CRIMINAL PROCEDURE l TDCI (REVISED) EH407
What is the purpose of the mandate of the judge to first
CHAPTER 5. ARREST, SEARCH AND SEIZURE
RULE 113 – ARREST
ARREST
ARREST DEFINED
It is the taking of a person into custody in order that he may be bound
to answer for the commission of an offense.
PURPOSE
In order that the accused may be bound to answer for the commission
of the offense
To make an arrest, is actual physical restraint required?
No. Anything that restrains the liberty of a person to the extent that he
is not free to leave on his own volition already constitutes arrest.
REQUISITES FOR THE ISSUANCE OF A WARRANT OF ARREST
Section 2, Article 3 Bill of Rights
1. There must be probable cause
2. The probable cause is determined personally by the judge by
examining under oath the complainant and the witnesses that
he may produce
3. It must particularly describe the person to be seized
PROBABLE CAUSE
The existence of facts that would lead a reasonably discreet and prudent
man to believe that a crime has been committed and that it was likely
committed by the person sought to be arrested.
PERSONAL EXAMINATION BY THE JUDGE NOT MANDATORY
AAA v. Carbonell
The constitutional provision does not mandatorily require the judge to
personally examine the complainant and his witnesses. Instead, he may
opt to personally evaluate the report and supporting documents
submitted by the prosecutor.
Webb v. De Leon
The personal examination by the judge is not mandatory and
indispensable in the determination of probable cause for the issuance of
a warrant of arrest. It arises only when there is an utter failure of the
evidence to show the existence of probable cause.
Okabe v. Gutierrez
What the law requires as personal determination on the part of the judge
is that he should not rely solely on the report of the investigating
prosecutor.
Talingdan v. Eduarte
What is emphasized is merely the exclusive and personal responsibility
of the judge to satisfy himself as to the existence of probable cause.
What he is never allowed to do is follow blindly the prosecutor’s bare
certification.
Soliver v. Makaisar
To require thus would be to unduly laden them with preliminary
examinations and investigations of criminal complaints instead of
concentrating on hearing and deciding cases.
PRELIMINARY INVESTIGATION V. PRELIMNARY INQUIRY
Preliminary investigation Preliminary inquiry
Conducted by the prosecutor to Conducted by the judge to
determine whether accused determine probable cause for
should be held for trial the issuance of a warrant of
arrest
Executive in nature Judicial in nature
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determine probable cause for the arrest of the accused?
To insulate from the vest start those falsely charged with crimes from
the tribulations, expenses and anxiety of a public trial.
METHOD OF ARREST WITH A WARRANT
DELIVERY OF THE WARRANT OF ARREST
Where is the warrant delivered after issuance by the judge?
It is delivered to the proper law enforcement agency for execution, to
take place within 10 days from its receipt.
What is the duty of the officer charged of executing the warrant
if the same was not executed?
Within 10 days after the expiration of the period, he shall make a report
to the judge who issued the warrant and state the reasons for its non-
execution. (But the effectivity of the search warrant does not end on the
10th day. Only a report is required for its non-execution)
What are the duties of the officer who executed the warrant?
1. He has the duty to deliver the person arrested to the nearest
police station without unnecessary delay.
2. Use only such force as may be necessary. The person arrested
shall not be subject to a greater restraint that is necessary for
his detention
DUTY OF THE OFFICER MAKING THE ARREST
When making an arrest by virtue of a warrant, the officer shall:
1. Inform the person to the arrested of the cause of his arrest
2. Inform him of the fact that a warrant has been issued for his
arrest
What are the instances when the information abovementioned
need not be made? When the person to be arrested:
1. Flees
2. Forcibly resists
3. When the giving of the information will imperil the arrest
WARRANT NEED NOT BE IN OFFICER’S POSSESSION
The officer effecting the arrest need not have the warrant in his
possession at the time of the arrest. It is sufficient that a warrant has
been issued.
When should the warrant be shown to the person arrest?
As soon as practicable after the arrest, if the person arrested so requires.
POWERS AND AUTHORITY OF THE OFFICER
1. Authority to summon assistance – The officer charged with
the execution of the warrant has the authority to orally summon as
many persons as he deems necessary to assist him in effecting the
arrest. The person summoned is required to give the assistance
required.
Except: If assistance by the private individual will cause harm to
himself (i.e. heart problems, failing health, disabled)
2. Authority to break into any building or enclosure in case he
is refused admittance – If a person to be arrested is inside a
building, the officer may break into the building in case he is
refused admittance after announcing his authority and purpose. He
may also break out from said place.
LAWFUL WARRANTLESS ARREST
WARANTLESS ARRESTS
A peace officer or a private person may, without a warrant, arrest a
person:
1. In flagrante delicto – when, in the presence, the person to be
arrested has committed, is actually committing, or is attempting to
commit an offense.
2. Hot pursuit – when an offense has just been committed and he
has probable cause to believe based on personal knowledge of
facts and circumstances that the person to be arrested has
committed it.
3. Escapee from a penal establishment – when the person to be
arrested is a prisoner who has escaped from a penal establishment
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
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.
4. Arrest by a bondsman – A bondsman may arrest an accused for
the purpose of surrendering him to court.
5. Out on bail and attempts to flee – an accused released on bail
may be re-arrested without a warrant if he attempts to depart from
the Philippines without permission of the court where the case is
pending.
Who may effect warrantless arrests?
A police officer or a private citizen. If made by the latter, it is called
citizen’s arrest.
IN FLAGRANTE DELICTO EXCEPTION
CONCEPT
When, in the presence of the police officer or private person, the person
to be arrested has committed, is actually committing, or is attempting
to commit an offense.
REQUISITES
1. The person to be arrested must execute an over act indicating
that he has just committed, or is actually committing or is
attempting to commit a crime
2. Such overt act is done in the presence of within the view of
the arresting officer
Is mere suspicion and reliable information enough?
No, they are not justifications for a warrantless arrest. The rule requires
that the accused perform some overt act.
EXISTENCE OF AN OVERT ACT
What is meant by overt act?
Outward manifestations or acts made by the accused that would raise
reasonable suspicion on the part of the police officer that he has
committed, is committing or about to commit a crime.
Whether or not having the butt of a pistol bulge from one’s
waist plainly within the view of the officer conclusively
constitutes an overt act of the crime of illegal possession of
firearm?
No, because when the apprehension was made, the officer had no prior
knowledge that the person carrying the same had no license for the
firearm. Nothing under the facts that would show an overt act of a crime
other than the mere suspicion that the gun may be unlicensed.
CASES WHERE IN FLAGRANTE ARREST WERE NOT SUSTAINED
People v. Nuevas
Reliable information alone is not sufficient to justify a warrantless arrest.
The rule requires in addition that the accused perform some overt act
that would indicate that he has committed, is actually committing or is
attempting to commit a crime.
People v. Aminnudin
The accused was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done
so. He was merely descending the gangplank of the ship and there was
no outward indication that called for his arrest. Moreover, they could
have obtained a warrant since they had at least two days to apply for
the same.
People v. Molina
An arrest made merely on the basis of reliable information that the
persons were carrying marijuana is invalid. The accused were arrested
while inside a pedicab despite the absence of any outward indications
of a crime being committed.
Malacat v. CA
No crime can be inferred from the fact that the eyes of the person
arrested were moving fast and looking at every person passing by.
People v. Mengote
There was no offense which could have been suggested by the acts of
Mengote of looking from side to side while holding his abdomen. These
are not sinister acts.
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People v. Laguio
Accused was merely walking from the apartment and was about to enter
a parked car when the police arrested him. He was not committing any
visible offense then. Reliable information alone, absent any over act
indicative of a felonious enterprise in the presence and within the view
of the arresting officers, is not sufficient to constitute probable cause
that would justify an in flagrante delicto arrest.
CASES WHERE WARRANTLESS ARRESTS WERE UPHELD
People v. Claudio
The act of the accused was unusual for a traveller, hence, the suspicion
of the agent was aroused. Feeling that something was unusual, the
trained narcotics agent inserted his finger inside the buri-like plastic bad
from which emanated the smell of marijuana. Accused was thereafter
arrested.
People v. Tangliben
The police officers acted upon an Intel supplied by informers and
conducted surveillance operations in a bus station to check on persons
who may be engaging in the traffic of dangerous drugs. They noticed a
person carrying a red travelling bag who was acting suspiciously. When
asked to open the bag, marijuana leaves were found. There was a valid
warrantless arrest and a valid warrantless search. In this case, the
officers were faced by an on the spot information which required them
to act swiftly. There is the sense of urgency which was absent in the
Aminnudin case.
People v. Maspil
Reports from informers showed that two persons would be transporting
marijuana, hence, the police set up a checkpoint in Benguet. A jeepney
was flagged down and on board were the persons identified by the
informers who went with the police. When the sacks in the jeepney were
opened, marijuana was found. They were then arrested. The arrest as
valid because of the sense of urgency. A jeepney on the road is not the
same as a passenger boat which ordinarily cannot deviate or alter its
course.
HOT PURSUIT EXCEPTION
CONCEPT
When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts and circumstances that
the person to be arrested has committed it.
REQUISITES
1. An offense has just been committed
2. He person making the arrest has personal knowledge of the facts
indicating that the person to be arrested has committed it.
Does it require the arresting officers to personally witness the
commission of the offense?
No. It is sufficient that they had personal knowledge of the facts based
on probable cause – actual belief or reasonable grounds of suspicion.
What is meant by personal knowledge?
The gathering of information through the use of the senses.
Abelita III v. Doria
A team was dispatched to the crime scene as soon as the police received
a phone call about a shooting incident. They saw the victim wounded
and the witnesses said that they knew the shooter and that he just left
the scene of the crime. Police tracked down the accused. He initially
agreed to come to the police headquarters but tried to escape while en
route. Petitioner’s act of trying to get away, coupled with the incident
report which they investigated, is enough to raise a reasonable suspicion
on the part of the police to the existence of probable cause.
People v. Acol
A robbery happened inside a jeepney. The passengers immediately
sought the help of the police. One of the passengers who went with the
police to track down the suspects saw one of the robbers who was
wearing the jacket he stole from him. The warrantless arrest was well
within the hot pursuit exception.
People v. Gerente
The police station received a report about a mauling incident. The
officers went to the crime scene to investigate. A witness told them that
the accused was the one who killed the victim, so they proceeded to the
house of the accused and arrested him. Based on their knowledge of
the circumstances of the death of the victim and the report of the
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
eyewitness, the officers had personal knowledge of the facts leading TN: The illegal arrest does not negate the validity of the conviction of
them to believe that it was the accused who perpetrated the crime. the accused.

