herrera crimpro summarized

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I will live my life to the fuNNiest. (Warlita Bee, 2014) www.warlita.wordpress.com OOHlala: Only human. Open to constructive criticism. Hope this helps. lala pg. 1 HERRERA SUMMARIZED CRIMINAL PROCEDURE RULE 110:Prosecution of offenses Section 1: Institution of Criminal Action a) offenses where preliminary investigation is required- by filing the complaint with the proper officer (fiscal or MTC) for the purpose of conducting the required PI. b) all other offenses- by filing the complaint or information directly with the MTC and MCTC, or the complaint with the office of the prosecutor. (Manila and other chartered cities, complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters) GR: institution shall interrupt the running of the period of prescription of the offense charged. Prescription is interrupted even if it is filed in a court without jurisdiction. EXP: unless otherwise provided in special laws ( section 2 of ACT 3326) - Said act governs the computation of prescription of offenses under special laws. - Prescription commences from the commission ( if known) or discovery ( if not known) until institution of judicial proceedings. - Prescription shall be interrupted when proceedings are instituted against the guilty person and shall resume if the proceedings are dismissed for reasons not constituting double jeopardy. Civil law rules on prescription is applicable to criminal cases. Condition precedent to Filing cases Katarungang Pambaranggay ( Chapter 7, Title I, Book III of LGC 1991) - no complaint/ petition/ action/ proceeding involving any matter within the authority of the lupon shall be filed or instituted in any court or any other govt office for adjudication UNLESS there has been a confrontation between the parties before the Lupon chair OR pangkat. - no conciliation or settlement shall be reached without the certification of the Lupon secretary or pangkat secretary as attested by Lupon chairman or Pangkat chairman OR UNLESS settlement has been repudiated by the parties thereto. -when parties may go directly to court without the brgy conciliation: a) accused is under detention b) a person otherwise deprived of his personal liberty calling for habeas corpus preceedings c) actions are coupled with provisional remedies ( prelim inj, attachment, ldelivery of personal prop, support pendent lite) d) where the action, may otherwise, be bared by statute of limitation

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Page 1: Herrera CrimPro Summarized

I will live my life to the fuNNiest. (Warlita Bee, 2014) www.warlita.wordpress.com OOHlala: Only human. Open to constructive criticism. Hope this helps. lala

pg. 1

HERRERA SUMMARIZED CRIMINAL PROCEDURE

RULE 110:Prosecution of offenses

Section 1: Institution of Criminal Action

a) offenses where preliminary investigation is required- by filing the complaint with the proper officer (fiscal or MTC) for the purpose of conducting the required PI.

b) all other offenses- by filing the complaint or information directly with the MTC and MCTC, or the complaint with the office of the prosecutor. (Manila and other chartered cities, complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters)

GR: institution shall interrupt the running of the period of prescription of the offense charged. Prescription is interrupted even if it is filed in a court without jurisdiction.

EXP: unless otherwise provided in special laws ( section 2 of ACT 3326) - Said act governs the computation of prescription of offenses under special laws. - Prescription commences from the commission ( if known) or discovery ( if not known) until

institution of judicial proceedings. - Prescription shall be interrupted when proceedings are instituted against the guilty person and

shall resume if the proceedings are dismissed for reasons not constituting double jeopardy.

Civil law rules on prescription is applicable to criminal cases.

Condition precedent to Filing cases Katarungang Pambaranggay ( Chapter 7, Title I, Book III of LGC 1991) - no complaint/ petition/ action/ proceeding involving any matter within the authority of the lupon shall be filed or instituted in any court or any other govt office for adjudication UNLESS there has been a confrontation between the parties before the Lupon chair OR pangkat. - no conciliation or settlement shall be reached without the certification of the Lupon secretary or pangkat secretary as attested by Lupon chairman or Pangkat chairman OR UNLESS settlement has been repudiated by the parties thereto. -when parties may go directly to court without the brgy conciliation:

a) accused is under detention b) a person otherwise deprived of his personal liberty calling for habeas corpus preceedings c) actions are coupled with provisional remedies ( prelim inj, attachment, ldelivery of personal

prop, support pendent lite) d) where the action, may otherwise, be bared by statute of limitation

Page 2: Herrera CrimPro Summarized

I will live my life to the fuNNiest. (Warlita Bee, 2014) www.warlita.wordpress.com OOHlala: Only human. Open to constructive criticism. Hope this helps. lala

pg. 2

- Indigenous Cultural Communities (ICC) / Indegenous People (IP) conciliation among indigenous cultural communities shall be applied in settling disputes between them. ( commonly accepted justice system). The National Commission on ICCs/IPs shall have jurisdiction over ALL claims and disputes involving them provided that all remedies in their community have been exhausted before going to the commission. -GR: Subject matter of amicable settlement:

a) parties actually residing in the same city or municipality. b) agreed upon c) court in non-criminal cases though not falling under the authority of lupon, may at any time

before trial, motu proprio, refer the case to the lupon concerned for amicable settlement.

EXPs:

a) where one party is the govt or any subdivision or instrumentality thereof b) one party is a public officer/ ee and dispute relates to the performance of his official functions c) offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5k. d) offenses where there is no private offended party. e) Where dispute involves properties located in different cities or municipalities UNLESS the

parties thereto agree to submit their differences to amicable settlement by an appropriate lupon f) Disputes involving parties who actually reside in brgy of different cities or municipalities, EXP

where such brgy units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by the appropriate lupon

g) Such other classes of disputes which the president may determine in the interest of justice or upon recommendation of the secretary of justice.

Section 2: Complaint or Information

Complaint/ information: a) Be in writing b) In the name of the people of the Philippines ( absent- merely a matter of form and curable at

any stage of the trial) c) Against all persons who appear to be responsible for the offenses involved

Section 3: Complaint

Complaint:

A sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of law violated.

Who may file complaint: a) Offended party b) Any peace officer c) Public officer charged with the enforcement or execution of the law violated.

Page 3: Herrera CrimPro Summarized

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pg. 3

- Provincial fiscal is not among the 3. Information filed by him cannot be considered as a complaint.

- “offended party”- person actually injured and whose feeling is offended/ a party to whom the offender is civilly liable.

- Widow may be considered as offended party for the murder of her husband. - In bigamy, both the 1st and 2nd sps may be offended parties. - The right to commence criminal prosecution is confined to representatives of the govt and

persons injured. ( if not by them- dismissed) - But one who is not an offended party may file complaint for PI. EXP: crime which cannot be

prosecuted de oficio. Complaint filed to court- filed by offended party Complaint filed to fiscal- filed by any person Information- filed by the fiscal

A complaint filed with the fiscal prior to a judicial action may be filed by any person. A criminal action cannot be instituted against a juridical person. To subscribe and swear a criminal complaint is NOT A MINITERIAL DUTY. Absent such- does

not invalidate the complaint UNLESS it is a private offense. Right to file complaint is personal and abated by death.

GR: criminal prosecution MAY NOT BE restrained or stayed by preliminary or final injunction.

Ratio: public interest

EXPS:

a) To afford adequate protection to the constitutional right of the accused b) When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions. c) When there is a prejudicial question d) When the acts of the officer are without or in excess of authority e) Prosecution in under an invalid law, ordinance or regulation f) Double jeopardy is clearly apparent g) Court has no jurisdiction over the offense h) It is a case of persecution rather than prosecution i) Charges are manifestly false and motivated by lust or vengeance j) When there is clearly no prima facie case against the accused and a motion to quash on

that ground has been denied k) PI has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

Section 4: Information

Information:

Accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.

Complaint Information Executed by a private party Prosecutor Supported by oath of complainant Subscribed by prosecutor Need no necessarily be filed in court Filed with court ( otherwise it is not an information)

Page 4: Herrera CrimPro Summarized

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pg. 4

An information not properly signed cannot be cured by silence, acquiescence, or even by express consent

Section 5:Who must prosecute criminal actions

Compliance with this section is jurisdictional not merely a formal requirement. Public prosecutor may turn over the actual prosecution of the criminal case, in the exercise of his

discretion, but he may, at any time, take over the actual conduct of the trial. HOWEVER, it is necessary that the public prosecutor be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control.

BUT absence of public prosecutor cannot be raised by accused to invalidate the testimony of a witness if he can not prove that he was personally prejudiced thereby.

NOTE: Trial court: provincial prosecutor CA / SC: solicitor general Wrong delivery of notice- will render the dismissal of the petition (petition for review/ certiorari)

Control by prosecution BEFORE information is filed in court 1. What case to file and whom to prosecute FISCAL’s discretion in the prosecution

GR: IF HE IS NOT convinced that he has evidence to support the allegations thereof, he may not be a) Prior to filing of case in court fiscal cannot be compelled (even by the SC) to file a criminal information. b) compelled to include other public officials who appeal to be responsible for the offense as co-accused. EXP: There is an unmistakable showing of grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. -Remedy: a) Motion for inclusion; THEN b) Mandamus;OR appeal fiscal’s decision to the ministry of justice and/ ask for a special prosecutor. - appreciation of evidence is upon fiscal’s sound discretion but the same may be reversed or set aside by the Sec of Justice or in special cases by the President.

2. Manner or prosecution 3. Right of prosecution to withdraw information BEFORE arraignment even without notice and hearing. There must be leave of court after prior notice and hearing. Full control of fiscal ENDS with the filing of the information in court. Jurisdiction is vested with

the court. “ adherence to jurisdiction”. Fiscal may file a motion to dismiss a case filed in court but the decision is up to the court. It does

not matter if this is done before or after arraignment of the accused or that the motion was filed after a reinvestigation or upon instruction of the Sec Justice who reviewed the records of investigation.

Control by Court AFTER information is filed in court

Page 5: Herrera CrimPro Summarized

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pg. 5

1. Suspension of arraignment Hypo: (Dimatulac vs Villon) Facts: a) accused charged with murder b) MTC found probable cause for murder and issued warrant c) records forwarded to Prov Fiscal d) without being arrested, Prov Fiscal reinvestigated and found na “homicide” lang e) offended appealed to sec of justice f) despite appeal, fiscal filed info in court for homicide g) arraigned and posted bail h) then sec of justice found for murder, but withdrew recomm upon finding that he was already arraigned. Issue: WON fiscal or judge gravely abused discretion by proceeding to arraignment despite the appeal to the Sec Justice? Held: court should have suspended the arraignment and awaited the resolution on the petition. Otherwise, arraignment be set aside, and info amended if DOJ finds that proper infor shoule be murder.

2. reinvestigation After court has obtained jurisdiction Motion for reinvestigation should, after the court has acquired jurisdiction, be addressed to the trial judge alone. Neither the secretary of justice, state prosecutor, fiscal may interfere. If fiscal finds it proper that reinvestigation be done, court’s approval must be obtained. 3. prosecution by fiscal 4. dismissal Withdrawal of complaint by fiscal must be with court’s approval EXP: Galvez vs CA: upheld the right of the prosecution to withdraw info for homicide for the purpose of refilling the case for murder BEFORE arraignment even without notice and hearing.

But any move on the part of complainant or offended party to dismiss the case (even without accused’s objection) should first be referred to the fiscal for his own view of the matter. 5. downgrading offense or dropping of accused even before plea

Limitations on Control by court Parameters of court’s control: where judge granted motion for reinvestigation and directed the fiscal to conduct it, the court is deemed to have deferred to the prosecution arm of the govt. thus, court should wait for a final resolution before acting on it. the result of the above reinvestigation is now be the sole and only valid basis of the judge’s final action. Judge should then proceed with arraignment, pretrial then trial. 1. Prosecution entitled to notice of hearing 2. court must await result of petition for review 3.prosecutions stand to maintain prosecution should be respected by court

- “under his direction and control” -Fiscal may be compelled to prosecute cases already filed- he must not leave the prosecution in the hands of a private prosecutor SINCE an offense is an outrage to the sovereignty of the State.

Page 6: Herrera CrimPro Summarized

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pg. 6

- this supervision and control extends to the civil liability instituted with the criminal action if it was not filed separately, reserved, or there is no private prosecutor who intervened.

4. ultimate test of court’s independence is where fiscal filed motion to dismiss or withdraw info. 5. court has authority to review DOJ secretary’s recomm and reject it if there is grave abuse of discretion. - resolution of DOJ sec may be appealed to the office of the President (if offenses punishable by death/ reclusion perpetua) 6. to reject or grant a motion to dismiss, court must make own independent assessment of evidence. OTHERWISE, judgment is void.

Crimes that may be prosecuted upon complaint of the Offended party: 3 categories 1) crimes of adultery and concubinage 2) offenses of seduction, abduction, or acts of lasciviousness 3) criminal actions for defamation which consist in the imputation of the offenses of

seduction, abduction, or acts of lasciviousness

Rape is now a crime against persons and thus may be prosecuted even without a complaint filed by the offended party.

Private Crimes: -felonies which cannot be prosecuted except upon sworn written complaint filed by the aggrieved party is misleading. State may prosecute also. - it is true that the institution of private crimes is at the option of aggrieved party. But once that choice is made manifest, the law will be applied in full force and in spite of the complainant, his death notwithstanding. - it is the sworn written complaint that starts the prosecutory proceeding IT IS NOT what vest jurisdiction in the court.

Purpose: consideration for the offended women and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial.

1. Crimes of Adultery and Concubinage

-Who can file: offended spouse ONLY ( not even the State) - offended spouse must have the status, capacity and legal representation AT THE TIME of the filing of an action for adultery/ concubinage. - thus if divorced, may not file. If offended spouse if of age, the right to file the complaint is exclusive and successive. Death of complainant during pendency of case does not extinguish criminal liability. Death of complainant before filing of case in court, is not sufficient justification for dismissal of

the information, since complaint has been filed with the fiscal and the desire of the offended party to prosecute is evident.

Lack of sworn written complaint is sufficiently cured by filing a verified statement before court. Need not move for a motion to quash the information and dismiss the case.

Complaint filed by offended party in inferior court is sufficient she need not subscribe the information. Jurisdiction is conferred by law and not by the complaint or information.

Page 7: Herrera CrimPro Summarized

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pg. 7

It is not necessary for the complainant to sign and verify the information filed by the fiscal. The complaint adopted by the fiscal and attached to and made part of the corresponding information filed after investigation is sufficient.

2. Seduction/ Abduction/ Acts of Lasciviousness - Who can file: offended party, her parents/ guardian ( in the order in which they are named).

Prosecution may be conducted by the fiscal on the basis of the complaint filed in the inferior court. There is no need to file information.

Roc does not require that information filed by fiscal be signed by offended party.

Variance between complaint and information and the evidence

- Example: Complaint: forcible abduction Information filed by fiscal: rape Thus, in as much as rape is distinct from forcible abduction, said complaint COULD NOT BE THE BASIS for the court to acquire jurisdiction over the crime actually committed. Complaint: rape by manner A Information filed by fiscal: rape by manner B The court is not divested with the jurisdiction, since it is over the rape irrespective of the manner of how it was committed. Sworn statement: abduction with rape ( form part of PI) Complaint: does not have elements Information filed by fiscal: forcible abduction with rape. The court is not divested with the jurisdiction. Information filed by fiscal: rape by force and intimidation He cannot be convicted of rape on the ground that woman was unconscious EXP when he failed to object during the trial.

Father has no preferential right over the mother to file complaint. If filed by legal guardian, an oath that he is such is sufficient. If complaint is for attempted rape, court has jurisdiction to try acts of lasciviousness since

attempted rape includes acts of lasciviousness. Robbery with rape or rape with homicide, the complaint of offended party is not essential.

3. Defamation imputing Adultery/ Concubinage/ Seduction/ Abduction/ Acts of Lasciviousness - Who can file: offended party

Absent complaint by offended party: corrected without sustaining a motion to quash and dismissal of the case. Remedy: verified statement of offended filed in court.

Imputing prostitution does not indicate adulterous act and can be prosecuted de officio. Death of offended party in cases of libel or defamation does not extinguish criminal liability.

Section 6: Sufficiency of complaint or information

Page 8: Herrera CrimPro Summarized

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pg. 8

Elements of the crime must be alleged to enable the accuse to suitably prepared his defense. Matter of evidence, as distinguished by facts essential to the description of the offense, need not be

averred. It is a matter of evidence in trial. Reasonable certainty in the statement of the crime suffices. As long as accused is enabled to

intelligently prepare his defense. Conviction or acquittal under a fatally defective info for want of certain essential allegation is not

necessarily void WHEN NO OBJECTION appears to have been raised at the trial AND fatal defect could have been supplied by competent evidence.

Character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, as they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information. What is important is that the accused is not deprived of his constitutional right to be informed or the nature of the crime against him.

Alleging Conspiracy:

a) as a crime:

-the act of conspiring and all the elements of said crime must be set forth in the complaint or information. - must set firth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can prepare his defense.

b) as a mode in the commission of the crime: -use of the words “conspire, and the like” OR by the allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to completely enter a plea to a subsequent indictment based on same facts. -information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit felony among the accused. - if not averred, accused is liable only for his own individual act.

The designation of the offense by the statute must be stated. But absent such, does not vitiate the information if the facts alleged clearly recites the facts constituting the crime charged. - The title of information or designation of the offense is not controlling. It is the facts recited

therein that is controlling. - It is the province of the court alone to say what the crime is or what it is named. Even the

justice of peace during the PI has no authority. - Allegations prevail over the designation of the offense in the information for conviction of

accused who may be convicted for a graver crime that that titled.

Facts must be stated not conclusions of law.

Section 7:name of the accused

Error in the name or identity of the accused should be raised on arraignment. Purpose: to enable the court to acquire jurisdiction over the person of defendant.

Page 9: Herrera CrimPro Summarized

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pg. 9

Verbal motion to correct spelling of name is sufficient. If he did not raise the error in his name during the arraignment, but actively participated in the

trial, it is deemed a waiver of questioning his identity for the first time on appeal.

Section 8: Designation of offense

Section 9: Cause of Accusation

The rule being remedial and favorable to the accused may be applied retroactively.

Purpose: Essence of the constitutional right of the accused to be informed of the nature and cause of the accusation against him is that EVERY ELEMENT of the offense must be alleged in the complaint or information so as to enable the accused to suitable prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense”.

TEST : WON crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged.

For rape to be qualified as heinous, warranting the imposition of death penalty, the circumstances

of minority of the victim and her relationship with the offender must be BOTH alleged in the information for rape.

Even if the information alleged that the victim is the natural daughter of the accused, where there

is a difference in their surname, the mere testimony of the victim that the accused is his father is not sufficient to establish the qualifying circumstance of relationship, even is such relationship was not denied by the accused.

Roc, now, merely require that the information allege, specify or enumerate the attendant

circumstances mentioned in the law to qualify the offense. These circumstances need not be preceded by “aggravating/ qualifying/ etc” to be considered as such.

Effect of variance in mode of commission of crime: special qualifying circumstances that are required to be specifically alleged in the information.

Real nature of the crime is determined by the facts alleged in the complaint or information and NOT BY THE TITLE

-what control is not the designation but the description. -thus although was called aggravating circumstances in the information for murder, the same will be considered as qualifying circumstances.

Essential elements inferred from allegation in the information

GR: an inference in the complaint and conclusion can not be allowed. ( eg. grave abuse of confidence) Exp: 1. “ with intent to kill”- discernment of a minor can be inferred. 2. “willful damage”- includes reckless imprudence 3. “unlawful taking and appropriation…”- intent to gain can be inferred.

GR: “an accused may be convicted of a crime which is more serious than that named in

EXP: An accused could not be convicted under one act when he is charged with a violation of another if the change from one statue to the other involves:

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pg. 10

the title so long as the facts alleged the more serious offense”.

a) a change of the theory of the trial b) requires of the defendant a different defense c) surprises the accused in anyway.

Waiver by failing to object: -Although initially defective, the criminal complaint was deemed corrected when prosecution introduced evidence of the qualifying circumstances and the defense did not object, thereby waiving the procedural defect.

-Waiver must not only be voluntary but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences.

-Implied waiver NOT ALLOWED:

1. When information charges no offense at all. For an accused can not be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.

2. Where the qualifying circumstance proved is different from the qualifying circumstance alleged in the information.

3. Where it would result in more serious penalty. Thus, failure to allege a AC or QC, even if proved without objection cannot be availed of to qualify or aggravate the offense charged.

4. Right to be arraigned can not be waived. There can be no trial in absentia without arraignment.

5. Where it would result in conviction for a more serious offense than the offense charged.

Habitual delinquency: - Mere statement of HD is a conclusion of law. The information should specify the dates: a)

commission of previous crimes; b) last conviction or release; c) other previous conviction or release of accused.

Absence of allegations in information of recidivism and habitual delinquency, evidence as to it can be properly objected to as inadmissible.

Qualifying circumstance of treachery must be specifically alleged and not merely deduced.

An exception need not be alleged. An exception to a general rule in a penal statute is not an ingredient of an offense, it is a matter of defense which must be proved by accused if he relies upon it.

-Test to determine won an exception is or is not a matter of defense:

IF the language of the law defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to said exception

THEN the pleader may safely omit such reference, as the exception is a matter of defense which must be shown by the accused.

