CRIMINAL PROCEDURE

Covers Rule 110-127

J. Sabarre:
BP 129 the judiciary re-organization act is still a good law although amended
by R.A. 7691.
Rule 110 Prosecution of Offenses
Q: Where will you file a criminal case?
A: Sec. 1, Rule 110
J. Sabarre:
If you noticed, there is one provision which says:
>>it must be filed with the Office of the Prosecutor.
>>Another provision says it can be filed directly with the court.
In offenses where P.I. is required you file the complaint with the proper
public officer for the purpose of conducting the requisite preliminary
investigation and in our country, it is before the Office of the Prosecution. It
can be before the Office of the City Prosecution or before the Office of the
Provincial Prosecution.
For all other offenses, by filing the complaint or information directly with
the Municipal Trial Court and Municipal Circuit Trial Court or you have the
option of filing the complaint with the Office of the Prosecution. Although, in
Manila and other Chartered Cities the complaint shall be filed with the Office
of the Prosecutor, unless otherwise provided in their charters.
Q: What are the cases where the rules require that P.I. must be conducted first
before the case is filed in court?
A: Sec. 1, Rule 112.
>>If the penalty of the offense committed is punished by at least 4 years, 2
months and 1 day without regard to the fine.
Here, you have to file the compliant before the Office of the City or
Provincial Prosecution for purposes of P.I.
But if the penalty is not 4 years, 2 months and 1 day or lower than 4
years, 2 months and 1 day the complaint can be directly filed with the MTC,
MCTC, MTCC, or you have the option of filing the same with the Office of the
Prosecution.

>>always consider the penalty of the offense committed. If the penalty is at

least 4 years, 2 months and 1 day. Automatically, file that with the Office of
either the City or Provincial Prosecutor. Because these are cases where P.I. is
required and P.I. is only conducted by the respective prosecution offices. But if
the penalty is lower than 4 years, 2 months and 1 day, you can directly file with
the MTC, MCTC, or MTCC in cities or if you want you can also file it with the
office of the prosecutor.
Except in Manila, file it with the office of the city prosecutor. Manila and
other chartered cities, you cannot directly file it with the MTCC, the law
requires it that you file it with the Office of the Prosecution unless otherwise
provided.
The filing of the criminal action before the office of the prosecution shall
interrupt the running of the prescriptive period. Contrary to the case of People
vs. Olarte (?) when it is only interrupted when the complaint is filed in court,
no longer.
Very clear in Sec. 1 of Rule 110 that once you file the criminal complaint
before the office of the prosecution, the prescriptive period is already
interrupted. Remember, crim I, application of the principle of double jeopardy
as well as prescription as a ground for a motion to quash or to dismiss the
case.
Once filed before the office of the prosecutor, the prescriptive period for
the offense committed is already interrupted.
Memorize: Rule 110, Sec. 1 (2)

(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the
office of the prosecutor. In Manila and other chartered cities, the complaint shall be
filed with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running period of
prescription of the offense charged unless otherwise provided in special laws. (1a)

det. the penalty of the offense committed. If it is at least 4 years, 2 months

and 1 day there has to be a P.I. so automatically you file the complaint before
the prosecutions office because they are the only ones who can conduct P.I.
You cannot directly file in the MTC. But if the penalty is lower than 4 years, 2
months and 1 day the law allows you to file directly the complaint with the
MTC, etc. or with the office of the Prosecutor. Except: in Manila and other
chartered cities, irrespective of the penalty file that with the prosecutors office
unless their charter provides otherwise.

Q: Who must prosecute the criminal actions?

A: Sec. 5, Rule 110 ---memorize verbatim

All criminal actions commenced by a complaint or information shall be prosecuted

under the direction and control of the prosecutor. However, in Municipal Trial Courts
or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case
is not available, the offended party, any peace officer, or public officer charged with
the enforcement of the law violated may prosecute the case. This authority cease
upon actual intervention of the prosecutor or upon elevation of the case to the
Regional Trial Court.
(This Section was repealed by A.M. No. 02-2-07-SC
effective May 1, 2002)

>> Whether commenced by a complaint or an information, all criminal actions

shall be prosecuted under the direction and control of a public prosecutor.
Although, private pros. are allowed with the written authority from the
office of the provl or city prosecution, but always also under the control and
supervision of the public prosecutor.
>> Thats why, in some cases, in fact if a private pros. or private lawyer is given
the authority to prosecute the criminal case, the public prosecutor need not
even need to be present.
The authority is already enough to be submitted to the court although
the authority can always be revoked anytime by the office of the prosecution
which actually granted that particular authority.
Q: Juan, Pedro and were sued by the crime of rebellion. Atty. Jose, a private
lawyer entered his appearance as private prosecutor under the control and
supervision of the govt. prosecutor. Proper? Or not?
A: There can only be an appearance of a private prosecutor if there is a civil
liability attached to the crime. In crimes where there are NO civil liability
because there are no private offended parties, private prosecutors are not
allowed to appear.
Rebellion is a crime where there is no private offended party. So a private
pros., even if given an authority to prosecute, cannot prosecute based on that
particular principle.
Q: If the civil liability of the crime is expressly reserved, can a private
prosecutor appear?
A: NO. A private prosecutor can only appear if there is a civil liability. So if
there is no civil liability because the civil liability was expressly reserved or in

cases where there is no civil liability because there is no private offended party,
the criminal action shall only be prosecuted by a public prosecutor.
Q: Do you know the difference between a complaint and an information?
A:

Section 3.
Complaint A complaint is a sworn written statement charging a
person with an offense, subscribed by the offended party, any peace officer, or
other public officer charged with the enforcement of the law violated. (3)
Section 4.
Information An information is an accusation in writing charging a
person with an offense, subscribed by the prosecutor and filed with the court. (4a)

Q: When can we use a complaint?

