crimpro q&a

7/29/2019 CRIMPRO Q&A

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Although the rights of the accused as enumerated under Rule 115, Sec. 1 pertain to the trial stage of thecriminal prosecution, they are discussed here at the start of this reviewer in order to set the subsequentdiscussion of criminal procedure within the perspective of protection of the rights of the accused.

Right to be presumed innocent


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Right to discovery

Is there a right of discovery for the accused in criminal cases?

See the following provisions:

Rule 119, Sec. 12 -- Conditional examination of witnesses on behalf ofaccused

Rule 116, Sec. 10 -- Production or inspection of material evidence inpossession of prosecution

Rule 116, Sec. 9 -- Motion for bill of particulars Rule 112, Sec. 3(b), par. 2 -- Issuance of subpoena by prosecutor to

accused attaching to it a copy of the complaint and itssupporting affidavits and documents(Note however that this is during preliminaryinvestigation.)

It was held in the case ofPeople v. Webbthat a denial of discovery procedures to an accused in acriminal case is tantamount to a deprivation of the accuseds right to compulsory process which isguaranteed in the Constitution.

Is there a right of discovery for the prosecution in criminal cases?

Yes. See Rule 119, Sec. 15 (examination of witnesses for the prosecution)

Why is it that the right of discovery cannot be the same for both prosecution and accused?

It might violate the accuseds right against self-incrimination.

Right to be informed of the nature and cause of the accusation

Right to be heard personally or by counsel

Right to speedy, impartial and public trial

Right to confront witnesses

Right to compulsory process


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Scope of the privilege

The scope of the privilege against self-incrimination covers compulsory testimonial self-incrimination, i.e. that which will entail use of mental processes and/or communicative faculties. It hassince been extended to include any evidence communicative in nature, acquired under circumstances ofduress. (People v. Olvis, 154 SCRA 525)

Effect of violation

When the privilege against self-incrimination is violated outside of court (e.g., by the police), thentestimony is not admissible under the exclusionary rule.

When the privilege is violated by the court itself, i.e. by the judge, the court is ousted of itsjurisdiction, and all its proceedings are null and void, and is as if no judgment has been rendered. (See

Chavez v. CA, 34 SCRA 663)

Right against self-incrimination


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CUSTODIAL

INVESTIGATION

INTRODUCTION

Constitutional basis


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Custodial investigation involves any questioninginitiated by law enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way. It is only after the investigation ceases to be a generalinquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken intocustody, and the police carries out a process of interrogations that lends itself to eliciting incriminatingstatements that the rule begins to operate. (People v. Marra, 236 SCRA 565)

As provided for in Sec. 2, R.A. 7438, custodial investigation includes the practice of issuing an"invitation" to a person who is investigated in connection with an offense he is suspected to havecommitted. This shall be without prejudice to the liability of the "inviting" officer for any violation of law.

(1) Right against arbitrary detention (Art. 125 RPC)(2) Right against torture, inhumane treatment (Art. 3, Sec. 12 #2 Consti)(3) Right to remain silent (Art. 3 Sec. 12 #1 Consti)(4) Right against solitary confinement (Art. 3 Sec. 12 #2 Consti)(5) Right to be assisted by counsel at all times (RA 857) or by a national/international NGO

duly accredited by the Office of the President (EO 155) see RA 7438(6) Right to be informed that anything he says may and will be used against him (Miranda

rights)(7) Right to privacy of correspondence and communication (Art. 3 Sec. 3 #1 Consti)(8) Right against unreasonable searches and seizures (Art 3 Sec. 2 Consti)(9) Right to competent and independent counsel preferably of his own choice and be provided

with one if he cant afford the services of counsel (Art. 3 Sec. 12 #1 Consti) (10) Right to waive assistance of counsel provided it be done intelligently and with assistance

of counsel (ibid)

1. Is there a right to conjugal visits? No such right in custodial investigation, but see RA 7438, Sec. 2f.

2. Must the suspect be informed that his silence will not be used against him? Must he be givena mini-lecture on Crim. Pro?

Nowhere in the consti or ROC is it provided that the suspect must be informed that his silence doesnot bear any adverse consequence. However, it is believed that for a suspect to be considered as

Custodial investigation defined

Rights of person under custodial investigation


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truly informed of his constitutional right to silence, he must be advised that such silence will not betaken against him. This is due to the fact that in many instances, persons arrested feel that it looksworse for them if they remain absolutely silent.

3. Is the right to be informed of the above rights satisfied if they are typewritten?No. In People vs. Galit, it was held that each right must be explained to the accused in simple wordsin his own dialect/language. Such is the requirement for warnings to be valid and effective.

IS A POLICE LINE-UP DEEMED PART OF CUSTODIAL INVESTIGATION?

In the case ofGamboa v. Cruz (162 SCRA 642), the petitioner had not yet beenheld to answer for a criminal offense when he was identified by the complainant at thepolice line-up. The Court held that in this case, the police line-up was not part ofcustodial investigation and therefore the right to counsel did not attach at that time. The

Court held that when the process has not yet shifted from the investigatory to theaccusatory as when police investigation does not elicit a confession, the accused maynot yet avail of the services of his lawyer.

The Gamboaruling was reiterated in the case ofPeople v. Santos (236 SCRA686; 1993), wherein the Court noted that there was nothing in the records of the case thatwould show that in the course of the line-up, the police investigators sought to extract anyadmission or confession from the accused.

In the US case ofUS v. Wade (908 U.S. 218; 1957) however, which involved apost-indictment line-up, it was held that the absence of counsel during the line-up wasviolative of the accused's rights. The Court held that the post-indictment line-up was acritical stage of the prosecution at which the accused was as much entitled to the aid of

counsel as at the trial itself.

Rights embodied in the Miranda doctrine

a. right to remain silentb. right to counselc. right to be informed of the above rights

Constitutional changes in the Miranda doctrine

d. Waiver of assistance of counsel must now be in writing and in the presence of counsele. Persons under investigation are not only entitled to counsel, they are entitled to competent

and independent counsel

4. Harmonize the ruling in Galman v. Pamaran with People v. Ayson

Police line-ups

Miranda Doctrine


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In Galman v. Pamaran, the court opined that the incriminatory testimonies given in the investigationconducted by the Agrava Board were not admissible in evidence by reason of non-compliance withthe Miranda warnings. This ruling was made despite its acknowledgment that said testimonies weregiven before an administrative body, not in a criminal case, and that the suspects werent in custodyat the time they gave their testimonies. The reason given was that the protection granted under thePhil. Consti was wider in scope than in the US because the word custodial was not included in ourconstitution, which extends its protection to any person under investigation for the commission of anoffense.

In Pp vs. Ayson, the Court held that the constitutionally mandated Miranda warnings of the accusedsright to silence and counsel are applicable only to police in-custody interrogation as thecommencement of adversarial proceedings against the suspect.

To harmonize the 2 cases, Prof. Tadiar commented that although the proceedings before the AgravaBoard were certainly not police investigations, they undoubtedly were an integral part of a criminalinvestigation looking in the double murder. As such, the Agrava proceedings could be held as thecommencement of the adversarial criminal process that mandates the right to counsel. This isinapplicable to the Ayson case which involved an administrative investigation by PAL management ofa ticket clerk for alleged irregularities in the sale of tickets.

5. When do the Miranda rights apply?From the moment of arrest.

6. Are Miranda rights available in checkpoints and Stop and Frisk situations? No. There is as yet no arrest. The fact that one consents to the search in the face of armed militarymen does not constitute waiver of the right against Illegal Search (the person searched may stillquestion the legality of the search).

7. Police ran after a suspect who later hid himself in a building. The police sealed off all pointsof ingress and egress and later talked to the suspect by megaphone. The police used the

information given against him later. Was the suspect deprived of Miranda rights? When is aperson considered under detention?

Bautista said: A DOJ circular stated that when the questioning is already removed from in-fieldquestioning, one the person is restricted in his physical movements in any significant way, then therights arise already Theres no need to put the persons in a cell for him to be considered underdetention. Going by the said definition, it is submitted that in the problem above, the suspect iseffectively under detention as he is already surrounded by the police with no possible means ofescape.

8. Bautista says:Not that the scope of exclusion regarding the Privilege against Self-Incrimination and Miranda Rights

is not as broad as that afforded when there is a violation of the Right against Privacy ofCorrespondence and Communication. In the latter, any evidence obtained in violation of said rightwill be inadmissible for any purpose in any proceeding.

9. Is there any presumption regarding statements given under police custody? Yes. The presumption is that such statements were involuntarily made.

10. Is the taping of Bautistas lectures a violation of the Anti-Wiretapping law?


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No, since it is with his consent and involves communication that is not the private one contemplatedby law.

11. An illegal wiretap was made on the telephone of the accused and from listening to the wiretap,the police came to know of the name and address of a witness who they later got to testifyagainst the accuse. Can such testimony be suppressed on the ground that the name andaddress of the witness was obtained by an illegal wiretap?