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pg. 11

IF the exception is so incorporated with the language defining the offense that the ingredients of the offense cannot accurately and clearly described if the exception is omitted

THEN the statute must alled enough to show that the accused is not within the exception.

- Example: Opium Law

GR: uses…..liable Exp: save upon prescription of a duly practicing physician, etc.

In violation thereof, the information need not state that the accused is not under the exeption.

Negative allegation is not an ingredient of an offense and need not be alleged.

Where the law distinguishes between two cases of violation of its provision, an information for

violation thereof must specify under which of the two cases the defendants stands accused of.

Robbery with homicide: failure to state in the information that the killing of the victim was committed by reason of or on occasion of the robbery, does not bar conviction of accused of the special complex crime of robbery with homicide.

Section 10: Place of the commission of the offense

Purpose: to show territorial jurisdiction Crimes where place is essential:

a) violation of domicile (A128,RPC) b) penalty on keeper, watchman, and visitor of an opium den (A199,RPC) c) trespass to dwelling (A280,RPC) d) violation of election law ( Election Code) - general allegation is sufficient. Remedy: Bill of particulars.

Libel cases ( written defamation) -should contain allegations as to: 1) time when offense was committed; 2) offended party is a public officer/ private individual; 3) residence of offended at that time; 4) where it was printed and first published ( if possible, as it will determine venue)

Section 11: Date of the commission of the offense

Crimes where time is essential: a) Infanticide b) Violation of Sunday statutes (election law) c) Abortion

Variance, however, on the date of commission of rape is irrelevant. Time is irrelevant in rape and violation of the Dangerous Drugs Law.

An information for bigamy must stae the time and place of the second wedding.

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pg. 12

Section 12: Name of the offended Party

Name of offended party - If against person: Complaint or information must state name and surname/ appellation/

nickname/ fictitious name. - If against property: property destroyed should be particularly described ( if name of offended is

unknown). - When the offense shall have been described in the complaint with sufficient certainty as to

identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant.

- Even if the names of the offended parties are not alleged, if the offense belongs to the class of harmful ones (eg. illegal practice of medicine), the victims of petitioner should be considered as offended parties.

- An erroneous allegation as to the person injured is of form which do not tend to prejudice any substantial right of the accused on the merits.

- When name of the offended party is material (eg. libel), it must be stated. - In robbery, ownership is not necessary. - Damage inflicted in estafa need not fall on the same person against whom deceit was directed. - Robbery with violence against or intimidation of person, the allegation of the owner’s name in

the information is essential. - Omission of value in theft cases is not fatal. - Information for murder is not defective where another’s name not the victim’s name is placed

in the information. It is merely clerical.

Section 13: Duplicity of Offense

Purpose: so as not to confuse defendant as to which charge will he defend himself with. If in an information 2 offenses were charged AND defendant makes no objection- prosecution may

then present evidence as to each and court may probably convict defendant as to each and every charge. - A motion to quash should be filed, otherwise deemed waived and accused may be convicted for

as many offenses charged and proved setting out separately the findings of fact and law in each case.

There is no duplicity when in the different act alleged, the sum total of which constitutes a crimes. Example: each act of conspirators.

There is no duplicity when a single offense may be committed by the use of different means to charge in the alternative, the various means by which the crime may have been committed. Example: violation of the medical law ( illegal practice of medicine and illegally advertising oneself as a doctor)

Single act violating 2 or more statutes. Limit: no person shall be twice put in jeopardy for punishment for the same offense. In one case, no duplicity when prosecution charged each petitioner with 4 offenses, with each information charging only one offense.

There is no duplicity in sum of all acts of falsification of cedulas, these facts did not charged more than one offense.

Page 13: Herrera CrimPro Summarized

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pg. 13

A person is not charged by the number of counts or paragraphs, but by the specific criminal acts regardless of their number contained in one paragraph or in one count. But proof of all the acts included therein is necessary to prove the charge.

If a person is being charged with 4 specific acts under one count, and each constitutes a complete

act of treason by itself independently of the others, the failure of prosecution to prove all does not entitle the accused to be acquitted of the whole count or of all the charges contained therein when any one or more of the acts are proved.

Under Anti-Graft and Corrupt Practices Act, the use of the words “manifest partiality”, “evident bad faith”, and “ gross inexcusable negligence”, does not mean that the indictment charges 3 distinct offenses.

Each incident of sexual intercourse and lascivious acts with a child (RA 7610) is a separate and

distinct offense.

Delito Continuado - There should be plurality of acts performed during a period of time, unity of penal provision

violated, and unity of criminal intent or purpose, which means that 2 or more violations of the same penal provisions are united in one and the same intent or resolution leading to the perpetration of the same criminal purpose or aim.

- It appears that there are several crimes but in reality there is only one crime in the mind of the perpetrator.

- Example: single larceny rule Theft of 13 cows/ 17 roosters/ illegal charging of fees by the lawyer for revenue of victims- constitute only one crime

- NOT applied in: thus, separate crimes a) estafa committed in different occasions b) malversation and falsification on different occasions c) robbery and fencing d) killing 3 persons using a gun, when it is not proved that a single shot killed them

Exceptions to Rule on Duplicity:

A single penalty for various offenses (eg. special complex crime/ complex crime) Complex crimes: allegations do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which state that one offense was a necessary means to commit the other. Where component offenses are not alleged in the information, it can not give rise to such complex crime. Necessary means: complex crime To conceal: separate crimes

When 7 persons committed rape with homicide in conspiracy, each one shall be separately charged for rape with homicide.

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Different criminal intents + committed under different modes of commission + perpetrated by different acts + consummated on different occasions + caused different injury to different person = charged as separate crimes.

Principle of absorption

a) possession of opium necessary means for its sale= 1 offense absorbed b) possession – some for sale, some for mere possession= separate offense.

Forcible abduction absorbed in rape Violation of RPC and special law

- Violation of RPC does not absorb that of violation of special penal laws - Can not be complexed - thus, there is no crime of illegal possession of firearm used in

homicide. NOT charged separately but illegal possession is NOW AN AGGRAVATING CIRCUMSTANCE (RA no. 8294 as amended by PD no. 1866)

Note in RA no. 8294 as amended by PD no. 1866, illegal possession of firearm is considered as an AGGRAVATING CIRCUMSTANCE in the following ONLY: a) murder/ homicide b) rebellion c) insurrection d) sedition e) attempted coup d’ etat BUT there can be no separate offense of illegal possession of firearm IF there is another crime committed. ( eg. illegal possession and violation of COMELEC gun ban)

Note: RA no. 8294 as amended by PD no. 1866 is favorable to accused. Thus, it is retroactive.

Reckless Imprudence: Where damage to property with less physical injuries is caused by one single act, cannot be complexed, must be separate information, BUT may be consolidated.

Section 14: Amendment or Substitution

W/ or W/o leave of court Without leave of court

Any time before accused enters plea (arraignment) - Substantial or Formal amendment

With leave of court After(arraignment) and during trial - Formal amendment ONLY - And done without prejudice to the right of the accused

TEST: when a defense / evidence before amendment will no longer be available after the amendment. ( not prejudicial: adds nothing but only clarifies/ does not deprive accused of any right/ does not affect the essence of the crime)

Any time before accused enters plea (arraignment) - Substantial or Formal amendment - But any amendment that downgrades the nature of offense:

There must be motion from prosecutor Notice to offended party

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Court should state reasons for resolving motion with copies of order to all parties ( make independent assessments)

Only a valid information may be amended. An information filed before effectivity of a penal law may not be amended after the law has taken

effect. State witness under the Witness Protection Rule

Rule applies in withdrawing or discharging an accused to be s state witness before plea is entered. Where amendment is merely formal, a second arraignment need not be made.

Formal Amendment

- all other matters. Substantial amendment

- The recital of facts constituting the offense charged AND determinative of the jurisdiction of the court.

GR: Changing of dates in the commission of the crime in only formal and not substantial.

EXP: date is when substantial a) when date is an element of the crime b) when disparity in the dates is great

Additional allegations of habitual delinquency and recidivism -ratio: they do not have the effect of another offense nor change the jurisdiction they relate only to the penalty

Additional accused in an offense Allegation of conspiracy if did not modify the basic theory of the prosecution (regala vs CFI)

Allegation of conspiracy if it changes. (pp vs zulueta)

Changes the crime (eg. robbery under Art209 to art 302, RPC)

Changes in the items sold -ratio: accused fails to prepare defense

Deleting the word “orally” from a charge of grave threats ( it did not affect the nature of the crime originally charged )

Where an element (eg. intent to gain) can already be inferred in the information, it adds nothing.

Amendment to allege offense committed in relation to office transfers jurisdiction from RTC to Sandiganbayan BUT does not affect the juridical nature of the offense. -ratio: accused was not prejudiced/ surprised

Qualifying circumstances Amendment from frustrated to consummated murder due to supervening event

Difference in serial number of firearms Change in description of wounds Amendment to alleged that co-accused minors acted with discernment is only formal as far as

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the principal accused is concerned Correction of name

Amendment to conform with evidence

- Amendment to conform with evidence to be presented during trial is permissible. - Amendment by substitution:

Mistake in charging proper offense, court shall dismiss original complaint and ask that a new one be fled. Accused shall not be discharged but will be made to answer for the proper offense. LIMIT: made BEFORE judgment AND double jeopardy. Applies when: accused can not be convicted of the offense charged or of any other offense necessarily included therein.

Rule 119, section 11 Rule 110, section 14 Court initiates substitution to conform with evidence

Prosecutor initiates substitution to file the right offense

Amendment vs Substitution Amendment Substitution

Involves formal or substantial changes - Amend it

Substantial change -dismiss then file new one

Maybe made before of after arraignment Same If made before arraignment: WITHOUT leave of court

If made before arraignment: WITH leave of court

Amendment as to form: no need for PI and re-arraignment

Any substitution: needs PI and re-arraignment to new information

Refers to: Same offense OR of any other offense necessarily included therein

Refers to: Different and NOT necessarily included therein

-TEST as to whether or not Amendment/ Substitution: WON the second information involves the same or an offense necessarily included in the first information, then it is amendment. Otherwise, substitution.

Note that in substitution, the first charge shall only be dismissed UPON the filing of a new one. There is no DJ.

Substitution only applies only where there is no judgment yet on the original case. Limitation to substitution :

a) not judgment has been rendered yet b) accused can not be convicted of the offense charged or of any other offense necessarily included

therein c) accused would not be placed in double jeopardy

When title is wrong but the body of the information already charges the accused with the proper one, substitution is not proper for it would amount to double jeopardy.

No DJ where withdrawal made before arraignment. Thus if substitution is made before arraignment, no DJ.

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When judge believes that instead of offense A, accused is guilty of offense B, he may not order that it be dismissed it and order refilling. He must render decision as the evidence warrant.

Section 15:Place where action is to be instituted

Purpose: so as not to compel the defendant to move to and appear in a different court as it would cause him great inconveniencein looking for his witness and other evidence in another place.

Venue is an essential element of jurisdiction. In criminal proceedings, Improper Venue is lack of jurisdiction. Thus, unlike in civil cases, it can not be waived. Where place was not specifically charged, place may be shown by evidence.

- No such question having been raised before final judgment in the TC, but every ingredient of the crime having been established in the evidence, there was no error committed upon which to base reversal of conviction.

Power to change venue: SC has power to determine the most suitable place of trial according to the exigencies or truth and impartial judgment and to avoid miscarriage of judgment ( 1987 consti). - Petition to change venue of PI should be addressed to the DOJ Sec who has control and

supervision over the conduct of PI ( a function of the executive dept)

All criminal prosecutions: instituted and tried in the court of the municipality of territory wherein a) the crime was committed OR b) where any one of the essential ingredient of the offense took place c) if committed in a train, aircraft, public or private vehicle in the course of its trip, such places

where vehicle passes during such trip AND the place of arrival and departure d) crime in violation of PD 532 ( anti piracy or anti- highway robbery law) committed in a jeep, it

may be in the places where vehicle passed during its trip AND the place of arrival and departure.

e) committed in a vessel, proper court is where the first port of entry or any places which such vessel passed through during its voyage.

f) Places whre action is to be instituted is subject to existing laws. ( eg, cases falling under the juris of Sandiganbayan shall be instituted and tried only in such court).

g) Theft of large cattles- crime is triable only where the cattles were taken not where they were taken since the crime has already been consummated in such place and place where it was carried away is not an indispensible element of theft.

Transitory and continuing offenses: - where any one of the essential ingredient of the offense took place - but first court who takes cognizance excludes all others - complainant should alleged that the offense was committed within the jurisdiction of the court

and not the place where it was originally committed.

Transitory Offense Continuing Offense One where any of the essential ingredients took place

One which is consummated in one place, yet by reason of the nature of the offense, the violation of the law is deemed continuing

eg. libel

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Crimes and their venue

Crime Comments: Adultery Essential Requisite of Continuous Crime: Adultery

a) there should be a plurality of acts performed separately during a period of time, b) unity of penal provision infringed upon or violation, c) and unity of criminal intent or purpose ( meaning: 2 or more violations of the same penal provision are united in one and the same intent leadin to the perpetration of the same criminal purpose or aim)

-adultery is not a continuing offense. The last element missing because the culprits perpetrate the crime in every sexual intercourse and they need not do another or other adulterous act to consummate it.

Bigamy In bigamy, place where first marriage was celebrated is immaterial. What is important only is that the first marriage subsists when the second marriage was celebrated. It is the place where the second marriage was celebrated that must be stated because it is where all the elements were settled

Estafa Venue for estafa: - Estafa is a continuing or transitory offense which may be prosecuted at

the place where any of the essential elements of the crime took place. - Eg. to remit in Manila, collect in Iloilo- may be tried in manila or Iloilo. - Estafa by issuing a bouncing check: venue of the offense lies at the place

where the check was executed and delivered to the payee. Because if check is undelivered is inoperative. It is the delivery of check that signifies the transfer of possession.

- Estafa by railroad conductor- jurisdiction is vester in the court where accused made use of the document alleged to be false.

Note: crime of estafa and violation of bp22 are separate offenses. The mere fact that court has jurisdiction over estafa case does not mean that it also has jurisdiction over Bp22 case. Estafa- deceit and damage are essential Bp22- not essential or required.

Abduction, kidnapping

a continuing offense

Falsification of a private document

Consummated at the time and place where the document is falsified, WON the document is or is not thereafter put to the improper or illegal use for which was intended

Perjury Gist of offense charged is not the making of the affidavit in Manila but the intention to gice false evidence in Ilo-ilo by means of such affidavit.

Libel a) Offended party is a public official/ public person- RTC where the libelous article was printed and first published b) offended is a private individual- RTC of the province where he actually resided at the time of the commission of offense.

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c) offended is a public officer whose office is in Manila at the time of the commission of the offense- RTC Manila d) offended party is a public officer holding office outside manila- RTC where he held office at the time of the commission of the offense.

Crimes on board foreign merchant ships within the territorial limits

Ph law follows English Rule: such crimes are in general triable in the court of the country within whose territory they are committed. Eg. opium on a ship in transit- ph court has no jurisdiction opium on ship landed on ph land- ph has jurisdiction when the exact place where the crimes was committed is unknown and the strong presumption arises at the trial that it was committed on board a ship navigating within the water included in the Ph archipelago, Ph court has jurisdiction ( at one of whose ports the ship or vessel arrives) .

Crimes committed outside of the Philippines

Governed by Article 2, RPC. Cognizable by the proper court in which the charge is first filed.

Necessary jurisdiction: as the crime was committed within 2 and a half miles of the city limits, the

courts has necessary jurisdiction. ( eg homicide was committed near manila city, CFI manila has jurisdiction)

Trial of a prisoner should be made within the penitentiary. If brought out needs SC permission.

Section 16: Intervention of the offended party in criminal action

Prosecution of offenses is a public function There is an implied institution of civil action with criminal action

Purpose of civil action Punish the offender, reform and rehabilitate him. Purpose of criminal action Restitution, reparation of the damage, or indemnification

GR: Offended may personally intervene OR through a counsel ( who will act as a private prosecutor) thus, his presence is not out tolerance only. - When he decides to intervene- he is always subject to the direction and control of the

prosecuting official.

EXP: ( may not intervene) 1) offended waives his right to civil action 2) expressly reserves his right to institute it in an independent civil action. 3) actually instituted the civil action

Right of notice to offended: he is entitled to be notified and heard on motions filed in the criminal proceedings especially when there is a conflict in the positions between the public prosecutor and of the offended party.

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Govt or any of its instrumentalities, subdivisions, or agencies can be the offended party.

Right to file motion for revival of case is not with the witnesses even the complaining witnesses. Thus motion filed by them should be summarily dismissed. Their only function is to testify. Case is now under the control of the fiscal.

Legal personality of offended party: Rule: SolGen- one who brings and defends actions on behalf of RP But the private offended party RETAINS the right to bring a special civil action for certiorari in his own name in criminal proceedings before the court of law. And also the legal personality to file a motion for reconsideration of an order of dismissal.

RULE 111:Prosecution of Civil Action

Section 1: Institution Criminal and Civil Actions

Art 100 RPC: every person criminally liable shall also be civilly liable. -Every crimes gives rise to:

1) a penal or criminal action for the punishment of the guilty party AND 2) also to civil action for the restitution of the thing, repair of the damage and

indemnification for the losses.

An act or omission may give rise to two separate liabilities: a) civil liability (ex delito) b)independent civil liabilities

- not arising from an act or omission complained of as a felony ( culpa contractual, culpa aquiliana)

- where the injured party is granted a right to file an independent and distinct criminal action - A and B may be enforced against offender SEPARATELY or SIMULTANEOUSLY. LIMIT: ART 2177 NCC: plaintiff can not recover twice for the same act or omission. - In cases of negligence, the offended has the choice between an action to enforce civil liability

arising from crime under the RPC and an action for quasi-delict under the NCC.

Principle allowing separate civil actions is not allowed in violations of BP Blg. 22.

- Ratio: declog court dockets because courts are used by creditors as debt collectors.

Note:

a) violation of Bp22- criminal case- punish violator > thus, may not file separate civil case

b) violation of Bp22- compromise agreement- violated- breach of contract- > thus, may institute separate civil case ( for collection of money)

- However, private complainant cannot be deprived of the right to intervene to protect his interests in the criminal action.

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PD 1606: Proceeding before the Sandiganbayan, civil and criminal liability shall AT ALL TIMES be deemed jointly instituted. No right of reservation. Any separate civil action already filed, shall be transferred to Sandiganbayan ang consolidated. Provided, the Sandiganbayan has jurisdiction.

Civil liability arising from crime includes: a) Moral b) Exemplary c) Loss of earning capacity d) Atty’s fees ( if a separate civil action has been filed or when exemplary damages are

awarded)

Failure to allege damages in the complaint or information- no legal consequence. Civil liability is deemed instituted.

Reservation:

- Purpose: to avoid recovering of damages twice.

- When made: BEFORE the prosecution starts to present its evidence AND under the

circumstances affording the offended a reasonable opportunity to make such reservation. -ratio: to give time and opportunity to offended to make reservation.

How: express or implied. eg of implied: -Court fails to make any pronouncement as to the civil liability of accused. -Filing of a civil case before the prosecution presented evidence in the criminal action and judge was informed about it.

Effect of reservation: Prescription of action does not prescribe for the civil action that have been reserved in the criminal action.

GR: civil action which has been reserved can not be instituted until final judgment has been rendered in the criminal case Exp: Art 32, 33,34, and 2176 of the NCC. Note: they may be consolidated with crim action but subject to jurisdictional constraints and court consolidating them has jurisdiction on both.

Waiver: Civil liability arising from a crime may be waived A criminal case is not the proper proceeding to determine the private complainant’s civil

liability to accused, if any. - thus, any cross claim, 3rd party complaint by accused can be filed. It should be subject to a separate action.

Example:

A filed case against B for libel.

B files malicious imputation against A.

Both cases should be separate.

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Separate action by accused: Accused may file a separate civil action based on quasi delict arising from the same

incident and may proceed simultaneously and independently of the criminal case against him.

Limitation: When the contract that is the source of accused coa to file a separate action is a illegal contract -Since it is illegal it cannot create any valid obligation.

Can not file an independent action. Thus a contract entered into that is manifestly and grossly disadvantageous to the govt is declared to be unlawful. Thus Sandiganbayan should first determine is the contract is illegal or legal before the action of accused can proceed.

When the civil action is cased on a contract that can remain valid even if its violation may constitute a crime

The action can proceed independently.

