party

reasonable opportunity to make such reservation.

Procedure for making the reservation:

- Filing a manifestation in the criminal case that the offended party is reserving his right to file a separate civil action;

- Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action.

The rule requiring reservation does not apply to Arts. 32-34 and 2176, CC. These civil actions can be filed and prosecuted independently of the criminal action.

No counterclaim, cross-claim or 3rd-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. [Sec. 1, Rule 111]

3.

suspended

When

REMEDIAL LAW REVIEWER

separate

civil

action

is

When REMEDIAL LAW REVIEWER separate civil action is 21  After the criminal action has been

21

After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. [Sec 2, Rule 111]

The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime.

Civil actions mentioned in Sec. 3, Rule 111 under Arts. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

4. Effect of the death of accused or

convict on civil action [Sec. 4, Rule

111;

Ombudsman (2008)]

ABS-CBN Broadcasting vs

If death is before arraignment Dismissal of case without prejudice to filing of civil action against estate of the deceased.

If death is after arraignment and during pendency of criminal action Extinguishes civil liability arising from the delict.

Exception: Independent civil actions instituted under Arts. 32, 33, 34 and 2176 of the Civil Code, or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate.

If death is while appeal is pending extinguishes criminal liability and civil liability based thereon. If the civil liability is predicated on a source of obligation other than delict, it survives notwithstanding the death of the accused [People vs Ayochok (2010)]

5. Prejudicial Question (1999 Bar)

Elements of prejudicial question

General Rule: a prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal.

The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal.

It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. [Ras vs Rasul (1980)]

Rationale: to avoid two conflicting decisions in the civil case and in the criminal case. [Sy Thiong Siou vs Sy Chim (2009)]

REMEDIAL LAW REVIEWER Effect (Bar 1995, 1999, 2010) 22 General rule: Where both a civil

REMEDIAL LAW REVIEWER

Effect (Bar 1995, 1999, 2010)
22

General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence.

Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case.

Requisites [Sec. 7, Rule 111]

Previously initiated civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and

The resolution of such issue determines WON the criminal action may proceed.

Where to file petition [Sec. 6, Rule 111]

Office of the prosecutor (in the PI stage);

Court conducting the PI; or

Court where criminal action has been filed for trial, at any time before the prosecution rests.

Note: The Rule precludes a motu proprio suspension of the civil action. [Riano]

6. Rule on Filing Fees in civil action deemed instituted with the criminal action

Filing fees of civil action deemed instituted in criminal action

Filing fees apply when damages are being claimed by the offended party.

General Rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. [Sec. 1, Rule 111]

When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial;

In any other casei.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages. [General vs Claravall (1991)]

Exceptions: In criminal actions for violation of BP22,

involved shall be

considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved. [A.M. No. 04-2-04]

the

amount

of

the

check

IV. PRELIMINARY INVESTIGATION

1. Nature of right

2. Purposes of preliminary investigation

3. Who may conduct determination of existence of probable cause

4. Resolution of investigating prosecutor

5. Review

6. When warrant of arrest may issue

7. Cases not requiring a preliminary investigation

8. Remedies of accused if there was no preliminary investigation

9. Inquest

1. Nature of right

Preliminary investigation, defined

It 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. [Sec. 1, Rule

112]

The conduct of a PI is the initial step towards the criminal prosecution of a person.

Nature of the Right to PI

It is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process. [People vs Oandasa (1968)]

It is part of the guarantees of freedom and fair play. [La Chemise Lacoste, S.A. vs Fernandez

(1984)]

The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right but a substantial right

Right to Preliminary Investigation

The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication.

When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court. [People vs Perez (1960)]

The right is deemed waived by:

- the failure to claim it before the accused pleaded [People vs Magpale (1940)]

- silence of the accused [People vs Mijares

(1951)]

- failure to request it within 5 days from time he learns of the filing of the complaint/information

- when accused already posted bond for his release and subsequently went to trial without claiming his right to PI [People vs Selfaison

(1961)]

- a fortiori absence of the accused [Sec. 3(d), Rule 112; de Guzman vs People and Sandiganbayan (1982)]

An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that

he raises the challenge before entering his plea [Sec. 26, Rule 114].

