PART 5 TRANQUIL:

S: Let us start with Trial – Trial is Rule 119 – Aside from Rule 114 this is the longest. What are the
highlights that I would like you to take note? The important points in Rule 119 are as follows:

1) The period for the court to conclude a trial that is found in Sec. 2. – That the court should
conclude trial within a period of 180 days.
2) Exclusions – what is the importance of exclusions – when you talk of exclusions – the time
required by the law for you to complete a case excludes that portion of delay. The portions
of delay are not included. For that reason the delay could 3 years, 4 years or 5 years. But
if any of those enumerated in Sec 3 are present, the burden is upon whom? The
prosecution to prove that the exclusions are present. Ex. You have an unavailable witness
– when do you say that the witness is unavailable? A witness is unavailable when his
whereabouts are known but he is not available for the day’s hearing. That is an unavailable
witness. And when do you say that the witness is absent? His whereabouts are not known
that’s why you have to look for him. Other instances of exclusions – delays by reason of
extra ordinary remedies, delays by reason of pre-trial for as long as the period will not
exceed 30 days, delay by reason of unfitness or inability of the witness to stand trial like
he is of an unsound mind. All of this are what you call exclusions.

S: Within how many days should trial commence? Trial should commence within a period of 30
days from receipt of the order of pre-trial.

S: Order of trial or presentation of evidence – what is the order of trial in criminal cases? The
prosecution presents evidence first then the accused presents evidence. If there is a need for
rebuttal the court will allow subject to its discretion. Rebuttal is mandatory. True or False?
Presentation of rebuttal evidence is mandatory. True or False? FALSE. It is not mandatory.
Presentation of rebuttal evidence is left to the discretion of the court. In the ordinary course of
things in a trial the prosecution presents evidence then the accused presents evidence. When will
the court subject to its reasonable discretion allow presentation of rebuttal evidence? If there are
new matters presented by the accused in his presentation of evidence like alibi, like self defense.
The court will or may allow presentation of rebuttal evidence.

S: if you are asked to define what is rebuttal evidence you will have to tell them that it is left to
the discretion of the court and rebuttal evidence is presented if allowed by the court to meet new
matters presented in the presentation of the defense’ evidence. The same definition applies for
civil cases. If new matters are presented in the presentation of defendant’s evidence like payment
waiver, prescription. This could be met by rebuttal evidence. Once rebuttal evidence presentation
is completed, what do you have? The court may require the parties to submit memorandum or
memoranda. Thereafter the case will be submitted for resolution.

S: Can the order of presentation be reversed? YES. If the defendant presents self-defense or an
exculpatory defense. But it is left to the discretion of the court.

S: Can the court grant continuance in simple words can the court reset the case? Is there a
partner provision in civil procedure? Yes.in Rule 30. In civil cases hearings could be cancelled for 2
important reasons. 1) Absence or unavailability of material and relevant evidence meaning 1st
requisite – evidence should be material 2) earnest efforts have been made to look for the evidence
2) the other reason for a continuance or a resetting in a civil case – sickness or illness of the party
or counsel and the requisites are that the nature of the illness is that which would render the
absence of the party or the lawyer excusable and 2nd requisite – the presence of the lawyer or
party is indispensable. Ganun din ba yung rules sa criminal? Although you could use “Sir, may
sakit ho yung kliyente ko or yung abogado” – you could use that but in criminal cases the factors
to be considered by the court to allow continuance are 2:
 1) Whether or not to grant a continuance would lead to a miscarriage of justice. So papasok
din yung maysakit, walang testigo, walang ebidensya but it is more generic.
2) The issues presented in the civil case is so novel, unusual and complex that it would
require more time for the parties and their counsel to prepare. Let us say you were not
able to prepare because you were out on a party last night. Is that a reason for
continuance? Lack of preparation? NO. The unavailability of your witness. Failure to obtain
availability of your witness, is that a ground for continuance? NO. Congestion of court
dockets? Is that a ground? NO.

S: Let me now present to you the periods so that you could visualize it. The rule is from the time
of arrest or the time the court acquires jurisdiction over the person of the accused, the 30-day
period will commence to run. Is that correct? YES. The next step should be arraignment. And
within that 30 days pre0trial should also take place.

S: Based on the provision of Sec. of Rule 119 from the time that the accused is arraigned until
before trial you should have completed or consumed only how many days? 80 days not 120 but 80
days. Because on the 3rd year from the effectivity of the rules on criminal procedure arraignment
or trial should only be 80 days. So if you will compute it give or take 30 + 80 is only 110. So that’s
barely 4 months. The period for trial should be 180 days and that is 6 months. So in less than a
year the trial should have been what? The case should have been completed and terminated in
less than 1 year. If you’re given a question in the bar exams where a case had been pending for
more than a year, for 2 years or for 3 years, you have to be very careful and you have to ask
yourself 1) was it vexatious, capricious, oppressive? 2) are there exclusions? Because if there are
exclusions the delays are acceptable or excluded.

