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com

SPECIAL PROCEEDINGS
It is a remedy by which a party seeks to establish a status, a right or a particular fact.

Settlement of Estate of Deceased Persons


If a person is born, he is susceptible of possessing civil rights and obligations. If a person dies, his civil personality ceases and can no longer be the subject of civil rights and obligations.
civil rights and obligations will still function

Birth

Death

Spec Pro

Property: Real, personal Money claims Difficult to distribute Gives rise to an estate

Estate
It is a fictional character that takes over the personality of the deceased until the fulfillment of all his obligations. It is an artificial being created by fiction of law for the purpose of collating the assets of the deceased and settling all claims against him and all his liabilities. It is the personality created after a person dies.

Venue of Settlement of Estate


If the decedent is a resident of the Philippines at the time of death, whether citizen or alien, his will shall be proved or letter of administration granted and his estate settled in the RTC of the province where he resides at the time of his death. If the decedent is a resident of a foreign country, his will shall be proved or letter of administration granted and his estate settled in the RTC of any province where he has property.

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Note: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts.

Probate Jurisdiction
Within Metro Manila MTC < P 400,000.00 < RTC Outside Metro Manila MTC < P 200,000.00 < RTC

Under R.A. No. 7691, the law expanding the jurisdiction of the trial courts, the MTC shall exercise exclusive jurisdiction over settlement of estate, testate or intestate, where the value of the estate does not exceed P 200,000.00, outside Metro Manila, P 400,000.00, within Metro Manila. Thus, the RTC shall have jurisdiction where the value of the estate exceeds P 400,000.00 within Metro Manila or where the value of the estate exceeds P 200,000.00 outside Metro Manila. Note, however, that this jurisdictional amount shall be increased beginning April 16, 2004.

Estate
Claims by the government Claims by third parties Claims of heirs

Compulsory -those who inherit by provision of law

Voluntary heirs designated by the deceased

How Heirs are Instituted

By Law -rule on intestacy -compulsory heirs are entitled to their legitime

By Designation -testate succession -a will is the only way to designate a voluntary heir

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Will

Notarial -will other than holographic -must comply with the rules on notarial will -formalities must be observed -if requirements are not complied with, will is invalid Probate Contested -all subscribing witnesses and the notary, if present and not insane, must testify -their absence and insanity must satisfactorily be proved Uncontested -only one witness who subscribed to it may testify to the effect that the will was properly executed as required by law

Holographic -written, dated, and signed by the testator -testator must, in the will,: 1. Identify the heirs (subject to the rules on preterition). Therefore, he cannot omit compulsory heirs. 2. Identify assets subject to distribution (after claims of govt and third persons has been satisfied): a) assets in general terms, b) assets specifically identified. 3. Identity of heirs to be disinherited provided that the conditions are met (if not identified, then the law on intestacy will apply).

Probate Contested -at least 3 witnesses who know the hand writing and signature of the testator must testify -expert testimony may be resorted to Uncontested -only one witness who knows the handwriting and signature of the testator may testify

Note: The requirement on the number of witnesses is mandatory and is needed for probate.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate that takes effect after his death.

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A will is the basis of distribution of assets. In the absence thereof, the law on intestacy shall ensue. If there is preterition whereby a will omitted one or some compulsory heirs intestacy shall also ensue.

Types of Wills
A. Ordinary or Notarial Will Requisites: 1. It must be in writing. 2. It must be written in a language or dialect known to the testator. 3. It must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction. 4. It must be attested and subscribed by three or more subscribing witnesses in the presence of the testator and one another. 5. The testator or the person requested by him to write his name and the instrumental witnesses of the will shall also sign each and every page thereof, except the last page on the left margin. 6. All the pages must be numbered correlatively in letters placed on the upper part of each page. 7. The will must contain an attestation clause. 8. The will must be acknowledged before a notary public by the testator and the subscribing witnesses. B. Holographic Will Requisites: 1. The will must be entirely written by the hand of the testator. 2. The hand of the testator himself must date the will. 3. The testator must sign the will. 4. The will must be executed in a language or dialect known to the testator.

Will

Those that can be implemented 1. Has complied with the formalities of execution 2. Successional rights of the compulsory heirs are not impaired 3. Probated

Those that cannot be implemented 1. Does not comply with the requirements 2. Can only be implemented through agreement

Probate

Allows the will

Disallows the will

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Probated

Rules on Intestacy applies

Probate
It is a special proceeding to establish the validity and due execution of a will. More specifically, it is a special proceeding for the purpose of proving before a competent court vested with authority for that purpose that the instrument being offered for probate is the last will and testament of the deceased. Secondly, that it has been executed in accordance with the formalities prescribed by law. And lastly, that the testator has the testamentary capacity at the time of the execution of the will.

Jurisdiction of Probate Courts


1. 2. 3. 4. An estate /probate court has a very limited jurisdiction and it is: to pay off money claims to approve appointments of administrators and executors to approve inventories to approve partitions of the net estate

It has no power to entertain, in the same proceeding to settle estate, suits for recovery of specific personal and/or real property and is in no position to adjudicate questions of ownership. This rule is intended to make sure that an estate court will not be stamped or flooded with all kinds of issues and questions. Questions of ownership over specific real and personal property can be adjudicated before other courts. In such a case, the estate court will authorize the administrator or executor to file the proper case before the other court. On the other hand, property claims against the estate may be filed by third party claimants before the other courts. However, the estate will be represented by the administrator or executor, as the case may be. In case where the ownership over real or personal property is contested, the estate will reserve the distribution or partition of the contested property until after the issue on ownership is finally resolved. The estate court will thereafter award the contested property to whoever is finally declared as the owner thereof. Until and unless the estate court issues the final order of partition, no heir is allowed to disturb the status quo.

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Grounds for Denial of Probate 2. 3. 4. 5. 6. 1. 1. the formalities required by law has not been complied with the testator was insane or otherwise mentally incapable of making a will at the time of its execution the will was executed through force or under duress or the influence of fear or threat the will was procured by undue and improper pressure and influence on the part of the beneficiary or some other person the signature of the testator was procured by fraud the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

Intrinsic vis--vis Extrinsic Aspect of a Will


Under our law, there are only three possible questions that can be determined by the probate court. They are a) identity, b) due execution, and c) testamentary capacity. These aspects pertain to the extrinsic validity of the will and the probate court is limited to pass upon the three aspects of the will. Consequently, the probate court cannot inquire into the intrinsic validity of the will. Note: In the case of Nuguid vs Nuguid, it was held that if the will contains a grave error apparent on its face, the court may for practical reasons pass upon the intrinsic validity of the will for the purpose of determining the validity of the will. This is intended to prevent the probate court from uselessly approving a will that it cannot later on implement. If a will is not probated due to intrinsic reason, like preterition, any other disposition in the will pertaining to legacy or devise will remain valid. However, if the will is not approved for probate due to extrinsic reasons, dispositions as to devises and legacies are likewise not valid for the reason that the will is apparently spurious.

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Probate of Wills
Local Foreign

Notarial

Holographic

-the will must have been prorperly probated abroad -the foreign court sends a letter rogatory to a local court requesting assistance -petition to admit foreign will is filed in a local court

How can Foreign Wills be implemented


Sent to

Foreign will executed abroad

Probated in the country where it was executed Letter returned to foreign country

Letter Rogatory

Local Court

Disallowed

Letter testamentary/ of administration

Certificate of allowance

Notice of Hearing Allowed

In the case of foreign wills, they must be properly probated abroad and that there be a letter rogatory from a foreign court to a local court requesting assistance from a local probate court. A copy of the will and the order or decree of the allowance thereof, both duly authenticated, should be filed with a petition for its allowance in the Philippines by executor or any person interested in the court having jurisdiction. The court will then fix a time and place for the hearing and cause notices thereof to be given as in the case of an original will presented for allowance.

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If it appears at the hearing, that the will should be allowed in the Philippines, the court shall so allow it. Then a certificate of its allowance, signed by the judge and attested by the clerk of court to which shall be attached a copy of the will, shall be filed and recorded by the clerk. Thereafter, the will shall have the same effect as if originally allowed in such court. When the will is thus allowed, the court shall grant letters testamentary or letters of administration with the will annexed. Such letters shall extend to all of the estate of the testator in the Philippines. Such estate after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it. The residence, if any, shall be disposed of as provided by Philippine Law in cases of estate in the Philippines belonging to persons who are residents of another country. A local court may opt to refrain from accepting the probate of a foreign will, even if it has jurisdiction over it. Such refusal of jurisdiction may be based on the principle of forum non- conveniens, meaning, if the case at hand would involve too many foreign elements, local courts will be inconvenienced and extremely prejudiced if it will adjudicate the same.

Estate
Must be represented Administrator Letters of Administration Executor Letters Testamentary

Letters testamentary is the appointment issued by a probate court after the will has been admitted for probate to the executor named in the will to administer the estate of the deceased-testator provided the executor named in the will is competent, accepts the trust and posts a bond. Letters administration is the appointment issued by a court to a competent person to administer the estate of a deceased who died without a will, provided such person accepts the trust and posts a bond. When there is a delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take

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possession and charge of the estate until the questions causing the delay are decided and an executor or administrator be appointed. A special administrator may also be appointed if an executor or administrator so appointed fails to qualify or refuses the trust. An order appointing a special administrator by the court is merely interlocutory.

Administrator
The person appointed by the court, in accordance with law, to administer and settle the intestate estate and such testate estate, where no competent executor was designated by the testator.

Executor
The person nominated by the testator to carry out the testators directions and requests in his will and to dispose of his properties according to his testamentary dispositions after his death. Qualifications of an Administrator and an Executor 1. They must be of age. 2. They must be residents of the Philippines. 3. They must not be incompetent to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, and conviction of an offense involving moral turpitude. General Powers of Administrators 1. Administration He is required to handle and marshal all assets of the deceased and manage the estate wisely and economically and in a businesslike manner. For this purpose, he may bring such actions he may deem necessary. 2. Liquidation He is required not only to pay the debts of the deceased but also to determine and collate his assets and property.

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3. Distribution He is required, after all expenses have been paid, to distribute the net estate among the known heirs, devisees, legatees, and all other persons interested. Note: Administrators have the clear power to administer the affairs of the estate. However, they are not allowed to make acts of disposition and alienation of the assets of the estate without court approval that is properly secured by a previous motion. Preference of Appointment of Administrator 1. surviving spouse or next of kin or their recommendee 2. in default of the above, any principal debtor 3. in default of the above, such other person as the court may select The same preference is also applicable in the case of an executor. However, it is the testator who appoints his executor so that as long as the executor named in the will is competent, accepts the trust and qualifies by posting a bond. The probate court shall issue to him his commission to the office known as letters testamentary. If no executor is named in the will or the executor/s are incompetent, refuse the trust or fail to give bond or when the person dies intestate, the above preference mentioned shall be applied. Purpose of the Bond The bond requirement of the administrator will answer for the following duties: 1. for an administrator to make an inventory within three months 2. to administer the assets and pay all debts 3. to render an accounting of the estate within one year and from time to time 4. to perform all the orders of the court Note: In the event that the estate will be prejudiced, the court may forfeit the bond in favor of the estate. If the bond is not sufficient, appointment of administrator is not void. Remedy is to secure an order to file sufficient bond.

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Grounds for Removal of an Administrator 1. 2. 3. 4. if he neglects to render his account and settle the estate according to law if he neglects to perform an order or judgement of the court if he neglects a duty expressly provided by the Rules of Court if he absconds, becomes insane or otherwise incapable or unsuitable to discharge the trust Note: The grounds are not exclusive since the removal is dependent upon the sound discretion of the court. He may be removed on the ground of unfitness or unsuitability.

Inventory The inventory shall list all the assets and liabilities of the deceased, including: 1. potential assets and liabilities 2. inchoate assets and liabilities 3. contingent assets and liabilities But excludes the following: 1. wearing apparel of the surviving spouse and children 2. marriage bed and bedding 3. such provisions as will be consumed in the subsistence of the family

Settlement of Estate
Judicial Extra-judicial

Testate

Intestate

With no debts

Small value

Requisites: 1. Public instrument which could be an affidavit of self adjudication or by an action for partition 2. Publication once a week for three consecutive weeks 3. Heirs Bond to cover value of personal property (to answer to all potential claims Note: Only property susceptible of consumption

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Extra-Judicial Settlement

A C

B D

No Claims

By agreement -action for partition -decision of the court

No debts -heirs -owned in common

By Agreement The court will not approve a compromise agreement between the heirs executed during the pendency of an estate proceeding, and if approved, it is a reversible error. Such compromise agreements are not allowed because they will prejudice third party claimants against the estate. However, if there is an early compromise agreement, the court may properly defer approval of the agreement until such time that the net estate is about to be distributed. At that point, the compromise agreement can take the place of a plan of distribution that the administrator of the estate is required to submit. Notice of the agreement should be by publication in a newspaper of general circulation in the province once a week for three consecutive weeks.