2. Purposes

of

preliminary

investigation

To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty. [Raro vs Sandiganbayan (2000)]

To protect the accused from the inconvenience, expense and burden of defending himself in a formal trial

To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials. [Tandoc vs Resultan (1989)]

Scope of PI

A PI is ―merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or

information. It is not a trial of the case on the merits‖ and does not place the persons against whom it is taken in jeopardy.

It ―is not the occasion for the full and exhaustive display of the parties‘ evidence‖ [Raro vs SB

(2000)]

The accused has no right to cross-examine the witnesses which the complainant may present. [Paderanga vs Drilon, 1991]

A PI takes on an adversarial quality, because its purpose is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of

a crime, from the trouble, expenses and anxiety of

a public trial before an accused person is placed on trial. [Raro vs SB (2000)]

3. Who may conduct determination of existence of probable cause

Generally [Rule 112, Sec. 2 as amended by A.M. No. 05-8-26-SC]

- Provincial/city prosecutors and their assistants;

- National and regional state prosecutors;

- Other officers as may be authorized by law.

COMELEC, when vested

COMELEC may conduct investigation as regards election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec. 265, Omnibus Election Code]

The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Such involves the exercise of administrative powers, thus the COMELEC en banc, may in the first instance, may act on the investigation and subsequently decide on the filing of the criminal action. [Baytan vs COMELEC (2003)]

REMEDIAL LAW REVIEWER

Ombudsman The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. [Sec. 12, Art. XI, Consti]

taken and the result thereof. [Sec. 12, Art. XI, Consti] 23 The Ombudsman is authorized to

23

The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well.

- If the offense comes within the jurisdiction of regular courts, the Ombudsman may endorse the same to, and deputize the provincial/ city prosecutor who has jurisdiction over the case for proper preliminary investigation.

cognizable by the

investigation

-

If

the

offense

the

is

Sandiganbayan,

preliminary

has to be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman requiring that the complaint must

be under oath.

Note: RTC judges have NO power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005.

24 REMEDIAL LAW REVIEWER Procedure for preliminary investigation Filing of the complaint [Sec. 3(a), Rule

24

REMEDIAL LAW REVIEWER

Procedure for preliminary investigation

Filing of the complaint [Sec. 3(a), Rule 112] Stating the respondent‘s address Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public In such number of copies as there are respondents, plus 2 copies for the official file

there are respondents, plus 2 copies for the official file Action of the investigating officer [Sec.

Action of the investigating officer [Sec. 3(b), Rule 112]

Within 10 days after the filing of the complaint, the investigating officer will either:

Dismiss, if he finds no ground to continue; or

Issue a subpoena to the respondent, attaching the complaint and other documents. If subpoena is not possible, the investigating officer shall decide based on what complainant presented. Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense.

submitted by complainant, and copy evidence at his expense. Defendant’s counter -affidavit Must be made within

Defendant’s counter-affidavit Must be made within 10 days from receipt of complaint, and must comply with the same requirements as a complaint. [Sec. 3(c), Rule 112]

If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112]

evidence presented by the complainant [Sec. 3(d), Rule 112] Hearing [Sec. 3(e), Rule 112] The investigator

Hearing [Sec. 3(e), Rule 112] The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days.

Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness.

Parties may be present evidence, but they have no right to examine or cross-examine. Questions of parties shall be submitted to the investigating officer.

Within 10 day after the investigation, the officer shall determine WON there is sufficient ground to hold respondent for trial.

4. Resolution

prosecutor [Sec. 4, Rule 112]

of

investigating

If the investigating officer finds no probable cause, he will dismiss the case. Otherwise, he will prepare an information and resolution. He shall certify under oath in the information that:

- He is an authorized officer;

- He personally examined the complainant and witnesses;

- There is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof;

- The accused was informed of the complaint and of the evidence submitted against him; and

- The accused was given an opportunity to submit controverting evidence.

5. Review [Sec. 4, Rule 112]

Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

Within 10 days from receipt of the resolution, the prosecutor/Ombudsman will act on the case.

No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or Ombudsman.