No. The fact the he voluntarily testified in court does not make it the fruit of a poisonous tree andthough it may have an effect of attenuating the testimony of a witness; not however Sec. 4 of RA4200: any communicated/spoken word, or the existence of contents, substance, purport, or meaningof the same or any part thereof, or any info therein contained and obtained/secured by any person inviolation of the preceding sections of this Act shall not be admissible in evidence in any judicial,quasi-judicial, legislative/administrative investigation/hearing.

12. If the suspect is a lawyer, do the Miranda warning still have to be made? Yes, because educational attainment is immaterial.

13. Is videotaping a film shown in the theater a violation of RA 4200? No, thats not a private communication although said act may be a violation of the Copyright law.

What may be waived

The right to remain silent and to counsel may be waived, but never the right to be given theMiranda warnings.

Requirements for a valid waiver

(1) The waiver must be in writing.(2) The waiver must made in the presence of counsel.

Burden of proving voluntariness of waiver

The burden of proving the voluntariness of the waiver of the Miranda warnings lies with theprosecution. (People v. Jara, 144 SCRA 516; 1986)

What is the so-called exclusionary rule?

Any confession or admission obtained from the accused in violation of Sec. 12 (custodialinvestigation) or Sec. 17 (right against self-incrimination) of the Constitution shall be inadmissible inevidence against the accused.

Waiver of Miranda rights

Exclusionary rule


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Implications: (1) The confession / admission can be used against the co-accused.

(2) It can be used in impeachment cases.(3) It can be used in rebuttal.

When is the exclusionary rule not applicable?

The Miranda rule, and therefore the exclusionary rule, are not applicable in the followingsituations:

(1) Confessions executed before Jan. 17, 1973;(2) Res gestaestatements (People v. Dy, 158 SCRA 111; 1988)

The declaration of the accused acknowledging guilt made to the police desk officer afterthe crime was committed may be given in evidence against him by the police officer towhom the admission was made, as part of the res gestae. (People v. Dy)

(3) Statements given in administrative investigations (People v. Ayson, 175 SCRA 216; 1989)

(4) Official forms prepared and accomplished in the normal course of audit regularly conductedby the Commission on Audit (Kimpo v. Sandiganbayan, 235 SCRA 53);

(5) X-ray examinations of the body (People v. Tranca, 235 SCRA 455)

Any evidence obtained pursuant to an illegal search or seizure shall be inadmissible againsthim. And any evidence obtained pursuant to such illegally-obtained evidence shall likewise beinadmissible.

Qualification to the rule: If the evidence could have been discovered even without thepoisonous tree, then it is admissible.

What is the doctrine of attenuated taint?

If the taint is so diffused or remote, then the evidence need no longer be excluded. For example,if the name of a witness is obtained through an illegal wiretap, but such witness voluntarily agrees totestify.

If the suspect in police custody voluntarily starts answering questions without aid of counsel, are

the statements given admissible?

No, unless before doing so he had waived the right to remain silent and to counsel in writing andin the presence of counsel.

The theory in Miranda v. Arizona is that the atmosphere in police interrogation is inherentlycoercive, therefore, statements given under police custody are presumptively involuntary and the burdenof showing voluntariness is on the prosecution.

Doctrine of fruit of the poisonous tree

Doctrine of attenuated taint


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ARREST

NOTES:

The 2000 Rules changed the power of an RTC judge to issue warrants of arrest. See Rule 112, Sec. 6 ofthe old and new rules.

In general

A warrant of arrest is an order addressed to a law enforcement officer commanding him tophysically restrain a person to make him answer for the commission of an offense. (Rule 113, Sec. 1)

With warrantWithout warrant

When arrest takes place: What is the importance of knowing when?

Why is it important to know the precise time of arrest?

To determine whether or not there has been violation of the law against Arbitrary Detention.

Arrest with warrant

The only ground for issuance of a warrant of arrest is probable cause. Probable cause refers tosuch facts and circumstances which would lead a reasonably discreet and prudent man to believe that anoffense had been committed by the person sought to be arrested.

Arrest defined

Kinds of arrests

When arrest takes place

Grounds for issuance of warrant

Who may issue


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Who may issue (not effect) a warrant of arrest in our jurisdiction?

According to Harvey v. Santiago:a. Judge if the purpose of the arrest is to enable the suspect to answer for a chargeb. CID Commissioner if the purpose is to execute a decision/order

How arrest is made

An arrest is made by an actual restraint of a person to be arrested, or by his submission to thecustody of the person making the arrest. (Rule 113, Sec. 2)

Who may serve a warrant of arrest

Can anybody be authorized to serve a warrant of arrest?

No. R.113 S.3 says the arresting officer (although it was not expounded who these arresting officersare).

Duty of arresting officer

It is the duty of the officer executing the warrant to arrest the accused and deliver him to thenearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

Time of arrest

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

Method of arrest

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

ndparagraph)

Warrantless arrests

Grounds

Who may effect; how effected

By peace officer

Procedure for issuance

Executing the warrant


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By private person

When is a warrant of arrest not necessary?

(1) When the accused is already under detention pursuant to a warrant issued by the MTC judge in Rule112, Sec. 6 (b);

(2) When the complaint or information was filed pursuant to Rule 112, Sec. 7, i.e. a valid warrantlessarrest;

(3) When the offense is penalized by fine only. (Rule 112, Sec. 6 (c))(4) When the accused lawfully arrested escapes or is rescued (Rule 113, Sec. 13)

Consequences of an unlawful arrest

Modes of attacking the validity

How can you attack an unlawful arrest?

(1) Motion to quash (Alimpoos v. CA)(2) Habeas Corpus (See Rule 102)(3) Bail (but then you dont really go into the validity of the arrest here Note that under the

new rules, an application for or admission to bail is no longer a bar to challenge the validity ofan arrest)

Standing to challenge

Time to challenge

Sanctions

What are the consequences of an unlawful arrest?

Illegal arrest is a crime.

How much time between the commission of the offense and the arrest, a week ago? INdetermining whether a warrantless arrest is valid or not do we inquire into whether there wasadequate opportunity to obtain a warrant? Is the existence of opportunity and time aconsideration in determining the validity of a warrantless arrest?

No. See People v. Amundin.


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Bautista: take note of the crimes referred to in R. 113 Sec. 5a as continuing crimes laid down byUmil v. Ramos: rebellion, subversion, conspiracy/proposal to commit such crimes, andcrimes/offenses committed in furtherance thereof or in connection therewith.

Does a warrant of arrest have to state the name of the person?

No. If unknown name, a sufficient description will do.

If you only have a picture of the suspect, is that enough?

It is submitted that there still has to be a sufficient description.

Does the warrant of arrest have a lifetime?

No, although after 10 days from receipt of the warrant of arrest, the head of the office to whom the

warrant was delivered for execution must report to the issuing judge in case of failure to execute thesame.

Can the warrant of arrest be served anywhere in the Phil?

Yes.

Anytime?

Yes.

Do you know what a reliable asset is? Police informer.

Q. Mobil car 1 calls police in Mobil car 2 and says that they have a warrant of arrest for B who is now inMobil car 2s area. Mobil car 1 says please assist us in arresting him. Police in car 2 sees B. Canthey arrest him?

A. Yes. R113 S7. The officer need not have the warrant of arrest in his possession at the time of thearrest, but after the arrest, if the person arrested so requires, the warrant shall be shown to him assoon as practicable.

Q. Recently, I had a client, a collector of customs. An importer complained to him that a collector washustling for a bribe in consideration for something. The matter was referred to the NBI who set anentrapment. The NBI officer posted himself outside of Alfredos. There was a meeting between theChinese and the collector of customs and according to the collector, they handed some envelopescontaining marked money. After that they arrested him without warrant. Is the arrest valid?

A. Yes. The person arrested has actually committed a crime in his presence. Arrested person can besaid to have been caught in flagrante, hence arrest in valid. [US v. Fortaleza] An offense iscommitted in the presence of within the view of an officer within the meaning of the rule authorizingan arrest without a warrant when the officer sees the offense, although at a distance, or hears thedisturbance created.


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On what grounds may a warrant of arrest be issued?

Only one ground: probable cause.

On what ground may a warrantless arrest be made?

Probable cause.

Q. There is this Chinese importer who complained to the Commissioner of Customs that this customsofficial is trying to extort money from him. You are the legal adviser of the commissioner ofcustoms. You advise him to get a warrant first. How do you go about getting a warrant for the arrestof this customs official?

A. Commissioner of Customs executes a complaint under oath, brings it and the Chinese to a judgewho shall personally examine him and the Chinese to determine probable cause. If he determinesprobable cause exists, he issues a warrant of arrest.

Can the NBI agent make a warrantless arrest on the basis of information of a very reliable assetwho proves to be correct?

No.

But can it be the basis of obtaining a warrant of arrest?

No, if on the basis of that information only.

Spouse was charged with an offense cognizable by the RTC and the information is filed. Youare arrested without a warrant and there was no preliminary investigation. What should you do?

Before entering a plea, file a motion for preliminary investigation [People v. Monteverde].