Subsidiary Liability

Rule: subsidiary liability of the employer, inlucing the amounts, may be determined in the same criminal proceeding and is reviewable either by writ of error or through a petition for review on certiorari on pure questions of law. Such an appeal is governed by the rules on criminal procedure since it is a CONTINUATION of

the civil proceedings in the same case. Provided: that a criminal action is instituted and the subsidiary liability of the employer is

proved. Any judgment ( even amounts) on the subsidiary liability of the employer is conclusive upon

the employer and no appeal by the employer can be had. But employer must be afforded due process to prove:

a) existence of an er-ee relp b) er is engaged in some kind of agency c) ee is adjudge guilty of the wrongful act and found to have been committed the offense in the discharge of his duties ( not necessarily any offense he may commit) d) that said employee is insolvent

Filing Fees -filing fees in estafa cases shall be paid within 15 days following the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted. -when civil action is deemed instituted with the criminal action Amount of damages not alleged or amount of parameters set

When offended party seeks to enforce civil liability against accused, the filing fees for such civil action shall constitute a first lien on the judgment except in an award for actual damages.

Amount of damages alleged The corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial.

Section 2: when separate civil action is suspended

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Civil action contemplated here: that arising from a crime. One which can not be instituted until the final judgment in the criminal action OR when instituted needs to be suspended.

No suspension if civil action does not arise from the crime What is suspended is those civil liability arising from delict and NOT SUSPENSION for civil action

based on quasi-delict OR culpa aquiliana (negligence). Consolidation

Facts: 1.A filed for specific performance to compel the B to deliver title of lot to him that was paid for. 2. later A filed a criminal action against B fro violation of a special penal law. 3. A moved for consolidation. TC granted. CA reversed. SC affirmed TC. Issue: Q: may consolidation of civ with the crim be allowed where the civ is not to enforce civil liability arising from a crime? Held. Apply Rule 31 not Rule 111. Court may order several actions pending before it to be consolidated where they arise from the same act, event, or transaction, involve the same or like issues and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not prejudice any of the parties. Ratio: avoid multiplicity of suits.

Effect of Judgment on Acquittal GR: Extinction of penal action DOES NOT carry with it extinction of Civil Action. Exp: if there is a finding in the penal action that the act or omission from which the civil liability may arise did not exist. ( BUT this civil liability refers ONLY to that arising from the offense which is deemed instituted with the criminal case) -It is the duty of court to award civil liability unless there is a finding in the penal action that the act or omission from which the civil liability may arise did not exist. failure to do such: may be compelled by mandamus and the case be remanded to lower court to

determine the civ liability. acquittal in crim case does not bar continuation of the civil case connected therewith where:

a) acquittal is based on reasonable doubt (exception, finding of no negligence: thus bars civil liability)

b) the decision contains a declaration that the liability of the accused is not criminal but only civil

c) civil liability is not derived from or based on the criminal act of which the accused is acquitted.

When no reservation was made AND accused was acquitted: Civil action based on a crime: Does not deprived plaintiff to file civil action. Insufficiency of evidence to support a criminal case DOES NOT IMPLY that there is no sufficient evidence to support the civil case based on the same alleged act. Such civil action may be supported by preponderance of evidence. UPON the defendant’s motion, the court may require plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious.

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Kinds of Acquittal under criminal proceeding 1. Acquittal on the ground that the accused is not the author of the act or omission complained of. - no civil action because accused has no fault. 2. Acquittal based on reasonable doubt on the guilt of the accused. - there may be civil liability which may be proved by preponderance of evidence only. -however, the judgment in the criminal proceeding cannot be read in the civil case to establish any fact there determined, even though both actions involve the same act or omission. Ratio: parties are different and different rules on evidence are applicable.

Section 3: when civil action may proceed independently

May proceed independently thus may be filed simultaneously, Art 32-34, and 2176 of the NCC.

Section 4: Effect of death on civil actions

Death of accused when Effect on civil actions Dies before arraignment Case shall be dismissed without prejudice to any civil action the

offended party may file against the estate of deceased. Dies after arraignment and during trial

Shall extinguish the civil liability arising from the delict BUT Independent civil actions may be instituted against estate

Dies during appeal Civil liability based on the crime shall be extinguished. Civil liability based on law, contract, quasi-contract and quasi0delicts, will proceed. Thus may be enforced against estate.

Section 5: Judgment in civil action not a bar

While every person criminally liable is also civilly liable, the reverse is not true. GR: a civil action absolving the defendant from civil liability is NO BAR to a criminal action.

Exp: the civil action is a prejudicial question which involves an issue similar or intimately related to the issue raised in the criminal action. The resolution of which determines won the criminal action may proceed.

Section 6: Suspension by reason of a prejudicial question

Section 7: Elements of prejudicial question

Rule on precedence of criminal action does not apply when the civil action is a prejudicial question. GR: criminal action must proceed first before civil action. Exp: prejudicial question.

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Prejudicial question: involves a similar issue in a civil action which was pending when the criminal action was instituted or before the amendment, in a civil action filed after the institution of the criminal action. It is based on a fact distinct and separate from the crime but SO INTIMATELY CONNECTED

with it that it determines the guilt of innocence of the accused. Existence of PQ must be alleged in a crim case so as to suspend it.

Cases: Comment: Q: is the civ case determinable of the

guilt ot innocence of the accused? Civil case Criminal case

action for nullity of deed of sale based on the ground that it is forgery and spurious.

Estafa based on execution of said sale

Prejudicial question. -If said DOC is void: no double sale, thus accused is free from estafa case.

Intestate proceeding (partition)

Theft of crops by a person claiming to have a valid contract of lease from legal owner against person claiming co-ownership of the land leased whose claim is pending said intestate proceeding.

NOT PQ -If said partition is annulled or not, it will not be determinative of criminal liability.

Ejectment Theft filed by a lessee against a person claiming co-ownership with the lessor

NOT PQ -not be determinative of criminal liability.

Civil action for accounting and recovery of sum of money

75 counts of estafa NOT PQ -not be determinative of criminal liability.

Annulment of DOS Estafa for issuance of rubber check ( pursuant to said DOS)

-even if DOS is annulled the obli to pay subsists at the time it was presented and dishonored.

Collection of sum of money allegedly embezzled

Embezzlement NOT PQ -Both cases have diff issues. In the Civ case: right to recover money Crim case: failure to account -Independent civ action under art 33, NCC

Annulment of second marriage filed by husband ( ground: involuntary)

bigamy PQ -Determinative of guilt If annulled bec involuntary: not guilty of bigamy If not annulled: guilty of bigamy

Annulment of second marriage filed by 1st and 2nd wife by reason of force/ intimidation upon her

bigamy NOT PQ -It was the man who was forced into it. He was the one who was formerly married and contracted a second one.

Annulment of marriage on ground of psychological incapacity

Concubinage/ bigamy NOT PQ -because when one contracts another marriage BEFORE the judicial

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declaration of nullity of 1st marriage, is guilty of bigamy. - bigamy already consummated.

Action involving title to property

Criminal action for damages to said property

PQ

IF it is a criminal case THEN Admin case NOT PQ IF it is a civil case IF it is a Admin case

THEN Admin case Then Civil case

May be PQ

Action to cancel copyright Infringement NOT PQ Action prejudicial theft NOT PQ Authenticity of motion to withdraw in the CA

Falsification charge in the CFI

PQ

Cadastral Falsification of affidavit presented in a cadastral case

PQ

Civil action instituted to resolves won the designations of certain persons as sectoral reps were in accordance with law

Anti graft law (premised on accused’s partiality and evident bad faith in not paying the former’s salaries as sectoral representatives

PQ

RULE 112: preliminary investigation

Section 1: Preliminary Investigation Defined

Purpose: a) To determine if a crime has been committed b) To protect the accused from the inconvenience, expense, and burden of defending himself in a

formal trial UNLESS the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer.

c) To secure the innocent against hasty, malicious, oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses, and anxiety of a public trial

d) To protect the state from having to conduct useless and expensive trial.

Scope: determine only if a crime has been committed AND won there is a probable cause to believe that the accused IS GUILTY THEREOF.

Right to PI is fundamental and substantive right. It may be expressly and impliedly waived. It belongs rightly to the accused, he alone may waive it. Absent such, denial of due process.

Pi is not part of the trial. The validity of merits of defense or accusation AND admissibility of

testimonies and evidences are better ventilated in the trial not in the PI.

Right may be waived: by failure to invoke the right PRIOR TO or AT LEAST at the time of ARRAIGNMENT. Thus, it may not be raised after arraignment and for the first time on appeal.

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When properly invoked, no waiver. Right is not waived even if applied for bail as long as he had been asking for it since before the arraignment.

Presumption of regularity: in the absence of proof to the contrary, court shall presume that officer

or fiscal conducted PI in accordance with law.

Where NEW PI is needed:

GR: after PI and case dismissed, the fiscal cannot file another information based on same PI. He must conduct another PI. EXP: no need for new PI

a) when original information was not dismissed. b) When after amendment there has been no change in the nature ( not substantial

amendment) of the crime charged c) Where amendment is merely formal d) If the crime originally charged is related to the amended charge such that an inquiry into

one would elicit substantially the same facts that an inquiry to another would reveal e) Tanodbayan of a case under review by it

If PI is null and void on it’s face for lack of authority to file the same, a new PI is needed.

NO right to PI: When under section7, rule 112 when a person is lawfully arrested UNLESS there is waiver of the provisions of ART 125, RPC.

Section 2: Officers authorized to conduct PI

BP blg 129: may conduct PI= Judges of MeTC (exp NRCR) and Judges of MTC Amended by AM 05-8-26-SC: first level courts no longer have authority to conduct PI.

persons who may conduct PI: a) Prov and City Prosecutor b) Prov and City Prosecutor’s assistants c) National and Regional state prosecutors d) Presidential Commission on Good Governance ( PCGG)

Office of solicitor general is empowered to file and prosecute all cases investigated by it. PCGG shall file before the Sandiganbayan ( ill gotten wealth and anti graft and corrupt

practices cases assigned by the Ph President) General power of investigation consists of 2 stages:

a) criminal investigation: fact finding inquiry conducted by law enforcement agents, whereby they gather evidence and interview witnesses and afterwards asses the evidence so that, if they find sufficient basis, they can file a complaint for the purpose of PI. b) Preliminary investigation: to ascertain if there is sufficient evidence to bring a person to trial.

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If PCGG conducts a, it can not conduct b. It is not allowed that person who conducted the criminal investigation be the one to conduct pi. One cannot be the prosecutor and judge at the same time.

e) Officers authorized by law: e.1) COMELEC on all election offenses punishable under the Omnibus election code e.2) Other govt prosecuting arm deputized by COMELEC e.3) Ombudsman over Sandiganbayan cases and regular court cases criminally prosecuting public officers and employees IN RELATION TO THEIR TO THEIR OFFICE.

-ombudsman ‘s power over sandiganbayan cases:

power to investigate-exclusive authority power to file – needs ombudsman’s approval before filed power to prosecute- exclusive authority

- PI conducted by the ombudsman need not strictly follow Rule 112

-Ombudsman has full discretion as to won file the case before the Sandiganbayan. Regular court’s may not interfere with it. No injunction may be enforced against Ombudsman UNLESS outside jurisdiction. - NO court shall hear any appeal or application for remedy against Ombudsman decision except the SC, on pure questions of law. -Remedy: certiorari with the SC, NOT with CA. -But after it is filed with SB, it is the latter that has full control over the case. e.4) Special prosecutor (tanodbayan)

Ombudsman Tanodbayan

- authority is plenary and unqualified - may delegate investigatory function to tanodbayan

-merely a component of the office of the ombudsman - acts under its supervision - PI and prosecute: limited to sandiganbayan cases -authority is limited -may not delegate - not authorize to file unless authorized by ombudsman

Anti Money Laundering Act of 2001 2 kinds of cases: 1. Criminal action for AMLA and 2. Civil forfeiture proceeding

1. Criminal Action

Money Laundering: a crime whereby the proceeds of an unlawful activity are transacted, thereby making it appear to have originated from legitimate sources.

Jurisdiction: RTC. But those commited by public officer/ ee’s shall be under the Sandiganbayan.

2. Civil Forfeiture - may be instituted by RP through ALM Council represented by OSG. -venue: RTC having jurisdiction

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Section 3: Procedure

1st

To be filed:

a) Complaint should state address of respondent, accompanied by affidavits of the complaint and his witness and other supporting documents to establish probable cause.

b) Copies: as much as there are respoendent PLUS 2 for official file.

c) Affidavits shall be subscribed and sworn before any prosecutor or government authorized to administer oath, or notary public,

-officer to whom affids are sworn must: personally examine the affiants and should be satisfied that they voluntarily executed and understood their affidavits.

Within 10 days after filing, investigating officer may

TO ISSUE to respondent: when there is a ground. Subpoena AND complaint and supporting affidavits

- respondent shall have the right to examine the evidence submitted and to copy it at his expense. Object evidence shall be available for examination.

DISMISS: when finds no ground to continue with investigation

Within 10 days after receipt of subpoena, respondent shall submit his counter affidavit and that of his witness and other supporting documents. BUT he can not be compelled to submit.

- must be subscribed, sworn and certified.

- respondent NOT ALLOWED to file motion to dismiss.

-

PI ex parte.

If not subpoenad or does not submit counter affid within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Clarificatory Hearing:

-Investigating officer may set a hearing if there are facts and issues to be clarified.

-Parties can be present at the hearing BUT without right to examine or cross-examine. BUT they may submit to the investigating officer questions which may be asked to the party or witness concerned.

- hearing shall be held within 10 days from submission of affids and documents of expiration of 10 days to submit the same.

-terminated in 5 days

10 days after, the investigating officer shall determine won there is sufficient ground to hold the respondent for trial.

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The proceedings are considered as judicial in nature and not a quasi-judicial proceeding. DOJ is not a quasi-judicial agency and is not exercising a quasi-judicial function when it reviews

the findings of public prosecutors regarding presence of probable cause. Thus, its findings are not appealable to CA under Rule 43. The same is appealable to the office

of the president.

Probable Cause under PI Is the existence of such facts and circumstances as would excite the belief in a reasonable mind,

acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

Determination: a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed by the suspects. GR: Determination is no a SC function. Exp:

a. to afford adequate protection to the consti right of the accused b. necessary for the orderly admin of justice and avoid multiplicity of suits c. prejudicial question d. acts of officer are without or in excess of authority e. prosecution is under an invalid law, ordinance, regulation f. double jeopardy is apparent g. court has no jurisdiction over the case h. persecution rather than prosecution i. charges are manifestly false and motivated by revenge or lust j. clearly no prima facie case against the accused and a motion to quash on that ground

has been denied, and k. PI has been issued by SC to prevent the threatend and unlawful arrest of petitioners

It need not be based on clear an convincing evidence of guilt. No need to set investigation for clarificatory questioning The decision to call witnesses for

clarificatory questions is addressed to the sound discretion of the investigator and investigator alone. Remember that PI is not a part trial.

GR: RTC judges no longer have authority to conduct PI since it is not a judicial function but executive (prosecutor). But they may still conduct a PI for issuance of a warrant of arrest or search warrant. Exp: irregularity amounting to lack of PI or no PI at all, TC may conduct its own. RTC judge Preliminary

Investigation To issue warrant (arrest/search) -Not subject to judicial review except in the regular course of appeal. - finding of PP is not binding upon RJ bec different purpose. - it is not necessary for the RJ to examine all records of the PI in determining the Probable cause.

Public prosecutor To file information or not

If accused does not have counsel during PI- irregularity amounting to lack of PI. Thus, must be raised before trial. When raised, TC will not dismiss info but will conduct its own PI or require fiscal to conduct it. - Absence/ irregularity of PI is not a ground for motion to quash information.

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Court is entitled to discovery procedure during PI. BUT the same is dispensable.

The preliminary designation in the offense is only directive of the true nature of the offense charged.

PI ex parte. Presence of the accused in the PI is not mandatory. What is important is that efforts were

made to reach him. However, accused is still entitled to be notified of the proceedings. Absent notification- irregular PI.

PI must be COMPLETED Motion for reconsideration/ reinvestigation Filed by a accused in an irregular PI before the information is filed in court. If info already filed in court, motion shall not be entertained EXCEPT when the court orders

otherwise.

Under Military law, PI is governed by the Articles of war. Charges and specifications must be signed by a person subject to military law, and under oath either that he has personal knowledge of, or has investigated the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.

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Section 4: Resolution of investigating prosecutor and its review

2nd

If investigating prosecutor (IP) finds cause to hold respondent for trial

He shall prepare the resolution and information

- he shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witness

- that there is a reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof.

- that the accused was informed of the complaint and of the evidence submitted against him

-that he was given an opportunity to submit controverting evidence

10 days after, the investigating officer shall determine won there is sufficient ground to hold the respondent for trial.

Otherwise, he shall recommend dismissal

Dismissal

(but recomm is only directive upon court)

5 days from resolution:

-Ip shall forward the case to the Provincial or city prosecutor, chief state prosecutor, OR ombudsman or deputy ( in

Sandiganbayan cases)

10 days from their receipt:

- Provincial or city prosecutor, chief state prosecutor OR ombudsman or deputy shall act on it and inform parties of such

action

No complaint/ information may be filed OR dismissed without the written authority or approval of Provincial or city prosecutor, chief state prosecutor OR ombudsman or deputy

When IP recommends dismissal

BUT DISAPPROVED by Provincial or city prosecutor, chief state prosecutor OR ombudsman or deputy

: Disapproved in the ground: there is a probable cause

The Provincial or city prosecutor, chief state prosecutor OR ombudsman or deputy shall: 1) file an information against resp; OR 2) direct another assistant prosec or state prosec to do so without conducting another PI

Remedy when DOJ sec refuses filing of case: Art 35,NCC.

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Right of party to APPEAL: Upon petition (petition by review) by proper party: the DOJ sec reverses or modifies the resolution of the Provincial or city prosecutor, chief state prosecutor OR ombudsman or deputy, he shall:

a) direct prosecutor concerned to file the info without a new PI; OR b) dismiss c) move for dismissal of the info

-Note that “the arraignment shall be suspended but shall not exceed 60 days counted from the filing of the pet for review” (sec 11, Rule 116) shall not apply as provided by DOJ circular 70.

the DOJ sec, as far as practicable, should refrain from entertaining a petition for review of appeal from the action of the fiscal, when the complaint or information has already been filed in court.

Once a petition for review is filed with the DOJ it is necessary that the RTC suspend its proceedings (dismissal of the case and arraignment) until after the DOJ sec had resolved the motion with finality, including consideration of the moition of the fiscal of a 2nd amended information

However, one a motion to dismiss or withdraw information is filed in court, the judge may grant or deny it in the exercise of judicial discretion.

Resolutions of the DOJ secretary is appealable administratively to the office of the president where offense charged is punishable by reclusion perpetua.

Officer conducting PI must be impartial. Discretion of IP (investigating prosecutor): to determine the specifity and adequacy of averments

of the offense charged and to institute a criminal action. GR: Mandamus will not lie to compel the public respondent to file an information against

private respondents if no grave abuse of discretion. Exp: (mandamus/ certiorari) when arbitrary and oppressive choices/ grave abuse.

Lack of certification by fiscal of the PI: does not vitiate the information. PI not essential part of the

information. Absence of PI certification is waived by failure to allege it before plea.

-Remedy: motion RTC, who will suspend the proceedings and order fiscal to conduct PI.

Absence of PI= not a ground to quash complaint or information and warrant of arrest and does

not affect the court’s jurisdiction. It is only a procedural defect and may be cured by asking the court to have it done. Note: in one case, trial was suspended for lack of PI, accused was allowed to be released on bail.

GR: If warrant already issued and no PI, Habeas corpus is not the proper remedy. A motion to quash warrant is the proper remedy or ask for a PI.

Exp: accused illegally detained

If no PI, the accused must:

a) refuse to enter a plea upon arraignment and object to further proceedings upon such ground b) insist on PI

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c) file certiorari if refused d) raise lack of PI as error on appeal e) file prohibition

Delay in conducting PI: Violative of due process, and speedy disposition of cases.

Section 5: When warrant of Arrest may issue

3rd

By RTC and MTC When not necessary

1. Within 10 days from the filing of the complaint or information (even if already arrested)

1)When under detention pursuant to a warrant issued by MTC 2) complaint or info filed pursuant to a lawful arrest without warrant (Sec 6, Rule 112) 3) penalized by fine only

2. Judge shall personally evaluate the resolution of the prosecutor and its supporting evidence 3.a. NO probable cause- dismiss the case ( without prejudice) -Accused may file a motion to dismiss on the ground of lack of probable cause. 3.b. YES probable cause- a)issue a warrant of arrest b) commitment order- if already arrested pursuant to a warrant issued by a judge who conducted the PI OR when information was filed pursuant to a lawful arrest 3.c. IN DOUBT of probable cause: judge to order prosecutor to present additional evidence within 5 days from notice and issue must be resolved within 30 days from filing of information. -if petitioner fails to adduce additional evidence, the case may be dismissed for failure to prosecute.

There is no need to conduct hearing to determine probable cause.

Warrant of arrest: legal process issued by a competent authority, directing the arrest of a person/s upon grounds stated therein. Directed to regular officers of the law, but occasionally, it is issued to a private person named therein.

John Doe Warrants: issued against “John Doe” whom the witness to the complaint could not identify are in the nature of a general warrant. VOID because they violate consti.

In issuing warrant, judge:

a) judge shall personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of a probable cause and on the basis thereof, issue a warrant of arrest OR - the fact that the judge took him only a few hours to evaluate, does not mean that he did not do it personally.