A: In private offenses:
Seduction, Abduction, and Acts of Lasciviousness
>>because these cannot be prosecuted de oficio. It must be preceded with the
complaint of the private offended party. Because the fiscal alone cannot file the
information, it must be preceded by a complaint of the private offended party.
>> signed by the private offended party not by the prosecutor.
>>Upon receiving the complaint, the fiscal after conducting the P.I. now files
the corresponding information in court.
Otherwise, if the fiscal alone files it without the complaint that case can
be dismissed on the ground of lack of jurisdiction. That is why we have to know
complaint to information.
>> But in all other cases, never talk about complaint, talk about information.
>> Must be in writing, in the name of the People of the Philippines vs. all the
persons who are responsible for the commission of the crime.
>>If signed by the fiscal, it is not a complaint, it is an information. But if it is
signed by the chief of police it can be.
>> signed by the private offended party, it can be a complaint.
>>Complaint is necessary in private offenses of Seduction, Abduction, and Acts
of Lasciviousness because these are cases which cannot be prosecuted de
oficio. Meaning to say, the fiscal alone cannot file the information without the
complaint signed by the offended party.
In fact our rules say, in adultery or concubinage, it shall not be
prosecuted except upon the sworn complaint of the offended spouse to include
both offenders if alive.
>>In rape, seduction, Abduction, and Acts of Lasciviousness it shall not be
prosecuted except upon the complaint of the private offended party, parents,
grandparents, guardian. In their absence the State shall initiate the action and
that is successive 1st, 2nd, etc.

Q: What about if she is a minor, can she file the complaint by herself?
A: Yes.
Q: What about if, aside from minority, shes suffering from another type of
incapacity, can she file a complaint?
A: No. This is where parents, grandparents, guardians, the state may file
>>only the minor can file a complaint by herself, apart from the persons
enumerated unless if the minor is suffering from another kind of incapacity
other than her minority. E.g. Minor at the same time insane, cannot file a case.
It will be the parents, either father or mother accdg. to family code (Parental
Authority).
>>this is Sec. 5. Rule 110.

Q: When would you consider whether a complaint or information is sufficient?

(Referring to Complaint in private offenses and Information as far as other
offenses are concerned)
A: Sec. 6, Rule 110
>>Sufficient if it states the name of accused (Sec. 7, Rule 110);
Q: What if the name of accused is unknown?
A: You can provide affiliation, even nickname anyway that can be
corrected at any stage of the proceeding once the real name of the
accused is known.
>> the designation of the offense given by the statute (Sec. 8, Rule 110);
>>the acts or omissions complained of as constituting the offense or cause
(Sec. 9, Rule 110);
>>the name of the offended party;
>>the approximate date of the commission of the offense (Sec. 11, Rule 110);
>>the place where the offense was committed (Sec. 10, Rule 110).
Q: In reference to place, what is the rule?
(Place where an action is supposed to be instituted or venue)
A: Sec. 15, Rule 110.
As long as it is filed within the territorial jurisdiction of the court.
>>Venue becomes jurisdiction. The complaint or information cannot be filed
except in the place where the crime is committed or any of its essential
elements occurred.

Q: What if the crime will fall on the exceptions under Art. 2 of RPC (the
principle of territoriality which provides 6 exceptions: including R.A.9072(?)
the new security act or anti-terrorism law)
A: It can be filed in any RTC of the Phils. where it is first filed.
Q: If you want to change venue, where will you go?
A: File a petition for a change of venue before the Supreme Court. Only the SC
has the power to change venue as one of its inherent powers pursuant to Art.
VIII, Sec 5 of the Phil. Consti.
Q: As far as the date and time is concerned, do you really have to specify the
exact time/time the crime was committed?
A: No. We say, On or aboutat or about
Exception (of Sec. 11): If the time is an ingredient element of the crime
like infanticide, serious, less serious, slight, physical injuries. In these
particular instances, the date becomes important because the date becomes an
ingredient element of the crime itself. In which case, you must now specify the
date when the crime was committed.
In this case, the date must be specifically mentioned otherwise the
information will be defective. In criminal cases, the information controls the
proceeding. You are not allowed to prove those which are not alleged in the
information. For example, in murder, you must specify the qualifying
aggravating circumstance otherwise if it is not specified, you cannot prove it
over the objection of the accused. It will not become murder, it will only become
homicide if the qualifying aggravating circumstance is not allege in the
information.
Q: Can an information cover 2 offenses?
A: Sec 13, Rule 110.
>>General Rule No. It can be a ground for a motion to quash. An information
or complaint must only charge one (1) offense except when the law provides a
single punishment for various offenses like
Complex Crimes (Art. 48, RPC),
Special Complex Crimes (robbery with homicide, robbery with rape,
kidnapping with murder, kidnapping with homicide),
Continuing Offenses series of acts all arising from one criminal
resolution.
Q: Can an information be amended?
A: Yes. Sec 14, Rule 110

Section 14. Amendment or substitution. A complaint or information may be

amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.

