CRIMINAL PROCEDURE | FISCAL CARRILLO 2020-2021

MODULE 1
PRELIMINARY CONSIDERATIONS TIME-BAR RULE-
In People v. Lacson, they were talking about the time-bar
rule. In 2000, the rules of court, specifically, the rules of
criminal procedure were amended. They introduced what
they now call the time bar rule. In the time bar rule, there
are certain cases which somehow have stagnated or di na
muliok, the parties were given the chance to provisionally
dismiss the case. Meaning to say, let’s have a temporary
dismissal and depending on the type of the case and not
depending on the penalty, a length of either one year or 2
years. Meaning to say, within 1 or 2 years, the prosecution
will have the opportunity to revive the case by mere
motion. File ka motion and you can revive that provisionally
dismissed case and then if after the 1 or 2 years depending
on the motion of the provisional dismissal, there is no
motion to revive the case, then the dismissal becomes final.
This is a relatively new concept in which the SC introduced
Most of the principles of criminal procedure are familiar to you
at that time amendments.
especially since you have already taken up criminal law. The
problem with procedure is that it is a process, it is not
Do we apply these 2 cases that were provisionally
substantive law. Not so much as to the distinction between
dismissed before the amendment?
what is good and not good, what is fair or not fair, unjust, or
just. It is not as black and white as a substantive law. We
The SC said NO. We only apply this to cases after the
always have to look at procedure as a means in attaining the
amendment because if we’re going to apply this to cases
aims of justice or at the very least, attaining the purpose of the
before the amendments, it will have a retroactive effect and
substantive law.
will be very prejudicial to the interest of the state. While the
prejudice to the accuse is minimal as compared to the
We look at procedure as a means of ascertaining whether a
prejudice that would be cause to the State, if you are going
crime was committed and who should be liable. We already
to give it a retroactive effect.
know what are the crimes committed, who should be liable
and procedure is the means by which we can determine if one
is liable for a crime or not. And, another thing about procedure
is that it always gives way to substantive right.

So, please do not be surprise that in the reading of your

jurisprudence, you will see a lot of instances where the SC will
disregard its own rules and we say its own rules is that
criminal procedure as part of the revised rules of court was
created by the SC and not Congress. While it has the force
and effect of law, it is actually promulgated and
created by the SC through the rules of court. Again, as I
said it will disregard its own rules.

As the title of the topic suggests, it is a process, a procedure, a

step-by-step guide in trying to determine a specific objective,
whether it is preliminary investigation or an inquest In criminal procedure, we are basically talking about the
proceeding, or trial or appeal, criminal procedure is a procedure in court. How do we prosecute a crime? How do we
step-by-step guide. This is different from mediation arbitration prosecute a person who has been accused of committing a
and the other alternative dispute resolution in the instance that crime? We do that in court. We do not do that in quasi-judicial
it is a rigid process. A rigid process is when you have to agencies or administrative agencies. We only do that in court.
follow, otherwise you won’t get what you want or objective. It could be the MTC, RTC, or the Sandiganbayan. Those are
generally the courts that try and litigate or where criminal
PEOPLE V. LACSON; TIME BAR RULE cases are litigated.
The SC said that procedure is not only set up for the benefit
of the accused but also for the benefit of the other party, In criminal cases we have two parties at odds with each other.
well that’s the State. Because usually in criminal procedure They have specific interest that are inconsistent with one
it is the State which is the plaintiff and the accused as the another because we have one party accuses the other of a
defendant. So, the procedure here is not only for the crime and of course the accused person is saying NO, unless of
purpose of protecting the rights of the accused, it is also course he pleads guilty. But he is on the other side of the
there to protect the interest of the State so that it may fence, so to speak.
properly enforce its laws and properly punish those who
commit crimes. 2 parties-

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1. plaintiff - the accusing party which is the state or provided that he has been duly notified and his failure to
People of the Philippines appear is unjustifiable. (1987 Constitution)
2. defendant who we call in criminal cases usually as an
accused, instead of in civil case we just call them the In fact, if the state given his opportunity cannot discharge from
defendant. that burden and miserably fails to establish the elements of the
crime or the identity of the accused. The accuse can even file a
How defendant is called during Preliminary proceedings vs. demurrer for evidence. It can say that ok Mr. state that is your
Court proceedings- evidence, I don’t have to present anything because by your
In a preliminary proceeding which is that of the Office of the evidence alone you cannot convict me. We call that demurrer
prosecutor, we call them the respondent. But in the court, we of evidence. That is the burden of the state. So, we all have
call the defendant the accused. So, they are at odds with these principles springing from the basic right to be presumed
each other. So, it is ADVERSARIAL. innocent.

As we said, we use a rigid set of rules – (semi rigid) As a general rule, you have one way of interpreting the rules
because of all the jurisprudence on the rigid set of rules to go but there are always several exceptions. As for example,
about trying the case. It is the court that decides. It is unlike supposedly, the rules should be liberally interpreted.
your (kining mga bag-o na mga resolution mechanisms like
mediation-arbitration wherein the parties have a hand on how Liberal Interpretation-
to go decide the case). It is liberally interpreted. Meaning to say, we give allowance as
to what might happen or we don’t have to strictly conform with
Here, the parties present the case and the judge decides, he the rules.
accepts all the evidence presented by the parties and the court
alone decides, whether the accuse is guilty or not guilty. This is PEOPLE V. EBIAS
the only job or objective of a court or judge and that is to The court said we can disregard to a certain degree. The
determine whether a person is guilty or not guilty. Di na sya accused here filed a motion for new trial.
muingon innocent. It is guilty or not guilty. The question of
whether you are innocent or not, ikaw ra jud ug ginoo kahibaw One of the basic elements or the requirements of a motion
ana. for new trial is that the evidence should be newly
discovered. Meaning to say, it was not discovered at the
time of the original trial before the motion was filed.

In this particular case, the court said while it’s not really
that the evidence is newly discovered but because, here,
somebody else confess to the crime. They said, well it could
have been discovered at the time before the motion was
filed but since it is very important this newly discovered
evidence, so we will grant the motion for new trial.

We have here a case of a liberal interpretation of the rules.

VDA. DE MANGUERRA V. RISOS

The court decided to strictly follow the rules.
The basis of criminal procedure or one of the most basic pillars
of criminal procedure is the presumption of innocence. It is In this particular case, it was a question about perpetuating
from that basic right that all these concepts of criminal the testimony of a witness. The general rule is that if you
procedure, such as due process, quantum of evidence, etc., are a witness, you have to testify in court during trial. But
even the order of trial, all of these spring from this basic there are instances where you cannot or you already
principle of presumption of innocence. If the accused is foresee that you are not available during the trial. So, you
presumed innocent, then it is the burden of the state to prove can testify first, turn your testimony and have it presented
his guilt. during the trial. So, kwaan ka testimony before the trial.
Then it will be preserved and kept confidential, secure
Presumption of Innocence- identity, etc. and during the trial it will be presented as your
SECTION 14. testimony. There is a process for that.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall Here, the complainant was in Manila and the place was filed
enjoy the right to be heard by himself and counsel, to be in Cebu and the complainant wanted to have her testimony
informed of the nature and cause of the accusation against done in Manila because she cannot possibly come to Cebu.
him, to have a speedy, impartial, and public trial, to meet She wanted her testimony to be taken in Manila and during
the witnesses face to face, and to have compulsory process the trial, in written form and have it presented in the court
to secure the attendance of witnesses and the production of Cebu.
of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused HELD:

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The court said NO because the rules are clear. The rules are
clear that if it is the complainant or the plaintiff,
witnesses for the plaintiff or the state, the
perpetuation of their testimony must be taken
before the court where the case is pending.

So, beside the fact that it might be difficult because she is

in Manila, sick, in the hospital, etc. The SC said that we will
strictly adhere to the rules in this case because the rules
are clear and categorical that if it is a witness for the
prosecution and witness for the state and you want to
perpetuate their testimony or his testimony then you have
to take the testimony beforehand in the court where the
case is pending not in the court in Manila.
Here in limitations, we have the most basic right in procedure
Pwede na if you are in the defense. On the defense side, is due process, a constitutional limitation. Meaning to say, both
you can take it in some other courts. substantive and procedural due process.
Example: If the accused is in jail because he is already ALONTE V. SAVELLANO
serving sentence for another case or another crime. You I don’t know if you remembered this Judge sevillano. There
don’t have to take him back in Cebu, if let’s say he is was even a movie made about him. The hanging judge of
serving sentence in Muntinlupa. His testimony can be taken somewhere in manila. But anyway, was that this is a rape
in a court in Muntinlupa and submit it here as a case. And before trial could start, the accused presented an
perpetuated testimony. affidavit of desistance executed by the victim.

So, these are instances, where you will find that the court will You are probably familiar with an affidavit of desistance.
either liberally construe the rules or strictly construe the rules. Basically, it is an affidavit wherein the complainant or victim
They really have no strict guidelines as to when to do that, it is is saying I am no longer interested – I was mistaken, I
usually just a general pronouncement on the end of don’t have evidence, etc. whatever could be the reason.
substantive justice or for an orderly administration of justice. Basically, he is desisting, the complainant is desisting from
Things like that. Mao na usahay maglibog ta sa SC. further going forward with the case. Basically, ako nana ipa
dismiss.

Anyway, in this case, the accused presented an affidavit of

desistance and in fact the victim testified that yes she
executed an affidavit of desistance. Paghuman ato,
Sevellano still convicted the accuse of rape. No trial was
done because the prosecution said that well with the
presentation of affidavit of desistance by the victim were
not going to present trial.

Everybody was thinking that the case would be dismiss but

Sevellano said NO! GUILTY. That is why the SC said that di
napud pwede, that is beyond due process. If we are going
to convict the person through due process and for criminal
This is basically what we are going to be taking up in this cases you need jurisdiction over the case, the person of the
course. The revised rules of criminal procedure. That is Rule accused, the accused is given the opportunity to be heard
110 to 127 of the Revised Rules of Court. As I said, it has the and there be a lawful hearing and a judgement. Wala na
force and effect of law, although, it was not created by sunda ni Savellano. Di jud sya dah guilty. HAHA lisod na sad
Congress, as it was created by the SC. That is why in- kayo.

ESTIPONA V. LOBRIGO
This is the case of 9165, where the court said that the
prohibition on 9165 against plea bargaining is
unconstitutional. Congress that is an unconstitutional
provision which you have come up with RA 9165 where you
said that plea bargaining is not allowed because plea
bargaining is part of procedure. And it is the SC who
decides on the procedure dealing the practice and the
discipline of lawyer that is the realm of the SC.

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Disclaimer from fiscal: I do not know if this is a wise decision

on my part to cite this case. In criminal cases a court has to have jurisdiction over the:

SHULEY V. DENR 1. SUBJECT MATTER

In Shuley vs. DENR, it is quite long and it is not even a Usually involves what is the crime.
criminal case, its just a dicussion and then the discussion
on jurisdiction is just a small part on the case but nindot Municipal Trial Courts – called as First level Courts
ghpon na inyo basahon when you take up Rules 45 mga Generally for crimes that is punishable by imprisonment of 6
civil procedure. years and below it is the MTC, MTCC, METC, MCPC, daghan
sila klase. In some books, they are just referred to as the MTC
You'll learn one of the most basic issues or important things but there is actually kanang:
you need to distinguish is what cases are subject to ● MTC – municipa trial court.
rule 45 and rule 65 of the rules of court. Because ● MCTC – Municipal Circuit trial court
daghan kayo mga cases regarding criminal procedure that ● METC – Metropolitan Trial Court
is always a topic. ● MTCC – Municipal Trial Court in Cities

Rule 45 v. Rule 65- Kaning diri sa cebu, what we have are MTCCs – Municipal Trial
Basically, Rule 45 is a mode of appeal it is for final orders Court in Cities. Anyway, mas maypa ingnon na lang ug First
and judgements which is something that disposes of the Level Courts. They are the first level courts. If you look at
case and rule 65 is for interlocutory orders. They have the pyramid it’s the First level courts. That is one way of
different functions and grounds. looking at who has jurisdiction over the subject matter.

But anyway, what the SC here was saying is that the RTC Who has jurisdiction over the subject matter?
by committing grave abuse of discretion, emphasis on
“grave” because the SC said you can abuse your discretion If penalty is punishable by First Level Courts
and that could still be an error of judgement but you cannot imprisonment of 6 years and
gravely abuse your discretion because that would result in below
lack of jurisdiction. If penalty is 6 years and 1 Regional Trial Courts
day and above
Abuse of discretion v. Grave abuse of discretion – If the case involve drugs Specially designated
So there is a difference between abuse of discretion and drugs court
grave abuse of discretion and that is whenever it is If the case involves a minor Specially designated
capricious and whimsical or no basis for the judgement and or violence against women family courts
then that is an example of grave abuse of discretion and and children
whenever the court acts with grave abuse of discretion it If it involves corporate law Specially designated
effectively divest itself of jurisdiction. So that, any or cybercrime corporate court
judgement it renders with grave abuse of discretion is
tantamount to no judgement at all. In Cebu, it is RTC Branch 11
is where the cybercrimes
That can be the subject of Rule 65, if it is an interlocutory are filed depending on the
order. If it is a final order or judgement, then you can subject matter.
always go to 45 as an appeal. But here, it was an order
issuing a mandatory injunction. 2. TERRITORY
GR, the court has jurisdiction over the territory where the
The RTC issued a mandatory injunction with no basis at all, crime is committed.
that is why the CA struck it down and the SC affirmed the
decision of the CA. 3. PERSON OF THE ACCUSED

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How do you acquire jurisdiction over the person of the

accused?
There are several aspects of looking into jurisdiction over the
person. Aspects: If military personnel or civillian – file it with
the military court or civillian court. But, GR, jurisdiction over
the person of the accused is whether the court has acquired
the jurisdiction.

Example: The accused has personally appeared in court and

participated. Meaning to say, he has recognized the jurisdiction
of the court. He participated in the arraignment, the trial and
not once had he objected on the jurisdiction over the court.
Then, we can say that the court has jurisdction over the
person.
Jurisdiction over the subject matter –
2 WAYS OF ACQUIRING JURISDICTION OF THE Jurisdiction over the subject matter is determined by the
ACCUSED allegations in the information or complaint.
1. Through his arrest
2. Voluntary appearance in court Example: Information says attempted murder, remember
attempted murder or in attempted stage, the person
It is either: commences the execution but does not perform all acts for
● through his arrest – kay ni tago man – so the court some causes or accidents other than his own spontaneous
issues the warrant of arrest and he gets arrested, desistance. He started committing the crime of murder, but
then BANG – court has jurisdiction over the person; was not successful and was not able to take a fatal wound so
or the person survives. Hence, attempted murder is filed. What if
● voluntarily appears in court – he has posted his during the trial what was proven was serious physical injuries
bail and then during the scheduled hearing he because the court said there was no intent to kill, the intent
appears and participates. Then we can say that the was merely to inflict injuries on the victim. The court will say
court has jurisdiction over the person of the accused. not attempted murder but serious physical injuries. Take note,
attempted murder is cognizable by the RTC, serious physical
UNDER CUSTODY OF THE LAW VS. JURISDICTION injuries are cognizable by the MTC.
OVER THE PERSON
Take Note: Was jurisdiction properly attained by the court?
● Under custody of the law –means you have been YES. Because it is not what crime was committed that
arrested or you have voluntarily submitted yourself to determines jurisdiction, it is what was alleged or what was filed
the law. Voluntary surrender. Then we can say that that determines jurisdiction.
you are under the custody of the law.
o Required for purposes of bail. So, even if the crime of serious physical injuries is not within
● Jurisdiction over the person of the accused – it the jurisdiction of the RTC, the RTC can properly rule that the
can either be through your arrest or your voluntary crime was serious physical injuries because it had jurisdiction
appearance in court. over the case at the start.
o Required for purposes of trial proceeding.
PRINCIPLE OF ADHERENCE OR CONTINUING
Under custody of the law but no jurisdiction over the person of JURISDICTION
the accused - And under the principle of adherence, or continuing
It is possible that you are already under the custody of the law jurisdiction, once the court acquired jurisdiction over the case
but you have not yet been or you are not yet under the it maintains to exercise or continues to exercise jurisdiction
jurisdiction of the court or it could be the other way around. over the case until the case is finished.

Under jurisdiction of the court but not under custody of the So, doesn’t matter what was the result, what matters is
law – that what was filed.
You are under the jurisdiction of the court but you are not yet
under the custody of the law. Wa ka madakpi, wa ka mu CRIMINAL PROCEDURE CRIMINAL LAW
surrender. But you have appeared in court because lets say it In Criminal Procedure, the In Criminal law, you will be
is a summary procedure case, so no warrant of arrest was rules applicable is the law at punished under the law
issued against you. These are two different concepts. the time of the filing not at which was effective at the
the commission at the time time the crime was
of the filing. committed.

Example: At the time of the Hence, it is the law at the

commission, the crime was time you commit the crime
cognizable by the MTC. But that governs and is

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at the time of the filing, the applicable to you which is

cases are now cognizable by the prospective nature of
the RTC. Hence, case should criminal law.
be filed at the RTC since it
must be at the time of the
filing of the case. The filing
of the case is part of
procedure.

What if there is a change in penalties in such a way

that it changes the jurisdiction?
A: What determines is the law effective at the time of the filing
of the case of the law in court. Not at the time of commission.
That is for the purposes of determining the imposable penalty.
As we learned in Criminal Law 2 – Libel is filed either
If for purposes of determining criminal liability? where it was first printed and publish or residence of
It is the law applicable or effective at the time of the the victim.
commission which shall govern. ● If government official – where he held office at the
time of the commission of the crime.

If he is a government official, where he held office at the time

of the commission of the crime. Kana rang tulo because if you
don’t make special rules for libel, then the complainant can file
the case in anywhere that libelous article was printed. So if it is
a newspaper of general circulation, a bisag-asa niya ma file,
and he can you use that to harass the victim. He is going to
file it in a very far away place so that the victim.

But in online libel, you cannot say or determine where it was

first printed and published kay diba theoretically if you post it,
as for example, in facebook, the moment you post,
theoretically it appears everywhere where the internet is
available and you can also say where it was first printed and
● If it is a train, aircraft, or vehicle – where the access, oy di mana mao giingon sa balaod wala man naghisgot
vehicle or the train might be passing several ang balaod ug access, it only mentions of publish. That option
jurisdictions although we do not have a train in Cebu, is not available in online libel, the only option is residence of
but anyway, let’s say a bus or an aircraft so the ports the victim or if you are a public official, where you held office
where the vehicle pass including the departure area
and arrival, you can file it in any of those jurisdictions. at the time where the crime was committed. So, special iya
rules.
TN: once you file it in one that court assumes jurisdiction with
the inclusion of all others. RA 9208 – ambot unsaon na nila there is extra-territorial
application. I don’t know how they will do that. Although there
Example: Aircraft from Cebu to Manila. The rule says anywhere was one case where the accused-husband went abroad and
the vehicle passed – including departure and arrival. Hence, lived with another woman abroad and stop giving financial aid
one can file either in the courts of Cebu or Manila. Once filed to the wife here in the Philippines. The court said while the act
in Cebu, then Cebu has jurisdiction to the exclusion of Manila. was technically committed outside of the PH, the effects, the
injury, the psychological injury resulted here in the Philippines.
The same goes with the vessel. Technically, not a case of extra-territorial application. SC said
ang damage naa man diri sa pilipinas, so we have jurisdiction
VEHICLE V. VESSEL over the case.
Vehicle must be a land vehicle while vessel here refers to a
marine vessel. That is why it talks about ports.

For vessel
● First Port of Entry – this is the first port it docks in the
course of its voyage. And all other jurisdiction were
the vessels passed.

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Fiscal: I don’t know when they will change this because fine
under the RPC has changed. Instead of light felony being P200
it is now– P40,000 thousand. Remember light felony where it is
punished by an imprisonment of 30 days and a fine of P200,
nausab naman P40,000 naman. As of to date, wa pako
kabantay na they have changed this. Hence:

● If penalty is a fine and it does not exceed P4,000 ->

MTCC

That is why if you have a dog unya makapaak and you don’t
help the victim of the dog bite with the medical expenses, the
fine is 25k, there is no imprisonment just a fine of 25K, it is
filed with the RTC because the maximum in the MTC is 4k.

CRIMINAL JURISDICTION OF COURTS (BP BLG 129 RA Criminal Negligence

7691) Example: damage to property, exclusive jurisdiction with MTC

TN
In the absence of an RTC judge, the MTC judge can hold a
hearing motion for bail.

Types of Jurisdictions:
1. Exclusive Original Jurisdiction
2. Concurrent Original Jurisdiction
3. Appellate jurisdiction
RTC is sometimes called as the courts of general
The jurisdiction of the courts by criminal procedure jurisdiction, while the MTC is called the First Level Courts.
RTC are sometimes called courts of general jurisdiction
EXCLUSIVE ORIGINAL JURISDICTION (EOJ) AND because the definition of the jurisdiction is that cases that are
CONCURRENT ORIGINAL JURISDICTION (COJ) not within the exclusive jurisdiction of any other court, then
Meaning to say two courts. RTC.

Example: ✔ They have appellate jurisdiction over the 1st level

The RTC and Sandiganbayan in certain cases have Concurrent courts.
✔ They have special jurisdiction as designated by the
Original Jurisdiction. You can file it in either court. Although, as Supreme Court and Special Penal Laws
I have said, once you filed it in one it is to the exclusion of all
other courts and the other one is appellate original jurisdiction. Example: Libel. Libel penalty is 6 years but katong
libel na dli online, libel na newspaper. Even though it
EXCLUSIVE ORIGINAL JURISDICTION (EOJ) is less than 6 years, libel by express provision of the
law, is filed with the RTC. AMBOT NGANO HAHA I
MTC has exclusive original jurisdiction over: don’t know the reason for that.
1. Ordinances
2. Offenses where the penalty of imprisonment does not
exceed 6 years SANDIGANBAYAN (PD 1606, RA 8249, RA 10660)
3. Fines This deals usually with government officials.
4. Criminal negligence
5. Bouncing checks
6. Summary Procedures

Ordinances
Example: curfew, ordinances in violation of COVID protocols,
any kind of ordinances imposed by the City. In Cebu, it is the
MTCC.

Fine
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The general rule is they are for high ranking officials. Im sure
there are some government officials here noh, mga budding
politicians nato – mga vice mayor, council, oh naa ta, so mga
LRO pa mo di pa mo mga HRO.

RA 10660
Law providing jurisdiction of the Sandiganbayan.
● General rule: If one is a High-ranking official – one is
a High-Ranking Official if salary grade is 27 or higher.
o Hence, if salary grade is SG 27 – case is
within the jurisdiction of the Sandiganbayan.
o Moreover, if case is in relation to the exercise
of your public functions (usually RA 3019 or
Anti-Graft Law).
● National and Local Office – that is why if it is a This was one of the new amendments under RA 10660 of the
barangay tanod or public school teacher – LRO – jurisdiction. They added these elements, that now for it to be
usually RTC. cognizable of the sandiganbayan, it must allege damage to
the government or the damage must exceed 1M.
Otherwise, RTC ka.

After nana sa effectivity of RA 10660. Before that, this was not

a requirement. Now, you have to establish damage to the
government exceeding 1 million before it can be with the
sandiganbayan.

Exception to the SG 27 or Higher

When the official is included with the officials from A-G

But these one here, sometimes confusing mao ni usahay

mugawas sa mga kaso. A-G are specifically mentioned without
regard to the SG. So, if you are part of A-G and your SG is
below 27 – It doesn’t matter! Jurisdiction is with the Other cases in which the Sandiganbayan has orginal
Sandignabayan because they are mentioned without stating jurisdiction – mandamus, prohibition, certiorari, habeas corpus,
the salary grade. Kay ingon man salary grade or higher injunctions, and all those ancillary writs in aid of its appellate
INCLUDING A-G. Bisag unsa pa na ila SG and if you are part of jurisdiction that may arise – which has to do with the case
these then Sandiganbayan imo kaso. recovery of ill gotten wealth of Marcoses.

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present him, like for example, ako ang prosecutor, and then I
present one witness in favor of the state. I put him in the
witness stand, when I ask him questions him being my
witness, I am doing direct examination.