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b) if on the basis thereof he finds no probable cause, he may disregard fiscal’s report and requires the submission of supporting affidavits of witness to aid him in arriving at a conclusionas to the existence of probable cause.

- there is NO LAW/RULE requiring the issuance of an order of arrest before a warrant of arrest.

Absence of probable cause for issuance of warrant is not a ground for the quashal of the information BUT is a ground for the dismissal of the case. ( dismissal without prejudice). TC is MANDATED to immediately dismiss the case upon finding that no probable cause exist.

Section 6:When accused lawfully arrested without warrant

2 situations under this section:

COMAPLAINT / INFO NOT FILED a) when a person is lawfully arrested without a warrant for an offense that requires a PI and NO complaint or info has been filed.

-accused may ask for a PI but must waive A125, RPC. But PI must be terminated within 15 days from inception. - before it is filed: he may ask for bail

COMPLAINT/ INFO FILED b) when a person is lawfully arrested without a warrant for an offense that requires a PI and complaint or info has been filed by the offended party, peace officer, or fiscal WITHOUT the PI

- accused may within 5 days from the time he learns of the filing of info, ask for PI with same right to adduce evidence in his favor. - does not exercise it within 5 days- waived. - after it is filed: he may ask for bail

Inquest:

an informal and summary investigation conducted by a public prosecutor in criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining won said persons should remain under custody and correspondingly be charged in court. Steps: custodial investigation:

1. accused arrested without warrant 2. arresting officer to bring arrested to the inquest fiscal 3. inquest officer shall determine won said persons should remain under custody and

correspondingly be charged in court. 4. person arrested shall sign custodial investigation report, if he can not read or write, it shall

be read and explained to him by his counsel.

Preliminary investigation Inquest (custodial investigation) Not yet arrested. Already arrested fiscal Inquest officer Purpose: to put into trial Purpose: to retain in detention waiver of illegal arrest:

-accused may be stopped to question the illegality of the arrest by entering a plea of not guilty without moving to quash the information on such ground.

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Irregularity of arrest

Waived irregularity of arrest is cured by voluntarily submitting himself to the court’s jurisdiction by entering a plea of not guilty and by participating in the trial.

Raised: not

waived

when warrant of arrest is void for want of probable cause, the appropriate remedy is certiorari and prohibition with prayer for the issuance of TRO rather than actively participating in the proceeding.

Section 7:Records

Section8 : Cases not requiring a preliminary investigation

nor covered by the Rule on Summary Procedure

Personal Examination: RA 3838 does not prohibit the municipal judge from adopting the questions asked by a previous investigator.

Searching questions and answers: to determine won there is a reasonable ground to believe that and offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial.

Case that does not require PI

Case that does not fall under Rules of summary procedure

1. prosecutor

-act on it within 10 days from its filing. (he may dismiss it or file it in court.

2. offended party to the MTC

Sec 3 (a): To be filed:

a) Complaint should state address of respondent, accompanied by affidavits of the complaint and his witness and other supporting documents to establish probable cause.

b) Copies: as much as there are respoendent PLUS 2 for official file.

c) Affidavits shall be subscribed and sworn before any prosecutor or government authorized to administer oath, or notary public,

-officer to whom affids are sworn must: personally examine the affiants and should be satisfied that they voluntarily executed and understood their affidavits.

Case shall be filed in court by

3 Options of the judges in the issuance of warrant of arrest:

1. if judge finds:

a) no sufficient ground to hold the respondent for trial: dismiss the complaint of information.

b) sufficient ground: issue warrant of arrest OR commitment order.

2. no probable cause: ask for additional evidence to aid him in determining the existence of probable cause.

3. issue summons (instead of warrant), if it is satisfied that there is no necessity of placing the accused under immediate custody.

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-Shall inquire: nature of offese, date, time and place of its commission, motives, subj, age, education, status, financial and social circumstances, etc.

Preliminary examination (ex parte) Not an essential part of due process. This may be conducted by the MTC judge, prior to the issuance of warrant of arrest, either in

the presence or absence of the accused. There is no need of warrant or bail in cases covered by the Rules on Summary Procedure.

RULE 113: Arrest

Section 1: arrest

Section 2: How made

Arrest signifies restraint on person, depriving one of his own will and liberty, binding him to become obedient to the will of the law.

No unnecessary or unreasonable force shall be sued in making arrest. Otherwise, criminally liable. Arrest of Notorious criminal: must be taken by storm without regard to his right to life which he

has by such notoriety already forfeited. Calls for a redoubled official alertness and vigilance. A police officer, in the performance of his duty, must stand his ground and cannot, like a private

individual, take refuge in flight, his duty requires him to overcome his opponent.

Section 3: Duty of arresting officer

Person arrested is deemed placed under custody of law

Section 4: execution of warrant

Rule does not require the return of the warrant but only a report to the judge. A warrant of arrest does not become stale of FUNCTUS OFICIO unlike a search warrant which is

valid only for ten days. Warrant of arrest remains valid until arrest is effected of the warrant lifted.

Section 5: Arrest without warrant; when lawful

(a) in flagrante de licto

Facts constituting probable cause occur in the presence of the arresting person

(b) hot pursuit Knowledge of the facts occurred after the commission of the crime.

Personal knowledge of facts constituting probable cause in arrests without warrant must be based upon probable cause, which means an actual belief a reasonable grounds of suspicion.

Ground of suspicions are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based of actual facts

A reasonable suspicion must be founded on probable cause coupled with good faith on the part of the officers making the arrest.

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In Flagrante Arrests- (a) for crimes committed in the presence of arresting person -Probable cause in In Flagrante cases: a) person to be arrested must execute an overt act indicating that has just committed, is actually committing or is attempting to commit a crime overt act- physical activity or deed indicating the intention to commit a particular crime, more than mere planning or preparation, which is carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. b) such over act is done in the presence or within the view of the arresting officer. But not just mere presence, he must have personal knowledge of such commission. The knowledge must precede the arrest. Knowledge must be at the time, not after, arrest. At the time he was arrested, accused was not committing a crime, to rouse suspicion. Thus

warrantless arrest is not allowed. Arrest is unlawful where there was no urgency and there is opportunity to obtain warrant. But

mere time to obtain a warrant not sufficient to invalidate a warrantless arrest. To be considered likewise is won a warrant be issued under the circumstances. ( eg. when investigative report is not sufficient for the issuance of a warrant)

Mere suspicion is insufficient. It must be supported by actual facts. Reasonable ground based on tip of informer + witnessed the criminal act= valid warrantless

arrest. Continuing crime principle justifies warrantless arrest

The crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offense committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith, are all in the nature of continuing crime and are direct assault against the state. Arrest of any of accused in this crimes are thus justified.

Jurisprudence: there is probable cause in the following a) where the distinctive odor of mj emanated from the plastic bag carried by accused b) where an informer positively identified the accused who was observed to have been acting

suspiciously c) where the accused fled when accosted by policemen d) where the accused who were riding a jeepney were stopped and searched by policemen who

had earlier received confidential reports that the said accused would transporta large quantity of mj

e) where the moving vehicle was stopped and searched on the basis of intelligence and clandestine reports by a deep penetration agent or spy- one who participated in the drug smuggling activities of the syndicate to which accused belonged- the said accused where bringing prohibited drugs into the country.

Buy-bust operations considered as in flagrante de licto

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Buy-bust operation: it is a form of entrapment which has been repeatedly accepted to be valid means of arresting violators of dangerous drugs law.

A violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.

objective test: details of the purported transaction must be clearly and adequately shown- starting from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of sale. Principle of continuity in buy-bust operations: continuing buy bust opearation Not Continuing:

buy bust operation in place A, arrested in place B.

warrantless arrest not valid.

Continuing: buy bust operation in place A, continued in place B, arrest in place B.

warrantless arrest valid

Hot pursuit Arrests- (b) for crimes which has just been committed. -Elements:

a) offense have been committed b) offense has just been committed c) probable cause based on personal knowledge of facts or circumstances that person to be

arrested committed it. (identity of the person)

a) offense have been committed: indubitable existence of the crime is not necessary to justify a warrantless arrest. That fact that prosecution failed to prove the sale of mj beyond reasonable doubt DOES NOT undermine the legality of arrest. It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. The legality of the detention DOES NOT DEPEND upon the actual commission of the crime, but upon the nature of the deed when such characterization may reasonably be inferred by the officer to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen.

b) just been committed immediacy in point of times. The arrest must be made almost immediately as soon after these acts, not at anytime after the suspicion of the arresting officer begins, no matter how long ago the offense was committed. The time interval BETWEEN the actual commission of the crime and the arrival of the arresting officer must be BRIEF. Time interval; jurisprudence

a) arrest of accused 1 day after commission in inciting to sedition b) arrest made after 14 days

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c) arrest after 6 days, 3 days, 19 hours

c) personal knowledge of facts a) pk of facts based on information is allowed. b) pk of facts based on reasonable grounds of suspicion rule, now part of the rule c) pk of the 1. death of victim (crime happened) and fact indicating accused was assailant ( told by witness/ informant). Rule in Drugs Cases: Note, these crimes are customarily carried out without any external signs or indication visible to the police. This in Barros case, court has laid out kinds of causes which have been characterized as probable or reasonable cause to support a valid warrantless arrest:

1. extensive search of moving vehicles where there is a distinctive smell from mj 2. agents of narcom of the PNP had received a confidential report from informers that

sizeable mj would be transported where a police checkpoint is 3. Narcom agents were informed by an undercover agents that drugs be brought an an

airline flight on a particular date 4. Narcom agents informed of a Caucasian has drugs and they confronted him because of a

bulge in his waistline and he failed to present passport 5. Narcom agents had received confidential information that a woman having the same

physical appearance as that of the accused would be transported mj

Caution: should not undermine consti right of the accused

Rule on Escapes: escapee is in the continuous act of committing a crime- evading the service of his sentence.

Section 6: Time of making arrest

Any day and at at anytime of the day or night

Section 7: Method of arrest of officer by virtue of a warrant

Section 8: Method of arrest of officer without a warrant

Procedure, Guidelines, and Duties of arresting or investigating officer a) person must be informed in the language known to and understood by him and he must be

shown the warrant b) he must be warned that he has the right to remain silent and any statement he uses may be used c) informed that he has the right to be assisted by counsel at all times ( independent and his choice) d) if he has no lawyer, one will be provided for him ( may be appointed by court upon petition) e) no custodial investigation is no lawyer or after a valid waiver f) that he may communicated wurg his lawyer, immediate family, doctor, priest, etc OR be visited

by the, g) may waive nay of the said right provided voluntary, and ensured that he understood the same h) waiver must be done in writing, with counsel, and waiver is void EVEN IF he insists to be oral

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i) that he may indicate that he does not wish to be interrogated AT ANY STAGE with a warning that when he makes such indication, the police may not interrogate him if the same has not yet commenced or ceased that begun.

j) That his initial waiver of right to remain silent, counsel,etc DOES NOT BAR HIM FROM invoking it at any time during the process

k) Informed that any evidence obtained in violation of his right are inadmissible as evidence

Section 9: Method of arrest by a private person

Section 10: Officer may summon assistance

Section 11: Right of officer to break into building or enclosure

Section 12: Right to break out from building or enclosure

Section 13: arrest after escape or rescue

Section 14: right of attorney or relative to visit person arrested

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, without prejudice to the liability of the inviting officer for any violation of the law. RA no: 7348: fails shall be liable for penalty of imprisonment.

A letter of invitation is equivalent to arrest It is enough that there be an intent on the part of one of the parties to arrest the other and the

intent of the other to submit. In illegal arrest, there must be a motion to quash to be filed. Illegality of arrest must be raised

before arraignment. Participating in Plea and trial is equivalent to voluntary submission Unlawfulness of arrest does not affect the jurisdiction of the court. Illegal arrest is not enough to

set aside valid judgment rendered upon a sufficient complaint after trial free from error.

RULE 114: Bail

Section 1: Bail

Consti basis: Section 13, 1987. GR: all persons Exp: those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong.

Concept and Purpose: -flows from the presumption of innocence. - note, upon assumption of sureties, they become in law the jailers of their principal and must keep him under surveillance until the bond is cancelled.

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Extradition cases: base on international treaty and pancta sunt servanda, may grant bail based on clear and convincing evidence. Although it is not a criminal proceeding, it entails a deprivation of liberty and means employed to attain purpose in extradition is also the machinery of criminal law. Extraditee not entitled to notice ad hearing before warrant of arrest Cancellation of bail without prior notice and hearing is vi0lation of his due process

Deportation cases: does not allow bail because it is not a criminal proceeding. It is the immigration commissioner who has absolute discretion in determining won an alien may be realesed during deportation proceedings.

Right to bail only accrues when accused is in custody or in any way deprived of his liberty. -How custody is acquired: warrant or warrantless arrest; voluntary submission to court. -GR: The mere filing of application to bail is not sufficient to amount to voluntary submission. The same is premature. EXP: when accused is in the hospital recuperating and matter of human consideration. OR when he, through counsel, manifested voluntary submitted to court. OR house arrest OR confined in military quarters -upon voluntary appearance of the accused, the judge should require another motion for bail and set the same for hearing.

Waiver of right to bail: may be by agreement (eg. withdraw habeas corpus) Posting of bail is not a waiver of procedural defect ( in arrest or PI). Provided he raises them

before arraignment.

Method of taking bail: a) bail bond- obligation given by the accused with one or more sureties with the condition to

be void upon the performance by the accused of such acts as he may be legally be required to perform.

b) corporate surety/ property bond/ cash deposit c) recognizance- obligation of record, entered into before some court or magistrate duly

authorized to take it, with the condition to do come particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

Section 2: Conditions of Bail; requirements

Filed after arrignment. court may allow convicted to continue on bail pending appeal. Courts shall require that surety bonds are accompanied by corresponding clearances from the

Office of the Insurance Commissioner, photo of accused, clearance from SC, authority of agent, certificate of authority from Insurance Commissioner with a financial statement showing the maximum underwriting capacity of the surety company.

Court may impose other conditions. Right to restrictive travel: court may prohibit leaving the country. So that court may remain in

control of him. The court could not impose as a condition for bail the arraignment of the accused. Ratio: to release

him will delay his arraignment and thereby delay trial, by being absent. Court may not impose additional pbligations upon the bondsman than those provided for by law.

Ratio: court may impose impossible obligations that may prevent right to bail. (eg. payment of fine)

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Section 3: No release or transfer except on court order or bail

Section 4: Bail, a matter or Right

Section 5: Bail, when discretionary

Right to Bail: Matter of Right: a. before or after conviction in the MTC’s b. before conviction in the RTC of offense charged is not punishable by death, reclusion perpetua,

life imprisonment (a matter of right as long as the judgment did not yet become final) Discretion:

a. After conviction in the RTC of offense charged is not punishable by death, reclusion perpetua, life imprisonment

b. convicted of imprisonment exceeding 6 years without a-e of sec 5 rule 114. c. charged of a capital offense and evidence of guilt is NOT strong. d. Deportation proceedings ( discretion of Commissioner of Immigration and Deportation)

Denied:

a. convicted of imprisonment exceeding 6 years and not exceeding 20 years WITH a-e of sec 5 rule 114.

b. charged of a capital offense and evidence of guilt is strong. (NOT a matter of right even when the judgment did not yet become final)

c. Not available to military

Bail is a matter or right whether charged or not yet charged. Mere claim for illness or old age is not a ground for bail Effect of granting New Trial: where the accused was under bail before judgment of death sentence

was rendered against him, upon the granting of the motion for new trial, he should be accorded his original status of being out on bail. But Appellate court retains jurisdiction over the case when the ground for new trial is based on newly discovered evidence.

For purposes of recommending the amount of bail, the pvivileged MC of minority shall be considered.

Section 6: Capital Offense defined

Test to determine whether offense charged is capital or not is the penalty prescribed by law REGARDLESS of the modifying circumstance. To rule otherwise, there need be an entire trial to prove modifying circumstances.

UNLESS the special law provides otherwise. Example: under the Juvinile and Justice Act of 2006, priveledged MC of minority shall be considered.

Bail for juveniles in conflicts with the law:

-The rule that no bail for capital offense when evidence of guilt is strong does not apply to them. Ratio: entitled to consideration of priv MC of minority.

-If can not afford bail, he be committed to Family court to the care of DSWD, youth detention center, etc.

-bailable only before conviction

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Section 7: Capital Offense or an offense punishable by reclusion perpetua

or life imprisonment, not bailable.

What is determined in the hearing is the weight of the evidence. Thus, prosecution should be given the opportunity to present evidence. If deprived, there is a

denial of due process. Right to cross examined is granted. SC policies concerning the effectivity of the bail of the accused:

Charged before conviction Charged after conviction Pending appeal Penalty lower than reclusion perpetua at the time of commission and application for bail and is out on bail

Convicted of offense charged or lesser offense than that charged

He may be allowed to remain free on his original bail pending the resolution of his appeal unless court directs otherwise

Capital offense at the time of commission, reclusion perpetua at the time of the application for bail and is out on bail.

Convicted of a lesser offense than that charged

He may be allowed to remain free on his original bail pending the resolution of his appeal unless court directs otherwise

Capital offense OR reclusion perpetua at the time of the application for bail and is out on bail.

Convicted of the offense charged.

Bond shall be cancelled and the accused shall be placed in confinement pending resolution of appeal.

Note, when the decision of the TC convicting the accused changed the nature of the offense from bailable to non-bailable, the application for bail can only be filed with and resolved by the appellate court.

Section 8: Burden of Proof in Bail Application

Hearing may be summary or otherwise in the discretion of the court, it is MANDATORY Summary hearing: brief and speedy method of receiving and considering the evidence of guilt

as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail.

Hearing must be conducted even in the absence of evidence by the prosecution. And court must conduct a hearing or ask searching and clarificatory questions.

Cancellation of bail: same procedure as that hearings on application of granting bail. WON evidence of guilt is strong to cancel bail.

There must be an application for bail, court can not motu proprio grant bail.

The fact that the judge of the MTC granted bail to the accused during the PI cannot be the basis for the grant of bail by the RTC after an information was already filed and where the investigating public prosecutor recommends no bail for the indictee. The bail that was granted on the bases of the evidence than at hand at that stage.

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Court may not grant bail simply for non-appearance of prosecution BUT should ask the prosecution such questions as would ascertain the strength of the state evidence and judge the adequacy of the bail.

Order granting bail or denying bail must contain a summary of the evidence of the prosecution

followed by a conclusion of won the evidence of the guilt is strong, which may only be determined after the hearing. An incomplete enumeration or selective inclusion of pieces of evidence for the prosecution in

the summary of evidence cannot be considered a summary. Order containing it is defecfive and voidable.

When prosecutor refuses to adduce evidence to prove that evidence of guilt is strong, the court

may ask the prosecution such questions as would ascertain the strength of the state’s evidence or judge the adequacy of the amount of bail.

Valid waiver by prosecution to present evidence: “ statement of the prosecution that they were “

neither supporting or opposing the application for bail”. That they were submitting to the sound discretion of the court.

Duties of judge IF bail application filed:

a) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation

b) Conduct a hearing of the application for bail regardless of won the prosecution refuses to present evidence to show that the guilt of accused is strong for the purpose of enabling the court to exercise its sound discretion.

c) Decide won the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution.

d) If the guilt of accused is not strong, discharge the accused upon approval of the bail bond. Otherwise, petition denied.

e) Court may limit number of witnesses but must afford prosecution opportunity to present evidence within a reasonable time.

The test is not whether the evidence establishes guilt beyond reasonable doubt but rather won it show evident guilt or a great presumption of guilt.

Remedy when bail is denied: Petition for habeas corpus is not the proper remedy BUT to file a petition for certiorari if the trial court committed grave abuse in discretion. Hierarchy of courts need be observed. However, the petitioner would still not be entitled to be released from detention in the meantime.

Section 9: Amount of Bail

Guidelines for fixing bail: a) Financial ability of the accused b) Nature and circumstances of the crime c) Penalty for offense charged d) Character and reputation of accused e) Age and health of the accused

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f) Weight of evidence against him g) Probability of the accused appearing at the trial h) Forfeiture of other bail i) Won accused is a fugitive from justice j) Won accused is under bond in other cases

Courts are enjoined to consider DOJ circulars.

Section 10: Corporate Surety

Amount of bail, while must be reasonable is considered in terms of surety or property bonds, may be excessive if demanded in the form of cash.

Option as to which bond be submitted is with the accused. Court can not impose.

Section 11: Property Bond

Section 12: Qualification of sureties in Property Bond

A resident household or freeholder within the Philippines is but a minimum requirement. BUT the

court may require that he be a resident of the province. Family home is exempt from execution. Note exceptions under the family code.

Section 13: justification of sureties

Section 14: Deposit of cash as bail

Release accused upon deposit. This is intended to facilitate the discharge of accused esp on

Saturdays, Sundays, and legal holidays when there are hardly no available judge to approce the bail bon.

Section 15: Recognizance

Section 16: Bail when not required, reduced bail or recognizance.