Q: Can it be amended in form as matter of right?

A: Yes
Q: Can it be amended in substance as matter of right
A: Yes. Before arraignment without leave of court.(w/o motion, w/o court order)
>> a complaint or information can be amended in form and in substance
without leave of court at any time before the accused enters his plea.
>> after arraignment and during trial a formal amendment (no substantial
amendment allowed) may only need a leave of court as long as it does not
prejudice the rights of the accused.
>> no substantial amendment allowed after arraignment.
Qualification:
1. if the amendment downgrades the offense charged (from murder to
homicide), or excludes any accused in the complaint or information, this can
only be made upon motion of the prosecutor with notice to the offended party
and with leave of court.
>> if it appears that, 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 now the new offense provided
the accused shall not be placed in double jeopardy.
>>once arraignment was made and the accused enters his plea, you could no
longer amend the complaint because that will now place the accused in double
jeopardy.

July 21, 2014

Rule 112 - Preliminary Investigation
Q: Is P.I a pre-condition for the filing of a criminal case in court?
A: It depends.

Q: What is the first legal principle you have to remember in the concept of
Preliminary Investigation?
A: The penalty (of the offense) prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the fine.
>> if the penalty of the crime committed is below four (4) years, two (2) months
and one (1) day without regard to the fine, P.I. is NOT a pre-condition.
Q: Who are authorized to conduct P.I.?
A: Sec. 2, Rule 112
(a)
(b)
(c)

Provincial or City Prosecutors and their assistants;

National and Regional State Prosecutors; and
Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all
crimes cognizable by the proper court in their respective territorial
jurisdictions. (2a)

Q: What about MTC, MTCC, etc. judges? Can they conduct P.I.?
A: Not anymore. It ended on Dec. 31, 2005, but for cases cognizable by the
RTC. Before Dec. 31, 2005, they could conduct P.I. for the purpose of filing
cases in the RTC. But, they can conduct P.I. for cases within their jurisdiction.
Not anymore for cases that fall under the RTC. Thats why, if you have a case,
you file that before the Office of the Prosecution which has territorial
jurisdiction over all offenses.
Q: Is P.I. part of due process?
A: No. Except in cases when it is questioned and it is demanded by the accused
because it is mandatory and it was denied, it will now constitute as a violation
of the due process clause as guaranteed in the 1987 due process clause.
Because you can demand.
Q: When can you file your motion for the conduct of the pre-requisite P.I. when
the case against you (penalty was 4 yrs, 2 mos, & I day) was filed without
undergoing the mandatory P.I.? Otherwise you could no longer question it
anymore.
A: Before plea. Meaning, before arraignment.
Q: If in case, it is granted by the court, presuming it was filed before plea, can
the court dismiss the case? What should the court do?
A: The court could not dismiss the case. The court must remand the case to
the Office of the City or Provincial Prosecution which has territorial jurisdiction

over the offense committed for purposes of the conduct of P.I. If in case that is
not granted, you can file for a certiorari or prohibition against the judge. On
the ground that the judge committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
Q: What is Preliminary Investigation?
A: Sec. 1, Rule 112

Section 1.
Preliminary investigation defined; when required. Preliminary
investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should bie held for trial.

Q: What is the Procedure in conducting P.I.?

A: Sec. 3, Rule 112
Q: When you file affidavits (of the complainant and witnesses), under the rule,
before whom should it be subscribed?
A: Before the Prosecutors office or fiscal. In fact there must be a written
certification to be undertaken by the fiscal that he has examined the witness
and that he is contented with what the witness has said in his affidavit. But
because we have now SC Circular No. 12-8-8, or the Judicial Affidavit Rule,
some prosecutors are not content with just affidavits but they require Judicial
Affidavits so they will have no worries when the case is filed in court because
they are mandated to submit Judicial Affidavits, although they until the end of
2014 for the fiscals not to submit a Judicial Affidavits. They will just use the
affidavits submitted in support of the case.
Q: After that, the fiscals office will determine whether theres a need to dismiss
the case. If he feels that he should not dismiss the case, what should the
prosecutors office do?
A: He must issue a subpoena to the respondents to file their counter-affidavits
within 10 days, extendable.
Q: Is a clarificatory hearing mandatory?
A: No. Only if needed.
Q: During the clarificatory hearing, are the lawyers of both the complainant
and respondent allowed to ask questions directly to the witnesses?
A: No. They can write their questions or direct their questions to the prosecutor
and the prosecutor will ask the questions to the witnesses.