We do away with that under direct summary procedure

because what I do is that instead of putting him in a witness
stand and asking him questions, I put him in the witness stand
and have him identify in an affidavit, the moment he identifies
the affidavit as his affidavit, that is submtted to the court, and
that becomes his direct testimony. The moment he identifies
the affidavit, deretso na ug cross.

Before summary procedure, I have to ask him all these

Whenever the RTC has exclusive original jurisdiction over a
questions and that’s going to take time, and then una pa maka
government official – violation of 3019, violation in relation to
cross ang defense. So, to save time no direct testimony just
his public functions, crime in relation to his public function, the
identifying the affidavit.
appeal is with the Sandiganbayan and not to the CA.
That is one basic difference in summary procedure.
Somehow ingon sila, that saves time.

And so, a lot of pleadings that is available in civil and criminal

procedures, as a rule, are not available in summary procedure.
You cannot file a motion to dismiss. Di na pwede. Kay
maglangaylangay ra na.

If you are a private individual charged as conspIrator with a

public official and jurisdiction is with the Sandiganbayan – then
Sandiganbayan sad ka. No special civil actions are allowed. So
with Sandiganbayan it is not the equivalent an RTC and CA
where you can file special civil action.

SUMMARY PROCEDURE (REVISED RULES OF SUMMARY

PROCEDURE OF 1991)
What are the cases subject to summary procedure (see
Basically, summary procedure as the term suggests it was
above).
meant facilitate the disposition of certain criminal cases para
These are the cases subject to summary procedure such as
madali.
traffic rules and regulations, rental law (ambot kung naa pay
mu file ani wala naman siguro), ordinances, criminal cases
where the penalty prescribed does not exceed 6 months or 1
thousand (ambot kung mao pa ba ghapon ni kay wala mani
giusab, as I said nana syay disconnect with all the other crimes
under the RPC where the minimum is already 40K and
bouncing checks).

One of the most salient feature of the summary procedure is

the doing away with the direct examination of a
witness. When a witness is presented, the parties who

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The moment the information is filed, the court will require –

ang court ana one thing it will do is that they will see if the
complaint or information is valid, if it is valid they will
require the accuse to submit his counter-affidavit.

No warrant of arrest is issued.

In regular procedure, those not covered by summary

procedure, the moment the court receives the records diba
preliminary procedure for purposes of issuing the warrant of
arrest oh issue una, before anything else the court will issue
the warrant. Here, no warrant is issued deretso order to submit
your counter. Unless, the court will stop it before 3rd phase see
photo. Muingon ang court pataka lang mo. DISMISS.
This is a basic diagram of how cases are filed.

You commenced it either by complaint or information.

Information
Kining information wala ni problema. This is the document that
you file in court charging a person with a crime.

Complaint
Kining complaint, daghan ni sya klase na complaint. There is a
complaint that a person files with the police – we can call it a
complaint. There is a complaint that the police files with the
public prosecuters office and there is also a complaint that a
party files with the court.
→ Complaint person files with the police
→ Complaint police files with public prosecutors
→ Comoplaint party files with court
Here we have distinction.
If you remember your Criminal law 2, the private offenses such
as seduction, abduction, adultery, concubinage – you file a
COMPLAINT
● Signed by the offended party
complaint in court for that, you don’t file an information. The ● Filed with court or any investigative agency
information is filed by a prosecutor, so ofcourse you see there
prosecutor so and so accuses mr so and so of the crime of Direct Filing
robbery committed as follows. Ill try to get a copy of an BTW another thing there might be some of you are living in
inormation. the provinces or in a city who does not have their own charter,
there is a slight difference there.
● Information – signed by the prosecutor
● Complaint – signed by the offended party
If you are not living in Cebu City, you might have heard or
Example: experience that a case is directly filed in court. Pwede na.
If it is adultery, then it must be the husband who affixes his
signature in the complaint that is filed in court. So it would be Example: A policeman. It does not have to go to a public
there I, so and so, the husband of, so and so, accuses her of prosecutor, under certain situations he can directly file the case
the crime of adultery and then narrate how the crime was in court. Ang pulis maoy mu pirma sa complaint. Not the
committed and then he signs and swears. So mura siya ug complaint filed by the private party but a complaint filed by an
affidavit where he signs and swears to the truthfulness of the officer of the law or a public official tasked with the
complaint and notarized by a notary public or a public enforcement of the law. It need not be a policeman but usually
prosecutor who notarizes his complaint. what happens in the provinces, pwede a policeman files a
complaint directly in court.
● Information – written accusation
● Complaint – sworn statement That does not happen here in Cebu city because by express
provision of law, if you are in Metro manila or in a highly
It is a sworn statement ang complaint. An information urbanized city which usually requires a charter, all criminal
is just a written accusation. The prosecutor who signs the cases must go thru the city prosecutor’s office. It is sometimes
information does not swear, it is not a sworn statement. called direct-filing. There is no direct filing in Cebu City.

In summary procedure, crime is committed and then file There is direct filing in cebu province. So, adtoa inyo MTC
complaint or information. courts pangutana unsa ng direct filing or pwede pud if you
want to experience it first hand, you commit a crime para
makiha ka ug direct filing sa pulis.
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This is allowed in summary and in fact, this is very important in

INFORMATION summary because you get to get rid of certain issues which is
Then here, you have an information signed by the prosecutor admitted by both parties, so you make a stipulation of facts
filed with the court. As I said, the complaint pwede filed with and if that fact is stipulated by both parties, then you don’t
the court or an investigating agency like the pulis, nbi, have to litigate on that particular fact, you go to other mode
ombudsman. OR mu plea bargain ka pwede pud.

Affidavit
Informations and complaints – city prosecutors office. But as I
Here, affidavit of the witness because this applies to both the
have said, this is where things also differ.
plaintiff the state and the accuse, if you are the party
presenting a witness, his affidavit constitutes his direct
So you have to go to the prosecuter’s office, generally file an
testimony.
information. Unless prosecuted de officio – seduction, adultery.
You still go to the prosecuters office but what you file is a Affiant subject to cross-examination
complaint.
After identifying the affidavit, deretso na cross examine, no
actual testimony by the witness or affiant. So, deretso sya
cross.
● If he does not make himself available for cross, then
his affidavit can be stricken off the record.

F: Murag equivalent to if you are testifying in regular

procedure, it would be stricken off the record because
you are not playing fair. You testified but you are not
allowing the accused to cross-examine you. Then you
have this rebuttal but rarely happens.

So, the order of trial is the plaintiff, the state and then after
that, defendant ug accused and then if there are new matters
raised by the accused, the state may present rebuttal to
counter the new matters raised by the accused. To answer to
Again, in summary procedure courts consider the information,
the rebuttal of the state, surrebuttalby the accused.
an affidavit in evidence, then issues that order, submit counter.
Pinaka taas might be 4 stages in trial. Evidence in chief of the
● If the accused is in custody or nadakpan sya,
the court will dismiss the case and order the release. state > evidence in chief of the accused > rebuttal >
● Otherwise, if the court does not dismiss the surrebutal. Wa na after. Syaro hurot na guro inyo ebidensya.
case, he will set the case for arraignment and issue
an order for the submission of kuan.

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As mentioned before no warrant of arrest is issued so the court

immediately says submit counter and on the basis of the
counter.

F: OK THIS IS WHAT HAPPENS

1. Court receives the information for summary

procedure. Iya basahon.
2. If by itself, it is not a valid complaint or information,
he can dismiss it outright or he can say that
there is probable cause so I will direct the accuse
to submit his counter-affidavit within 10 days.
3. After 10 days – court gets to decide based on the
information and the counter-affidavit or if I am not
going to dismiss this I will schedule this for
When a crime is committed, the state is always an injured
arraignment, and despite the counter-affidavit
party. In fact, all crimes, all prosecution of offenses that are
submitted by the accused there is still probable cause
brought before the court, should be in the name of the state.
that a crime was committed, so schedule ta
Not even a specific LGU.
arraignment
4. Pre-trial
In one case, thinking that it was city ordinance that was
5. Trial
violated, they brought the case in the name of the city (City of
6. No warrant is issued.
Manila). The SC said NO, it must be the ‘People of the
Philippines’. That is why criminal cases are entitled ‘People of
If no warrant is issued -> wala pud bail because the use of
the Philippines v. ...’.
the bail is temporary liberty in exchange for temporary
detention while the case is pending.
In some instances, not in all, there is also another offended
party. You have your private offended party. More commonly
Q: Can a warrant be issued?
known as the private complainant. It might be a bit misleading
YES. If the accused does not appear for arraignment. That is
because the complainant is always the state. It is more
the only time a warrant of arrest may be issued under
accurate to call him the private offended party. In fact, in some
summary proceedings. If the accuse unjustifably does not
decisions, the SC would refer to the private offended party as
appear for arraignment.
merely a witness, not even a party.

Beams v. Castillo
The SC emphasized that criminal cases should be brought
in the name of the state.

When you reach the CA and higher, it is the office of the

SolGen (OSG) that represents the state. Meaning to say, the
public prosecutor who handled the case at the trial court level,
whether it is the MTC or the RTC level, relinquishes his control
and supervision over the case. He hands it over to the OSG.

It is a bit different with the PAO. For example, here in Cebu

City, the Regional office of the PAO, they have a specific
division that handles cases in the CA while in the public
As I have said, a lot of prohibited pleadings to facilitate the prosecutor’s side, there is none. The city prosecutor will only
case. (See enumeration above) handle cases within the trial court level (MTC, RTC). Same
thing with the public prosecutors. Whenever the case is
** elevated to the CA, the public prosecutor’s office already has a
MODULE 2 hands-off policy because it is the OSG who handles cases at
PROSECUTION OF OFFENSES that stage.

The main purpose of Criminal Procedure as what we have

mentioned is that it is for the purpose of providing us with a
process in charging a person with a crime and if found guilty,
impose the proper penalty. It all starts with the commission of
an offense.

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Let’s say theft was committed in your house and you just
recently discovered there was a theft a week ago, you file a
case. Di na puyde ang warrantless arrest because you have not
caught him in the act of committing a crime. In these
proceedings, the purpose of the proceeding like a PI for
example, is to determine whether there was probable cause to
file a case in court against the respondent.

Here, the judge to whom the case is directly filed will first
determine whether he should proceed with the case or dismiss
it outright.
Here (middle figure), you file a case to the prosecutor’s office
even when it doesn’t have PI because you are in a chartered
city, the purpose is not necessarily probable cause. It is similar
to probable cause in that if the elements are there, you
When you institute a criminal action, you first have to
file it.
distinguish whether the case requires a preliminary
investigation or it doesn’t.
In an inquest proceeding what you should determine, the very
first is whether the arrest was valid. If the arrest is valid, it
● If it requires a preliminary investigation, there is a
usually follows that a crime was committed and this person
different rule.
should be charged in court. Those are the three main ways a
Reason: This is because as we have said, there are
criminal action can be instituted.
parts of the country where you can file the complaint
directly to the court. If you remember, we mentioned
the province yesterday. There are some cases that
can be filed directly with the MTC. The one that we
call direct filing. Usually it is the chief of police of that
municipality/ province. He does not have to go
through the provincial prosecutor’s office and then he
files the information directly by himself. That is very
relevant if you're in the province, not in the city. As
we mentioned, in the city, everything goes through
the public prosecutor’s office. Even if the case does
not require preliminary investigation, it still has to go
through the city prosecutor’s office although the
procedure is a little bit different as when a preliminary If you remember your criminal law, there is a prescriptive
investigation is required. period for crimes. Distinguish that from the prescriptive period
of penalties. The prescriptive period of crimes is when a crime
If a preliminary investigation is required, you file it with the prescribes the state loses the right to prosecute a person for
proper officer. Public prosecutor’s office. If it is not required that crime. As compared to prescription of penalties, the state
(direct filing), if it’s in the province or in a city which does not loses the right to make that person serve that sentence for
have its own charter, you can directly file it to the MTC. If you which he has been convicted. Here, if the state unnecessarily
are in Cebu City or in Metro Manila, you file it at the delays in instituting a criminal action against an accused or a
prosecutor’s office. person who is being accused of that crime, it loses that right.

The 3rd way of instituting a criminal action is through an When does that period start? While the rules for the RPC and
inquest proceeding. Inquest proceedings are conducted SPL are somehow different, because the RPC would say it is
for those cases where the person is arrested without a interrupted upon the filing of the complaint or information then
warrant. These first two, there is no warrant issued yet. under the SPL rules, it is interrupted upon the institution of
Unless it is governed by the rules of summary procedure, a judicial proceedings. There was a time where the interpretation
warrant will be issued only after a case is filed in court. was, for RPC, the period is interrupted when you file it with
Inquest- although no warrant is issued, a person is arrested let’s say the public prosecutor’s office, but for SPLs, the
because it is a valid warrantless arrest. prescriptive period is only interrupted once the case is filed in
court.
Another thing that would distinguish these three is that, in
these two (PI & Direct Filing), where you file in either the Jadewell v. Lidua
prosecutor’s office for a preliminary investigation, directly file it The SC said there should be no difference between the two.
with the MTC because it does not require PI, or you file it at Why should we discriminate against SPLs? It would be unfair
the prosecutor’s office even if it doesn't require PI because you for an SPL case to prescribe if let’s say the delay happens with
are in a chartered city, in all these three cases, the person is the public prosecutor’s office as compared to an RPC violation
not yet arrested. where even if it's delayed with the public prosecutor’s office,
the prescriptive period has already been interrupted. What's
the difference there? They said the SPL provision which says

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institution of judicial proceedings, this was a time where the

MTC judges were still authorized to conduct PI. Wala naman
na ron. Before, an MTC judge could conduct a PI, then that
was taken out by the SC. MTC judges no longer have that
function. They said that’s probably why the SPL law mentions
judicial proceedings.

The rule is uniform, whether it is the RPC or SPL, the filing of

the complaint or information with the public prosecutors office
or any proper officer, not just the court, interrupts the filing.
The only time that we count it from the time the case is filed in
court is in the case of ordinances. In those cases, filing with
As we’ve said before, it is the Fiscal’s discretion. If it is
the prosecutor’s office does not interrupt the prescriptive
discretionary, generally, you cannot go to court and file for the
period. It is the filing in the court that interrupts the
issuance of a petition for mandamus. You cannot force a
prescriptive period. Ordinances they prescribe in like 1 month,
prosecutor to file a case against a person if the evidence does
2months, so kailangan dalion nah, paspason, otherwise, it will
not warrant the same. As I said, there are exceptional cases
prescribe and the state loses its right to prosecute.
where the prosecutor completely disregards the evidence and
he now acts with grave abuse of discretion. Puyde na cya ma
mandamus. Those are exceptional cases according to the SC.
That is the exception to the general rule.

Guiao v. Figueroa
The SC said you can go to court, mandamus, force that
prosecutor to file a case against a particular accused, if the
evidence so warrants.
Bernabe v. Bolinas
Same thing. Prosecutor decided to file a case for homicide but
the SC said there was clearly treachery, why not file murder?
The SC as a sort of exception to the general rule, where there
We either initiate the proceeding with a complaint or an is grave abuse of discretion, you can actually force, by
information. In both cases, it must be in writing. There is no mandamus, the prosecutor to file a case either a specific case
oral/verbal complaint or information. The Plaintiff is always the from homicide to murder or agaisnt a specific accused who
people of the Philippines against all persons who appear to be was excluded
responsible. In once case, the prosecutor was considered to
have acted with grave abuse of discretion when the evidence
clearly showed that there were several or the prosecutor
shows to exclude a person who was clearly participating in the
crime. Normally, that is a function exclusive to the executive
branch. Choosing who gets filed in court or what to file in
court, who gets charged in court, that is an exclusive executive
function. Public prosecutor decides who to sue and with what
crime. General rule is that you cannot go to court to
enjoin that, to question that decision, the only instance
is that if the public prosecutor acts with grave abuse of
discretion.
Going back to the general rule, Mandamus will not lie. Since it
is a discretionary power, he has to be given that discretion.
What is the discretion? To file or not to file, what to file,
against whom to file. However, if the evidence shows that it is
to be filed, it must be filed against all who appear responsible.
That part, the prosecutor does not have discretion. There was
a case where the ombudsman said we are going to exclude
that person, although he is part of the conspiracy, he is willing
to testify against his fellow accused, and he is not the most
guilty. Why was that allowed? The rules of the Ombudsman
allowed them to exclude the accused at the inception. That is
not the case with the public prosecutor (pp). The public
City of Manila v. Rizal prosecutor does not have that option under the rules. What is
They thought that this is a city ordinance let us entitle the case the version of the pp? State witness. For you to be discharged
City of Manila v. Rizal. The SC said NO, it must be People of as a state witness, you have to be charged in court as an
the Philippines. accused and then it is during the proceedings that you apply or
the prosecutor applies to the court ‘ we want this person to be
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discharged as an accused’. Then you prove the requirements. enforcement officer, not the public official charged with the
Once the court is convinced that the requirements have been enforcement of the law violated, it is the public prosecutor.
complied with, it is the court who will decide that this Theft, robbery, murder, dangerous drugs, loose firearms, it is
particular accused is discharged and will now become a by information. Remember, it need not be sworn. It is not a
witness for the state. That is how it is done with the pp. At the sworn statement. You might be confused because if you’ve
ombudsman, they have that option at the start. The rules are seen an information, usually in the 2nd page, there is a
different, that’s why you also have different rulings. certification, and that is sworn. It is notarized, and has a
certification signed by the prosecutor who signed the
GR; Mandamus, prohibition, certiorari, will not lie against the information on page 1 and subscribed by a person authorized
function of a prosecutor in conducting a PI or instituting a to administer an oath. It is only the certification that is sworn.
criminal action. It does not include the information, the one on the 1st page.
Then you file it at the court.

Complaint is either the complaint you file at the police/ the pp/
filed in court because it is a private offense (adultery, Di gihapon ko kamao. One is subscribed, the other is not.
concubinage, seduction, abduction, acts of lasciviousness).
Here, in this particular part of Rule 111, this refers to the
complaint that is filed in court. It is a sworn written statement,
so it’s like an affidavit, accusing a person of an offense, signed
by the offended party (for private offenses). The peace officers
are public officials charged with the enforcement of the law
violated. You remember the direct filing in the provinces -
subscribed by any peace officer/other public official charged.

The authority of the prosecutor, what usually happens is that

you have an investigating prosecutor, he is the one who signs
it because he is the one who investigated the case, and then
you have a second signature. In some cases, there are three
but what is actually required are only 2. Naa lang uban ilang
pakapinan- investigator, reviewing officer, approving officer.

Under the rules, what is required is actually- investigator and

approving officer. The approving officer is, of course, the head
of office- prosecutor, public prosecutor, assistant ombudsman
for the Visayas.

If the prosecutor does not have authority to file a case, like for
example, the case is filed outside his jurisdiction because
prosecutors like judges have a specific territorial jurisdiction
within which they can exercise their office, if a city prosecutor
would file or sign an information which is to be filed in let’s say
Mandaue City, then that is a FATAL DEFECT. That information
can be QUASHED on the ground that the person who signed
must not have the authority to do so.
Information on the other hand, which is the more common
initiatory pleading which we file in court. It is an accusation in
writing. It is still in writing like a complaint. Charging a person
with an offense- same thing with a complaint. But, subscribed
by the prosecutor, not the offended party, not the law

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months, and 1 day. You need probable cause. Decide which

testimony should be believed and which witness to present in
court. These are all included in the power of direction and
control. As we said, there are exceptions- grave abuse of
discretion.

As a general rule, criminal actions are under the directions and

control of a public prosecutor. The ideal situation is that, it is
the prosecutor who handles the case from start to finish. But
because of the dual aspect of our criminal case where you
have a civil and criminal action going on at the same time,
where in a private prosecutor can participate handing over the
actual prosecution of the case as long as the private This is what I said when a private prosecutor may be
prosecutor remains under the control and supervision of the authorized in writing. In Valderrama, if the private prosecutor
public prosecutor, that is okay. In fact, the SC, through an files a pleading, the ideal situation is that he makes the public
amendment of the Rules of Court, extended that concept. prosecutor file the pleading for him. As we’ve said before,
They said that ‘if a private prosecutor can get an authority in sometimes because of the workload it is the private prosecutor
writing authorizing you to prosecute this case, then you can do who prepares the pleading but it is necessary he gets the
so even without the presence of the public prosecutor at the conformity. He signs the pleading but below that, he places ‘
trial’. with my conformity’. The public prosecutor has to affix his
signature.
Before that particular amendment while a private prosecutor
could actively handle the case, he needs the public prosecutor
present, so maglingkod to ang public prosecutor didto. Now, if
you can get an authority in writing, you can do that and just in
case, it might be because of the heavy workload of the pp.
They’re trying to get the schedule of both lawyers to coincide
with one another so they can be present at the same time.
Sometimes it might be a problem, so they said okay get that
authority in writing from the head of office of that particular
prosecution office. Then the private prosecutor can do that
until the end even without the presence of the public
prosecutor.
We’ve always said direct control and supervision of the public
An exception to the rule that the prosecution must be under
prosecutor, he gets to decide everything. What if the case is
the direction and control of the pp , again we go back to
already filed in court? There is another authority that comes in,
private offenses. In these 2 cases (adultery & concubinage;
the authority of the court. TOTAL CONTROL is NO longer with
seduction, abduction, and acts of lasciviousness), the control
the prosecutor.
technically is with the offended party because he/she decides
whether the case is filed in court. If you remember complaint,
Crespo v. Mogul
it is signed by the offended spouse or the offended party. If he
A complaint was filed with the public prosecutor. The public
does not sign it, it will not reach the court. Nothing gets filed in
prosecutor said there is probable cause, let’s file a case in
court. To that extent, they have control over the case.
court. When that decision of the public prosecutor came out,
the accused filed a petition for review with the DOJ. The public
prosecutor went to court. The accused elevated the decision of
the public prosecutor to his boss, the DOJ, seeking a reversal
of the decision of the pp to file a case in court. Take note, the
case was already filed in court. What happened to the petition
for review in the DOJ? Reversed. Now, the DOJ Sec. Came out
with an order to the pp ‘Mr. Prosecutor withdraw the
information from court’. The problem was the court denied the
motion. The court said ‘no, I will not allow the information to
be withdrawn because there is clearly probable cause to
charge the accused of the crime’. You now have a seeming
When we talk of direction and control, we talk of determining conflict on the part of the prosecutor. He filed the case in court
probable cause. This is for those cases where the imposable but his immediate boss, the DOJSec., told him to withdraw the
penalty is imprisonment exceeding or at least 4 years, 2 information. “The previous decision to file that, I have
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overruled you, withdraw that.” the court will not allow the cannot be returned, physical injuries, homicide, etc., then civil
information to be withdrawn. The SC said what should have damages. That’s as far as the interest of the private offended
been proper there was that the DOJ Sec. as much as possible party is concerned. Deportation proceedings are not a criminal
should not have entertained the petition for review, once the case. Therefore, there should be no private offended party.
case is filed in court. This is an old case. There should be no private prosecutor involved. The only
problem with deportation proceedings is that on the matter of
Now, under the rules, you can actually ask for the suspension, bail. Mag usab usab ang decision sa SC. In some cases, the
if it happens again, a case is filed in court but the accused court would say deportation proceedings are similar to criminal
actually elevates the issue to the DOJ. You can actually ask for actions so if we are going to give the right to bail to accused of
the suspension of the criminal proceedings for a period not a criminal action then there is no reason why we shouldn't give
exceeding 60 days while your petition for review at the DOJ is it subjects of a deportation proceeding. There are also cases
being resolved. Whether the DOJ resolves the issue within 60 where they say that this is a deportation proceeding, it is not a
days or not, then the criminal proceeding continues after 60 criminal case so the subject is not entitled to bail.
days.
A private offended party cannot intervene. Meaning to say-
How about the public prosecutor? Can we not say that he is cannot participate in the criminal case :
now caught in a sensitive position? His immediate boss is
telling him not to proceed. The court is saying “ I will not allow if he waives- he doesn’t want to get his cell phone back; he
you to withdraw the information. Proceed with prosecuting the does not want to be compensated for the loss, the medical
case.” The SC said, first and foremost, a pp is a lawyer, being expenses; he is not interested in civil damages
an officer of the court, he has no choice but to prosecute the
case. Although, the SC said to probably avoid an awkward If he reserves- meaning I don’t want to join the pp in that case
situation, if there is a private prosecutor available, hand it to because I want to file my own special civil action; I'm going to
him. So that, it won’t be as if there is insubordination to your get my own lawyer and file a civil case in a diff. Court. not
immediate boss. Basically, the SC said that is not even an issue necessarily a different court, but in a diff. Case.
because first and foremost, you are an officer of the court
before you are a prosecutor of the DOJ. Once the case is filed If he files ahead- he could not wait. Basically, reservation and
in court, it is the judge or the court which has power, control, instituting it ahead, are the same in the sense that the private
and supervision over the case. offended party chose to file a separate civil action. He wants a
proceeding separate from the criminal case because once a
criminal case is filed the civil action is deemed instituted.