METHOD OF ARREST WITHOUT A WARRANT PERSONS NOT SUBJECT TO ARREST

ARREST BY AN OFFICER PRIVILEGE FROM ARREST

When making an arrest without a warrant, the officer shall inform the
person to be arrested of his: 1. Senator or a congressman enjoy privilege from arrest, provided:
1. Authority  Offense is punishable by imprisonment of not more than 6
2. Cause of his arrest years (so 6 years and below only)
 Congress is in session
The information need not be given if:
a) The person arrested is engaged in the commission of an offense 2. Under generally accepted principles of international law and
b) In the process of being pursued immediately after its commission subject to the principle of reciprocity, the following are immune
c) Escapes or flees from the criminal jurisdiction of the country of their assignment:
d) Forcibly resists  Sovereigns and other chiefs of state
e) When the giving of such information will imperil the arrest  Ambassadors
 Minsters plenipotentiary
Can the officer summon assistance and break into a building?  Ministers resident
Yes. The rules applicable to an arrest with a warrant are also applicable  Charges d’affaires
to a warrantless arrest.

ARREST BY A PRIVATE PERSON

The private person shall inform the person to be arrested of:
1. His intention to arrest him
2. Cause of his arrest

Can the private person break into a building?

No. Such right only pertains to an officer and not a private person.

When is the time of making an arrest?

On any day, and at any time of the day or night.

RIGHTS OF A PERSON ARRESTED

RIGHTS OF A PERSON ARRESTED

What are the rights over a person arrested?

1. Right to be assisted by counsel at all times
2. Right to remain silent
3. Right to be informed of the above rights
4. Right to be visited by the immediate members of the family, by
his counsel or by any non-governmental organization, national or
international

Can custodial investigation be conducted in the absence of a

lawyer?
No. The accused can only be detained pursuant to Article 125 of the
RPC. Any waiver of Art 125 shall be in writing and signed by the person
arrested in the presence of his counsel. Otherwise, the waiver is void.

How can an extrajudicial confession be admissible as evidence?

1. It must be voluntary
2. It must be express and in writing
3. Signed by the person detained
4. In the presence of his counsel

Can the presence of counsel above be waived?

Yes, but the waiver must be done in the presence of any of the parents,
older brothers and sisters, spouse, municipal mayor, judge, district
school supervisor or priest. Otherwise, such confession shall be
inadmissible as evidence.

CUSTODIAL INVESTIGATION
Any questioning initiated by law enforcement officers after a person has
been taken into custody. Includes the practice of issuing an invitation.

What is the effect of an illegal arrest on the jurisdiction of the

court?
It affect only the jurisdiction of the court over the person of the accused
and not over the offense because the latter is conferred by law.

TN: Waiver of an illegal warrantless arrest does not also mean a waiver
of the inadmissibility of evidence.

WAIVER OF THE ILLEGALITY OF THE ARREST

Accused may be estopped form assailing the legality of his arrest if he
failed to move for the quashing of the information against him before
his arraignment.

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CRIMINAL PROCEDURE l TDCI (REVISED) EH407
 Executive and Vice Executive Judges of RTCs of Manila and
Quezon City filed by:
RULE 126 – SEARCH AND SEIZRUES
 NBI
 PNP
 Presidential Anti-Organized Crime Task Force (PAOC-TF)
NATURE OF A SEARCH WARRANT
 Reaction Against Crime Task Force (REACT-TF)

SEARCH WARRANT DEFINED What is the rule?

1. An order in writing issued in the name of the PP
2. Signed by the judge
3. Directed to a peace officer
4. Commanding him to search for the personal property
described therein and bring them before the court
Is a search warrant a criminal action?
No. It is solely for the discovery and to get possession of the personal
property.
The applications shall be personally endorsed by the Heads of said
agencies. The warrants may be served in places outside the territorial
jurisdiction of said courts.
Spouses Marimla v. People
The case against petitioner involved a violation of the Dangerous Drugs
Law. Pursuant to AM 99-10-09-SC, the application for search warrant
may be filed by the NBI in the City of Manila and the warrant may be
served outside of Manila.

Who has the power to issue search warrants? TN: Nothing in the AM prohibits the head of the NBI from delegating
It is exclusively vested with trial court judges. their duties of endorsing the application to their assistant heads.

Where to file or apply for a search warrant?

PROPERTY SUBJECT OF A SEARCH WARRANT
 GR: In any court within whose territorial jurisdiction a crime was
committed.
ONLY PERSONAL PROPERTY
 XPN: Within the judicial region (1) where the crime was The property subject of a search warrant is personal and not real
committed or (2) where the warrant shall be enforced. (Requires property:
compelling reasons)  Personal property subject of the offense
 Personal property stolen or embezzled and other proceeds, or
 QUALIFICATION: If the criminal action has already been filed, fruits of the offense
application shall only be made in the court where the criminal  Personal property used or intended to be used as a means of
action is pending committing an offense

What is the nature of the proceeding for application for a search Ratio: To leave the officers of the law with no discretion regarding what
warrant? articles they should seize. A search warrant is not a sweeping authority
It is ex parte. It is neither a trial nor a part thereof. Notice need not be empowering a raiding party to undertake a fishing expedition to
given to the other party. confiscate any and all kinds of evidence or articles relating to a crime.

What is the duration of the validity of a search warrant? People v. Nunez

It shall be valid for 10 days from its date.
ARREST V. SEARCH AND SEIZURE
Arrest
Concerned with the seizure of a
person
Search may follow an arrest
To establish probable cause to
issue a warrant of arrest, the
judge must have sufficient facts
particular things concerned with
that would tend to show that a
crime has been committed and
that the person subject of the
warrant probably committed it.
Judge is not necessarily
required to make a personal
examination of the complainant
and the witnesses
Arrest warrant does not
prescribe.
Search and seizure
Concerned with the seizure of a
personal property
Search must be incident to a
lawful arrest
Requires facts to show that
a crime are found in a specific
location
Judge must personally examine
the complainant and the
witnesses before issuing the
search warrant
Search warrant is valid only for
10 days from its date.
Only personal properties described in the search warrant may be seized
by the authorities. Search warrant to seize shabu and paraphernalia.
The lady’s wallet, cash, camera are not encompassed by the word
paraphernalia.
REQUISITES FOR THE ISSUANCE OF A SEARCH WARRANT
REQUISITES:
1. There must be probable cause in connection with one specific
offense
2. The presence of probable cause is to be determined by the
judge personally
3. The determination must be made after an examination under
oath of the complainant and the witnesses
4. The warrant must specifically describe the place to be
searched and the things to be seized (must be anywhere in
the Phils)
Can the same court quash the warrant it formerly issued?
Yes. Inherent in the court’s power to issue search warrants is the power
to quash warrants already issued, if he finds upon re-evaluation that no
probable cause exists.
TN: One-offense Rule. Otherwise it would be a Scatter-Shot warrant or
a General Warrant (warrant issued for several offenses under different
laws or different provision of one and the same law) which is invalid.
PROBABLE CAUSE IN SEARCH WARRANTS

SEARCH WARRANTS INVOLVING HEINOUS CRIMES PROBABLE CAUSE

Facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that
SEARCH WARRANTS INVOLVING HEINOUS CRIMES the objects sought in connection with the offense are in the place to be
In cases involving: searched.
1. Heinous crimes
2. Illegal gambling TN: The applicant or his witnesses must have personal knowledge of the
3. Dangerous drugs circumstances surrounding the commission of the offense. Reliable
4. Illegal possession of firearms information is insufficient.

The following are authorized to act on all applications for search Can the reviewing court overturn the finding of probable
warrants involving any of the above crimes: cause?

