Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

Rule 121

NEW TRIAL OR RECONSIDERATION

SECTION 1. New trial or reconsideration. At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or
reconsideration. (1a)

NEW TRIAL
Q: What is the effect of the filing of a motion for new trial on the double jeopardy rule?
A: An accused who files a motion for new trial WAIVES the protection of double
jeopardy, so that if the motion is granted, he can be tried and convicted of the graver
offense charged in the complaint or information. (Trono vs. U.S. 11 Phil. 726; Santos vs.
People, 64 Phil. 10)

Actually, it is like an appeal eh when an accused appeals the judgment against

him, he is waiving his right against double jeopardy. And it has happened several times in
the past where the accused was charged with murder and convicted of homicide. He was
not contented. When he filed an appeal, he was convicted of murder. Sometimes, appeal
can give you a worse situation.
It happened here in Davao where a lawyer was charged as a principal for falsification of
documents that he notarized. The judge convicted him of falsification but merely as an
accomplice. Binabaan ba! But I think the intention of the judge was to allow the lawyer to
ask for probation. Pero hindi nakuntento ang lawyer. He appealed to the CA. Naloko na!
Nasamot gyud! The CA convicted him as principal. And what was worse, the CA said that
since the accused was a lawyer, let a copy of the decision be brought to the SC for
disbarment proceedings. Na disbarred pa! Thats what happens for appealing!
Alright, and take note, at any time before a judgment of conviction become final. Now
this is one provision which you have to compare with Rule 120, Section 7 on Modification
of Judgment.
Q: Compare and Distinguish New Trial from Modification of Judgment.
A: Similarity: Both may be resorted to before the judgment of conviction becomes final.
Distinctions:
1. In new trial, by the very nature of its purpose and what is to be done, both
parties intervene; whereas, in modification of judgment, the court moto propio
may act provided the consent of the accused is required;
2. In new trial, if the motion is granted, the original judgment is vacated and a new
judgement shall be rendered; whereas, in modification of judgment, the integrity
of the decision already rendered is unaffected, except for the proposed changes,
although the entire decision may have to be rewritten. (People vs. Tamayo, 86
Phil. 209)
Now, there is a new section in the New Rules which created confusion Rule 119
Section 24.
SEC. 24. Reopening. At any time before finality of the judgment of
conviction, the judge may, motu proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a miscarriage of justice. The proceedings
shall be terminated within thirty (30) days from the order granting it. (n)

When do you make the motion for reopening? At anytime before the judgment of
conviction becomes final? Pareho di ba! The language of the 3 provisions are identical,
motion for: (1) reopening of trial; (2) modification of judgment of conviction; and (3) new
trial or reconsideration

Lakas Atenista

187

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

That is a new provision. So that when I looked at the new Rules, talagang nalito ako.
Ano ba itong reopening of trial. How is this different from the others?
That is why, during the seminar in Men Seng last November 30 on the New Rules, I
brought this out, eh. Would somebody be kind enough to tell the difference between the
three? Everything kasi is done before the judgment of conviction becomes final! Of course,
nobody stood up there to tell me the difference.
Kaya nalito ako. Former Solicitor General Galvez, when he was here, told me that
typographical error man yung Rule 119 ba, hindi man ganyan ang aming
recommendation. Why nga naman will you reopen after judgment of conviction?
Reopenning is done before judgment is rendered. Ito naman, paglabas! Naloko na! It
created a lot of confusion. So if we believe Galvez, the confusion is caused by a
typographical error, which according to him is not the language of the Rules submitted to
the SC and somebody tinkered with that provision.
There is also a rule on New Trial in civil cases under Rule 37, you know the grounds:
FAME, NDE, etc. And there are some rules there to follow such as the motion for new trial
must be supported by affidavits of merits, or the motion for reconsideration must point out
specifically the error committed by the trial court, and the portion of the decision not
supported by the evidence. Otherwise, if you do not comply with these requisites, what is
the name of your motion? PRO FORMA. Pro Forma, meaning the filing of your motion for
new trial or reconsideration will NOT interrupt the period to appeal. That is the effect.
This is now the question:
Q: Is there such a thing as pro forma motion for new trial or reconsideration in criminal
cases? Where your motion is obviously dilatory? Your grounds are too general, too vague,
too ambiguous? No affidavit of merits? And therefore if it is denied, there is no more right
to appeal by the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil cases DOES NOT apply to
criminal cases. In criminal cases, a general statement of the grounds for new trial is
sufficient. (People vs. Colmenares, 57 O.G. 3714) Even if you do not go into details
because you expect your motion to be denied, but the filing will still interrupt the period. It
is too harsh if the remedy of appeal will be removed from the accused simply because of a
motion for new trial which is not prepared properly. So the pro forma rule will not apply in
criminal cases. The filing of a motion for new trial or reconsideration will always interrupt
the running of the period to appeal.
Q: Alright, what are the grounds for new trial?
A: Section 2:
SEC. 2. Grounds for a new trial. The court shall grant a new trial on any
of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial
rights of the accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the trial
and which if introduced and admitted would probably change the judgment.