The moment any pleading is filed with the CA, as we’ve said
before it is the OSG. It doesn’t matter whether the appeal was As a rule, only the accused can file an appeal. Why is that? If
perfected. The moment the proceedings are already with the it is the state that files an appeal, it presupposes that
CA, the public prosecutor loses authority. It is the OSG. the accused was acquitted. Once the accused is acquitted,
the general rule is if you file an appeal, that results in double
jeopardy. But, that is a general rule. Of course, there are
exceptions. The private offended party, in case of
acquittal, can file an appeal but only for the purpose of
questioning or raising the issue of civil liability to a
higher court. That is not double jeopardy. Di man cya ma
priso ana. There is no jeopardy involved in civil cases. In
the more exceptional cases, there is grave abuse of discretion
on the part of the court in acquitting the accused. Whether the
grave abuse of discretion results in lack of jurisdiction or
excess of jurisdiction, then you can go to court by Rule 65 but
that is very exceptional. Panagsa ra na e grant sa SC.
As far as the private offended party is concerned, the interest
If it is the prosecutor who moves for the dismissal of the case,
of a private offended party is limited to the civil damages. If
although you don’t see that normally, it is not a common sight
something is stolen, then he is only interested in the return of
where it is the prosecutor who moves for the dismissal. But,
the item stolen. If it cannot be recovered, then there may be
there is no prohibition there. It is the prosecutor who gets to
compensation for the loss of that item. If it’s something that
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control and supervise a criminal action. The SC has said the

prosecutor’s job primarily is not to convict but to see to it that
justice is done. So, if the prosecutor finds that the dismissal of
the case is proper, then there is nothing wrong with the
prosecutor filing or moving for the dismissal of the case.
When it is the prosecutor who moves for the dismissal of the
case, the private offended party cannot appeal because that
would be tantamount to the private offended party gaining
control. He is now disagreeing with the official who supposedly
has control and supervision over the case.

Liberal construction-
Adultery- it must be by complaint. You must have that
initiatory pleading where the husband says “ I husband so and
so am accusing my wife...”. Then narrate how the crime is
committed.

Pp v. Ilarde
The information for adultery was filed but the information itself
referred to the complaint. Murag nahimo ug integral nga
Annex. It was annexed to the information, the complaint which
was a sworn statement, and the husband positively and
Adultery and concubinage. You have to file it against both. In categorically said in the complaint “ I accuse my wife of the
the case of adultery, against the wife and her lover. In the case crime of adultery”. The SC said - liberal construction because
of concubinage, against the husband and his concubine. You the purpose of this rule for private offenses is we want to be
cannot choose one for the other. There are even decisions sure that the offended party wants to go to court and file a
where the court said the prosecutor cannot even take it upon case against this person. The reason here is because of the
himself to say ‘ there’s no evidence that the lover knew that nature of these crimes (seduction, abduction, acts of
the wife was married’. The rules say BOTH should be charged. lasciviousness), the victim might choose to suffer in silence.
It is for the court to decide whether the lover had knowledge They don’t want to go to a public trial. But, if it is clear that his
of the wife being married or not or the other way around, intention is to go to court and file a case, then it is allowed.
whether the concubine knew that the husband was married. Liberal construction of the rules. It clearly shows he wants to
file a case against his wife.
For seduction, abduction, and acts of lasciviousness-
Benga-oras v. Evangelista
The SC said if the victim of seduction who is a minor does not
file the case because she doesn’t want to since she took pity
on her uncle, the court said then the parents, in their absence,
the grandparents, in the absence of the grandparents, the
guardian, can file it for her because she is a minor.

If she is a minor or she is of age but mentally incapacitated,

puyde pud- parents, grandparents, guardian. But, if she is of
age, doesn’t suffer from any incapacity, and chooses not to file
a case for seduction, abduction, and acts of lasciviousness,
then that excludes everyone- the parents, grandparents,
Why do we need all these details in an information? You need
guardians, cannot enter the picture. It’s only for minors and
the name of the accused, the time, place, how the crime was
those who are incapacitated to give their consent.
committed, overt acts of the crime must be clearly narrated in
the information. Main purpose- to inform the accused of
A little known fact, if it is a case of libel/ defamation, but the
the charges against him. Why? This springs from the
libel/defamation imputes a private offense, if you shout or
basic right of presumption of innocence. It is presumed
accuse somebody in a newspaper or you are just neighbors
he does not know what he is charged with. He has to be
shouting against each other, and then you impute against that
informed properly, so that he can also properly defend himself.
person a private offense (adultery, concubinage), - kabit does
not necessarily mean concubinage because concubinage is a
Designation of the statute- not so important
very technical term. Adultery might be a more… term but
adultery is again, the woman is married- (continuation)
Acts or omissions complained of constituting the
Anytime a private offense is imputed in defamation or
offense- MOST IMPORTANT. Even if you put here
libel, then that is a private offense. It must be initiated
designation of the offense-murder, but what if in the narration
by a complaint. It cannot be initiated by information.
of the acts and the omission, there is no qualifying
circumstance, there is no treachery, evident premeditation etc,
then you can only be convicted, if you are convicted of
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homicide becasue that is what is described or narrated. This is

the most important part of the information to properly uprise
the accused of what he is charged with

Approximate date of commission of crime- It says approximate

because generally, the date and the time is not an element of
the offense.

Place where the offense was committed- Place is also

important but only insofar as to determine the jurisdiction of
the court. It is actually enough/ sufficient if you are just going
to put in the information “committed in Cebu Cityand within
Wrong spelling, is that fatal? No, the name of the accused is
the jurisdiction of the honorable court”. That is okay as long as
only important to identify him. Even if you get the name
place is not an element. If it is an election offense, there are
wrong, but you are actually referring to that person you saw
election offenses that should be committed at the polling
that you know committed the crime, because there is a
place. 50 meter from the polling place. In those exceptional
difference between the name of the accused and identity of
cases, then the specific place must be stated in the
the accused. The name of the accused is only important
information.
insofar as to identify the accused. That is why one way that
helps the court and the accused if he knows he is the one
being charged, is when there are any nicknames or other
appellations that he is known by. That should be included.
That’s why manggawas ng mga “a.k.a.”.

How about if his name is unknown? You’ve probably heard of

information that say ‘John Doe’. You can use that if the name is
not known, but he has been identified or at least, he can be
described with particularity. You just don’t know his name, but
he can now be identified. That is allowed. Although, as a
matter of practice, if you can specifically identify him, then
there is no reason you can’t get his name. For example, there
Test of Sufficiency- Can a person of reasonable intelligence was this one case that they were going to file against a
understand the charges? president of a particular corporation, but they did not know the
It enables the accused to suitably prepare for his defense. That name. They said we’re just going to file ‘John Doe’; Pp vs John
is the test of sufficiency of an information. Doe. If you know the corporation, then most likely, you are
able to get the name of the president by going to the records.
If it;s registered, you either go to SECor you go to the office of
the City Mayor where they get their business permits. What is
important is that he is identified. The name is secondary. In
fact, if you get the name wrong and during the trial it comes
out that his actual name is this and that, it's just a matter of
inserting the real name. The rules allow that. The rules actually
say you can use John Doe or Juan de la Cruz if the name is
unknown as long as he can be ascertained as to who exactly.

If the information is vague, is insufficient, what do you do? You

question that. Either you file a motion for a bill of
particulars saying ‘information is vague, when was this
committed?’ or you can go ahead and file a motion to quash
because the information does not conform with what is
required by the law. You either file a motion for a bill of
particulars or you file a motion to quash. You do all that
before arraignment. If you fail to do that before .
arraignment, you waive all the defects in the information. Wrong spelling or wrong name, that is not a reversible error.
Getting the name right helps you in your case, in your
prosecution. It helps the case go smoothly. As much as

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possible, you should get the name of the accused right. principals were arrested, he took the lumber and drove away in
a truck with the lumber. The SC said that an accessory is
someone who tries/ one way of being an accessory is you try
to conceal the body of the crime or the body of the evidence.
Here, there was nothing to conceal because the principals
were already arrested. He was not trying to conceal the
commission of the crime. The crime was already discovered.
What he actually did as narrated, is obstruction of justice.
While the heading/ the designation was violation of the
Forestry Act, he was actually convicted by the SC as principal
for the crime of obstruction of justice under a different law, PD
1829. He hid the items so he can frustrate the prosecution of
an offense which is one of the punishable acts under the
Pp v. Amodia
obstruction of justice law. Designation is not that important.
The court said ‘mistaken identity is not necessarily a mistake in
What is the most important? The narration of the acts and
the name’. The name of the accused is just once circumstance
omissions. Also, the qualifying, aggravating circumstances
to establish his identity/ who he is. Mistake in the name does
must be stated.
not necessarily mean that is not the person witnesses say that
committed the crime.

You have several cases where during the trial what was proven
was qualified rape because it was proven that the accused was
the father and the victim was the minor child. That’s qualified
rape, supposedly perpetua to death. It wasn’t stated in the
information. The information merely stated that the
accused...had carnal knowledge by force and intimidation with
the victim. The SC said, “much as we would want to, we
cannot convict the person with qualified rape only with simple
rape becuase the qualifying and aggravating circumstances
were not stated in the information”.

Not that important. It’s more important- the acts and

omissions as narrated in the information. Designation is usually
found at the top portion. The body of the information is the
narration of the acts and omissions constituting the offense.
It’s not the technical name but rather the narration. Even if the
designation is murder but the narration is one of homicide,
then that person is actually being charged with homicide. In
fact in one case, the person was charged as an accessory to
the violation of the Forestry Act.
If the language of the law itself is quite difficult to understand
Action- violation of the Forestry Act
for an ordinary person, then it is better to state it in a manner
Narration- he is being charged with being an accessory of
understandable- in simpler terms. One of the reasons why
violation of the Forestry Act. and then, ir proceeded to narrate
during the actual arraignment, the accused is actually asked by
how he committed the crime
the court if he understands English. If he doesn’t understand
english,he’ll be asked what dialect or language you are more
The SC said that the narration is not that of an accessory
comfortable with. Then the information is read to him in that
because what this person was actually charged with was the
dialect or language. Same thing with the information itself,
Forestry Act which was the illegal possession of lumber. You
although it is usually in english, that’s one of our official
illegally cut wood and turn it into lumber or timber. That is
languages. We have english, tagalog, and spanish as the
punished under PD 705. He was charged for putting the
official languages of the court. It must be stated where a
lumber in a truck. After its discovery, he drove away. After the
person of ordinary intelligence will know what is meant by the
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charges. It all has to do with informing the accused so he can reputation in that area. Intriguing against honor as a means to
properly prepare his defense. commit defamation.

Accused can only be convicted of what is charged in the

information. If it’s not included in the information, even if it's
proven during the trial, it can’t be considered. This is important
especially because before 2000, in Dec. 2000, there was a
major revision on the rules. Before 2000, the rule was if you
can prove a qualifying circumstance during the trial, but it was
not alleged in the information, for ex. You charge a person
with murder but you do not allege any of the qualifying
circumstances in the information. You don’t allege treachery,
evident premeditation. Let’s say the narration is actually just
that of homicide but it’s designated as murder. During the trial,
you were able to prove treachery. Under the old rules, before
2000, the rules said- qualifying circ. Not alleged in the
If you remember your complex crime, there are two types of
information, proven during the trial, we can consider that as a
complex crimes: complex crime proper (one offense as
generic aggravating circumstance. You’ll still be convicted of
means to commit the other) and you have your compound
homicide but maximum period. They changed that. A Lot of
crime (one act resulting into two or more grave or less grave
people got confused with that rule. Let’s change that. If you
felonies). When we talk of complex crimes, the
did not allege it in the information, it cannot be
component crimes, the constituent crimes, all must be
considered even when you establish it a million times
properly alleged in the information. If you only alleged
during the trial. At least, it’s simpler. If it ‘s not alleged, it
one and not the other, then utmost, if convicted, he can only
cannot be considered.
be convicted of what was properly alleged in the information.
The reverse of that rule is also true. If let’s say a complex
What if the crime was estafa through falsification, but what
crime, you can only be convicted on what appears in the
was properly alleged or actually alleged in the information was
information. What if the information does not allege a complex
just falsification? There were no allegations of estafa. If
crime but actually alleges several crimes? Di ba di mana puyde
convicted, he can only be convicted of falsification, even if the
because an information is supposed to only charge one
caption or the designation says estafa thru falsification.
offense. What if you are being charged with multiple offenses
in one information? What if you do not object? The SC said by
not objecting, the especially when you’ve gone through
arraignment, participated during the trials, so if you went
through arraignment, presumably you have been informed that
there were multiple charges against you. If you went through
trial, then we can presume that you were actively defending
yourself against multiple charges. The SC said you can be
convicted of as many charges that appear in the information.

Reminds me of the cases on automatic weapons. There is this

theory where if an automatic weapon is pointed in a single
direction, and let’s say it kills several people, that should be
It doesn't have to say it is a complex crime. What is required is considered a compound crime- a single act resulting in two or
that the elements of all these constituent crimes are stated in more grave or less grave offenses. But, if the accused changes
the information. The most common complex crime: estafa thru the direction of the automatic weapon while firing it, the
falsification. There was actually a very strange case decided decisions were that he should be liable for as many offenses as
by the SC, defamation thru intriguing against honor. The SC there are victims that are injured or killed by the automatic
said “yes, it’s possible but the facts of this case do not support weapon.
that charge”. Apparently, what the accused was being charged
with was that he planted evidence on the victim to ruin his

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My question there is that when you fire the automatic weapon,

it’s not like in the movies where you keep the trigger pressed
and you just spray the weapon around. When we see training
videos of people teaching how to shoot an automatic weapon,
you make short bursts. You probably hold it for a few seconds
then around 3-4 bullets come out and then another short
burst. Not just one single pull of the trigger. Lahi napud ang
rules ana diba?

What do we mean by negative allegations? Statements like not

being authorized by law, not being licensed by the state. Take
note, you have cases like dangerous drugs. There are
This is a
dangerous drugs that can actually be legally used if there is
relatively new ruling. Before, it was sufficient to say with
the proper authority. Let’s say nubain. Nubain is a dangerous
treachery, evident premeditation as far as murder was
drug but it’s actually medicine. It’s a drug used by doctors. If
concerned. Then there were several numerous convictions
you have a proper prescription for nubain, then it’s not illegal
affirmed by the SC- murder with treachery and evident
possession of a dangerous drug. If you have a firearm that is
premeditation. Lately, they said that it is not sufficient because
properly licensed, then you are not in possession of a loose
treachery is a conclusion of law. Treachery has a specific
firearm. Do you need to allege that in the information the
meaning. That is not an ultimate fact. That is not an overt act.
negative allegation- not authorized? In practice, there is
That is just a conclusion. That is not sufficient. Now, the
nothing wrong with alleging that even though it is not
court is saying you have to state in a brief and concise
required because it's better that you have a surplusage
manner why there is treachery or what acts did the
of allegations which doesn’t hurt the validity of the
accused commit that constitute treachery. That was their
information as compared to a lack of allegation which
first ruling. Ibutang na dira Mr. Prosecutor in your information,
might be material. Mas may manubra kaysa magkiuwang.
how was the crime committed with treachery. It’s not sufficient
to say with treachery because if you do that the best you can
In jurisprudence, if the negative allegation or the
get is a conviction for homicide. They said you have to
negative exception is so incorporated in the crime that
specifically describe the act. Later on, they came up with some
the crime cannot be defined without that negative
guidelines.
exception, it should be stated. Possession of a firearm
without a license. “Without a license” is so important that it
has to be stated. In fact, it has to be proven. The burden is
on the state to prove that negative allegation.

If the offense can be properly defined without that negative

allegation, then it’s okay. The examples in the decisions were
under the old law, under the opium law. The court said that
the state doesn’t keep a record of who is authorized to possess
opium. It’s the accused who has better access to the
prescription, to the exception. The state doesn’t have to prove,
the burden should be on the accused. The state doesn’t have
to allege that. Therefore, they do not have to prove that. That
can be used as a matter of defense for the accused that he NO. 1- the ideal thing is you state. It doesn't matter if your
actually has a prescription to use opium. I guess you can use information is very lengthy. You state the acts constituting
that for the dangerous drugs act. It is presumed that shabu treachery- attack from behind, using nighttime, using the
cannot be prescribed. You don’t have to state it without the darkness, person was not in a position to defend himself
authority of law. I don’t think a person can get a prescription because he was sleeping. That’s one option. What else can
from a doctor that he was authorized to use or possess shabu. you do?
although , as I said, as a matter of practice, I’ve looked at our
informations, that we put without authority of law even though
it is not required.

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Failure to allege that cannot be appreciated during the trial. But if it’s still pending with the RTC/ pending appeal, you can
The reverse is also true. If the accused does not object/ the avail of this decision.
accused does not avail any of the remedies available to him,
then he may be convicted. It can be appreciated against him.

How about in preparing the information? The SC said you can

just say with treachery in the information but you must attach
the resolution. If the resolution, supposedly the resolution
should have the explanation why this is a case of murder
because there is treachery. You mention the resolution in the
information and you attach the resolution. Ex. Annex- as
explained in the resolution. You put that in the information. At
the same time, you attach the resolution itself as an integral
part of the information.
I think this all started with Regala (2000). There were several
What are the remedies here that are cited by the court?
rulings where the court said that if it’s robbery with homicide
Remedies to either quash the warrant because the acts there
and there was more than one homicide, like robbery and 3
do not constitute an offense. Let’s say it’s murder with no
people got killed, there were decisions where they said that 1
specific allegation of treachery but non-bailable. Pangayu ug
homicide was enough to make this a special complex crime.
bail(?) because you are now saying treachery has not been
What about the other homicides? Aggravating circumstance-
alleged with any particularity so utmost this is only a case of
cruelty. Starting with Regala, that is NO LONGER THE RULE.
homicide- bailable. I should be allowed to post bail. If you
don’t do that and you go ahead with trial, consequently the
My problem is in 2019, although it was not categorical, the
same may be appreciated against you if proven during the
court seemed to imply (basaha ang Zafra case) that other
trial. You question it immediately before arraignment. On the
offenses committed during a robbery with homicide can be
part of the prosecutor, you attach the resolution explaining
considered as aggravating circumstances. Of course, this is not
why there is treachery.
controlling because that was not the issue in this case. It was
like a sidebar to the decision. Just for purposes of our studies
naa ni cya. But this is actually the rule now (Pp v. Regala). If
you have additional rapes and homicides, they can no longer
be considered aggravating because there is only robbery with
homicide. You have the 21 or so aggravating circumstances
that can be applied. Robbery with rape is not one of the
aggravating circumstances. They’re not to be considered.
Lisora sad oie nga you don’t consider these as heinous crimes.

These are more on administrative matters like prosecutors

must ensure compliance. Cases which have attained finality
before the promulgation of this decision will remain final.
Meaning to say, if you were convicted of murder on the simple
allegation of with treachery and that wqas done before this
case of Solar (Aug 2019), the conviction will remain.

The SC said we don’t consider them as aggravating

circumstances but they can be considered in the imposition of
civil liability. If there are several homicides, then there should
be several rewards of civil liability to the different heirs of

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those who were killed. They can still be considered for the
purposes of civil liability not for purposes of aggravating the
penalty.

The victim. Not really that important. In one case where there
were several counts of robbery, at that single night, the victim
went through several houses. The court said the information,
the several counts of robbery filed, must state the owner of
The place of commission is essential if it is an element of the the houses that were robbed during that series of robberies.
crime and also for purposes of determining the jurisdiction of Daghan man toh mga 5 counts siguro. You must state with
the court. Cebu City, Mandaue City, Cebu Province. particularity this information is for robbery of house A owned
by Mr. A, this one for house B owned by Mr. B. You would be
putting the accused in a disadvantageous position where he
doesn’t know what crime he is defending against. The
Prosecution can interchange its evidence and somehow
avoiding double jeopardy against the accused. The accused
can’t claim double jeopardy in that case because he doesn't
know what offense he is defending against in that particular
case. As a matter of practice, as far as Cebu City is concerned,
we always, as much as possible, put the name of the victim if
there is a private offended party, it is always placed in the
information.
Just like place, it is not that essential. The approximate time so
they can as close as possible because what if it’s a minor who
doesn’t have an exact idea of the date, the time, when that
was committed. In fact, I’ve heard of defense lawyers who
take advantage of the fact that you know time. For example,
let’s say it is a case of rape, what if the defense lawyer on
cross examination would say to the victim, “what time was this
committed?”. What if the victim would give an exact time like
8:30 in the evening? There are some lawyers who would take
advantage of that. They would say “Oh, Ms. victim, you were
looking at your watch while you are being raped or did you
look at the clock on the wall while you were being raped?”.
Although as I said, it’s not really that relevant but that's for Name is not that material, what is important again are the
purposes of trial. The rule is, time and place, as long as it is allegations. let’s say the designation is for estafa but what is
not an element to the offense, need not be cited with alleged in the information is theft. Same thing with the name
particularity in the information. Exceptions may be infanticide, of the offended party, that’s not fatal.
vicitm must be less than 3 days old. The date is important
because that would tell us how old the victim was at the time
of the killing. Same thing with election laws. It must be
committed during the election period. As a general rule, it is
sufficient if it is alleged as near as possible to the
actual date. Although, there have been cases where the SC
struck down the information as having a fatal defect if the
difference is a couple of years. The Information read 1964 but
the victim said that the crime actually occurred sometime in
1962. Layo ra sad kaayo ana ang SC. That is now fatal because
the difference is too far apart.

Name of the offended party is important in defamation. In

Libel and defamation, the victim must be identified. Direct
assault who can be victims? It must be a person of authority or

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agent of a person of authority. Who is that person in authority? of falsification. You’re not actually charging the person with
Multiple counts of robbery they must be named. more than one offense.

Complaint must charge only one offense. A complex crime If you have some mistakes in your information or complaint,
while seemingly constitutes several offenses is actually in the you can actually amend them/ change it. There are two types
eyes of law, one offense. It ‘s not really an exception. It is of amendments: one is formal and the other is substantial. If it
allowed. As much as possible it should just be one offense. is matters of form, maybe the date from Nov. 11-10 imo
usbon, maybe the spelling of the name, that is a matter of
form. Any amendment before arraignment can be done. You
don’t have to ask for leave of court. When you say leave of
court, you ask permission so by motion for leave to amend the
information. If it’s before arraignment, since the issues have
not been joined, there is no plea yet what you have is only an
accusation. The accused has not yet said guilty or not guilty.
Only when the accused says guilty or not guilty can we say the
issues have been joined and we can go to trial because we
now know the position of the parties. One party is saying you
committed this crime and the other party is saying I’m not
guilty. You can now proceed to trial. Before arraignment, the
It is fatal if it charges two violations. In one case, he was
issues have not yet been joined. We do not know how the trial
charged under the election law but for two distinct violations.
is going to go through. Before arraignment, you can actually
One was he was actively campaigning, he was a government
amend the information whether in form or substance, and you
official who was actively campaigning for a candidate. Second,
do not have to file a motion for leave to amend the
aside from that, he was also giving out campaign materials.
information.
The SC said these are two distinct offenses and they are in one
information, that is fatal. The information must be quashed.
After arraignment, however, you can only make formal
amendments if you file a motion. You can no longer make
If the accused does not object, he waives and he can now be
substantial amendments after arraignment. Why is that so?
convicted of as many crimes as there are charged in the
Substantial amendments have been defined by the SC
information.
as those changes in the charges that would
necessitate a change in the defense of the accused
whether it is for a higher penalty or requires a lesser
evidence. In some cases, not in all times, whether it now
involves a conspirator. There are cases where even when a
conspirator is added, the SC said that that is only a formal
amendment because that is not going to change the theory of
the defense.. It all has to do with the standard that “will
this change the defense of the accused?” If it does,
that is a substantial amendment. If it doesn’t, then that
is just a formal amendment.