Summary of the procedure:

>> w/in 10 days (extendable) the respondents are to submit their counter
affidavits and other countervailing evidence
>> the fiscal assigned may conduct or schedule a clarificatory questioning but
during the clarificatory questioning the lawyers are not allowed to ask
questions to the witnesses. They can give their questions to the prosecutor
who will do the questioning to the witness.
Q: Must the respondent be furnished with objects of evidence when the
prosecutor issues his subpoena together with the complaint affidavit?
A: No. But it can always be available for viewing or examination by the
respondent and witnesses.
Q: After clarificatory questioning, what is the next step?
Cases are now submitted for resolution. If this is conducted by an asst.
city prosecutor, is that the only requirement for the filing of the information as
well as the resolution?
A: No. The fiscal conducting the P.I. must issue a resolution which recommends
the filing of the case (because he found a probable cause) with the court of
proper jurisdiction and must be with the approval from the city or provincial
prosecutor.
In fact, the information must also bear the approval of the city or
provincial prosecutor.
Q: What if the city or provincial prosecutor does not approve the resolution or
he wants to dismiss the case? Can the prosecutor reverse the
recommendation?
A: Yes, he can.
Q: What if the asst. prosecutor recommends dismissal of the case, can the
provincial/city prosecutor reverse the recommendation?
A: Yes. He can direct another asst. prosecutor to conduct another P.I. or he can
directly file an information to the court.
Q: The information is now filed before the RTC, what should the judge do?
A: Issue a warrant of Arrest within 10 days.
Q: For the issuance of a warrant of arrest are the judges bound by the findings
and recommendation of the fiscal?

A: No. Placer vs. Villanueva. The court is not bound to rely on the findings of
the fiscal because the power to det. the existence of a probable cause for the
issuance of a warrant of arrest rests on the judge. And it is discretionary upon
the judge.
Q: If the judge is not contented with the evidences presented (to det. whether to
issue a warrant of arrest or not), what should s/he do?
A: Require the prosecutors office to submit additional evidences which will
guide the judge in the determination of the existence of a probable cause.
Q: How many days does the prosecutors office have to submit the additional
evidences?
A: 5 days.
Q: The issuance of a warrant of arrest is required, when? And NOT required,
when?
A: Required when he is not yet in custody of the law
Q: If the respondent is already in custody, what must the judge do?
A: Issue a commitment order.
Q: A commitment order presupposes in what instances?
A: In cases of valid warrantless arrests.
Q: In cases of valid warrantless arrests, must there be a conduct of P.I.?
A: As a general rule NO.
Q: What must be done?
A: An inquest investigation by the fiscal.
Q: What is the purpose of an inquest investigation?
A: For the purpose of filing the information in court within 12 (for light
penalties), 18 (for correctional), and 36 (for afflictive or capital penalties) hours
according to Art. 125, RPC. If not, the accused must be released. If the accused
is not released, you will be charged with arbitrary detention.
Q: During the inquest investigation, can the respondent ask for a P.I.?
A: Yes. However, he must sign a waiver of Art. 125, RPC so that the fiscal
cannot be sued for delay.
If he will not sign, definitely, his motion will not be granted.

Q: When will you move for the conduct of P.I. if your case was filed in court
without one and the penalty of your case is 4 yrs, 2 mos, and 1 day? (The plea,
was objection)
A: Within 5 days upon learning that an information was filed against you.
Q: In the absence of a prosecutor - with the corresponding certification from
the prosecutors office that they are not available, what should the lawyer of the
complainant do?
A: File it directly before the court.
>> direct filing in court will only cover valid warrantless arrests in the absence
of a prosecutor.
>> once the case is accepted, the judge will determine the validity of the arrest.
If valid, the judge will order the fiscal to file the corresponding information in
court.
>> cases with penalty below 4 yrs, 2 mos, and 1 day may be filed directly with
the court except:
:: in Metro Manila, and
:: other chartered cities
In these areas, irrespective of the penalty, the case must be filed before the
prosecutors office.
Q: If the case is directly filed before the MTC, MTCC, etc., what must the judge
do?
A: Sec 8 (b), Rule 112
>> evaluate the evidences presented, conduct searching questions. Conduct a
procedure similar to a P.I. for the purpose of determining whether or not to
issue a warrant of arrest. The judge here will be governed by Sec. 3, Rule 112
(Procedure)

July 22, 2014

Q: What is Arrest?
A: Sec. 1, Rule 113

>> the taking of a person into custody in order that he may be bound to
answer for the commission of an offense.

Q: What should you do if you are the lawyer of the respondent being served
with a warrant of arrest improperly? Warrant was invalid. The case is now filed
in court.
A: File a motion to quash the warrant of arrest before entry of plea, meaning
before the arraignment.
>> petition for habeas corpus is NOT a proper remedy for invalid warrant of
arrests.
>> the legality of the arrest must be raised at the earliest opportunity.
>>posting of a bail is NOT a waiver of ones right to question the legality of his
arrest.
Q: In the execution of the warrant of arrest, what are certain prohibitions?
A: Unnecessary force or more than what is needed.
Q: How do you understand reasonable force?
A: When the respondent fights back or retaliates.
Q: When should a warrant of arrest be executed?
A: Within 10 days from the time the arresting officer receives the order. After,
he gives a report to the judge who issued the arrest.

Q: Is the life of the warrant of arrest only good for 10days?