Q: What are the grounds for a new trial?

A: Under Section, the following are the grounds:
1. Errors of law;
Example: In one case, during the trial, the trial court excluded a defense
witness from testifying based on an erroneous interpretation of the rules of
evidence. The judge disqualified him. But it turned out that the witness was not
disqualified. That is an error of law. For all you know, if his testimony will be given,

Lakas Atenista

188

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

the accused will be acquitted. Therefore, a new trial should be granted where he
should be allowed to testify. (People vs. Estefa, 86 Phil. 104)
2. irregularities prejudicial to the substantial rights of the accused;
Example: In one case, the trial court compelled the accused, over his objection,
to submit to trial without the assistance of his counsel. (People vs. Enriquez, L-4934,
November 28, 1951) If the accused is convicted because of such irregularity, this is
a valid ground for new trial. Besides, why should the judge punish the accused? He
should punish the lawyer.
3. Newly discovered evidence; this is similar to civil cases, newly discovered evidence.
The requisites are the same:
a.) discovered after trial;
b.) it could not have been discovered before trial even with the use of
reasonable diligence
c.) and if introduced and admitted would probably change the decision
Q: May a new trial be granted on the ground of loss of stenographic notes?
A: NO. The loss of stenographic notes after trial is NOT such an irregularity as would
justify a new trial. The remedy of the accused is to have the missing evidence
reconstituted. (People vs. Castelo, L-10774, February 16, 1961)
There is a case, the trial is concluded, and the accused is convicted. Within the period
of 15 days from promulgation, here comes the accused filing a motion for new trial on the
ground that the prosecution witness has executed an affidavit recanting his testimony. The
prosecution witness, in effect, is saying that what he said during the trial is not true.
Q: May a new trial be granted on the ground of loss of recantation of prosecution
witnesses?
A: As a GENERAL RULE, recantation is NOT a ground for new trial, otherwise there
would never be an end to criminal litigation. The Court has looked with disfavor upon
retraction of testimonies previously given in court. Thus, the Court has ruled against the
grant of a new trial on the basis of a retraction by a witness. The rationale for the rule is
obvious: Affidavits of retraction can easily be secured from poor and ignorant witnesses
usually for a monetary consideration. Recanted testimony is exceedingly unreliable. There
is always the probability that it may later be repudiated. So courts are wary or reluctant to
allow a new trial based on retracted testimony. (People vs. Clamor, July 1, 1991; People
vs. Soria, October 4, 1996)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is no evidence sustaining the judgment of
conviction other than the testimony of the recanting witness. (U.S. vs. Dacir, 26 Phil. 503)
When aside from the testimonies of the retracting witness or witnesses there is no other
evidence to support a judgment of conviction, a new trial may be granted. (People vs.
Clamor, July 1, 1991)
GOMEZ vs. IAC
April 9, 1985
HELD: It is conceded that the State has the sovereign right to prosecute
criminal offenses under the full control of the fiscal and that the dismissal of
criminal cases by the execution of an affidavit of desistance by the complainant
is not looked upon with favor. However, it is also true that an affidavit of
desistance may create serious doubts as to the liability of the accused. At the
very least, it calls for a second hard look at the records of the case and the basis
for the judgment of conviction. Jurisprudence on the effect of desistance