In case the investigation officer recommends the dismissal of the complaint but the prosecutor/Ombudsman disagrees, the latter may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI.

Note: The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor.

6. When warrant of arrest may issue

If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial.

Judges

of

RTC

and

inferior

courts

need

not

personally

examine

the

complainant

and

his

witnesses in the determination of PC. But he must

and

other sufficient supporting evidence, and on the basis thereof either dismiss the case, issue a warrant, or require further affidavits.

personally

evaluate

the

prosecutor‘s

report

Warrant that is simply based on report and recommendation of prosecution invalid; the judge must make an independent judgment of whether or not there is probable cause. This is because the probable cause for the prosecutor and judge are different:

PC for PROSECUTOR: whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial for which information is to be filed.

PC for JUDGE: whether or not a warrant of arrest should be issued so that the accused may be held in custody in order not to frustrate the ends of justice.

Judge may dismiss the case if the evidence on record clearly fails to establish a probable cause

REMEDIAL LAW REVIEWER

While PI is a statutory and substantive right and a component part of due process, the absence of PI:

does not impair the validity of the information or otherwise render it defective

neither does it affect the jurisdiction of the court

nor constitute a ground for quashing the information.

 nor constitute a ground for quashing the information. 25 Judge may order the prosecutor to

25

Judge may order the prosecutor to present evidence

The

trial

court,

instead

of

dismissing

the

within 5 days from notice and the issue may be

information,

should

hold

in

abeyance

the

resolved by the court within 30 days from filing of

proceedings and

order

the

public

prosecutor

to

complaint/information.

conduct a PI. [Villaflor vs Vivar (2001)]

7. Cases not requiring a preliminary

investigation

Cases not requiring a preliminary investigation Nor Covered by Rule on Summary Procedure [Sec. 8, Rule 112]

Cases punishable by imprisonment of less than 4 years, 2 months and 1 day, filed with the prosecutor or MTC/MCTC

Follow the procedure outlined in Sec. 3(a), Rule 112 above.

Follow the procedure outlined in Sec. 3(a), Rule 112 above. Within 10 days after the filing

Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.

searching questions and answers, he shall dismiss the same. The judge may require submission of additional

The judge may require submission of additional evidence within 10 days from notice, to determine the existence of PC.

10 days from notice, to determine the existence of PC. If the judge still finds no
10 days from notice, to determine the existence of PC. If the judge still finds no

If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period.

10 days from its submission or expiration of said period. If the judge finds PC, he

If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if the accused had already been arrested) and hold him for trial.

shall issue a warrant of arrest or a commitment order (if the accused had already been
accused had already been arrested) and hold him for trial. If the judge is satisfied that

If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.

8. Remedies of accused if there was

no preliminary investigation

Effect of denial of right to PI

If

conducted

Preliminary

investigation

is

being

Injunction and writs of restraint

General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained, as such will unduly setback the administration of criminal justice.

Exception: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional, or was "held invalid." [Hernandez vs Albano (1967)]

9. Inquest

General rule: PI is required to be conducted before

a complaint/ information is filed for an offense

where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the

fine. [Sec. 1, Rule 112]

Exception: When a person is lawfully arrested without a warrant involving an offense that requires

a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted.

INQUEST An informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. (DOJ-NPS Manual)

In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125,

REMEDIAL LAW REVIEWER RPC in the presence of his counsel. Notwithstanding the waiver, he may

REMEDIAL LAW REVIEWER

RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail

26 and the investigation must be terminated within 15 days from its inception. After the filing of the complaint/ information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. [Sec. 6, Rule 112]

Procedure for inquest proceedings

Considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include:

affidavit of arrest, investigation report, statement of the complainant and witnesses, all of which must be subscribed and sworn to before him other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person.

It must be terminated within the period prescribed under the provisions of Article 125 of the RPC, as amended.

under the provisions of Article 125 of the RPC, as amended. When the documents presented are

When the documents presented are not complete to establish probable cause, the Inquest Officer shall direct the law enforcement agency to submit the required evidence within the period prescribed under the provisions of Art. 125, RPC, as amended. Otherwise, the Inquest Officer shall order the release of the detained person.