Not really exceptions, because as what we’ve said, complex

crimes, in the eyes of the law, it’s just one offense. Same thing
with special complex crimes. They only provide one penalty-
Robbery with homicide, robbery with rape, rape with homicide.
Crimes that may be committed in various modes. Falsification,
there were 8 modes of committing them. If you remember the
modes, they can overlap against the other. Even if you mention
all the modes employed by the accused, that's still one offense

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After arraignment, only formal amendments are allowed and

all formal amendments must be with leave of court. It does not
affect the essence of the offense or cause any surprise on the
part of the accused. Basically, it doesn't change his defense.
Changing the name of the private offended party.

Murder to homicide
Pacoy v Cajigal
Although it was murdermurder ang caption, but the body of
information was actually for homicide. The change from
murder to homicide is formal. It’s not downgrading because
homicide is the actual charge. Murag nahagbong nga
Other examples of substantial amendments, the acts
typographical pero layo ra ang spelling. That’s not
constituting the crime, if you’re going to change that,
downgrading so you don’t have to give notice to the offended
jurisdiction of the court. Anything that isn’t substantial should
party because the body is actually homicide. Iya ra dyung
be considered as a formal amendment. That’s why we say, in
caption ang nahimong murder.
most cases, conspiracy, as long as it doesn’t change the theory
of the defense, is only a formal amendment.
If this was murder and the body was also murder andthe
prosecutor wants to donwgrade it to homicide, so he’s going to
chnage the information eliminating the qualifying
circumstances, balik ka sa motion, notice, ug leave of court.
Otherwise, if it’s like Pacoy v. Cajugal, that’s just a formal
amendment. You can do that by mere motion.

Before arraignment, you don't have to get permission from the

court except if it is prejudicial to the offended party. How
would it be prejudicial to the offended party? You downgrade
the nature of the offense. You are the prosecution, supposedly
you are on the same side as the private offended party. What if
the prosecutor says “i'm going to amend this. This shouldn't be
In some cases, the court said it doesn’t change the fact that he
a case of murder. This should only be a case of homicide/ this
will still have to defend himself that he has been accused of
shouldn’t be a case of qualified theft, this should only be a
killing Mr. A. If however, conspiracy is added and now the
case of simple theft.” In that particular case, although he
defenses of the accused are inconsistent with one another,
doesn’t need the permission of the court, he has to inform the
that’s a substantial amendment. The test is “if the
court as to inform the offended party. Downgrading, or
defendant is prejudiced”/ whether a defense in the
worse, excluding one of the several accused, the
original motion is no longer available or it would now
prosecutor must file a motion. The motion there is for
be easier for the prosecution because it now requires
the purpose of giving the offended party an
less evidence to convict the accused. Otherwise, the
opportunity to oppose the motion. The accused is not
amendment to include conspiracy is basically a formal
even included because most probably this type of amendment
amendment.
is favorable to the accused. Notice to the offended party, leave
of court- because that’s downgrading the offense/ excluding
one of the accused.

There is also what we call substitution. Amendment you make

changes to the original information. Substitution, you
actually withdraw the original information and you
substitute it with a different information. It is
necessarily one of substance. It is a different charge. You do
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substitution if you’re actually going to change the accusation. committed outside the Philippines, puyde diri e prosecute.
Instead of rape, you’re going to charge the person with Piracy can be prosecuted anywhere.
lascivious conduct under Sec. 5 (b) kay wala diay sexual
intercourse. Substitution nah. It can no longer be cured by
mere amendment.

There are two types of perjury. Remember to differentiate

perjury from false testimony. False testimony is when you
go to the witness stand in a judicial proceeding,
Place where you file the case, as we mentioned before, the whether civil or criminal, and you testify falsely. Mao
place where the crime was committed or any of the essential baya nah ato basic concept of perjury-lying on the witness
elements occurred. stand. That’s false testimony. Perjury is making a false
affidavit. You say after graduation I lost my ID bisag wala
gud because you just want a souvenir from your school. You
make a false affidavit, that is perjury. Or, you testify in a
preceding that is not judicial. You make an affirmation of an
oath.

Union Bank v. People

If you make a false affidavit, then the venue is where the
affidavit was signed and where it was notarized, or where you
took an oath that this affidavit is true and correct. Basically, it
is where you executed the affidavit. If it is perjury by means of
false testimony, then where the statement was given or where
the oath was taken.
What are the elements that we need to consider? Venue,
territorial jurisdiction- cannot be waived. You cannot waive
objections to that. You can raise that on appeal because the
venue has to do with jurisdiction in criminal cases. They are
tied. Venue in criminal cases is jurisdictional unlike in civil
cases where the parties can even decide where are we going
to litigate this case if ever we have to go to court. If it’s a civil
case and if by contract they say/ even if they are both
residents of Cebu City and they say for purposes of
convenience because we have our principal place of business
in Manila, if we're going to litigate adto tah sa Manila- okay na.
You can’t do that in criminal cases.

Bigamy is differnt from adultery and concubinage. Adultery and Rule is residence of the victim or the offended party at the
concubinage are private offenses while bigamy is a public time of the commission of the fraud or place of printing or first
offense. Bigamy is when you contract a subsequent marriage publication. Online- residence only. Government official- first
before you judicially or legally dissolve a previous marriage. printing and publication/ where he held office at the time of
The venue is where the subsequent marriage was celebrated. the commission of the crime.
In theft and robbery- place of taking. So, nangawat ka sa Cebu
City you run from the police and you got caught in Mandaue.
Cebu City ang jurisdiction. There are some people who say
theft is a continuing crime so wherever you are arrested in
possession of the item has jurisdiction- THAT’S WRONG. Theft,
carnapping, robbery, is not a continuing crime. It is where the
taking occurred. Falsification- where the document is actually
falsified. This is not perjury. There are types of perjury where
you are going to use a false statement. There is also a type of
perjury where you executed a false statement. Piracy- special
jurisdiction; any RTC in the Phils. In fact, even if it is

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These are the rules that we use whenever there is a private

offended party.

Online libel uso kaayo na sa Facebook. It gets seen by

someone then it gets passed to someone. Residence- that’s
the only venue that can be properly ascertained. There is no
place of first printing and publication in the internet. It’s
impossible. The SC said in the case of Bonifacio, it is
impossible to determine the first place of printing and As we all know, there is a dual aspect of most crimes, meaning
publication. Sa katoh Disini v. Sec. of Justice, there is no aiding to say there are 2 injured parties, the state and the individual.
and abetting in online libel so if you “like”, you can;t be And to save time, money and effort, whenever we institute a
considered as an accomplice. You can’t be aiding and abetting criminal case, the civil action meant to enforce the civil liability
in the crime of libel. Even when someone says “arturo is a of the accused is deemed instituted. When we say deemed
thief” and you say “yes”- that’s just the same as like. But what instituted, meaning to say, in one proceeding both criminal and
if somebody says “Arturo is a thief” and then you comment “he civil liability of the accused is litigated, and will be decided
is also a rapist” - lahi na nah. You cannot be held liable for upon the SC. Aside from lets say the accused gets convicted of
saying arturo is a thief but sa imo napud statement “he is a theft, aside from imposing the penalty for theft, the decision
rapist”. might also include an order for the return of the items stolen.
And if the item can no longer be returned then compensation
for the lost of that item and other related liabilities.

Deemed instituted but the law gives the private offended party
the option not to participate actively, so participating actively is
when you want something enforce because whether you are
interested in collecting compensation in the form of civil
liability, you will always participate in the criminal case because
you are a witness. To a certain degree you have to participate
in the criminal case. When we say actively participates, it
means that you want to collect from that proceeding. If you do
not want to actively participate in the criminal action, you can
In 9262, this is the one I said, his actions were technically
either:
committed in Singapore but the effects were felt here in the
1. Waived the civil liability
Philippines. The SC said in AAA v. BBB (daghan kaayo ni kaso
2. Reserve
nga ang title kay AAA BBB, you just distinguish them from the
3. File it ahead.
case number and dates) , psychological violence, the essential
requisite there is anguish. The anguish was felt here. This is
So, the last two, you have chosen to file a separate civil action
not even extraterritorial application. The SC said the crime the
either before the filing of the criminal case or after the filing of
anguish occurred in the Philippines. That is why, Philippine
the criminal case.
courts have jurisdiction over this crime.

We will take this up when we take up civil liability.

PROSECUTION OF THE CIVIL ACTION RULE 111

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If you remember Book 1, Article 100, a person who is

criminally liable is also civilly liable. Except those cases like
espionage, violation of neutrality, etc. these are cases where
there are no private offended parties.

Appeal as a general rule, the prosecution cannot appeal

because most likely if the prosecution is going to appeal it is to
appeal an acquittal and then for the state to file an appeal
would put the accuse in double jeopardy. So, as a general rule,
you cannot appeal as the state. However, there are exceptions
that:
1. if the decision of the court finding the accused not
When we say waiver, you meant to say you renounce. You guilty is tainted with grave abuse of discretion, then
renounce any right to collect. You renounce any right to that decision is tantamount to no decision at all and
enforce that civil liability and if you remember the state can can be reversed and no double jeopardy attaches.
also renounce in the form of pardon, amnesty, etc. In the 2. When the private offended party appeals the civil
same manner, the private offended party can also renounce his liability and only the civil liability.
right to enforce the civil liability. But these are interests that
are separate and exclusive so the state can only waive the When the private offended party appeals the civil
criminal liability, cannot interfere with the civil liability, in the liability and only the civil liability.
same manner, the private offended party cannot interfere with - Meaning to say, the accused is acquitted, so as a
the criminal liability of the accused even though he might be result of the acquittal the court also says no
interested. If you are a victim of a crime, you will always be pronouncement as to the civil liability. The private
interested in the person seeing to it that the guilty party is offended party here can file an appeal but only insofar
punished but for purposes of the law, your interest is limited as the civil liability is concerned. And that is allowed.
to the civil liability. So that is the extent of the waiver or In that case, the appeal would already be not in the
renounciation of rights. name of People of the Philippines but litigated on the
name of the private offended party.
SARMIENTO V. CA
In one case waiver can either be express or implied. When
we say express there is a writtenpleading filed before the
court where the private offended party expresses his
intention to not collect on the civil liability. To waive his
right on the civil liability. But when the accused pleads
guilty immediately upon arraignment and the private
prosecutor was not given any opportunity to prove civil
liability and since during the trial, plead guilty immediately For purposes of convenience, in a memorandum circular, the
and no evidence of civil liability. It is possible that the court SC said for violation of the bouncing check law, there can be
in pronouncing judgement will not pronounce anything on no separate civil action and no independent civil action. The
civil liability. civil action must be instituted together with the criminal action.
This has to do with the volume of the number of cases filed
Does that meant the civil liability was waived? regarding the bouncing checks law. There are too many and
No because there in that particular case we cannot say that can easily be multiplied by 2 if you allow independent civil
there was a waiver whether express or implied because the actions. Mu multiply by 3 na with regards to cases regarding
private offended party was not simply given the opportunity the same incident. What if there are several checks involve?
to announce that intention. Even if the private prosecutor Samot. No separate and independent civil action.
appeared during the arraignment but was not given the
opportunity to present evidence on the civil liability. The
court said that is not an implied waiver nor is it a
reservation. Well, by force of circumstances, the private
offended party there must be allowed to file a separate civil
action or in some cases the case might be remanded to the
RTC or trial court for the purpose of hearing on the
evidence of civil liability.

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file both. Ni file ra siya usa. I mean during the investigation,

probably the traffic report, you would have to come to a
conclusion which party should be charged in court for
reckless imprudence. So, if A was found to be at fault, then
the records could not justify A filing back a counter-charge
for reckless imprudence. So, the option was the accused in
the criminal case filed a civil case. The court said DI PWEDE
FORUM SHOPPING. The SC said NO that is not
forum-shopping. Look Mr. RTC judge review your basic law
on special civil actions or other casues of action. Eitherway
that is proper for an accused in a criminal case for reckless
imprudence to file a civil case for culpa aquilana. It does
not mean one is inconsistent with another because the
Now, the right of the state is with paramount interest. The law nature of actions are different. The quantum of evidence is
sees the rights of the state as more important as a right of a also different. In fact, culpa aquilana is one of the
single private offended party. This is illustrated in how the rules recognized independent civil actions.
apply, especially, if you file a separate civil action. If you file it
ahead of the criminal case, once it is filed, the separate civil
action is suspended and if you reserve, meaning to say the
criminal case is filed ahead, the separate civil action will only
be filed or can only be filed after the termination of the
criminal action. Another purpose here, aside from giving the
interest of the state more importance is that there would be no
conflicting decisions between the 2 proceedings.

Have you taken up the civil actions in Arts. 32, 33, 34 and
2176? These are the independent civil actions. Meaning to say,
they are not the separate civil actions that we are talking
about. We don’t have to reserve, waive, or file it ahead. You
can file this anytime you want and they proceed independent
of the criminal case. That is the term of independent civil
action.

CASUPANAN
When you say deemed instituted it only refers to the special
civil action. The one that is attached to crime. Civil liability
In a vehicular incident, as we have mentioned before especially ex-delicto is the only thing that is deemed instituted. The
in our crim 1, if you could still remember. It can be one independent civil actions are not. They can be filed
incident may result to several causes of action. Cause of independent of the criminal case.
action, meaning to say, a basis for filing a case. What is your
source for filing the case. Foundation. Crime under the RPC,
reckless imprudence, or quasi-delict under the NCC, culpa
aquiliana, breach of contract, in those cases which is applicable
to the same. You have contracts, these are sources of
obligation. That is why you have several causes of action – you
can file criminal or civil case or e ven at the same time. The
only prohibition is that you cannot collect more than once. If
you have been compensated for the damages in the criminal
action because you participated, you can no longer collect in a The private independent party has chosen to collect on the civil
special civil action, even in a civil action because that would liability. What if he feels that this is just repeating what ive
tantamount into profiting rather than being compensated. And done in the criminal case. He sees the wisdom in the law being
then the purpose of damages in civil liability is to compensate constituted so now he wants it consolidated in the criminal
not to profit. case. Yes that is allowed. Even if you have filed a separate civil
action, you can later on change your mind and have it
CASUPANAN V. LAROYA consolidated. But now, it is no longer ministerial on the part of
In this case, both parties in the vehicular accident filed the court to accept you as a private offended party actively
respective cases agains each other. One filed a criminal trying to enforce the civil liability. It now depends on the
case against the other party, the other party filed a civil discretion of the court on the consolidation of your civil case
case based on culpa aquillana. Wala na siya ni file ug would not unduly prejudice the orderly administration of
criminal case because probably the prosecutor there cannot justice. What if padung na human ang criminal case nya
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musud na nuon ka. You have to start from zero because the falsification, very possible in those cases, no criminal liability
civil liability was not litigated in the criminal case. The court but there may still be civil liability. Although I do not know why
there has justifiable grounds to deny. they would say ex delicto when clearly this civil liability should
not arise from a crime because there is no finding of the
As a general rule the consolidated cases will be with the court condition of the crime.
hearing or trying the criminal case. Again that is not a strict
rule that should be followed all the time.

Again, an independent civil action, there are two civil liabilities

that may arise under the commission of the crime. Under 100
We have discussed this in book 1. One way of extinguishing a of the RPC, civil liability ex delicto katong 75,000 homicide,
criminal action is its termination. That is the most basic way of 100K qualified rape, etc. There is a very nice case where the
extinguishing a penal action. It is finish. The court decides court tabulated the liabilities of most common crimes murder,
whether it is guilty or not guilty. Meaning to say, it is homicide, etc. I think it is people vs. hugueta. At the very
terminated or it ends. Now, when the decision is not guilty least get the table. Kopyaha to. I download ang kaso. Then get
instead of guilty, diba we said the rule is a person who is the table. It is nice guide, at least to know what are the
criminally liable is also civilly liable, it does not follow that a amounts if that is going to be asked in the Bar. Civil liability ex
person who is not criminally liable is also not civilly liable. delicto and independent civil actions.
Using the reverse rule is not necessarily true because even if
the court will say not guilty the court can still say not criminally
liable but civilly liable. This is not a crime but this is a debt that
has to be paid. This is not a crime because the accused was
able to interposed an exempting circumstance, insanity. But
there is civil liability. Not a crime because proof beyond
reasonable doubt is not established but clearly the accused
here committed acts that prejudiced the private offended party
causing damage. The damage might not be a crime by itself so
civil liability.

The only way that there is no civil liability where there is a

finding of no criminal liability if the act or omission from which
a civil liability might arise does not exists. There is a finding by
the court. Lets say estafa between A and B. If the court says
this is not estafa this is just breach of contract, then there can Read the cases carefully. It seems nga apil ang SC naglibog.
be civil liability. But what if the court says, this is not estafa in They have different rulings in different cases but the SC seems
fact, A and B have no contractual relation whatsoever. In that to make the same ruling but different findings.
particular case, because there can be no particular act or In Madeja vs. Caro. Independent civil action in Art 33 includes
omission the civil liability may arise, then the finding of no negligence and imprudence. But in Bonite, Art 33 is limited to
criminal liability also includes the finding of no civil liability. intentional acts.
For me, if you have a problem with these two, file under Art.
2176 – Culpa Aquiliana. If you have a problem as to how to
interpret physical injuries – whether it is limited to intentional
acts or it includes reckless imprudence. Physical injuries
resulting from reckless imprudence – would that be included in
Art. 33? Ingon si Madeja vs. Caro – Yes, ingon si Bonite – No.
Mao na maglibog ta. Ang akong problema pa jud, in one of
these case, they seem to be discussing intentional acts but the
case actually involves reckless imprudence resulting to
homicide, mao maglinog ta. Anyway, just read these cases, get
If the court declares that the liability of the accused is only civil an idea between the difference among the two and consider
or if the civil liability does not arise or is not base on crime, in Art. 2176 which I think is a safer course of action in the case
those case, which is very possible especially in estafa, of physical injuries. Because you don’t need to be intentional
or unintentional because culpa aquiliana man – quasi delict.
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They are included in the prohibition against double recovery. If

If you remember a prejudicial question which is a civil case you have recovered any civil liability arising from a crime and
filed ahead a criminal case and is of such a nature, because of then you file an independent civil action based on the same
its close relation to the issues and the parties in the criminal incident even if you say that this is a different cause of action,
case, that its determination or its resolution is determinative of you cannot get double compensation even if you use an
whether the criminal case can proceed or not. independent civil action.
Independent civil action – NOT a prejudicial question.
It is an independent civil action – it doesn’t matter
what happens to the criminal case, it will proceed on
its own. It doesn’t matter if you are acquitted, or if it says the
act from which the liability may arise.. di na siya, that is only
good for separate civil action. For the separate civil action - the
dependent civil action on the crime.
An independent civil action proceeds independent of
the criminal case.

Death before arraignment – wa na jud samot na! You

cannot get anything from the accused. Both criminal and civil
liabilities are extinguished. UNLESS it can be sourced from
some other source.
Death after arraignment but before final judgment –
extinguishes civil liability arising from the crime/delict.
Case of Bayotas – convicted of rape, repeated in Sayo but it
goes back to Bayotas because it is frequently discussed
because that is where Justice Regalado gave a comprehensive
explanation of the effect of the death of the accused pending
appeal.
As we’ve said, no separate civil action, all the more no
Pending appeal – after arraignment but before final judgment.
independent civil action in bouncing checks cases.
Iya man gi-appeal so no final judgment yet.
You have to litigate the civil liability in the criminal case. There
What is extinguished? Criminal liability of course and civil
is a filing fee. Once it is filed in court, it doesn’t go to the
liability directly arising and based solely. Because civil
normal process, where the OCC – the Office of the Clerk of
liability will always directly arise from a crime. But it need not
Court, murag siya na ang central sa MTCC, the one who raffles
be based solely. Like for example in estafa cases. The civil
the cases to the different branches- it’s not that once received
liability directly arises in the crime of estafa BUT it can be
by the OCC it immediately raffles in to the specific branch, No.
based form another sources like for example contract. Unlike in
After the court receives the information for bouncing checks
rape, the civil liability directly arises and is based solely on
law, they will notify the private offended party “It is now filed
delict. There is NO other source of obligation in rape. That is
with the court, you have to pay your filing fees first before it
why in Bayotas, when he died pending appeal – both the
gets raffled to a specific branch. I am not so sure what is the
criminal and civil liability were extinguished. UNLESS you can
effect if you don’t file your fees – whether it gets dismissed or
base it to some other source –contract, quasi-delict, law etc.,
it goes to sleep, becomes archive – mangutana ta.
then depending on the type of obligation. You may file the
claim against the estate or against representatives of
the accused – the civil liability survives the death of the
accused – after arraignment before final judgment. It
depends on the type of obligation that survives.

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commission.” It’s not proof of reasonable doubt – it is

probable cause. So you do not need an exhaustive display of
evidence. It is an inquiry conducted by the proper Gov’t
agency (ex. Ombudsman, Public prosecutor).

Since the quantum of evidence is preponderance of evidence,

it doesn’t mean that if there is a civil case and the accused in
the criminal case, what if that party wins the civil case. It
doesn’t mean that he can use that to defend himself in the
criminal case. It is not a bar to a criminal action because the
quantum of evidence is different.

“charge the person with an offense” is the primary purpose but

lately there has been more pronouncements that the purpose
of the PI is to prevent a harassment suit – an unnecessary suit
against a person which would entail time, effort, expense etc.
So as not to unnecessarily file a suit against a person that’s
why we have a PI.

Here, this is different from the previous slide. The previous

slide is not a prejudicial case because the issues are not
determinative of the criminal action.
General Rule: Civil case doesn’t affect a criminal action.
Exception: In a case of a prejudicial question. Because
of the third element: the resolution of the civil case
determines whether the criminal action may proceed or
not.
The classic example, what if you have a pending application on
the nullity of marriage and after the petition is filed, There, it is inquisitorial. Although as a rule, you give the
subsequently you are charged of bigamy. What if you can person charged “ respondent”, (in a PI you have the
prove that the subsequent marriage was not entered by you complainant and respondent, in a criminal case, you have a
voluntarily or you are forced. This was filed ahead. If the court plaintiff and accused) the opportunity to answer the
should say null and void and second marriage, petitioner was charges – imo manang subpoenahan. “Mr __ you have been
forced into the marriage. So there is no bigamy to speak of. accused by Mr. ___ of theft. Within 10 days, submit evidence
BUT NOT THE OTHER WAY AROUND! Like for example on your behalf. Submit your counter-affidavit and submit
trying to seek the nullity of the previous marriage and you affidavits of whoever witnesses that you have and other
voluntarily entered into a subsequent marriage. THIS IS NOT A evidence (it can be documentary evidence or object evidence).
PREJUDICIAL QUESTION. Whatever evidence that you feel can help you answer the
charges. That’s as far the proceedings will go. Parties are
PRELIMINARY INVESTIGATION – RULE 112 required to submit their evidence and based on the evidence
submitted, the investigating officer conducting the PI can
usually resolve the complaint whether to file it in court or to
dismiss itself. You do not have to have a hearing, or an actual
meeting of the parties during the PI. That is allowed but
optional – a clarificatory hearing MAY BE conducted. Just
imagine all the case fir PI should have a clarificatory hearing,
mura na sad kog korte, di mahuman. Too many case to
conduct hearings on.
Preliminary investigation is distinguished from inquest Case of Callo-Claridad v. Esteban
proceedings. The son was last seen together with respondent. He boarded
PI – “at large proceeding” because the inquest proceedings are the vehicle of the respondent plus nakit-an. Then after that he
sometimes referred to as “detained”. was seen, the body of the victim was found near the parking
Basically what you are looking for in a PI are the elements of area. The parents of the victim wanted the last person who
the crime present. “Has the specific crime been committed?” was last seen with the victim to be charged. The prosecutor
“Is there anyone that should be charged in court for its said NO probable cause to charge the person if that is your

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only evidence that he was last seen with the victim. There are In the same manner, if the preliminary investigation is denied
some testimonial evidence that might be circumstantial at best to a respondent but he does not object then it is deemed
but the SC said we cannot take over the function of the waived. It is deemed waived because it’s not one of the
prosecutor in trying to establish probable cause and the constitutional rights that has to be protected at all time.
prosecutor need not conduct an exhaustive trial just to
determine who should be charged in court. The prosecutor is Failure to invoke the right to a preliminary investigation, the
basically were saying that you need more evidence if you want period is 5 days. So it says, 5 days from the time he learns of
this particular person to be charged in court. I-remand nimo sa the filing. It is not 5 days from arraignment, before
investigative agency, because di ba in this stage, any dismissal arraignment, etc, it’s 5 days from the time he learns that a
during the PI will not result in double jeopardy kay wala pamay case, an information, or complaint is filed against him.
arraignment – you have not filed that in court.
Although in practice, most courts, even though it was filed
beyond the 5-day period as required by the Rules, there are
some courts that will allow the case. Ang mahitabo ana i-file sa
korte, and then when the accused learns of it, let’s say he post
bail, he goes there and then he says “motion for
reinvestigation, I was not given the opportunity of a
preliminary investigation at the pub prosecutor’s office” most
courts, well there are courts that are strict and if they find that
the 5-day period was violated they will deny the motion, but
Probable cause exists to charge a person with a there are also courts that will allow that, diba.
specific crime.
You need facts and circumstances. Mas maayo unta ang facts, So maingon na “for humanitarian reasons” “in the interest of
like eye witness accounts, documentary evidence, object substantial justice” “we will disregard the 5-day rule and we
evidence, direct evidence. If that is not present, you can base will or order the prosecutor to conduct a reinvestigation, and
it on circumstantial evidence. give the accused an opportunity to submit evidence on his
That a person of ordinary caution and prudence will result in behalf”. Usually the courts will give them 15-30 days.
an honest and strong suspicion that the person charged is
guilty of a crime. Sufficient ground to engender a If the days is punished of imprisonment and the penalty is 4yrs
well-founded belief. Specifically, in such general term so it 2months and below, preliminary investigation is not a matter of
can apply to different situations. That is purposely and right. This is prision correctional medium diba, 4 yrs 2 months
intentionally defined so it can stand the test of time, of 1 day? Because prision correctional max is 6yrs. Ah no, 4 yrs 2
different situations, etc. months and 1 day, that’s max. 4yrs 2 months and 1 day to
6yrs, max. If the crime is punishable of imprisonment of
prision correctional medium, then preliminary in not a matter
of right.