Lakas Atenista

189

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

notwithstanding, the affidavit should not be peremptorily dismissed as a useless

scrap of paper.
Sometimes I have seen affidavits of recantation made by the complainant, alam mo
kung anong nakalagay? I have lost interest in continuing the case. Pero tapos na, nakatestify na siya. And on the basis of that, a new trial was granted. Mali man iyan ba. Para
mag-new trial, dapat na sabihin niya, Mali ang mga sinabi ko! If you say that you are not
interested, you are not really repudiating what you said. That is what the SC emphasized
in the 1998 case of
PEOPLE vs. GARCIA
288 SCRA 382 [1998]
HELD: To warrant a new trial, the affidavit of desistance must constitute a
recantation and not a mere withdrawal from the prosecution of the case. The
complainant's affidavit of desistance did not constitute a recantation, because
she did not deny the truth of her complaint but merely sought to be allowed to
withdraw and discontinue the case because she wished to start life anew and
live normally again. She never absolved or exculpated the accused. In other
words, a recantation of a prior statement or testimony must necessarily
renounce the said statement or testimony and withdraw it formally and publicly.
Parang ganito ba: Yung sabi ko noon na ni-rape niya ako, di man na tinood ba,
pumayag man ako ba! Yan, baliktarin mo lahat ang sinabi mo. Hindi yung: I am not
interested, kapoy na, ayoko na. Hindi pwede yan, that is not recantation because you are
not disowning what you said earlier.
Now we will go to one last point.
PROBLEM: Let us assume that Sheriff was convicted purely because of the testimony
of the complainant, Thaddeus. Now, Thaddeus makes an affidavit stating that everything
he said is not true. Meaning he is really recanting binabawi niya lahat ng sinabi niya.
Q: Is this a ground for new trial?
A: Following jurisprudence, YES. It becomes now an exceptional case. There will be a
new trial.
Q: What do you mean new trial?
A: We will now restart the case.
Q: Who will testify?
A: Eh di si Thaddeus! yung complainant, who will be asked: During the trial this is
what you said, what are you saying now? As he answers, Thaddeus must say under oath
that he lied before and this is the truth [amen!]
Q: After that, can the court say that the accused is now acquitted because now
Thaddeus is telling the truth when before Thaddeus was not telling the truth? Is this what
will happen?
A: The SC said NO. The only thing that will happen is that a new trial will be granted.
But this does not mean that the accused shall be acquitted. When we say new trial, this
means that the court should hear the testimony of the complainant again. BUT after
testifying, the court may say, You say you were lying before and you are telling the truth
now, but the court does not believe you because as far as the court is concerned, you
were telling the truth before and you are lying now. Therefore the conviction stands. That
is possible.

Lakas Atenista

190

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

Because some lawyers believe that if a new trial is granted, sigurado na acquitted na
ang accused. NO, the SC never guaranteed that. It will only be a ground for new trial
without a guarantee whether the decision will be reversed or not. But in practice, lutong
Macau lahat iyan. Usapan nalang iyan between the lawyer and the fiscal tapos kasali pa
ang judge. That is what is happening, I know that.
But if you follow the rules, there is no guarantee that if new trial is granted, the
accused will be acquitted. There is no rule that says that when a witness testifies twice,
the court will always believe the latest testimony. And the SC has emphasized that in
many cases, one of them is the case of
PEOPLE vs. CLAMOR
July 01, 1991
HELD: Where a witness testifies for the prosecution and retracts his or her
testimony and subsequently testifies for the defense, the test in determining
which testimony to believe is one of comparison coupled with the application of
the general rules in evidence. So you apply what you know about evidence,
about credibility, appreciation of evidence.
The rule should be that a testimony solemnly given in court should not be
lightly set aside and that before this can be done, both the previous testimony
and the subsequent one be carefully compared, the circumstances under which
each given carefully scrutinized, the reasons or motives for the change carefully
scrutinized in other words, all the expedients devised by man to determine
the credibility of witnesses should be utilized to determine which of the
contradictory testimonies represents the truth.
Of course, if the court believes that the second testimony is accurate and the witness
lied during the first, then acquit! But if the court believes that the witness was telling the
truth in the first testimony, the conviction stands.
So take note of that because these are misunderstood concepts eh.