Estate of Small Value


The value of the estate must have a gross value of less than P 10,000.00. Notice and publication of its settlement to interested person is to be directed by the court.

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Judicial Settlement

Petition is filed in court

Probate of will

Appointment of administrator or executor

Inventory of assets and liabilities

End of process

Net estate is distributed

Liabilities are paid

Notice to third party claimants

Who may petition for the allowance of a will? 1. 2. 3. 4. 5. the executor the devisee named in the will the legatee named in the will any person interested in the estate testator himself during his lifetime

The petition for the probate of the will is not subject to bar by the statute of limitations and does not prescribe. The petition may be filed at any time and is required by public policy. The probate of a will is a proceeding in rem and the publication provided for is a jurisdictional requirement. Publication is generally required, except, where the petitioner is the testator himself. In any event, notice of time and place for proving the will must be published three weeks successively before the date of hearing in a newspaper of general circulation. Where the testator himself petitions for the probate of his will in his lifetime, no publication is required and notice is required only for his compulsory heirs.

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During the lifetime of the testator, a limited proceeding may be commenced to probate his will. Once his will is admitted to probate, the proceedings are terminated. The court probating the will in that instance shall lose jurisdiction to continue adjudicating the estate of the testator.

Proof of an Uncontested Will


Will
Notarial requirement: ex-parte presentation of evidence Holographic requirements: 1. one witness 2. expert witness 3. testator during his lifetime proof: affirm the handwriting and signature of the testator

Proof of a Contested Will


Will
Notarial requirement: 1. all the available attesting witnesses 2. notary public (indispensable) Holographic requirements: 1. expert witness 2. Other witness (not mandatory)

Note: A will allowed to probate in a foreign country must be re-probated in the Philippines.

Claims Against Estate


Claims Actual (existing) Contingent

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Time to File Money Claims


After the court has appointed an administrator or executor for the estate, the court shall issue a notice to the public requiring the filing of money claims for not more than 12 months or less than 6 months after the first date of the publication of such notice. Before final distribution or partition of the net estate, a money claim, however, may still be allowed to be filed within a time of not exceeding one month before such distribution. A money claim is filed in the same manner as any ordinary complaint. The estate, if it chooses to contest the claim, will file an answer. The contested claim is thereafter tried and if there is a favorable judgement for the claimant which has become final and executory, such claim shall be in the list of claims that will be settled by the estate. Thus, the court will then issue an order or as many partial orders to pay all the final and executory claims. When a court renders a judgement approving a claim, the same estate court may order payment after such order has become final and executory.

12 months 6 months Statute of Non-claims Appointment of administrator Notice to claimants Date of publication Distribution of the estate

Claims that may be Filed Against the Estate


1. all claims for money against the decedent arising from contract, express or implied, whether the same be due or not 2. all claims for funeral expenses 3. expenses for last illness 4. judgement for sum of money against the decedent 5. liability for a tortious act, if expressed as damages

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Statute of Non-claims
The period of the statute of non-claims means that the filing of money claims should be during a period of six months starting from the sixth month after the date of the first publication of the notice down to the twelfth month. Within the range of said period, the probate court is permitted to set the period for filing of claims and the period, once fixed by the court, is mandatory. However, for good cause shown, the court may grant a one-month period for a creditor to file a claim that he failed to file during the original period granted for the filing of claims. Such motion for leave to file a claim beyond the original period may be filed at any time during the administration proceedings, provided, no order of distribution has yet been entered. Claims not filed within the period for the filing of claims are barred, but if the claimant is sued by the administrator or executor, either within the period of filing of claims or thereafter, such claim may be availed of by the defendant as a counterclaim. And if he proves the same, he may recover thereon against the estate.

Contingent Claims
It is one arising from a valid obligation but at the time of death of the deceased, the condition or requirement for such claim to become due and demandable has not yet occurred.
12 months 6 months Statute of Non-claims Date of Publication 2 years

Contingent Claims must be absolute

Contingent Claims are barred

With respect to contingent claims, the estate court is required to retain a portion of the estate for payment of contingent claims. However, the contingent claim must be absolute within two years from the time that other creditors are required to present their claims. Otherwise, the estate court may order the distribution of that portion of the estate set aside for the contingent claims.

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Note: 1. The Statute of Non-claims is superior to the period of prescription. 2. For a creditor to be able to collect, it must be within the Statute of Nonclaims and at the same time within the period of prescription.
Claims of the estate must be collected

Estate Court puts on trial each and every claim by third parties

Estate Court empowers the administrator/ executor to preserve the assets of the estate

Estate Court determines if settlement is possible

Estate Court approves the final partition of the net estate

Probate Court issues several orders approving or disapproving third party claimants. Notes: 1. if meritorious, approve each claim 2. each order can be the subject of an appeal

Probate Court issues an order authorizing the administrator to sue for and in behalf of the estate. Note: 1. to sue and recover claims, the probate court authorizes the administrator to be substituted for the estate 2. consider the economic aspect

Probate Court issues order for partial settlement Note: 1. it depends upon the trial of the claims 2. by proper motion or on its own

Probate Court issues order approving partition of the estate

Complication: Questions as to the status of heirs, a side issue which must first be resolved

How property of the estate may be sold, mortgaged or encumbered? 1. The executor/administrator shall file a written manifestation or application setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate to be sold,

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2.

3.

4.

5. 6.

mortgaged or encumbered and such other facts as will show that the sale, mortgage or encumbrance is necessary or beneficial. The court shall thereupon fix a time and place for hearing the application and cause notice thereof stating the nature, the reasons and the time and place of hearing to be given personally or by mail to the persons interested and may cause such further notice to be given by publication or otherwise, as it shall deem proper. If the court requires it, the executor/administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor/administrator will account the proceeds of the sale, mortgage or encumbrance. If the preceding requirement have been complied with, the court, by order stating such compliance, shall authorize the executor/administrator to sell, mortgage or encumbrance in proper cases such part as it deem necessary. In case of sale, the court may authorize it to be in public sale or private sale, as it deemed beneficial to all parties concerned. The executor/administrator shall be furnished a certified copy of such order. If the estate is to be sold at auction, the provisions concerning notice of execution sale shall govern the mode of giving notice of the time and place of the sale. There shall be recorded a certified copy of the order of the court together with the deed of the executor/administrator for such real estate which shall be as valid as if the deed has been executed by the deceased in his lifetime. It shall be recorded in the Registry of Deeds of the province in which the real estate thus sold, mortgaged or encumbered is situated

Action By and Against Executor and Administrator Administrator/Executor


may be sued in his Personal Capacity Representative Capacity An action to recover real or personal property or an interest therein or to enforce a lien thereon An action to recover damages for an injury to person or property, real or personal

An administrator/executor may be sued in his personal capacity for violation of or non-compliance with the duties of his trust. However, if the action would result in a direct charge upon the estate, the executor or administrator is to be sued in his representative capacity.

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For the recovery or protection of property or rights of the deceased, an executor/administrator may bring or defend, in the right of the deceased, actions for a cause that survives.

Money Claims (pending case)

Person dies

Old Rule: The money claim is dismissed and is re-filed in the estate court. New Rule: The case continues but there is substitution of the deceased and the estate.

Property Claims (pending case)

Person dies

Purely Personal Action

Person dies

Case is dismissed

Distribution and Partition of the Estate

Estate

Pays all debts and expenses: 1. funeral charges 2. administration expenses 3. allowance to widow 4. estate taxes

Distributees give a bond

Distribution/Partition

Motion for the approval of a plan of partition and/or distribution of the net estate

Issuance of certified copies of final orders and judgement Registry of Deeds

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Partition/Distribution of Net Estate


1. After all the debts, funeral charges, expenses, etc. have been paid, the residue shall be assigned to the persons entitled thereto. 2. No distribution shall be allowed until the payment of the obligations abovementioned has been made unless the distributees or any of them gives a bond in the sum fixed by the court conditioned for the payment of said obligations within such time as the court directs. 3. Certified copies of the final orders and judgements relating to the real estate or the partition thereof shall be recorded in the registry of deeds. Note: 1. The judicial orders of distribution vests title in the distributees and any objection thereto should be duly raised in a seasonable appeal; otherwise, it will have binding effect like any other judgement in rem. 2. The probate court loses jurisdiction of an estate under administration only after the payment of all debts and the delivery of the remaining estate to the heirs.

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Escheat
It is a proceeding whereby the real or personal property of a person, who died intestate, leaving no heirs or persons, by law, entitled to his estate, becomes the property of the State. It is, however, required that such properties are sustained in the Philippines. It is also a proceeding for the reversion to the State of property (inalienable lands of the public domain) alienated in violation of the Constitution or any statute. Under the first instance, the proceeding shall be instituted in the RTC of the province where the decedent last resided. In the second instance, the proceeding shall be instituted in the RTC of the province where the land lies in whole or in part. Petitions for escheat may only be filed in the name of the Republic of the Philippines by the Solicitor General or his representative. Even if the deceased died testate but his will was not allowed to probate, it is as if he died intestate. If he has no known heirs and there are no persons entitled to his property, the same can still be escheated.
Persons entitled to file a claim can still claim possession decedent died judgement of escheat five years after

Distinction between Reversion and Escheat Actions for reversion are proper in illegal sale of land to disqualified aliens. Furthermore, action for reversion shall be filed in the province where the land lies in whole or in part. Note: Publication at least once a week for six consecutive weeks in a newspaper of general circulation of the order approving the escheat is necessary.

Guardianship
Guardians

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Legal Guardians -no appointment needed e.g. parents w/respect to property of the minor not exceeding P 2,000.00

Guardian ad Litem -appointed by the court for a particular action or proceeding -must be competent

Judicial Guardian -appointed by the court over the person and/or property of the ward -must be competent

Guardian He is a person appointed by the court or by provision of law to care the person or property or both of another person who is incompetent to act for himself. The guardian has a fiduciary relationship with the ward. Accordingly, any property acquired by the guardian using assets of the ward are held in trust for the benefit of the ward. On the matter of guardianship proceedings, it must be noted that these are of limited scope and the courts jurisdiction is limited to appointing the guardian and overseeing the management of the wards estate. Any question as to ownership of any title to property, whether real or personal, should be adjudicated before the proper court in a separate proceeding. The subject of a guardianship proceedings is either: a) a resident minor, or b) an incompetent, both of whom have no lawful guardian or parents. Note: 1. Incompetence or the state of being incompetent is a product of judicial declaration in a guardianship proceeding. It cannot be inferred nor can it be implied. 2. Notice of petition must be given to all relatives of the minor or the incompetent or those taking care of the subject, including the minor/incompetent if over 14 years of age. No publication is required. The petition must contain: 1. the jurisdictional facts 2. the status of minority or incompetence 3. names, ages, and residence of the relatives of the minor or the incompetent and the person having custody of the minor or incompetent 4. probable value of the estate of the ward 5. name of the ward

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Once a petition is filed, the court shall serve notice to all the respondents for the hearing of the petition. Any interested party may file an opposition based upon the following grounds: 1. alleged minor is of age 2. the incompetent is in fact competent 3. guardian is not qualified During the hearing of the petition, the petitioner must prove all his allegations. Afterwards, the oppositor will also prove his oppositions. Thereafter, the court renders judgement on the question of minority and/or incompetence. The court may likewise issue order appointing the guardian if he is qualified. The qualifications of a guardian are similar to that of the administrator/executor. However, it is mandatory for the guardian to submit a guardians bond before he can be appointed as guardian. Once the guardian is appointed, he will be required to take care of the ward and manage the wards estate. However, he can only dispose and/or encumber any property of the ward after prior approval by the court. In addition, the guardian is required to submit an accounting of the estate to the court. All orders of the guardianship court are considered final and each of which may be a subject of an appeal.

a) b) c) d) e)

A guardian may be removed for the following grounds: if he becomes insane if he becomes incapable of discharging his functions if he is considered unsuitable if he has wasted or mismanage the estate if he has failed for 30 days to submit the required accounting

Trustees
Trust is a confidence reposed in one person called trustee relating to a property or right over such property held by the trustee for the benefit of a beneficiary known as cutui que trust. A petition for the appointment of a trustee may be filed in the: 1. Regional Trial Court where the will was allowed in the Philippines 2. Otherwise, the Regional Trial Court of the province where the property or some portion thereof, affected by the trust is situated

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An execution will not be exempted from posting a bond, even if such exemption is provided in the will but a trustee appointed in the will may be exempted from such bond when so directed in the will. Accounts of trustees must be under oath and shall be filed annually. Lastly, it is the duty of the trustee to deliver the trust property to the cutui que trust, free from liens and encumbrances.