Officer shall order the release of the detained person. If the Inquest Officer finds that probable
Officer shall order the release of the detained person. If the Inquest Officer finds that probable

If

the

Inquest

Officer

finds

that

probable

cause

exists,

he

shall

forthwith

prepare

the

corresponding

complaint/information

with

the

recommendation

that

the

same

be

filed

in

court.

The

complaint/information

the

offense committed and

shall

indicate

the

amount

of

bail

recommended,

if

bailable.

 

If the Inquest Officer finds no PC, he shall recommend the release of the arrested or detained person, note down his disposition on the referral document, prepare a brief memorandum indicating the reasons for the action taken, and forthwith forward the record of the case to the City or Provincial Prosecutor for appropriate action.

to the City or Provincial Prosecutor for appropriate action. If the recommendation of the Inquest Officer

If the recommendation of the Inquest Officer for the release of the arrested or detained person is approved, the order of release shall be served on the officer having custody of the said detainee.

Should it be disapproved, the arrested or detained person shall remain under custody, and the corresponding complaint/information shall be filed by the City or Provincial Prosecutor or by any Assistant Prosecutor to whom the case may be assigned.

V. ARREST

1. Arrest, how made

2. Arrest without warrant, when lawful

3. Method of arrest

a. By officer with warrant

b. By officer without warrant

c. By private person

4. Requisites of a valid warrant of arrest

5. Determination of probable cause for issuance of warrant of arrest

6. Distinguish probable cause of fiscal from

that of a judge

ARREST: Taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Rule 113, Sec. 1)

Ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable.

However, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. Although in the guise of a request, it was obviously a command or an order of arrest that a person could hardly be expected to defy. [Sanchez v. Demetriou (1993)]

Immunity from arrest

- Parliamentary Immunity: Senators and Members of the House of Representatives, while Congress is in session and for offenses

punishable

by

not

more

than

6

years

imprisonment.

(Art.

VI,

Sec.

11,

1987

Const.)

- Diplomatic Immunity: Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity (RA 75)

DOJ Circular No. 50 (October 29, 1990):

Prohibits the issuance of general warrants in a ―John Doe‖ information

- Insofar as the warrant is issued against 50 "John Does" not one of whom the witnesses to the complaint could or would identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." [ Pangandaman v. Casar (1988)]

1. Arrest, how made

Constitutional requirements on arrest

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Art. III, Sec. 2, 1987 Const.)

Modes of effecting arrest

By an actual restraint of

arrested.

a

person

to

be

By his submission to the custody of the person making the arrest. (Rule 113, Sec. 2, Par. 1)

Whichever means is used to make an arrest, the term necessarily implies control over the person under custody and, as a consequence, a restraint on his liberty to the extent that he is not free to leave on his own volition. (Riano, 2011)

It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. [Sanchez v. Demetriou (1993)]

No unnecessary violence

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, Par. 2)

Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required.

Time to make arrest

An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6)

2. Arrest without warrant, when lawful (1997, 2000, 2003, 2004 Bar)

General rule: No peace officer or person has the power or authority to arrest anyone without a

REMEDIAL LAW REVIEWER

warrant except in those cases expressly authorized by law. [Umil v. Ramos (1991)]

Exceptions (Rule 113, Sec. 5)

[ Umil v. Ramos (1991)] Exceptions ( Rule 113, Sec. 5 ) 27  In flagrante

27

In flagrante delicto: Literally, caught in the act of committing a crime. When the person to be arrested has committed, is actually committing or is attempting to commit an offense in the presence of the peace officer or private person who arrested him. (Rule 113, Sec. 5(a))

- Requisites:

o

The person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and

o

Such overt act is done in the presence or within the view of the arresting officer.

- ―In his presence‖ means: [ People v. Evaristo

(1992)]

o

He sees the offense, even though at a distance;

o

He hears the disturbances created by the offense and proceeds at once to the scene; or

o

Offense is continuing or has been consummated at the time arrest is made.