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CRIMINAL PROCEDURE l TDCI (REVISED) EH407
Yes, upon proof that the issuing judge disregarded the facts before him
or ignored the clear dictates of reason.
HOW THE EXAMINATION SHALL BE CONDUCTED
HOW THE EXAMINATION SHALL BE CONDUCTED BY THE JUDGE
1. Examination must be personally conducted by the judge
2. Examination must be in form of searching questions and
answers
3. Complainants ad witnesses shall be examined on those facts
personally known to them
4. Statements must be in writing and under oath
5. Sworn statements together with the affidavits submitted shall
be attached to the record
Balayon v. Dinopol
RTC judge is guilty of gross ignorance of the law for failure to observe
the mandate of the rules because the Court found that there was no
record of searching questions and answers attached to the records of
the cases.
TN: Examination must be probing and exhaustive and not merely
routinary or general.
PARTICLAR DESCRIPTION OF PLACE OR PERSONS
PARTICULAR DESCRIPTION OF THE PLACE
When is a description of the place to be searched sufficient?
If the officer with the warrant, can, with reasonable effort, ascertain and
identify the place intended and distinguish it from other places in the
community.
Should the person who occupies the described premises be
named?
NO.
United States v. Daresbourg
The warrant gave an erroneous street address but with the right
apartment number in a four-building apartment complex. Since there
was no other apartment in the entire complex that had the same
apartment number as that described in the warrant, the description was
upheld.
TN: Not specifying the sub-unit to be searched in a multiple occupancy
structure is still valid where it specifies the name of the occupant of the
sub-unit.
PARTICULAR DESCRIPTION OF THE PERSON
The person to be searched must be described with reasonable
particularity.
1. He can be identified by a name which others use in calling him
2. Described as one occupying and having control of a specific
address
3. Name is unknown but the best possible description is given
(personal appearance, place of residence, occupation)
PARTICULAR DESCRIPTION OF THE ITEMS TO BE SEIZED
Designated to prevent general searches and avoid the seizure of a thing
not described in the warrant and also so nothing is to be left to the
discretion of the officer executing the warrant.
When is the requirement of particularity said to be satisfied?
If the warrant imposes a meaningful restriction upon the objects to be
seized – one which leaves nothing to the discretion of the officer who
conducts the search.
 Books of accounts, financial records, journals – too broad and
general because it authorizes the search of records pertaining
to all business transactions whether legal or illegal
 Television sets, video cassette recorders, rewinders – these
articles are generally connected with or related to a legitimate
business not necessarily involving piracy of intellectual
property or infringement of copyright laws.
When is general description allowed?
1. When specificity is difficult and where a technical description
would have required the experience of a trained surgeon.
 Instruments for abortion
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2. When a more particular description is not available
 Deer or meat illegally possessed – meat had no brand
names or serial numbers
 Unregistered delivery receipts
 An undetermined amount of marijuana or Indian hemp
3. When dictated by the nature of the things to be seized on the
theory that the description must be specific insofar as the
circumstances will ordinarily allow.
 LPG cylinders bearing trademarks GASUL and SHELLANE
without specifying their sizes
4. When the law enforcers could not have been in the position to
know beforehand the caliber or make of the firearms to be seized
 Unlicensed firearms of various calibers and ammunitions for
said firearms
Should the person against whom the search warrant is directed
own the property to be seized?
NO. The law does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It
is enough that he has control and possession of the property.
EXTENT OF SEARCH
EXTENT OF SEARCH
For the search to be reasonable, the object must be the one properly
described in the warrant.
 Where the warrant is clear and limited only to a particular place
like a store – the search does not extend to the apartment units
located at the back of the store.
The lawful search of the premises particularly described
extends to the areas in which the object may be found.
 If the warrant is to search a vehicle, every part of the vehicle
which may contain the object to be seized may be searched.
 A warrant to search weapons includes the authority to open
closets, drawers and chests which the weapons may be found.
SEARCH OF THIRD PERSONS NOT NAMED IN THE WARRANT
GR: A warrant to search a place does not extend to the authority to
search all persons in the place because the police have no probable
cause to search and detain a person not particularized in the warrant.
XPN: When the officers had no knowledge that the same belongs to a
third person.
DURATION OF THE VALIDITY OF A SEARCH WARRANT
A search warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void.
TIME OF MAKING THE SEARCH
GR: The warrant shall be served in the daytime and such fact must be
so directed by the warrant.
EXCEPTION:
The warrant may insert a direction that it may be served at any time of
the day or night if the affidavit asserts that the property is on the person
or in the place ordered to be searched.
People v. Court of Appeals
The rule on issuance of search warrants allows for the exercise of judicial
discretion in fixing the time within which the warrant may be served,
subject to the statutory requirement fixing the maximum time for the
execution of a warrant.
MANNER OF MAKING THE SEARCH
MANNER OF MAKING THE SEARCH
1. The search shall be made in the presence of the lawful occupant
of the house or any member of his family
2. In the absence of the latter, the search shall be made in the
presence of 2 witnesses of sufficient age and discretion residing
in the same locality.
Duty of the officer seizing the property
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
He must give a detailed receipt for the same to the lawful occupant of
the premises in whose presence the search and seizure were made.
RULE IF THE OFFICER IS REFUSED ADMITTANCE
An officer should knock, introduce himself and announce his purpose.
Only when he is refused admittance that he can break into the house.
Requisites before an officer may break open any door:
1. Officer gives notice of his purpose
2. He is refused admittance despite notice
3. Purpose of breaking is to execute the warrant or to liberate
himself
DUTIES OF THE OFFICER AND THE JUDGE
DUTIES OF THE OFFICER AFTER THE SEARCH AND SEZIURE
1. Officer must deliver the property seized to the judge who
issued the warrant
2. Deliver a true inventory of the property seized which must be
verified under oath.
DUTIES OF THE JUDGE
1. Ascertain if the return has been made 10 days after the
issuance of the search warrant
2. If no return, he shall summon the officer and require him to
explain why no return was made
3. If the return has been made, he shall ensure the compliance
with the requirements for:
 Issuance of a detailed receipt for the property
received
 Delivery of the seized property to the court
 A verified true inventory of the items seized
DUTY OF THE CUSTODIAN OF THE LOG BOOK
The return of the search warrant shall be filed and kept by the custodian
of the log book on search warrants and enter the:
 Date of the return
 The result
 Other actions of the judge
OBJECTIONS TO ISSUANCE OF A WARRANT
OBJECTIONS
Any objection shall be made before he enters his plea, otherwise, the
objection is deemed waived.
REMEDIES OF THE ACCUSED
1. Motion to quash the search warrant
2. Motion to suppress evidence
Where to file?
GR: Before the court where the action has been instituted.
XPN: If no criminal action has been instituted, before the court that
issued the search warrant.
XPN TO THE XPN: If the above court failed to resolve the motion and
a criminal case is subsequently filed in another court, the motion shall
be resolved by the latter court.
Who may assail the search warrant?
By the party whose rights have been impaired. It is purely personal and
cannot be availed by third parties.
What is the proper remedy for the unwarranted quashal of a
search warrant?
Special civil action for certiorari – grave abuse of discretion
EXCEPTIONS TO THE SEACH WARRANT REQUIREMENT
EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT
1. Warrantless search incidental to a lawful arrest
2. Seizure of evidence in plain view
3. Search of a moving vehicle
4. Consented warrantless search
5. Customs search
6. Stop and Frisk or Terry searches
7. Exigent and emergency circumstances
8. Search of vessels and aircraft
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9. Inspection of buildings and other premises for the
enforcement of fire, sanitary and building regulations
SEARCH INCIDENTAL TO A LAWFUL ARREST
SEARCH INCIDENTAL TO A LAWFUL ARREST
Presupposes that the person searched was previously arrested lawfully.
Arrest must precede the search.
What is one instance when the search precedes the arrest?
A search substantially contemporaneous with an arrest can precede the
arrest if the police have probable cause to make the arrest at the outset
of the search.
PARAMETERS OF A SEARCH INCIDENT TO A LAWFUL ARREST
Allowable scope of a search incident to a lawful arrest.
1. For dangerous weapons
2. For anything which may have been used in the commission of
an offense
3. For anything which constitute proof in the commission of an
offense
Is the search confined to the search of the person lawfully
arrested?
No. Not only on the person of the suspect but also within the permissible
area of his immediate control – area from within which he might gain
possession of a weapon or destructible evidence.
TN: Does not apply if suspect’s hand is tied.
People v. Leangsiri
Accused was arrested at the NAIA for bringing heroine into the country.
Others were arrested in the hotel room of accused in entrapment
operation. Without a search warrant, the other room was searched. –
Search of the other room was illegal and the evidence obtained is
inadmissible, the place searched not being within the immediate control
of the persons arrested.
Nolaso v. Pano
The lawful arrest justifying the validity of the warrantless search must
be limited to by the:
1. Subject of the arrest – person of the suspect
2. Time of the arrest – at the time of the arrest or immediately
thereafter
3. Place of the arrest – only at the place where the suspect was
arrested
Espano v. CA
Police arrested the accused in flagrante delicto selling marijuana in the
streets. He admitted that he had marijuana in his house and the police
proceeded to search the same. – Search in the house was unlawful
because they were not armed with a search warrant and the house was
beyond the suspect’s reach and control.
SEARCHES OF MOVING VEHICLES
SEARCHES OF MOVING VEHICLES
It is not practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant
must be sought.
TN: It is required that probable cause exists in order to justify the
warrantless search of a vehicle.
CHECK POINTS
CHECKPOINTS
When checkpoints may be allowed:
 Where the survival of organized government is on the balance
 Where the lives and safety of the people are in grave peril
TN: When the grave perils are removes, checkpoints should cease.
Rules:
 Limited to a visual search
 Vehicles is not searched
 Occupants are not subjected to a body search
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
TN: The officers conducting the search must have probable cause to
believe that they will find the instrumentality of a crime or evidence
before they begin their warrantless search (extensive search).
BUY-BUST OPERATIONS
BUY-BUST OPERATION
A form of entrapment legally employed by peace officers as an effective
way of apprehending drug dealers in the act of committing an offense.
A form of search incidental to a lawful arrest.
Search warrant or warrant of arrest not needed
Because here the accused is caught in flagrante delicto
ENTRAPMENT V. INSTIGATION
 Entrapment – employment of such ways and means for the
purpose of capturing a lawbreaker. (criminal intent originates in
the mind of the accused)
 Instigation – means by which the accused is lured into the
commission of the offense charged in order to prosecute him.
(criminal intent originated from the inducer; law enforcers act as
active principals and leads to the acquittal of the accused)
TWO TESTS IN A BUY-BUST OPERATION
1. Subjective view – focus is on the intent of the accused to
commit a crime
2. Objective view – focus is on the particular conduct of law
enforcement officials or their agents and the accused’s
predisposition becomes irrelevant. (This is the view that we
adopt)
Take note:
1. There is no rule requiring a prior surveillance of the suspected
offender before conducting a buy-bust operation.
2. Non-recording of the buy-bust money in the police blotter will
not affect the validity of the operations
PLAIN VIEW DOCTRINE
PLAIN VIEW DOCTRINE
Objects falling in the plain view of an officer who has a right to be in the
position to have that view are subject to seizure and may be presented
as evidence.
Requisites:
1. Officer in search of the evidence has a prior justification for
an intrusion or is in a position from which he can view a
particular area. (Valid Intrusion)
2. The discovery of the evidence in plain view is inadvertent
(the officer must not have known in advance of the location
of the evidence and discovery is not anticipated)
3. It is immediately apparent to the officer that the item he
observes may be evidence of a crime
TN: The officer must have probable cause to believe that the object is
evidence of a crime. Not only must the item be in plain view. Its
incriminating character must also be immediately apparent.
TERRY SEARCHES
TERRY SEARCHES
The Terry doctrine is of two parts: The stop and the frisk. This is allowed
if the officer has a reasonable belief based on a genuine reason and in
the light of the officer’s experience and the surrounding circumstances,
that a crime has either taken place or is about to take place and the
person to be stopped is armed and dangerous.
1. Valid stop – requires that he has a reasonable ad articulable
belief that criminal activity has happened or is about to
happen
2. Frisk – must be done because of a reasonable belief that the
person stopped is in possession of a weapon that will pose a
danger to the officer and others. It must be a mere pat down
outside the person’s outer garment.
7|U N I V E R S I T Y O F S A N C A R L O S
What is the test of the conduct of the officer?
Genuine reason in accordance with his experience and the surrounding
conditions to warrant the belief that the person to be held has weapons
or contraband concealed.
The Terry doctrine did not justify every stop
Before an officer can stop a citizen in the street, the act must be justified
by concrete facts pointing at least towards a possible criminal activity.
TERRY SEARCH V. SEARCH INCIDENT TO A LAWFUL ARREST
Search incident
Terry search
to a lawful arrest
Does not require probable Presupposes the existence of a
cause and the person is not probable cause for the arrest. The
under a full scale arrest but search is on the person and the
under a mere, brief, area within his control. It is more
investigative stop followed by intrusive and conducted not only
a surface at down of one’s for the purpose of searching for
outer garments weapons but also for other
evidence which may be the fruits
of a crime
CONSENTED SEARCHES
CONSENTED SEARCHES
The consent to a warrantless search must be voluntary – specific and
intelligently given.
Requisites:
1. The right exists
2. The person had knowledge, actual or constructive, of the
existence of such right
3. Said person had an actual intention to relinquish the right
SEARCH UNDER EXIGENT/EXTRAORDINARY CIRCUMSTANCES
This exception is a catch-all category that encompasses a number of
diverse situations. What they have in common is some kind of
emergency that makes obtaining a search warrant impractical, useless,
dangerous, or unnecessary. Provided probable cause exists.
Among these situations are danger of physical harm to the officer or
destruction of evidence, danger to a third person, driving while
intoxicated, and searches in hot pursuit.
EXAMPLE
Just like what happened during the 1987 and 1989 coup where the
military made some searches in suspected places. In that case, there is
no need to obtain search warrants considering that during that time all
the courts in Manila were closed because of the coup de etat. Such
period is considered as extraordinary circumstance.
TN: Search based on probable cause under extraordinary circumstances,
were upheld in People vs. Posadas, 188 SCRA 288 [1990]; Valmonte vs.
Villa, 178 SCRA 211 [1989]; People vs. Maspil, G.R. No. 85177, August
20, 1990, citing Valmonte vs. Villa; People vs. Malmstedt, G.R. No.
91107, June 19, 1991; People vs. Sucro, G.R. No. 93239, March 18,
1991; People vs. Montilla, G.R. No. 123872, January, 30, 1998.
EFFECT OF AN ILLEGAL SEARCH AND SEIZURE
EFFECT OF AN ILLEGAL SEARCH OR SEIZURE
A search warrant illegally obtained may be quashed through a proper
motion. When evidence is illegally obtained, a motion to suppress is in
order.
Exclusionary rule
The most important effect of an illegal search and seizure is the
exclusion of the evidence obtained from being used against the accused.
“Fruit of a poisonous tree”
Non-exclusionary rule
The unconstitutionality of the searches and seizures does not affect the
admissibility of the evidence obtained because the criminal should not
be allowed to go free because the constable has blundered.
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
CIVIL DAMAGES
The aggrieved party have the right to seek damages, if the
circumstances warranted, by separate civil action for the wrong inflicted
on them by an improperly obtained or enforced search warrant
There is civil liability based on the concept of an independent civil action
for violation of a person's right to be secure in his persons, house,
papers, and effects against unreasonable searches and seizures under
Article 32[9] of the Civil Code of the Philippines.
CRIMINAL LIABILITY
This liability is separate and distinct from any criminal liability that may
arise from the Revised Penal Code like: (a) violation of domicile (Article
128, Revised Penal Code), (b) search warrant maliciously obtained and
abuse in the service of those legally obtained (Article 129, Revised Penal
Code), or possibly (c) searching domicile without witnesses (Article 130,
Revised Penal Code).
8|U N I V E R S I T Y O F S A N C A R L O S
CHAPTER 6. BAIL
RULE 114 – BAIL
GENERAL CONSIDERATIONS
BAIL DEFINED
The security given for the release of a person in custody of the law,
furnished by him or by a bondsman, to guarantee his appearance before
any court.
Distinguished from bondsman
A bondsman is the one who furnishes the security given for the
provisional release of the person in custody of the law.
Constitutional basis of the right to bail
All persons, except those charged with offenses punishable by RP when
evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be
required. (Section 13, Article 3, Constitution)
TN: The grant or denial of bail to a person charged with an offense
punishable by at least RP, is made depended on whether or not the
evidence of guilt is strong.
 Evidence of guilt is strong – bail denied
 Evidence of guilt is not strong – matter of right
Presumption great
Exists when the circumstances testified to are such that the inference of