Q. Does the filing of the complaint in the fiscals office interrupt the prescriptive period for the offense? A. Yes. R110 S1 last paragraph


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SEARCH & SEIZURE

A. Scope of Constitutional RestraintB. Scope of Protection



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C. Requisites of a Valid WarrantD. Grounds for IssuanceE. Form of Search Warrant

The prohibition against unreasonable searches and seizures is imposed only upon thegovernment and its agencies tasked with the enforcement of the law. It does not extend to actscommitted by private individuals.

The right against unreasonable searches and seizures is personal; it may be invoked only by theperson entitled to it.

Waiver of the right against unreasonable searches and seizures may be express or implied, butonly by the person whose right is invaded, not by one who is not duly authorized to effect such waiver.

SEARCHES WITH WARRANT

A search warrant is an order in writing issued in the name of the People of the Philippines, signedby a judge and directed to a peace officer, commanding him to search for personal property described

therein and bring it before the court. (Rule 126, Sec. 1)

(1) Probable cause

Probable cause refers to such facts and circumstances which would lead a reasonably discreetand prudent man to believe that an offense has been committed and that the objects sought in connectionwith the offense are in the place sought to be searched.

(2) Personally determined by the judgeOnly a judge can determine probable cause to justify the issuance of a search warrant. In doing

so, he cannot rely on the prosecutor's findings or certification.

Note: This is to be distinguished from the determination of probable cause by a judge in theissuance of a warrant of arrest. With warrants of arrest, a judge can issue a warrant on the basisof the information filed by the fiscal and the certification of probable cause. (See Rule 112, Sec.6)

Scope of the prohibition

Nature of right against unreasonable searches & seizures

Waiver of right

Search Warrant defined

Requirements of a valid search warrant


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(3) One specific offense

Generally, a search warrant can be issued only in relation to one specific offense.

However, when existing laws prescribe a single punishment for various offenses, then one searchwarrant may be validly issued for several violations of the same law, as in the case of PD 1866 ( See

Prudente v. Dayrit, 180 SCRA 69) and R.A. 6425 or the Dangerous Drugs Act (See People v. Dichoso,223 SCRA 174).

(4) After an examination under oath and in writing of facts personallyknown to the complainant and the witnesses he may produce;

The judge must take depositions and attach them to the record of the case. (Mata v. Bayona)

(5) Particularity of description

PURPOSE: To leave the officers of the law with no discretion regarding what articlesthey should seize, to the end that unreasonable searches and seizures may not

be made and abuses may not be committed.

SUFFICIENCY: The description of the place to be searched is sufficient if the officer withthe warrant can, with reasonable effort, ascertain and identify the place intendedto be searched. (Prudente v. Dayrit)

Failure to state with particularity the place to be searched and items to be seized makes thewarrant used for fishing evidence a general warrant which is void.

However, it was held in the case ofKho v. Judge Makalintal (April 21, 1999) that the failure tospecify detailed descriptions in the warrant does not necessarily make the warrant a generalwarrant. The description of the property need not be technically accurate nor necessarily precise, and itsnature will necessarily vary according to whether the identity of the property or its character is aconcern. Further, the description is required to be specific only insofar as circumstances will allow.

Where filed

Examination

Period of Validity of search warrant

Time

Procedure for Issuance of a Search Warrant

How Search is effected


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Property to be seized

The personal property that may be seized pursuant to the search warrant are:

(1) Subject of the offense;(2) Stolen or embezzled and other proceeds, or fruits of the offense; or(3) Used or intended to be used as the means of committing an offense. (Rule 126, Sec. 3)It is not necessary that the property to be searched or seized should be owned by the person

against whom the warrant is issued; it is sufficient that the property is within his control orpossession. (Burgos v. Chief of Staff, 133 SCRA 800)

Procedure

(1) Admittance to the place of directed searchThe officer, upon reaching the place of directed search, must give notice of his purposeand authority to conduct the search to the lawful occupant of the place.

If the officer is refused admittance, he may break open any outer or inner door or windowof a house or any part of a house or anything therein to execute the warrant or liberatehimself or any person lawfully aiding him when unlawfully detained therein. (Rule 126,Sec. 7)

(2) Conduct of searchUpon admittance, the officer must conduct the search in the presence of the lawfuloccupant of the premises or any member of his family, or in the absence of the latter, twowitnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec.

8) Failure to comply with this requirement invalidates the search. (People v. Gesmundo)

(3) Seizure of property and issuance of receipt for the property seized Once the property described in the warrant has been found and seized, the officer mustgive a detailed receipt for such property to the lawful occupant of the premises. In theabsence of such occupant, the officer must leave a receipt in the place in which he foundthe seized property in the presence of at least two witnesses of sufficient age anddiscretion residing in the same locality. (Rule 126, Sec. 11)

(4) Delivery of property and inventory to the court

The officer must then make a return on the warrant and deliver forthwith the property

seized to the judge who issued the warrant, together with a true inventory thereof dulyverified under oath. The judge shall ascertain whether the seizing officer complied withRule 126, Sec. 11 (as regards issuance of the detailed receipt).

The return on the search warrant shall be filed and kept by the custodian of the log bookon search warrant s who shall enter therein the date of the return, the result, and otheractions of the judge. (Rule 126, Sec. 12)

A violation of these requirements shall constitute contempt of court. (Rule 126, Sec. 12)


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WARRANTLESS SEARCHES

When may a valid warrantless search be made?

1. Search incident to a lawful arrest2. Search of moving vehicles (But what about mobile homes?)3. Customs searches or seizure of goods concealed to avoid duties [Uykhetin v. Villareal, Papa v.

Magno]4. Seizure of evidence in plain view5. Consented searches, or when there is a waiver of the right [De Garcia v. Locisin]6. Administrative searches7. Border searches8. Checkpoints9. Stop-and-frisk10. Private searches (People v. Marti)

Search incident to a lawful arrest

As a general rule, as an incident of an arrest, the place of premises where the arrest was madecan also be searched without a search warrant. (Nolasco v. Cruz-Pano)

PERMISSIBLE AREA OF SEARCH:

(1) Person of the accused;(2) premises or surroundings within the accused's immediate control

PURPOSE: (1) A weapon held by the arrested person may be turned against his captor; and(2) The accused may destroy the proof of the crime if the arrested officer has to

first apply for a search warrant.

You arrested a person without a warrant in the first floor of his house. Can you search the secondfloor without a search warrant?

No. The Nolasco v. Pano [ 139 SCRA 152] ruling was reconsidered in Nolasco v. Pano [147 SCRA 509]which held that a warrantless search made as an incident to a lawful arrest is to be strictly applied andabsolutely limited only to a search of the person and of the place where the arrest was made.

Consensual / Consented Searches

The requisites for a valid waiver or consented search are as follows:

(1) The Constitutional right exists;(2) The person involved had either actual or constructive knowledge of such right; and(3) There was an actual intention to relinquish the right.

Q. You stay in a room at Philippine Plaza. Scenario:NBI: [knocks]A girl from the room: Sino sila?


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NBI: NBI ho. Ito ho ba ang kwarto ni Mr. B?Girl: Opo.NBI: Nandyan ba siya?Girl: Wala ho, nasa ibaba, baka nagdisco.NBI: Pwede bang pumasok?Girl: Pwede ho. [opens door]NBI: [enters] Pwede bang tumingin-tingin?Girl: Kahit ano ho pwede. [NBI finds shabu and dirty pictures]Valid warrantless search?

A. Yes. [Lopez v. Commissioner of Customs 68 SCRA 320]Under the circumstances, that was the mostprudent course of action (for the woman). It would save her and even petitioner Velasco himself from anygossip or innuendo. Nor could the officers of the law be blamed if they would act on theappearances. There was a person inside who from all indications was ready to accede to theirrequest. Even ordinary courtesy would preclude them from inquiring too closely as to why she was there.

Bernas comment: If the right against unreasonable search and seizure is a personal right, may it be waived by

somebody other than the person himself?

Bautista: Why, is the girl authorized to give consent?

Plain View

Requisites for a valid warrantless search under the plain view doctrine:

(1) Prior valid intrusion based on the valid warrantless arrest in which the police are legallypresent in the pursuit of their official duties;

(2) The evidence was inadvertently discovered by the police who have the right to be wherethey are;

(3) The evidence must be immediately apparent;(4) Plain view justified the seizure of the evidence without any further search;(5) The thing itself is illegal or prohibited.

The plain view doctrine is not applicable in cases wherein the subject items are not illegal per se, e.g. boyscout uniforms that are suspected to be counterfeit items.

Suppose there is a warrant for the search of the premises of B for shabu but they find betamaxtapes which are pirated. Can they seize the tapes which are displayed?

No. Plain view doctrine presupposes that the criminal nature of the articles is clear at that pointwithout further search. Perhaps, if they were armalites, yes, because B cannot possibly be licensed tohave an armalite as he is not a soldier.