Adoption and Custody of Minor


The custody of the child to the mother is not automatic under Sec. 6, Rule 99 of the Rules of Court. The court may award the care, custody and control of the child as will be for its best, permitting the child to choose which parent it prefers to live with if he be over 10 years of age. The custody of the child by the mother is automatic only when the child is under 7 years of age unless the court finds compelling reasons to order otherwise. Under Sec. 6, Rule 99 of the Rules of Court, parents of any minor child can be deprived of custody of their child by reason of: 1. long absence or legal physical disability or have abandoned the child 2. cannot support the child because of vagrancy, negligence or misconduct 3. neglects or refuses to support the child 4. treats the child with excessive harshness 5. gives the child corrupting orders 6. counsels, examples, causes or allows the child to engage in begging or to commit offense against the law The proper court, upon petition by some reputable residents of the province, may issue an order taking such minor from the custody of his parents and commit said minor to any suitable orphan asylum, childrens home or benevolent society.

Adoption
It is a judicial act which creates between two persons a relationship (by fiction of law) similar to that which results from legitimate paternity and filiation.

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A petition for adoption shall be filed in the adopters place of residence. The law on adoption is governed by the Family Code and suppletorily by PD 603, The Child and Youth Welfare Code. The judicial decree of adoption, once entered in the civil registry may not be altered except by a subsequent order. Requirements: 1. adopter must be of age 2. adopter must be in possession of full civil and legal rights 3. adopter must be in a position to support and care for his children by nature in keeping with the means both material and otherwise 4. adopter must be at least 16 years older than the person to be adopted unless adopter is the parent by nature of the person to be adopted or is the spouse of the legitimate parent of the person to be adopted 5. adopter must not be prohibited by law to be adopted 6. the person to be adopted must not be prohibited by law to be adopted 7. written amount of those who, according to law, shall be necessary must be secured 8. a judicial decree of adoption must be secured

Persons who must consent to the adoption: 1. the person to be adopted if he be 10 years or older 2. parents by nature of the child, the legal guardian or the proper government agency 3. legitimate and adopted children of the adopter who are 10 years or older 4. illegitimate children 10 years of age or over of the adopting parent, if living with said parent and the latters spouse if any 5. the spouse, if any, of the person adopting or to be adopted

Rescission of Adoption
A minor or other incapacitated person may, through a guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the same causes that authorize the deprivation of parental authority. If the adopted is at least 18 years of age, he may petition for rescission of the adoption of the same grounds prescribed for disinheriting an ascendant. The adopter likewise may petition the court for the rescission or revocation of the adoption in any of the following cases:

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1. the adopted has abandoned the home of the adopter 2. the adopted has attempted against the life of the adopter 3. when by other acts, the adopted has repudiated the adoption The venue for the petition for the revocation of adoption is the place of residence of the petitioner. The RTC in which the petition is filed shall issue an order requiring the adverse party to answer the petition within 15 days from receipt of a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct. A minor or other incapacitated person must file the petition for rescission of adoption within 5 years following his attaining of majority age or recovery from such incompetency. In the case of the adopter, within 5 years from the time the cause of action arises.

Hospitalization of the Insane Insanity


a. insane under the McNaughten Rule (Howling Mad Standard) A person is classified as insane if he is schizophrenic, with very few lucid intervals. Such a person is a danger to himself and to others. He is susceptible of violent acts. b. insane under the Modern Concept of Insanity (Right-Wrong Contest) A person is considered insane if most of the time he is unable to discern what is right or wrong. Such a person is susceptible of losing his assets and/or property to deceptive third parties. (Helpless Baby Standard)

Process
Person in custody or having charge of the insane Petition for the Hospitalization of Insane Person Director of Health or to the Opposition deputized agent Directors Petition Court hears the petition Dismiss

No
Insa order: Court issues ne 1. allowing commitment 2. custody of property

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Yes

The petition for the hospitalization of insane persons may be filed by the person in custody or having charge of said insane person. If he refuses, the Director of Health or the deputized agent shall file the petition. The petition must state that the subject is insane and has been determined to be a danger to himself and that his confinement is for public welfare. The same must be filed in the Regional Trial Court where the person alleged to be insane is found. The court during the hearing of the petition should clearly establish that the subject is in fact insane. And if in his opinion, the subject is really insane, the court will issue the following order: 1. the allowance for the commitment 2. the custody of the property of the insane until a guardian is appointed If in the opinion of the Director of Health, that the subject is already temporarily or permanently cured and that he is no longer a danger may file a petition to discharge the subject and once the court grants the petition, the subject is discharged. Notes: 1. An order of commitment never becomes final and executory. However, it is subject to review. 2. In the event that the commitment of the insane was without basis, a petition for habeas corpus may be filed before a high court. 3. There is no res judicata in hospitalization proceedings. A person may be recommitted if he becomes insane again.

Writ of Habeas Corpus

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It is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated place and at a certain time. Such person is required to explain before the court the reason why the subject is under detention and why the subject is under the custody of such person. It is a proceeding that is intended to address the following problems: 1. deprivation of liberty of a person 2. deprivation of the rightful custody of a particular person

Process
Petition for the issuance of a Writ of Habeas Corpus Court determines the sufficiency of the petition Court immediately issues an order (within 48 hours) Clerk of court prepares the writ on the basis of the order Writ addressed to the respondent ordering: 1. to bring the body 2. to explain basis of detention

Note: 1. the respondent is directed upon receipt to bring the subject of the petition to court at a time and place specified in the writ and explain the reason for detention 2. if sufficient, there is basis for detention; if not, an order of discharge is directed to the respondent Requirements 1. that the person in whose behalf the writ is sought is imprisoned or restrained of his liberty 2. that the officer or name of the person by whom he is so imprisoned or restrained, or if both, are unknown or uncertain, such officer or person may be described by an assured appellation and the person who is served with the writ shall be deemed the person intended 3. the place where the person in whose behalf the writ is sought is imprisoned or restrained, if known 4. a copy of the commitment order or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy, or if the imprisonment or restraint is without any legal authority, such fact shall appear

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The Supreme Court or any member thereof in the instances provided by law may grant the writ. If so granted, it shall be enforceable anywhere in the Philippines and may be made returnable before the court or any member thereof or before the RTC or any judge thereof and then render decision on the merits. It may also be granted by the RTC or any judge thereof at any day and time, returnable before himself and enforceable only within the judicial region of the RTC. Note: MTC does not have jurisdiction to entertain petitions for the issuance of this writ.

Change of Name
Civil Registry It is the entity that is tasked with the recording of all birth, death and marriages. The record of the civil registry can not be altered except by judicial order or decree. Moreover, the records of the registry are binding upon the persons registered therein. Changes in the records of the civil registry that affects the status of a person, his name, etc., can only be done through an express judicial order under a special proceeding that is in rem in effect. Entries in the civil registry may be corrected by filing a verified petition for the cancellation or correction of any entry relating thereto with the RTC of the province where the corresponding civil registry is located. The court shall, by an order, fix the time and place for the hearing of the same and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three consecutive weeks in a newspaper of general circulation in the province. A hearing shall be held thereon and a certified copy of the judgement shall be served upon the civil registrar concerned, who shall annotate the same in his record. Contents of the Petition 1. Bona fide resident for at least three years 2. Reasons for change of name 3. Name asked for Opposition to a change of name may be brought for several reasons:

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1. if the proposed name will create confusion prejudicial to a third party 2. proposed name will be offensive to public morals and decency 3. if it will enable petitioner to evade his liabilities Grounds for change of name 1. when necessary to avoid confusion 2. when the name is ridiculous, tainted with dishonor or is extremely difficult to write or pronounce 3. when the request for change of name is a consequence of a change in status 4. having continuously known and used since childhood 5. a sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody 6. when surname causes embarrassment Aliases A petition for change of name can also be made if the name sought to be registered is a long standing alias and the petitioner is popularly known under such alias.

Change of Status In change of status, the law allows any third party or any interested person to file a Petition for Cancellation or Correction. However, all interested persons should be notified in order for the court to acquire jurisdiction.

Constitution of Family Home


A family home, once constituted becomes immune from execution. However, to bind third parties, the constitution of a family home should be annotated in the Torrens Title. If it is not annotated, the property cannot be exempted from execution even if you raise the same before the judge.

Absentees
An absentee is a person whose whereabouts are unknown. He is a person who disappears without leaving an agent to manage his property.

NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGE-INSTITUTE OF LAW edstf@yahoo.com

A petition to declare a person as absentee may be filed by an interested party, relative or friend before the RTC of the last place of residence of the person who disappeared. The petition is heard after notice and publication. Publication is jurisdictional. Once the court is satisfied, it will issue an order appointing a trustee to administer the property of the absentee. A petition to declare an absentee is not required when the subject left no property for that reason that there is no need.

JURISDICTION IN CRIMINAL CASES


SUPREME COURT A. The Supreme Court has original I. Exclusive Jurisdiction over - Petitions for certiorari, prohibition and mandamus against the decisions of the Court of Appeals and the Sandiganbayan II. Concurrent Jurisdiction - With the Court of Appeals over petitions for certiorari, prohibition, and mandamus against the decisions of the Regional Trial Court - With the Court of Appeals and the Regional Trial Court over petitions for certiorari, prohibition, and mandamus against the lower courts - With the Sandiganbayan over petitions for certiorari, prohibition, and mandamus, habeas corpus, injunctions, and ancillary writs in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14, and 14-A

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B. The Supreme Court has exclusive Appellate Jurisdiction over I. By Appeal - From the decisions of the Regional Trial Courts in all criminal cases involving offenses for which the penalty is reclusion perpetua or life imprisonment and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion - Automatic review in criminal cases where the death penalty is imposed II. By Petition for Review on Certiorari - From the decisions of the Court of Appeals - From the decisions of the Sandiganbayan - From the decisions of the Regional Trial Court where only error or question of law is involved

COURT OF APPEALS A. The Court of Appeals has Original I. Exclusive Jurisdiction over: - Actions for Annulment of Judgements of the Regional Trial Courts II. Concurrent Jurisdiction over - Petitions for certiorari, prohibition, and mandamus against the decisions of the Regional Trial Courts with the Supreme Court - Petitions for certiorari, prohibitions and mandamus against the decisions of the lower courts with the Supreme Court and the Regional Trial Courts

B. The Court of Appeals has Exclusive Appellate Jurisdiction I. By Appeal - From the decisions of the Regional Trial Courts in cases commenced therein, except those appellate to the Supreme Court or the Sandiganbayan

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II.