Section 17: Bail, where filed

Where bail is a matter of judge’s discretion, it must be filed only where case is pending only. Remedy when bail denied: special civil action in the CA ( 6 months from the denial).

Section 18: Notice of application to prosecutor

Applies to bail as a matter or right AND discretion.

Section 19: Release on Bail

Section 20: Increase or reduction of bail

Section 21: forfeiture of bail

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Duty of bondsman when accused is required to appear is not merely to notify accused but must

take every effort to see that he actually produces the accused before court. When the obligation of bail is assumed, the sureties become in law the jailers of their principal

BUT they can not actually confine him. Clearance issued by the govt for accused to travel is not an excuse, esp if done surreptitiously.

Satisfactory explanation of non-performance of bond: performance becomes impossible by

a) Act of God b) Act of oblige c) Act of the law

The responsibility assumed by the bondsman, being purely gratuitous, may be terminated by them any time by arresting the principal and surrendering him into the hands of law OR defendant may also surrender himself.

Petition for the exoneration of bail Bondsman may be relieved from a part of the liability according to the merits of a particular case.

The bondsman was declared forfeited in only ½ of its amount. Arrest of the principal after 2 days subsequent to the sale of the property of the sureties following

forfeiture of bail is no reason for setting the sale aside. Surety not relieved even if ready to surrender accused IF court does not yet accept surrender. The fact that a criminal prosecution is finally dismissed on the motion of the fiscal DOES NOT

relieve the bondsman from the effect of a previous forfeiture of bond upon non-appearance of the accused at the time originally set for hearing.

Subsequent arrest of an accused in another charge does not operate ipso factor as discharge of his bail. Surety must inform court of subsequent arrest. Thus, impliedly asking that they’d be discharged.

Death of the accused on bail bond does not necessarily release the sureties from their obligation, under the form of the statute in this jurisdiction.

Death must be before breach and fact of death must be established by competent evidence. It is the duty of the surety to inform the court that performance is an act of God and when proved

acts to discharge the sureties on the bail bond.

Judgment of confiscation and forfeiture:

Order of forfeiture Conditional and interlocutory (not appealable) , there is something more to be done(eg. production of the accused within 30 days)

Order of confiscation Independent of OOF. It is a judgment ultimately determining the liability of the surety thereunder, and, therefore, final and execution may issue at once.

Section 22: cancellation of bail

Liability of sureties is limited to the precise terms of the contract Sureties do not guarantee that the accused will not commit crime while on liberty. It is not absolutely necessary to institute a separate and independent action for the execution of

the order of forfeiture of bail bond which had previously entered, and a simple motion to that effect presented by the prosecuting atty in the same criminal case is sufficient.

An order of execution is not appealable. Available remedy is certiorari.

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Section 23: arrest of accused out on bail

This section states the right of sureties or court to re-arrest principal.

Section 24: No bail after final judgment

Section 25: court supervision detainees.

Principle of separation: separation of child from adults.

Section 26: Bail not bar to objections on illegal arrest, lack of or irregular PI

RULE 115: Rights of Accused

Section 1: Rights of the accused at the trial

Due process: hearing before conviction. Rights:

1. Presumption of innocence -requires that every circumstance favoring innocence be duly taken into account. - reasonable doubt: it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. - absolute certainty is not required, only moral certainty.

2. Be informed: nature and cause of accusation -Information must state the designation of offense, acts or omissions complained of. - reasonable certainty in the statement of the crime suffices - accused must be arraigned

3. To have counsel- exp upon accused’s motion, when the court is satisfied that accused can defend himself. -a reasonable effective assistance. Reasonable under prevailing professional norms. - right to counsel may be invoked on appeal. - Duty to appoint counsel de officio is mandatory -violation of right to counsel is a ground for new trial. - deprivation of counsel- violation of due process. - may be waived voluntarily or not. -during custodial investigation: starts when accused is taken to custody. Does not terminate with the filing of information, it should be at all times. - right to counsel applies in certain pretrial proceedings that can be considered “ critical stages” in the criminal process. Custodial interrogation before and after charges have been files and non-custodial interrogation after the accused has been formally charged are considered to be critical pre-trial stages. - accused own choice: if it was imposed on him, right is violated. - a fiscal can not represent accused during custodial investigation. - right to counsel de parte during arraignment and trial is not absolute. Court may appoint one for him in the interest of justice.

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4. Right to be present- arraignment to promulgation: - valid trial in absentia: a) accused has already been arraigned; b) duly notified of the trial; c) failure to appear is unjustifiable. failure to grant: violation of due process Proper notice: absent- denial of due process When presence requires:

a) Arraignment b) Promulgation of judgment, exp conviction for light offence OR promulgation in

absentia is allowed. c) When prosecution intends to present witness who will identify the accused.

If absent: waiver of right to be present. BUT may still be compelled to be present. An escapee: Waives his right to cross-examine and present evidence. UNLESS he

surrenders.

5. Testify in his own behalf, be cross examined, against self- incrimination. Accused vs witness: Accused Witness He may altogether refuse to take the witness stand and refuse to answer any and all questions.

May be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him

During Preliminary investigation During Custodial investigation Possesses right against self incrimination

He may not on cross-examination refuse to answer on the ground of self-incrimination. But he may decline to answer a question that will implicate him a different crime.

Person suspected of having committed a crime, subsequently charges, has the ff rights: a) Before case is filed in court OR with public prosecutor for PI BUT already taken into

custody or deprived of his liberty: - right to remain silent and to counsel - informed -not to be subjected to force, violence, threat, intimidation, vitiate freewill. - fruit of the poisonous tree

b) After case is filed in court: -refuse to be a witness -not to be prejudiced for such refusal -testify in his own behalf, subj to cross -against self incrimination

Scope of privilege: -testimonial compulsion only and the production by the accused of incriminating documents, and articles demanded from him. DOES NOT INCLUDE the examination of his body as evidence when it may be material.

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- covers communications whatever medium. “communicative in nature”. -DOES NOT COVER: fingerprinting, photographing, write or speak for identification, to appear in court, to stand, to assume a stance, to walk or make a particular gesture, blood testing - COVERS: specimen of hand writing during PI is equivalent to a positive testimonial act, forced re-enactment like uncounselled and coerced confession

Immunity Statutes:

Use immunity Prohibits the use of witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness

Transactional immunity Grants immunity to the witness from prosecution for an offense to which his compelled testimony relates.

When unfavorable inference drawn from failure of accused to testify CAN NOT establish alibi. 6. to confront and cross-examine witnesses against him: -statement of a witness who died before cross examination is inadmissible because was not cross examined. Statement of witness is considered incomplete. UNLESS was given the opportunity but failed to do so. - right may be waived. Express or implied. 7. compulsory process -when judge shall be satisfied, by proof or oath, that there is reason to believe that a material witness for the prosecution will not appear and testify when required, he may order the witness to post bail. Upon refusal to give bail, the court must commit him to prision until he complies or is legally discharged. - TC should not delegate to the accused the responsibility of getting his witness. If a subpoena is issued and the witness fails to appear, the court should order the arrest of the witness if necessary. - Viatory rights are available only to civil cases and not to criminal cases. 8. Speedy Trial - trial free from vexatious, capricious, and oppressive delays. - arraignment and pre-trial shall be held within 30 days from the date court acquires jurisdiction over defendant. If not made: dismissal of the accused on the ground of denial of this right. Dismissal shall be subject to the rules on double jeopardy. - speedy trial is relative - may be waived. Express or implied. Eg. inaction of accused. - Mandamus may be had is prosecuting officers causes unreasonable delay and Habeas corpus if accused already detained. -defendant should ask for speedy trial and not for dismissal of the case. If dismissed it will be an acquittal because of failure of prosecution to prove guilt of defendant and it will be a bar to another prosecution for the same offense even though it was ordered by the court upon motion or with express consent of the defendant, in exactly the same way as judgment of acquittal obtained upon the defendant’s motion. 9. Public Trial

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- open to the public. When anyone interested in observing the manner a judge conducts the proceedings in his court room may do so. There is no such ban of attendance. Being a stranger is of no moment. NO relationship to the parties need be shown. - trial is in the chambers of the judge is not a violation. As long as no showing the public was excluded. - trial by publicity: not be allowed if there is a showing that the judges have been unduly influenced. 10. Right to appeal - a mere statutory right. May be waived. - accused may not be allowed to appeal until he submits to the jurisdiction of the court or otherwise arrested within 15 days from the notice of judgment to him.

RULE 116: Arraignment and Plea

Section 1: how made

Steps BEFORE arraignment: AM no. 03-1-09-SC ( August 16, 2004) 1. court shall issue an order directing the public prosecutor to submita record of PI to the branch

coc 2. coc shall attach the same to the record of criminal case 3. if under preventive suspension, case shall be raffled and records transmitted to the judge to

whom the case was raffled with in 3 dats from the filing of complaint or information. 3.a. accused shall be arraigned within 10 days from the date of raffle 3.b. pre-trial shall be held within 10 days after arraignment unless a shorter period is provided for by law.

4. After arraignment, the court shall forthwith set the pre-trial conference within 30 days from the date of arraignment.

5. Court will then issue an order: a. offended party to appear for plea bargaining b. if warranted, to issue an order of preliminary conference 3 days before pre-trial. To mark documents or exhibits c. informing them that no evidence to be presented during trial unless marked and identified during pre-trial.

Amended information: arraignment mandatory. There is no obligation is impliedly or expressly imposed upon judge to point out the

duplicitousness (or other defect) of an indictment on which an accused is being arraigned. It is the accused who should file a motion to quash information.

Arraignment after prosecution rests is an error or irregularity that has not prejudiced the rights or interests of the appellant and considering that appeallan’t counsel had full opportunity of cross-examining all the witnesses who took the witness stand for the govt and that furthermore he agreed to reproduction of the evidence for the prosecution, the error or defect has been substantially cured.

GR: Presumption that accused was arraigned: in view of the presumption of regularity in the performance of official duties.

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Exp: cases where crime imposed is death penalty.

Accused is no entitled to know in advance the names of all prosecution witness. Success of

prosecution might be endangered. The time for prosecution to know them is when they take the witness stand.

Prosecution may call the witnesses other than those in the information. Presentation or non-presentation of prosecution witness depends on fiscal’s discretion.

There can be no DJ where the accused has not yet pleaded to the offense.

Acquittal despite plea of guilty. Conviction is not automatic.

Section 2: Plea of guilty to a lesser offense

A plea of not guilty lesser offense AFTER prosecution rests is allowed only when the prosecution does not have sufficient evidence to establish guilt for the crime charged.

Section 3: Plea of guilty to a capital offense

Mandatory 3 things enjoined of the TC:

a) searching inquiry into the voluntariness and full comprehension of the consequences of his plea

- Searching inquiry: means more than information cursorily the accused that he faces a jail term but also, the exact length of imprisonment under the law and the certainty that he will serve at the a penal institution. No hard and fast rule on how it is to be conducted. - mere warning that the accused faces death is insufficient. - judge must ask: 1. the manner the accused was arrested or detained. 2. won he was assisted by counsel during the custodial investigation and PI 3. defense counsel whould be asked won he conferred with accused and completely explained the consequences of accused’s admission 4. age, educ attainment, socio-economic status, etc.

b) court to require prosecution to present evidence to prove guilt of the accused and the precise degree of his culpability

- mandatory. There must be a proof regarding AC c) court must ask the accused if he desires to present evidence in his behalf and allow him to

do so if he desires. Regarded as an MC Note that conviction is predicated not on plea but on the evidence proving the commission by the

accused of the offense charged.

Section 4: Plea of guilty to a non capital offense

Section 5: withdrawal of improvident plea of guilty

Plea of not guilty can not be collaterally attacked.

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Plea agreement is allowed. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.

The court may AT ANY TIME permit the defendant to withdraw plea of guilty. It is subject to the sound discretion of the court.

Where the defendant has been committed to prison after a plea of guilty and has commenced to serve his sentence, the court can no longer alter its decision, the same having thereby become final.

Plea of guilty must be unconditional. Eg pinatay ko siya pero hindi ko sinasadya OR ako pumatay sa kanya, ikulong niyo na ako pero ito ang dapat na parusa ko ( convicted to homicide instead of murder). Admission must be of such nature as to foreclose the defendant’s right to defend himself, thus leaving the court no choice but to impose the penalty fixed by law.

Note: qualified plea is allowed PROVIDED that information should be amended with the consent of the fiscal if the facts so warrant.

Section 6: duty of court to inform accused of his right to counsel

Four fold duty of court: a) must inform the defendant that it is his right to have an attorney before being arraigned b) after giving him such information that court must ask him if he desires the aid of an

attorney c) I he desires and is unable to employ an attorney, the court must assign an attorney de

officio to defend him d) If the accused desired to procure an atty of his own, the court must grant him a reasonable

time therefore. Failure to comply: denial of due process Violation: “ do you have an atty or do you want to plead guilty?” Presumption of regularity: the claim that the accused failed to appeal from the judgment of

conviction because he did not have the assistance of counsel even though he was offered one CANNOT PREVAIL over the presumption that the proceedings has been regular and in accordance with the RoC.

Section 7: appointment of counsel de oficio

Private prosecutor who served against one defendant is disqualified as counsel de oficio for other defendants. HOWEVER, when accused shown to have been properly defended, such is not a reversible error.

Counsel de oficio need not be the choice of the accused. Duties of court during: arraignment vs trial

Arraignment Trial There is a duty of the court to inform him of his rights

No duty. It must be the court who asserts it.

Silence of court is an error Not an error

Duty of counsel de oficio: get the accused what he fully deserves. Public Atty duty were accused is imprisoned:

a. Pa shall prompty undertake to obtain the presence of the prisoner for trial, or cause notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial

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b. If demands trial, custodian shall inform pa. c. Upon being informed, Pa shall obtain presence of accused for trial d. Upon a properly supported request, prisoner shall be made available accordingly.

Reluctance of counsel de oficio does not amount to denial of right to counsel: where the counsel undertook and proceeded with the defense and duly performed his duties.

Right to counsel is SUBSTANTIALLY satisfied even where the counsel de oficio appeared after the trial has commenced. Eg. cdo came in only when direct examination of second witness ended. There being an opportunity for the cdo to cross-examine. IF DID NOT APPEAR AT ALL, case must be remanded to TC.

No prejudicial error where accused was represented by a non-lawyer PROVIDED permitted by court and without objection from any parties.

There is a PRESUMPTION that section 7 has been complied with. Duty of the TC does not end with appointing cdo, cdo must be required to act. The right to counsel may be waived. The denial of right to counsel must be raised in the trial court. Duty of the court during arraignment does not include information as to penalty. This may no

longer be true since Rule 118 encourages plea bargaining.

Section 8: time for counsel de oficio to prepare for arraignment

Section 9: bill of particulars

Failure to ask BoP amounts to waiver of rights. Absence of detailed personal property found in the house on occasion of robbery, value stated in

the information, does not vitiate the proceeding, not being jurisdictional in nature. Whatever vagueness there may be in the allegations may be cured by evidence.

Section 10: production or inspection of material evidence is possession of prosecution

MODES OF DISOVERY IN CRIMINAL CASES Requisite: showing of good reasons with notice to parties. One may ask for production of records of PI. Accused is entitled to discovery procedure even during the PI. Suppression of those requested is a violation of due process, regardless is if it is GF or BF. But such

request suppressed must be MATERIAL to either guilt or punishment of the accused. “Brady rule”: evidence favorable to the accused.

Section 11: suspension of arraignment

Note Rule 12 of RPC, rule on insanity. Exempt from criminal liability except if he acted during a lucid interval.

RULE 117: Motion to Quash

Section 1:Time to move to quash

Section 2: form and contents

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The test on the viability of motion to quash on the ground that the facts averred in the information do not amount to an offense is won the facts asserted would establish the essential elements of the crime defined in the law.

Examination matters aliunde are not considered. BUT additional facts not alleged in the information but admitted or not denied by the prosecution

may be invoked in support of the motion to quash. Motion to suspend the issuance of warrant of arrest considered motion to quash because it is not

the caption of the pleading but the allegations therein contained that prevails. Quash vs dismissal

Section 3: grounds

Matters of defense not a ground for motion to quash.

a. facts charged to not constitute an offense:

- a motion to quash hypothetically admits allegations of fact in the information

GE: only facts alleged in the information in the information and those admitted by the fiscal should be taken into account in the hearing on MoQ

Exp: where RoC expressly permit the investigation of facts alleged in a MoQ (eg. extinction of criminal liability, prescription, jeopardy)

- matters of defense cannot be proved during the hearing of such motion.

- when additional facts allowed: admission by the counsels/ fiscals

-ocular inspection upon judge’s discretion is allowed.

- conviction or acquittal under a fatally defective information is not necessarily void when no objection appears to have been raised at the trial and the fatal defect could have been supplied by the competent proof. EXP: when the information does not charge a crime.

b. lack of jurisdiction of the offense charged

c. lack of jurisdiction of the person

-moq must only be on this ground.

- if other grounds are included, there is a waiver and accused is deemed to have submitted to the jurisdiction of the court.

d. want of authority of officer filing information

- it is an invalid information.

-authority of special prosecutor appointed by DOJ sec to sign and file information is recognized.

- person disqualified to sign invalidates information.

- lack of PI is not a ground. It merely affects the regularity of the proceedings.

- if accused gives plea for moq, it is a waiver of all formal objections to it in so far as formal objections to the pleadings are concerned. EXP. Lack of jurisdiction

e. complaint or information does not conform to the prescribed form.

-non prejudicial formal defect will not be sustained as ground. If such formal defects are properly and opportunely raised, an amendment may be ordered.

f. duplicity of offenses charged

- failure to raise this, accused may be convicted for it is deemed waived by him.

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- reason for rule: right of accused to information.

g. extinction of criminal liability

- note Art 89 of RPC for total extinguishment.

- amnesty extinguishes criminal liability.

-amnesty is not one of the defenses that need be expressly pleaded. Defendant need only submit evidence that he was granted such.

- pardon vs amnesty

Pardon Amnesty Granted by president It is a private act which must be pleaded and proved bec courts takes no notice thereof. Granted to ONE after conviction by final judgment ( “after” only). Can not be given during appeal. Appeal must withdrawn before given. ( acceptance of pardon shall not mean a waiver of appeal). Person released before withdrawal of pardon will make persons who released him liable. Looks forward and relieves offender of consequences of conviction. Effect: does not restore right to hold public office, suffrage, unless expressly restored. Person granted with this must comply strictly with the conditions imposed by law.

Proclamation by the president with the concurrence of congress It is a public act which the courts takes judicial notice Granted to classes of persons who may be guilty of political offense after the institution of criminal prosecution or after conviction. Looks backward and abolishes the offense itself. Effect: as is no offense at all.

-Commutation of sentence: substituting the original sentence with a different one.

- pardon by offended party in private crimes must be made before the institution of criminal proceedings. marriage extinguishes “criminal action”.

- prescription is a ground for moq. Waiver of prescription is not applicable in criminal cases.

- In prescription, state or people lose their right to prosecute BUT the court DOES NOT lose its jurisdiction.

Under Computation RPC Article 91, RPC, if continuing crime count from the latest act. Special Law Act No. 3326, unless the special law provides otherwise. -Filing of complaint before the punong brgy interrupts the prescriptive period for 60 days from filing.

-constructive notice in civil cases applies to criminal cases. Knowledge of the crime is notice. (eg. registration of deed in the crime of forgery)

- note that the interpretation of prescriptive periods must be that favorable to the accused. -extinction of crime by prescription does not extinguish civil action

- NOTE: When the last day to file an information falls on a Sunday or legal holiday, it can not be extended up to the next working day. prescription automatically sets in. REMEDY is for fiscal to file before the last day.

- Law on prescription does not apply in the right of the govt to recover unlawfully acquired public property.

h. complaint or information contains averments which constitute a legal excuse or justification

- Art 11 RPC ( justifying circumstances) ; Art 12 ( exempting circumstances)

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i. double jeopardy

Section 4: Amendment or complaint or information

It is the duty of the court when objections are made to a complaint, to cause it to be corrected or to direct a new complaint to be files and trial recommenced, but in no event shall the accused be entitled to discharge.

Should not dismiss or grant motion when it can be still cured by amendment. In case of doubt, amendment should be ordered.

Section 5: Effect of sustaining the motion to quash

If Moq is Overruled (denied)

Does not dispose of the case upon its merits It is merely an interlocutory order (unappealable) Remedy: not appeal, certiorari or prohibition. Accused should plead and proceed with the trial. Then may appeal from the adverse decision therefrom.

Sustained (granted)

Follow section 6.

Section 6: Order sustaining the motion to quash not a bar to another prosecution, exception

Exceptions: prescription and double jeopardy.

Section 7: Former conviction or acquittal; double jeopardy

Basis: Bill of Rights Extent: can be invokes if

a) accused is charged with the same two separate pending cases b) accused is prosecuted anew for the same offense after he has been convicted or

acquitted of such offense c) the prosecution appeals from the judgment in the same case

For DJ to apply: there must be acquittal;, conviction or termination without the express consent of the accused in order that there may be dj. The first jeopardy must have been validly terminated.