- Entrapment

o An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Sec. 5(a) of the Rules of Court. [Teodicio v. CA (2004)]

- Buy-bust operation

o When the appellant is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest. [People v. de Lara (1994)]

Hot pursuit arrest: When an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it (Rule 113, Sec. 5(b))

- Requisites

o

An offense has just been committed implies immediacy in point of time; and

o

The person making the arrest has probable cause to believe, based on personal knowledge of facts, that the person to be arrested has committed it.

Personal knowledge must be based on ―probable cause‖ which means an actual belief or reasonable grounds of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officer, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the

28 REMEDIAL LAW REVIEWER probable cause of guilt of the person to be arrested. 

28

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probable cause of guilt of the person to be arrested.

A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. [Posadas v. Ombudsman (2000)]

NOTE: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail. (Rule 113, Sec. 5, last par.)

Arrest of escaped prisoner

- When the person to be arrested is a prisoner who has escaped: (Rule 113, Sec.

5(c))

o From a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending; or o While being transferred from one confinement to another.

- Escapee may be immediately pursued or re- arrested without a warrant at any time and in any place within the Philippines. (Rule 113, Sec. 13)

- Rationale: At the time of arrest, the escapee is in continuous commission of a crime (i.e. evasion of service of sentence).

Other lawful warrantless arrest

Where a person who has been lawfully arrested escapes or is rescued. (Rule 113, Sec. 13), but the pursuit must be immediate.

By the bondsman, for the purpose of surrendering the accused. (Rule 114, Sec. 23)

Where the accused attempts to leave the country without permission of the court where the case is pending. (Rule 114, Sec. 23)

3. Method of arrest a. By officer with warrant

Duties of the arresting officer

Execution of warrant (Rule 113, Sec. 4)

- The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt.

- The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute.

- In case of his failure to execute, he shall state the reasons therefor.

The officer shall inform the person to be arrested of (1) the cause of the arrest and (2)

the fact that a warrant has been issued for his arrest. (Rule 113, Sec. 7)

- Exceptions:

o When he flees o When he forcibly resists before the officer has opportunity to so inform him

o When the giving of such information will imperil the arrest

- The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (Rule 113, Sec. 7) o This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment. [Mallari v. CA

(1996)]

To arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

Rights of the arresting officer

To summon assistance. (Rule 113, Sec. 10)

- He may orally summon as many persons as he deems necessary to assist him in effecting the arrest.

- A person summoned shall assist in effecting the arrest when he can do so without detriment to himself.

To break into building or enclosure. (Rule 113, Sec. 11)

- The person to be arrested is or is reasonably believed to be in said building;

- He has announced his authority and purpose of entering therein; and

- He has requested and been denied admittance.

Also applicable where there is a valid arrest without a warrant.

Rationale: Person to be arrested cannot use his house/ building/enclosure as a shelter for crime. The inviolability of domicile cannot be used to shield arrest.

To break out from the building/enclosure when necessary to liberate himself. (Rule 113, Sec.

12)

Also applicable where there is a valid arrest without a warrant.

To search the person arrested for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense. (Rule 126, Sec. 13)

Without need of a search warrant incidental to a lawful arrest.

b. By officer without warrant

if

it

is

Duties of arresting officer without warrant

The officer shall inform the person to be arrested of (1) his authority and (2) the cause of the arrest. (Rule 113, Sec. 8)

Exceptions:

- When the person to be arrested is engaged in the commission of the offense

- When he is pursued immediately after its commission

- When he has escaped, flees or forcibly resists before the officer has the opportunity to so inform him; or

- When the giving of such information will imperil the arrest.

c. By private person (citizen’s arrest)

Duties of private person effecting an arrest

The private person shall inform the person to be arrested of (1) the intention to arrest him and (2) the cause of the arrest. (Rule 113, Sec. 9)

Exceptions: Same as those for arrest by an officer without a warrant.

The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sec. 7. Otherwise, the private person may be held liable for illegal detention.

4. Requisites of a valid warrant of arrest

Issuance

Essential Requisites of a Valid Arrest Warrant (Art. III, Sec. 2, 1987 Const.)

- It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

- The warrant must particularly describe the person to be arrested.