By Petition for Review - From the decisions of the Regional Trial Courts in cases appealed thereto from the lower courts and not appealable to the Sandiganbayan

SANDIGANBAYAN A. The Sandiganbayan has Original I. Exclusive Jurisdiction over - Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense 1. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher of the Compensation and Position Classification Act of 1989, specially including: (a) Provincial Governors, Vice-Governors, members of the Sangguniang Panlalawigan, and Provincial Treasurers, Assessors, Engineers, and other Provincial Department Heads; (b) City Mayors, Vice-Mayors, members of the Sangguniang Panlungsod, City Treasurers, Assessors, Engineers, and other City Department Heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and Air Force Colonels, Naval Captains, and all officials of higher ranks; (e) Officers of the Philippine National Police while occupying the positions of Provincial Director and those holding the rank of Senior Superintendent or higher; (f) City and Provincial Prosecutors and their assistants and officials and prosecutors in the Office of the Ombudsman and Special Prosecutors; (g) Presidents, Directors or Trustees or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations. 2. Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989 3. Members of the judiciary without prejudice to the provisions of the Constitution

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4. Chairmen and members of the Constitutional Commissions without prejudice to the provisions of the Constitution 5. All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989 - Other offenses or felonies whether simple or complexed with other crime committed in relation to their office by the public officials and employees mentioned in Sec 4a, PD 1606, as amended by Republic Act No. 7975 - Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 14-A issued in 1986 II. Concurrent Jurisdiction over - Petitions for certiorari, prohibition, and mandamus, habeas corpus, injunctions, and ancillary writs in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14, and 14-A with the Supreme Court

B. The Sandiganbayan has Exclusive Appellate Jurisdiction I. By Appeal - From the decisions of the Regional Trial Courts in cases under PD 1606, as amended by PD 1861, whether or not cases were decided by them in the exercise of their original or appellate jurisdictions

REGIONAL TRIAL COURT A. The Regional Trial Court has Exclusive Original Jurisdiction over - All criminal cases which are not within the exclusive jurisdiction of any court, tribunal or body B. The Regional Trial Court has Exclusive Appellate Jurisdiction over - All criminal cases decided by the lower courts in their respective territorial jurisdictions

METROPOLITAN, MUNICIPAL AND MUNICIPAL CIRCUIT TRIAL COURT A. The MTC has Exclusive Original Jurisdiction over - All violations of city or municipal ordinances committed within their respective territorial jurisdictions - All offenses punishable with imprisonment of not more than 6 years irrespective of the amount of fine and in all cases of damage to

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property through criminal negligence, regardless of other penalties and the civil liabilities arising therefrom All offenses committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations and by private individuals charged as coprincipals, accomplices or accessories punishable with imprisonment of not more than 6 years or where none of the accused holds a position having a salary grade 27 and higher

B. Summary Procedure - Traffic violations - Violations of the Rental Laws - Violations of the City or Municipal Ordinances - All other offenses where the penalty does not exceed 6 months imprisonment and/or P 1,000.00 fine, irrespective of other penalties or civil liability arising therefrom and in offenses involving damage to property through criminal negligence where the imposable fine does not exceed P 10,000.00

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CRIMINAL PROCEDURE
Offender is arrested in flagrante delicto (Valid warrantless arrest) Crime is committed Offender Regular investigation If minor, apply: 1. Child Abuse Law 2. Child Witness Rule Within Metro Manila & other chartered cities Outside Metro Manila Where the offense was committed

Inquest Proceedings

Case is dismissed & warrant is lifted

Information is filed

NO

YES
Agre e to file

Judgement

Post-judgement Remedies

Trial on the Merits

Execution

YES
Arraignment & Trial

Preliminary Investigation before the City Prosecutor

MTC Judge submits recommendation to provincial prosecutor to file information Is case cognizable by the RTC Is there probable cause to issue warrant

YES
Information is filed in court NO Is there probable cause

YES

Bail

Direct filing of the case to the MTC

YES Warrant

of arrest served to offender

Will court NO issue a warrant?

NO

Case dismissed

NO

Preliminary investigation before the MTC Judge

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Institution of Criminal Action


For offenses falling under the jurisdiction of the MTC, a complaint or information is filed directly with the said courts or a complaint with the prosecutors office. However, in Metro Manila and other chartered cities, the complaint may be filed only with the office of the prosecutor. For offenses falling under the jurisdiction of the RTC, a complaint is filed with the appropriate officer for the purpose of conducting the requisite preliminary investigation. Note: A criminal action may be instituted by mere complaint if the offense is within the jurisdiction of the MTC in the rural areas.

Crime is committed Imposable Imprisonment

6 Years and Below MTC

More than 6 Years RTC

Prescriptive Period for Criminal Offenses


1. Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in 20 years. 2. Crimes punishable by other afflictive penalty shall prescribe in 15 years. 3. Crimes punishable by correctional penalty shall prescribe in 10 years with the exception of those punishable be arresto mayor which shall prescribe in 5 years. 4. The offense of oral defamation and slander by deed shall prescribe in 6 months. 5. Light offenses shall prescribe in 3 months.

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Complaint
It is the written statement executed by the complainant and the affidavits of the complainant and his witnesses. The affidavits shall be sworn before any prosecutor or government official authorized to administer an oath or in their absence before a notary public. The certification must state that the officer personally examined the affiant and that the officer is satisfied that the affiant voluntarily executed and understood his affidavit. Illustration:
Offended Party

Crime is committed

Complaint

Where offense was committed

Outside Metro Manila

Offense cognizable by the RTC

Offense not cognizable by the RTC

Within Metro Manila & other chartered cities

MTC Judge

Direct Filing with MTC

City Prosecutor

Officers authorized to conduct Preliminary Investigation


1. City Prosecutor and his assistants (within Metro Manila & other chartered cities) 2. National or regional State Prosecutors and their assistants (anywhere in the Philippines) 3. Provincial Prosecutor and their assistants 4. Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts 5. Other officers as authorized by law

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Crime is committed

Offender is arrested in flagrante delicto

Inquest

Filing of the information or complaint

Warrantless Arrest

Offender may pre-empt the filing of the information by executing a waiver of Art. 125 of the RPC

Preliminary Investigation is conducted within 15 days

5 days from filing the complaint, offender may ask, as a matter of right, for preliminary investigation

Inquest
It is a proceeding conducted to determine the legality or validity of an arrest. It is intended to cover those where a valid warrantless arrest is made. If the investigating prosecutor or judge believes that a crime was committed and there is probable cause, he shall immediately file the proper information or complaint in court. In the absence of an inquest prosecutor, the complaint may be filed directly in court by the offended party or a peace officer on the basis of the affidavit of the offended party/officer. Under the present rule, inquest does not eliminate the right of the accused to preliminary investigation. The accused may ask for preliminary investigation within 5 days from the time the accused learns of the filing of an information. Nevertheless, the accused may pre-empt the filing of the information by executing a waiver in writing of Art. 125 of the RPC in the presence of his counsel. A preliminary investigation that is requested by the accused must be terminated within 15 days from its inception. Under the new rules, the accused is allowed to post bail even if there was a waiver of Art. 125 of the Revised Penal Code2. Note: Period of time between the commencement of the offense until the offender was arrested is not significant.
2

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities.

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Prosecution of Civil Action

When a criminal action is instituted

Related civil action is deemed instituted with the criminal case

Reservation is made to file civil action including independent civil actions

Judgement shall include a finding on the civil liability

Court tries only the criminal aspect

No separate civil action may be instituted

The reserved independent civil action continues to be litigated. (Arts. 32, 33, 34, 2176 of the Civil Code)

Reserved civil case is suspended

Where the civil case was filed ahead of the criminal case

Reservation is made by filing: 1. a civil action before the criminal case is instituted 2. a notice of reservation before the court trying the criminal case prior to the presentation of evidence by the prosecution Reservation of the civil aspect is not applicable to B.P.22 cases

Double Jeopardy is prohibited Civil case may be consolidated with the criminal action. The plaintiffs witnesses shall be subject to crossexamination

Preliminary Investigation
It is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime

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cognizable by the Regional Trial Court was committed and that respondent is probably guilty thereof and should be held for trial.

Information
It is an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court.

Court has no jurisdiction

Court has full jurisdiction

Time when information is filed in court

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

Prejudicial Questions
Majority of the Cases Filing of the Criminal Case Suspends Civil Action

Except Independent Civil Action Prejudicial Question Criminal Case Suspends Filing of a Civil Action

It is a question that arises in a civil case, the resolution of which is a logical antecedent of the issue involved in a criminal action. In prejudicial question, there is an issue in the civil action that is intimately related to and determinative of the guilt of the accused in the criminal action. Note: The civil case should have been filed before the criminal case; otherwise, the civil case is considered filed in bad faith, thus, no prejudicial question.

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Arrest with Warrant


Complaint is filed Subpoena is issued against respondent w/copy of the complaint & affidavit If respondent cannot be subpoenaed or refuse to submit counter-affidavit, the investigating officer can resolve the case based on the complaint

Authorized officer studies the complaint Respondent submits his counter-affidavit

DISAGREE
Resolution is reviewed

Case is dismissed

AGREE
Information is filed in court

YES
Is there ground to continue investigatio n Investigating officer may set a 5-day hearing to clarify facts Resolution is forwarded to the Provincial or State Prosecutor or Ombudsman

NO
Case is dismissed

NO

Investigating officer determines if there is sufficient ground to hold respondent for trial

YES

If municipal judge

If prosecutor

Prepares certification & information

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Court Judge evaluates information & resolution if there is probable cause

NO YES
Warrant of Arrest is issued

Judge shall order the presentation of additional evidence & evaluates if probable cause exist

Case is dismissed

NO

YES Issues a
Warrant of Arrest

Arrest
It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Note: 1. The Municipal Judge, in cases where the offense was committed outside Metro Manila or unchartered cities but cognizable by the RTC, may issue a warrant of arrest even before the completion of the information that is if probable cause exist. This is the only instance where a warrant of arrest is issued prior to the filing of the information. 2. In the event that the Provincial, City or State Prosecutor or the Ombudsman disagrees with the findings of the Municipal Judge, the case is dismissed and any previously issued warrant of arrest is ordered lifted. 3. A warrant of arrest must be executed within 10 days. If not an alias warrant may be applied for.

Warrantless Arrest (See diagram on Inquest Proceedings)


Since arrest involves the curtailment of a basic natural right, it is generally required that a warrant for the arrest of an individual be issued by the proper authority. However, this rule accepts of some exceptions like when a peace officer or a private person:

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a. in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b. has personal knowledge of facts, when an offense has in fact just been committed, indicating that the person to be arrested has committed it; c. is arresting a prisoner who has escaped from a penal establishment or a place where he is serving final judgement or temporary confinement while his case is pending or has escaped while being transferred from one confinement to another. Remedies of a person who has been arrested on the basis of an invalid warrant: 1. file a petition for the issuance of a writ of habeas corpus 2. post a bail (however, if bail is posted, any irregularity in the issuance of the order of arrest is waived) Note: 1. The length of time, for paragraph (a) above, between the commission of an offense and the actual arrest must not be too long; otherwise, the defense of warrantless arrest could not be availed of. 2. Lack of personal knowledge is not an absolute bar against warrantless arrest; if the arresting officer has knowledge of the circumstances that the person arrested has committed it, then there would be a valid warrantless arrest. 3. Under the new rule, the arresting officer is required to observe the proper method of arrest by informing the accused or the person to be arrested of the reason for the arrest. However, this rule accepts of some exceptions: a. if the person sought to be arrested is engaged in the commission of the offense b. if there is a hot pursuit c. if the arrested person escapes or flees d. when the giving of such information will imperil the arrest 4. When there is a valid warrantless arrest, the peace officer may break into the building or enclosure without need of a search warrant. 5. During the course of a valid warrantless arrest, only evidence obtained in plain view may be seized and used against the accused for his prosecution. Nevertheless, the peace officer may seize the contraband if found.

Plain View Rule Under this rule, the evidence must be open to eye and hand and must have been discovered by accident and not intentionally. It covers the act of frisking the accused that has been arrested. However, in the case of People vs. Abe Valdez, the Supreme Court refined the doctrine of plain view. Thus, evidence obtained inadvertently on the occasion of a valid legal search shall be admissible in evidence, provided that it is in plain view

Bail
It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by the rules.

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Crime is committed

Regular investigation

Information is filed

Offender is caught in flagrante delicto Within 5 days must ask for preliminary investigation

Warrant of Arrest is issued Motion for Bail

Offender, before information is filed, signs waiver of Art. 125 of the RPC

Bail

Petition for Bail

Bail

-In the Matter RTC, of before -In the RTC, Not before conviction, After Discretionary conviction in the conviction, Right unless the where the offense Allowed committed is RTC for an offense offense is punishable by punishable by capital punishment and punishable by more than 6 NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGE-INSTITUTE OF years, LAW edstf@yahoo.com death, reclusion perpetua the evidence of guilt is strong subject to certain or life imprisonment conditions -After conviction, when the -In the MTC, before and judgement has become final and after conviction executory may: To avail the right to bail, the accused

1. file a petition for bail, if a criminal case has not yet been the judgement has become final & filed Note: In the case of Teehankee vs. Rovira, it was held that a person need not executory wait until a formal complaint or information is filed against him before he could post bail. The law does not prohibit a person from posting bail in anticipation of a warrant of arrest that will be issued against him 2. file a motion for bail, if a criminal case has been filed

-In the MTC, after conviction, when

Bail Hearing
Information is filed Motion to allow accused to post bail Bail Hearing Court grants bail

Arraignment

Purpose
to compel the prosecution to present evidence sufficient to prove probability of guilt only the prosecution can present evidence which is automatically adopted in the trial on the merits of the case

In a proceeding for the application for bail, where bail has been denied, the prosecution shall be required to present evidence of the offenders guilt and that such evidence must be considered strong. In those instances where bail is discretionary in the RTC, a person may be denied bail if he is a recidivist, quasi-recidivist, habitually delinquent or if the accused is guilty of reiteration. The accused may also be denied bail if he has previously escaped or there is probability of flight if he is released. Under the present law, an accused applying for bail shall not bar him from assailing or attacking the legality of his detention or arrest, provided that such a challenge is made before the accused enters his plea.