As a ground for motion to quash. No waiver in failing a moq.

In a pleading a former jeopardy, it is not sufficient that the defendant simply allege that he has been once in jeopardy, he must both allege and prove specifically that the offense, of which he was formerly convicted or acquitted, is the same offense for which it is proposed to try him again. Mere mention of criminal case numbers and alleged portions of both information is not enough.

Note: courts are not authorized to take judicial notice of former conviction/ acquittal. BUT in the absence of objection and it is read before court OR withdrawn from the archives under court’s direction with the knowledge of opposing parties, the same may be allowed to prove previous conviction.

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Evidence of previous jeopardy:

Best evidence: record of the former case shoring the judgment of conviction entered therein and the nature of the offense of which the accused was convicted or acquitted.

Interpretation of DJ: Interpretation of DJ must be in harmony with constitutional objective. DJ provision must be construed in light of existing law at the time of adaptation.

In the event of denial of motion to quash based on DJ, REMEDY of accused, upon arraignment, to plead not guilty and reiterate his defense of former jeopardy, and in case of conviction to appeal therefrom, upon the ground that he had been twice put in jeopardy of punishment.

DJ is not reviewable by writ of habeas corpus.

Requisites: a) 1st jeopardy must have attached prior to the second b) The first jeopardy must have been validly terminated c) Second jeopardy must be for the same offense or the second offense includes or is necessarily

included in the offense charged in the first information, or is an attempt to commit the same or frustrate thereof.

FIRST: 1st jeopardy must have attached prior to the second, requisites: a) court of competent jurisdiction: - Includes territorial jurisdiction. - Judge issuing order must still be in office. - violation of basic constitutional right ousts court of jurisdiction. Situations: DJ or NOT RATIO There is no dj if judge faces same case before the sandiganbayan and another one before the SC for administrative cases.

NOT Different purposes

A court which renders an acquittal after pre-trial without trial, the court is not a court of competent jurisdiction. The decision is void for lack of jurisdiction. Case will be remanded without committing dj.

NOT Trial should proceed

Accused is military person. If involves a martial court and a civil court, will constitute dj.

DJ Both has juris

But if the accused is a civilian and there are civil courts operating, it will not be dj since the court martial who tries the civilian has no jurisdiction.

NOT 1st court has no juris

b) valid complaint or information - the test of J is the crime charged not the crime proved. (eg. although the evidence presented at the trial of an accused on a charge of theft would have been sufficient to convict him of estafa, his acquittal of theft was not bar to a subsequent prosecution for estafa) jeopardy does not attach where a defendant pleads guilty to a defective indictment that is voluntarily dismissed by the prosecution.

NOT Invalid info

Conviction under information which charges no offense is void NOT Void info Fatal defect in the complaint may be supplied by competent proof in the absence of any objection during the trial. The information is cured. If convicted, first jeopardy attaches.

DJ Cured

Crime charged: theft NOT

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Crime proved: estafa Acquitted for theft c) arraignment - valid plea - mere written manifestation is not a valid plea No arraignment and it was upon his express motion that the information was quashed and the case dismissed.

NOT No valid plea

d) defendant was acquitted or convicted or the case dismissed or otherwise terminated without the express consent of the accused. Judgment: the adjudication by the court that the accused is guilty or is not guilty of the offense charged. Conviction: judgment declaring the accused guilty or the offense charged and imposing upon him the penalty provided for by law. Acquittal: a judgment declaring the accused not guilty of the crime charged and ordering his release.

SECOND: 1st jeopardy must have been validly terminated: -validly terminated when: a) conviction b) acquittal c) dismissal of case or otherwise terminated without the express consent of defendant. - express consent: an express assent where the accused waives his right to the protection against DJ. For the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. -silence does not mean consent. (eg. accused did not move for dismissal but case was dismissed)

- notation of “no objection” means express consent.

-When Dismissal is an Acquittal: dismissal of the case base on demurrer to evidence filed by accused OR violation of the right to speedy trial WILL NOT result to acquittal. WHEN the accused had been denied his right to speedy trial or some other basic right had been impaired, the doctrine of waiver of the right to invoke DJ would not apply even if the accused had expressly moved for termination of the proceedings. - When dismissal is not an acquittal: Where no finding was made as to the guilt or innocence of the accused, it is not an acquittal. -when the dismissal is equivalent to an acquittal, there is jeopardy even if the court says “provisional”, “conditional, “without prejudice”. - condition sine qua non when dismissal or termination, will NOT constitute DJ: a) the dismissal must be sought by the defendant personally or thru his counsel; and b) such dismissal must not be on the merits and must not necessarily amount to acquittal. - GR: dismissal with consent does not result to DJ. Exp: insufficiency of evidence AND denial of the right to speedy trial. (results to DJ) -once that accused is discharged as state witness it is not affected by any future development

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showing that any or all of conditions for the discharge have not actually been fulfilled may not affect the legal consequences of the discharge. Protection of DJ. AND discharge continues even if the information is amended because it is a mere continuation of the original information.

Situations: DJ or NOT RATIO Proceeding pending PI before the fiscal’s office NOT Not termi Mere filing of two complaints or information NOT No termi

yet Dismissal contains a reservation of the right to file another action, the case cannot be said to have terminated and jeopardy does not attach.

NOT No termi yet

Dismissal at the instance of the accused before termination of trial. NOT Consent Dismissal without prejudice NOT Provisional dismissal NOT A purely capricious dismissal of an information deprives the state of a fair opportunity to prosecute and convict.

NOT Not valid termi

Dismissal issued in grave abuse of discretion amounting to an excess of jurisdiction, is null and void.

NOT Not valid termi

A moro-moro (sham trial) trial is failure of trial tantamount to no trial at all

NOT Not valid termi

Judge merely committed a grave abuse of discretion in rendering an amended decision acquitting the accused. If after a judgment of conviction, the TC erroneously granted a motion for new trial based on NDE, the court rendered an amended decision acquitting the accused, review if the judgment is barred by DJ.

DJ Valid termi

Errors or irregularities, which do not render the proceedings a nullity, will not defeat a plea of antrefois acquit (previous acquittal).

DJ 1st case attached

Demurrer to the evidence without notice is not a sufficient ground to reopen the case.

DJ 1st case attached

Valid judgment in writing or oral judgment reduced in writing DJ 1st case attached

Promulgation of the decision must be made in its entirety. If not made the promulgation is void. Because the case is not considered terminated.

NOT Not validly termi

Termination of the case for WHATEVER REASON ( eg. lack of jurisdiction, etc) WITHOUT the consent of the accused, of a case tried before a court by virtue of a valid complaint or information or any other charge sufficient to sustain a conviction, after the accused has pleaded guilty and before judgment, constitutes DJ.

DJ 1st case attached

CFI has jurisdiction but mistakenly dismisses the complaint or information on the ground of lack of it, and the dismissal was NOT at the request of the accused, judgment appealed.

DJ 1st case attached

Acquittal on the merits DJ 1st case attached

Where the accused signified their express conformity with the provisional dismissal of the case, there was neither acquittal nor dismissal that would put them in DJ.

NOT Consent

Principle of Nolle Prosequi Dismissal before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal and does not bar a

NOT 1st case not attached

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subsequent prosecution for the same offense. It is not a final disposition of the case. Dismissal of the case by the accused himself or through his counsel and it is granted

NOT consent

Motion for reinvestigation is not express consent. DJ No consent

Where the accused asked for and consented to a provisional dismissal same operates as a waiver of their defense of dj.

DJ Consent

Dismissal by accused on the ground of insufficiency of evidence OR denial of the right to speedy trial

DJ Exception

Motion to quash information on the ground that the allegation in the information did not constitute an offense

NOT Consent

Discharge of accused as state witness operates as acquittal DJ THIRD: Second jeopardy must be for the same offense or the second offense

includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or frustrate thereof.

- same offense: The offense charge, or an attempt to commit it or a frustration thereof, or any “offense which is necessarily included in the offense charged in the former complaint or information” -the same act may violate tro or more provisions of the criminal law. When they do, a prosecution under one will not bar a prosecution under another. - TEST TO IDENTITY OF OFFENSES: by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offense involved. DJ applies when the offenses in the two information are the same in law and in fact. - jurisdiction of 1st court over the 2nd charge is not necessary as long as facts of the particular case satisfy the requirements of this test. - When offense charged includes that which is proved: An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former as this is alleged in the complaint or information, constitute that latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. -If two crimes are almost identical, check the elements. If one of the crimes requires proof of an additional fact or element which the other does not, no DJ. - note:there should only ONE criminal prosecution for one criminal intent. Intent can’t be divided. Situation DJ or NOT RATIO Estafa and violation of BP 22 NOT Diff elem Falsification of a public document (A171, RPC) and violation of anti-graft law

NOT Diff Elements

Common crimes and rebellion NOT Absorbed Selling mortgaged property without mortgagor’s consent( Act 1508) and estafa (RPC)

NOT Diff Elements

Brigandage and Illegal possession NOT Not necessarily includes

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each other Illegal possession and theft There can be no illegal possession if there is no intent to use

and there can be illegal possession without theft.

NOT Not necessarily includes each other

Illegal possession and murder or homicide Killing of a person with unlicensed firearm may give rise to

separate prosecutions. 1) violation of PD1866 and 2) ART 248, RPC, and may be separately prosecuted from both crime without violating the rule on DJ.

NOTE: under RA 8294, no longer separate crimes. Illegal possession is now an AC of ART 248.

NOT Diff elements

Illegal fishing and illegal possession of explosives NOT Diff elems Alarm and scandal and alleged discharged of firearms NOT Diff elems Illegal possession and carrying firearm outside residence without permit.

NOT Diff elems

Estafa by fraudulent withdrawal or different checks ( one check does not bar prosecution for another check)

NOT Diff elems

Violation of Censor’s Law (RA 3060) and indecent exhibition under A 201 (3), RPC

NOT Diff elems and nature

Consented abduction and qualified seduction Not identical offenses

NOT Diff

Qualified seduction and rape NOT Diff Possession of shotgun and revolver at the same time at same place DJ 1 intent Smoking opium and possession of illegal pipe DJ 1 intent Possession of a firearm in 2 separate and distinct places and jurisdiction and the two information state different dates of commission

NOT Diff crimes

Theft of 13 cows at the same time and in the same place, consequently he committed one criminal act even if different owners. Conviction for 8 of the cows owned by owner 1, he cannot then

be convicted for the rest owned by owner 2.

DJ 1 intent

Prohibition from lowest to highest offense: -The effect of prosecuting first the lesser offense where a larger offense has been committed and could be prosecuted, would be to split the larger offense into lesser parts. The state in electing to prosecute the first one waives all others. - example: conviction for less serious physical injuries barred prosecution for assault upon a person of authority.

DJ

Homicide to murder A person acquitted for homicide cannot be subsequently tried

for the crime of murder. Because the acquittal of the defendant charged with killing

pronounces him GUILTLESS OF THE FACTS necessary to constitute murder and admits the pleas of dj.

DJ

Lesiones Menos Graves to Lesiones Graves Because that not only was the first case an ingredient of the

second case, but the allegations in the second information

DJ

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would also, if proven, have been sufficient to support the former information.

One who has convicted of a crime lesser in degree than the offense for which he is indicted, is by implication as a bar to subsequent indictment.

Rule on identity of offenses does not apply when the second offense was not in existence at the times the first prosecution.

NOT Inexistent

Act punished by law and ordinance, conviction or acquittal under either shall constitute a bar to another prosecution.

DJ

Complex crime of physical injuries and damage to property DJ 1 single act Violation of motor vehicle law and RPC damage to property Because the basic element of reckless driving is an ingredient

in both cases. Rule: once convicted or acquitted of a specific act of reckless

imprudence, the accused may not be prosecuted again for that same act.

DJ Can not be split into different crimes

If one offense is light there is no complex crime. They are separate offenses subject to distinct penalties.

NOT Different

EXCEPTIONS: same offense or the second offense includes or is necessarily included in the offense charged in the first information-> There is no DJ a) graver offense developed due to supervening facts arising from the same act or omission constituting the former charge b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information c) plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party except as provided in

section 1 of Rule 116.

NOT

Supervening event: if after the first prosecution a new fact supervenes on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, the accused can not be said to be in second jeopardy if indicted for new offense. MUST HAVE DEVELOPED Accused was charged with physical injuries and after

conviction the injured does, he then was charged with homicide.

Deformity found out later. WHEN DJ: If in the examination during the first proceeding

the injury was already present but was not presented and thereafter the accused was convicted, the accused can not then be convicted for an offense when that injury was thereafter found out. IT WAS ALREADY EXISTING.

NOT

Discovered after plea. DJ Exp: when the facts constituting the graver charge was already existing during the plea.

NOT

Plea of guilty to lesser offense without the consent of the accused: Note: IF in any of these 3 cases, the accused is convicted of the graver offense, the penalty for the latter offense shall absorb the penalty for

NOT

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the lesser offense. GR: We accused has already been charged, tried upon sufficient information, pleaded “not guilty”, and case was dismissed ( thus, without his consent and not upon his motion), erroneous dismissal of the offense charged can no longer be disturbed by certiorari or mandamus. DJ attaches. Note: appeal from judgment of acquittal can not be made in the guise of certiorari. Certiorari may be had on want of jurisdiction or grave abuse of discretion BUT not on the ground of misappreciation of facts and evidence.

DJ

Exp: 1. where judgment made RESERVATION. Where accused after pleading guilty reserved his right to present evidence to prove that amount he was accused of is now with authorities. If case is set for hearing of his reservation, DJ does not apply. 2. when the court acted with grave abuse of discretion.

NOT Case not yet final

WHEN appeal allowed: a) dismissal is upon motion or with express consent of accused b) dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case c) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt of innocence of the accused. d) appeal from order of dismissal based on prescription

NOT

Appeal of civil award by offended party is allowed. PROVIDED the accused will not be convicted of a more serious offense or sentenced to a higher penalty to justify the increase in the civil indemnity.

NOT

When the accused appeals NOT Waives his right vs DJ

Civil contempt: when there is failure to do something ordered by a court to be done for the benefit of the party

NOT

Criminal contempt: when the purpose is to vindicate the authority of the court and protect its outrage dignity

DJ

Dismissal vs Acquittal

Dismissal Acquittal Not on the merits Case decided on the merits Grounds: court has no jurisdiction, or that the offense was committed outside of its territorial jurisdiction, or that the information is not valid in form and in substance

Grounds: on the merits of the case when the prosecution was able to present evidence.

Civil liability is not affected by double jeopardy: extinction of civil liability whether by prescription or bar by dj does not carry with it the extinction of the civil liability arising from the offense charged.

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Prosecution without exception cannot appeal where the accused had already been exposed to double jeopardy. Then much less then can the offended party or his heirs, who are mainly concerned only with civil indemnity.

A judge has no power to reinstate a case which he has earlier dismissed by simply erasing his signature below the words dismissed by simply erasing his signature below the words dismissed “case dismissed” appearing in the exhibits.

A review of sufficiency of the evidence and of the propriety of the acquittal of the accused lies outside the function of certiorari as intrudes into prerogatives of RULE 45, under ordinary appeals, where an alleged error of judgment may be subjected to review. A review of judgment of acquittal of private respondents under certiorari would place the accused in DJ. Thus, certiorari is not allowed from denial of demurrer to evidence by CA.

Section 8: Provisional dismissal

Essential requisites that need be proved by defendant: TIME BAR a) The prosecution with the express conformity of the accused or the accused moves for

provisional remedy dismissal of the case; or both of them moves for it b) The offended party is notified of the motion for prov dismissal c) The court issues an order granting the motion and dismissing the case provisionally d) The public prosecutor is served with a copy of the order of prov dismissal.

Ratio for consent of accused: to bar him from subsequently asserting that the revival of the criminal case will place him in DJ.

“ x year after issuance” – means x years after service of the order of dismissal on the public prosecutor who has control of the prosecution.

Express consent to a PD is given either orally or in writing. Inaction or silence does not amount to express consent.

PD with express consent May be revived only within the periods in this section. DJ not defense. without express consent May be revived even beyond the periods of this section. DJ defense.

GR: Upon revival, no need for new PI. Exp: witnesses dies or recanted in testifying, or there is new complaint or changes his degree of criminal liability - new information and new PI.

This rules does not apply to withdrawals of information and is not time-barred.

Section 9:Failure to move to quash or to allege any ground therefor

Failure to raise the propriety of the court in taking judicial notice of the complaint filed by the offended party by way of motion to quash bars him from raising said issue on appeal. This being a condition precedent.

Note: immunity from suit is a jurisdictional question. Sufficiency of allegations in the amended information do not fall under exceptions of this

section. They fall under “ does not conform substantially with the prescribed form”.

RULE 118: Pre-trial

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Section 1: pre-trial, mandatory in criminal cases

Section 2: pre-trial agreement

Section 3: non-appearance of pre-trial conference

Section 4: pre-trial order

A.M. No. 03-1-09-SC: RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIALAND USE OF DEPOSITION-DISCOVERY MEASURES

B. Criminal Cases

1. Before arraignment, the Court shall issue an order directing the public prosecutor to submit the record of the preliminary investigation to the Branch COC for the latter to attach the same to the record of the criminal case.

Where the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three days from the filing of the complaint or information. The accused shall be arraigned within ten days from the date of the raffle. The pre-trial of his case shall be held within ten days after arraignment unless a shorter period is provided for by law.[11]

2. After the arraignment, the court shall forthwith set the pre-trial conference within thirty days from the date of arraignment, and issue an order: (a) requiring the private offended party to appear thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence;[12] (b) referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and (c) informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. A copy of the order is hereto attached as Annex "E". In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available.

3. During the preliminary conference, the Branch COC shall assist the parties in reaching a settlement of the civil aspect of the case, mark the documents to be presented as exhibits and copies thereof attached to the records after comparison, ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits and consider such other matters as may aid in the prompt disposition of the case. The proceedings during the preliminary conference shall be recorded in the Minutes of Preliminary Conference to be signed by both parties and counsel. (Please see Annex "B")

The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch COC to the case record before the pre-trial.

4. Before the pre-trial conference the judge must study the allegations of the information, the statements in the affidavits of witnesses and other documentary evidence which form part of the record of the preliminary investigation.

5. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of 2002, the trial judge shall consider plea-bargaining arrangements.[13]3 Where the prosecution and the offended party agree to the plea offered by the accused, the court shall:

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a. Issue an order which contains the plea bargaining arrived at;

b. Proceed to receive evidence on the civil aspect of the case; and

c. Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence.[14]

6. When plea bargaining fails, the Court shall:

a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence;

b. Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in determining farther admissions of facts, documents and in particular as to the following:[15]

1. the identity of the accused;

2. court's territorial jurisdiction relative to the offense/s charged;

3. qualification of expert witness/es;

4. amount of damages;

5. genuineness and due execution of documents;

6. the cause of death or injury, in proper cases;

7. adoption of any evidence presented during the preliminary investigation;

8. disclosure of defenses of alibi, insanity, self-defense, exercise of public authority and justifying or exempting circumstances; and

9. such other matters that would limit the facts in issue.

c. Define factual and legal issues;

d. Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates;

e. Require the parties to submit to the Branch COC the names, addresses and contact numbers of witnesses that need to be summoned by subpoena;[16] and

f. Consider modification of order of trial if the accused admits the charge but interposes a lawful defense.

7. During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between parties.

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8. All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements

covering the matters referred to in Section 1 of Rule 118 shall be approved by the court.

9. All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties and/or their counsels.

10. The trial judge shall issue a Pre-trial Order within ten (10) days after the termination of the pre-trial setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented and the schedule of trial. Said Order shall bind the parties, limit the trial to matters not disposed of and control the course the action during the trial.[

Pre-trial in criminal cases is mandatory Plea bargaining: disposition of criminal charges by agreement between the prosecution and the

accused. Plea bargaining is not allowed under the Dangerous Drugs Act (imposable penalty is reclusion

perpetua). Pre-trial agreements must be signed. This is not required however, to stipulation of facts made

during the trial. The same is automatically contained in transcript. Admission as waiver of right confrontation and right to present evidence on his behalf: the court

deemed as waiver of the right of confrontation, the admission by the accused that witness if present would testify to certain facts stated in the affidavit of the prosecution.

Stipulation as to evidence: stipulation by counsel as to effect that certain additional witness, if they were produced and sworn on behalf of both the prosecution and defense, would testify the same as the actual witness had as to substance of the issue, cannot be accepted as the equivalent of proof under oath. It is not supposed to be within the knowledge or competence of counsel to predict what proposed witness may say.

Admission is the mere acknowledgement of a factor or circumstances from which guilt may be

inferred, tending to incriminate the speaker, but not sufficient to establish his guilt.

Evidence showing that defendant is not a recidivist prevails over the implied admission that he is.

A proffer of evidence on the basis of evidence exhibited by the accused during pre-trial is not sufficient and the acquittal of the accused on the basis thereof is a nullity for want of due process.