guilt naturally to be drawn therefrom is strong, clear and convincing to
an unbiased judgment.
TN: The test used is whether the evidence shows evident guilt or a great
presumption of guilt and NOT whether the evidence establishes guilt
beyond reasonable doubt.
BAIL IN OTHER PROCEEDINGS
MILITARY
Not available. Right to a speedy trial is given more emphasis.
Reason: Because of the unique structure of the military, not to mention
that they are highly skilled and dangerous.
EXTRADITION PROCEEDINGS
Government of the US v. Purganan
Bail applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of
conviction or acquittal. Also, it is not a criminal proceeding and
presumption of innocence is not at issue.
Bail is not a matter of right in extradition cases but due process is broad
enough to include the grant of basic fairness to extraditees.
Exception to the “no bail rule”
Bail may be applied for and granted in an extradition case upon a clear
and convincing showing that:
1. Once granted bail, applicant will not be a flight risk or a danger
to the community
2. There exist special, humanitarian and compelling circumstances
TN: Applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness.
Gov’t of Hongkong Special Administrative Region v. Olalia
The exercise of State’s power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. To limit bail to criminal
proceedings would be to close our eyes to our jurisprudential history.
Bail had been in the past granted in deportation proceedings, hence it
sees no justification why it should not also be allowed in extradition
cases. UDHR applies to deportation cases as well.
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
DEPORTATION PROCEEDINGS
GR: Aliens in deportation proceedings have no inherent right to bail.
XPN: “Any alien under arrest in a deportation proceeding may be
released under bond or under such other conditions as may be imposed
by the Commissioner of Immigration.” (Philippine Immigration Act)
TN: Grant of bail by the Commissioner of Immigration is merely
permissive and not mandatory. It is wholly discretionary on his part. The
courts do not administer immigration law.
ITM of the Petition for Habeas Corpus of Harvey v. Defensor-
Santiago
Right to bail is not a matter of right but a matter of discretion on the
part of the Commissioner of Immigration and deportation.
RIGHTS AND OBLIGATIONS OF THE BONDSMAN
Who furnishes the bail?
1. The applicant himself
2. By a bondsman
OLIGATION OF THE BONDSMAN
To surrender the accused to the court for execution of the final
judgment.
TN: He may arrest the accused for the purpose of surrendering him to
the courts.
Rationale: Once the obligation of bail is assumed, the bondsman
becomes the jailer of the accused and is subrogated to all the rights and
means which the government possesses to make his control over him
effective.
When can an accused out on bail be re-arrested?
If he attempts to depart from the Philippines without the permission of
the court where the case is pending. This can be done even without a
warrant.
APPLICANT FOR BAIL MUST BE IN CUSTODY
BAIL APPLIES ONLY TO A PERSON IN CUSTODY OF THE LAW
Bail is the security for the release of a person under custody. Hence, bail
cannot be availed of by someone outside the custody of the law. A free
man is not entitled to bail.
It would be incongruous to file a petition for bail for someone whose
freedom has yet to be curtailed.
Exceptions:
1. Accused who is confined in a hospital who communicates his
submission to the court (Constructive Custody)
2. When bail is required to secure the appearance of a material
witness
Defensor-Santiago v. Vasquez
Accused who is confined in a hospital may be deemed to be in the
custody of the law if he clearly communicates his submission to the court
while confined in a hospital. Hence he may post a cash bail bond for her
provisional liberty without need of her personal appearance in view of
her physical incapacity and as a matter of humane consideration.
When can the court require bail to secure the appearance of a
material witness?
When the court is satisfied that a material witness will not testify when
required, it can, upon motion of either party, order the witness to post
bail. If he refuses, the court may commit him to prison until he complies
or is legally discharged after his testimony has been taken.
BAIL FOR THOSE NOT YET CHARGED
RULE
Any person in custody who is not yet charged in court may apply for bail
with any court in the P, C or M where he is held.
Ruiz v. Beldia
Person arrested was detained in Camp Crame pending the filing of
formal charges in court. Judge of Marikina issued an order of release.
The application for bail should have been filed before the proper Quezon
City Court and not in Marikina City.
9|U N I V E R S I T Y O F S A N C A R L O S
TN: It is elementary that a municipal court judge has no authority to
grant bail to an accused arrested outside of his territorial jurisdiction.
EFFECTS OF FAILURE TO APPEAR AT THE TRIAL
Failure of the accused to appear at the trial without justification despite
notice, shall be deemed as a waiver of his right to be present. The trial
then may proceed in absentia.
ARRAIGNMENT BEFORE BAIL
GR: The Court cannot require arraignment before the grant of bail.
Lavides v. CA
Grant of bail should not be conditioned upon the prior arraignment of
the accused. Otherwise, accused will be precluded from filing a motion
to quash which is to be done before arraignment.
Serapio v. Sandiganbayan
A person is allowed to petition for bail as soon as he is deprived of his
liberty by virtue of his arrest or voluntary surrender. Accused need not
wait for his arraignment before filing a petition for bail.
Is the filing of a motion to quash during the pendency of a
petition for bail allowed?
Yes. Nothing is inconsistent between the two. Bail is for the purpose of
obtaining provisional liberty, while a motion to quash is for the purpose
of assailing the validly of a criminal complaint. Posting of bail is not a
waiver of the right of the accused to question the validity of his arrest.
FORMS OF BAIL
FORMS OF BAIL:
1. Corporate surety
2. Property bond
3. Cash deposit
4. Recognizance
Corporate surety
Bail furnished by a corporation, whether domestic or foreign. The
corporation must be:
 Licensed as a surety and authorized to act as such
 Subscribe the same jointly by the accused and an officer of
the corporation duly authorized by the board of directors
Property bond
Undertaking constituted as a lien on the real property given as security
for the amount of the bail.
Qualifications of the sureties:
1. Each must be a resident owner of real estate in the Philippines
2. Where there is only one surety – his real estate must be worth
at least the amount of the undertaking
3. Where there are two or more sureties – the aggregate must
be equivalent to the whole amount of the bail demanded
Cash deposit
The accused or any person acting in his behalf may deposit in cash with
the:
 Nearest collector of internal revenue
 PCM treasurer
 Clerk of court where the case is pending
TN: A judge is not authorized to receive a deposit of cash bail.
Recognizance
An obligation of record entered into before some court or magistrate
duly authorized to take it. Accused is being released to a responsible
authority or individual to guaranty his appearance in court whenever it
is needed in court.
Release on recognizance may be ordered by the court in the ff cases:
1. When the offense is for violation of an ordinance, a light
felony, or a criminal offense where the imposable penalty
does not exceed 6 months imprisonment
2. Person has been in custody for a period equal to or more than
the minimum of the imposable principal penalty without
application of the ISL or any modifying circumstance
 Release on his own recognizance
 Reduced bail
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
3. Accused has applied for probation, pending finality of the
judgment but no bail was filed or the accused is incapable of
filing one
4. In a summary procedure when the accused has been arrested
for failure to appear when required.
GUIDELINES IN FIXING THE AMOUNT OF BAIL
Basic rule: Excessive bail shall not be required. It should be high
enough to assure the presence of the accused but no higher than is
reasonably calculated to fulfill this purpose.
Factors to consider:
1. Financial ability
2. Nature and circumstances of the offense
3. Penalty for the offense
4. Character and reputation of the accused
5. Age and health
6. Weight of the evidence against the accused
7. Probability of the accused appearing at the trial
8. Forfeiture of other bail
9. Fact that accused was a fugitive when arrested
10. Pendency of other cases where the accused is on bail
When can the court increase the bond?
When there exists a high degree of probability that the accused will
abscond or escape
DURATION OF THE BAIL
DURATION OF THE BAIL
Effective upon approval and shall remain in force, unless cancelled, at
all stages of the cases until promulgation of judgment of the RTC,
irrespective of whether the case was originally filed in or appealed to it.
When can the bail bond be used during the period to appeal?
Only during the 15-day period to appeal to appeal and not during the
entire period of appeal. To continue his provisional liberty on the same
bail bond, consent of the bondsman is necessary.
NO RELEASE OR TRANSFER OF PERSON IN CUSTODY
No person under detention by legal process shall be released or
transferred, except:
1. Upon order of the court
2. When he is admitted to bail
WHEN BAIL IS NOT REQUIRED
GR: Bail is not required when the law or the Rules so provide.
1. When the person has been in custody for a period equal to or
more than the possible maximum imprisonment prescribed for the
offense charged – released immediately
2. If the maximum penalty is destierro – released after 30 days of
preventive imprisonment
3. Cases filed with the MTCs for an offense punishable by
imprisonment of not less than 4 years, 2 months and 1 day –judge
may issue summons instead of a warrant of arrest (if he is
satisfied that there is no necessity for placing the accused under
custody)
4. If a person is charged with a violation of a municipal or city
ordinance, a light felony, or a crime with a penalty not higher than
6 months imprisonment and/or a fine of 2,000, where it is
established that he is unable to post the required cash or bail
bond.
Exceptions:
 In flagrante delicto
 He confesses to the crime
 Previously escaped
 Recidivist, habitual delinquent
 Commits an offense while on parole or conditional
pardon
 Previously been pardoned by the mayor for violation of
an ordinance at least 2 times
10 | U N I V E R S I T Y O F S A N C A R L O S
What is required in lieu of bail?
Sign in the presence of 2 witnesses of good standing in the community
a sworn statement binding himself to report to the Clerk of Court hearing
the case periodically every 2 weeks, pending final decision of the case.
WHEN BAIL IS NOT ALLOWED
WHEN BAIL IS NOT ALLOWED
1. Charged with a capital offense or one punishable by RP or
life imprisonment when the evidence of guilt is strong
2. After a judgment of conviction has become final
3. After the accused has commenced to serve sentence
WHEN BAIL IS A MATTER OF RIGHT
GR: All persons in custody shall be admitted to bail as a matter of
right.
 Before and after conviction by the MTCs
 Before conviction by the RTC of an offense not punishable
by death, RP or life
TN: The existence of a high probability that the defendant will abscond
will not remove the nature of the bail as a matter of right to the accused.
The only recourse of the judge is to fix a higher amount of bail.
What is the remedy when bail is denied?
Petition for certiorari if the trial court committed a grave abuse of
discretion amounting to lack or excess of jurisdiction.
What is the remedy when bail is cancelled?
File with the CA a motion to review the said order in the same regular
appeal proceedings which the appellant himself initiated. Filing of a
separate petition via a special civil action for certiorari before the CA is
prohibited. (Multiplicity of suits)
WHEN BAIL IS A MATTER OF DISCRETION
WHEN BAIL IS DISCRETIONARY
1. Charged with a capital offense or one punishable by RP or life
imprisonment (discretionary because it depends whether evidence
of guilt is strong to be determined during the hearing)
2. Upon conviction by the RTC of an offense NOT punishable by
Death, RP, Life imprisonment (exceeding 6 years). Provided it is
shown that the accused is not a/has not:
 Recidivist, quasi-recidivist, habitual delinquent, reiteracion;
 Previously escaped;
 Committed the offense while under probation, parole or
conditional pardon;
 Circumstances indicate the probability of flight if released on
bail;
 Undue risk that he may commit another crime.
WHERE TO APPLY FOR BAIL AFTER CONVICTION
WHERE TO APPLY FOR BAIL AFTER CONVICTION BY THE RTC
May be filed and acted upon by the RTC even if a notice of appeal has
already been filed, provided:
 The original record has not yet been transmitted to the appellate
court, otherwise, application must be filed with the CA.
Exception: If the decision of the RTC changed the nature of the
offense from non-bailable to bailable – application for bail can only be
filed with the appellate court.
WHEN BAIL AFTER CONVICTION SHOULD BE DENIED
1. If the penalty imposed by the RTC is death, RP or life
imprisonment (because this indicates strong evidence of guilt)
2. Even if the penalty is neither of the above but merely
imprisonment exceeding 6 years, the accused shall be denied bail
if the following circumstances are present:
 Recidivist, quasi-recidivist, habitual delinquent, reiteracion
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
 Previously escaped
 Committed the offense while under probation, parole or
conditional pardon
 Circumstances indicate the probability of flight if released
on bail
 Undue risk that he may commit another crime
TN: Absence of any of the circumstances does not mean that bail should
automatically be granted – discretionary on the part of the court.
HEARING OF APPLICATION FOR BAIL
HEARING FOR BAIL
When the granting of bail is not a matter of right, a hearing should first
be conducted to determine the strong evidence or the lack of it.
 Absence of objection from the prosecution is never a basis for
the grant of bail
 The fact that the prosecutor interposed no objection to the
application for bail does not relieve the judge of the duty to
set the motion for bail for hearing.
DUTIES OF THE JUDGE
Duties of the trial judge in a petition for bail in offenses punishable by
death, RP or life imprisonment
1. Notify the prosecutor of the hearing of the application for bail
or require him to submit his recommendation
2. Conduct a hearing
3. Decide whether the evidence of guilt is strong
4. If not strong, discharge the accused upon approval of the bail
bond
TN: The court’s grant or refusal of bail must contain a summary of the
evidence for the prosecution. It is considered as an aspect of procedural
due process for both the prosecution and defense. Its absence will
invalidate the grant or the denial of the application for bail.
EVIDENCE IN BAIL HEARING
The evidence presented during the bail hearing shall be considered
automatically reproduced at the trial.
However, any witness during the bail hearing may, upon motion of
either party, be recalled by the court for additional examination.
Exceptions:
If the witness is:
1. Dead;
2. Outside the Philippines; or
3. Unable to testify
WHERE APPLICATION FOR BAIL MAY BE FILED
General Rule:
Application for bail may be filed with the court where the case is
pending.
Excpetion:,
If the judge thereof is absent or unavailable it may be filed with any RTC
or MTC judge in the province, city, or municipality.
OTHER RULES:
1. Where the accused is arrested in a province, city, or
municipality OTHER THAN where the case is pending
The application for bail may be filed with any RTC of said place.
If no judge thereof is available.
With any MTC judge in the said place
TN: When bail is filed with the court other than where the case is
pending, the judge who accepted the bail shall forward it, together
with the order of release and other supporting papers, to the court
where the case is pending, which may, for good reasons, require a
different one to be filed.
Savella v. Ines
The failure of a judge who granted the bail to transmit the order
of release and other supporting papers to the court where the case
is pending constitutes violation of the rules.
2. Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance
11 | U N I V E R S I T Y O F S A N C A R L O S
The application may ONLY be filed in the court where the case is
pending, on trial, or appeal.
3. When a person is in custody but NOT yet charged
He may apply for bail with ANY court in the province, city or
municipality where he is held.
INCREASE OR REDUCTION OF BAIL
INCREASE OR REDUCTION OF BAIL
After the accused is admitted to bail, the amount of bail may either be
increased or reduced by the court upon good cause.
The increased amount must be given within a reasonable period if the
accused wants to avoid being taken into custody.
BAIL FOR ACCUSED RELEASED WITHOUT BAIL
BAIL FOR ACCUSED ORIGINALLY RELEASED WITHOUT BAIL
If upon the filing of the complaint or information the accused is released
without bail, he may later be required to give bail in the amount fixed
by the court whenever at any subsequent stage of the proceedings a
strong showing of guilt appears to the court.
If he does not give bail he may be committed into custody.
FORFEITURE OF BAIL
FORFEITURE OF BAIL
If the accused fails to appear before the proper court whenever required
to appear in person, his bail shall be declared forfeited.
When his presence is required, his bondsmen shall be notified to
produce him before the court on a given date and time.
The bondsmen shall be given thirty (30) days within which to produce
their principal and to show cause why no judgment should be rendered
against them for the amount of the bail.
The bondsmen must, within the period:
1. Produce the body of their principal or give the reasons for his
non-production; and
2. Explain why the accused did not appear before the court when
first required to do so.
Failing in these two requirements, a judgment shall be rendered against
the bondsmen, jointly and severally, for the amount of the bail.
TN: If the bondsmen move for the mitigation of their liability, the court
is required not to reduce or otherwise mitigate the liability of the
bondsmen, unless the accused has been surrendered or is acquitted.
CANCELLATION OF THE BAIL; REMEDY
CANCELLATION OF BAIL MAY EITHER BE:
1. Cancellation by application of the bondsmen
2. Automatic cancellation
Cancellation by application of the bondsmen
Bail may be cancelled upon application of the bondsmen with due notice
to the prosecutor upon:
 Surrender of the accused; or
 Proof of his death.
Automatic cancellation
The bail may also be deemed automatically cancelled upon:
 Acquittal of the accused;
 Dismissal of the case; or
 Execution of the judgment of conviction.
REMEDY
The appellate court can motu proprio or on motion of any party review
the resolution/cancellation of the Regional Trial Court after notice to the
adverse party in either case.
Chua v. Court of Appeals
The appropriate remedy against the trial court's order canceling the bail
is by filing with the Court of Appeals a motion to review the said order
CRIMINAL PROCEDURE l TDCI (REVISED) EH407
in the same regular appeal proceedings which the appellant himself
initiated, such motion being an incident to his appeal. The filing of a
separate petition via a special civil action for certiorari before the
appellate court is proscribed and contravenes the rule against
multiplicity of suits and constitutes forum shopping.