Checkpoints and Roadblocks

In the case ofValmonte v. De Villa (178 SCRA 211; 1989), it was held that a warrantless searchat a checkpoint or roadblock is valid for as long as the vehicle is subjected to a mere visual search, andthe occupants are not subjected to a body search.

Private Searches


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In the case ofPeople v. Marti (193 SCRA 57; 1991), it was held that if a search is made at thebehest or initiative of the proprietor of a private establishment for its own and private purposes andwithout the intervention of police authorities, the right against unreasonable searches and seizures cannotbe invoked.

Remedies against unlawful searches and seizures

(1) Suppression of the evidence through either(a) quashal of the search warrant - available only when there is a search warrant(b) motion to suppress evidence - available whether or not there is a search warrant

(2) Criminal actions for illegal search(3) Civil actions against those responsible(4) Administrative actions

What is the remedy to an illegal search?

A motion to quash the search warrant and/or to suppress evidence. (See Rule 126, Sec. 14)

Search only up to the point within the immediate control of arrestee. If you arrested him in the front lawnof his house, you cannot go inside.

Dorm matron, UP security. Matron is very well trained, well equipped and said ok when securityasked to search premises. Search valid?

Consent given by the matron is valid with respect to the general areas of the dormitory but with respect tothe individual rooms, consent is not validly given unless the residents themselves would give consent.


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PRELIMINARY INVESTIGATION

INTRODUCTION

PRELIMINARY INVESTIGATION

I. PURPOSE

II. ENTITLEMENT AS OF RIGHTA. Effect of denial

III. WHO MAY CONDUCTIV. PROCEDURE: Differences between:

A. By MTC judgeB. By prosecutor / Ombudsman

V. REMEDIES FOR LACK OF / IRREGULAR P.I.

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficientground to engender a well-founded belief that a crime has been committed and the respondent isprobably guilty thereof, and should be held for trial. (Rule 112, Sec. 1)

The primary objective of preliminary investigation is to free the respondent from theinconvenience, expense, ignominy and stress of defending himself in the course of a formal trial, until thereasonable probability of his guilt has been passed upon in a more or less summary proceeding by acompetent officer designated for that purpose.

Preliminary investigation serves as a sieve, funnel, in which you can filter cases which cannotstand the rigorous test of proof beyond reasonable doubt. The overriding consideration is that theaccused should not be subjected to hasty, ill-considered or malicious prosecution. (Bautista)

Definition and attributes of a corporation

Preliminary investigation defined

Purpose of preliminary investigation


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Is P.I. part of due process? What about those not entitled to P.I.? Are they denied of dueprocess?

If it is granted by statute but denied, then there is violation of due process. If not granted by statute, thenthere is no denial of due process.

Is P.I. a constitutional right?

No, it is only a statutory right.

When required to be conducted

Preliminary invesitgation is required to be conducted before the filing of a complaint or informationfor offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day (Prisioncorreccional in its maximum period, upwards. Please check this, though.),regardless of the fine. (Rule112, Sec. 1) Note that this is to be taken together with Rule 112, Sec. 7 (which deals with warrantlessarrests).

Effect of denial of preliminary investigation

Preliminary investigation if denied can be demanded, but only before arraignment. Once a pleahas been entered, PI can no longer be availed of. (Rule 114, Sec. 26)

Note that the ruling in Go v. CA is exceptional owing to the circumstances in that case.

The following are authorized by law to conduct preliminary investigations:

1. Provincial or city prosecutors and their assistants2. Judges of the MTC and MCTC judges (note that Metropolitan Trial Court judges are not

included)

3. National and regional state prosecutors4. Such other officers as may be authorized by law

Ombudsman; Metropolitan Trial Court judges of chartered cities where their charter allows

them to do so;

COMELEC (Verify this!) SEC (Verify this!) SSS (Verify this!)

ENTITLEMENT AS OF RIGHT

WHO MAY CONDUCT


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Suppose the MTC judge conducts the P.I. and he finds no probable cause. What will he do?

Transmit to the fiscal the records of the case and recommend dismissal.

Suppose the fiscal disagrees with the judge, and he thinks that a case should be filed. Can hebase a review of the records sent up to him by the judge to file an information?

No, fiscal has to conduct his own preliminary investigation.

In what instances can an MTC judge issue summons instead of a warrant of arrest?

See Rule 112, Sec. 9 (b), last sentence: If the judge is satisfied that there is no necessity forplacing the accused under custody, he may issue summonsinstead of a warrant of arrest.

Compare the procedure for the conduct of preliminary investigation by an MTC judge and by a

prosecutor or the Ombudsman.

Differences: (1) MTC judge still has to submit his findings to the provincial / cityprosecutor for approval.

(2) MTC judge can issue warrants of arrest. (Rule 112, Sec. 6 (b))

In what instances is the reviewing prosecutor required to make a written ruling / resolution on thefindings being reviewed?

See Rule 112, Sec. 5, par. 2: In all cases.

Can the respondent file a motion to dismiss in a preliminary investigation?

NO. Rule 112, Sec. 3 (c) explicitly provides that no motion to dismiss shall be filed in lieu of a counter-affidavit.

What is the remedy for lack of / or irregular preliminary investigation?

Certiorari, prohibition, mandamus.

Prohibition to prohibit arraignment. Mandamus to compel preliminary investigation.

PROCEDURE

REMEDIES FOR LACK OF / IRREGULAR PI


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JURISDICTION

INTRODUCTION



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VENUE

INTRODUCTION



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COMPLAINT & INFORMATION

OLD RULES 2000 RULES COMMENTARY

Rule 110, Sec. 1. How instituted. -- Foroffenses not subject to the rule onsummary procedure in special cases,the institution of criminal actions shallbe as follows:

(a) For offenses falling under thejurisdiction of the Regional Trial

Courts, by filing the complaint withthe appropriate officer for the purposeof conducting the requisite preliminaryinvestigation therein;

(b) For offenses falling under thejurisdiction of the MTCs and MCTCs,by filing the complaint or informationdirectly with the said courts, or acomplaint with the fiscal'soffice. However, in Metro Manila andother chartered cities, the complaintmay be filed only with the office of thefiscal.

In all cases, such institution shallinterrupt the period of prescription ofthe offense charged.

Rule 110, Sec. 1. Institution of criminalactions -Criminal actions shall beinstituted as follows:

(a) FOR OFFENSES WHERE APRELIMINARY INVESTIGATION

IS REQUIRED PURSUANT TOSECTION 1 OF RULE 112, by filingthe complaint with the proper officerfor the purpose of conducting therequisite preliminary investigation

(b) For all other offenses, by filingthe complaint or information directly

with the MTCs and MCTCs, or thecomplaint with the office of theprosecutor. In Manila and otherchartered cities, the complaint shall befiled with the office of the prosecutorUNLESS OTHERWISE PROVIDEDIN THEIR CHARTERS.

The institution of the criminalaction shall interrupt the running ofthe period of prescription of theoffense charged UNLESSOTHERWISE PROVIDED INSPECIAL LAWS.

The phrase "for offenses not subjectto the rule on summary procedure inspecial cases" was deleted. Thus,under the new rules, the institution ofall criminal actions shall be the same.

Under Sec. 1 of Rule 112,preliminary investigation is requiredfor offenses punishableby imprisonment of at least 4 years, 2months and 1 day (subject to theexception in Sec. 7 of Rule 112, i.e. lawfulwarrantless arrests)

This amendment is pursuant to theruling in Zaldivia v. Reyes (211 SCRA277), where the Supreme Court heldthat the Rules of Court cannot amendspecial laws.

Rule 110, Sec. 8. Designation of theoffense. -Whenever possible, acomplaint or information should state

the designation given to the offense bythe statute, besides the statement ofthe acts or omissions constituting thesame, and if there is no suchdesignation, reference should be madeto the section or subsection of thestatute punishing it.

Rule 110, Sec. 9. Cause ofaccusation.The acts or omissions

Rule 110, Sec. 8. Designation of the offense-The complaint or information shallstate the designation of the offense

given by the statute, aver the acts oromissions constituting the offense, andSPECIFY ITS QUALIFYING AND

AGGRAVATING CIRCUM-STANCES. If there is no designationof the offense, reference shall be madeto the section or subsection of thestatute punishing it.

Rule 110, Sec. 9. Cause of the accusation.-The acts or omissions complained of

The Rules now require theinformation to allege the qualifyingand aggravating circumstances.

Comparison of the old and new rules


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complained of as constituting theoffense must be stated in ordinary andconcise language without repetition,not necessarily in the terms of thestatute defining the offense, but insuch form as is sufficient to enable aperson of common understanding to

know what offense is intended to becharged, and enable the court topronounce proper judgment.

as constituting the offense and theQUALIFYING AND AGGRAVA-

TING CIRCUMSTANCES must bestated in ordinary and concise languageand not necessarily in the languageused in the statute but in termssufficient to enable a person of

common understanding to know whatoffense is being charged as well as itsQUALIFYING AND AGGRA-

VATING CIRCUMSTANCES andfor the court to pronounce judgment.