RULE 119: Trial

Section 1: time to prepare for trial

Denial of right to prepare is a denial of due process. It is a reversible error. The remedy is appeal not habeas corpus.

Time to prepare may be extended at court’s sound discretion in exceptional cases.

Section 2: continuous trial until terminated; postponements

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Continuous Trial Concept: mode of judicial fact finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without needless postponement. Case terminated within 90 days unless extended for meritorious reasons. System requires judge: a) adhere faithfully to the session hours in the prescribed law b) maintain full control of the proceedings c) efficiently allocate and use time and court resources to avoid court delays.

Time limitation no applicable to: a) Criminal cases not covered by the Rules on Summary Procedure ( penalty does not exceed 6

mos imprisonment or a fine of 1k or both IRRESPECTIVE OF PENALTIES) . b) RA No. 4908- requiring judges to speedily try criminal cases where in the offended party is

a person about to depart from Philippines with no definite date of return and which requires to take precedence over all other cases before our courts EXCEPT habeas corpus. Trial shall start within 3 days from arraignment and no postponement of initial hearing shall be allowed except illness or other ground beyond the control of accused.

c) speedy trial of child abuse cases: same as b.

d) violations of dangerous drugs law: if PI conducted by prosecuting officer: file information within 24 hours from PI

if conducted by judge: file complaint within 48 hours from receipt of records of the case.

Trial shall be finished within 90 days from filing or information/ complaint.

Decision shall be rendered within 15 days from date of submission of the case.

e) Administrative Order No. 104-96

-kidnapping and or kidnapping for ransom, robbery in a band, robbery commited against banking and financial institution, violatation of dda 1972, violation of IP rights, etc, and other heinous crimes (ra 7659) shall under go continuous trial for 60 days and decided upon in 30 days. No postponement except in meritorious cases.

Section 3: exclusions

Section 4: factors for granting continuance

Motions for postponement: May only granted upon meritorious grounds. It is addressed to the sound discretion of the

courts.

Section 5: time limit following an order for new trial

Section 6: extended time limit

Section 7: public attorney’s duties where accused is imprisoned

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Section 8: sanctions

Section 9: remedy where accused is not brought to trial within the time limit

Section 10: law on speedy trial not a bar to provision on speedy trial in the constitution

Motions must contain a notice of hearing. If it does not contain it- it is a mere scrap of paper. Absence of it does not deprive a competent court of jurisdiction over the case. The court still

retains authority to pass on the merits of the motion. The remedy of aggrieved party is to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal NOT CERTIORARI.

However, a motion to quash must contain a notice of hearing and proof of service. Postponements under the speedy trial act: STA does not prohibit motions for postponement BUT

there are no exclusions in computing time of trial are allowed. Thus, if there are exclusions it will not be excluded from the 180 days period within which to terminate trial. May only be extended by SC.

Section 11: order of trial

Burden of proof: on the prosecution. Every element must be alleged and proved. If accused pleads not guilty: he will be asked if he will interpose a negative of affirmative defense.

-affirmative defense: court may modify order of trial and require accused to prove such defense by clear and convincing evidence -negative defense: require the prosecution to prove the guilt of the accused beyond reasonable doubt.

Trial of accessory can proceed without awaiting the result of separate charge against the principal.

Section 12: application for examination of witness for accused before trial

Section 13: examination of defense witness; how made

Section 14: bail to secure appearance of material witness

Section 15: examination of witness for the prosecution

Examination of defense’s witness

Taken before any judge, member of the bar in good standing designated by the judge in the order, or before inferior court is order granted by superior court.

Examination of prosecution’s witness

Taken before court or judge only.

Conditional examination of witness: Meaning: upon examination of the court and it is satisfied.

No hearing is required by the rules before conditional examination of the witness may be allowed. Use of modes of discovery is not prohibited in criminal cases.

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Section 16: trial of several accused

Separate trial is with TC’s discretion. Denial is justified when accused is not substantially prejudiced.

It is understood, that the evidence in the chieft of the prosecution shall remain in the record as evidence against all the petitioners. It is not necessary for the prosecution to adduce all over again its evidence in chief in each separate trial of the accused. In the separate trial of the accused, only the accused presenting evidence has to be present.

Joint trial in the Sandiganbayan: private individuals shall be tried jointly with public officers in the proper courts. Public officer as mere accomplice or accessory of principal priv indvl

PO shall be tried jointly with the private individual in the ordinary courts

Public officer as principal Joint before Sandiganbayan UNLESS it is impracticable or impossible.

Section 17: discharge of accused to be state witness

State witness: one of two o more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the state.

The fact that the accused has not been charged in the information does not deprive application of this section. It is not required by the rules. There is not violation of due process.

“particeps criminis” (state witness) Discharge of more than one accused: since there is no prosecution witness could substantially

corroborate the testimony of a discharged witness, 2 are discharged to meet the requirement of substantial corroboration.

Although discharged to be state witness is with court’s discretion, all the requisites of discharge MUST be present.

NO NEED to allege all elements of offense in motion to discharge to become state witness. The motion will suffice if the allegations contained therein adequately inform the adverse party and the court what relief the movant is praying for. The only requirement is a hearing to show all elements are present. B But need not be by trial type hearing.

When discharged made: can be effected at any stage of the proceeding ( from the filing of information to the time the defense starts to offer any evidence). Discharge should not be ordered before presenting evidence by the prosecution. Discharge may be ordered at any time before defendants have entered upon their defense.

Witness under WITNESS PROTECTION PROGRAM is governed by section 14, Rule 114 on motion to withdraw.

“most guilty” DOES NOT MEAN least guilty. GR: in a CONSPIRACY, all of the accused are EQUALLY guilty.

Exp: conspiracy when done in secret. Exp to exp: accused not a privy to the conspiracy made in secret.

Fiscal must show that there is an absolute NECESSITY for the testimony of the defendant. Absolute CERTAINTY is not required “absolute necessity”: there is no other source to prove crime.

Moral turpitude: an act of baseness, vileness and depravity in the private and social duty which a man owes his fellowmen or to society in general done out of spirit of cruelty, hostility or revenge, but there is also authority to the effect that an act is not so done when it is prompted by the sudden resentment of an injury calculated in no slight degree to awaken passion.

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Everything that is done contrary to justice, modesty, or good morals. Crimes involving moral turpiture: estafa, abduction with consent, consubinage, murder.

Section 18: Discharge of accused operates as acquittal

GR: Effects of discharge: a. evidence adduced in support of the discharge shall automatically form part of the trial if court denies discharge, the accused’s sworn statement in support thereof shall be

inadmissible in evidence.

b. discharge of accused operates as an acquittal and bar to further prosecution for the same offense.

EXPs:

a) unless accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of his discharge.

b) failure to testify refers exclusively to defendant’s will c) extrajudicial confession: admissibility: where an accused who turns state’s evidence on a

promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him

d) once discharged even if one or all of the conditions required for discharge did not really exist, that fact does not affect the legal consequences of the discharge and the admissibility and credibility of his testimony if, otherwise admissible and credible.

Effect of irregular discharge: does not affect the competency and quality of the testimony of the discharged defendant.

Effect of court’s error in the discharge: does not relieve from criminal responsibility the guilty participants who are not discharged ( as state witness).

The improper discharge of an accused will not render inadmissible his testimony nor detract from his competency as witness. It will not invalidate his acquittal.

Discharge as state witness of an accused who already pleaded guilty but not yet sentenced was allowed.

Discharge of a state witness after he testified is allowed. The fact that not all the requisites of discharge are present is not a ground to recall his discharge. A state witness under the “witness protection program” ( RA 6891) Sec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; (b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed:

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

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(f) he has not at any time been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules of Court.

Sec. 11. Sworn Statement. — Before any person is admitted into the Program pursuant to the next preceding Section he shall execute a sworn statement describing in detail the manner in which the offense was committed and his participation therein. If after said examination of said person, his sworn statement and other relevant facts, the Department is satisfied that the requirements of this Act and its implementing rules are complied with, it may admit such person into the Program and issue the corresponding certification.

If his application for admission is denied, said sworn statement and any other testimony given in support of said application shall not be admissible in evidence, except for impeachment purposes.

Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required not to include the Witness in the criminal complaint or information and if included therein, to petition the court for his discharge in order that he can utilized as a State Witness. The Court shall order the discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits

provided under Section 8 hereof.

Sec. 13. Failure or Refusal of the Witness to Testify. — Any Witness registered in the Program who fails or refuses to testify or to continue to testify without just cause when lawfully obliged to do so, shall be prosecuted for contempt. If he testifies falsely or evasively, he shall be liable to prosecution for perjury. If a State Witness fails or refuses to testify, or testifies falsely or evasively, or violates any condition accompanying such immunity without just cause, as determined in a hearing by the proper court, his immunity shall be removed and he shall be subject to contempt or criminal prosecution. Moreover, the enjoyment of all rights and benefits under this Act shall be deemed terminated.

The Witness may, however, purge himself of the contumacious acts by testifying at any appropriate stage of the proceedings.

Sec. 14. Compelled Testimony. — Any Witness admitted into the Program pursuant to Sections 3 and 10 of this Act cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted into the Program on the ground of the constitutional right against self-incrimination but he shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents, records and writings produced.

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In case of refusal of said Witness to testify or give evidence or produce books, documents, records, or writings, on the ground of the right against self-incrimination, and the state prosecutor or investigator believes that such evidence is absolutely necessary for a successful prosecution of the offense or offenses charged or under investigation, he, with the prior approval of the department, shall file a petition with the appropriate court for the issuance of an order requiring said Witness to testify, give evidence or produce the books, documents, records, and writings described, and the court shall issue the proper order.

The court, upon motion of the state prosecutor or investigator, shall order the arrest and detention of the Witness in any jail contiguous to the place of trial or investigation until such time that the Witness is willing to give such testimony or produce such documentary evidence.

There is no need for the prosecution to first charge a person in order to qualify for the program.

Discharge of state witness operates as acquittal and cannot be subsequently be re-included in complaint except when he fails or refuses to testify

Amended information are not new information they are a continuation of the original information, so that a discharge under the original information is just as binding upon the subsequent amended information.

This rules does not apply were there is no discharge to utilize him as witness. This act refers to the discharge BEFORE he testifies.

Before arraignment, Rule 110 section 4 is the applicable rule for discharge of accused NOT this section.

Testimony of a co-conspirator is not sufficient for conviction of the accused UNLESS other evidence supports such testimony OR when testimony is made in a straightforward manner and it contains details which could not have to be the result of deliberate afterthought.

Section 19: when mistake has been made in charging the proper offense

Amendment BY SUBSTITUTION- allowed provided the accused will not be put to DJ Cases:

Oral defamation Error in name of offended party- court should dismiss case and order fiscal to file another information charging same accused and hold the accused in custody to answer for new charge. No DJ ( different offended).

Bribery The allegations in the information amount to bribery not to robbery. Dismiss and file new information. No DJ.

Abduction with consent

Court arrived at a judgment of abduction and not rape. Dismiss complaint for abduction and file for rape

Qualified seduction to rape

Dismiss information for qualified seduction before the accused has rested his case for the filing of an information of rape without violating his right against DJ.

Section 20:Appointment of Acting Prosecutor

Section 21: exclusion of the public

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It is within the TC’s discretion to allow or not to allow a witness to testify, who notwithstanding the order excluding witness from the courtroom, remained there, although the court believes that the testimony of said witness should have been admitted.

Section 22: consolidation of trials of related offenses

Purpose: avoid multiplicity of suits. Propriety:

a) offenses charged are similar, related or connected, or are of the same or similar character or class,

b) or involve or arouse out of the same or related or connected acts, occurrences, c) or are based on acts or transactions constituting parts of a common scheme or plan, d) or are the same pattern and committed in the same manner, e) or where there is a common elements of substantial importance on their commission, f) or where the same or much the same evidence will be competent and admissible or required in

the prosecution of substantially the same testimony will be required on each trial. PROVIDED: no party would be prejudiced and multiplicity of suits avoided.

Section 23: demurrer to evidence

Rule has retroactive effect It is an interlocutory order It is submitted to the sound discretion of the court. Rules does not apply where prosecution had not yet rested its case at the time the motion to acquit

was presented. Even if the prosecution has already rested its case and defense filed a demurrer to the evidence, it

is still in the court’s discretion to allow the prosecution to present additional evidence. Where despite denial the accused still pushed for his demurrer instead of presenting evidence, he

may be deemed to have waived his right to present evidence and the case is deemed submitted for decision.

Dismissal of a criminal case by a grant of this is not appealable as the accused would be placed in DJ.

Certiorari allowed when there is lack of juris or grave abuse.

Section 24: reopening

RULE 120: Judgement

Section 1: time to prepare for trial

Reprehension in the decision: -Highly reprehensible criticism by court has no effect on acquittal of accused BUT accused mat move to have it eliminated from the court’s opinion if he thinks it is unwarranted and uncalled for AND to appeal to higher court if denied. -Reprehension must be relevant to the issues of the case. - court is free to give opinion but may do so with common sense of propriety and decorum

Section 2: contents of the judgment

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Form of judgment in Sandiganbayan: shall contain complete findings of the facts and the law on which they are based, on all issues properly raised before it and necessary in deciding the case.

It is not necessary for the validity of the judgment that it be rendered by the judge who heard the case.

Strict compliance: decision must clearly state the facts and law on which it is based. Ratio: so that it may be used in appeal and to safeguard parties of impetuosity of judgment. Remedy is not complied: remand the case to court of origin for the rendition of new judgment

TC should not merely reproduce everything testified by the witness. memorandum decisions: a court in appealed cases may adopt by reference the findings of facts

and conclusions of law contained in the decision appealed from. For this to be valid: this must embody the findings of facts and conclusions of law of the lower

court in an annex attached to and made an indispensible part of the decision. Judgment must be in writing: a judgment made verbal is not final and thus not binding.

Judgment of conviction:

-Contents: a)Legal qualification of the offense ( acts/ omissions, AC, MC, etc) Failure to designate crime: not error for judge. He need not mention the particular provision. b) participation of the accused c) penalty to be imposed ( must be that exactly provided by RPC) - alternative sentences is not allowed. - alternative penalty is not allowed. - use proper terminology ( eg. reclusion perpetua) d) civil liability or damages or damages UNLESS separate action/ reserved/ waived. - court must provide. - judgment should declare civil liability, if proper.

failure to award civil liability is appealable. When prosecutor, before trial on the merits, files affidavit of desistance in order to file civl action

to recover the things subject of the crime, the offended party is no longer entitled to restitution of things in the same criminal case. The desistance carried the dismissal of the civil aspects accompanying the filing of the criminal information. Remedy: filing an entirely new civil action.

Despite acquittal, accused can still be held civilly liable.

Extent of damages awarded in civil liability arising from crimes: 1. Actual damages Must be supported with receipts GR: It must be proves with reasonable degree of certainty, premised upon competent porrd

and on the best evidence obtainable by the injured party. Exp: damafes for death caused by a crime or quasi- delict ( Art 2206, NCC) 2. moral damages

-must be specifically stated. In rape- mandatory: 50k. 3. exemplary damages no AC, no exemplary damages. 4. loss of earning capacity 5. attorney’s fees 6. liquidated damages: fixed by the parties 7. nominal damages

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adjudicated in order that a right of the plaintiff which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.

Damages are the amounts recoverable or that which can be awarded for the damage done or sustained.

Damages ( civil code) Sum of money which the law awards or imposes as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence of either breach of a contractual obligation or a tortuous or illegal act

Damage Pertains to the actionable loss, hurt or sham which results from the unlawful act, omission or negligence of another.

Damages may be increased on appeal. Where the post dated checks were issued by the accused not in payment of his personal

obligation but of a contractual obligation of the corporation, of which he was the president, claim for civil liability is without basis. Any claim for the tortuous liability must be ventilated against the corporation in a separate action.

Section 3: judgment for two or more offenses

But is accused, is charged only for one offense, he can not be convicted for two. In multiple rape, accused is not only liable for the rape he committed but also those committed by

others, because of his cooperation in perpetrating it. Each forced sexual intercourse is one distinct offense of rape. Failure to file a motion to quash on the ground of duplicity will result to this section.

Section 4: judgment in case of variance between allegation and proof

Section 5: when an offense includes or is included in another

An accused can not be convicted of an offense not charged or included in the information. Rules:

Situation Convicted for Offense proved is less serious than, and necessarily included in, offense charged Proved: homicide Charged: murder

Offense proved: murder

Offense proved is more serious than, and necessarily included in, offense charged Proved: serious physical injuries Charged: slight physical injuries

Offense charged: slight physical injuries

Rule does not require that all essential elements of the offense charged in the information be

proved in order that the accused may be convicted of the crime included in the one charged it is sufficient that some of the essential elements of the crime charged be established and that these constitute the crime proved.

Anti-graft charged includes falsification of official and commercial document.

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Act can be had under an information exclusively charging the commission of a willful offense. ( eg. accused charged with willful malversation can be validly convicted of malversation thru negligence where the evidence sustains the latter mode committing the offense).

MINOR variance: minor variance between the information and that established by the evidence will not in any manner alter the nature of the offense. ( eg. minor detail on weapon used to kill)

Where an offense may be committed in any of several modes, it is sufficient to prove the offense committed in any one of them, provided it be such as to constitute the substantive offense and that accused did not object to such evidence.

Where the accused was definitely and squarely charged with rape, he cannot be convicted of qualified seduction. Rape and qualified seduction is not identical offenses. BUT one who is charged with rape may be found guilty of qualified seduction when the verified complaint for rape contains allegations which aver the crime of seduction.

Technical malversation does not include, or is nor included in the crime of malversation of public funds.

An accused charged as co-principal may validly be convicted as accessory even if the principal is acquitted.

The fact that the information indicated marijuana dried leaves, while the lab result dried flowering tops is not a ground for acquittal.

Accused cannot be convicted of the complex crime constitutive of various crimes alleged in two separate information.

Simple robbery included in kidnapping with ransom. ( unlawful taking with intent to gain) An accused charged of a complex offense may be convicted of one of the component offenses. Where there is a variance involving the date or amount of checks described in the information and

evidence, accused cannot be held liable for violation of BP 22.

Section 6: Promulgation of judgment

Promulgation of judgment, generally done, 990 days after case is submitted for decision. Promulgation can not take place until after the clerk receives it and entered it into the criminal

docket. Judgment must be rendered in its entirety. No just the dispositive portion. IF no promulgation of decision, NOT DOUBLE JEOPARDY since the first jeopardy is not yet

terminated. Where what was promulgated was merely the civil aspect the promulgation was not merely

incomplete but also void. Sin Perjuicio judgment NOT allowed. (where there is an implied reservation that it is subject to

modification when the decision is finally rendered). Recording of judgment in criminal docket satisfies the requirement of satisfying the accused of the

decision wherever he may be. Receipt of copies of decision by counsel is sufficient notice. Where the judgment is for conviction, and the accused failed to appear at the promulgation of

judgment without justifiable cause, despite due notice to him, his bondsmen or counsel said accused may be deemed to have waived his right to appeal.

Section 7: Modification of judgment

Judgment of conviction may be final even before the lapse of 15 days if accused demonstrates his conformity in a clear and express manner to the sentence by renouncing or waiving in writing his right to appeal therefrom.

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After commitment and commencement of service of sentence, judgment can no longer be modified.

Section 8: entry of judgment

Section 9:existing provisions governing suspension of sentence, probation, and parole

not affected by this rule Check Probation Law

RULE 121: New Trial or Reconsideration

Section 1: New trial or reconsideration

A motion for new trial on the ground of errors of law in the judgment may be properly called a motion for recon is equivalent to a motion for new trial. Errors of law in the judgment do not affect or invalidate the whole proceedings prior to the

judgment, but only the judgment itself, to correct such errors no new trial is required but only a reconsideration of the original judgment.

Both motions have the same effect of interrupting the period of perfecting appeal. New Trial and Recon VS MOTION to reopen trial

-there is no specific provision in the RoC for motions to reopen trial. -the reopening of a case for the reception of further evidence before the judgment is not the granting of a new trial. - motion to reopen must be made before judgment. - motion for NT made after promulgation of judgment. - ground for Motion to reopen: paramount interest of justice, it rests on discretion of court. - denial of motion to reopen: motioned to present evidence when prosecution was already given ample time to present evidence.

Motions for new trial is filed within period of perfection of appeal. Lost appeal cannot be retrieved by a motion for new trial. Accused appealed to CA, injured filed motion for reconsideration for civil liabilty= lower court has

jurisdiction to pass upon civil liability.

Section 2: Grounds for New Trial

Motion of the courts with accused’s consent: eg. court finds that evidences presented are incomplete and unsatisfactory.

Mistakes or errors ( by reason of ignorance, inexperience, and incompetence) of counsel in conducting the case is not a ground for new trial. EXP: when the incompetency of the counsel is SO GREAT that the defendant is prejudiced and prevented from fairly presenting his defense and where the error of the counsel is serious.

Violation of Right to counsel is ground for New Trial. Dismissal of appeal will be set aside if lawyer is fake. Exception: the accused has knowledge of this. Improperly swearing of witness is not a ground for NT. Loss of stenographic notes after trial is not a ground for NT.