APPLICATION/ADMISSION TO BAIL NOT A BAR TO

OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION

The application or admission of the accused to bail shall not bar him
from challenging the:
1. Validity of his arrest;
2. Legality of the warrant issued therefore; or
3. Regularity or absence of a preliminary investigation of the
charge against him

Provided the same is raised before he enters his plea.

TN: The court shall resolve the matter as early as practicable, but not
later than the start of the trial of the case.

12 | U N I V E R S I T Y O F S A N C A R L O S
CRIMINAL PROCEDURE l
BAIL AS A MATTER OF
RIGHT
1. BEFORE conviction by the MTC;
2. AFTER conviction by the MTC
pending approval;
3. BEFORE conviction by the RTC
and the imposable penalty for
the offense is NOT:
4. BEFORE conviction by the RTC:
i. For an offense punishable by:
 Death;
 Reclusion Perpetua; or
 Life Imprisonment.
ii. But the evidence of guilt is NOT
strong *
* Note: This circumstance it is placed under the category “as a matter of right” because there is already a finding of the court that the evidence of
guilt is not strong. However, if there is still no finding that the evidence of guilt is not strong , it is still within the ambit of “as a matter of discretion”
since the court still needs to use its “discretion” to find out WON the evidence of guilt is strong.
13 | U N I V E R S I T Y O F S A N C A R L O S
SUMMARY
BAIL IS DISCRETIONARY
Upon conviction by the RTC of an
offense NOT punishable by:
 Death;
 Reclusion perpetua; or
 Life Imprisonment.
Provided it is shown that the
accused is NOT/has NOT:
 Recidivist, quasi-recidivist,
habitual delinquent, reiteracion;
 Previously escaped;
 Committed the offense while
under probation, parole or
conditional pardon;
 Circumstances indicate the
probability of flight if released
on bail; or
 Undue risk that he may commit
another crime.
BAIL IS NOT
ALLOWED/SHOULD BE DENIED
1. BEFORE conviction by the RTC:
i. Of an offense punishable by:
 Death;
 Reclusion perpetua; or
 Life Imprisonment.
ii. The evidence of guilt is strong;
2. AFTER conviction by the RTC,
pending appeal, of a offense
punishable by:
 Death;
 Reclusion perpetua; or
 Life Imprisonment.
3. AFTER conviction by the RTC of
an offense with an imposable
penalty of imprisonment of
more than 6 years but not
exceeding 20 years, and it is
shown that the accused is/has:
 Recidivisst, quasi-recidivist,
habitual delinquent,
reiteracion;
 Previously escaped;
 Committed the offense while
under probation, parole or
conditional pardon;
 Circumstances indicate the
probability of flight if released
on bail; or
 Undue risk that he may commit
another crime.
4. After a judgment of conviction
has become final
5. After the accused has
commenced to serve sentence
CRIMINAL PROCEDURE l
That doubt engendered by an investigation of the whole proof and an
inability after such investigation to let the mind rest each upon the
CHAPTER 7. RIGHTS OF THE ACCUSED certainty of guilt.