S: I was not able to ask you this question yesterday after I mentioned that there are 2 kinds of
speedy trial 1) speedy disposition of case under the constitution 2) speedy trial under the rules in
criminal procedure. Are these mutually exclusive meaning if you avail of one you can no longer
avail of the other? NO. They are not mutually exclusive such that if it is denied in one you could
still avail of the other.

S: Let us proceed to 1 more item before we proceed to conditional examination of witnesses. A

lawyer can be sanctioned if he sets for hearing a date knowing that the witness is unavailable. A
lawyer will be sanctioned if he files a continuance knowing that the ground is frivolous and
unmeritorious. A lawyer can be sanctioned if he misleads the court. And what are the sanctions for
you doing this? The sanctions are as follows:

1) If you are a private counsel you can be imposed a fine not exceeding 20k PHP. If you are a
counsel de officio or a public attorney you can be imposed a fine not exceeding 5k PHP. In
both cases you can be prevented by the court from appearing in his sala within a period
not exceeding 30days.

S: Let me now touch on conditional examination of witnesses. Can you use modes of discovery in
special proceedings? YES. Why? Because the provisions of civil procedure will apply suppletorily to
the provisions of special proceedings. And there is a general provision in Rule 72 Sec. 2. The rules
in civil procedure will have suppletory application.

S: Can you apply modes of discovery in civil cases to criminal cases? YES. But take note of the
wording “modes of discovery” – it covers the entire set of modes of discovery. But in this case of
Manguerra vs Risos, a 2008 case, there was a question on whether you can apply Rule 23. What is
Rule 23? Rule 23 is depositions pending action.

S: Rule 24 – there are 2 kinds under rule 24 –

- deposition pending appeal and
- deposition before action
S: Rule 24 has superseded Rule 134 – the rule on perpetuation of testimony is in Rule 24.

S: Rule 25 – interrogatories to parties – the interrogatories discussed in that provision is directed

to the party. If you are not a party and your deposition is to be taken, Rule 23 will apply.

S: Rule 26 – request for admission

S: Rule 27 – production or inspection of books, papers and documents. Ex. The order for mode of
discovery can require entry into premises for purposes of measuring, surveying and photographing
the premises. True or False? TRUE. Rule 27 is not limited to securing or examining books, papers
and documents. It includes entry and exit to premises. This is not the same as ocular inspection.
Ocular inspection is the courts exercise of its perception – object evidence.

S: Rule 28 – physical, mental examination. Ex. The deponent refuses to answer a deposition
question or to participate in deposition. Can he be arrested? YES. Can he be placed in contempt?
YES. Let us say the person who refuses to be subjected to mode of discovery is of an unsound
mind? That is the exception. If you would like to avail of Rule 28 – physical or mental examination
and the deponent refuses, you cannot have him arrested that is an exception.

S: Manguerra vs Risos – it is true that Sec. 3 Rule 1 of the rules of court provides that the rules of
civil procedure apply to all actions civil or criminal and special proceedings. In effect it says the
rules of civil procedure shall have suppletory application to criminal cases. However it is likewise
true that the criminal proceedings are primarily governed by the revise rules of criminal procedure
considering that Rule 119 adequately and squarely covers the situation in the instant case, we find
no cogent reason to apply a Rule 23 suppletorily or otherwise.

S: What is rule 119 Sec 12 and 13? That is 12, 13 and 15. That is what you call conditional
examination of witnesses for the accused and conditional examination of witness for the
prosecution. Let me continue with the statement of the court – the conditional examination of a
prosecution witness for the purpose of taking his deposition should be made before the court or
atleast before the judge where the case is pending such is the clear mandate of Sec. 15 Rule 119.
We find no necessity to depart from or relax from this rule. If you would note the court has treated
conditional examination as some sort of deposition taking. They have treated it in some sort of a
deposition taking.

S: The giving of testimony during the trial is the general rule in a criminal case. The conditional
examination of a witness outside of trial is only an exception and as such calls for a strict
construction of the rules. You usually use conditional examination of witnesses when the witness is
unavailable.

S: Let me now walk you through the provision – you need to distinguish conditional examination of
the witnesses for the accused and conditional examination of the witnesses for the prosecution.