Instances

When

Judge

Issues

Warrant

of

Arrest

Upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. (Rule 112, Sec. 5(a))

- The judge does not have to personally examine the complainant and his witnesses. The prosecutor can perform the same functions. [Soliven v. Makasiar (1988)]

- Bare certification by the fiscal is not enough. It should be supported by a report and necessary documents. [Lim v. Felix

(1991)]

- Examples of Evidence To Be Examined:

Complaint, affidavits and counter- affidavits.

Upon application of a peace officer and after personal examination by the judge of the applicant and the witnesses he may produce.

- Rationale: There is yet no evidence on record upon which judge may determine the existence of PC.

- Conditions:

o The investigating judge must have examined in writing and under oath the

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complainant and his witnesses by searching questions and answers. o He must be satisfied that PC exists; o There is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. [Samulde v. Salvani (1988)]

A warrant of arrest has no expiry date. It is only subject to the requirements found in Rule 113, Sec. 4.

5. Determination of Probable Cause for issuance of warrant of arrest

of Probable Cause for issuance of warrant of arrest 29 Probable cause test Probable cause, in

29

Probable cause test

Probable cause, in connection with the issuance of a warrant of arrest, assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested. [People v. Tan (2009)]

Probable cause demands more than suspicion but it requires less than evidence that would justify conviction. [People v. Gabo (2010)]

6. Distinguish probable cause of fiscal from that of a judge

FISCAL

JUDGE

Executive determination of PC

Judicial determination of PC

Determination of PC to hold a person for trial

Determination of PC to issue a warrant of arrest

W/N there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial

W/N a warrant of arrest should be issued

Rule: The law requires personal determination on the part of the judge. The judge may rely on the report of the investigating prosecutor provided he also evaluates the documentary evidence in support thereof. Hence, the fiscal‘s finding of probable cause is not conclusive upon the judge as to his determination of whether or not there is indeed probable cause. [AAA v. Carbonell (2007)]

The judge is never allowed to follow blindly the prosecutor‘s bare certification as to the existence of probable cause. [Borlongan v. Peña (2010)]

RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Policy

To value the dignity of every human being.

To guarantee full respect for human rights.

REMEDIAL LAW REVIEWER Custodial Investigation shall include the practice of issuing an ―invitation‖ to a

REMEDIAL LAW REVIEWER

Custodial Investigation shall include the practice of issuing an ―invitation‖ to a person who is

30 investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the ―inviting‖ officer for any violation of law.

Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers

The right to be assisted by counsel at all times.

- The counsel must be one who is independent and competent. He shall be allowed to confer at all times with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by the investigating officer with a competent and independent counsel.

- In the absence of a lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with Art. 125, RPC.

The right to remain silent.

The right to be informed of the above rights.

The right to be visited by the members of his immediate family, by his counsel, or by any non- governmental organization, national or international.

The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

Any waiver of the provisions of RPC 135 shall be in writing and signed by the person arrested, detained, or under custodial investigation in the presence of his counsel, otherwise the waiver shall be null and void and no effect.

Penalty Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of six thousand pesos

(P6,000) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000).

NOTE:

responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

Any security officer with custodial

VI. BAIL

1. Nature

2. When a matter of right; exceptions

3. When a matter of discretion

4. Hearing of application for bail in capital offenses

5. Guidelines in fixing amount of bail

6. Bail when not required

7. Increase or Reduction of Bail

8. Forfeiture and Cancellation of bail

9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation

10. Hold Departure Order & Bureau of Immigration Watchlist

1. Nature

Definition

Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified. [Rule 114, Sec. 1]

Note: The bondsman or surety guarantees the appearance of the person seeking bail.

Purpose

1. To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. [ People vs. The Hon. Donato (2011)]

2. To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Art. III, Sec. 14, Const] and

3. To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral (1997)].

Note:

The purpose of bail only accrues when a person is arrested or deprived of his liberty. It is incongruous to grant bail to one who is free. Hence, only those who have either been arrested, detained or otherwise deprived of their liberty can invoke his right under the Constitution. From the moment he is placed under arrest, detention or restraint by officers of the law, he can claim this constitutional right [Feliciano vs Pasicolan (1965)].

It shall not constitute as a waiver of his right to challenge the legality of his arrest or the absence of PI [Rule 114, Sec. 26].

Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal.

Prosecution witnesses may also be required to post

bail to ensure their appearance at the trial of the case where:

1. There is substitution of information [Rule 110, Sec. 4].

2. To compel the appearance of a material witness who may not appear at the trial [Rule 119, Sec.

14].

2. When a matter of right; exceptions

a. Bail as a Matter of Right

When bail is a matter of right [Rule114, Sec.

4]

a. Before or after conviction by the MTC.

b. Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua.

Note:

The person seeking his provisional release under the auspices of bail need not wait for a formal complaint or information to be filed as it is available to all persons where the offense is bailable. [Paderanga vs Court of Appeals (1995)].

However, the person should seeking relief should be under custody of the law. The Court should not even allow a motion for bail to be set for hearing, unless it has acquired jurisdiction over the person of the accused and the case by its filing in court [Guillermo vs Judge Reyes (1995)].

How is custody acquired?

1. By arrest whether with or without a warrant.

REMEDIAL LAW REVIEWER

2. Voluntary submission to the Court‘s jurisdiction [Santiago vs Vasquez (1993)].

b. When bail not available

[ Santiago vs Vasquez (1993) ]. b. When bail not available 31 1. When evidence of

31

1. When evidence of guilt is strong in capital offenses or those punishable by reclusion perpetua or life imprisonment.

Exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong.

Capital Offense: An offense which under the

law existing at the time of commission and of the application for admission to bail is punishable by death [Rule 114, Sec. 6].

is

determined by the penalty prescribed by law and not the one actually imposed.

9346 entitled ”An Act

Prohibiting the Imposition of Death Penalty

in the Philippines” enacted on June 24, 2006 repealing R.A. No. 8177 and R. A. No. 7659 and abolishing the death penalty.

RA 9346 now defines capital offenses as:

Note R.A

The

capital

nature

of

the

offense

Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment

2. Bail in extradition proceedings The right to bail is available only in criminal proceedings. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. However, bail may be applied for and granted as an exception, only upon a clear and convincing evidence that once granted, the applicant will not be flight risk or will not pose danger to the community, and that there exists special humanitarian and compelling circumstances [Gov of USA vs Purganan & Jimenez (2002)].

Note: 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 prosecution, with notice to the accused, of any of the following:

1. Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration of the accused.

2. The accused previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification.

3. Commission of offense while under probation, parole or conditional pardon by the accused.

4. Probability of flight.

5. Undue risk that the accused may commit another crime during pendency of appeal.

c. Right to bail is not available to military personnel accused under general courts martial [Comendador v. de Villa (1991)].

32 REMEDIAL LAW REVIEWER d. After a judgment of conviction has become final If he

32

REMEDIAL LAW REVIEWER

d. After a judgment of conviction has become final

If he applied for probation before finality, he may be allowed temporary liberty under his bail [Rule 114, Sec. 24].

e. After

the

accused

has

commenced to

serve

his

sentence [Rule 114, Sec. 24]

3. When a matter of discretion [Rule 114, Sec. 5]

1. Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment.

2. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.

It may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court.

If the RTC decision changed nature of the offense from non-bailable to bailable, the application for bail can be resolved only by the appellate court.

Note:

In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong [Rule 114, Sec. 8]. The prosecution must be given ample opportunity to show that the evidence of guilt is indeed strong. While the proceeding is

conduced as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and speedy, lest its purpose be rendered nugatory [People vs Singh (2001)].

If bail is granted, provisional liberty continues under the same bail subject to the consent of the bondsman [Rule 114, Sec. 5].

If bail is denied by the RTC, the accused- appellant may challenge it by filing an application (and not a special civil action or a special proceeding) in the appellate court after it has acquired jurisdiction over the case. It shall be treated as an incident in the appeal.

In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation. [Harvey v. Defensor-Santiago (1990)].

4. Hearing of application for bail in capital offenses

NOTE: RA 9346, Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment

Conviction

This refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the

conviction is reversed by the appellate court. [Section 13, Article III, Const.]

Prosecution has burden of proof

At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong.

EVIDENCE OF GUILT in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances.