Statutory Rights of the Accused


1. To be presumed innocent until the contrary is proved beyond reasonable doubt 2. To be informed of the nature and cause of the accusation against him 3. To be present and defend himself in person and by counsel at every stage of the proceedings from arraignment to the promulgation of judgement 4. To testify in his behalf but subject to cross-examination on matters covered by the direct examination; his silence shall not in any manner prejudice him 5. To be exempt from being compelled to be a witness against himself 6. To confront and cross-examine the witnesses against him at the trial 7. To have compulsory process issued to secure the attendance of witnesses and production of evidence in his behalf

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8. To have speedy, impartial and public trial 9. To have the right of appeal in all cases allowed and in the manner prescribed by law

General Investigation

Custodial Investigation

1. Right against self-incrimination 2. Right to counsel 3. Right to remain silent

Note: Any investigation that might lead to criminal prosecution without providing the accused to exercise above-mentioned rights shall be inadmissible.

Custodial Investigation
There is custodial investigation whenever the focus of investigation shifts to the accused and he is already considered a suspect. Note: 1. Policeman can only secure evidence if a waiver is given in the manner that: a. accused was informed of his right to self-incrimination, the right to remain silent and the right to counsel b. accused waived his rights in writing and at the presence of a counsel 2. The right to be present in all stages of the proceedings accepts of an exception in cases of permissible trial in absentia. However, the following must be present: a. that the accused has been arraigned b. that the accused had notice of the schedule of trial c. that the accused was absent without justifiable reason 3. In the case of Tatad vs. Sandiganbayan, the Supreme Court held that the right to a speedy, impartial and public trial involves not only trial but also in all stages of the prosecution of the case.

Bill of Particulars
Motion for Bill of Particulars

Criminal Cases - it may be oral - it is sought before arraignment

Civil Cases it must be in writing it must be filed before the answer is filed

At the time or before the arraignment, the accused may move for bill of particulars to enable the accused to properly plead and prepare for trial. The motion must identify the portions of the information that are vague. If the court grants the motion, the arraignment is deferred and the prosecution is required to submit a bill of specification to be attached on the information.

Arraignment and Plea


Arraignment is a stage in a criminal proceeding where the accused is informed of the charge or accusation against him and he is given opportunity to plead or obtain from him his answer or plea to the accusation in the information.

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a. b. c. d.

For there to be a valid arraignment, the following must be complied: That the accused must be present and assisted by a counsel That the information or complaint must be read and explained to the accused That the public prosecutor must be present at the time of arraignment That the information must be valid, stating therein: - place of the commission of the offense (venue) - acts constituting the offense - identity or name of the accused - date and when the offense was committed (if material) - authority of the person filing the information or complaint

Non-compliance of the requisites for arraignment shall amount to jurisdictional error because the court never acquired jurisdiction over the person of the accused. Any judgement rendered by the court in that instance is null and void. However, the accused cannot invoke double jeopardy for subsequent indictment because the court never acquired jurisdiction over his person. Purposes of Arraignment 1. To fix the identity of the accused 2. To inform him why he was indicted 3. To inform him of the charges and the penalty he has to face if convicted 4. To obtain from him and enter his answer or plea to the accusation charged in the information

Venue
Venue in criminal proceeding is jurisdictional because the witnesses and evidence to the crime can be found at the place where the offense was committed.

Transitory Offense
Transitory offenses are offenses committed by a person where the essential ingredients of the offense took place on different places; therefore, subjecting the person who committed the offense to the jurisdiction of the courts where the said ingredients of the offense took place. In transitory offenses, the transaction of the offense was a reason not because of the different acts of committing the offense but more because of the place where the offense is being committed which causes its transition. Note: 1. Extra-territorial crimes which are actionable in the Philippines pursuant to Article 2 of the Revised Penal Code, the prosecution has the option to file the case in any court of competent jurisdiction. 2. When a crime was committed within a watercraft navigating in the Philippines whether or not registered in the Philippines, the case is actionable by the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage.

Exceptions to Venue of Transitory Offenses


1. felonies stated in Article 2 of the Revised Penal Code 2. continuing offenses

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3. 4. 5. 6.

piracy libel exceptional circumstances offenses having a situs

Continuing Offenses
Continuing offenses are offenses which may be committed in different places but its transient was not because of the place but rather it is an element of the crime necessary to consummate it. How to determine the place where to institute the crime 1. If the offense is one of those recognized by the International Law then that offense could be prosecuted in the Philippines. As a rule, it shall be instituted in the court of the port of entry. 2. If the offense is one of those offenses under Article 2 of the Revised Penal Code, it shall be instituted and cognizable at the court where the action was first filed. The following are the extra-territorial crimes: 1. Crimes against National Security (Art. 114 to Art. 123 of the RPC) 2. Making and Importing and Uttering False Coins (Art. 163 of the RPC) 3. Forging Treasury or Bank Notes or other document payable to bearer (Art. 166 of the RPC) 4. Usurpation of Authority or Official Function (Art. 177 of the RPC) 5. Bribery, Illegal Exaction, Malversation (Art. 210 to Art. 221 of the RPC)

The arraignment may be suspended or deferred if the accused: 1. files a motion for bill of particulars and the same is granted 2. raises a valid prejudicial question 3. files a motion for the production or inspection of a material evidence in the possession of the prosecution 4. is suffering from a mental condition which renders him unable to understand the charges against him 5. files a petition for review under DOJ Circular 228 provided that such investigation shall not exceed 60 days Note: 1. Under the present rule, the rule on plea-bargaining had been clarified. The accused at the time of the arraignment may plead guilty to a lesser-included offense with the consent of the prosecutor and the offended party. However, if the offended party is absent at the time of the arraignment, it is enough that the public prosecutor gives his consent to the plea. 2. A failure to observe the rules on arraignment is a reversible error and a judgement of conviction can not stand upon an invalid arraignment.

Warrant Trial of Arrest

Bail Motion to Quash

Arraignment &Plea

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Motion to Quash
It is a special pleading that can be filed by the defendant before entering his plea. It is a pleading that hypothetically admits the truth of the facts spelled out in the complaint or information at the same time sets up a matter, which if duly proved, would preclude further proceedings. It is formerly called demurrer.

Grounds for motion to quash


1. the facts charged do not constitute an offense 2. the court has no jurisdiction over the offense charged or the person of the accused 3. the officer who filed the information had no authority to do so 4. the complaint or information does not conform substantially to the prescribed form 5. more than one offense is charged 6. the criminal liability or action has been extinguished 7. the complaint or information contains averments which, if true, would constitute a legal justification 8. the accused has been previously convicted or being in jeopardy of being convicted or acquitted of the offense charged

Double Jeopardy
It is a personal defense that can be waived if not raised on time. The reason for the rule is that the accused can not be vexed by continuous litigation on the same subject. There must have been a first jeopardy consisting of: a) a valid complaint or information, b) filed before a competent court, c) to which the accused has pleaded, and d) the accused was previously acquitted or convicted or the case was dismissed or otherwise terminated without his express consent. Thereafter, a second jeopardy attaches to which the accused is subsequently charged involving: a) the same offense, b) an attempt, c) a frustration, or d) a lesser offense. However, the same accepts of some exceptions, to wit: a) supervening events, b) unknown facts, c) plea to a lesser offense without the consent of the fiscal, d) where the proceedings before the trial court have been biased against the State, and e) where the accused appealed on the acquittal. A motion to quash is intended to test the sufficiency of the allegations in the complaint or information. It is similar in concept to a motion to dismiss in civil cases. All defects in the information must be assailed in the motion to quash. If the defects are not raised, they are deemed waived except in the following circumstances: a. when the facts charged do not constitute an offense b. when the court trying the case has no jurisdiction over the offense charged c. when the criminal action or liability has been extinguished d. when the defendant has been previously convicted or in jeopardy of being convicted or acquitted of the offense charged Note: 1. An order denying a motion to quash is interlocutory and not appealable and generally, such denial can not be controlled by certiorari; and the denial of a motion to quash grounded on double jeopardy is not controllable by mandamus. 2. An order granting a motion to quash is appealable and the accused can not claim double jeopardy as the dismissal is procured not only with his consent but also at his own instance.

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3. Where the case was dismissed provisionally with the consent of the accused, he can not invoke double jeopardy in another prosecution therefor or where the case was reinstated on a motion for reconsideration by the prosecution. An exception to this is where the prosecution, theretofore, had repeatedly sought and obtained postponements over the objection of the accused and the court denied the last postponement. The dismissal by the court of the case is equivalent to the acquittal of the accused for lack of evidence and constitutes a bar to another prosecution of the accused for the same offense. 4. Three instances wherein another prosecution for an offense which necessarily includes the offense charged in the former complaint or information will not constitute double jeopardy, thus: a. where the graver offense developed due to facts which supervened after or arose from the same act or omission constituting the former charge b. where the facts constituting the graver charge becomes known or were discovered only after the former complaint or information was filed c. where the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party

Dismissal in Criminal Action


Dismissal

Provisional

Permanent

With consent of the accused

Right against double jeopardy becomes available

Imprisonment 6 years and below, the dismissal must be revived within 1 year; otherwise, it becomes permanent

Imprisonment over 6 years, the dismissal must be revived within 2 years; otherwise, it becomes permanent

Dismissal based on demurrer; with consent of the accused

Provisional dismissal is a dismissal of a criminal action that requires the consent of the accused and with notice to the offended party. In this case, the accused can not invoke double jeopardy in case a similar action is charged against him.

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Pre-trial
Pre-trial in criminal cases is now mandatory. The accused is merely required to sign the written agreement arrived at in the pre-trial conference, if he is confirming therewith. Hence, unless otherwise required by the court, his personal presence at the conference therefor is indispensable.

Arraignment (court acquires jurisdiction over the accused)

30 days

Pre-trial

Trial
30 days Pre-trial Agreement Regular Order Trial

Reverse
When at the time of arraignment, accused raises an affirmative defense

The total absence of notice of trial is a denial of due process and a new trial may be granted. To warrant a postponement due to absence of a witness, it must appear that: a. the witness is really material and appears to the court to be so b. the party who applies for postponement has not been guilty of neglect c. the witness can be had at the time to which the trial has been deferred d. no similar evidence could be obtained The non-appearance of the prosecution at the trial, despite due notice, justifies a provisional dismissal or an absolute dismissal depending on the circumstances.

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Order of Trial
Prosecution presents evidence to prove charge

Prosecution rests

NO YES
Will court dismiss the action

Accused may present evidence to prove his defense

NO

At its own initiative

YES

Prosecution may present rebuttal evidence

Upon demurrer to evidence filed by the accused

On the ground of insufficiency of evidence


Motion for leave of court to file demurrer to evidence shall: 1. specifically state its grounds 2. be filed w/in a nonextendible period of 5 days after prosecution rests 3. opposition shall also be w/in 5 days (nonextendible) from receipt

NO
Defense may present surrebuttal evidence Accused waives his right to present evidence

With leave of court

YES
Grante d

YES
Accused may adduce evidence in his defense

NO

Submitted for decision Submits the case for judgement based on the prosecutions evidence

File evidence within a nonextendible period of ten days from notice

Prosecution rebuts

Prosecution may oppose within a non-extendible period of ten days from receipt

Defense surrebuts

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Judgement
It is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability. It is promulgated by reading it in the presence of the accused and any judge of the court in which it is rendered.

Post-Judgement Remedies

Trial

Judgement

Post-judgement Remedies New Trial Reconsideration Reopening of the Case

Finality

Appeal

Motion for Reconsideration or New Trial


A motion for a new trial or reconsideration should be filed with the trial court within 15 days from the promulgation of the judgement. The filing of the said motion interrupts the period for perfecting an appeal from the time of its filing until notice of the order overruling the motion shall have been served upon the accused. If an appeal has already been perfected, a motion for new trial on the ground of newly discovered evidence may be filed in the appellate court. A new trial, as differentiated from the reopening of a case, is filed only after judgement has been rendered but before finality thereof. It is done at the instance or with the consent of the accused. Grounds for a New Trial 1. errors of law or irregularities prejudicial to the substantial rights of the accused must have been committed during the trial 2. new and material evidence has been discovered which the accused could not have discovered and produced at the trial, and which if introduced and admitted would probably change the judgement Ground for Reconsideration 1. errors of law or fact in the judgement Effects of granting a new trial or reconsideration 1. if granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew

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2. if granted on the ground of newly discovered evidence, the evidence already adduced shall stand and the newly discovered evidence shall be allowed to be introduced together with the evidence already in the record 3. in all cases, the original judgement shall be set aside and a new judgement rendered accordingly

Reopening of the Case


A reopening of a case can be made after the promulgation but before finality or before judgement is rendered. It will be recalled that a motion for new trial or reconsideration is also available to the accused at any time before finality of the judgement. The prosecutor or even the trial court without the consent of the accused can not resort to this remedy. Hence, in the first situation , for a case to be reopened, the consent of the accused is necessary. However, in the second situation, it does not require the consent of the accused and may be at the instance of either party who can present additional evidence. The reopening of the case can be done by the judge motu propio or upon motion but with hearing in either case. Its purpose is to avoid miscarriage of justice.