A: No. The warrant of arrest has no time fixed. Continues forever until the
person is arrested or it is revoked or called. Unlike a search warrant which is
only good for 10 days.
Q: So what is that rule that you have to submit a report within 10 days?
A: It is only a directive to the arresting officer to return the warrant and state
the reasons for not being able to arrest the respondent.
Q: What should the arresting officer do if the respondent is inside a building?
A: He has the right to use necessary force to break into the building and to
break open or out a building.
Q: What should the arresting officer do in arresting a person?
A: It depends. If with a warrant or without a warrant.
>> Sec. 7, Rule 113 arrest with warrant

officer shall inform the person to be arrested of the cause of the arrest and
of the fact that a warrant has been issued for his arrest, except when he flees

or forcibly resists before the officer has opportunity to so inform him, or when
the giving of such information will imperil the arrest.

>> Sec. 8, Rule 113 arrest without warrant or citizens arrest

officer shall inform the person to be arrested of his authority and the cause
of the arrest, unless the latter is either engaged in the commission of an
offense, is pursued immediately after its commission, has escaped, flees or
forcibly resists before the officer has opportunity so to inform him, or when
the giving of such information will imperil the arrest

Q: What will the arresting officer (with a warrant of arrest) do with the person
arrested?
A: Deliver him to the nearest police station or jail.
Q: Is it the same with the arrest without warrant?
A: The same but an inquest proceeding must be had pursuant to Sec. 7, Rule
112
Q: Valid warrantless arrests, 3 instances
A: Sec. 5, Rule 113 memorize by heart

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

>> arresting officers are allowed to summon help in arresting.

Q: What are the 2 requisites for a valid warrantless arrest? #2.

A:
1) the offense has just been committed
2) the arresting person has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has
committed it
Q: How do you explain the context of hot pursuit?
>>If the person committed a crime today, but he is only arrested without
warrant 2 days after. Is it still a valid warrantless arrest?
A: Yes, it is valid as long as the time when the offense is committed is in close
proximity with the time of the arrest.

>> there must be an immediacy b/n the time of the crime and the time of the
arrest. It must relate to the 1 st requirement that a crime has just been
committed.
>>if there is appreciable time that lapsed b/n the arrest and the commission of
the crime, there must be a warrant. (people v del rosario)
>>Continuing offenses: ground for warrantless arrests (e.g. rebellion)
>> in cases of valid warrantless arrest which is directly filed to the court, the
judge will issue an order declaring whether the arrest is actually valid. Once I
will issue the order saying that the warrantless arrest is valid, then I will refer
now the case to the prosecutors office for the filing of the appropriate case.
Q: When the person arrested is already in jail, what are his rights?
(Under custodial investigation, Miranda rights should be afforded)
A: Sec. 14, Rule 113 (but already amended by Sec. 2, R.A. 7438)
>>To be visited by counsel.
Q: What if the warden refuses a lawyer to visit?
A: Warden will be violating R.A. 857 Sec. 1 penalty is arresto mayor.
>> he can be criminally and administratively charged.
Q: Aside from counsel, who else are allowed to visit?
A: Immediate relatives >>R.A. 7438 - spouse, fianc or fiance, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece,
and guardian or ward.
Q: The person is now detained, what are his rights under the 1987 Consti?
A: To post a BAIL.
>> a matter of RIGHT.
Q: Unless:
A: He is charged for a non-bailable offense.
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 the conditions hereinafter specified. Bail may be given in the
form of corporate surety, property bond, cash deposit, or recognizance.
Q: Bail can be:
A: Cash, Property, Corporate Surety

T: If the penalty imposed by the trial court is imprisonment exceeding six (6)
years, the accused shall be denied bail, or his bail shall be cancelled upon a
showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
(a)
That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b)
That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his bail without valid justification;
(c)
That he committed the offense while under probation, parole, or
conditional pardon;
(d)
That the circumstances of his case indicate the probability of flight if
released on bail; or
(e)
That there is undue risk that he may commit another crime during the
pendency of the appeal.
Guidelines in fixing amount of bail
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.

August 2, 2014 Saturday

Rule 115 - Rights of the Accused (only during trial)
Section 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable
doubt.
(b) To be informed of the nature and cause of the accusation against him.

Q: What are the 2 principles to take into account in connection with right #2?
A:
1) The information must contain all the elements of the crime.

2) There are offenses which are necessarily included in the information

so that if the prosecution was not be able to prove the guilt of the accused
beyond reasonable doubt because it was not able to prove the qualifying
aggravating circumstances, the judge may convict the accused of the offense
provided in the information.
That is why the accused is allowed to a plea of guilty to a lesser offense.
Q: Is there a chance for a judge to convict an accused for homicide if the
information is for murder?
A: Yes, because homicide is necessarily included in the crime of murder.
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. The accused
may, however, waive his presence at the trial pursuant to the stipulations set
forth in his bail, unless his presence is specifically ordered by the court for
purposes of identification. The absence of the accused without justifiable
cause at the trial of which he had notice shall be considered a waiver of his
right to be present thereat. When an accused under custody escapes, he shall
be deemed to have waived his right to be present on all subsequent trial
dates until custody over him is regained. Upon motion, the accused may be
allowed to defend himself in person when it sufficiently appears to the court
that he can properly protect his right without the assistance of counsel.