Newly Discovered Evidence: Requisites: BERRY RULE

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a) evidence was discovered after trial b) such evidence could not have been discovered and produced at the trial even with the

exercise of reasonable diligence. c) the evidence is material, not merely cumulative, corroborative, or impeaching d) it must go to the merits as ought to produce a different result if admitted.

Rule on NT requires STRICT compliance. DNA is not considered as a NDE. SC may provide for other grounds of NT. Recantation of Witness: to renounce and withdraw a prior statement formally and publicly. IT IS

NOT A GROUND FOR NT. Affidavit of desistance is not recantation. When NT may be granted on this ground:

a) when aside from the testimony of said witness retracting there is not other evidence to support the judgment of conviction. b) witnesses who are shown to have made contradictory statements as to material facts under which circumstances the court maybe led to a different conclusions.

- impeachment evidence based on retraction not ground for NT.

Affidavits of desistance is not a ground for dismissal of an action filed. There must be other evidences in order for it to be considered.

Using a perjured testimony and knowing that it is is a ground for new trial ( americal ruling)

Section 3: Grounds for reconsideration

Section 4: Form of motion and notice to prosecutor

It is no longer required for these motions to be verified. Absence of affidavit of merit is cures by the testimony under oath of the appealland at the hearing

of the motion for recon. Absence of notice of hearing makes motion only a pro forma. Supplemental pleading to the motion

will not cure it. Exp, it will result in manifest miscarriage of justice.

Section 5: Hearing on motion

Section 6: effects of granting a new trial or reconsideration

No double jeopardy: -appeal of accused through this motions is a waiver of the second jeopardy attaching. - if granted, parties are placed in the original position as if there was no trial.

Order granting NT may limit the trial to certain issues or parties There is no restriction to NDE unless expressly stated by the order. Former judgment is vacated: as if there has never been a trial.

Motion for reconsideration in the Sandiganbayan.

- Made within 15 days after promulgation and decided 30 days after. Order granting NT in criminal cases is appealable.

RULE 122: Appeal

Section 1: who may appeal

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Right to appeal is only statutory. However once granted, appeal becomes part of due process and should be liberally applied in favor of right to appeal.

Judgment of acquittal becomes final immediately after promulgation and cannot be recalled for correction or amendment.

Erroneous dismissal after trial constitutes double jeopardy. Also, no reopening to modify judgment. ExP: when accused pleaded guilty but reserved right to present evidence that amount he stole was already recovered by authorities.

Neither is the remedy of certiorari to annul the judgment of acquittal in a criminal case available, the reopening of which far any reason is forbidden.

GR: appeal from prosecution from order of dismissal is DJ. Exps: NOT DJ a) dismissal is made upon motion or with the express consent of the defendant b) the dismissal is not an acquittal or based upon consideration of the evidence or on the merits of

the case c) the question to be passed upon by the appellate court is purely legal so that should the

dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the accused,

if the judge commits only an error of judgment, not tantamount to a grave abuse or discretion, the proper remedy for correcting such an error is not certiorari but appeal.

Appeals to any court where PP is a party, OSG must be informed. Failure to serve such notice of appeal to OSG is a ground for dismissal of the petition.

Right of offended party to appeal: pertains to civil aspect of the case. - No right to appeal by offended party where accused was completely exonerated. Exp where

reservation to file the same was made. - Civil award may be appealed by the private prosecutor on beheld of the offended party - Conformity of OSG is not necessary.

Right of the prosecution to appeal:

ONLY Solicitor General, not fiscal or private prosecutor, represents the PP on appeal. Otherwise,

dismissed. But when made by private prosecutor, the same is cured when SG intervenes.

BUT offended party retains right to bring a special civil action for certiorari in his own name in criminal proceedings.

GR: certiorari is not available when period to appeals has lapsed.

Exps: a) when public welfare and the advancement of the public policy dictates b) when the broader interest of justice so requires c) when the writs issued are null and void d) when the questioned order amounts to an oppressive exercise of judicial authority.

Section 2: where to appeal

Section 3: how appeal taken

Appeals to the Sandiganbayan Appeals from the Sandiganbayan

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- Appealable to the SC. By petition for review on certiorari raising purely questions of law in accordance with Rule 45, roc.

- Apply Rule 65 where only jurisdictional issues are raised.

Section 4: service of notice of appeal

Section 5: waiver of notice

Perfection of appeal in criminal cases: after the interested party, or parties, has personally or through his attorney, filed with the clerk of court a written notice expressly stating the appeal.

Verbal notice of appeal on open court + filing of bond= substantial compliance with the rules. Failure by appellant to serve copy of his appeal to provincial fiscal is not a defect which can either

nullify the appeal or prejudice the accused.

Effect of perfection of appeal: court of origin loses its jurisdiction over the record and over the subject of the case.

Section 6: when appeal may be taken

15 day period is mandatory. Period to appeal by offended party on civil aspect only, apply rules on civil actions. Fresh period rule is now applied not “balance” rule if motion for NT or Recon. SC may decide case on appeal even if it was belatedly filed.

Appeal from judgment “promulgation” Appeal from final order “notice”

Section 7: Transcribing and Filing notes of stenographic reporter upon appeal

Section 8: Transmission of papers to appellate court upon appeal

Section 9: appeal to the RTC

Section 10: Transmission of records in case of death penalty

Lost appeal can not be retrieved by new trial.

Section 11: Effect of Appeal by any of several accused

Appellate court has no jurisdiction over one of the accused who did not appeal. The judgment as to accused who did not appeal became final and executor.

Section 12: Withdrawal of Appeal

Withdrawal of appeal after the case has been submitted for decision is discretionary upon the court.

Court may deny it: eg. to correct the penalty it imposed. Accused should be sentenced with heavier penalty.

Withdrawal of appeal should be allowed only BEFORE the trial of the case on appeal and NOT during or after it. To rule otherwise will assist the accused to withdraw when he feels that decision on appeal will impose a heavier penalty upon him.

Where the only reason for withdrawal is poverty, a counsel de officio must be appointed.

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RULE 123: Procedure in Municipal Trial Courts

Section 1: uniform procedure

INSERT RULES ON SUMMARY PROCEDURE

RULE 124: Procedure in Court of Appeals

Section 1: title of the case

Section 2: appointment of counsel de officio for the accused

Section 3: when brief for appellant to be filed

Section 4: when brief for appellee to be filed; reply brief the appellant

Section 5: extension of time for filing briefs

Section 6: form of briefs

Section 7: content of brief

Issues that may be raised: issues which were never raised in the proceedings before the TC cannot be considered and passed upon on appeal.

Withdrawal of appeal: after briefs are files- upon court’s discretion.

Section 8: dismissal of appeal for abandonment or failure to prosecute

Lack of notice may be cured: by filing of a motion for reconsideration or to set aside the order dismissing the appeal. This does not apply: where there was negligence of the lawyer.

Section 9: prompt disposition of appeals

It is discretionary on the court won to set case for oral argument.

Section 10: judgment not to be reversed or modified except substantial error

Remand may be made where there is omission in the statement of facts in the judgment.

Section 11: scope of judgment

All errors, assigned or not, should be reviewed. When accused appeals, waived DJ. Conviction of CA of higher offenses is allowed.

Section 12: power to receive evidence

Section 13: certification or appeal of case to the Supreme Court

Check amendments

Section 14: motion for new Trial

Section 15: where new trial conducted

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Section 16: reconsideration

Mittimus: a process issued by the court after conviction to carry out the final judgment, such as

commanding a prision warden to hold the accused in accordance with the terms of the judgment.

Section 17: judgment transmitted and filed in the trial court

Manner or promulgation is made by serving copies to the parties. Promulgation under Section 6, Rule 120 DOES NOT APPLY. Transmitted back to court of origin not for promulgation but ONLY for execution of the judgment

against him.

Section 18: Application of certain rules in civil procedure to criminal cases

Rule 47 (annulment of judgment) is not applied. Remedy instead is habeas corpus of certiorari.

RULE 125: Procedure in Supreme Court

Section 1: uniform procedure

Section 2: review of decisions of the court of appeals

Section 3: decision if opinion is equally divided

Rule 45: CA to SC

RULE 126: Search and Seizure

Section 1: search warrant defined

In SW: need not conduct searching examination of witness before issuance unlike in WoA. SW before the court, while PI before the authorized officer. SW must conform strictly to the requirements of the constitutional and statutory provisions,

ontherwise, VOID.

Section 2: court where application for search warrant shall be filed

Any court may issue a search warrant enforceable anywhere in the Philippines for as long as it is the place described in the SW.

Since it is not an initiatory pleading, absence of such in the application for SW will not results to its dismissal.

Section 3: Personal property to be seized

Personal property does not require that the property to be seized should be owned by the person against whom the SW is directed. What is important is that the latter has control and possession of the property sought to be seized

Machinery placed NOT by owner of the tenement or the his agent, cannot be considered as immobilized. Thus it is a personal property susceptible to SW.

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Section 4: requisites for issuing search warrant

Section 5: examination of complainant; record

Probable Cause: such facts and circumstances which could lead a reasonable discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. -Basis: PC shown to be within the personal knowledge of the complainant and the witnesses he may produce and not based on mere hearsay. -Knowledge: Won it has been drawn in a manner that perjury could be charged thereon and the affiant will be held for damage caused.

- Personal knowledge of the witness not necessarily the applicant is sufficient.

-There is presumption of regularity in the determination of PC as long as there is substantial basis.

- substantial basis: that the questions of the examining judge brought out such facts and circumstances as would lead a reasonable discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized of the deposition was reiterated.

- time of application in relation to the offense: should not be so remote.

- There is a need of competent proof of particular acts or specific omissions in the ascertainment of PC. - There is no need of presenting of master tapes of copyrighted films for violation of anti-film piracy. However when what was infringed was a specific television show, master copy must be presented. - Probable Cause to be determined only by judge. - The PC to be determined only by judge does not extend to deportation proceedings. It is the president or the commissioner of immigration that may order arrest. - NO SCATTER SHOT WARRANT. PC must be in connection with ONE SPECIFIC OFFENSE. - failure to mention specific offense is not necessarily violative of Rule 126.

Insufficient: 1. Mere affidavits of the complainant and his witnesses are not sufficient. The examining

judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record.

2. statement contained in a joint affidavit that the evidence gathered and collected by out unit clearly shows that the premises…were used for subversive activities”.

3. gathered information from verified resources- NO personal knowledge. ( might have been allowed if there were searching questions made). 4. deposition based on hearsay 5. pre-typed questions with answer that does not show personal knowledge.

Sufficient:

1. Deposition of a member of intelligence division of BSP after close observation and investigation. Need not identify each and everyone involved. However, if the violation is an isolated transaction, it is material to specify and identity each and every party so that search and seizure be limited to the records pertinent thereto.

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Seizure of obscene material:

Pita vs Court of appeals, guidelines: a) the authorities must apply for the issuance of a search warrant from a judge, if in their

opinion, an obscenity rap is in order b) the authorities must convince the court that the material sought to be seized are obscene

and pose a clear and present danger of an evil substantive enough to warrant state interference and action

c) the judge must determine won the same are indeed “obscene” ( resolved on a case to case basis)

d) If PC exists, it may issue the SW prayed for e) Proper suit is then brought in the court under ART 201, RPC f) Any conviction is subject to appeal. The appellate court may asses won the properties are

indeed obscene

Manner of examination 1. Judge must examine the witnesses personally 2. Examination must be under oath 3. The examination must be reduced to writing in the form of searching questions and

answers - Examination is heard ex-parte ( it is not a trial or a part of a trial) and may be done in

chambers but action must be expedited ( because time of the essence) . Not done in public. Not merely routinary.

- Examination must be probing and exhaustive, not merely routinary or pro forma. Asking in leading questions or general manner is insufficient.

- Judge should have opportunity to observe the demeanor of the complainant and the witnesses.

Particularly describing the place to be searched and the persons or things to be seized. - Purpose:

a) readily identity the properties to be seized and thus prevent them from seizing wrong items b) leave said officers with no discretion regarding the articles and prevent unreasonable search and seizure. - search warrant can not be used to obtain evidence not contained in it. - sufficient: if the officer with the warrant can, with reasonable effort ascertain and identify from the record the place and things in the SW. - technical precision is not required - search warrant is severable: the general description of most of the documents issued in the SW does not render the entire warrant void.. it remains enforceable as to items particularly described. TESTS of particularity: a) when the description therein is as specific as the circumstances will ordinarily allow or b) when the description expresses a conclusion of fact- not law by which the warrant officer

may be guided in making the SW or c) when the things described are limited to those which bear direct relation to the offense for

which the warrant is being issued.

- General warrants: not specific. not allowed.

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Tests on won the SW describes premises with particularity: a) Won the officer enforcing the SW can with reasonable effort, ascertain and identify the

place intended to be searched. b) The executing officer’s prior knowledge as to the place is relevant, esp where the executing

officer is the affiant on whose affidavit the warrant has issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit.

c) The executing officer may look to the affidavit in the official court file to resolve an ambiguity in the SW as to the place to be searched.

Section 6: issuance and form of search warrant

Section 7: right to break door or window to effect search

Knock and announce principle. When unanimous intrusion is permissible:

a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it.

b) When such person in the premises already knew of the identity of the officers and their authority and persons

c) When the officers are justified in the honest belief that there is an imminent peril to life and limb

d) When those in the premises, aware of the presence of someone outside are then engaged in activity which justifies the officers to believe that an escape of destruction of evidence is being attempted.

- List not exclusive.

Section 8: search warrant of house, room, or premises to be made in presence of two witnesses

Section 9: time of making search

Search shall only be made on the day and time and purpose indicated in the SW. Beyond that anything searched and seized is not allowed.

Section 10: validity of search warrant

A search warrant cannot be used everyday for ten days for different purposes. But when a search was interrupted, it can be continued provided it is still within the 10 days.

Section 11: receipt for the property seized

Absent- irregularity and invalidates search.

Section 12: delivery of property and inventory thereof to court; return and proceedings thereon

Court approval which issued SW is necessary for the retention of the property seized by the police and only then will their custody be considered custody of the court.

Section 13: search warrant incident to lawful arrest

PC is an essential requisite. Generally, if the police had time to obtain a SW but they did not do sp, arrest or search is unlawful.

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WARRANTLESS SEARCH AND SEIZURE:

1. Search without warrant of person arrested: search incident to a lawful arrest or valid warrantless arrest. - made while a crime is being committed or after its commission.

-GR: in warrantless searches incident to a lawful arrest, the arrest must precede the search which is merely incidental.

Exp: a search substantially contemporaneous with an arrest can precede the arrest if the police had probable cause to make the arrest at the outset of the search.

-Property to be seized incidental to a lawful arrest: a) dangerous weapons OR

b) anything which may be used as proof of the commission of offense.

Scope of Warrantless searches:

1) time and place of search:

- cannot be made in a place other than the place of arrest. -immediate control test: the scope of the warrantless search incidental to a lawful arrest is limited to the person and area within which the arrestee could reach for a weapon or reach for evidence to destroy it.

2). Search of vehicles

- ratio: impracticability of securing a warrant because vehicles can move quickly.

- the fact that the vehicles looked suspicious because it is not common is not PC.

- passengers of a car is not held liable.

- PC based on information or intelligence reports gathered from surveillance is valid.

- Check points: valid.

3). Consented search without warrant

- may be made expressly or impliedly

- requisites of valid waiver:

a) right exists

b) that the person involved has knowledge, actual or constructive of the existence of rights

c) that he had actual intention to relinquish the right - failure to object cannot be presumed to be a waiver

- deaf mute without interpreter cannot waive ( does not know what was happening)

-submissive stance is a waiver.

- consent given in intimidating situation is no consent at all.

- Totality of circumstance Principle: take all circumstances under which it is effected to justify the search.

- person illegally detained- consent given during is illegal.

- search under this maybe effected only to that which it is allowed. Thus, may not search something not consented to by the person searched.

4). Plain View Doctrine

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- objects in plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.

- Limitation: a) prior justification for intrusion

b) inadvertent discovery of the evidence

c) immediate apparent illegality of the evidence before the police only PC and not absolute certainty is required.

d) plain view justified mere seizure of evidence without further search

Discussed:

a) prior justification for intrusion

- whether it be a warrant for another object, hot pursuit, search incidental to a lawful arrest, some other legit reason.

- once the valid portion of the SW has been executed, the PVD can no longer provide any basis for admitting the other items subsequently found.

b) inadvertent discovery of the evidence

- the fact that the police had to look for the MJ plant before effecting arrest is unlawful not valid warrantless arrest. PVD applies only where the police officer is not searching for evidence against the accused, but unintentionally comes across an incriminating object

c) immediate apparent illegality of the evidence before the police only PC and not absolute certainty is required.

-it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

- they must have a clue of what is inside a container ( eg. transparent)

- if there is a need to move objects or open container to find the illegal item, not in plain view.

-Plainview in motor vehicles.

5). Search in the exercise of police authority under customs: in violation of Tariff and Customs Code

- search of premises NOT being a dwelling house

- search of vessel of aircraft ( includes removal of obstruction to discover contents)

- search of fishing vessel ( same as ratio for moving vehicles)

- warrantless SS under Section 80, PD no. 705, Revised Forestry Code of the Philippines, involcing forest products.

- search of any vehicle, beast, or person

6). Exigent circumstances:

- catch all category

- searches based on PC under extraordinary circumstances.

Examples:

a) where the distinctive odor of the mj emanated from the plastic bad carried by accused b) where an informer positively identified the accused who was observed to have been acting

suspiciously

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c) where the accused fled when accosted by the police where the accused who were rding a jeep were stopped and searched by police who received confidential report that suspect would transport mj.

7). Stop-and-frisk rule:

-TERRY RULE

“ where a police officer observes unusual conduct which leads him reasonable to conclude in light of HIS EXPERIENCE that criminal activity MAY BE AFOOT and that the persons with whom he is dealing MAY BE ARMED and DANGEROUS, where in the course of investigating this behavior HE IDENTIFIED HIMSELF as a policeman and makes REASONABLE inquiries, and NOTHING in the initial stages of the encounter serves to dispel his REASONABLE FEAR for his own or others’ safety, he is entitled for the protection of himself and others in the area TO CONDUCT a CAREFULLY LIMITED SEARCH of the OUTER CLOTHING of such persons IN AN ATTEMPT to DISCOVER weapons which MIGHT BE USED TO ASSAULT HIM.” (Terry Rule)

- laid down the specific and articulable facts standard AND pat down search for weapons.

- stop and search is different from stop and frisk ( former needs PC, while latter no need)

- applying terry rule, extensive search is not allowed. The latter is only allowed if there is a PC.

Total Exclusionary Rule: any evidence obtained in violation of the search and seizure shall be inadmissible for any purpose in any proceedings.

Who may assail legality of SS: a) raised by those whose right has been invaded b) if properties of corporation: must be made in the name of the corporation c) legality of checkpoints, persons whose rights were SPECIFICALLY VIOLATED.

How to challenge legality of SS: file a quashal of search warrant Exp: seriousness and urgency of the case: certiorari

May be waived when there is no objection on the legality of the SS was raised during the trial of the case or to the admissibility of the evidence obtained through said warrant.

However, waiver of illegality of arrest or search IS NOT WAIVER to the object to the admissibility of documentary evidence. Because objections to documentary evidence must be made at the time it is formally offered in evidence.

Things not specifically mention in the SW must be returned in order to comply with the constitutional provision regulating the issuance of SW.

Illegality of SW does not call for the return of things seized where the possession of which is

prohibited by law.

The total exclusionary rule may only be invoked against illegal SS BY the govt or its agents.

Where there are conflicting claimants: interpleader is the proper remedy. Initiated by the govt and is cognizable by court issuing warrant and other branches to which it may be raffled.

GR: Property seized by virtues of SW is not subject to replevin.

Exp: when SW is illegally effected

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Section 14: motion to quash a search warrant or to suppress evidence; where to file

If no case filed yet, judge who issues has jurisdiction even if a complaint is already pending PI before the prosecutor.

Grant of quashal of the SW will not encroach upon the pending PI. The effect of such quashal ( on the ground that no offense has been committed) is only to render the evidence obtained by virtue of the warrant inadmissible for any purpose in any proceeding including PI.

If case is already filed, motion to quash SW may be consolidated with the criminal case. To avoid conflicting decisions.

Where the court which issued the SW denies the quashal and is not otherwise prevented from further proceeding thereon, all personal property seized under the SW shall be transmitted by it to the court where the criminal court is pending.

Court which issued SW is not authorized to rule on ownership of the things seized. If quashal is granted, the return must be made to those whom those things were seized.

RULE 127: Provisional remedies in criminal cases

Section 1: availability of provisional remedies

Section 2: attachment

Nature: those which parties may resort for the preservation of their right or interests during pendency of action.

Includes: Rule 57: preliminary attachment

Rule 58: Preliminary injunction

Rule 59: receivership

Rule 60: replevin

Rule 61: support pendent lite