The burden lies on the prosecution to overcome such presumption of

innocence by presenting the quantum of evidence required. In so doing,
RULE 115 - RIGHTS OF THE ACCUSED the prosecution must rest on the strength of its own evidence and must
not rely on the weakness of the defense.

RIGHTS OF THE ACCUSED AT THE TRIAL Does the presumption of innocence end upon conviction by the
trial court even if the conviction is appealed?
The existence of a presumption indicating the guilt of the accused does
RIGHTS OF THE ACCUSED AT THE TRIAL not in itself destroy the constitutional presumption of innocence until a
1. Right to be presumed innocent; promulgation of final conviction is made.
2. Right be informed of the nature and cause of accusation
against him; Re: Conviction of Judge AAA
3. Right to be present and defend in person and by counsel at The existence of a presumption indicating the guilt of the accused does
every stage of the proceeding; not in itself destroy the constitutional presumption of innocence unless
4. Right to Counsel; the inculpating presumption, together with all the evidence, or the lack
5. Right to testify as witness in his own behalf; of any evidence or explanation, proves the accused's guilt beyond a
6. Right against self-incrimination; reasonable doubt. Until the accused's guilt is shown in this manner, the
7. Right to confront and cross examine the witnesses against presumption of innocence continues and until a promulgation of final
him at trial; conviction is made, this constitutional mandate prevails.
8. Right to compulsory process;
9. Right to a speedy, impartial and public trial; and PROSECUTION MUST REST ON ITS OWN MERITS
10. Right to appeal on all cases allowed by law and in the manner The prosecution must rest on its own merits and must not rely on the
prescribed by law. weakness of the defense In establishing the guilt of the accused.

Mupas v. People
RIGHT TO BE PRESUMED INNOCENT If the prosecution fails to meet the required quantum of evidence, the
defense may logically not even present evidence on its own behalf. In
which case, the presumption of innocence shall prevail and hence, the
PRESUMPTION OF INNOCENCE
GR: An accused in criminal prosecutions is to be presumed innocent accused shall be acquitted. However, once the presumption of
until his guilt is proven beyond reasonable doubt. innocence is overcome, the defense bears the burden of evidence to
show reasonable doubt as to the guilt of the accused.
Unless the prosecution has established by such quantum of evidence
Effect of failure to identify the perpetrator
sufficient to overcome this presumption of innocence and prove that a
What is the effect of the failure to identify the accused as perpetrator
crime was committed and that the accused is guilty thereof, this
of the offense charged?
constitutional guarantee cannot be overthrown
People v. Olivo
Where the people's evidence fails to meet the quantum required
XPNs:
to overcome the constitutional presumption of innocence, the accused
1. In cases of self-defense, the person invoking self-defense is
is entitled to acquittal regardless of the weakness of his defense of
presumed guilty. In this case, a reverse trial will be held.
denial and uncorroborated alibi, for it is better to acquit a guilty man
2. The legislature has the power to provide that proof of certain
than to unjustly keep in prison one whose guilt has not been proven
facts can constitute prima facie evidence of the guilt of the
beyond the required quantum of evidence.
accused and then shift the burden of proof to the accused
provided there is a rational connection between the facts proved
Failure to comply with post-seizure procedures set by law
and the ultimate fact presumed. (Prima facie presumptions
What is the effect of the failure of the arresting officers to comply with
of guilt)
post-seizure procedures set by law?
Presumption of regularity in the performance of official duty
People v. Frondozo
GR: The testimony of the police officers who apprehended the accused
The failure to comply with the procedure in the custody of the seized
is usually accorded full faith and credit because of the presumption that
drugs raises doubt as to its origins. Nevertheless, while the seized drugs
they have performed their duties regularly.
may be admitted in evidence, it does not necessarily follow that the
same should be given evidentiary weight if the procedures provided by
XPN: When the performance of their duties tainted with irregularities,
R.A. No. 9165 were not complied with. The admissibility of the seized
such presumption is effectively destroyed.
dangerous drugs in evidence should not be equated with its probative
value in proving the corpus delicti. The admissibility of evidence
TN: Presumption of regularity in the performance of official duty should
depends on its relevance and competence while the weight of evidence
not by itself prevail over the presumption of innocence.
pertains to evidence already admitted and its tendency to convince and
persuade.
PROOF BEYOND REASONABLE DOUBT
Moral certainty only is required or that degree of proof which produces
THE EQUIPOISE RULE
conviction in an unprejudiced mind. Does not mean such a degree of
Equipoise rule – where the evidence of the parties in a criminal case are
proof as, excluding possibility of error, produces absolute certainty
evenly balanced, the constitutional presumption of innocence should tilt
in favor of the accused and must be acquitted.
The only one type of quantum of evidence which overcomes the
presumption of innocence. Without such, the accused is entitled to an
TN: There is, no equipoise if the evidence is not evenly balanced. Said
acquittal.
rule is not applicable where the evidence presented is not equally
weighty.
Reasonable doubt