Q: What are the 3 important instances where the presence of the accused is
required?
A:
1) Arraignment. Trial in absentia is only allowed if the accused is already
arraigned.
2) For purposes of identification.
There is one case where the accused waived his right to be present
and specifically states that he is the person named and charged in the
information. Is it proper?
No. The prosecution witnesses might not know the name of the
accused but can actually identify the accused once he is presented in court.
3) Promulgation of judgment. Except if the promulgation is: a) for a light
offense, or b) for acquittal. In these cases, the court only needs to enter the
judgment in the docket of the court and furnish the accused a copy of the
decision.
Sabarre: In case the accused appears without counsel, the court should inform
him whether he needs the assistance of a counsel and incase he cannot afford
the services of counsel, the court can tell him that he can be assisted with
somebody from the PAO. If accused wants a private lawyer, it must be
respected.

If accused can defend himself due to his educational attainment, he may

be allowed to represent himself.
(d) To testify as a witness in his own behalf but subject to cross-examination
on matters covered by direct examination. His silence shall not in any manner
prejudice him.

Q: What is the difference between an accused testifying and an ordinary

witness testifying?
A: The accused may only be cross-examined in matters covered under the
direct examination. Unlike the ordinary witness where the cross-examination
questions are not limited to the direct testimony, any question may be allowed.
Witnesses maybe asked by the court randomly to answer.
(e) To be exempt from being compelled to be a witness against himself.

Q: Can an accused refuse to take the witness stand?

A: Yes. He can invoke his right against self-incrimination. You cannot compel
an accused to take the witness stand unlike the ordinary witness. The ordinary
witness may invoke this right each time an incriminating question is asked.
Q: Is this right more on testimonial evidence/ testimonial compulsion?
A: Yes.
BQ: What acts can the accused be compelled to perform?
A: Mechanical acts. Acts that does not involve the mind or mental skills.
Q: In what kind of investigation can the accused claim this right?
A: Custodial Investigation. Same with the right to remain silent, assistance of
counsel, to be informed of the nature and cause of the accusation against him.
If it is still a general exploratory investigation, the rights just mentioned
are not yet available.
Sabarre: Custodial investigation starts when the investigation is focused
already on a particular person.
(f) To confront and cross-examine the witnesses against him at the trial.
Either party may utilize as part of its evidence the testimony of a witness who
is deceased, out of or cannot with due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given in another case or
proceeding, judicial or administrative, involving the same parties and subject
matter, the adverse party having the opportunity to cross-examine him.

Q: What is meant by confrontation here?

A: The right to cross examine witnesses.

Q: What are the exceptions?
A: 1) dead, 2) cant be found in RP, 3)
Q: What are the exceptions to the above exceptions?
A: Documents that are part of the P.I. but it is so difficult to bring the witness
when the case is filed in court that can be adopted as part of the testimony of
the prosecution. It might be that in this particular document the witnesses
could have been cross-examined already during P.I.
Or when the witness dies abroad.
(g) To have compulsory process issued to secure the attendance of witnesses
and production of other evidence in his behalf.

Q: What is the other name of this right?

A: Right to subpoena/SDT (documents)/subpoena adtestificandum (testimony
only)
(h) To have speedy, impartial and public trial.

Q: What is the basis of the speedy trial act?

A: R.A. 8493 (get a copy)
vis--vis SC-12-11-2 dated March 18, 2014, effective May 1, 2014
guidelines for decongesting holding jails by enforcing detained persons right to
post bail and speedy trial.
In the circular, the accused may present evidence to support his motion
for bail (Sec. 6).
The prosecutor may use the affidavits of witnesses during the P.I. as
direct testimony.
Q: If this right of the accused is violated, the case can be dismissed and that
dismissal is tantamount to?
A: Acquittal
However, it is discretionary on the judge to decide if the right has been
violated. Prosecution has an equal right.
(i) To appeal in all cases allowed and in the manner prescribed by law. (1a)

- What can be appealed are only judgments of conviction. Not acquittal.

R.A. 8493 Speedy Trial Act of 1998.

SC-12-11-2 dated March 18, 2014, effective May 1, 2014
- For non-bailable offenses, file a motion to allow bail.
Sec. 6 of circular summary in nature.
- It shall be the duty of the court, the public prosecutor, and the defense
counsel to ensure subject to the rules on 119 and the speedy trial act of
1991 with the ff arguments in the prosecution of the case.
- Once the accused post a bail, he should be arraigned within 10 days
from the date of the raffle.
- The court shall hold the pre-trial conference within 30 days after
arraignment or within 10 days when the accused is under preventive
suspension (preventive suspension- not capable [no money] of posting
bail or charged with a non-bailable offense). However, when the direct
testimonies of the witnesses are to be presented through jud. affs. the
court shall give the prosecution not more than 20 days from arraignment
and submit their jud.affs in time for the pre-trial conf.
- In SC Circ. No. 12-1-1 - compels the submission of jud.affs of
witnesses. Mandatory in cases where the penalty is 6 yrs or less. Should
be in a Q&A form. Before the RTC, jud. aff. is only required to prove civil
liability. Youre trying to present the witness for the purpose of civil
liability, you must execute a jud. aff. or in cases when the accused opts
to submit jud. affs.
- So not mandatory are the RTC except civil liability or the accused wants
jud. aff.
- Case must be done within 180 days. If not, the accused may move for the
dismissal of the case which is equal to acquittal.