Appeal
15-day Period to Perfect an Appeal

Judgement

Final & Executory

Notice of Appeal

Filed in the MTC or MCTC

Penalty imposed is death, reclusion perpetua or life imprisonment

Filed in the RTC

Clerk of Court transmits the original record

W/in 5days from notice


Appropriate RTC

Notice of Appeal is not necessary

Penalty imposed is lesser than reclusion perpetua or life imprisonment

Clerk of Court transmits the original record

Clerk of Court transmits the original record

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RTC notifies the parties upon receipt

Court of Appeals Supreme Court Upon receipt shall review If reclusion perpetua or life imprisonment, review If death, automatic review

W/in 15 days from notice


Parties submit memoranda or briefs upon receipt

Only final judgements and orders are appealable. A judgement is final if it completely disposes the issue so that nothing more is left to be done by the trial court or no further questions affecting the merits of the case remain for adjudication. An appeal by the prosecution from the court order of dismissal of the criminal case by the trial court will not constitute double jeopardy if: a. the dismissal is made upon motion or with the express consent of the accused b. the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case c. the question to be passed upon by the appellate court is purely legal, so that, should the dismissal be found incorrect, the case would have to be remanded to the court of origin for it to determine the guilt or innocence of the accused Where the dismissal of the case was capricious, certiorari lies from such order of dismissal and does not involve double jeopardy. The petitioner challenges not the correctness but the validity of the order of dismissal, and such grave abuse of discretion amounts to lack of jurisdiction that prevents double jeopardy from attaching. The rule on appeal does not apply to convictions imposing death sentence as the review thereof by the Supreme Court is automatic and does not require the accused to perfect his appeal. Such judgement does not become final until it has been passed upon by the Supreme Court. The period of appeal is interrupted from the time the motion for new trial is filed until the receipt by the accused of the notice of the order overruling the motion. This is so because if the new trial is granted, the judgement is set aside and it is the new judgement of conviction that may be rendered thereafter which should be appealed from.

Search and Seizure


A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. An application for search warrant may be filed in:

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a. any court within whose territorial jurisdiction a crime was committed b. any court within the judicial region where the crime was committed if the place of the commission is known c. any court within the judicial region where the warrant shall be enforced d. if a criminal action has already been filed in the court where the criminal action is pending Requisites for a valid warrant: a. it must be based upon probable cause b. probable cause must be determined by the judge personally c. the judge must have personally examined, in the form of searching question and answer, the applicant and his witnesses and take down their written depositions d. it must describe particularly or identify the property to be seized as far as the circumstances will allow e. it must describe particularly the place to be searched f. it shall issue to only one specific offense g. it must not have been issued for more than 10 days prior to the search made pursuant thereto Where the search warrant averred the offenses, in the abstract, and on top of that compounded the violation by not particularizing the effects to be searched for and seized the same are general warrants and are null and void. A corporation is entitled to immunity against unreasonable searches and seizures but the legality of the seizure can be contested only by the party whose rights have been impaired thereby. Such objection can not be availed of by third parties. The remedies from an unlawful search are: a. motion to quash the search warrant b. motion to suppress as evidence the objects illegally taken Note: 1. Where the search warrant is a patent nullity, certiorari lies to nullify the same. 2. The remedy for questioning the validity of a search warrant should be sought in the court that issued it. 3. A search warrant has a validity of 10 days. Nevertheless, it can not be used every day of said period. Once articles have already been seized under said warrant, it cannot be used again for another search and seizure except when the search conducted on one day was interrupted.

Search Incidental to a Lawful Arrest


Valid Search w/o a Search Warrant

With the consent of the person searched

Search incidental to a lawful arrest is limited to the area w/in which the arresting officer can reach for: a. a weapon b. an evidence in order to avoid its destruction

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It has been ruled that evidence of a crime may also be seized without warrant where such objects are in plain view of an officer who has the right to be in the position to have that view and such objects are per se subject to seizure. This doctrine may not be used to justify a general exploratory search made solely to find evidence of the guilt of the accused. Elements for a valid warrantless seizure of evidence: a. b. c. d. a prior valid intrusion based on a valid warrantless arrest evidence was inadvertently discovered evidence must be immediately apparent the plain view is justified by mere seizure of evidence without further search

Stop and Frisk Search


The stop and frisk search as a legal and reasonable search, only allows a limited protective search of outer clothing for weapons and not a general exploratory search. Where the search warrant is invalid for being a general warrant, nevertheless, where the search conducted is authorized as to be an incident to a lawful arrest, the articles taken pursuant to such lawful search are admissible. As an incident of an arrest, a warrantless search is circumscribed by the subject, time and place of said arrest. The time must be contemporaneous with the arrest. Such warrantless search, however, refers to the place where the arrest is made in order to find the things connected with the commission of the crime. The right does not extend to other places. On the issue of whether or not a court may take cognizance of an application for a search warrant and thereafter issues it in connection with an offense committed outside of its territorial boundary, the Supreme Court held that a search warrant merely constitutes a process.

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EVIDENCE
It is the means by which any matter or facts in issue may be proved or disproved. Evidence means result proof

Quantum of Evidence Criminal Case Proof beyond reasonable doubt Administrative Case Substantial Evidence Civil Case Preponderance of Evidence

Proof Beyond Reasonable Doubt


It simply means such proof to the satisfaction of the court, keeping in mind the presumption of innocence, as precluding every reasonable hypothesis except that which is given to support it. It is not sufficient for the proof to establish a probability, even though how strong, that the fact charged is more likely to be true than the contrary. It must establish the truth of the fact to a reasonable degree of moral certainty, a certainty that convinces and satisfies the reason and the conscience of those who are to act upon it.

Substantial Evidence
It is more than a mere scintilla. It refers to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Preponderance of Evidence
It means that the evidence as a whole, adduced by one side, is superior than that of the other.

Factum Probandum

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This is the proposition, the ultimate fact or the general statement. This is what is to be proved.

Factum Probans
This is the means which the ultimate facts shall be proved or specific item that proves the general statement or the evidence proving the proposition.

Sources of Evidence in the Main Case


Admissions Judicial Notice

Complaint

Summons Answer

Pre-trial Trial Judgement Post- Judgement


Evidence received during Trial

Admissions in the Pleadings

General Rule on Admissibility


1. Relevance It is evidence having any value in reason as tending to prove any matter provable in an action. 2. Material It is evidence directed to prove a fact in issue as determined by the rule of substantive law and pleadings. 3. Competent It is one that is not excluded by the Rule, a statute or the Constitution. Note: 1. The test of relevancy is the logical relation of the evidentiary fact to the fact in issue. 2. The materiality of evidence is determined by whether the fact it intends to prove is in issue or not. 3. As to whether or not a fact is in issue or not is in turn determined by the substantive law, the pleadings, the pre-trial order and by the admissions or confessions on file.

Admissibility vis-a-vis Probative Value


Admissibility has reference to the relevance and competence of the evidence while probative value refers to the weight given by the court upon appreciation of the evidence adduced.

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Multiple Admissibility
It is the evidence that is admitted for the purpose of proving an issue and can likewise be admitted to prove another issue.

Conditional Admissibility
It is evidence that is not admissible but may be allowed admission subject to the condition that the offeror-proponent will be able to present additional evidence establishing the relevancy of the evidence admitted conditionally.

Collateral Matters
Generally, it is not admissible because they are irrelevant and unless such collateral matters create circumstantial evidence it shall remain inadmissible. Collateral matters are matters that are unrelated to the fact in issue. However, collateral matters have an indirect relationship with the fact in issue. Matters that does not need to be proved Judicial Notice Mandatory
-Law of Nations -Acts of the State -Official Acts of the Government -Laws of nature

Judicial Admission

Discretionary
-Of Public Knowledge -Capable of unquestionable demonstration -Ought to be known by the judge because of their judicial functions

Judicial Notice
Judicial notice is the cognizance of certain facts without further proof because they are assumed or supposed to be known by the court. The elements of judicial notice are: 1. that the matter must be of common knowledge 2. that the matter was administratively settled 3. that the matter is known within the territorial jurisdiction of the court

Hearing in Judicial Notice


During trial After judgement or on appeal

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Trial

Judgement

Appeal

Court, on its own initiative or on request of a party, may take judicial notice of any matter

Court, on its own initiative or on request of a party, may take judicial notice of matters which are decisive of a material issue.

Judicial Admissions
Judicial admissions are admissions that are made, whether verbal or written, by a party in the course of trial or other proceedings. The admission must be made by the party in the same case. If the admission was made in another case, proof must be established and once established, the declarant is bound by estoppel from denying it. A judicial admission may not be contradicted except by showing that it was made through palpable mistake.

Sources of Evidence

Matters of Judicial Notice

Evidence introduced by the parties

Judicial Admission

Direct

Derivative (Secondary)

Real or Object

Testimonial

Documentary

Autoptic Proference3

Trial Sequence in the Main Case


Plaintiff presents evidence-in-chief - testimonial - real his Plaintiff offers his documentary evidence

Plaintiff rests

as viewed or observed by the court

Defendant presents his evidence-in-chief - testimonial - real

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Defendant Rests

Defendant offers his documentary evidence

Real Evidence
It is that evidence which is addressed directly to the sense of the court without the intervention of a witness, as by actual sight, hearing, taste, smell or touch. It is any fact about material or corporeal object. It is evidence furnished by the thing themselves, on view or inspection, as distinguished from a description of them by mouth of a witness.

Introduction of Real Evidence


Presentation of the real evidence is denied

Irrelevant

Party having the real evidence

Court informed about the real evidence

Court determines relevancy of the real evidence

Relevant
Observation is recorded in the stenographic notes of the proceedings Court observes the evidence presented Court grants presentation of the real evidence

A party wishing to introduce real evidence must inform the court of the exact purpose of the evidence to be introduced. The court determines whether the evidence is relevant to the purpose or to an issue in the case. If the court finds the evidence to be relevant, it grants the presentation of the evidence. When the real evidence is presented in court, the court makes an observation and such observation is recorded in the stenographic note of the proceedings. The reason why the observation is recorded is to preserve the probative value of the evidence and to aid the appellate court appreciate the real evidence later on when the case is appealed. Note: Real evidence must be relevant to the issue in the case. The court has the discretion whether to utilize it or not once it is admitted.

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Probative Value of Real Evidence


If real evidence is relevant to the issue in the case, it is of the highest probative value. As a rule, the observations made by the trial court on the real evidence are accorded the highest respect and will not be changed on appeal. The court can not strictly obtain real evidence without giving notice to the parties. It is not precluded from using other kinds of evidence even if real evidence had already been utilized.

Documentary Evidence
The most common kind of real evidence is documentary evidence. This category includes contracts, written confessions, letters and when otherwise admissible, books. The regular rules of evidence also apply to documents but then special rules have particular application to documentary evidence. (e.g. authentication, best evidence rule, doctrine of completeness) Rules on Documentary Evidence

Best Evidence

Secondary Evidence

Parole Evidence

Best Evidence Rule


When the subject of the inquiry is the content of a document, no evidence shall be admissible other than the original document 4 itself, except: 1. when the original is lost or destroyed 2. when the original is in the custody of the opposing party and he fails to produce it despite reasonable notice 3. when the original is consists of numerous accounts or voluminous documents which can not be examined without great loss of time and the fact to be sought can be established by the general result 4. when the original is a public record in the custody of a public officer The Best Evidence Rule is not self-executing. The proper party must invoke it at the proper time, otherwise, the benefit that can be derived from the rule is waived. The Best Evidence Rule must be raised before the document in question is admitted as evidence. Furthermore, the party invoking the Best Evidence Rule must raise the proper objection before the opposing party succeeds in presenting secondary evidence.