Rule 110, Sec. 5. Who must prosecutecriminal actions.

Refer to codal for text.

Rule 110, Sec. 5. Who must prosecutecriminal actions.

Refer to codal for text.

Rape is no longer considered aprivate offense since it is nowclassified as a crime against personsunder R.A. 8353. Thus, it may beprosecuted by any person and not justupon a complaint filed by theoffended party or her parents,grandparents or guardian.

Rule 110, Sec. 14.Amendment. -Theinformation or complaint may beamended, in substance or form,

without leave of court, at any timebefore the accused pleads; andthereafter and during the trial as to allmatters of form, by leave and at thediscretion of the court, when the samecan be done without prejudice to therights of the accused.

If it appears at any time beforejudgment that a mistake has been

made in charging the proper offense,the court shall dismiss the originalcomplaint or information upon thefiling of a new one charging the properoffense in accordance with Rule 119,Sec. 11, provided the accused shall notbe placed in double jeopardy, and mayalso require the witnesses to give bailfor their appearance at the trial.

Rule 110, Sec. 14.Amendment ORSUBSTITUTION. -A Complaint OrInformation May Be Amended, InForm Or In Substance, Without LeaveOf Court, At Any Time Before The

Accused Enters His Plea. After ThePlea And During The Trial, A Formal

Amendment May Only Be Made WithLeave Of Court And When It Can BeDone Without Causing Prejudice To

The Rights Of The Accused.HOWEVER, ANY

AMENDMENT BEFORE PLEAWHICH DOWNGRADES THENATURE OF THE OFFENSECHARGED IN OR EXCLUDES

ANY ACCUSED FROM THECOMPLAINT OR INFORMATION,CAN BE MADE ONLY UPONMOTION BY THE PROSECUTOR,

WITH NOTICE TO THEOFFENDED PARTY AND WITHLEAVE OF COURT. THE COURTSHALL STATE ITS REASONS INRESOLVING THE MOTION ANDCOPIES OF ITS ORDER SHALLBE FURNISHED ALL PARTIES,ESPECIALLY THE OFFENDEDPARTY.

If it appears at any time beforejudgment that a mistake has been

made in charging the proper offense,the court shall dismiss the originalcomplaint or information upon thefiling of a new one charging the properoffense in accordance with sec. 19, rule119, provided the accused shall not beplaced in double jeopardy. The courtmay require the witnesses to give bailfor their appearance at the trial.

This is self-explanatory.


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I. Definition of complaint and informationII. How and where institutedIII. Who must prosecuteIV. Requisites of a complaint or informationV. Amendment of complaint or informationVI. Effect of filing on interruption of prescriptive periodVII. Remedies against a defective complaint or information

Jurisdiction is determined by the extent of the penalty which the law imposes on the basis of thefacts as recited in the complaint or information. Note that it is the imposable penalty that governs; not thepenalty which the court may impose or actually imposes. (People v. Lagon, 185 SCRA 442)

Generally, the fiscal. However, in MTCs, MeTCs or MCTCs where the fiscal is not available, the offendedparty or a peace officer or public officer may prosecute.

Note that once the complaint or information has been filed in court, the fiscal loses jurisdiction to disposeof the case as he deems fit. (Republic v. Sunga, 162 SCRA 191)

Name of accusedDesignation of offenseActs / Omissions constituting offenseName of offended partyDate of Commission of OffensePlace of Commission

Definition of complaint and information

How and where instituted

Who must prosecute

Requisites of a complaint or information


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Before arraignment: If amendment is either in substance or form, without need for leave ofCourt

After arraignment,during trial: Amendment in form only, with leave of court at its discretion, provided

that such amendment does not prejudice the rights of the accused.

Formal amendment: one that does not prejudice any essential right of the accused, nor affect theessence of the crime charged.

Substantial amendment: one that would change the basic theory of the prosecution by alleging a newway of committing the offense.

What is the test to determine whether an amendment is substantial or formal?

(1) If the amendment changes the nature of the information;(2) Eliminates a defense;(3) Increases quantum of evidence

Note: Conspiracy is neither formal nor substantial per se. It depends on the circumstances of the case.

Amendment of complaint or information

Effect of filing on interruption of prescriptive period

Remedies against a defective complaint or information


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THE CIVIL ASPECT

OLD RULES 2000 RULES COMMENTARY

Rule 111, Sec. 1. Institution of criminal and civil actions. -When acriminal action is instituted, the civilaction for the recovery of civil liabilityis impliedly instituted with the criminalaction, unless the offended party

waives the civil action, reserves hisright to institute it separately, or

institutes the civil action prior to thecriminal action.

Such civil action includes recoveryof indemnity under the Revised PenalCode, and damages under Art. 32, 33,34 and 2176 of the Civil Code of thePhilippines arising from the same actor omission of the accused.

A waiver of any of the civil actionsextinguishes the others. Theinstitution of, or the reservation of theright to file, any of the said civil

actions separately waives the others.

The reservation of the right toinstitute the separate civil actions shallbe made before the prosecution starts

to present its evidence and undercircumstances affording the offendedparty a reasonable opportunity to makesuch reservation.

In no case may the offended partyrecover damages twice for the same actor omission of the accused.

When the offended party seeks to

Rule 111, Sec. 1. Institution of criminal and civil actions. -

(a) When a criminal action isinstituted, the civil action for therecovery of civil liabilityarising fromthe offense charged shall be deemedimpliedly instituted with the criminalaction, unless the offended party

waives the civil action, reserves hisright to institute it separately, orinstitutes the civil action prior to thecriminal action.

The reservation of the right toinstitute separately the civil action shall

be made before the prosecution startspresenting its evidence and undercircumstances affording the offendedparty a reasonable opportunity to makesuch reservation.

In no case, however, may theoffended party recover damages twicefor the same act or omission chargedin the criminal action. (Sec. 3)

Under the 2000 Rules, only the civilliability arising from the offensechargedis deemed instituted. Thismeans that recovery of damages forcivil liability under Art. 32, 33, 34 and2176 of the Civil Code is not impliedlyinstituted in the criminal case, and maytherefore be prosecuted separately

even without a reservation. This is incontrast to the old Rules where all civilliability was deemed instituted in thecriminal case.

Under the former rule, a waiver ofany of the civil actions extinguishes theothers. The institution of, or thereservation of the right to file, any of

the civil actions separately waives theothers. This is no longer providedfor. The reservation and waiverreferred to pertain only to the civilaction for the recovery of civil liabilityarising from the offense charged. Thisdoes not include recovery under Art.32, 33, 34 and 2176 of the Civil Codearising from the same act or omission,

which may be prosecuted separatelyeven without a reservation.

This provision was moved to Sec. 3of Rule 111 of the 2000 Rules. Thechange is merely one of style and notof substance.

Comparison of old and new rules


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enforce civil liability against theaccused by way of moral, nominal,temperate or exemplary damages, thefiling fees for such civil action asprovided in these Rules shall constitutea first lien on the judgment except inan award for actual damages.

In cases wherein the amount ofdamages, other than actual, is allegedin the complaint or information, thecorresponding filing fees shall be paidby the offended party upon the filingthereof in court for trial.

When the offended party seeks toenforce civil liability against theaccused by way of moral, nominal,temperate or exemplarydamageswithout specifying theamount thereof in the complaint orinformation, the filing fees

thereof shall constitute a first lien onthe judgment awarding such damages.

Where the amount of damages,other than actual, is specified in thecomplaint or information, thecorresponding filing fees shall be paidby the offended party upon the filingthereof in court.

Except as otherwise provided inthese Rules, no filing fees shall berequired for actual damages.

No counterclaim, cross-claim orthird-party complaint may be filedby the accused in the criminal case,but any cause of action which couldhave been the subject thereof maybe litigated in a separate civilaction.

(b) The criminal action forviolation of BP 22 shall be deemedto include the corresponding civilaction. No reservation to file suchcivil action separately shall beallowed.

Upon filing of the aforesaid jointcriminal and civil actions, theoffended party shall pay in full thefiling fees based on the amount ofthe check involved, which shall beconsidered as the actual damagesclaimed. Where the complaint orinformation also seeks to recoverliquidated, moral, nominal,temperate or exemplary damages,the offended party shall pay

additional filing fees based on theamounts alleged therein. If theamounts are not so alleged but anyof these damages are subsequentlyawarded by the court, the filing feesbased on the amount awarded shallconstitute a first lien on thejudgment.

Where the civil action has been

The exceptions are BP 22 cases,those civil actions not instituted withinthe proper time, and cases before theSandiganbayan.

The 2000 rules have repealed therulings in Shafer v. Judge, RTC ofOlongapo (167 SCRA 376),Javier vs. IAC(171 SCRA 376) and Cabaero v.Cantos(citation unknown) whichpreviously allowed the filing of third-party complaints as well ascounterclaims. Now, under the 2000Rules, these pleadings are no longerallowed. Any claim which could havebeen the subject thereof may belitigated in a separate civil action.