What happens there?

In that particular case, as we said before, if you’re in the
province, and the penalty is less than 4 yrs 2 months and 1
day, the police officer can immediately file the case in court via
a complaint.

Maingon diri, “filing” diba? Province sya na. But if you are in
the city, even if it’s 4 yrs 2 months and below, you have to file
It is a statutory right because it is provided only in the Rules of in to the prosecutor, but now the prosecutor here instead of
Court, you do not find that in the Constitution but it is a conducting that preliminary investigation, he doesn’t have to
substantive right. Meaning to say, if the respondent would issue a subpoena. He can, but he does not have to. He does
request for one and is denied of a PI, despite of request, that not have to conduct a preliminary investigation. He can
is a violation of due process. immediately resolve or “dispose” would be the proper term,
instead of resolve. Because when we say “resolve” diba,
So that it can apply to diff situations there’s a connotation that you’re hearing from both parties.
Maingon ka man ta “kavague, kageneral” that was purposely, When you “dispose” you can do that by just looking at the
intentionally defined so that it can i guess, test of time, test of complaint, you don’t have to issue any subpoena.
diff situation etc
You look at the complaint and then if it is sufficient, file a case.
It is a statutory right because it’s provided only in the Rules of If it’s not sufficient, dismiss the case. If you want things to be
Court, you do not find that in the constitution, but it is a clarified from the respondent, puydi pud. You can issue
substantive right. Meaning to say, if the respondent would subpoena and conduct some kind of investigation, not
request for 1 and it’s denied a preliminary investigation despite necessarily a preliminary investigation as required by the
that request, that is a violation of due process. courts. Because a preliminary investigation is not required
when the penalty is imprisonment of 4 yrs 2 months or below.
PI is only required for 4yrs 2 months and 1 day.
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that is the rule - 10 days. Within 10 days he must file his

Before 2005, MTC judges were included in the officers counter-affidavit and any other evidence in his behalf. If he
authorized to conduct a PI. Nitamtam na sila. So now you just doesn’t submit or he cannot be subpoenaed kay di sya
the state. Prosecutors, state prosecutors, and other officers as makit.an ky intago, or kun muadto didto ang process server sa
may be authorized by law like Ombudsman, investigators, iyang balay, he refuses to receive ingon “My lawyer said not to
COMELEC, legal officers nila, violations of the omnibus receive anything from you!” So we put that under the category
elections code and then the PCGG. Wa na ni sya. Wa na ang cannot subpoenaed. Di man sya duwaton, how can you start
judges. the 10 days?

There are some cases where the jurisdiction is exclusive like In that particular case, the investigator will conduct the PI
for example, do you remember katong salary grade 27 and based on the complaint filed only, nothing else to based it on.
above, high ranking officers? Exclusice na Ombudsman a Most likely, kung mailang pagkahan.ay ang complaint, most
magPI. Low ranking officers, concurrent with the prosecutors likely the case will be filed in court.
of the DOJ.
That’s why you have that concurrent authority. It’s always advisable that you receive the subpoena and then
consult a lawyer immediately. Just like kung naa kay problem
Going back here, the rules are actually, it doesn’t matter. They with your health, you go to a doctor. But I guess naa pa uban
don’t actually distinguish. So you have those decisions. But in they go to faith healer so muo pod ang uban, instead of going
practice, I think - I’m not so sure no, ato ni klaruhon, there’s a to a lawyer, they go to somebody who says “I know the law!”
memorandum between the DOJ and the Ombudsman that for
high ranking officials, diretso jud sa Ombudsman rather than When you file the complaint, let’s say you have been
the DOJ. Because if you got the decisions, there’s no burglarize, your house has been broken into, things have been
distinction as far as concurrent authority to conduct PI is taken from your house, etc so you filed a complaint. If you file
concerned. it, you can go to the police and the police will prepare your
documents or you can go to a lawyer and then the lawyer will
Basically that’s the procedure in a PI, what an investigating prepare your documents and then you file - it doesn’t really
officer does. Although the periods there, well yes they are matter who files it in our office as long as these requirements
there but wa kay na kasunod ang mga periods. Cities, I’ve that you see are present, addressed of the respondent which is
heard, have different procedures. Especially, like for example, very important because that’s how you inform him that an
in subpoena, like here in Cebu City when there’s a subpoena accusation has been filed against him that’s why there some
for the respondent, he is mailed. The subpoena and a copy of unscrupulous parties who intentionally give our office the
the complaint and all its annexes - subpoena + complaint, worng address so that when the processes server goes to the
annexes, they are all attached and they are sent to the wrong address, muingon sila didto “Wa mi kaila. We do not
accused. Free franking baya, although it’s registered but it’s know that person.” So the process server comes back and and
free franking so hinay-hinay diba. says “unknown at the given address” resolution would be,
*inaudible* naak 2 weeks tas reinvestigate no, 2 weeks was respondent cannot be subpoenaed. Although if found out to
kuan usual, but now it seems na murag it’s *inaudible*, it’s have been intentionally done, we have a form in our office that
taking longer than that. Even before the quarantine, murag you have to fill out and it is sworn, it is notarized. If you fill
hinay na jud ang post na. But anyway, that’s what we do. that out and you intentionally give a false info as to the
address, you can be charged with perjury. Better, give the
The respondent’s 10 days will start from the moment he actual address of the respondent, the affidavit, the sworn
receives the mail - the subpoena. There was a prosecutor in statement of the complainant narrating what crime was
Manila who came here and their procedure is different. What committed against him any of his witness and any evidence
they would do is that, what they would send is just subpoena that would support his complaint.
nga “a case has been filed against you, come to the office”. I
don’t think it states a period it’s just a subpoena to go to the The affidavit as a rule must subscribed by a prosecutor or a
office of the prosecutor and then it’s sent to the respondent. government official authorized to subscribe an affidavit. There
When the respondent arrives at the office, appears at the have been cases where the affidavit was subscribed by the
office of the prosecutor, adtoa sya hatagan. It’s a time when private lawyer assisting the complainant and there are some
he’s given a copy of the complaint and the annexes, and that’s prosecutors who would dismiss the complaint on that technical
when the 10 days start for the respondent. entry. There are other who would allow it especially if they
know the private lawyer notarizing the private document. But
Lahi-lahi but basically, the principle is the same. You send a as a rule, it should be the prosecutor or the government official
subpoena after receiving the case, the investigator either well, and then if you’re area there is none w/c is quite unusual ky
of course after receiving the case he can dismiss it outright - bisan asa man makakita kag prosecutor or government official
it’s totally baseless complaint. He can it outright OR he can then you can go to a notary pub but that’s only in the absence
subpoena the respondent given 10 days to answer. of prosecutor or government official.

He can dismiss, or issue subpoena. In 1 case, the complainant was aborad so he executed the SPA
and his complaint affidavit was actually sworn before a notary
Within 10 days from receipt of the subpoena, respondent shall, public outside of the Php didto sa New York so complaint
although diba mangita pa abogado, magprepare pa sa affidavit notary pub in New York and then mailed it to the php
documents, anyway kana 10 days is not strictly followed but
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and then the person who filed here in the php was authorized statement there if this were inquest, but it’s not inquest, this is
via SPA SC said sufficient to initiate a criminal action. PI.

In your folder, prosecution of offenses, I uploaded a copy of He forwards it to the city prosecutor. Actually what you have
the information. Ambot iyo ba matan.aw but anyway, naa didto here is a recommendation of the investigator. Since he has a
it’s the copy naa info of complaint. If you look at the info it chief, citio or provincial prosecutor, he sends his
consists of 2 pages the first page is the charge itself. You have recommendation to the chief who approves it.
the caption, the heading, the designation, the body of the info.
On page 2 you have the cert, it’s basically a sworn statement Provincial prosecutor -PP, city prosecutor, Ombudsman,
by the prosecutor signing the info that he conducted a ombudsman from the visayas shall act within 10 days.
preliminary investigation. SC said that is NOT essential to the Although as a practice, murag ang usual ana ky 15-30 days na
validity of the info so any defect in page 2 especially in the cert ky murag di man 10 days specially in Cebu City.
will not affect the validity of the info. For the info to be valid,
katong def diba, it is an accusation in writing charging a If the resolution for dismissal... what if the investigator decides
person w/ an offense subscribed by the proper officer like the to dismiss but the city prosecutor says “NO, there’s prob cause,
prosecutor. it should be filed”. He doesn’t have to return it back to the
investigator because the investigator has already made his
Of course the prosecutor there must have the necessary findings na should be dismissed, he can either the CP or PP or
authority so that’s why a prosecutor in Mandaue cannot sign Ombudsman prepare the resolution and info himself OR assign
an info that is meant to be filed in the courts of Cebu City. He it to some other prosecutor to prepare the info. That assigned
has no authority. Mandaue ra gud sya. prosecutor doesn’t have to conduct another PI ky human
naman ang PI diri. Unya nareview sa CP and the CP says “I do
This is the review of the resolution of the investigator. We are not agree with the investigator recommending the dismissal. I
still in the preliminary investigation stage. If the resolution, if decide that the case should be filed. I direct another
there’s a finding of prob cause, the prosecutor shall prepare prosecutor prepare the info I’ll assign you to it and you file it in
the resolution. Remember we spoke of resolution na koy court”. Depending on the imposable penalty that can be
disposition. Resolution is usually reserved for those cases reviewed either by the sec of justice or the regional prosecutor.
where you conducted the preliminary investigation and the
resolution is based on the evidence submitted by both parties Claraficatory hearing is optional. Because the word clearly says
or if 1 party did not submit based on the evidence submitted MAY. Clarificatory MAY be conducted. There are a lot of
by 1 party so both parties were given that opportunity. We call lawyers who would confuse clarificatory hearing as the
that resolution. If you did not if you’re the prosecutor and you preliminary investigation that’s why they would file a motion
did not subpoenaed the respondent because the penalty is that they were denied a preliminary investigation and then
lower than 4 yrs 2 months and 1 day then you just resolved on upon reading the body there actually the same that they were
the basis of the complaint itself nothing else, you usually call denied the clarificatory hearing.
that a disposition. Here you prepared a resolution and info at
the same time. There have been a lot of questions, specially Which is not reversible because that is optional. And then, in
the matinga “why is the resolution and the info on the same fact in a clarificatory hearing the parties cannot propound
date?” Di pa gud ang resolution w/c is still the decision to file a question. It is the investigating prosecutor because clarificatory
case, you have to have that approved before you know hearing is called for by the investigating prosecutor (IP)
because the rule say that you can prepare them at the same because he wants to be clarified about certain issues. He (IP)
time. calls the parties to his office and he asks the questions; it’s not
a hearing like in court where the parties will propound
Kung i-disapprove ang imong resolution then necessarily the questions to one another.
info will also included in the disapproval. But if the resolution is
approved then the he info can also be approved at the same
time, there’s nothing wrong with that. Because the rules allow
that. As I’ve said, certification, the one that we mentioned
before w.c is non-essential. Although it’s a sworn statement,
there some import to that particular statement but as i said it
doesn’t go any kind of defect would not go into the validity of
the info. The cert merely says that the investigating prosecutor
the one who signed the info personally examined the evidence
conducted a PI and he has reasonable ground to file charges
against the respondent. The respondent is given the
opportunity.

In an inquest proceeding, there is additional statement in the

cert where the cert says “respondent did not avail of his right
to request for a preliminary investigation”. Remember tong 1 to
5 imong i-wave kay nadakpan ka dayon so you have to wave
that. Wa man mangayo ug PI so there’s an additional So, if you want to question the… the last two slides diba? Let’s
go back. From the PP or CP or Ombudsman. CP, PP lang
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ta🡪Secretary of Justice, of course if you’re Ombudsman from 3) And that crime prescribes within 6 month
the Visayas, you go to Ombudsman Manila, ang imuhang 4) And you file it w/in thirty days from notice
review of the Resolution. That’s the GENERAL RULE.
But, under the DOJ, kaning ilang DOJ Circular. They made a And if these elements are not available because these
slight change in the rules. Not all appeals go to the Secretary elements are not availing you go to the CA. So, from the SOJ
of Justice immediately. you go to the CA under Rule 65.

For appeals cognizable by the MTC, any review of the

City/Provincial Prosecutor you first file it with the Regional
Prosecutor. Regional State na’ sa 2000 Rules, but there was a Rule 65 no other remedy available. Why? Because you can’t go
law passed recently, ilang gitangtang ang “State.” So now, it’s to Office of the President, because this is not punishable by
just Regional Prosecutor. I don’t know if there’s any kind of perpetua to death or this does not prescribe in 6 months etc.
significance there, but di na na’ siya RSP, RP na lang na’ siya. So, prohibited na ang going to the Office of the President, you
can go to CA under Rule 65. But the problem is, you have to
prove grave abuse of discretion amounting to lack or excess of
jurisdiction. Not just any reversible error; not just a
misapprehension of the facts. Unless, the misapprehension of
facts are so grave, whimsical, or capricious, ingon ang SC.
Then, unless you can prove that, Rule 65 nga petition will not
be successful.

If the resolution of the PP/CP or the Regional Prosecutor and

also if the penalty is within the jurisdiction of the RTC, from
the PP/CP prosecutor you can go immediately to the Sec of
Justice; you don’t have to go through the regional prosecutor.
That is only when the crime is cognizable by the MTC
(otherwise stated, the need to go through the Regional Pros is
needed only when the crime is cognizable by the MTC), but
whether it is MTC or RTC you can go to the Sec of Justice to
appeal the resolution of the PP/CP. Siya may pinka-head sa
mga prosecutor, the Secretary of Justice.
You raise that by Petition for Review. Then, from the Secretary
of Justice (SOJ), you go to either the Office of the President or
the CA. Duwa na’ kabuok imong options.
From the SOJ you can go to the Office of the President(OP)
with the requirements we just mentioned or you can go to the
CA under Rule 65.
Let us say, perpetua to death ang imposable penalty, it is going
to prescribe within 6 months. You have new and material
evidence, you go to the OP, still, pildi gyapon ka. You can go to
the CA, But under Rule 43. Appeal which is an appeal from a
quasi-judicial agency. This is an ordinary appeal. While, Rule
65 is a special civil action on certiorari.
I don’t know when you’re going to take up those Rules(41, 42,
43, 44, 45 and 65). Importante kaayo na’ sila especially in
remedial law. If you’ve been reading your material SC always
For purposes of complying with complying with the rule on
takes times to rule on the propriety of the mode of appeal that
exhaustion of adiminstrative remedies, if you chose SOJ then
was instituted by the parties whether that was the correct
the better course of action would be to----dayuna na lang na’
mode or that was an erroneous mode. Especially between 45
gikan sa SOJ, administrative remedy, you go to the Office of
and 65, you need to have a very good understanding of when
the President. But, for you to be entertained by the Office of
you can use 45 as compared to 65.
the President you need the following elements:
Rule 45 is an appeal. So when we are talking of appeal we are
1) Perpetua to death ang imposable penalty
talking of final orders in judgments. Rule 65 is a special civil
2) New and material issues
action for certiorari. It is when the order is not a final order or
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judgment and there is no other available mode to question the

judgment or the order, the only way to succeed in 65 is grave
abuse of discretion.
Mode of appeals, reversible or errors of judgments pwede ra,
in Rule 65 it must be errors of jurisdiction.

Prosecutor conducting the PI---probable cause. Judge for

determining whether warrant should be issued or
not---probable cause.
But, these two are different. So, you have judicial
determination of probable cause and you have executive
determination of probable cause.
Prosecutors are under the executive branch that’s why we call
it executive determination of probable cause—that is for
purposes of filing the case. Judicial determination is usually for
purposes of issuing the warrant or not.

Once you are finish with PI, you have filed the case in court.
So, what happens when the court receives the info?
Court w/in 10 days may either dismiss—muingon ang
korte,…this has been the subject of some discussion…
Can the Court actually dismiss a case? Is it not invading the
function of the Prosecutor to file a case? Muingon ang
prosecutor---probable cause, nya muingon ang judge---no
probable cause akong i-dismiss. But, the rules actually allow
the judge to make an outright dismissal. So, basically, they’re
So this
saying nga pwede. Especially, when the PI probably was not
case of Mendoza vs. People is a good case of distinguishing
properly conducted. So, dismissible ang case, outright. So,
both types of probable cause.
there is really no question as to whether the court can actually
dismiss it outright because that is allowed under the rules.
Or, what usually happens after Information is filed, the court
issues the warrant or if the accused is already in detention
because he was arrested without a warrant, this is under the
inquest proceeding, what is issued is not a warrant of arrest
kay nadakpan na man siya, but commitent order. Basically,
(iya ra gibasa ang sa table)
this is an order for the arresting officer that he can now bring
There are instances where the court will not issue the warrant
the accused to any detention facility. In our case here in Cebu
but will also not dismiss the case. Ambot asa na nga rules imo
City, dal’on nimo sa Cebu City Jail so that he will be in
makit’an. He will just instead, mura rag gitreat summary proc.
dentention there until either he can post bail or there is an
He won’t issue the warrant, he won’t dismiss the case, he
order of release.
won’t ask the prosecutor to submit add evidence, he just
In some certain cases, if the court is in doubt as to the
schedule it for arraignment and the accused is not required to
Resolution of the Prosecutor. He can order the prosecutor to
post bail. I do not know whther that’s authorized by the rules.
submit an additional evidence.
I don’t see that in the rules. Di ba ka na’ pwede sa residual
The only problem I have with this, especially here in Cebu
powers of the judge? But that very rare; I don’t see that all the
City-- in our practice, we usually forward everything that was
time.
submitted to us. So, there is no additional evidence to speak
of, as far as we are concerned. So, usually when I see that
order(to submit an additional evidence), ang ako’ ana, I am
presuming that the evidence that we had, that was presented
to our office, and which we forwarded to the court is not
sufficient to justify probable cause, in most cases this case
might probably be dismissed out rightly.
Then after this order to submit an additional evidence, he
resolves the issue within 30 days. This is where, also, in some
cases that defense counsel will file a motion for the
determination of probable cause. Counsel file that, and the
judge may be guided by that motion… will order the
prosecutor to submit additional evidence and then will resolve
everything w/in 30 days.

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Chicckkaaa ra ni siya diri…. Karon ang kusog run drugs ug

So, instead of a PI you conduct an inquest. Why? Because the illegal gambling diri Cebu City. Naminus na to ang theft and
accused is lawfully arrested w/out a warrant. robbery. Wa’ namay jeepney to rob. Wa na kaayoy mga
Now, if you have been arrested for homicide/possession of pedestrians to snatch cp. What you have a lot is people having
dangerous drugs. Normally, the penalties would entitle you to so much time in their hands, way mga trabaho, oh, Illegal
a PI. Diba? And, if you look at the Rules, the PI can take quite gambling: tongits, hantak, to get arrested w/out a warrant.
a lengthy time. 10 days to submit subpoena, 30 days to And then, your offense requires a PI because of the penalty.
resolve, etc. So, if you do not request for a PI and then the inquest officer
But remember, in a case where the accused is arrested w/out a has to go through an inquest, kani ra iyang question, it’s not
warrant, you have Article 125 to deal with, especially the Police probable cause, it’s the validity of the arrest. Well of course,
Officer. He has only so many hours to file the case in court. probably as a consequence of whether the arrest was valid or
Otherwise, siya na pud ang makiha. So, what do you do if not.
the accused is charged with a crime where preliminary Necessarily, that would go also into the matter whether there
investigation is a right? That is why the accused who is is probable cause. But actually…it’s actually limited to this,
under detention must request for the PI, if he wants to have validity of the arrest. An issue in an IP, not necessarily
one, and then, he signs a waiver that he’s not going to charge probable cause. And then, you can only be charged during the
the arresting officer with the violation of Article 125 because inquest for the offense for which you were arrested.
it’s going to take at least 15 days for the PI to be terminated. Diba remember? 1) Committing; 2) has just committed; 3)
And all the while, that 15 days, accused will be in detention. about to commit.
Here in Cebu, detention not in Cebu City Jail(CCJ) but in the So… 1) inflagrante; 2) hot pursuit; and 3) escapee. These are
precinct cell which is so much worse than Cebu City Jail. That the normal instances of a warrantless arrest.
is why a lot of people, labi na katong wa’ pa kasuway, they Because the are cases nuh? Like for example, person was
probably panicked upon learning that they are going to be arrested for qualified theft kay he is stealing from his employer
sent to Cebu City Jail because they don’t have the bail, they’ll and then the employer will include instances of theft that
request for this inquest. Not really for the purpose of happened 3 months ago, 4 months ago. So, muingon sya sa
submitting evidence, but just to delay the fact that they’re iyang affidavit, “he was caught stealing from the cash register.
going to CCJ. They say that probably, in 15 days my relatives So, he must be also the one who stole from me last month
outside can post bail for me. And then only to learn later on, where I lost 5k and the other month where I lost 20k. I-apil!”
that the conditions there in the jail cell is so much worse, Wa’ nay labot. Only for the crime that he was arrested for
especially before the quarantine and during the start of the w/out a warrant should he be charged under inquest. And, if
campaign against drugs of Pres. Duterts, our police precinct is there’s evidence of any other crime he committed at some
so full of arrested person. You could not even sleep. You have another time, then, regular. He should be charged under PI
to sleep standing up; there were other cases pwede ka procedure, not in inquest. Kay kaning inquest it’s only for those
magpungko/magsquat but you have to take turn. After 2 hrs. instances or the crimes that he was caught committing at that
bali na pud. time.
Mas maayo siguro ayaw na lang ani. Of course, a right to
request for PI is a substantive right. But, we always or I
discourage that if they only want to delay going to CCJ/they’re
looking for bail. I always tell them, that’s really not a problem
if bail is your only concern because whether you are in the
police precinct or CCJ you can always post bail. (that’s how it is
practiced here in Cebu city)
After the complaint or information is filed….again, the third
time that you can request for a PI, if one has been denied to
you. But this is limited to 5 days after learning of the filing of
the charges against you.

So how about inquest and it does not require PI? So, PI

is not available to the detained/arrested person so the inquest
officer there will immediately look into the validity of the
arrest. If the arrest is valid, he will file the case.
If the arrest is not valid there are 2 things that he (inquest
officer) can do:
1) He can dismiss the complaint, then order the release
of the accused; or
2) If he believes that the warrantless arrest was not
valid, but he believes that there are grounds to
So, this is not PI. This is inquest. This is for the purpose of charge the accused of the crime, he will order the
those people who are arrested without a warrant.