RECONSIDERATION
Now, ano naman ang Reconsideration?

The same as in civil cases.

SEC. 3. Ground for reconsideration. The court shall grant reconsideration

on the ground of errors of law or fact in the judgment, which requires no
further proceedings. (3a)
SEC. 4. Form of motion and notice to the prosecutor. The motion for new
trial or reconsideration shall be in writing and shall state the grounds on
which it is based. If based on a newly-discovered evidence, the motion must be
supported by affidavits of witnesses by whom such evidence is expected to be
given or by duly authenticated copies of documents which are proposed to be
introduced in evidence. Notice of the motion for new trial or reconsideration
shall be given to the prosecutor. (4a)
SEC. 5. Hearing on motion. Where a motion for new trial calls for
resolution of any question of fact, the court may hear evidence thereon by
affidavits or otherwise. (5a)

Q: Is there an instance when a MOTION for reconsideration or new trial is PROHIBITED?

A: YES when the case is tried in the MTC under the Summary Rules. Bawal man iyan
ba! Thats a prohibited motion. Now you just take note of that. Under Section 19[c] of the
Revised Summary Rules, a motion for reconsideration or new trial of a final judgment is
prohibited.

Lakas Atenista

191

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

Q: Of course, what are the effects of granting the motion for new trial or
reconsideration.
A: You have Section 6:
SEC. 6. Effects of granting a new trial or reconsideration. The effects of
granting a new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or
irregularities committed during the trial, all the proceedings and evidence
affected thereby shall be set aside and taken anew. The court may, in the
interest of justice, allow the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence,
the evidence already adduced shall stand and the newly-discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced
shall be taken and considered together with the evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the
original judgment shall be set aside or vacated and a new judgment rendered
accordingly. (6a)

Q: Will there be really a trial de novo or will there just be a reopening of the trial to
introduce the newly discovered evidence?
A: Under paragraph [c] which we already discussed: In all cases, when the court
grants new trial or reconsideration, the original judgment shall be set aside or vacated and
a new judgment rendered accordingly.
Q: Suppose after new trial, the court still finds the accused guilty?
A: There will be another judgment but definitely the original judgment is already set
aside. When the court grants the motion, wala na iyon! Regardless of whether the new
judgment will be the same or not.
So with that, we are now through with Rule 121.

editor-in-chief: mortmort editors: jayceebelle balite j-j torres michael peloton maying dadula jessamyn
agustin lyle santos paul ryan ongkingco dynn gutierrez maya quitain riezl locsin patrick tabar
maritess gonzales maricel culpable kenneth leyva jenny namoc ferdinand vido melissa suarez
rayda sullano rucel cayetano rod quiachon hannah examen myra montecalvo genie salvaa grace
salesa leo gillesania gemma betonio jenny aquiatan michael pito karen de leon elma tormon
judee uy pao angeles jet pascua contributing editors: bathsheba baldoza marlo masangkay
_-----_ _
/
/
\/ \
/ / / / /| \\
| // / / /\\\|
\ / /\////^ \/
(| __
__ |)
|
|
|
'--'
|
\
-/
\ ____ /

SPACE-FILLER #8:
A friend and I were shopping for dresses for her three-year-old
girls to wear to a wedding. In the shop, another girl staring intently at
Sarah and Becky asked, Are those girls twins?
Actually theyre triplets, I explained. They have a brother at
home.
Wow, she replied. They sure look like twins to me.

Lakas Atenista

192

Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 121
New Trial Or
Reconsideration

Source: Readers Digest, November 2000

Lakas Atenista

193