The 2000 Rules have incorporatedSupreme Court Circular 57-97 on thefiling of actions for violation of BP 22mandating the inclusion of thecorresponding civil action for whichthe filing fee shall be paid based on theamount of the check involved.

Note that in other cases (non-BP22 cases), no filing fees are requiredfor actual damages.


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filed separately and trial thereof hasnot yet commenced, it may beconsolidated with the criminalaction upon application with thecourt trying the latter case. If theapplication is granted, the trial ofboth actions shall proceed inaccordance with Sec. 2 of this Rulegoverning consolidation of the civiland criminal action.

No counterpart provision. Rule 111, Sec. 2, paragraph 2.During the pendency of the

criminal action, the running of theperiod of prescription of the civilaction which cannot be institutedseparately or whose proceeding hasbeen suspended shall be tolled.

The action contemplated herein is acivil action arising from the offensecharged. If such civil action is eitherreserved, or filed separately ahead ofthe criminal case, the period ofprescription does not run.

However, the period ofprescription for civil actions under Art.32, 33, 34 and 2176 of the Civil Codeis not suspended because such actions

can be instituted separately.

No counterpart provision. Rule 111, Sec. 4. Effect of death oncivil actions -The death of theaccused after arraignment andduring the pendency of the criminalaction shall extinguish the civilliability arising from thedelict. However, the independentcivil action instituted under Sec. 3of this Rule or which thereafter isinstituted to enforce liability arisingfrom other sources of obligationmay be continued against the estateor legal representative of the

accused after proper substitution oragainst said estate, as the case maybe. The heirs of the accused maybe substituted for the deceased

without requiring the appointmentof an executor or administrator andthe court may appoint aguardian ad litemfor the minorheirs.

The court shall forthwith ordersaid legal representative orrepresentatives to appear and besubstituted within a period of 30days from notice.

A final judgment entered infavor of the offended party shall beenforced in the manner especially

provided in these rules forprosecuting claims against theestate of the deceased.

If the accused dies beforearraignment, the case shall bedismissed without prejudice to any


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civil action the offended party mayfile against the estate of thedeceased.

Rule 111, Sec. 5. Elements of prejudicial question. -The 2essential elements of a prejudicial

question are: (a) the civil actioninvolves an issue similar or intimatelyrelated to the issue raised in thecriminal action; and (b) the resolutionof such issue determines whether ornot the criminal action may proceed.

Rule 111, Sec. 7. Elements of prejudicial question. -The elementsof a prejudicial question are: (a)

thepreviously instituted civil actioninvolves an issue similar or intimatelyrelated to the issue raised inthesubsequent criminal action; and(b) the resolution of such issuedetermines whether or not the criminalaction may proceed.

The 2000 Rules expressly state thatfor a civil action to be deemed aprejudicial question, it must have been

institutedprior to the criminal action.

Note that under the 2000 Rules, the only civil action deemed impliedly instituted with the criminalaction is that for civil liability arising from the offense charged. All other civil actions arising from sourcesother than the delict are not impliedly instituted.

Note that under both the old and new rules, the exceptions to the general rule of the impliedinstitution of the civil aspect are:

(1) When the offended party waives the civil action;(2) When the offended party reserves his right to institute it separately; and(3) When he institutes the civil action prior to the criminal action.

Does the offended party have the absolute right to institute a civil action ex delictoseparately?

YES, except in the following cases:

(1) BP 22 cases (Rule 111, Sec. 1 (b));(2) When not instituted within the proper time;(3) Cases before the Sandiganbayan.

What is the effect of death of the accused on the civil actions?

It depends:

(1) If the accused dies before arraignment, the case shall be dismissed without prejudice to anycivil action the offended party may file against the estate of the deceased.

IMPLIED INSTITUTION OF THE CIVIL ASPECT

RESERVATION OF CIVIL ACTION

EFFECT OF DEATH OF THE ACCUSED


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(2) If the accused dies after arraignment and during pendency of the criminal action, civil liabilityarising from the delict shall be extinguished. HOWEVER, an independent civil actioninstituted under Rule 111, Sec. 3 or from other sources of obligation may be continuedagainst (a) the estate or (b) legal representative of the accused after proper substitution, asthe case may be. (Rule 111, Sec. 4)

Must filing fees be paid every time a criminal case is filed?

It depends on whether the claim is only for actual damages, or if there is an additional claim formoral, nominal, temperate or exemplary damages.

If only actual damages are claimed?

Generally, no filing fees are required. However, if the case is one involving BP 22, filing feesmust be paid basd on the amount of the check involved, which shall be considered as the actualdamages claimed. (Rule 111, Sec. 1b)

If the complaint or information seeks to also recover liquidated, moral, nominal, temperate orexemplary damages, the offended party shall pay additional filing fees based on the amounts allegedtherein. (Rule 111, Sec. 1 (b))

As a general rule, criminal actions are preferred over civil actions, i.e. the civil action shall besuspended when the criminal action has been filed.

However, there are exceptions to this rule of preference, namely:

(1) Independent civil actions, i.e. Art. 32, 33, 34 and 2176 of the Civil Code;(2) When the civil case is subsequently consolidated with the criminal action

(Sec. 2, Rule 111);and(3) A civil action involving a prejudicial question

What is a prejudicial question?

A prejudicial question is understood in law as that which must precede the criminal action andwhich requires a decision before a final judgment can be rendered in the criminal action with which saidquestion is closely connected. (Berbari v. Concepcion, 40 Phil. 837) A civil question is prejudicial when itrefers to a fact separate and distinct from the offense but intimately connected with it, which questiondetermines the guilt or innocence of the accused. (De Leon v. Mabanag, 70 Phil. 202)

The doctrine of prejudicial question comes into play generally in a situation where the civil andcriminal actions are pending and in the former an issue must be preemptively resolved before the criminalaction may proceed. This does not apply where no civil, but only an administrative, case isinvolved. (Manikad, et al. v. Tanodbayan, G.R. No. 65097, Feb. 20, 1984)

What are the elements of a prejudicial question?

FILING FEES

PREJUDICIAL QUESTIONS


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Civil case for annulment of the second marriage brought by the second wife, where the firstwife has filed a criminal case against the husband for bigamy (People v. Aragon, 94 Phil. 357;Landicho v. Relova, Feb. 23, 1968)

However, where the husband was charged with bigamy by the second wife and thehusband filed a civil action against the second wife for the annulment of the marriage

on the ground that he was forced to contract said subsequent marriage, such civilaction isprejudicial since annulment on that ground would establish that his act incontracting the second marriage was involuntary, and hence, no criminal liabilitywould attach. (Zapanta v. Montesa, Feb. 28, 1962)

Validity of a receipt, impugned in a civil action as having been obtained by fraud, where thecriminal case is one for estafa. Such defense may be passed upon in said criminal case orconviction may be based on other grounds. (Jimenez v. Averia, et al., Mar. 29, 1968)

Is it possible for the accused to be acquitted, and yet to be civilly liable for the act charged to becriminal?

Yes, if the court made no finding in the final judgment in the criminal action that the act oromission from which the civil liability may arise did not exist. Extinction of the penal action generally doesnot carry with it extinction of the civil action. (Rule 111, Sec. 2)

Said query whether an action for breach of contract arising from the same act or omission as thebasis of the criminal charge, is impliedly instituted you think that the express mention of thearticles of the CC excludes culpa contractual?

The way I read it, the 2nd

paragraph amplifies the general statement in the first paragraph. The civilliability in the first paragraph consists of the 5 mentioned in the 2

ndpar.

That may be so because of the wording. I think you are right. However, it may be a failure to considerthe intention really is to assimilate all the civil actions based on the same act or omission. I think theexpress enumeration may have left open the matter of culpa contractual. In fact, culpa contractual is notmentioned among those actions, which may be prosecuted independently and separately andconcurrently with the criminal action. But it can. That also pulls the rug under your expressio uniosargument. I think that this one can also be prosecuted separately. It should be impliedly instituted.

Sir: We have a private prosecutor in a criminal proceeding and have a civil litigation together with acriminal case.

The accused has a right to refuse to take the witness stand. Can the private prosecutor call himto the stand as an adverse party witness in respect to the civil liability? Since we have fused/mergedtrial. You notice the provision which speaks of the civil action being consolidated if it was already pendingbefore, it would be consolidated with the criminal action although you can ask additional evidence andalso in defining the jurisdiction of the Sandiganbayan.

What is the peculiarity in cases before the Sandiganbayan about the civil aspect of offenses beingtried by the Sandiganbayan? All cases bearing on the civil aspect of the crime should be jointly tried inthe Sandiganbayan proceeding and if not so tried, then it should be waived.

Cannot be expressly reserved, be separately instituted. Perhaps Apples point may acquire someadded validity when reckoned with the Sandiganbayan decree ecause in those cases, it would be

EFFECT OF ACQUITTAL ON CIVIL LIABILITY


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extremely unfair for an accused who has a cause of action for breach of contract not to be able to institutean independent action for breach of contract because theres a criminal case filed in Sandiganbayanbecause in that case, there is absolute prohibition for a separate action. What is the rationale for givingpriority to this criminal aciton over the civil action? Why do we say, go ahead first with the criminal actionand let us suspend the civil action except in those cases where an independent civil action may beprosecuted.