Regarding

Minors

Charged

with

a

Capital

Offense

If the person charged with a capital offense is admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee.

This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.

Duty of judge to conduct hearing

Where the prosecution agrees with the accused‘s application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should make a finding that the evidence against the accused is strong [Gacal v. Judge Infante (2011)].

5. Guidelines in fixing amount of bail [Rule 114, Sec. 9]

The judge who shall issue the warrant or grant the application shall fix a reasonable amount of bail

the

following factors:

1. Financial ability of the accused

2. Nature and circumstances of the offense

3. Penalty for the offense charged

4. Character and reputation of the accused

5. Age and health of the accused

6. Probability of the accused appearing at the trial

7. Forfeiture of other bail

8. Fact that accused was a fugitive from justice when arrested

9. Forfeiture of other bail

considering

primarily,

but

not

limited

to,

10. Pendency of other cases where the accused is on bail.

Note: DOJ Department Circular No. 89 (2000 Bail Bond Guide) provides standards and criteria for prosecutor‘s recommendation of amount of bail to be granted, if possible, and the rules for the computation of bail.

6. Bail when not required [Sec. 16, Rule 114]

When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof or the proceedings on appeal.

If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment.

Note: No bail shall be required in prosecution of

offenses covered by the Rule on Summary Procedure, EXCEPT:

1. When a warrant of arrest was issued for failure of the accused to appear when so required

2. When the accused is

o

A Recidivist

o

A Fugitive from justice

o

Charged with physical injuries

o

Has no known residence [RSP, Sec 10, 12]

7. Increase or Reduction of Bail

After the accused is admitted to bail and for good cause, the court may increase or decrease the amount.

INCREASED bail: Accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time. [Rule 114, Sec. 20]

REDUCED bail: Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. [Rule 114, Sec. 16]

8. Forfeiture and Cancellation of bail

Forfeiture of bail [Rule 114, Sec. 21]

If the accused failed to appear in person as required, bondsmen are given 30 days within which to:

1. Produce the body of the principal or give reason for the non-production. Bondsmen may:

Arrest the accused;

Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking.

2. Explain why the accused failed to appear.

If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail.

Bondsmen‘s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted.

Cancellation of bail [Rule 114, Sec. 22]

1. Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled

REMEDIAL LAW REVIEWER

upon a) surrender of the accused OR b) proof of his death.

2. Upon acquittal of the accused

3. Upon dismissal of the case

4. Upon execution of judgment of conviction.

of the case 4. Upon execution of judgment of conviction. 33 9. Application not a bar

33

9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation

Bail is no longer a waiver of these objections [Rule 114, Sec. 26; Leviste v. Alameda (2011)].

Provided that the proper objections are timely raised (i.e., before accused enters a plea), an

application or an admission to bail shall NOT bar the accused from challenging or questioning the:

1. Validity of his arrest.

2. Legality of the arrest warrant.

3. Regularity of preliminary investigation

4. Absence of preliminary investigation

The court shall resolve the objections as early as practicable but not later than the start of the trial of the case.

10. Hold Departure Order & Bureau of Immigration Watchlist

Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority [Rule 114, Sec. 23].

The accused may be prohibited from leaving the country during the pendency of his case [PP v. Uy Tuising (1935); Manotoc v. CA (1986)]. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be re-arrested without warrant [Rule 114, Sec. 23].

Hold-Departure/ Watchlist/ Allow Departure Orders

A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circular No. 39-97 (June 19,

1997)].

SC Circular 39-97 deals with criminal cases pending in the RTC. This created a void, as to those cases pending in the MTC as well as those under preliminary investigation. [Whereas clause of DOJ Circular No. 41]

 

HOLD

WATCHLIST

DEPARTURE

ORDER

ORDER

When

it

Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of first-level courts (MeTC, MTC,

Against the

may issue

accused,

irrespective of

nationality, in

criminal cases

pending before

the RTC

Against the

34 REMEDIAL LAW REVIEWER   HOLD WATCHLIST   DEPARTURE ORDER   ORDER     MCTC)

34

REMEDIAL LAW REVIEWER

 

HOLD

WATCHLIST

 

DEPARTURE

ORDER

 

ORDER