14 | U N I V E R S I T Y O F S A N C A R L O S
CRIMINAL PROCEDURE l
RIGHT BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM
ACCUSED’S RIGHT TO BE INFORMED
The right requires that the information should state the facts and
circumstances constituting the crime charged in terms sufficient to
enable a person of common understanding to know what offense is
being charged.
Allegations necessary in the complaint or information
In order to inform the accused of the nature and cause of accusation
against him, it is necessary for the complaint or information to contain
those matters required by the statute or by the Rules of Court:
1. To state the name and surname of the accused or any
appellation or nickname by which he has been or is known;
2. To state the name and surname of the offended party;
3. To state with sufficient clarity and in an ordinary and concise
language, the acts or omissions constituting the offense;
4. To state also in ordinary and concise language, the qualifying
and aggravating circumstances;
5. To sufficiently allege that the crime was committed or its
essential ingredients occurred at some place within the
jurisdiction of the court;
6. To allege the date of the commission of the acts or omissions
constituting the offense;
WAIVER OF RIGHT TO BE INFORMED
The right to be informed may not be waived. It is a basic constitutional
right of the accused to be informed of the nature and cause of
accusation against them.
XPN: Accused actively participated in the proceedings
People v. Pangilinan
When the counsel of the accused actively participated in the
proceedings this indicates that the accused was fully aware of the
charges against him, otherwise, his counsel would have objected and
informed the court of the blunder.
Burgos v. Sandiganbayan
But the failure to file a motion to quash the information cannot amount
to a waiver of the constitutional right to be informed.
Minor variance between the Information and the Evidence
GR: A minor variance between the information and the evidence does
not alter the nature of the offense, nor does it determine or qualify the
crime or penalty.
XPN: If the variance is an essential element of the crime.
TN: Where an accused is charged with a specific crime, he is duly
informed not only of such specific crime, but also of lesser crimes or
offenses included therein.
People v. Lucas
Where time or place or any other fact alleged is not an essential element
of the crime charged, conviction may be had on proof of the commission
of the crime, even if it appears that the crime was not committed at the
precise time or place alleged, or if the proof fails to sustain the existence
of some immaterial fact set out in the complaint, provided it appears
that the specific crime charged was in fact committed prior to the date
of the filing of the complaint or information within the period of the
statute of the limitations, and at a place within the jurisdiction of the
court.
People v. Noque
The Information filed was for the crimes of illegal sale and illegal
possession of regulated drugs. Ephedrine has been classified as a
regulated drug; it is classified as the raw material of shabu. Under Secs.
4 and 5, Rule 120 of the Rules of Court, an offense charged is
15 | U N I V E R S I T Y O F S A N C A R L O S
necessarily included in the offense proved when the essential
ingredients of the former constitute or form part of those constituting
the latter. At any rate, a minor variance between the information and
the evidence does not alter the nature of the offense, nor does it
determine or qualify the crime or penalty, so that even if a discrepancy
exists, this cannot be pleaded as a ground for acquittal.
People v. Dico
No. The variance in the identity of the check nullifies the conviction of
accused. The identity of the check enters into the first element of the
offense under Sec. 1 of B.P. 22 – that a person draws or issues a check
on account or for value. There being a discrepancy in the identity of the
checks described in the information and that presented in court, the
constitutional right of accused to be informed of the nature of the
offense charged will be violated if his conviction is upheld.
RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY
COUNSEL AT EVERY STAGE OF THE PROCEEDING
RIGHT TO BE PRESENT AT HIS TRIAL
Instances when the presence of the accused is mandatory in
criminal proceedings
1. During arraignment;
2. Promulgation of judgment; and
XPN: When the conviction is for a light offense, in which
case, it may be pronounced in the presence of his counsel or
a representative
3. When ordered by the court for purposes of identification.
TN: Such requirement has no application to the proceedings or to the
entry and promulgation of the judgments before the CA and SC. The
defendant need not be present during the hearing of the appeal.
WAIVER OF RIGHT TO BE PRESENT DURING THE TRIAL
Right to be present may be waived by:
1. A waiver pursuant to the stipulation set forth in his bail;
2. Absence of the accused without justifiable cause at the trial
of which he had notice; and
3. If the accused jumps bail.
TN: The accused may be compelled to be present despite waiver for
purposes of identification, but if the accused manifests in open court
that he is indeed the accused, such shall also be considered a waiver
thereof.
Effects of waiver of the right to appear by the accused
1. It is also a waiver to present evidence;
2. Prosecution can present evidence despite the absence of the
accused; and
3. The court can decide even without accused’s evidence.
TRIAL IN ABSENTIA
A “trial in absentia” may be had when the following requisites are
present:
1. That there has been an arraignment;
2. That the accused has been notified; and
3. That he fails to appear and his failure to do so is unjustified.
RIGHT TO COUNSEL
RIGHT TO COUNSEL DURING TRIAL
RIGHT TO COUNSEL OF AN ACCUSED
To be defended by counsel at every stage of the proceeding from
arraignment to promulgation of judgment.
CRIMINAL PROCEDURE l
WAIVER OF RIGHT
The accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel.
TN: To insure that the waiver is voluntary and intelligent, the waiver
must be in writing and in the presence of the counsel of the accused.
TN: The defendant cannot raise the question of his right to have an
attorney for the first time on appeal.
RIGHT TO CHOOSE A COUNSEL IS NOT PLENARY
A counsel de oficio may be appointed during:
1. The absence of the accused's counsel de parte; or
2. If the chosen counsel deliberately make himself scarce to the
detriment of the eventual resolution of the case.
COMPETENT AND INDEPENDENT COUNSEL
Someone who is willing to fully safeguard the constitutional rights of
the accused, as distinguished from one who would be merely giving a
routine, peremptory and meaningless recital of the individual's
constitutional rights.
People v. Rapeza
The competent or independent lawyer so engaged should be present
from the beginning to end, i.e., at all stages of the interview, counseling
or advising caution reasonably at every turn of the investigation, and
stopping the interrogation once in a while either to give advice to the
accused that he may either continue, choose to remain silent or
terminate the interview.
RIGHT TO COUNSEL OF PERSONS ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION
CUSTODIAL INVESTIGATION
GENERAL MEANING
Custodial investigation is the stage where the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus
on a particular suspect taken into custody by the police who carry out
a process of interrogation that lends itself to elicit incriminating
statements.
EXTENDED MEANING UNDER RA 7438
Custodial investigation shall include the practice of issuing an invitation
to a person who is investigated in connection with an offense he is
suspected to have committed
TN: Police line-up not part of custodial inquest.
RIGHTS OF PERSON UNDER CUSTODIAL INVESTIGATION
1. Right to be informed of his right to remain silent
2. Right to have competent and independent counsel preferably of
his own choice.
3. If the person cannot afford the services of counsel, he must be
provided with one.
TN: These rights cannot be waived except in writing and in
the presence of counsel.
4. No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
5. Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
6. The law shall provide for penal and civil sanctions for violation
of this section as well as compensation for the rehabilitation of
victims of tortures or similar practices, and their families.
RIGHT TO COUNSEL OF PERSONS ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION
One need not how be an accused to avail of the right to counsel and
the right to counsel does not commence only during the trial. Every
person under custody of the law enjoys the right.
16 | U N I V E R S I T Y O F S A N C A R L O S
Republic Act No. 7438 (Sec. 2) provides that "Any person arrested,
detained or under custodial investigation shall at all times be assisted
by counsel."
DISTINCTION BETWEEN THE RIGHT TO COUNSEL DURING
TRIAL & DURING CUSTODIAL INVESTIGATION
DURING TRIAL DURING CUSTODIAL
INVESTIGATION
Right of the accused to an Requires the presence of
effective counsel. competent and independent
counsel who is preferably the
choice of the accused.
Counsel is not to prevent the The reason for such right is that
accused from confessing but to in custodial investigation, there
defend the accused. is a danger that confessions can
be exacted against the will of the
accused since it is not done in
public.
PRESENCE OF COUNSEL; WHEN REQUIRED
The moment a police officer tries to elicit admissions or confessions or
even plain information from a suspect, the latter should be assisted by
counsel.
No custodial investigation in the absence of any lawyer.
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Art. 125 of the
Revised Penal Code.
TN: The assisting counsel provided by the investigating officer must not
be those directly affected by the case, those charged with conducting
preliminary investigation or those charged with the prosecution of
crimes.
Ratio: To curb the police-state practice of extracting a confession that
leads suspects to make self- incriminating statements.
XPN:
Unless he waives this right in writing and in the presence of counsel;
People v. Ayson
The constitutional right to a competent and independent counsel exists
only in custodial interrogations, or in-custody interrogation of accused
persons. A preliminary investigation is an inquiry or a proceeding to
determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed, and that the
respondent is probably guilty thereof and should be held for trial.
Evidently, a person undergoing preliminary investigation before the
public prosecutor cannot be considered as being under custodial
investigation.
TN: The right to counsel applies in certain pre-trial proceedings that can
be deemed "critical stages" in the criminal process like in a preliminary
investigation.
REQUIREMENT FOR A VALID CUSTODIAL INVESTIGATION
REPORT
1. The report shall be reduced to writing by the investigating
officer;
2. If the person arrested or detained does not know how to read
and write, it shall be read and adequately explained to him by
his counsel or by the assisting counsel in the language or dialect
known to such arrested or detained person. This is to be done
before the report is signed.
TN: If this procedure is not done, the investigation report shall be null
and void and of no effect whatsoever.
CRIMINAL PROCEDURE l
RIGHT TO COUNSEL IN ADMINISTRATIVE CASES
RIGHT TO COUNSEL IN ADMIN CASES
A party in an administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of respondent's
capacity to represent himself, and no duty rests on such body to furnish
the person being investigated with counsel.
The right to counsel is not imperative in administrative investigations
because such inquiries are conducted merely to determine whether
there are facts that merit disciplinary measures against erring public
officers and employees, with the purpose of maintaining the dignity of
government service.
EXTRAJUDICIAL CONFESSIONS
REQUISITES FOR AN EXTRAJUDICIAL CONFESSION TO BE
VALID
1. It shall be in writing and signed by the person arrested,
detained or under custodial investigation;
2. It must be signed in the presence of his counsel or in the
latter's absence, upon a valid waiver;
3. In the event of a valid waiver, it must be signed in the
presence of any of the parents, elder brothers and sisters, his
spouse, the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel as
chosen by him.
TN: An extrajudicial confession made by an accused, shall not be
sufficient ground for conviction, unless corroborated by evidence of
corpus delicti.
People v. Lumanog
Even without the extrajudicial confession of the accused, the testimonial
and documentary evidence on record could establish his guilt beyond
reasonable doubt
WAIVER OF PROVISIONS OF ART. 125 OF RPC
The waiver must:
1. Be in writing; and
2. Signed by the person arrested, detained or under custodial
investigation; and
3. Such person must sign the waiver in the presence of his
counsel.
TN: If the above is not complied with, "the waiver shall be null and void
and of no effect"
RIGHT TO TESTIFY AS WITNESS IN HIS OWN BEHALF
Right guaranteed
The accused has the right to testify as a witness in his own behalf,
Condition for the exercise of such right
He can be cross-examined on matters covered by direct examination.
(Deemed a waiver of his right against self-incrimination)
Effect of silence on the part of the accused
GR: It shall not in any manner prejudice him
XPNs:
1. When the prosecution has already established a prima facie case, the
accused must present proof to overturn the evidence; and
2. If the defense of the accused is alibi and he does not testify, the
inference is that the alibi is not believable.
17 | U N I V E R S I T Y O F S A N C A R L O S
RIGHT AGAINST SELF-INCRIMINATION
THE PRIVILEGE AGAINST SELF-INCRIMINATION
Under the Bill of Rights, no person shall be compelled to be a witness
against himself.
In all criminal prosecutions, the accused shall be entitled to be exempt
from being compelled to be a witness against himself.
TN: The right prescribes an option of refusal to answer incriminating
questions and not a prohibition of inquiry.
SCOPE OF THE RIGHT AGAINST SELF-INCRIMINATION
GR: The right covers only testimonial compulsion and not the
compulsion to produce real and physical evidence using the body of the
accused.
XPNs: Immunity statutes such as:
1. Forfeiture of illegally obtained wealth (RA 1379)
2. Bribery and graft cases (RA 749).
TN: The right against self-incrimination is available not only in criminal
cases but also in government proceedings, civil, and administrative
proceedings where there is a penal sanction involved.
Purpose of the right against self-incrimination
The privilege is intended to prevent the State, with all its coercive
powers, from extracting from the suspect testimony that may convict
him and to avoid a person subject to such compulsion to perjure himself
for his own protection.
THE PRIVILEGE APPLIES ONLY TO NATURAL PERSONS
Because it is a personal privilege, the papers and effects which the
privilege protects must be the private property of the person claiming
the privilege, or at least in his possession in a purely personal capacity.
THE PRIVILEGE PROTECTS A PERSON FROM TESTIMONIAL
COMPULSION OR EVIDENCE OF A COMMUNICATIVE NATURE
The prohibition of compelling a man in a criminal court to be a witness
against himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an exclusion of his
body as evidence when it may be material.
Meaning of compulsion
Compulsion does not necessarily connote the use of violence; it may be
the product of unintentional statements. Pressure which operates to
overbear his will, disable him from making a free and rational choice,
or impair his capacity for rational judgment would be sufficient. So is
moral coercion "tending to force testimony from the unwilling lips of the
defendant."
MECHANICAL ACTS
What is proscribed by the right against self-incrimination is the use of
physical or moral compulsion to extort communication from the
accused, and not the inclusion of his body in evidence when it may be
material. For instance, substance emitted from the body of the accused
may be received as evidence in prosecution for rape, and morphine
forced out of his mouth may also be used as evidence against him.
TAKING OF HAIR STRANDS
People v. Rondero
Consequently, although Rondero insists that hair samples were forcibly
taken from him and submitted to the NBI for forensic examination, the
hair samples may be admitted in evidence against him for what is
proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from him under duress.
CRIMINAL PROCEDURE l
EXAMINATION OF SPERM SPECIMEN
People v. Yatar
The kernel of the right against self-incrimination is not against all
compulsion, but against testimonial compulsion. The right against self-
incrimination is simply against the legal process of extracting from the
lips of the accused an admission of guilt. Hence, a person may be
compelled to submit to fingerprinting, photographing, paraffin, blood
and DNA tests, as there is no testimonial compulsion involved. It must
also be noted that the accused in this case submitted himself for blood.
FORCED RE-ENACTMENTS
The accused is not merely required to exhibit some physical
characteristics; by and large, he is made to admit criminal responsibility
against his will. It is a police procedure just as condemnable as an
uncounseled confession.
WRITING EXEMPLARS OR SAMPLES
Writing is not a purely mechanical act because it requires the application
of intelligence and attention.
Beltran v. Samson
The constitutional inhibition is directed not merely to giving of oral
testimony, but embraces as well the furnishing of evidence by other
means than by word of mouth, the divulging, in short, of any fact which
the accused has a right to hold. Writing is not a purely mechanical act,
because it requires the application of intelligence and attention.
PRIVILEGE EXTENDS TO LAWYERS ADVISING A WITNESS TO
INVOKE THE PRIVILEGE
If the court orders the witness to answer, in civil proceedings, the
lawyer may not be penalized though his advice caused the witness to
disobey the order of the court. It is a constitutional privilege, the
advising becomes an integral part of the protection.
APPLICABILITY OF THE RIGHT
Mere custodians of documents cannot claim such privilege. It can be
invoked in any proceeding, whether criminal, administrative,
investigatory, or adjudicatory. This privilege is personal it adheres to a
specific person.
US v. White
A labor union official cannot refuse to produce books and records of the
union in his custody and required by the court to be produced. He
cannot invoke the privilege against self-incrimination by contending that
the production of the books and records would tend to incriminate
himself and the organization.
DISTINCTION IN INVOKING THE RIGHT BY A MERE WITNESS
AND OF AN ACCUSED
WITNESS ACCUSED
An ordinary witness may be Can refuse to take the witness
compelled to take the witness stand.
stand.
Can only invoke the right as Can refuse to answer any all of
each question requires an the question.
incriminating answer on every
question in him.
Questions which witness may refuse to answer
The privilege of self- incrimination extends not only to answers that
would in themselves support a conviction but also those which would
furnish a link in chain of evidence needed to prosecute the accused. It
should be noted that this protection must be confined to instances
where the witness has reasonable cause to apprehend danger from a
direct answer. To know the question to be incriminating it is just be
evidenced from the implication of the question.
18 | U N I V E R S I T Y O F S A N C A R L O S
THE RIGHT WILL NOT APPLY WHEN THE WITNESS IS GIVEN
IMMUNITY FROM PROSECUTION.
KINDS OF IMMUNITY
1. Transactional Immunity - Total immunity, completely protects
the witness from future prosecutions for crimes related to his
testimony.
2. Use-and-derivative-use Immunity - Prevents the prosecution
only from using the witness’s own testimony against him. Again,
any information obtained by the prosecution from the witness’s
testimony cannot be used against him.
RIGHT TO CONFRONT AND CROSS EXAMINE THE WITNESSES
AGAINST HIM AT TRIAL
RIGHT GUARANTEED
The accused has the right to confront and cross-examine the witnesses
against him at the trial.
Ratio: The right to cross- examine a witness is essential to test his or
her accuracy, expose falsehoods or half- truths, whether it was
rehearsed. This right extends to any litigation whether civil or criminal,
or administrative, this is a constitutional right.
TN: this right does not apply to preliminary investigation, because, the
opposing party has no right to cross- examine.
DIRECT EXAMINATION STRICKEN FROM THE RECORDS
If one is deprived of the opportunity to cross-examine without fault on
his part, it is generally held that he is entitled to have the direct
examination stricken from the records.
RIGHT CAN BE WAIVED
If the defense did not cross-examine the witness of the prosecution.
ADDITIONAL BENEFIT GRANTED
Either party may use as evidence testimony of a witness who is not
present during trial, provided:
1. Said witness is:
 Deceased;
 Out of or cannot with due diligence be found in the
Philippines;
 Unavailable; or
 Otherwise unable to testify; and
2. Said testimony was given by the witness in another case or
proceeding:
 Judicial or administrative, and
 Involving the same parties or subject matter; and
3. The adverse party had the opportunity to cross-examine said
witness
RIGHT TO COMPULSORY PROCESS
This constitutional right may be invoked by the accused to secure the
attendance of witnesses and the production of witnesses in his behalf.
The accused may move for the issuance of:
1. Subpoena ad testificandum (testify); or
2. Subpoena duces tecum (present documents).
REQUIREMENTS:
1. That the evidence is really material;
2. That he is not guilty of neglect in previously obtaining the
production of such evidence;
3. That the evidence will be available at the time desired; and
4. That no similar evidence could be obtained.
People v. Montejo and Millorca v. Quitain
The 100-km limitation does not apply in a criminal case because of the
Constitutional right to have compulsory process issued to secure the
CRIMINAL PROCEDURE l
attendance of witnesses in his behalf. That right cannot be precluded
by provisions in the Rules of Court.
RIGHT TO A SPEEDY, IMPARTIAL AND PUBLIC TRIAL
THREE RIGHTS
1. The right to a speedy trial;
2. The right to an impartial trial; and
3. The right to a public trial.
RIGHT TO A SPEEDY TRIAL; SPEEDY DISPOSITION OF CASES
SPEEDY TRIAL
One free from vexatious, capricious and oppressive delays.
Ratio: To assure that an innocent person may be free from the anxiety
and expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he
may interpose.
SPEEDY DISPOSITION OF CASES
The right to a speedy disposition of cases is not limited to the accused
in criminal proceedings but extends to all parties in all cases, including
civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings.
When right to speedy disposition of cases is violated
It has been held that the right to speedy disposition of cases is
considered violated only when the proceedings are attended by
vexatious, capricious, and oppressive delays.
Purpose of time limits set by law or the rules
As a general principle, rules prescribing the time within which certain
acts must be done, or certain proceedings taken, are considered
absolutely indispensable to the prevention of needless delays and the
orderly and speedy discharge of judicial business.
Failure to resolve cases within the period fixed by law constitutes a
serious violation of the Constitution.
Speedy trial is a relative term
The concept of "speedy trial" is a relative term and must necessarily be
a flexible concept and that while justice is administered with dispatch,
the essential ingredient is orderly, expeditious and not mere speed.
TN: The time limits set by the Speedy Trial Act do not preclude
justifiable postponements and delays when so warranted by the
situation
REMEDY FOR A VIOLATION OF THE RIGHT TO SPEEDY TRIAL
The trial court may dismiss a criminal case on a motion nolle prosequi
if the accused is not brought to trial within the prescribed time and is
deprived of his right to a speedy trial or disposition of the case on
account of unreasonable or capricious delay caused by the prosecution.
TN: To exercise the right to speedy trial, the accused should ask for the
trial of the case first instead of moving for its dismissal outrightly.
Factors for granting continuance
The factors, among others, which a justice or judge shall consider in
determining whether to grant a continuance are as follows:
1. Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice; and
2. Whether the case taken as a whole is so novel, so unusual and
so complex, due to the number of accused or the nature of the
prosecution or otherwise, that it is unreasonable to expect
adequate preparation within the periods of time established by
this Act.
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Guidelines to determine violation of the right to speedy trial
and speedy disposition of cases;
1. The length of the delay;
2. The reasons for such delay;
3. The assertion or failure to assert such right by the accused; and
4. The prejudice caused by the delay
APPROACHES TO SPEEDY TRIAL
Ways of eliminating some of the uncertainty which courts experience
protecting the right. These are:
1. The Fixed-Time Period - Holds the view that the Constitution
requires a criminal defendant to be offered a trial within a
specified time period.
2. Demand-Waiver Rule - Provides that a defendant waives any
consideration of his right to speedy trial for any period prior to
which he has not demanded trial. Under this rigid approach, a
prior demand is a necessary condition to the consideration of
the speedy trial right.
3. Balancing Test - The conduct of both the prosecution and
defendant are weighed. The test necessarily compels courts to
approach speedy trial cases on an ad hoc basis where courts
should assess and identify certain factors which courts should
assess in determining whether a particular defendant has been
deprived of his right such as the length of the delay, the reason
for the delay, the defendant's assertion of his right, and
prejudice to the defendant. (Applicable in our jurisdiction)
RIGHT TO AN IMPARTIAL TRIAL
RIGHT TO AN IMPARTIAL TRIAL
Every litigant is entitled to nothing less than the cold neutrality of an
impartial judge.
RIGHT TO PUBLIC TRIAL
RIGHT TOT PUBLIC TRIAL
The requirement of public trial is for the benefit of the accused, that the
public may see that he is fairly dealt with and not unjustly condemned,
and that the presence of spectators may keep his triers keenly alive to
a sense of responsibility and to the importance of their functions.
WIDESPREAD MEDIA PUBLICITY
People v. Sanchez
The right of an accused to a fair trial is not incompatible with a free
press. Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. It does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. At
best accused can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity. But the test is not the
possibility of prejudice but actual prejudice. To warrant a finding of
prejudicial publicity, there must be allegation and proof that judges
have been unduly influenced, not simply that they might be. Accused
must discharge this burden. In this case, there is no proof that the judge
acquired a fixed opinion, or actual bias as a consequence of extensive
media coverage.
Estrada v. Desierto
The mere fact that the proceeding was given a day to day coverage
does not prove that the publicity so permeated the mind of the tribunal
and impaired his impartiality. To warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be. In this case, the
former President has failed to adduce any proof of actual prejudice
developed by the members of the Panel of Investigators of the
Ombudsman. The test of actual prejudice cannot be replaced with the
rule of res ipsa loquitur. The latter rule assumes that an injury has been
suffered and then shifts the burden to the panel of investigators to
prove that the impartiality of its members has not been affected by said
publicity. Such a rule will overturn our case law that pervasive publicity
CRIMINAL PROCEDURE l
is not per se prejudicial to the right of an accused to fair trial. For this
reason, we continue to hold that it is not enough for the former
President to conjure possibility of prejudice but must prove actual
prejudice on the part of his investigators for the Court to sustain his
plea.