You remember the Seneris doctrine?

A: There could be a finding in the criminal action that the fact from which the civil liability might arisedid not exist.

Sir: Good. But also what if there could be a finding? So you save time so there is no need for a civilcase. You may be able to save the time and expenditure for a civil case. You may be able to save thetime and expenditure for a civil case. Give me an instance of a case where such a finding may be made that he basis for civil liability does not exist.A: 2 women claiming to be wife of one person. The first files criminal charge of bigamy, but in a civilcase, the issue of validity of the first marriage comes up.

Sir: The right to reserve the institution of a separate civil action is given in all cases. True or false?A: True, except Sandiganbayan.Sir: R 111, S 1, 2nd par. When you have the right to independent action, you have a right toreserve. What does that mean? They can be instituted concurrently?

These are the different concepts. One is the right to reserve. That is given in all cases. Now, theright to proceed concurrently is limited to those 4 cases in 2

ndparagraph, without having to wait. In all

cases, you have the right to reserve. Its only a question if you can do it at the same time or you have towait.

Sir: Is there a deadline for making a reservation in a criminal action?A: Yes, before prosecution starts to present its evidence.Sir: Unless? In other words, there might be a time even after the prosecution has started its evidence,still you may be allowed to make your reservation.

Example?A: If fiscal instituted action without intervention of offended party. After arraignment, proceeded to

present its evidence without the private party having the chance to reserve. Sir: Possible. Or more commonly if the accused pleads guilty right away.

Sir: An action based on contract may proceed independently. So, our conclusion a while ago thatonly civil actions based on 32, 33, 34 and 2176 CC may proceed independently is not completely correct. A: Yes, in that sense.

Sir: A court in criminal case may issue a writ of preliminary attachment. How about MTC? The civilliability arising from the offense on civil action impliedly instituted in the criminal action in the MTC mightinvolve more than P 20,000. May MTC issue writ of preliminary attachment to secure claim for morethan?A: Yes.

Sir: So it has larger civil jurisdiction in a criminal case than it has in a civil case.


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BAIL

INTRODUCTION

I. Definition and purposeII. KindsIII. Rules for when bail may be availed of

A. When Allowed(1) Matter of Right



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(2) Matter of DiscretionB. When not allowedC. When not required

IV. ConditionsV. EntitlementVI. Application (includes who may grant)

VII. PostingVIII. Forfeiture

The right to bail flows from the presumption of innocence in favor of the accused. ( De la Camarav. Enage, 41 SCRA 1)

When bail is a matter of right

Bail is a matter of right in the following instances:

In criminal cases before the MTC: Before or after convictionIn criminal cases before the RTC: Before conviction, where the penalty is

less than reclusion perpetua, death orlife imprisonment

When bail is a matter of discretion

(1) Matter of DiscretionBail is a matter of discretion in the following instances:

In criminal cases before the RTC: After conviction, where the penalty is

less than reclusion perpetua, death orlife imprisonment

When bail is not allowed

Definition and purpose

When right may be invoked

Rules for when bail may be availed of


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Bail is not allowed when the crime involved is a capital offense where evidence of guilt isstrong. (Note that it is the prosecution which has the burden of showing that evidence of guilt is strong.)

Bail is likewise not allowed after final judgment. The exception to this is when the accusedapplies for probation before the judgement becomes final. (Note that the Probation Law must beapplicable to both the penalty and the offense.)

When bail is not required

A. Surety BondB. Property BondC. Cash BondD. Recognizance - Personal underwriting by accused or good citizen of community.

At what stages of the criminal action is the accused required to be present?

1. arraignment2. for identification3. promulgation of judgment, except if the case is one involving a light offense

Right to bail and the right to travel abroad

Where does one apply for bail? (Rule 114, Sec. 17)

As a general rule, bail is applied for / filed with the court where the case is pending.

Kinds

Conditions

Standards for fixing bail

Entitlement

Application (includes who may grant)


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Exceptions:

1. judge where case is pending is not available2. Accused arrested in a place other than where case is pending3. Accused has not yet been charged

Until when is bail good?

Unless cancelled, bail remains in force at all stages of the case until promulgation of judgment byRTC. (Rule 114, Sec. 2)

What is the effect of failure of the accused out on bail to attend a hearing despite due notice?

(1) Bond -- Ifthe hearing is one wherein the accuseds presence is mandatory, the bond is forfeited. (However, if his presence is not required, there will be noeffect on the bond.) Moreover, the Court will give the sureties 30 days withinwhich to produce their principal (or to give the reason for his non-production),and to show cause why no judgment should be rendered against them for theamount of their bail (i.e., explain why the accused did not appear before the courtwhen first required to do so).

(2) Trial-- Trial in absentia, provided that accused has already been arraigned.

Question: Is the accuseds presence waived for that date only or for all otherdates thereafter?

Who are NOT entitled to bail as of right?

1. reclusion perpetua, life imprisonment, death when evidence of guilt is strong2. after conviction by the RTC imposing penalty of imprisonment exceeding 6 years but not

more than 20 years and any of the grounds enumerated

3. conviction reclusion perpetua, life imprisonment, death

Posting

Forfeiture

Waiver of the right to bail


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Sirs view If you are convicted and penalty is more than 6 years, not as a matter of right butdiscretionary if any of the 5 conditions

Matter of righta. before or after conviction by MTC

Bail MTC RTC; still good upon appeal

b. before conviction by RTC of an offense not punishable by death, reclusion perpetua or lifeimprisonment

6 years and above 20 + 5 grounds = no discretionSEC 24. If there is final judgment no bail because convicted, but can apply forprobation before finality

What are the stages of bail?

(1) applying(2) fixing(3) posting

Where to apply not the same as where to postlook at type of bond see sec 11 and sec 14

Court where you apply fixes amount of bailbut this is NOT necessarily the court which will release you but where you post baile.g. charged in RTC Manila. Fix bail at P30,000. Can you post bail in RTC QC? Yes, 2

ndparagraph sec

19

If post with treasurer get receipt and go to court you want the warrant to be recalled by thecourt

Applying v. Fixing v. Postingjust because court approves bail does not equate to postingafter approval of bail get ? then post

posting= where? any where case is pending or arrested?theres no provision where to post bailcan post bail anywhere

Must forward what?e.g. issue warrant ManilareleaseQ.C. ( cant approve application but once Manila approves, QC can release)

Bail = confusing = as to applying, fixing and posting

When is the liability of surety extinguished?

1. acquitted2. dismissal


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3. death4. convicted and surrendersSec 21 = appeared as required

There used to be a letter of instruction waiving presence of accused

Bail fixed at P100,000 if surety or P10,000 if cash. Is this valid? Yes.

Bail if in cash can it be applied to fine and civil damagesfine YesCivil liability No, might not be his money

What if explain why cant produceproduce body OR give reason for his non-productionpossibility that liability of bondsman will be reduced

If out on bail, can he travel abroad? No, unless with court permission may lose jurisdiction impairs contract of bondsman

Is this not impairment of liberty? Still in jail although out on bail bondsman is his jailer =bondman can arrest (no need for warrant) sec 23

practice notice to the bondsman is notice to the accused

Sir: Who is not entitled to bail? Is there anyone not entitled to bail?A: No.Sir: Everybody is entitled to bail. There is no one not entitled to bail. Everybody is entitled eventhose charged with reclusion perpetua and where evidence of guilt is strong. (?)

Sir: Even after conviction but pending appeal, they are entitled to bail?A: Yes.

Sir: What is the difference of (1) those accused with offenses punishable by lesser penalties or RPwhere evidence of guilt is not strong; and (2) those accused with RP evidence is strong? A: (1) Bail is a matter of right. (2) Bail is discretionary upon court

Sir: If you are charged with an offense in the RTC, may you apply for bail in the MTC of the sameprovince?A: R 114, S 14, 2

ndsentence, ....bail may be filed also in MTC.

Sir: I said applied. Here are the concepts. The court which fixes the bail. The court that acceptsthe bail, and therefore releases the accused on bail.

Sir: May the MTC of QC fix and release on bail a person not charged before it? I did not say acceptthe bail.A: S 16, 2

ndpar. ...file xxx.

Sir: But that provision presupposes that the bail was fixed. I am talking of QC-MTC fixing andaccepting bail of one not charged before it. In S 16, 2

ndparagraph, why should he file bail when it has not

yet been fixed?

Sir: Read provision where accused is arrested and not yet charged, and he can put up bail? A: R 114, S 14 (c) xxx apply


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Sir: Apply. That means is has not yet been fixed.A: But S 6 The judge who granted the application shall fix the bail. So in S 14 (c), if the personapplies for bail in court, necessarily the court who approves application must also fix the bail. Thus,whoever approves application may fix the bail.