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release of the accused/respondent, but he will not HO V. PEOPLE

dismiss the case. The court came up of guidelines for judges in the issuance of a
warrant of arrest. BTW you might have heard of terms like
What does he do? He will issue an order that the case to bench warrant and an alias warrant.
should be filed as a regular complaint. Whether it requires a PI
or not it will be filed as a regular case. So, what happens there BENCH WARRANT VS. ALIAS WARRANT
is that he will be released, the case is not dismissed, he will be Bench warrant as the term suggest is issued from the bench.
issued a subpoena, requiring him to submit evidence in his Usually this warrant is issued during a hearing and usually it is
behalf w/in a period of 10days. issued by the judge whenever the accuse does not appear in
Inquest: court those instances where he is supposed to appear. Like for
● File; example, he was supposed to appear for identification by
● dismiss and release of the accused; or witnesses. He was supposed to appear for his testimony and if
● release the accused but issue subpoena to answer the he does not appear during those instances he was properly
charges w/in 10 days. notified and there seem not to be any justifiable reason why
he does not appear during that hearing then the court issues
Those are the possible options of a prosecutor conducting an
what we call a bench warrant. Sometimes it is also issued for
inquest.
those who have been declared in contempt of court, where the
Then of course, if he requests for a PI, so it can’t be
judge sits that is usually called the bench. Ofcourse, that
dismissed, it can’t be filed, he can’t be released. Why? You
separation between judge and the lawyer, we have what we
have 15 days. So, it’s 15 days. Probably you’ll have to give him
call there the bar and that is why we call it the bench and the
7 days submit counter affidavit. So I will have 7 days also to
bar. Bench – the judiciary, bar – the lawyers appearing in
resolve the case against you. Or, okay you have 10 days
court. Anyway, that is a bench warrant.
submit you counter affidavit. Then, after 5 days, 15 days total
I’ll resolve whether the case should be filed in court or the
An alias warrant is one issued after the first warrant is returned
case should be dismissed and you’ll be released in detention.
to the judge for failure to arrest the accuse. It does not mean
that the arrest warrant has expired because a warrant of arrest
ARREST RULE 113
does not expire, it is just that the rules require that the officer
to whom the warrant was handed for the arrest of the accused
that he has gone to the place of the person to be arrested is
supposed to be found. He has not been found there. Diligent
efforts etc. They have return it to report that he has not yet
been arrested and that is when the judge will re-issue an alias
warrant and this alias warrant will be in the nature of a
warrant of arrest has a an indefinite period of activity. Meaning
to say, it is effective until the accused is arrested.

Going back to HO vs. People

You have here a guidelines of what a judge should do for the
purpose of issuing a warrant.
1. There must be probable cause if you remember there
are two types of probable cause:
I think you already have a proper background on arrest after a. Executive by a prosecutor during a
taking up your bill of rights. Arrest is basically the taking of preliminary investigation for purposes of
person into custody so that he be bound to answer to the filing a case on court
commission of an offense. b. judicial by a judge for purposes of issuing a
warrant of arrest And the probable cause
Constitutional limitation is that arrest can only be done through must be reached by a judge independently.
a warrant of arrest unless you fall under those well-known
exceptions. Ofcourse, he (judge) has to refer to the records, like for
example, the records attach to the information maybe that
would require him in looking into the resolution of the
prosecutor as to why there is a finding of probable casue for
purposes of filing the case in court and then he looks and
studies the attachments, the complaint, the evidence, its
annexes, the affidavit if any. He has to make his own
independent judgement he cannot just adapt block stock and
barrel the findings of the prosecutor and then doesn’t make his
own independent finding. He doesn’t have to examine the
entire records, the moment that he is satisfied, he looks at
some of the records but he is already satisfied that there is
probable cause to issue the warrant then that is ok. As long as
it is an independent judgment. And independent finding by a
judge that a warrant should be issued.
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Ok. So judicial and executive, two types of probable cause. We

There must be a personal examination of the records. Unlike a are now looking at judicial probable cause in this particular
search warrant, where the judge must make a personal topic.
examination of the applicant and his witnesses – applicant for
the search warrant and the witnesses for the search warrant –
he has to make a personal examination of all the witnesses –
that is for a search warrant.

For a warrant of arrest, what is required is an examination of

the records. So, information attach the records by the
complainant the records of the accused if any, and then comes
up with his finding.

ALIMPOOS VS. CA
For a warrant that has been improperly issued in Alimpoos vs.
CA, SC said quash the warrant do not file a petition for the writ
of habeas corpus. If you remember your crim 2, there are also
other remedies but they are not direct remedies you can file a
criminal case against the officers responsible for the improperly
issued warrant or you can even file a case for perjury against
these people, so you have those alternatives but for the direct
attack on an improperly issued warrant, quash the warrant is
the remedy not habeas corpus.

Just a reminder, there if you remember there are certain

personalities exempt from arrests. The constitution says:
- Legislators – but ofcourse noh there is that limit as to
the type of penalty that they are exempt from.
- Heads of state – presidents and of the other countries
that is to preserve international committee and
international relations because the presumption is a
country will only send representatives that are truly
representatives of their country. Dili magpakauwaw.
So, law abiding people. We presume that another
country will send us representatives who are law
abiding people.
- Remember consuls are not politica but commercial Either there is an actual restraint on the person to be arrested
representativese. Technically, they are not included in or he voluntarily surrenders or submits to the authority of the
the exemption from arrest or immunity from arrest. other state officer. That is how an arrest is done. No
unnecessary violence or unnecessary force is to be used.

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The duties of an arresting officer. First and foremost, he must

inform the reason of the arrest. Now, this is a misconception
that he must be shown the warrant. If the warrant is with the
police officer, then yes it can be shown, there is nothing wrong
in showing him the warrant but if the police officer is not in
possession of a warrant of arrest but the fact that a warrant
has been issued for that person is known to the police officer
and he makes an arrest, then there is nothing wrong with the
arrest because what is required is that there is a warrant
issued. It is not mandatory that the arresting officer must have
a copy of the warrant at the time of the arrest. If the warrant
is available or is with the arresting officer, then it may be
Ganina diay nay gidakop sa pulis because probably not shown to the person arrested or the warrant is not with the
wearing a face mask and everything and when the mother arresting officer he is informed that you are going to be
arrive suko ang mother as mother usually are when there sons arrested because a warrant has been issued against you for
gidakop man iya anak, the mother attack the policeman with a this and this particular crime and then after that he is informed
motorcycle helmet so sila duha gidakop. What is funny is that of his constitutional rights – right to remain silent, right to a
the son was arrested for violation for the quarantine rules so counsel, the miranda rights. Uban pa muingon he has to be
most likely he will go to plaza para mag-exercise sa init. But Mirandized.
the mother was charge with direct assault so na priso ang
mama for direct assault. BTW, the police officer has to make it clear that the person is
being placed under arrest. That must be made clear that you
Anyway, we are talking about arresting officers by virtue of a are being arrested Mr. so and so. Its not that there is a warrant
warrant, so we have a warrant what do you do when you are issued against you, there must be that statement “I am placing
arresting the person. Either you deliver him to the nearest you under arrest by virtue of a warrant!”
police station if the court that issued the warrant is not open.
So nadakpan nmo gabii and the court is closed, you deliver After the arrest, the accused shall have the right to
him to the nearest police station or if the court is open bring communicate with his lawyer, relative or anyone he choses
him to court and the court will issue the warrant. would be most expedient, and by the most expedient means –
letter di na guro na expedient oy. Messenger siguro.
There are also compelling reasons that it is not practical to Somebody, a friend of his was with him when he was being
deliver him to the nearest police station because he might be arrested, can you go to my relatives or family tell them I have
placed in a police station where the arresting officer is been arrested. Ayaw lang ingna ako mama basin hapokon sko
assigned, it might be easier while they are waiting for the mama ug helmet duha nami. Can you imagine entering the
court who opened the warrant, and from there they’ll go to police station and attacking a policeman inside a police station
court. with a helmet. Grabi kalagot ana noh. Wa na sya kahadlok.

Remember this is already by virtue of a warrant. So, there is

already a case pending in court. That is why you either send SEARCH WARRANT VS. WARRANT OF ARREST
him to the nearest police station if courts are closed or sent
him to the court that issues the warrant. Unlike in a Search warrant valid only for 10 days. What do you mean
warrantless arrest where no cases has been filed so here in valid, that after the 10th day the search warrant already loses
cebu city you place him in your precinct the police station of any effectivity. It cannot be use anymore. If you want to make
the arresting officers, you prepare all the documentation and a search, you have to apply for another warrant. A search
then you file the case in the public prosecutors office so that it warrant. On the other hand, a warrant of arrest has no expiry
is the public prosecutor who files it in court, and the court period, it has an idefinite lifespan, what is required is the
instead of issuing a warrant, will issue an order of commitment reissuance the moment the first, there is usually the first
para he will directly post bail in which case he is release or if warrant a directive to the police officers that upon the expiry of
he cant post bail he goes to the cebu city jail. so many days and the person to be arrested has not yet been

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arrested then they should make a return, they should report Usually an in flagrante delicto arrest starts of some kind of tip,
back to the court. OK so. There is that directive there. It does diba inig basa ninyo sa kaso – police officers were tipped via
not mean that the warrant of arrest has become invalid. It reliable information, so there was an informant that this
merely means that the police officer has to keep on reporting person, etc. by itself ofcourse tips or reliable information are
to the court that a person has not yet been arrested. NOT OVERT ACTS.

If the police men are tipped that a person is carrying a

contraband inside a bus, and they intercept the bus and they
found the person in the bus sitting on the bus doing nothing,
they arrest him and even though they discovered contraband
in his possession – SC has repeatedly said that is not a valid in
flagrante delicto arrest because all you have is a tip. Person
was not doing anything when he was arrested. No overt act
was committed in his presence.

So the cases are quite uniformed that even if everything

started of with a tip, when the police officers arrive in the
place mentioned in the tip and this person described in the tip,
he does something else. He does an overt act making the
Warrantless arrest. You have learned this in constitutional law, arrest a valid warrant arrest. It must be not just based on a tip
there are three well-known exceptions to the rule that an or reliable information.
arrest can only be made by virtue of a warrant:
1. In flagrante delicto arrest – caught in the act of
committing the crime.
2. Hot pursuit – crime has just been committed.
Meaning to say, the crime was not committed in the
presence of the police officer.
3. Escapee – those who have escape from lawful
detention.

Here the element that is considered by the court is that it is it

really necessary that he should be arrested, is there the
element of urgency because otherwise if it is not urgent, then
get a warrant, whether it is a search warrant. Get a warrant if
it is not that urgent.

You might have a case where lets say its starts of with a tip
which is the most common situation where this warrantless
arrest occur. Lets say the police receives a call, a crime ahs
In flagrante there are two requisites: been committed in our neighborhood, somebody just stab
An overt act. Remember, he has just committed, actually someone I saw it. A stab B. OK. When the police arrive at the
committing, is about to commit – there must be an overt act of scene, they see a person lying on the ground, bleeding as if
any of these 3 that was committed in the presence of the stabbed. Remember they cannot see the actual stabbing
arresting officer. That is why it is in flagrante delicto. Caught in because if they saw the actual stabbing then in flagrante na.
the act. They did not see the actual stabbing. They just see a person
who appears to have been stabbed. Maybe because of there
experience or training they know when a person has been
stabbed, so you have now one circumstance which you can
now connect to the tip. What if the tip also described the
person who stabbed? He was wearing this when he left, he has
blood all over his shirt. So, when the police make their
investigation they saw a person matching the description – he
is carrying a knife, walking away from the scene, he has blood
of the person – you now have facts and circumstances or on
the part of the policemen he now has personal knowledge of
facts and circumstances. So the personal knowledge need not
be an overt act of the crime because that is not required in a
hot pursuit arrest. All you need are facts and circumstances

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that a crime has been committed and so this person is

probably the one who committed it. That is why he is about to
be arrested without a warrant. There really is no set rule on
how long would a hot pursuit be considered a valid hot pursuit.
That is why if you look at the affidavits of policemen, they
always make it to a point that they placed that such is a
continuous hot pursuit operation, wa jud kuno nihunong,
because noh if you stop in your search for the person to be
arrested then you can no longer prove the element of urgency.
Ah pwede diay ko mo hunong so u might as well you file a
complaint and get a warrant whether warrant of arrest or
search warrant.
It can be done at daytime or nighttime. When the arrest
is done by virtue of a warrant, the most ideal is that it
Hours pwede pa, there are some instances if days pwede pud.
should be done at daytime. If you have a compelling
Ive heard but I have not read a case where it was 1 month nya
reason or probably the only thing is that he is about to
gi sustain kuno gihapon sa SC.
abscond, about to leave the jurisdiction of the area etc, you
can probably justify even if you have a warrant, the arrest of
You might as well file a complaint and get a warrant, whether
this person at nighttime. It’s not a reversible error if you arrest
it is a warrant of arrest or a search warrant. Hours puyde pa.
him at nighttime even by virtue of a warrant.
There are some instances nga days pud. I’ve heard but I have
not read the case, someone told me where he read a case
Necessarily, because of the nature of a warrantless
where it was 1 month and gi sustain gihapon sa SC. ambot
arrest, it can be done at day or night. The time of arrest is
lng, I don’t know. That’s hearsay and uncorroborated. Wa pako
dependent on the circumstances of the commission of the
ka pangutana unsa toh nga case but more or less reliable man
crime. If the crime was committed at nighttime, a warrantless
ang nagsulti gud.
arrest should be done at nighttime.
Should the police officer fail to report to a judge when he is
The arrest by virtue of a warrant,because there is already a
required to do so as stated in the warrant of arrest, will this
warrant, there is already an address, etc. and
render the warrant invalid na? - question asked by our
everything, the police can properly for it, so ideally, it
classmate
should be done at daytime. As I said, it is not a
Fiscal’s ans.: As I said, it does not render the warrant
reversible error if it is done at nighttime if there is a
invalid. What would probably happen there is that the police
justifiable reason for the arrest of the accused at night even
officer might be in trouble for not following the directives
by virtue of a warrant.
under the order for the issuance of the warrant. They can still
be arrested because the warrant is not rendered ineffective or
invalid if the police officer fails to return it or report to the
judge.

If it is by virtue of a warrant, what does the policeman do? He

informs the cause of the arrest. He is going to say “ I am going
to arrest you and this is the reason why”/ “ you have been
charged with homicide and a warrant has been issued by a
proper court”. Ideally, it is better to have a copy of the
Actual belief or reasonable grounds of suspicion.
warrant. If you don’t have a copy of the warrant, inform
Please take note if it’s a suspicion, it is qualified by
him that a warrant has been issued. It is not necessary
reasonable grounds. We have numerous decisions where
if he runs away, kinsa man ang imong informan nga ni
mere suspicion is not enough. A person looking from side
dagan man, or if he resists like hapakon ka ug helmet, or if it
to side, touching his stomach, and they caught him. The SC
will imperil the arrest. He is in a position to run away if you
said NO, he is not doing an overt act. The police wanted to
have to do all that. Informing him of all these things and he is
arrest him under the in flagrante exception because he was
in a position to run away, dakpa sah nah.
acting suspicious.

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don’t think that’s a crime if you refuse. It’s not like failure to
render assistance. You remember your Book 2? Failure to
render assistance to a person who is in danger of dying found
in a remote area, lahi man nah. That person doesn’t seem/
can’t get any kind of assistance when you live there. That’s a
felony of omission, Art. 275. That issue actually came up last
week. The police asked our office for advice because they were
investigating a death that occurred in a motel. They were
informed by the staff of the hotel that the person who died
actually checked in to the motel with a female companion and
the female companion left the room. They went inside the
room the person left was already dead. Preliminary reports
If it is without a warrant/ warrantless arrest - in
indicate that the person died of natural causes. If the person
flagrante, hot pursuit, escapee, the officer merely has
died of natural causes, and the person with him left without
to inform him of his authority and cause of the arrest.
making a report or without informing anyone, is there any
Wla namay warrant to speak of. You merely say “ I am a police
crime? Doesn’t seem so. Remember your Silvestre Romana,
officer and my intention is to arrest you because you have
failure to report a crime is not a punishable act. Could it be a
been caught in the act of committing a crime”. And, you have
case of 275? Do you have evidence that when the person left,
the exceptions. Matter of reading na nah sa rules.
the person who died was in danger of dying or patay na pag
lakaw niya? Although we can probably make an argument, you
do not know, you’re not a doctor so you don’t know if he’s
dead or in danger of dying. But, that’s a motel, is that a
remote area? 2nd element of 275.

Here in Cebu, they usually call that CITAR- Citizen’s Arrest.

If you are a private person, intention to arrest “ I am going to
arrest you because you have just committed the crime of
murder”, inform him of the reason why you are going to arrest
him. Kanang snatcher and the snatcher operates in a place
that he is not known and then the victim shouts “Kawatan!”
We see in the movies policemen breaking into the buildings.
“Kawatan!” and the snatcher makes the mistake of running
These are the requirements. Police officer ONLY. you
through a group of mga local boys in that area, way lingaw.
cannot break into a building to make a citizen’s arrest.
Unsay tawag ana? Pre-kulata (hahahaha). They stop the
However, if you remember your trespass to dwelling, one of
snatcher especially if they do not know this person. Ilang
the absolutory causes of trespass to dwelling is either you have
dakpon but their arrest seems different because it seems to be
to break into a building or oa house or a dwelling in order to
scuffled with necessary violence. That’s usually what happens
save yourself from imminent danger, or to render assistance to
sa citizen’s arrest natoh diri. What we are studying is the legal
and lawful kind of citizen’s arrest. You can do that if you can someone inside. Does making a CITAR fall under that
safely effect the arrest. category? I don’t think so, but probably if someone is in
danger like someone is being choked inside the house and you
want to be the hero of the day and make a CITAR, puyde
masud nimo.

But, as a GENERAL RULE, the right to break into a

building to make an arrest is only reserved for officers.
Person to be arrested is in the building. You have to first
announce your authority. You have to try to enter without
breaking into the building. Knock. And once you’re inside gi
lockan ka unya ning dagan sa gawas ang dinakpan. You’re
locked inside. Then you can break out also. Sir do you still
have to announce your authority? Nakasud na baya ka diritso
How about a police officer who is alone and probably cannot naka break out.
effect the arrest on his own? He has to orally summon. Can
you refuse the police officer who summons you? Of We saw once an exercise by the SWAT. they have that
course. Is there any crime in refusing the police officer? battering ram but aside from the SWAT I guess, other police
Refusal to render assistance, ang police officer might be liable. elements have to use their feet or their shoulders to break into
But a private citizen who has been called by a police officer, I buildings.

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Under R.A. 7438, this is the law which punishes a policeman

when he violates the Miranda rights, you know, doesn’t
properly inform the accused of his rights under the Miranda
doctrine. These are additional provisions. Right to visit by any
member of the Philippine BAR at the request of the person
arrested or anyone acting on his behalf. Sometimes this leads
to some confusion. Like for example, you have a relative and
he is the one who contacts the lawyer but he doesn’t
communicate it to the person arrested, so when that lawyer
arrives, the person arrested would say “Wla man ko nagkuha
ug lawyer”. Probably just a case of miscommunication. It’s
actually allowed if that lawyer was not contacted by the
When a person is charged in court, he still has to go through
arrested person but by someone acting on his behalf like a
trial but since there has already been a preliminary finding that
relative.
this person most likely committed the crime, although it has
not been decided yet with finality, but there is a danger that
Right to visit and privately confer at any hour of the
this person would pose as a danger to society if he remains
day or night. Dili ra office hours. Probably saputon ang police
outside. For example, he just committed homicide, robbery,
mo abot ka didto ug 1-2, anyways, they’re supposed to be on
rape , and you’ve gone through the process of determining
duty. They’re not supposed to be sleeping.
probable cause. Now, there is actually some ground to deny
him certain freedoms supposedly protected by the
Constitution- freedom of liberty. Not totally deny him but
LIMIT. He has already been charged in court and what if he
would rather risk running away, hiding, until his crime
prescribes or the penalty prescribes from the authorities? The
concept of bail was formulated as a sort of balance
between the freedom of liberty and the safety of all
other citizens in society. There is already a preliminary
finding that he might have committed the crime. You now have
justifiable reasons to somehow limit his freedom of liberty.
That’s why bail is security given for the release of a person
who has been arrested, custody of the law, charged with an
offense but since there is no finding of guilt yet, no final
judgement of guilt, allow him liberty but at a certain
price-BAIL.

We might think that freedom is for sale because he can buy

that. We have that concept because the most common type of
bail is CASH. But, if you look at the history of bail, cash was
the last addition to all forms of bail. The original forms
of bail were actually surety and recognizance. Property
and cash came later on, when they felt that cash sometimes

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your place. What would be the consequence if the accused

doesn’t…I don’t really know what is the consequence on the
part of the person whom you are released on recognizance.
Although there is a new law on recognizance, ato kuno nang
tan-awon if there is some kind of consequence. Like for
example, usually what I’ve seen when this was practiced in
court usually it is the brgy captain, you are released on
recognizance. Usually it is done for light offenses, di pud ka
murelease on recognizance if homicide, murder, robbery.
Usually you do this, corporate surety… property bond, the
case number, the fact that this property – it would be
annotated on the title of the property. And then cash deposit,
you deposit actual cash in court.

Cash – since this is very important to us, as a society, sakit.