S: What are the grounds for conditional examination of witness for the accused?:

1) The witness is sick or infirmed or unavailable

2) The witness resides more than 100km from the place where the hearing is conducted

S: These are similar to the grounds enumerated in Rule 23 Sec 4. Where will the conditional
examination take place? If you get to be confused tandaan nyo ang batas always favours the
accused. Therefore, you could take conditional examination before 1) any judge in the Philippines
2) before any member of the member in good standing 3) if order by a superior court directing an
inferior court
S: Now let’s look at prosecution’s conditional examination the witness for the prosecution.

1) Sick or infirmed or unavailable

2) That the witness for the prosecution is about to depart with no definite day of returning

S: Before whom should deposition be taken and that was answered by the case of Risos. It says
quoting the provision of the law “The purpose of taking his deposition should be made before the
court or atleast before the judge where the case is pending”. This is not something declared by
juris prudence this is provided for by law. Only reiterated by juris prudence.

S: Now let me proceed to another item, RTC vs. Yu of Tagaytay – and I distinguished discharged
and I gave the requisites of a discharge as a state witness.

1) There is no direct evidence

2) There is absolute necessity for the evidence
3) It could corroborated in its material points
4) He is not the most guilty
5) He has not been convicted of a crime involving moral turpitude

S: And we mention that if there is a successful discharge it amounts to an acquittal. And there will
be an affidavit submitted and the evidence presented will be reproduced during the trial.

S: Monge vs. People – March 7, 2008 – when can the testimony of a discharge witness be
disregarded? The only instance is when he deliberately fails to testify truthfully in court in
accordance to his commitment. If he misleads the court, if he makes a truthful untruthful
testimony the court can disregard his discharge as a state witness and there will be no acquittal.

S: Demurrer to evidence – motion to dismiss for insufficiency of evidence – that is demurrer to

evidence. Distinguish demurrer in civil and criminal. When can you file a demurrer to evidence in a
civil case? After the plaintiff completes the presentation of his evidence. How about criminal? When
the prosecution has rested his case.

S: Do you need leave of court for a demurrer to evidence in a civil case? NO. You just file the
demurrer you don’t need leave of court. Leave of court is required to be able to file demurrer to
evidence in a criminal case, TRUE or FALSE? FALSE. You don’t need leave of court. You file,
however if you file there are consequences. You’re not prevented for filing. If you obtain leave of
court and you were not given leave but you filed demurrer nevertheless, what is the consequence
if your demurrer is denied? The court will already render judgement. What if you did not obtain
leave of court, you simply filed demurrer to evidence in a criminal case and it’s denied? Will the
accused be allowed to present evidence? NO. The court will already render judgement. If you
obtain leave of court, the court grants leave for you to file demurrer to evidence and you in fact
filed demurrer to evidence and it’s denied, can you still present evidence? YES.

S: Can you file a petition for certiorari in cases your demurrer to evidence in a civil case is denied?
If it is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction the denial
could be subject of a petition for certiorari for as long as there was a motion for reconsideration.

S: Do we follow the same rule in a criminal case? If your demurrer to evidence is denied in a
criminal case, can you question the denial through a petition for certiorari under Rule 65? NO. Last
line of Rule 119 Sec 23. You cannot file an appeal or even a petition for certiorari of a denial a
demurrer to evidence in a criminal case. You will have to wait until the completion or the
conclusion of the main case.
S: What is the effect of a grant of a demurrer to evidence in a civil case? The case is dismissed. Is
it an adjudication on the merits? Meaning is it with prejudice? YES. It is an adjudication on the
merits. In a criminal case is it an acquittal? YES. Therefore cannot be subject of an appeal.

S: Salazar vs. People – court says that in criminal cases, demurrer to evidence partakes of the
nature of a motion to dismiss the case for failure of the prosecution to prove the guilt beyond
reasonable doubt. In a case where the accused files a demurrer to evidence without leave of court
according to the Salazar case, he waives his right to present evidence and submit the case for
decision on the basis of the evidence of the prosecution.

- Demurrer to evidence was granted and the accused was acquitted

S: Can the court award civil liability against the accused? NO. That will be in violation of his right
to due process. Yes he was acquitted but you cannot award civil liability unless he was heard by
the court. The accused has the right to adduce evidence on the civil aspect of the case. Unless the
court declares that the act or omission from which the civil liability ill arise does not exist. What
the trial court should do is to issue an order a partial judgement granting the demurrer and
acquitting the accused and set the case for continuation of trial for petitioner to adduce evidence in
the civil case.

S: Judgement and the remedies for an adverse judgement.

S: Can you avail of petition for annulment of judgement in a criminal case? NO. It is only available
for a civil case – Rule 47.