Sir: But a bail already fixed may be filed in another court other than that which fixed it. A: Rules for fixing of baill and acceptance of bail is under S 14. Once bail is fixed, the courtauthorized t accept bail should only be pending unless branch is unavailable, or arrested somewhereelse.

Sir: How about if he is arrested without being charged?A: He can file it in any court where he is held.

Sir: What amount if bail? Who will fix the bail?A: Where he applied.

Sir: So that is different now. The court will fix the bail. Who will fix the bail of person arrested but notcharged? Any court in the province where he is held.

Sir: What are the kinds of bail? Can the court require of accused to fix bail at P 20,000 surety, but if

case P 10,000 lang?How about: the court required that if the bail be real property bond that if be real estate in the

province and must have been owned by surety for at least 5 years. Is that reasonable bailrequirement? The requirement that is must have been owned for at least 5 years has been held to beunreasonable if the property is Torrens titled. The implication was that it was reasonable if property wasnot titled.

Sir: P 500,000 bail for homicide charge where the accused is a government clerk?

Sir: Regarding problem on P 20,000 surety bond or P 10,000 cash bond. Usually, to attain a bailbond of P 20,000, you might be asked to put up collateral, even cash, sometimes for P 10,000. But thereare time like right now where there are very few bonding companies that have clearance to issue bailbonds about 5. If the accused is a government clerk only and he is charged with homicide, half a millionbail excessive? What is the test? What is the impact of his financial capacity? Whether bail is excessiveor not depends on the circumstances of the accused and the crimes charged like where some crimes arevery rampant, the Court may be justified in fixing very stiff bail.


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ARRAIGNMENT & PLEA

I. Nature and purpose of arraignmentII. ProcedureIII. Plea

A. PurposeB. Types

(1) Guilty(2) Not Guilty(3) Refusal to enter plea(4) Qualified or Conditional admission(5) Plea Bargain

IV. Pre-Arraignment RemediesV. Effects of Arraignment and Entry of PleaVI. Availability of Provisional Remedies

What is arraignment? (Rule 116, Sec. 1)

Pagbabasa in Filipino. The information is read to the accused in a language which he

understands and is given a copy thereof. He is then asked to enter his plea. If he doesnt have a lawyer,he is given a counsel de oficio.

Purpose of plea

Types of plea

(1) Guilty(2) Not Guilty(3) Refusal to enter plea(4) Qualified or Conditional admission

Nature and purpose of arraignment

Procedure

Plea


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(5) Plea BargainWhat are the possible pleas?

(1) Guilty(2) Not guilty(3) Conditional plea of guilty (This is considered as not guilty.)

(4) Pleads guilty but presents exculpatory evidence (Considered as not guilty)(5) Plea of guilty to a lesser offense(6) Mute (This is considered as not guilty.)(7) Evasive (considered as not guilty)

Plea of guilty: when is reception of evidence mandatory? discretionary?

If the accused pleads guilty to a capital offense, reception of evidence as to the voluntariness andfull comprehension of the consequences of his plea, proof of guilt, and precise degree of culpabilityis mandatory. This is so that the Supreme Court will have something to review once the case goes up onautomatic review.

However, if the accused pleads guilty to a non-capital offense, reception of evidence ismerely discretionary.

Is a negotiated plea or a plea to a lesser offense allowed?

Yes. Under the Rules, a lesser offense is one that is necessarily included in the offensecharged. (Rule 116, Sec. 2) It is allowed to be made either during arraignment, or after arraignment butbefore trial provided that the earlier plea of not guilty is withdrawn. It can also be made by the trialprosecutor in the event that the accused fails to appear during the arraignment despite due notice. (Rule116, Sec. 1(f))

Note: An offense charged is deemed to be necessarily included in the offense

proved when the essential ingredients of the former constitute or form part ofthose constituting the latter. (Rule 120, Sec. 5)

It must be stressed, however, that a plea to a lesser offense or to one that is necessarily includedin the offense charged does NOT apply to crimes covered by special laws (e.g. possession of drugsunder the Dangerous Drugs Act)

When is a plea deemed improvident? What are its effects?

A plea is deemed improvident when the accused finds out that there was a mistake in theadmission. The Court may permit an improvident plea of guilty to be withdrawn and be substituted by aplea of not guilty. (Rule 116, Sec. 5)

Note: If the accused pleaded guilty because he misappreciated the penalty to beImposed, this is not deemed an improvident plea.

Can a withdrawn plea of guilty be used as an admission?

No, doesnt make sense if used against him


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Plea Bargaining

Is it possible for the accused to waive reading of information?

Generally, no.

Even if pleads guilty if later on there is evidence to show incomplete self -defense change tonot guilty

mute not guiltyevasive not guilty

Who are required to be present during arraignment? (Rule 116, Sec. 1 (f))

1. accused - Must be present.2. offended party for plea bargaining and civil liability. If the offended party fails to appear

despite due notice, a plea of guilty to a lesser offense which is necessarily included in theoffense charged may be entered with the conformity of the trial prosecutor alone.

What are the consequences of an entry of plea?

The moment you plea, you can no longer:

1. move to quash (except on those 4 exceptional grounds);2. question validity of the arrest;3. question lack of preliminary investigation;4. amend the information without leave of court;5. move for a bill of particulars (Rule 116, Sec. 9)

Moreover,

Sec 7, Rule 117 (b) The conviction of the accused shall not be a bar to another

Pre-Arraignment Remedies

Availability of Provisional Remedies

Effects of Arraignment and Entry of Plea


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prosecution for an offense which necessarily includes the offense charged in the formercomplaint or information if the facts constituting the graver charge became known or werediscovered only after a plea was entered in the former complaint or information.

Jeopardy attaches, since one of the requirements is that the accused has been arraigned.

Trial can be conducted in absentiathereafter.

Do we allow for reconsidered plea?

Yes. If prosecution and offended party consents provided further that it is necessarily included inthe information.

variance can be convicted if elements of lesser offense are included

plea of guiltcan be withdrawn = before convictionplea of guilty can be withdrawn before reception

Time Frame : 30 days from date court acquires jurisdiction over personWhat are the exceptions? Motion to quash, etc.

reserve action = reserve before prosecution starts presenting evidence (R111, sec 1 par2)

Answer as long as deny allegations in information, its up to prosecution to prove

at pre-trail there can be some admission (ex. reserve trial)

Plea signifies that accused understands chargea denial (like answer)jeopardy attaches

New Rules aggravating circumstances = must be alleged in the complaint (even generic)

Plea of guiltcan be withdrawn before judgment improvident pleaWhat if pending appeal? Yes like a withdrawal of appeal (sec 12, R122)

What about withdrawal of appeal if already in appellate court?see sec 18 R 124 = Civil cases

can withdraw sec 3 R50before filing of appellees brief as a matter of right

Can decisions of the RTC be reviewed by Sandiganbayan? Yes, if salary grade is below 27

Negotiated Plea Bargainin like blackjack favorable to both accused and prosecution Stateconviction saves time/resources

Can the accused be arraigned in absentia?


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No. Not even if he is going to plead guilty.

May a plea of guilty be withdrawn?up to when?

May a plea of not guilty be withdrawn? When is the last time you can change it?

Sir: The accused plead guilty to information which does not allege any aggravating circumstance norany civil liability and yet the court convicted him and sentence him taking into consideration account ofaggravating circumstance and imposed civil liability, is it correct?Sir: Even generic aggravating cannot be taken into account in imposing penalty to the accused whoenters plea of guilty? Can the court take into account generic aggravating in sentencing accused whopleads guilty to an information that does not allege any such circumstance? Sir: No, nor any civil liability which is not allege. Reason: where he pleads guilty, a plea of guiltmeans an admission of all the material allegations of the information. Only those that are alleged.

Accused charged with rebellion can he plead guilty to unjust vexation?

Yes.

He cannot plead guilty to rape because it more serious offense than rebellion.A: Yes.

Sir: Even if the lesser offense is not within the jurisdiction of the Court?A: Yes.

Sir: Even if the lesser offense is not necessarily included in the offense charged? A: Yes.

Sir: Under what conditions can such plea to unjust vexation be accepted? A: If the offended party consents and the fiscal.

Sir: Regarding aggravating circumstance and plea of guilt. In that case of plea of guilt, I wasassuming that no evidence was received. Remember: generic aggravating although not alleged may beproved because it is not an essential element of the offense. So, if not alleged nor proved, cannot betaken into account. However, if not alleged nor proved, cannot be taken into account because what is thebasis.Sir: So if not alleged, pleaded guilty, but proved, it can be taken into consideration Sir: R 116, S 2. Conviction under plea is equivalent to conviction for double jeopardy. Is it notabsurd that ex. charge of murder, pleads guilty to unjust vexation, he cannot be prosecuted for murderanymore?Sir: Only absurd if you do not understand the philosophy behind plea bargaining. State encouragesplea bargaining. Quid pro quo? The trade off? Saves time and resources of state.

Sir: What is the status of Trono doctrine promulgated by RP SC under US period and affirmed by USSC, but in r

crimpro q&a

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