It’s painful if you lose your money just because you will not
appear on the required times you are supposed to appear
during the trial.
Pero kani jud ang original forms of bail, surety and
recognizance. It was actually a person other than the court,
other than the law enforcement authorities that would take the
place as the jailer of the accused. For all intents and purposes, Bail is a constitutional right. Except for those cases where
he was the jailer – the surety or the person to whom the the crime carries the penalty of perpetua, life imprisonment or
accused was released on recognizance. Meaning, there are death where evidence of guilt is strong.
some other person to whom the courts could go to and make TN: this “where evidence of guilt is strong” – this must
an accounting as to why the person did not appear. be invoked by the accused.
Dili ang cash, it was just a later on addition on the concept of The moment you are charged, let us say sale of drugs where
bail. the penalty is life imprisonment. The moment you are charged;
Technically, you put the surety in the shoes of the Gov’t. He the prosecutor will automatically recommend NO BAIL. The
can arrest the person if he would not appear in court. He can court will automatically order the issuance of warrant of arrest
arrest him without need of a warrant and bring him to court and will automatically say “no bail” because of the penalty. You
because it is his duty/obligation as the surety. Gihimo nana cannot argue this, that is set, it is provided for by law. There is
siyang coroporate surety now because that has been turned no getting around that, if it is murder – it is perpetua to death,
into a business nowadays. if selling drugs – that is life imprisonment. Di nana nimo
Corporate surety – You have now companies that do malalis.
business. Usually insurance companies, that they put up a The second element: guilt is strong. That is a matter that can
bond, like for ex. Person charged with homicide, bond is set up be litigated. That is on the part of the accused. You have to
–Ph120,000. So they are the ones who will put up the amount invoke that. You have to file an application to be allowed to
with the court in exchange for the accused paying them some post bail on the ground that evidence of guilt is not strong.
kind of premium. Usually it is set as a percent of the amount of Otherwise, you can lawfully be denied the right of bail.
bail. Last time I heard, surety companies were asking 30%,
you give me 30% of Php120,000 then I’ll put up that amount
in court. After the case is terminated, whether you get
acquitted or you are pronounced guilty, you don’t get back
your 30% - that’s my profit, that’s my business.
If the accused chose cash deposit, he came up with
Php120,000 himself, so at the termination of the trial, he gets
back his Php120,000. That is just security of his continued
appearance his court. If it’s a corporate surety, he doesn’t get
back his premium that he paid to the corporate surety. The
corporate surety, of course, they retain their bond. I am not so
sure on the details. I don’t know if they actually put up to In the military, if mucommit kag mutiny, that is basically coup
amount or if they have something of account from which the de etat under the articles of war, or conduct unbecoming…
court can attach or garnish in case of cancellation and court said in Comendador v. De Villa, it is not unconstitutional
forfeiture of the bond. to deny military personnel the right to bail. Remember, rules
Recognizance is usually based on trust. on the military are subject to a different type of law. The
Either somebody trusted in your locality is appointed by the nature of being in the military, the standard of discipline is
court as some kind of surety for you. Since they respect this different. As long as that denial is applied to everyone in the
person, his word of honor that the accused will appear during military, it is not unconstitutional. They are at a different
the required times that he is supposed to appear in court. For classification which is a valid classification. So denial of bail is
light offenses, you can be released on your own recognizance. not unconstitutional.
For other offenses, you can be released under the
recognizance of some other person ex. maybe a brgy official in
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In one case, Hongkong had actually charged a particular

person with, it’s not actually a similar crime here in the
Philippines, but it seemed like he was committing some kind of
Bail is available the moment that person is in the
fraud in Hongkong. So criminal cases were filed against him
custody of the law.
and warrants of arrest were issued against him. Ningbalik diris
Remember, custody of the law doesn’t necessarily mean that
Pilipinas, Pilipino man. So the Hongkong gov’t filed an
a case has been filed. Well of course, in those cases that a
extradition proceeding against this person. First of all,
warrant of arrest has been issued, most likely a case has
Hongkong govt applied for a provisional warrant of arrest,
already been filed. But remember you may have a warrantless
gidakop, and then after he was arrested, because Philippine
arrest, so even if a case has not been filed but that person is in
courts granted that motion for provisional arrest, after the
the custody of the law, then bail should be made available.
provisional arrest, Hongkong filed an extradition proceeding so
That is why, it is emphasized in the rules that “even when no
that he can be extradited back to Hongkong. While that
charges have been filed in court”.
proceeding was pending, the arrested person applied for bail.
The SC said, if we are going to allow bail for deportation
proceedings, then they cited 2 cases, we should allow that in
extradition proceedings.
But here is the problem, I don’t know if it is not a problem…

Under the new rules, posting of bail is NOT tantamount to

a waiver of your objections over the jurisdiction of the
court over your person. Unlike other reliefs you are going to
ask, if you are going to file a motion seeking other reliefs, then
basically the SC has said that that is a waiver as to the issue of
whether the court has jurisdiction over your person. However,
To simplify things, the general rule: deportation when you post bail, it seems that you are asking for a relief, it
proceeding is not a criminal proceeding. does not necessarily mean that you have waived your right to
So, technically, bail is not available. But if you go back to the objections over the jurisdiction of the court.
Hongkong case, where it mentioned 2 deportation cases were Here in this particular case, the SC has made a distinction that
bail was allowed. You find that those rulings were sort of an the motion to fix bail is NOT an application to post bail.
exception to the general rule cited bin the De Castro case. The accused here actually filed an Omnibus Motion (I’m going
In those deportation proceedings where bail was allowed, the to put everything for my grounds here). It is actually a motion
SC said that these people are not charged with any crime, they to quash the warrant and to fix the bail. The SC said, that is
are only deported. Even if they are charged, they are not yet not an application for bail. So the SC need not conduct a
found guilty of any crime which might pose a danger to summary hearing. What is important: application to post
society. So there is no reason why bail should not be granted bail – that presupposes that you are being charged
to them. In those cases, the SC said, deportation proceedings with a non-bailable offense. If it is a bailable offense,
have a character similar to a criminal case. Essentially, you are you do not need to file an application to post bail
deprived of your liberty, i-deport baya ka. There is that nature because bail is a constitutional right. Bail is
that it is similar to a criminal case. That is why those 2 cases recommended, bail is approved by the court, then you post the
mentioned in the Hongkong case, they said deportation, bail is amount that is being provided for by the court. So when you
allowed so why not extend that in the extradition proceedings. apply for bail, that presupposes that bail is not a right. You are
So they might fall in the exception to the general rule. Anaon facing a non-bailable offense: murder, rape, robbery. The
nalang nato because there is no going around that you have distinction is important because if it not an application for bail,
conflicting decisions. Klaruha lag basa then make a it is just a motion, so the court need not conduct a hearing.
comparative study: the general rule and the exceptions. Because in an application of bail for non-bailable
offenses, it is mandatory for the court to conduct a
summary hearing. To give the prosecution the
opportunity to prove that evidence if guilt is strong. You
are now invoking the exception to the rule that even if I am
charged with something punished with perpetua etc., I submit
that the evidence of guilt is not strong. So under the rules, the
court is mandated to conduct a summary hearing and

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prosecution is given the opportunity to prove that evidence of the accused who has posted bail and under the
guilt is strong. contract should be enforced at all stages until
So, if it is an application for bail, there must be a hearing. If it promulgation. I think that is an administrative matter
is just a motion, a hearing need not be conducted. Court can that should be taken by the court and the surety
just refer to whatever motion/pleading that the parties are company.
filing to rule on the motion. 3. Another condition of bail is that the accused shall
appear in court whenever required. Under the rules,
an accused’ presence is mandatory during
arraignment and identification, to be identified by
witnesses. Otherwise, his right to be present because
it’s a right, he can either use it or invoke so he can be
present at all stages or he can also choose not to be
present because it’s his right. The moment he said
I’m not going to attend the hearing, you can have
your trial in absentia. That is if it is shown that the
accused has intentionally chosen not to appear. If his
There are also instances under the rules of court that bail may
absence is because of some other reason and he
be required even if you are not the accused – you have not
really wanted to appear, you cannot proceed with trial
been arrested, you are not in the custody of law, you are just
w/out the presence of the accused because primarily
the witness. But it seems nga somebody has filed a motion
it’s his right to be present at all stages.
that this witness is not going to appear, he is not willing to
appear etc. He is going to leave the jurisdiction of the court,
4. Bondsman, like if you’re a corporate surety,
etc. So a witness may be required to post bail. Otherwise,
recognizance, you surrender the accused for
what would be the consequence if you don’t post bail: You can
execution of judgment. You can use whatever force
be held under the custody of the law, ikaw witness prisohon
which is necessary and reasonable to get custody of
ka. Paita.
the accused and bring him to court. As a bondsman
You have numerous instances under the rules of court that bail
you are put in the shoes of the jailer, the government.
may be required for witnesses. Although I haven’t heard of
courts issuing one.

These are the conditions.

1. Upon approval by the court, it becomes effective. Can you add conditions?
2. Remain in force at all stages until promulgation - Ex. GR: No. These conditions are supposedly exclusive.
after conviction with the RTC, the offense is not In one case the condition is, “you have to go to arraignment
punishable by life imprisonment, death, perpertua, before I will approve the bond.” SC said, that is not a valid
even then bail is no longer a matter of right, it condition. That is not anywhere in the enumeration.
becomes discretionary. Na-convicted na baya ka sa But in another case, there was an additional requirement
RTC. Even if you file a notice of appeal, the scales are which is not inconsistent, but in fact consistent with the basic
starting to tip in the balance of the state that you are requirements. Which was you cannot waive your appearance
most likely guilty of a crime. So bail is no longer a at the trial. Court said, there’s nothing wrong with that
matter of right, it becomes discretionary of the court condition laid out by the bondsman.
whether to grant you bail or not upon conviction of It seems that if you go beyond the parameters of these five
the RTC. conditions, it is not allowed. But, if the condition is in
consonance with these rules, okay ra kuno.
I am emphasizing this because there are some judges There’s this later case of Serapio (basahun daw)
who do not only look upon the approval of the bail.
Because if you want to be a corporate bondsman, you
have to be certified by the SC. The SC has periods
wherein you must continuously renew your
certification with the court. There are some judges
who look at the certification and if they see that the
certification has not been renewed, they would
consider that the bail is ineffective. There is that
argument that that is a matter between the surety
company and the SC and that should not prejudice

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As a rule, bail is a constitutional right. It is a matter of right in already been forwarded to the appellate court, adto ka didto sa
all cases in the MTC before or after conviction. Basta MTC, CA mag-file sa imong bail.
imprisonment of less than 6 yrs. and 1 day. Does not exceed 6 Take note of the last part. Let’s say you were charged w/
yrs. MTC ka, bail is a matter of right. murder—non-bailable kay perpetua to death. While you were
At the RTC, before conviction. Before ha, because ‘after’ that is at the RTC you could not post bail because the same is not a
already discretionary. Before conviction, as long as the penalty matter of right and was denied. What if you were convicted
is not death, perpetua or life. So, you start w/ temporal or 12 and it was downgraded to homicide? If the trial court
yrs. and 1 day to 20 yrs. downgraded a non-bailable offense like murder, to a bailable
In these cases bail is a matter of right; you can invoke it one like homicide. Then, bail should be filed with the appellate
anytime and the Court cannot deny you that right. It’s court not with the trial court.
ministerial, not discretionary.

Even if evidence of guilt is strong or there’s an existence of a This is for the non-bailable offenses, perpetua, life, death. The
high degree of probability that the defendant will abscond, you accused files a petition to be allowed an application to post bail
cannot deny him bail. The only thing that the judge can do if on the ground that the evidence of guilt is not strong.
there is a high probability that accused is going to flee the 1) In all cases whether it’s a matter of right or
jurisdiction of the court is to increase the bond. You cannot discretion, prosecutor should be notified;
deny the accused the right to bail in these cases because bail 2) If it’s a matter of discretion conduct a hearing;
is a matter of right. 3) Decide whether the guilt of the accused is strong or
Again, increasing it again might be a bit tricky because if not;
you’re going to put up a bond of 10million, and this person is 4) If the guilt of the accused is not strong, discharge him
not a multi-millionaire, basically you are denying the person of upon the approval of the bailbond.
that right. When bail is a right you cannot deny him that right.
When it’s a matter of discretion you conduct a hearing. This is
either:
1) you’ve already been convicted in the RTC w/ an
offense not punishable by life, death or perpetua; or
2) your case is still pending with the RTC and the
penalty is life death or perpetua.
Depending on your(judge’) decision after the hearing. If the
evidence of guilt is not strong you(judge) allow him to post
bail. Once he post bail, temporary liberty na siya. But if the
prosecution proved that evidence of guilt is strong, petition is
denied, accused remains in detention.

When is bail not a matter of right? Meaning to say it now

becomes discretionary on the court whether to grant bail or
not.
● After conviction by the RTC for an offense not
punishable by death.

Let’s say simple robbery, maximum penalty is prison mayor

medium---bail is a matter of right. But if you get convicted, Basically wa’ na man tay Capital Offenses ‘ron because death is
then, you file a notice of appeal for your conviction of simple no longer an imposable penalty. We only look at the law where
robbery, bail no longer becomes a matter of right. You have to death…the provisions of the RPC have not been changed.
apply with the court. The court now has the discretion whether Death is still there, although judges can no longer impose
to allow to post bail or to deny you to post bail. them. If you are just talking of capital offenses, there are still
Where to file bail? Either you file it with the RTC issuing the capital offenses, it’s just that you cannot impose the death
judgment of conviction or if the records of the case have penalty. What are capital offenses? Those felonies in the RPC
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or SPL whose imposable penalty is death. It is the penalty 2. Prosecution has the burden to show the evidence of
prescribed by law and not the one actually imposed. guilt is strong.
Kaning kasuha, Bravo v. Borja minor man siya, because of his 3. Then, hearing must be conducted.
minority he was allowed to post bail.
As a rule, we look at what is prescribed by law: death, It is summary in nature but it does not describe exactly what
perpetua and life. We don’t look at the evidence yet because this summary is.
we’re still at the beginning of the trial, and if you are the court This is usually filed before arraignment. If you have a very
you need to determine whether bail is matter of lengthy summary hearing, sometimes, the arraignment gets
right/discretionary, etc. Kay kung maghuwat pa ka ug unsay overlooked. Judge proceeds to trial; there’s promulgation.
gi-imposed, you’re basically denying the person the right to Then, it’s lately found there’s no arraignment. You still have to
bail. arraign. As jurisprudence states, as long as accused actively
participated in all stages of the trial, a belated arraignment
does not render the proceeding null and void as long as there
was an arraignment even though it was late.
In actual practice I have an experience of the accused filing an
application in our Court before. We present everything. The
rules does not say it has to be finished in a day or how many
days, just summary in nature. I presented everything. You
can’t gamble and say I’ll just present one or two material
witnesses. What if the Court will say evidence of guilt is not
strong because not all of witnesses are presented? You have to
present all your witnesses or all your evidence. Mura ka anig
nag-evidence in chief. After the application is ruled upon. Court
Death, perpetua and life no bail is allowed. It is not even
say, “Application denied, let’s go to trial.” You can just say I’m
discretionary. Discretionary katong convicted in the RTC not
adopting everything I’ve presented during the motion, you
punishable death, perpetua, life. Here, courts have no
don’t have to present it again.
discretion. The only time that there seems to be some kind of
Now, it becomes the discretion of the presiding judge how that
discretion is, in determining whether evidence of guilt is
summary hearing should be conducted. Evidence during the
strong.
hearing can be reproduced for your evidence in chief. What
If these two come hand-in-hand, court has no discretion, bail happens here, after this application is resolved. Let’s say it’s
is not an option: granted, the accused is allowed bail. You go to trial, nothing
1) When the offense is punishable by death, perpetua changes, you still have to prove his guilt. There’s no replication
and life imprisonment; and of evidence. You just manifest that evidence during the
2) When evidence of guilt is strong. motion, I’m adopting it. If you have additional
NOT allowed to post bail if you have this two. witnesses/evidence, you can present them during the trial
The only way you’ll be allowed to post bail is to take away one itself.
of the two. But only the second one may be taken away kay
ang number one dili man mausab as it is provided for by law.
The only thing that is discretionary here is how the court will
appreciate the evidence. If the court will say the evidence of
guilt is strong, then, it has no discretion and has to deny bail.

Non-bailable offense, mandatory hearing. A judge cannot treat

it just like an ordinary motion. This application for bail, you
cannot treat this like a motion where you can just study the
pleading or memorandum submitted by the parties and that’s
Here, this is a procedure if the imposable penalty is death, life that, you rule on the application. No. Hearing is mandatory.
or perpetua. These are the duties of the judge during the hearing:
1. The thing that initiates everything would be an 1. The prosecutor has to be notified because he’s the
application by the accused. Because if the accused one who is going to present evidence of guilt that is
does not apply for bail, walay bail. He has to file an strong;
application for bail, unless he is facing murder or
rape.
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2. Judge decides whether the evidence of guilt is strong Villaseñor vs Abaño:

based on the evidence presented by the prosecution. Principal factor to be considered - flight risk.
Nag andam na siyang passport, palit nag ticket, palit na katong
Is the accused allowed to present evidence? Yes. The rules are mga promo.
very general in its text. It just says, a summary hearing.
This summary hearing is primarily for the purpose of the Okay let’s go to the last portion of this rule, what is exactly the
prosecution presenting evidence of guilt is strong. However, nature of a surety? What are its obligations, etc.
there’s nothing wrong with the judge allowing the defense to
present evidence to counter the evidence of the prosecution. Basically what you’re doing is a corporate surety, you’re placing
There’s also nothing wrong with a judge only hearing evidence him in the shoes of the government. As I’ve said, he can
of the prosecution. Even then it’s a summary hearing, the arrest, cause the arrest at any time. In fact, the surety on his
accused has the opportunity to cross-examine all the witnesses own, if he believes he no longer can perform his function as
of the prosecution during the hearing. Hence, you cannot say the jailer of the accused, he immediately ask for the
that the accused there is totally denied all his right during said cancellation of the bond. But of course he has that obligation
mandatory hearing for purposes of bail. to surrender, the person of the accused to the court first and
3. If the guilt of the accused is not strong he will allow says “I’m no longer confident and that I can’t produce the
the accused to post bail. accused whenever the court will require him, so I am sorry”. Of
course, very few sureties would do that because that could be
The judge has to rule on the amount. Once the accused post
bad for business, but that’s actually provided for under the
that amount, he can be properly be discharged. When we say
Rules.
discharged it merely means ‘set temporarily free.’ Accused is
given temporary liberty while the case is pending. But if the
If it’s a property bond:
prosecution succeeds in proving that the evidence of guilt is
- that has to be annotated in the title
strong, application should be denied.
Whatever may be the title, whether the title is in the Register
of Deeds as assessors, city hall, etc. because title can take
If the prosecution succeeds in proving that the evidence of
different forms.
guilt is strong, the application shall be denied. There are only 2
options actually by the judge:
It can be:
- torrens certificate of ownership
1. Grant the application
- Tax declaration
2. Deny the application
You annotate that in the title if it’s a property bond.
If he grants the application, he informs the accused how much
Again, cash - which is the most common, but actually the
bail he should post, and once the accused post bail, he can be
latest addition to the forms of bail. But most common
released temporarily. Lot of judges had been disciplined for not
nowadays.
following these Rules on Bail.
It’s not up for the court to require a particular form of bail. All
You have this case of Pp. vs. Sandiganbayan (2007):
forms of bail is available to the accused at his option. Meaning,
The accused was charged with the capital offense, accused
he gets to choose what type of bail he’s going to put up.
filed an application. Court ruled that the evidence of guilt is not
strong but the accused has a high prbabi;ity of leaving the
There’s this practice among some judges that they feel that it
jurisdiction the court. It still denied bail. SC said that it still
would be most witty of the accused if they are going to ask
proper bc probability of escape is diff frm this matter of
cash. So sometimes you might hear them just saying
evidence of guilt; and considering that this is a none-bailable
“Temporary liberty of the accused is granted. Bail - 200k cash.”
offense, it became bailable only because of the weakness of
Di na puydi. Because the Rules give the option to the accused
the evidence of guilt.
of what type of bail he’s going to avail.
Matters of bail, if you look at the jurisprudence, it seems to be,
Look at that law: Recognizance Act of 2012, RA 10389.
especially it’s discretionary, this is the most important factor
Daghan gay requirements - release of recognizance. There’s
that the court must consider - probability of flight, probability
actually so many requirements for that.
of escape.
Where do you post bail?
See, capital offense - evidence of guilt is not strong, bail was
This is the general rule - where the case is pending.
still properly denied bc of probability of escape was high. Even
Because that’s where the warrant of arrest is issued, that’s
if the rules say that these are the factors that you consider,
where your case is pending so most likely that is the court
kani jud ang pinaka importante - probability of appearance.
that’s most knowledgable of how much bail you should post.
Basically, if you are going to state it in a negative way, risk of
What if you will get arrested in a place other than the place
flight. If he poses a flight risk, can be denied. Bisan naning
where the court is sitting?
uban. Even if these are complied with the accused, and then
Let’s say warrant of arrest is issued in Cebu City, case
this one is not, bail can still be properly denied if it is
in Cebu City - you’re found somewhere in Luzon and you get
discretionary.
arrested there. What if the private complainant communicated
with Luzon police men - “he’s in Luzon, arrest him. Here’s a
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copy of the warrant, etc” so he get’s arrested. Under the Rules, Usually the bondsman come up with some kind of explanation
he gets sent to nearest police station. why. The court will say, “Ah sige, wa nalang. Issue nalang ug
warrant, cancel ang bond then let’s leave it at that.” It’s very
What do you do? rare that they get to step 2, but that’s actually the procedure.
If you are arrested in another place, then in the RTC let’s say
Manila, nadakpan ka sa Manila so RTC of Manila. If the RTC is Order of forfeiture first then judgment against the bond. You
unavailable which is quite impossible to think of pero basin CANNOT go directly to judgment against the bond without that
lang ang tanang RTC, xmas party sila - MTC ka if you’re order of forfeiture.
arrested in another place.
Bond is cancelled after that order of forfeiture but also in other
If you’re arrested let’s say case is pending in Cebu, dakpan kag cases - death of the accused, there’s no longer anyone.
Cebu. In case of unavailability of any court in the province, city Basically, the obligation of the surety ends - the bondsman.
- RTC ka or MTC. If unavailable ri. The obligation of the bondman ends because there’s nothing to
- Any court in the province, city, or municipality where you are, be secured, he’s acquitted, dismissed. Execution of judgment
where the case is pending, RTC or MTC ka. na ky everything is finished. He’s going to prison na, he’s going
to serve sentence, whatever. He has been acquitted, the case
The Rules are you file in any other court where you are being case has been dismissed, demurer of confidence, whatever, he
placed in the custody of the law. But if bail is NOT a matter of dies pending trial, or he surrenders. So he’s now in the custody
right, like perpetua, life, or you have already been convicted in of the law, so there’s no need for the bond. In all these cases,
the RTC of simple robbery, of homicide, convicted naman ka so bond is cancelled.
bail is already discretionary. ONLY in the court where the caw
is pending. We said before, bondsman - put in the shoes of the jailer of
the accused, he can order his arrest. Arrest him if kaya niya,
There’s no other result. Once bail is approved, you have to be okay, you arrest him by yourself. If you are the bondsman. Di
released from custody. nimo kaya, seek assistance from a police officer. All that the
police officer needs, he doesn’t have to get the warrant of
What happens when you violate the Rules? What happens if arrest from the court, he just gets a written authority from the
you violate the conditions of bail? bondman - Bondsman is seeking his assistance for the arrest
You jump bail, you escaped. Di naka pakita. You go to a of the accused.
foreign country.
Remember, we look at the bondman, it’s basically the State -
There are two things that must happen. The end result is that, the police man who has custody of the accused. Although this
because it’s a security, it’s going to be forfeited in favor of the doesn’t happen all the time. The bondsman doesn’t need a
government. One thing is that there must be this first - order justifiable reason to have a bond cancelled. But as I said,
of forfeiture. bondman don’t usually do this because it’s bad for business ky
muingon ang mga di pa na “ayawa nila. Galit kana silag cancel
What usually happens is that the bondsman (because we are ky di na sila comfortable with the accused they’re going to
now thinking of a situation where the accused is no longer - have it cancelled goodbye na ato premyo”
his whereabouts are already unknown. We don’t know where
he is, the bondsman can no longer produce him) is given the That is actually there. It’s purely gratuitous and can be
opportunity - show cause why no order of forfeiture should be terminated at any time. They don’t have to justify why they
handed against your bond. Most likely di sya maexplain, want the bond cancelled. All that is required of them -
wagtang naman. Di naman iescape, gone to a foreign country, surrender the person of the accused and they are saying
etc. The court will issue an order forfeiting the bond. “We’re no longer willing to be the bondsman of this specific
accused.”
That’s not the end. After the order of forfeiture, puydi pa man
gud na niya ipa - magmotion for reckon pa, bondsman, etc., As we’ve mentioned before, posting of bail is not a waiver of
try to explain why, etc. If that can’t be explained anymore, your objections to the illegality of your arrest, jurisdiction of
accused can no longer be produced, whatever, then step 2 - the court, lack of preliminary investigation, etc.
judgment against the bond. Meaning to say, the actual If you’re going to post bail and then you go to court to the
confiscation of the bond of now in favor of the State. question its jurisdiction, pwede ra na sya. Because bail is
entitled to everyone who is in the custody of the law.
First - Order of forfeiture.
Even after the order has already been issued, the bondsman is Filing a petition to question the jurisdiction of a court might
still given that opportunity to produce the accused. Or to take a long time to resolve your effectively denied bail if you
adduce satisfactory reason why he cannot produce the would not be allowed to post bail, then by posting bail, you’re
accused. deemed to have waived your objections.

In fact, if you look at the decisions, RARELY do you see a RIGHTS OF THE ACCUSED RULE 115
judgment against the bond entered. It usually stops HERE -
order of forfeiture. Familiar with you because it is in the Bill of Rights.

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One of the pillars of criminal procedure is the presumption of Now, there are certain presumptions that are available and
innocence. Most of the rules especially regarding due process usually these presumptions are in favor of the state or
springs forth from the presumption of innocence. Meaning to prosecute, and it by no means violates the rule on presumption
say, a person even though he has been charged with a crime of innocence because these are just presumptions based on
considering that he is presumed innocent, the procedure that logic and experience and they are not conclusive or meaning to
follows is based on that presumption. Like for example, it is say the accused is given the opportunity to counter the
the state that has the burden of overturning that presumption. presumptions with his own evidence and if he can properly
It is the state that has the burden of proving the guilt of the explain the situation where the presumption arises, then the
accuse. And in failing to discharge that burden the courts will presumption is rebutted.
have no choice but to give a judgement of acquittal. Because
the presumption of innocence remains. Now you have presumptions like if you are in possession of a
stolen item, that is circumstantial evidence that you are the
author of the theft or it may also be a circumstantial evidence
that you are an accessory to the crime of theft or a principal to
the crime of fencing. The persons failure to account for
property in his custody raises the presumption of
misappropriation on his part, whether it is estafa by
misappropriation or it is estafa by means of falls pretenses,
failure to account upon demand is either evidence of
misappropriation or circumstantial evidence of deceit. As I
have said, these are presumptions that arise from logic,
experience and they are disputable which is the most
important thing. But there are some conclusive presumptions
but they are very rare especially in criminal law. If you
remember your anti-pornography law, the public display of
So, you have your constitution. Basically all the laws and the pornography material on your establishment raises the
rules are basically dependent of that principle. Although, it is conclusive presumption of knowledge. Those are few and far in
not an impossible task, we do not give the state an between but usually the presumptions are disputable.
unreasonable task in proving guilt beyond reasonable doubt
because guilt beyond reasonable doubt merely means moral
certainty. Since, we were not there and especially that the
judge was not there at the time of the commission of the crime
he has no personal knowledge by himself of what actually
occurred so he has to rely in the evidence submitted by the
parties then all that is required is that he is morally certain that
the accused committed the crime.