Secondary Evidence

The original of a document is: a. one the contents of which is the subject of the inquiry b. a document in two or more copies, executed at the same time with identical contents an entry copied from another repeatedly in the regular course of business

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It is the type of evidence that becomes admissible as being next best when the primary or the best evidence is lost or inaccessible. For secondary evidence to be admissible, the following requirements must be met: 1. the offeror must prove the execution and existence of the original 2. the offeror must prove the last or unavailability of the said original 3. upon the permission of the court, the offeror may then prove the contents of the original by a copy or recital of its contents

Parole Evidence Rule


When the terms of an agreement has been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence aliunde, if any, of the following matters is placed in issue in the complaint: 1. if there is an intrinsic ambiguity, mistake or imperfection in the written agreement 2. if there is failure in the written agreement to express the true intent of the parties 3. if the validity of the written agreement is assailed 4. if there are other terms agreed upon by the parties after the execution of the agreement Note: The term agreement includes wills. The defendant can also contest the terms of a written agreement if he puts them in issue in his answer. Reason Behind the Rule Parties are not allowed to present evidence aliunde or parole evidence to establish the terms of a written agreement because of the temptation that they might alter the terms of the agreement to favor their side. Parole evidence refers to oral evidence. However, the Parole Evidence Rule covers all types of evidence aliunde other than the written agreement. The Parole Evidence Rule must be invoked at the proper time, otherwise, the right to invoke the rule is waived. For an evidence aliunde to be accepted when offered, it must be presented only to establish the existence of the agreement and not to prove the terms or conditions therein.

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Modification

Witness is disqualified to testify by reason of

Witness has no personal knowledge

Mental incapacity

Privileged communication

Marital relations

Dead Mans Statute

Can testify as an expert

Can testify on permissive hearsay

Lawyer-client relationship

Doctorpatient relationship

Priestpenitent relationship

Parental-filial relationship

Husband-wife relationship

Dying Declaration

Res Gestae

Declaration against interest

Pedigree

Family reputation

Entries in official records

Entries in the course of business

Commercial lists

Common reputation

Learned treatise

Testimonial Evidence
It is the testimony given in court or the deposition by one who has observed that which he is testifying; or one who, though he has not observed the facts, is nevertheless qualified to give an opinion relative to such facts. Mentally Incapacitated to Testify The phrase covers those mental conditions, at the time of their presentation for examination, is such that they are incapable of perceiving and making known their perception to others. There is no absolute rule that excludes insane person from testifying. The insanity must be shown to affect their understanding at the time they are called to testify in order to render them incompetent. Privileged Communication It is a communication made bona fide upon any subject matter in which the party communicating has an interest or in reference to which he has a duty to make to a person having a corresponding interest or duty. Although the communication contains criminatory matters, which without the privilege would be slanderous and actionable. Privileged communication is divided into two general classes, namely: 1. those which are absolutely privileged 2. those which are qualifiedly or conditionally privileged A. Lawyer-Client Relationship The lawyer, without the clients consent, can not be examined as to any communication made to him in the course of professional employment. The privilege covers the employees of the lawyer. This privilege will also cover communication that was made with a view to prospective employment. B. Doctor-Patient Relationship A person authorized to practice medicine, surgery or obstetrics can not be compelled to testify in a civil case as to any advice or treatment given by him to the patient in his professional capacity and which information may blacken the reputation of the patient.

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C. Priest-Penitent Relationship A priest or a minister, without the consent of the person who made the confession, may not be made to testify on the confession made or any advice given by him in his professional capacity. The person who made the confession must be a member of the church or congregation of the minister or priest. D. Parental-Filial Relationship (Absolute Privilege) No person may be compelled to testify against his parents, direct ascendants, children or other direct descendants. E. Husband-Wife Relationship For the disqualification by reason of the marital privilege to apply, it is necessary that: 1. there was a valid marriage 2. the privilege is invoked with respect to a confidential communication between the spouse during the said marriage 3. the spouse against whom such evidence is being offered has not given his or her consent to such testimony Consequently, the privilege can not be claimed with respect to communications made prior to the marriage of the spouse. But, after the marriage, it can be claimed whether or not the spouse is a party to the action and even after the marriage has been dissolved. However, the privilege applies only to confidential communications between the spouses. Marital Relation It is a ground to disqualify a witness because of the following reasons: a) identity of interest, b) consequent danger of perjury, and c) to safeguard the security and confidence of private life at the risk of occasional failure of justice. In order that the Marital Disqualification Rule will apply, it is necessary that the marriage is valid and existing as of the time of the offer of testimony and that the other spouse is a party to the action. The only exception to the Disqualification by Reason of Marital Privilege and Marital Disqualification Rule is where a civil case is filed by one spouse against the other, or a criminal case, for a crime committed by one spouse against the other or the latters direct descendants or ascendants.

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Dead Mans Statute Parties or assignors of parties to a case or persons in whose behalf a case is prosecuted against an executor or administrator or other representative of the deceased person or against a person of unsound mind can not testify as to any matter of fact occurring before the death of such person or before such person became of unsound mind. The said case filed against the executor or administrator must be about a claim or demand against the estate of such deceased person or against such person of unsound mind. The statute shall be applied when the plaintiff files an action against the estate of the deceased, through the dead persons representative, for the purpose of recovering from the estate of the deceased person. It covers matters occurring in the presence or within the hearing of the decedent to which he might testify, of his personal knowledge, if he were alive or of sound mind. If death has closed the lips of one party, the policy of the law is to close the lips of the other. The temptation to falsehood and concealment in such cases is considered too great to allow the surviving party to testify in his own behalf. Hearsay Rule A. Dying Declaration It refers to the statement made by the declarant under the consciousness of an impending death concerning the causes or circumstances of his impending death. To be appreciated by the court, it must be established that the declarant was aware of his impending death and that the declarant be a competent witness. B. Res Gestae It is the spontaneous exclamations or statements made by participants, victims or spectators to an occurrence immediately before, during or after the event or occurrence. Statements made by a person while a startling occurrence is taking place can be given in evidence as part of res gestae. Statements made accompanying an equivocal act material to the issue are also considered as part of res gestae.

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C. Declaration Against Interest The declaration made by a person already deceased or unable to testify against his interest if the declaration concerning a fact was contrary to the declarants interest may be introduced as evidence against the declarant provided that the declarant believed that his declaration is true. D. Declaration Concerning Pedigree Pedigree refers to relationship, family, genealogy, birth, marriage, and dates affecting the aforesaid matters. It is the act or declaration of a person who is deceased or unable to testify with respect to the pedigree of another person related to him concerning matters that occurred before the controversy in question. E. Family Reputation or Tradition Regarding Pedigree In the absence of a declaration concerning pedigree, the court can accept as evidence entries in family bibles, family books or charts; provided, a member of a family testifies thereon. F. Common Reputation This concerns facts of public or general knowledge more than thirty (30) years old, relating to marriages or moral character existing before the controversy. G. Entries made in the course of business or in the performance of duty Entries made at or near the time of the transaction by a person who is already deceased or unable to testify but who was in a position to know the facts may be received as prima facie evidence. The entries must have been made by the aforesaid person in the performance of his ordinary or regular business or duty. H. Entries in Official Records Record made in the performance of an official duty by a public officer is a prima facie evidence of the facts stated therein. I. Commercial List Any information contained in the list, register, periodical or other public compilation that is prepared by any person engaged in making such list is admissible to prove the truth of any relevant matters stated therein.

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Testimony at a Former Proceeding This exception covers the testimony of a witness, who is already deceased or unable to testify, given in another proceeding against the same parties involving the same subject matter. The testimony will be admissible in evidence provided that the adverse party has the opportunity to cross-examine the said witness. If not cross-examined, the testimony shall be considered as hearsay. Offer of Evidence Any evidence sought to be admitted can only be considered by the court if proper offer of evidence is made. The offer of evidence must indicate the purpose of evidence sought to be admitted. The offer must identify what is sought to be proved by the evidence that is about to be presented. Evidence Sought to be proved

Testimonial Evidence

Documentary Evidence

Real Evidence

With respect to testimonial evidence, the offeror must state the purpose of the testimony before the witness is presented. The court will then require the opposing party to make his objection or comments to the offer. The following are some probable objections: 1. scope of the testimony is not relevant to the issue 2. the witness is not competent to testify because he will be testifying on matters not within his personal knowledge 3. hearsay 4. the subject of the testimony is covered by testimonial privilege, private communication, etc. The court then rules on the objection and if the court finds no reason to grant the objection then the witness can now testify. In the case of documentary evidence, as a general rule, they can only be offered after all the witnesses have testified. The offeror is also required to state the purpose of the evidence and the opposing party is allowed to object and comment on the offer.

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Note: 1. No document will be admitted unless it was properly authenticated. Authentication of documents takes place at the time the witness is made to testify. 2. All documentary exhibits are required to be marked at the pre-trial conference. In some instances, the parties may stipulate on the authenticity of certain documents. In the case of real evidence, the offer of evidence must be made before the court considers the real evidence. Tender of Excluded Evidence In the event that the court refuses to allow the presentation and admission of certain evidence, the offeror can make a tender of excluded evidence. Tender of excluded evidence is done when the offeror asks the court to state on the record the evidence that was not allowed for him to be submitted or introduced. The offeror must also state the purpose of the offer and what could have been proven if the evidence was allowed to be presented. In the case of documentary evidence, it is to be attached on the record. Under this remedy, the appellate court can properly appreciate the entire merit of the case on appeal because the tender will enable the appellate court to rule on the merits of the case instead of remanding the case to the court a quo for the reception of the evidence. Thus, avoiding the case to be brought again to the appellate court on appeal or for review.
Constitutional Prohibiton on the Admissibility of Evidence

Absolutely Inadmissible

Not Absolutely Inadmissible

Evidence obtained in violation of the right against selfincrimination

Evidence obtained in violation of the right against warrantless search and seizure

Evidence obtained in violation of the right to privacy of communication and correspondence

Evidence obtained in violation of the AntiWire Tapping Act (R.A. 4200)

Note: May be admitted through a lawful court order

Note: May be admitted through a lawful court order

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Presentation of Witnesses
A witness is presented Authentication of exhibits Impeachment of witnesses Re-cross Examination

Offer of testimony

Direct Examination

Cross Examination

Re-direct Examination

Direct Examination
During the direct examination of the witness, the proposing party tries to obtain his evidence-in-chief. All the relevant facts concerning the issue under trial must be obtained from such witness. The direct examination must follow the offer of evidence that was earlier made. A question that goes outside the scope of the offer can be objected to. Moreover, leading questions are not allowed to be asked. A leading question is objectionable on direct examination. It is a question that suggests the answer to the witness. Generally, questions that are answerable by yes or no are leading questions. In a leading question, it is not the perception of the witness that is presented to the court but the perception of the one asking the question. The exceptions to leading questions are: 1. during cross-examinations 2. concerning preliminary matters such as the name of the witness, his address and gender 3. if there is difficulty in getting a direct and intelligible answer from a witness who is a deaf-mute, of feeble-mind, ignorant or child of tender age 4. in the case of unyielding or hostile5 witness 5. where the witness is an adverse partys agent The proponent is not allowed to ask questions that have no previous factual basis. Such question assumes a fact not yet proved. They are, therefore, objectionable. The proponent must lay the factual basis (laying the predicate). The factual basis can be laid by asking the witness to testify first on matters that have a logical connection to the issue.

A hostile witness is a witness of the proponent who suddenly changes his testimony so that he becomes adverse to the party proposing the witness. A hostile witness is also a witness of the opposing party who will naturally avoid testifying in favor of the party.

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Hypothetical questions or questions which are argumentative are objectionable on direct examination. Firstly, they do not refer to the personal knowledge of the witness. Secondly, no facts, only opinions, are elicited from the witness. Thus, hypothetical and argumentative questions are not allowed. Misleading questions are also objectionable. Misleading questions assume as true a fact not yet testified to by a witness or contrary to what he has previously stated. A misleading question is not allowed. Direct examination should be asked for the purpose of obtaining all the facts necessary to support the case of a party.

Cross-examination
The purpose of cross-examination is to test: a) the accuracy of the testimony of the witness, b) the truthfulness of his testimony, c) to establish interest or bias on the part of the witness, and d) to elicit more facts bearing on the issue. On the cross-examination, the opposing party is allowed to ask leading questions. He is also given the opportunity to impeach the witness. A witness can be impeached by showing that he has made inconsistent statements. The statements must be related to the witness with the circumstances of the time and place attending to the statement. Impeachment can also be done by: 1. subsequently presenting contradictory evidence 2. presenting evidence concerning the general reputation of the witness 3. evidence showing his lack of integrity However, a witness may not be impeached by evidence of a particular wrongful act committed by him, unless it refers to conviction of an offense for moral turpitude. A cross-examination can not be used to support the evidence-inchief of the opposing party. The witness testifying on cross-examination cannot be made to testify on the facts favorable to the opposing party. Rights of a Witness 1. to be protected from irrelevant or insulting questions or from harsh demeanor 2. the witness can not be detained longer than the interest of justice requires 3. not to be examined on matters that are not pertinent to the issue 4. not to give an answer that might incriminate him 5. not to give an answer which would tend to degrade his reputation

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Evidence of Good Moral Character


Generally, as a rule, evidence of good moral character of a witness is not admissible until such character had been impeached.