Provisional dismissal with the express consent of the accused. Becomes final
if not revived within 1 yr (if penalty is 6 yrs below) or 2 yrs (if more than 6 yrs)
Essential Witness one whose testimony dwells on the presence of some or all
of the elements of the crime and whose testimony is indispensible for the
conviction of the accused.
1. When the delays are due to the absence of an essential witness whose
whereabouts are unknown, or cannot be determined, the court shall
provisionally dismiss the case with the express consent of the detained person.

2. When the delays are due to the absence of an essential witness whose
presence cannot be obtained by due diligence though his whereabouts are
known, the court shall provisionally dismiss the case with the express consent
of the detained person provided that hearing of the case has been previously
twice postponed due to the absence of the essential witness. That the accused
and the witness have been notified for a third hearing and warned that the
case will be dismissed in case they fail to show up in the hearing. There must
be proof of service.
-prosecutor must ask for mobile numbers and e-mail addresses for service of
notice. Proven through print outs and affidavit of service of notice. E.g. the
clerk will issue an affidavit that they called the witness through mobile phone.
Get a copy of :
1. the rules on Summary Procedure
2. Lupong tagapamaya requirements in the Local government code.

August 4, 2014 (Monday)

Rule 116 Arraignment & Plea
Q: What is Arraignment?
A: The reading of the information to the accused in a language known and
understood by the accused and he is asked whether he pleads guilty or not.
Q: Is the presence of the private offended party required during arraignment?
Why?
A: Yes. For the purpose of plea bargaining or for the purpose of det. the civil
liability. More impt., the accused might enter into a plea of guilty to the lesser
offense as charged in the information. Because the private offended partys
consent is required.
Except if the private offended party was duly notified and he failed to appear on
the scheduled arraignment, the consent of the prosecutor alone is already
sufficient.
Mid-Term Q: Can the accused enter a plea of guilty to a lesser offense after the
prosecution rested its case?
A: Yes.

Q: What will you do if you noticed before arraignment that some

details/allegations in the information are vague and indefinite?
A: Move for a bill of particulars. So that the accused can enter an intelligent
plea.
Q: What are instances when the court has to enter a plea of not guilty?
MemorizeA:
1. Refusal to plead / Silence of the accused
2. If so pleaded by the accused
3. If even though admitting the facts charged, he sets up matters of defense or
with a lawful justification.
4. When accused enters a conditional plea
5. If after a plea of guilty he introduces evidence of self-defense or other
exculpatory circumstances.
6. When the plea is indefinite or ambiguous.
Q: If the accused pleads guilty for a crime of murder at the arraignment and
the court promulgated judgment the day after convicting the accused, is the
court correct in doing so?
A: No. Sec. 3, Rule 116 says, when the accused pleads guilty to a capital
offense (non-bailable offenses), the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the consequences of his plea.
Q: What is an improvident plea of guilty?
A: Maybe change into a not guilty plea at the discretion of the court. Allowed
anytime before the promulgation of judgment.
Q: In arraignment, must the accused be assisted by counsel?
A: He has to be informed by the court that he can ask for the assistance of
counsel. But it is a reversible error if the court arraigns him without counsel.
Q: If the accused wants to have a counsel de parte, what should the court do?
A: Give him reasonable time to find a counsel and prepare.
Q: What are the instances when the court does not consider the plea of guilty
of the accused?
A:
1. plea of guilty was compelled by violence or intimidation
2. accused did not fully understand the meaning and consequences of his plea
3. the information is insufficient to sustain conviction of the offense charged
4. information does not charge an offense

5. court has no jurisdiction

Q: What will you do to compel the court to provide you a copy of documents
related to the case?
A: File a motion for the production of documents. This is one of the modes of
discovery. This is allowed even before PI. To avoid surprise on the part of the
accused.
Q: When is suspension of arraignment allowed?
A:

Section 11. Suspension of arraignment. Upon motion by the proper party, the
arraignment shall be suspended in the following cases:
(a)
The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;
(b)
There exists a prejudicial question; and
(c)
A petition for review of the resolution of the prosecutor is pending at either
the Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a)

Rule 117 - Motion to quash

Q: A motion to quash can be filed anytime before plea, but the court may
entertain a motion to quash at any stage of the proceeding when?
A:
1. the complaint or info does not charge an offense
2. the court has no jurisdiction over the offense
3. the offense or penalty has been extinguished
4. defendant has been in former jeopardy (e.g. the case was dismissed without
his consent)
Q: The motion to quash filed by the defense allege that the facts as charged in
the info do not constitute an offense. The court dismissed the case in favor of
the accused. Is the court correct?
A: No. The defect is curable by amendment. But if, the counsel of accused will
not amend the info or if after amendment the same flaw is still there, then the
court may dismiss the case this time.
Q: How do you assess whether there is merit in the motion?

A: Focus on the information. Look at it and check the allegations. If one

element of the crime is not mentioned then it does not constitute an offense.

Q: What are the grounds for a motion to quash?