The parameters are have all the elements be clearly establish

and has the identity of the offender been clearly established
with moral certainty. Then if we have those two, then there is
no bar to a prosecution or either a conviction of the accused.

We also have to be reminded that since it is the burden

of the state to prove the guilt of the accuse beyond reasonable
doubt then it stands to reason that the case of the prosecution
must stand on its own strength, we cannot convict a person
merely because he has a weak defense. Because there are
some cases wher ethe only defense available to the accuse is
inherent defense, like for example the crime of rape. The only

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available defense in the crime of rape would either be denial or during arrest, the arresting officer will have the obligation to
alibi. There is no other defense that you can put up for the inform the accused of the charges against him or rather the
crime of rape. There is no self-defense, there is no accident. reason of being arrested. And then in preliminary investigation,
When you are charge with rape, the only defense that is the accused is notified through a subpoena, he is given a copy
available to you is I did not do it or I did not do it because I of the complaint and all the evidence submitted by the
was at some other place to denial and alibi. The SC has complainant. In court as I have said, through the arraignment
consistently ruled that denial and alibi are very weak defenses process, the accused is informed of the nature to the cause of
because why? They can easily be contrary, they are at most the accusation against him.
self serving especially if it is only the accuse who denies and
claims an alibi. Although an alibi if properly corroborated and
establishes the physical impossibility of the accuse to have
been in the scene of the crime to commit the crime. Physical
impossibility is the requirement of the crime of alibi to be a
successful evidence. Otherwise, alibi and denial are very weak
defenses.
That is why you have this rule that for conviction to be
sustained, the state must rely on the strength of its own
evidence and cannot rely on the weakness of its own defense
of the accused.

As we have mentioned before, a belated arraignment is not

necessarily fatal to a conviction. You cannot reverse a
conviction just because the arraignment came after the
presentation of evidence. Well of course, the natural flow you
are informed first thru arraignment and then the evidence is
presented against you so that you are informed of the
opportunity to counter the evidence but in some cases where
the evidence is first presented, but the accused was able to
actively participate in the trial and was able to defend himself,
and later on an arraignment was conducted, the SC said there
is no reversible error there, the accused presumably was
Equipoise rule which is applicable to criminal and civil cases. informed during the entire process wherein he was able to fully
The equipoise rule states that if the evidence so far establish confront the evidence presented against him. So basically, the
by the parties does not preponderate in favor of either of the SC here was saying that the arraignment here was a mere
parties, whether the plaintiff or defendant, the party that has formality and was not really the act that was supposed to
the burden of proving a particular fact loses. Meaning to say, inform the accused of the charges against him. Ofcourse, if no
the preponderance of evidence which would be favorable to opportunity was actually given to the accused wherein, he was
the other party would be the one that would be sustained by not informed thru arraignment or he was given the opportunity
the court. So, applying that to a criminal case, if the evidence to cross-examine the accuse, then that would be a violation of
neither preponderate in favor of the government or the accuse, his constitutional right to be informed.
meaning to say the evidence can be interpreted either way,
then the interpretation in favor of the accuse will be the one
that prevails.

He also has the RIGHT TO BE PRESENT and in relation

thereto we have that concept of trial in absentia meaning to
say despite him knowing that he has that right to be present,
Rights of the accused, first right – right to be informed. It he voluntarily does not participate.
takes the form naturally of well most illustrative example would
be the arraignment or even during arrest, if you remember

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We also have that trial in absentia. Meaning to say, despite him Trial in absentia, unless it is for arraignment, you
knowing that he has that right to be present, he cannot have an arraignment in absentia. You cannot even
VOLUNTARILY does not participate. The right to be have an arraignment by proxy. There are some who would
present includes the right NOT to be present, as long as send their lawyers during the arraignment and the lawyer
it is an intelligent decision on his part, that he knows he has sometimes would manifest that they are the one’s instructed to
that right to be present and he waives knowingly, intelligently. enter a plea of not guilty. The courts will not allow that. In
That’s why you can have a trial in absentia. fact, even if the accused is present, there are instances where
the lawyer would stand and say the accused refuses to enter a
Take note, that even during a trial in absentia, the accused plea and I will make a plea for him, that is not even allowed.
does not lose his standing because at any time he can It’s only when the accused will not enter a plea, the
participate in the proceedings. Of course, proceedings that court will enter a plea of NOT GUILTY for him. Meaning
have already been undertaken or conducted while he was not to say, the lawyer doesn't really have to say “I’m going to
present, he cannot demand for a repetition of those enter a plea of not guilty. IT’S AUTOMATIC. The moment the
procedures. He can enter at any time at any stage of the rules provide that if the accused does not enter a plea for
proceedings where he chooses to. But, proceedings himself and he is knowledgeable enough, he is fit to stand trial
that have already been undertaken, wherein it was a physically and psychologically/ mentally, then a plea of not
proper trial in absentia, he cannot demand for its guilty will be entered for him.
repetition.
For identification, that is also absolutely required, although
Adopting evidence submitted in another proceeding where the there are some courts who resort to a procedure where in they
accused was not a party thereto, is not proper. Because the would, usually this is identification by witnesses, so usually, if
taking of the evidence, let’s say there is a different case with the accused would be present, the prosecutor merely asks the
similar issues and the prosecution moves that the evidence in eye witness “if you see the accused in the courtroom, would
that different case be adopted as part of their evidence in a you be able to recognize him? and he says, yes. Then looking
present case against a particular accused, and this accused did at the courtroom today, could you point him out?” The witness
not participate in that other proceeding. His right to be present points him out. You cannot do that if the accused is not there.
at the other proceeding was violated. You cannot adopt it There are some courts that will allow the prosecutor go
automatically. It has to be presented anew with the accused through the records of the case especially if the accused has
having the opportunity to confront the witnesses. posted bail, and in the bail bond, there usually appears the
picture of the accused attached to the record, and then let the
witness identify the accused. I haven’t heard of any case
where that was ruled by the court as an improper identification
by the accused. I do not know if that procedure is actually
proper. In most cases, the jurisprudence on line-ups would be
that there should be, identification in a lineup is merely
circumstantial. It is the totality of the evidence why the witness
would identify the accused which is more material.

This is what I said. The accused does not lose his standing
even though he chooses not to appear during the trial,
meaning to say, there is a trial in absentia. He is still the
accused. They can still at any time he wants, participate.

Ideally, when you get sick you go to a doctor, so if you have a

legal problem, you get a lawyer. You should trust the experts.
Although, the rules also provide that if the court is satisfied
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that the accused himself can properly defend himself, can

intelligently defend himself, then okay, he can defend himself. An issue which has become important especially in
He doesn’t have to be represented by counsel. Having done administrative matters. Here, a judge was charged with an
that, he cannot later on complain that he does not know the administrative case. The court said, these are the duties of a
procedure. That’s why it is very rare, especially in RTC cases, judge with respect to the accused’s right to be informed. The
that the accused, if he is not a lawyer, is allowed to defend court in the record of some proceedings, some judges just
himself. In the MTC cases, where the issues are not as merely go through a mechanical act of reading out the rights
complicated and the consequences are not as serious as without actually ensuring that the accused understands all
compared to RTC cases, you can say it’s more common in MTC these rights. So, e tagsa tagsa, step by step.
where you don’t have to be represented by a lawyer. You can
represent yourself even if you are not a lawyer. What are the requirements?
First, inform the accused that he has that right to a
If you remember your jurisprudence on ethics, even if you are lawyer. You just don’t say “ Do you have a lawyer?”, that’s not
a lawyer, it is not always advisable to defend yourself. It’s enough. You must tell him “ you have a right to a lawyer”
always better to hand your defense to some other lawyer. before we go to arraignment. After telling him that he has that
There are some ethinc groups that claim certain rights under right to a lawyer, ask him if he desires the aid of an attorney
the IPRA and apparently, their groups have certain titles. They because remember, he can defend himself if the court is
also have counsels, the equivalent of lawyers. Sometimes they convinced that he is capable. Ask him, “ you have that right,
appear in court and they invoke the IPRA as authority for them are you going to avail that right?”. Then , if he says yes, who is
to appear on behalf of their other members of their community his lawyer? Where is his lawyer? Or does he have a lawyer? .
who are being charged in court. They simply do not know the The moment you say I want to have a lawyer represent me,
procedure. So, most of the time, courts will not allow them. there are several options available to him. He can choose a
They have IDs pud nga they are some kind of a lawyer. That’s lawyer for himself. He can be given a lawyer de oficio by the
why one of the PAO lawyers sadi maypana sila wala pa mo court
kuha ug BAR and they are now lawyers. Anyways, all that
happens there is that they just disrupt the proceedings. They In most cases, it’s not that common anymore, before when
do not know the procedure what’s the proper thing to do courts did not have a permanent PAO resident in their
during arraignment especially during pre-trial and during trial. branches, the other lawyers waiting for their turn would be
assigned de officio for purposes of arraignment. Although
nowadays, things have become simpler because during the
hearing of criminal cases, usually the resident PAO is present
so he is automatically the counsel de oficio.
If he says he knows a lawyer and he wants that lawyer to
represent him, he must be given reasonable time to get that
lawyer. Usually when that happens “I have my lawyer but he’s
not here”, that would result to some kind of continuance – ma
reset ang arraignment because he is given reasonable time to
get the services of that lawyer.
The priority is, he gets a lawyer of his own choice. If he
can’t afford one, that is the time, the court would give him a
The right to counsel is immutable. Meaning to say, just
counsel de oficio.
like jurisdiction you can raise it even for the first time on
appeal.

Hilario v. People
The SC said we cannot accept the theory of the prosecution
that the right to counsel exists only at the trial stage- MTC,
RTC. All the more it becomes important when you get to the
CA and SC where it’s procedure that dictates everything
because it’s by pleadings. Pleadings that are filed before the
CA and the SC are very detailed in its particularity. All the more
you will need a lawyer there.

The right to counsel is available during custodial investigation.

Remember that custodial investigation is not just any
investigation. It becomes a custodial investigation when it
targets/ singles out a particular person as the accused. So,
even if you call it an invitation, if you now become the
focus of the investigation as the author of the crime,
the right to counsel becomes available.

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lawyers who are also in court during those proceedings waiting

for their turn in some other case – that would be the last
resort for a judge to appoint one of those lawyers because
they recognize that those lawyers also have their own work.
That really is an obstacle if as a last resort, pwede jud ka
ma-appointed and you cannot refuse if you are appointed as
counsel de oficio.
Here, it earmarks what supposed to be is a competent and
independent counsel. You don’t just go there and tell your
client “plead guilty nalang oy para mahuman ni”. So there
For identification purposes, line up pa kuno, dili pa. We don’t should be – borne by the records, there is meaningful
know yet who the witness will identify among those standing in communication between you and the accused. It would show
the line-up. that you are present in all stages; you were counselling and
advising the accused during important points of the
investigation; stopping the interrogation once in a while so that
you can give advice to the accused. Because there are some
lawyers who are actually, specially kanang custodial
investigation and the person under investigation would
manifest “I want a lawyer” and the police would recommend a
lawyer that they know – hardly independent. Those are
lawyers that are on call sa mga police- we really do not know
how independent they would be.
You’ve chosen a lawyer of your own, what if he is not that
committed to your defense? What if he unreasonably doesn’t
appear during the scheduled hearings? (see slide above) So
the court is not precluded from appointing a counsel de officio.
As I said, priority would be the counsel of your choice but if
that is not feasible, counsel de oficio.
Important thing is that the proceedings must not be
interrupted unnecessarily.

Requirement: there is meaningful communication.

Most important thing here is that the accused is informed of
what is happening. He knows what is that stage – “Is it
custodial investigation? Are we going to trial? Why am I under
arrest?” He is made to understand the proceedings and the
consequences of the proceedings. So it would necessarily
depend on the...well one thing degree of education of the
Constitution says you are entitled to competent and accused. So if he is a lawyer himself then less explanation
independent counsel. might be necessary as compared to somebody who is not
There are times that the public attorney will manifest that the knowledgeable about the legal process.
accused who has manifested that he doesn’t have a lawyer of
his own, the public attorney will say he is disqualified because
“the complainant has already approached our office for
advice”. In fact, the public attorney is the one who has helped
the complainant in preparing the complaint, so it would be an
obvious conflict of interest if they would now defend the
accused in that very same case. So where is the accused going
to go?
Here in Cebu City, the next best thing that the courts would do
would be to refer the accused to the IBP because they have a Again, just like your right to be present, you can also choose
free legal…I forgot if there is an office/a branch of the IBP but NOT to testify, if you are the accused. That would be
they have lawyers there who will defend people for free. If you different if you are a witness because you cannot refuse to
are disqualified by PAO, they will give that to you. But there testify as a witness.
are some there who unfortunately would not take their We always hear that “right against self-incrimination”, “right to
obligations properly. They would accept, they would enter their remain silent”.
appearance but di jud sila manungha. Which would Right to self-incrimination – it merely means that you
unnecessarily delay the proceedings, because wa namay cannot be forced to incriminate yourself either for a different
kapaingnan ang judge. Because the judge would only point to
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offense or for the offense that you are facing as long as it’s not
on cross-examination.
Because as we’ve learned before, the right against
self-incrimination, one of its purpose is to prevent the state
from just forcing a confession out of the accused. But if it is
during the trial, when you have all the safeguards, you can
actually incriminate yourself if the questions are on
cross-examination for the crime with which you are charged
with. That is lawful… self-incrimination, if we can call it that.
Trying to catch you during self incrimination.
If you are the accused: Sometimes it’s a common conclusion, ahhhh wa’ mutingog,
● You can refuse to take the witness stand all mukhang guilty. Your silence cannot be taken against you as
together, related to your right against far as the courts are concern.
self-incrimination or right to remain silent. Failing to answer or counter a disputable presumption, does
● You can take the witness stand and invoke the not mean that your silence was taken against you. It merely
right for a specific question. You cannot invoke it means that the presumption was not rebutted because you did
if it is on cross - if you have testified and you are on not present evidence, you chose to remain silent. Meaning to
cross examination. It is a proper cross examination say, if you’re going to be convicted it’s not because of your
because it relates to the offense with which you are silence but because of the presumption that aroused and was
charged with, then it that case you can no longer not rebutted.
invoke that right.

Right against self-incrimination, is not self-executing. Hence,

when you don’t invoked it, the court will say, he waived it
because he chose to answer these questions than being silent.

In this Ayson case, the court said that these are the rights of
the accused before and after the filing of the case in court.
Before the filing of the case,
1. you have that right to remain silent. During the
custodial investigation pwede ka mag…you don’t say
anything.
2. You have that right to counsel.
3. You have that right to be informed why you are being
under custodial investigation.
4. Not to be subject to fore, violence etc.
5. To have evidence obtained in violation of these rights
rejected – cannot be used in the proceedings later on.

When the case is filed in court, you can refuse to be a witness.

Your refusal should not be taken against you. The court cannot
say, “he is guilty because he did not answer the charges. “
If you take the witness stand:
General Rule: you can refuse a specific question if it is Accused can refuse to take the witness stand altogether. Can
self-incriminating. chose not to answer self-incriminating question.
Exception: on cross-examination on matters regarding the Witness cannot refuse to take the witness stand. In fact,
crime with which you are being prosecuted for. warrants of arrest can be issued for them or bail may be
required of them if the court is convinced that they will not
appear during the scheduled hearing as a witness. Witnesses
can only invoked the right to remain silent for each question
requiring an incriminating answer.

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When the accused takes the witness stand, the rules say that
he can be cross-examined on all matters that were taken up Writing may sometimes self-incriminatory, and sometimes not
during the direct-examination. So, even if it might seem self-incriminatory. If merely to authenticate that these are the
self-incriminating but if it was covered during direct, he cannot envelopes that were seized from him, ingon SC not violative.
refuse to answer on cross. But, if it is meant as a testimonial act, then, it’s violative.
Relevant matters are only with respect to questions regarding
the charges he is facing. For offenses that he is not being
presently charged with, these are usually irrelevant questions.
Thus, he may properly refuse to answer those.

What The main tool for confronting witnesses against you is the
kind of evidence can the accused refuse to give? cross examination during trial. The party that presents you,
Testimonial that which is communicative in nature. So, purely conducts the direct examination and the against whom you
physical evidence is not included in the prohibition against give evidence, gets that opportunity to cross-examine that
self-incrimination. (Examples from previous the slide) witness to test the credibility of his testimony. Normally, a
party that presents a particular witness, is expected that
witness is going to testify on things that is favorable to the
party that presents him. That’s why we test the credibility of
that particular witness.
There are times that it might be better not to cross. For
example, expert witnesses. For instance, government doctors
who will just testify on a medical certificate. Clearly they
cannot say whether the accused did this or its the accused
who committed the injuries, rape, etc.. All they’re testifying to
is the result of their examination on the particular victim.
It is circumstantial to the theory of the prosecution that if the
Naay nadakpan, dad’on sa scene. How did you commit the person died by gunshot because that is what the witnesses
crime? Sometimes they were intimidated by all the people say, accused shot him by a gun, you present a medical
there, the police, victim’s relatives watching and the public that certificate that indeed the person died by gunshot wound. That
already have their own judgment. All these pressure might expert is not saying it is the accused who shot the victim, the
force him to do a re-enactment. The Court said, that is former is merely saying victim died from gunshot wound.
communicative in nature because that involves series of If he is an expert witness you do not have to cross examine.
independent acts on the part of the accused which is violative Unless it has something to do with the credibility of the
of self-incrimination. expert’s findings. If he’s an expert witness how did the he
come up with his findings?
We have this reckless imprudence case once. The theory of the
accused, he was driving truck in a diligent manner. Then, it’s
just that the victim run in front of the truck. They tried to show
that the skid marks actually reflect within the speed limit. So,
they presented a witness, one of their driving experts in their
company. We have to conduct a cross examination because we
wanted to know if they actually simulated the same situation
as where the incident occurred. For example, what was the
road? Was is a dirt road, an asphalt road or a concrete road?

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Because that would make a difference because the length of

the skid mark would show that he is driving 40 kilometers per
hour. If you’ll going conduct a cross-examination do not to try
discredit the expert, because the latter does not testify as to
who committed the crime.

Slide 35

This one, it was the court neither of the parties were

responsible for the delay but the court – nasunog man ang
courthouse. It’s not vexatious, capricious and oppressive,
ingon ang SC the fire which razed the building housing the
court and its records, are circumstances beyond the control of
Slide 33 the prosecution. You cannot fault the prosecution for that, you
cannot invoke your right. *inaudible* siguro naa kay ebidensya
It was the fiscal who burned down the courthouse so that ang
Take note there’s a difference between a speedy trial and a
kaso mahunong.
speedy disposition of cases. When we say speedy disposition
of cases, it involves a broader term, but it includes trial. It’s
not limited to trial, it can be in the: preliminary investigation
stage, custodial investigation stage. As long as it’s a speedy
disposition of a case.

When you say “speedy trial” then as the term suggest, it is

limited to the trial process.

Slide 36

Some insufficient reasons. The problem is these two (illness

and additional assignments), they’re very common – illness of
the counsel, illness of the parties. Well, I guess there are some
illnesses na pwede siguro makajustify for a delay, but normally
– because it is an illness, *inaudible* siguro ug right there on
that day you could not prepare. If it’s an illness of one of the
witness, then you should have prepared another witness. Kani
Slide 34 jud additional assignments. Lots of lawyers have been
reprimanded but it’s still a very common acceptable reason for
It might be that the entire issue that you have raised is not delay. Kasagaran san mga courts will usually give lawyers that
necessarily the right of the accused to a speedy trial, but chance kay naa may laing kaso.
rather the right of the accused to the speedy disposition of his
case, because the delays of the trial might have been justified. Talagsa ra ako kabao ani – absence of a branch clerk of court.
But if you look at the entire process, then the entire process Although in one particular case, the case was delayed for
might have been unnecessarily delayed. Choose the right that almost a year because it seems that the records which were
you are going to invoke. kept near a cabinet behind their branch clerk of court fell at
the backside of the cabinet. So did na sya napiit sa bongbong
and they could not account for it for almost 1 year, ambot
naunsa tog clerk oi.

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Slide 38

Dismissal, violation of the right – equivalent to an acquittal.

But if it’s the accused who agrees to a provisional dismissal,
remember it’s provisional so it’s either 1 yr or 2 yrs, you cannot
invoke or you cannot later on cite that 1yr or 2yrs as an
unreasonable delay and later when it gets revived, speedy
disposition can – no, because remember a provisional dismissal
must have the consent of the accused. So if you want to
invoke speedy disposition, speedy trial, don’t agree to a
provisional dismissal. Go to trial. Usually a provisional dismissal
is resorted if either the parties are trying to work out an
amicable settlement of a civil liability or the witness for the
prosecution are not present.

Slide 37 What if the provisional dismissal would be availability of the

witnesses for the prosecution? If you’re the defense, don’t
When we look at whether a delay is unreasonable or not – by agree. Ask, the trial should go on. The moment prosecution
the way, the effect of violation of a speedy trial or speedy cannot proceed with trial because of the unavailability of the
disposition of case – if it gets dismissed then it’s an equivalent witnesses invoke speedy trial, speedy disposition. That way the
acquittal. So double jeopardy sets in. Even if there was no dismissal becomes final.
arraignment, judgment, if it is based on speedy trial, or speedy
disposition, that’s an equivalent to an acquittal, double
jeopardy sets in no matter the stage of the proceedings.
Anyway, whether the delay is justified or not, sufficient or not,
insufficient reason or not, we look at all these:

- Length of delay

- Reason

- Whether the accused would assert his right;

because it might be that the delay was also – diba partly
the defendant’s fault, what if the defendant on their side
have as many motions for postponement as the
prosecution so they are both equally guilty of delaying the
proceedings Slide 39

- What prejudice was inflicted on the accused I think as far as we’re concerned, we adopt the balancing test.
because of the delay We don’t adhere to the fixed-time period. Although if you look
at some of our pre-trial proceedings, it has the aspect of this
But I think the most important here would be the reason for fixed-time period. When the judge says okay Mr. Prosecution
the delay (why was there a delay?). you have 10 trial days. Mr. Defense you will also have 10 trial
days. You stick to that. No postponements are allowed. If
you’re going to postpone then 1 trial day will be deducted from
your 10 trial days. That has the aspect of a fixed-time period
but usually if the resetting is for a good reason, the court will
reconsider that rule. Maingon sya ah sige, you don’t lose 1 trial
day because the delay was reasonable. There’s that aspect of a
fixed-time period and there’s also that aspect of the balancing
theory.

Kani man wa ko kadungog naa ni sato – defendant waiving any

objections for the period…

Well, in our jurisdiction, this goes by implication. If you do not

object, you waive your right to that speedy trial for that
particular period.

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Then you also have that right appeal. Remember the right to
appeal doesn’t appear on the Constitution, it’s merely
statutory. It’s not even absolute, you can lose that right. You
lose that right if you skip bail and you don’t appear for
promulgation. Although, appeal as a specific folder, we’ll take
that up later on.

Now whether court is partial or impartial, that is usually born

out by the records, especially if the court has questions of its
own to the witnesses and the manner of questioning would
also indicate – especially if the court is no longer impartial, his
manner of questioning might reflect a particular side that he
has already chosen, he has already become subjective.

Slide 41

When we say public trial, doesn’t have to be sensational or

publicized, abot tanan na mga kuan. All that is required is that
the public is NOT prohibited from attending the proceedings.

Of course, please take note of the certain cases where the

public trial is not always a right, especially if it involves minors,
private offenses, public can be properly excluded from the
proceedings.

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