Re-direct Examination
After the cross-examination, at the option of the proposing party, a witness may be made to undergo re-direct examination on matters covered by the cross-examination. A witness may not be examined on re-direct regarding matters covered by the cross-examination unless the court approves the re-direct examination.

Re-cross-examination
At the option of the opposing party, after the re-direct examination, the opposing party may conduct a re-cross-examination on matters covered during the re-direct examination.

Recall of a Witness
After a witness has been examined by both sides, such witness can no longer be called upon to testify on the same matter. However, in the interest of substantive law, at the discretion of the court, such witness may be recalled to testify on specific matters.

Presentation of Documentary Evidence


Documents Public Private

Before they become admissible in evidence

Authenticated

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Public Document
The following documents are considered public documents: 1. the written official records or acts of officials of the government and foreign government 2. documents acknowledged before a notary public except last will and testament 3. public records of private documents that are required by law to be entered therein Authentication of Public Documents 1. an official publication thereof 2. where a document is kept in the custody of an official, it can be authenticated by a copy attested by the officer having legal custody of the record 3. in the case of documents found outside the country, the said document can be authenticated by the vice-consul or the consular agent of the Philippines

Private Document
Any document that is not public. Authentication of Private Documents 1. authenticated by anyone who saw the execution of the document 2. authentication by evidence of the genuineness of the signature or handwriting of the person who executed the document Note: 1. All other private documents must be properly identified for purposes of authentication 2. The genuineness of the signature or handwriting can be proved by: a. a person who saw how/when the document containing the handwriting was made or executed b. a person who has previous experience in identifying the handwriting and which by experience enables him to acquire knowledge of the handwriting of the person c. a comparison made by the witness or the court with other handwritings that are admitted to be genuine Exceptions to the Authentication of Private Documents If a document is ancient (that is more than thirty years old) and is produced from the custody from whom it would naturally be found, if genuine, and is unblemished by any alterations. It may be admitted without need of proving its authenticity.

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Use of Opinion
As a general rule, the opinion of a witness is inadmissible, as it does not refer to any facts in issue within his personal knowledge. The exceptions are: 1. The opinion of a witness requiring special knowledge, skill, and experience or training which he has shown to possess. The opinion of such an expert may be received in evidence. Note: Expert witness must first be qualified before he can be made to testify. The qualification of an expert witness is made by letting the witness testify first on his credentials. If the court is satisfied with his credentials then the witness is considered qualified to testify on the subject. 2. The opinion of an ordinary witness may also be received in evidence provided it refers to: a. the identity of a person b. the handwriting of a person c. the mental sanity of a person d. the witness can also testify on his impression of the emotion, behavior, condition and/or appearance of a person Note: In those instances when the opinion of the ordinary witness can be allowed, it must be shown that the witness was in a position to make the observation or had personal knowledge of the facts which was the basis of his opinion. With respect to the signature of a person, a witness may give an opinion thereon provided he had previous knowledge of the signature of the person.

Use of Character Evidence


As a general rule, character evidence is inadmissible. The exceptions are: a. in criminal cases 1. the accused may prove his moral character which is pertinent to the moral trait that is involved in the offense charged 2. during rebuttal, if the moral character of the accused was assailed on cross-examination the accused is permitted to adduce evidence of his good moral character for the purpose of rebutting any impeachment made on his moral character 3. the good moral character of the offended party may be proved if it tends to establish the reasonable degree of probability or improbability of the offense charged b. in civil cases Evidence of the moral character of a party is admissible only if pertinent to the issue of character that is involved in the case. If the issue of character was not involved in the case then introduction of character evidence would be objectionable.

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Presumption
Presumption

Conclusive

Disputable

may not be contested

considered satisfactory if not contested by contrary evidence

Conclusive Presumption
1. If a party by his own declaration, act or omission deliberately and intentionally leads another to believe a particular thing to be true and thereafter acts upon such belief, he can not be subsequently allowed to falsify it. Estoppel

in pais

by deed

oral declaration

written declaration

2. The tenant is not permitted to deny the title of his landlord at the commencement of the relation between the parties. Note: The tenant, however, can subsequently repudiate the landlord-tenant relationship by adversely occupying the premise of the real property against the will of the landlord. If the adverse occupation is not interrupted, it may ripen into acquisitive prescription.

Disputable Presumption
See Section 3 of Rule 131 of the Rules of Court

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Res Inter Alios Acta


Generally, a party shall not be prejudiced by any statement or admission made by another party. The rights of a party shall not be affected by any act, declaration or omission of another. Exceptions to the Res Inter Alios Acta Rule

Acts , Declarations or Omissions of

AgentPrincipal Relationship

Coconspirators

Predecessorin-interest

The act, declaration or omission of another (agent) or a partner may be given in evidence against the principal or copartner provided the existence of the agency or partnership is first established through another evidence. Note: The other evidence must be independent of such act, declaration or omission.

The act, declaration or omission of a conspirator relating to the conspiracy may be given in evidence against a coconspirator provided the fact of conspiracy is first established by other evidence. Note: The other evidence must be independent of such act or declaration.

The act, declaration or omission of a predecessor-in-interest may be shown in evidence against the successor-in interest. The successor-in-interest is one who derived his ownership over a certain property from another party called the predecessor-ininterest.

Instances when acts, declarations or omissions of a party can be given in evidence against such party: 1. if the accused in a criminal case flees, such flight is construed as an evidence of guilt 2. failure to deny charges despite the fact that the accused has been confronted with the accusation 3. spontaneous statements not elicited through investigation or questioning but given in an ordinary manner by the accused

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Admission by Silence
The act or declaration made in the presence and within the hearing of the party who does or says nothing when the acts or declaration is such as naturally to call for action or comment. If not true, the act or declaration may be given in evidence against the party who remained in silent.

Previous Conduct as Evidence (Res Inter Alios Acta Rule)


Evidence that a person did or did not do a certain thing at one time is inadmissible to prove that he did or did not do the same thing at another time. However, previous conduct may be received in evidence to prove: 1. specific interest 2. knowledge 3. identity 4. plan 5. system 6. scheme 7. habit/custom 8. and the like

Offer of Compromise
Offer of Compromise

Civil Cases

Criminal Cases

Offer of compromise is considered attempt to buy peace. They are not considered as admission of liabilities.

Offenses involving criminal negligence

Offenses involving criminal intent

Offer to pay medical expenses

Offer of compromise is not considered admission of guilt. An offer of compromise may be construed as a sincere attempt on the part of the accused to pay for the civil damages incurred by the victim.

Offer of compromise may be received in evidence as an implied admission of guilt and criminal intent.

In those instances as where the accused offers to pay medical, hospital and clinical expenses, the offer is not admissible as evidence of civil or criminal liability.

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Circumstantial Evidence
Evidence of circumstances that are strong enough to cast suspicion upon the defendant and which are sufficiently strong to overcome the presumption of innocence and to exclude every hypothesis except that of the guilt of the defendant. In case of circumstantial evidence, where no witness testifies directly to the fact to be proved, it is arrived by a series of other facts that by experience have been found to be associated with the fact in question. In the relation of cause and effect, the circumstantial evidence may lead to satisfactory and certain conclusion. Evidence that goes to prove a fact or series of facts other than the facts in issue, if proved, may tend, by inference, to establish a fact in issue. Circumstantial evidence is sufficient to convict if: 1. there is more than one circumstances 2. the facts from which the inference or conclusion was derived from are proved 3. the combination of circumstances in such as to produce a conviction beyond reasonable doubt Circumstantial evidence is established by deduction based on a reasonable inference from a series of facts and circumstances. As a consequence, collateral matters (indirect evidence) may be admitted conditionally provided they tend to establish the probability or improbability of the fact in issue.

Sufficiency of Extra-Judicial Confession


Extra-judicial confession made by the accused shall not be sufficient for conviction unless corroborated by evidence of the corpus delicti. Corpus delicti is the body of the crime, the evidence of the injury and damage. The body of the crime does not refer to the body of the victim. For as long as sufficient evidence is adduced to establish the death of the victim then the body of the crime is sufficiently established.

Corroborative Evidence
It is an additional evidence of a different kind that establishes the same point.

Cumulative Evidence
It is an additional evidence of the same kind establishing the same point.

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Positive Evidence
It is evidence where the witness declares affirmatively that a certain event happened or did not happen.

Perpetuation of Testimony

No case has yet been filed but there is a probability that a case would be filed

A petition for perpetuation of testimony can be filed in the RTC. Requirements: 1. petitioner expects to be a party to a suit 2. names of all adverse party 3. subject matter of testimony is the identity of the witness

Petitioner himself serves a copy of the petition to all respondents at 20 days before the hearing of the petition.

The testimony is taken. Note: Transcript of stenographic notes is taken.

Court approves the TSN. (End of Process)

The court thereafter issues an order fixing: 1. who will testify 2. where the testimony will be taken 3. when the takin of the testimony would be done 4. the subject matter of the testimony

If petition is sufficient in form and substance, it is given due course. Note: There must be a showing that the perpetuation will prevent a failure of justice.

Note: The process is in personam. Those who are not made a party are not bound.

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Republic Act No. 8792 Electronic Commercial Act


Section 3. Objective This act aims to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts, and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology to recognize the authenticity and reliability of electronic data, messages or electronic documents related to such activities and to promote the universal use of electronic transactions in the government and by the general public. Section 4. Sphere of Application This act shall apply to any kind of electronic data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangement, agreements, contracts, and exchanges and storage of information. Electronic Document It refers to information or the representation of information, data, figures, symbols or other modes of written expression described or however represented, by which a right is established or an obligation extinguished or by which a fact may be proved and affirmed which is received, recorded, transmitted, stored, procured, retrieved or produced electronically. Electronic Signature It refers to any distinctive mark, characteristics and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. Legal Recognition of Electronic Documents Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing and: 1. where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be useable for subsequent reference, in that:

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a. the electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change or any change which arises in the normal course of communication, storage and display, and b. the electronic document is reliable in the light of the purpose of for which it was generated and in the light of all relevant circumstances 2. Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form. 3. Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if: a. there exist a reliable assurance as to the integrity of the document from the time when it was first generated in its final form b. that the document is capable of being displayed to the person to the Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity Note: For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. Original Document Where the law requires information to be presented or retained in its original form, an electronic data message or electronic document meets that requirement if: 1. the integrity of the information from the time when it was first generated in its final form, as an electronic data message or electronic document, is shown by evidence aliunde or otherwise; 2. the information is capable of being displayed to the person to whom it is to be presented Note: 1. The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display. 2. The standard reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all relevant circumstances. Authentication of Electronic Data Messages and Electronic Documents They shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device or another entity in an information or communication system, among other ways as follows: 1. electronic signature

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a. by proof that a letter, character, number ot other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic document b. by appropriate methodology or security procedures, when applicable, were employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document 2. electronic data message or electronic document a. by proof that an appropriate security procedure, when applicable, was adopted and employed for the purpose of verifying the originator of an electronic data message or electronic document Note: The person seeking to introduce an electronic data message or electronic document has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims to be. In the absence of evidence to the contrary, the integrity of the information system and communication system may be established in any legal proceeding: 1. by evidence that at all material times, the information and communication system was operating in a manner that did not affect the integrity of the electronic data message or document 2. by showing that it was recorded or stored by a party to the proceedings who is adverse in interest to the party using it 3. by showing that it was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceeding and who do not act under the control of the party using the record Nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document.

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Rules on the Examination of a Child Witness


Section 2. Objectives The objectives are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Who is a Child Witness? A child witness is any person who at the time of giving testimony is below 18 years of age. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. Note: If the testimony is to be given after a birthday which shall turn the witness 18 then this rule shall not apply. Every child is presumed to be a qualified witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood or appreciate the duty to tell the truth in court. A facilitator shall be appointed by the court to pose question to a child. A facilitator can be a non-member of the bar. Persons allowed at a competency examination 1. the judge and necessary personnel 2. the counsel for the parties 3. the guardian ad litem 4. one or more support persons for the child 5. the defendant, unless the court determines that competence can be fully evaluated in is absence