S: Rule 120 – Judgement – is that which finally disposes of the case and by law it is required that
the judge himself who pens the decision. What if there is an instance wherein the judge who heard
the case is not the judge who pens the decision? Will the judgement be rendered invalid?

S: Resayo vs. People – answers this question – the judge who pen the decision only took over
from a colleague who had early presided over the trial. Was there a valid judgement? YES.

S: People vs. Gallarde – 2007 case – the judge who pen the decision was not the judge who heard
the testimonies of the witnesses is not enough reason to overturn the findings of fact of the trial
court or even their admissibility.

S: Sec 3 refers to when an information contains more than 1 offense, can a court render a valid
judgement? YES. For as long as the accused refused or failed to object.

S: Promulgation – for purposes if a criminal case in the trial court – promulgation is that the
accused has to be present in court for the reading of the judgement and it is the duty of the court
to inform the bondsman if he is out on bail and the accused of the date of the promulgation.

S: What if the accused had escaped or jumped bail, should he be entitled to a notice of
promulgation? YES. It will be sent to his last known address.

S: Should the accused be present in the promulgation? Can your lawyer take your place? Can a
bother take your place? NO. That is the general rule. Exception is for light offenses, the presence
of the accused is not required.

S: What is the effect if the accused is absent on the date of the promulgation? Can there be
promulgation? YES, the judgement will be recorded, Can you still appeal if you fail to appear and
avail of the remedies? He forfeits all of his remedies under the law if he is absent during
promulgation.
S: What are the contents of a judgement?

1) Offense you have committed

2) Penalty to be imposed
3) Participation whether principal, accessory or accomplice
4) Presence of aggravating or mitigating circumstances
5) If it is an acquittal there will be statement that there is a complete non-liability or only
doubt that led to the acquittal
6) But if there is statement that the fact from which a civil liability will arise does not exist

S: Can a judgement be modified? YES. Before it becomes final and executory.

S: When there is a judgement you have available remedies.

- If you receive an adverse judgement your remedy is to file an MR. You can also file a
motion for new trial or you could also file an appeal.

S: Entry of judgement – a recording of a judgement that has attained finality in the books of entry
of judgement. The reglementary period has lapsed. Do we follow the same rule in the trial court
and the appellate court? YES.

S: Promulgation of judgement in a criminal case is different from promulgation in an appellate

court. Why? In the CA and SC you will not be required to appear. You will not receive a notice of
promulgation and you will appear. In the appellate court promulgation means that if a decision is
rendered by a division it will be forwarded to the division clerk of court. Division clerk of court in
CA will then issue notice of promulgation.

S: Grounds for an MR in criminal case:

1) Errors of fact or law which requires no further proceedings. (contrary to law)

2) Not supported by evidence
3) The amount of damages awarded is excessive

S: Grounds for motion of new trial in criminal case:

1) Irregularities in the proceedings that will prejudice the rights of the accused.
2) Newly discovered evidence

S: What are the requisites of newly discovered evidence?

1) That the evidence is material

2) It was not available during trial despite the exercise of diligence
3) To consider the newly discovered evidence would change the outcome of the case

S: What is the period to file an MR? – 15 days. If you file an MR and it was denied, how many days
do you have to file an appeal? 2005 case of Napes – Rule 40 and 41 will apply. Will it apply to
criminal cases? NO.

S: Can you file for motion of new trail in the CA? YES. On grounds of newly discovered evidence.
That applies to both civil and criminal motion for new trial in the CA. Rule 53. In criminal cases –
Rule 124 Sec. 14. How about in the SC? NO. No provision and if you file it is subject to the courts
discretion after securing leave of court.

S: When can you file for motion of new trial in a criminal case before CA? You can file it at any
time from the time appeal is perfected until CA loses jurisdiction.
S: Can you extend the period to file an MR? NO. Case of Habaluyas Enterprises. You cannot file an
extension.

S: Lubrica vs. People, 2007 case – citing Rule 122 Sec. 11 – appeal only applicable in so far as the
judgement is favourable and applicable to the accused. However the problem is the decision of SB
was appealed on petition for review on certiorari. What was filed by the accused is a notice of
appeal and was filed out of time. The judgement became final. The other accused whose judge
whose appeals were not dismissed obtained a favourable judgement. Can it be taken in your
favour? NO.

S: Appeals – ordinary appeal – appeal is just 1 step – Rule 122 Sec 3 – if it originates in the MTC
where can you go? RTC on a notice to appeal. Notice to appeal is filed in MTC in the court that
rendered judgement. Penalty does not exceed 6 years.