A: Memorize!!!
(a)
That the facts charged do not constitute an offense; (curable by
amendment)
(b)
That the court trying the case has no jurisdiction over the offense
charged;
(c)
That the court trying the case has no jurisdiction over the person of the
accused;
(d)
That the officer who filed the information had no authority to do so;
(e)
That it does not conform substantially to the prescribed form; (curable by
amendment)
(f)
That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g)
That the criminal action or liability has been extinguished;
(h)
That it contains averments which, if true, would constitute a legal excuse
or justification; and
(i)
That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (elements of double jeopardy)
Q: The accused was charged with the crime of qualified seduction. It was not
signed by the private offended party. The chief of police filed the complaint to
the prosecutor. What ground should the accused use for his motion to quash?
How come that the info should be quashed?
A: This is a private offense. It should be preceded by a complaint by the private
offended party. The ground is: the court trying the case has no jurisdiction.

August 5, 2014 (Tuesday)

Q: What are exceptions to ground letter f (more than one offense) for motion
to quash:
A: Complex crimes, continuing offenses

Q: What is an example to the ground (e) of motion to quash? Prescribed form.

A: It did not state People vs. ______
Q: What will the court do if the ground for MTQ is one of the seven grounds not
curable by amendment? Will the court dismiss the case?
A: It depends. Yes. If the grounds are:
(g)
That the criminal action or liability has been extinguished;
(i)
That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (elements of double jeopardy)
No. If the grounds are otherwise. The court should order that another
information be filed. The accused if in custody shall not be discharged unless
admitted to bail.
Q: Is a denial of MTQ appealable?
A: No. It is only an interlocutory order. What can be appealed are only final
judgments.
The remedies for interlocutory orders are certiorari, prohibition and
mandamus. IF, it is very apparent that there is D.Jeopardy, Lack of
Jurisdiction, etc.
Gen Rule: Cant be applied for MTQ.
Q: What about grant of MTQ, is it appealable?
A: Yes.
Q: Cant the accused invoke D. Jeopardy?
A: No. He is not yet convicted. And the MTQ is at his own instance.
Q: How do you interpret, the case was dismissed without the prior consent of
the accused?
A: A dismissal that is not tantamount to acquittal.
Q: In order that D. Jeopardy in Sec. 7 of Rule 117 can exist, it is necessary
that in the first case?
A:
1. The complaint or info or other formal charge was sufficient in form and
substance to sustain a conviction
2. The court had jurisdiction

3. The accused had been arraigned and had pleaded

4. He was convicted or acquitted or the case was dismissed without his express
consent.
5. There must be Identity of offenses.
Q: In connection to D. Jeopardy, you are not allowed to re-file the same
information for: (because it will place the accused in DJ)?
A:
1. The same offense
2. An attempt to commit the said offense
3. A Frustration of the said offense
4. Any offense which necessary includes or is necessarily included in the first
offense charged.
Q: What is the test of identity of offenses?
A: Rule 120, Sec.5 essential elements of the former constitute the latter.
Best example is sale and possession of illegal drug. They are 2 diff.
offenses. No DJ. Diff. elements are involved.
On the other hand, for sale and importation, you can invoke DJ. They
have the same elements.
Q: What are the 3 exceptions where in you cannot invoke D. Jeopardy?
A:

(a)
the graver offense developed due to supervening facts arising from the same
act or omission constituting the former charge; (quote Melo vs People)
(b)
the facts constituting the graver charge became known or were discovered
only after a plea was entered in the former complaint or information; or (quote
people vs Adil)
(c)
the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.
(Except if the private offended party failed to appear despite due notice)

Q: If the case is dismissed with expressed consent of the accused, can there be
D. Jeopardy?
A: No. Sec. 8, Rule 117 Provisional dismissal.
Q: In case of Provisional dismissal, how many years do you have to revive the
case? Otherwise, it becomes permanent or final.
A: It depends. If less not exceeding 6 years imprisonment, 1 yr. If more than 6
yrs, 2 years.

Q: When would you start counting the 1 and 2 yr period?

A: From the date of the issuance of the order of dismissal.

Rule 118 Pre-trial

Q: What are matters to be taken during pre-trial?
A:
1. Plea bargaining (also done during arraignment)
2. stipulation of facts (additional)
3. marking for identification of evidence of the parties
4. waiver of objections to admissibility of evidence
5. modification of the order of trial if the accused admits the charge but
interposes a lawful defense
6. such matters as will promote a fair and expeditious trial of the criminal and
civil aspects of the case.
Q: What is the importance of a pre-trial order?
A: Sec. 4, Rule 118

Pre-trial order. After the pre-trial conference, the court shall issue an order
reciting the actions taken, the facts stipulated, and evidence marked. Such order
shall bind the parties, limit the trial to matters not disposed of, and control the
course of the action during the trial, unless modified by the court to prevent
manifest injustice. (3)

Q: Is the presence of the private offended party necessary during the pre-trial?
A: No. Unlike in civil cases where the presence is required.
Q: What about the presence of the accused?
A: No. Whats impt. is he signs the pre-trial agreement and the pre-trial order.
Unlike in civil cases where the presence of the defendant is required or else he
will be declared in default.