LIVE COVERAGE OF TRIAL

Re: Request Radio-TV... 360 SCRA 248
The issue involves the weighing out of constitutional guarantees of
freedom of the press and the right to public information, on the one
hand, and the fundamental rights of the accused, on the other hand,
along with the constitutional power of a court to control its proceedings
in ensuring a fair and impartial trial. When these rights race against each
other, the right of the accused must be preferred. With the possibility of
losing his life or liberty, it must be ensured that accused receives a
verdict decreed by an unprejudiced judge. Television coverage,
however, can impair the testimony in criminal trials, can affect the
performance of the judge, and can destroy the case of the accused in
the eyes of the public. Accordingly, to protect the parties’ right to due
process, to prevent the distraction of the participants in the proceedings
and in the last analysis, to avoid miscarriage of justice, the request is
denied.

Re: Request for Live... 365 SCRA 62

Should the previous order be reconsidered?
No. However, because of the significance of the trial and the importance
of preserving the records, there should be an audio visual recording of
the proceedings. The recordings will not be for live or real time
broadcast but for documentary purposes. Only later will they be
available for public showing, after the Sandiganbayan shall have
promulgated its decision. The master film shall be deposited in the
National Museum and the Records Management and Archives Office for
historical preservation and exhibition pursuant to law. The audio-visual
recording shall be made under the supervision and control of the
Sandiganbayan.

RIGHT TO APPEAL

NATURE OF THE RIGHT TO APPEAL

The right to appeal is but a statutory right, and the party who seeks to
avail of it must faithfully comply with the rules. These rules are
designed to facilitate an orderly disposition of cases before the
appellate courts; they provide for a system under which suitors may
be heard in the correct form and manner at the prescribed time in an
orderly confrontation before a magistrate.

UNASSIGNED ERRORS
An appeal in a criminal case which opens the entire case for review
and appellate court may correct even unassigned errors.

TRIAL COURT’S FINDINGS

GR: The findings of the trial court, its assessment of the credibility of
witness and the probative weight of their testimonies as well as
conclusions drawn from the actual findings are accorded respect, if not
conclusive effect.

XPN: There appears in the record some facts or circumstances of

weight and influence which have been overlooked and, if considered,
would affect the result. Or, IWO, if there was a grave abuse of
discretion by the judge.

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