DR. V.

ORESTES ROMUALDEZ EDUCATIONAL FOUNDATION TABLE OF CONTENTS

COLLEGE OF LAW
The Revised Rules of Criminal Procedure
Introduction
Preliminary Considerations
Criminal Jurisdiction …………………...………….………………………………... 2
Jurisdiction of Courts ……………………………………………….………………. 4

Rule 110: Prosecution of Offenses ……………………….………………………….….…… 7

Sufficiency of complaint or information …………………………………. 10
Amendment or substitution ………………….………………………….......... 13

Rule 111: Prosecution of Civil Action …………………………………………….………… 15

Revised Rules of Rule 112: Preliminary Investigation …………………………………………………………. 19

Procedure ………………………………………………………………………..……….. 20

Criminal Rule 113: Arrest ………………………………………..………………………………………...…..

Valid Warrantless Arrest ……….……….……………………………….…….….
Methods of Arrest ………………………….………………………………….….…
24
26
27

Procedure Rule 114: Bail …………………………….…………………………………………………….….….

Forms of Bail ……………….………………………………………………….….……
Bail as a matter of right ………….……..………………………………………...
29
29
32
Bail as a matter of discretion ……………...…………………………………... 34
Rules 110-119 Rule 115: Rights of the Accused ……………….………………………………………….... 35

Prepared by:
Fatima Zyra Macapugas
Wilbert Chong
Niza April Porteza
Trina Marie Candaza
Divine Grace Agnila
Ivy Casilan
Rule 116: Arraignment and Plea ………………..…………………………………………... 37
Plea Bargaining ……………………………………………………………………….. 38
Suspension of Arraignment …………….………………………….…….……. 40
Rule 117: Motion to Quash …………………………..……………………….……………… 40
Grounds for a Motion to Quash …………….………………….…………... 41
Double Jeopardy …………………………….………………………….………….. 42

First Semester, S.Y. 2017-2018 Rule 118: Pre-trial ………………….………………………………………………………….…… 43

Rule 119: Trial …………………….……………………………………………………………..…… 44


THE REVISED RULES OF CRIMINAL PROCEDURE
The Revised Rules of Criminal Procedure covers Rule 110 to Rule 127. This took effect
on December 1, 2000.
The law on criminal procedure discusses what a party does upon the filing of the case
until after the Court decides the same. It provides for the available remedies up to
the time the Court decides the criminal case.
In the preliminary considerations, the book (Pamaran) discusses the definition of
criminal procedure; the sources of criminal procedure; the systems of criminal
procedure in our country; and more particularly jurisdiction in criminal procedure; the
exercise of jurisdiction; and the requisites of criminal jurisdiction.
Article 2 of the Revised Penal Code talks about the concept of venue in criminal cases.
It is basic that criminal cases cannot be filed except in the place where the crime is
committed. In criminal cases, venue becomes jurisdictional.
Example: If the crime is committed in Tacloban City, it can only be filed in the courts
in Tacloban City.
However in Constitional Law I, if one wants to change the venue, a petition must be
filed before the Supreme Court. It is only the SC which has the power to change venue
of criminal cases as provided for by Section 5, Article 8 of the 1987 Constitution.
There are also cases that even if they are not committed in the Philippines, it can still
be filed in Philippine courts. These are exceptions to the principle of territoriality as
enumerated under Article 2 of the RPC.
Take Note: By September 2017, the Court will be adopting the Speedy Trial Rules. The
rules are already published in the newspapers. It provides that courts will have to
dispose cases only in 6 months.
Criminal Law will also be part of the discussion. In fact in Rule 111, it will discuss in
accord with Rule 100 of RPC.
Then, the jurisdiction of each court of the Philippines will follow.
The first level courts are: Municipal Trial Court, Municipal Circuit Trial Court, Municipal
Trial Court in Cities, and the Metropolitan Trial Court.
The second level courts are: The Regional Trial Courts and the Sharia Courts
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
General Rule: If the penalty of the crime committed is punished by more than 6 years
imprisonment, the jurisdiction is with the RTC.
Exception: Family Court cases or cases which involve a minor whether he/she is the
private complainant or the child in conflict with the law.
- The jurisdiction is with the RTC irrespective of the penalty.
- TN: Family Courts are Regional Trial Courts designated as such by the
Supreme Court. Now, the SC has already created 45 family courts.
General Rule: When the penalty is 6 years and below, the jurisdiction is with the first
level courts.
Exception: Even if the penalty does not exceed six years, the crime of LIBEL is filed
with the RTC.
- Libel is only penalized with imprisonment of 4 years. The reason is
because the RPC itself provides so. The RPC is a substantive law.
- Between a substantive law and a procedural law, the substantive law
prevails.
PRELIMINARY CONSIDERATIONS
DEFINITION OF CRIMINAL PROCEDURE
Criminal procedure is the method prescribed by law for the apprehension and
prosecution of persons accused of any criminal offense, and for their punishment, in
case of conviction.
Q: Why is there a term for the “punishment, in case of conviction?”
If the accused is acquitted, there is no punishment. Even in appeal, only the judgment
of conviction can be appealed. Acquittal cannot be appealed because that will place
the accused in double jeopardy.
Once the court acquits the accused, it ends the procedure.
SOURCES OF CRIMINAL PROCEDURE
1. Rules 110-127
2. 1987 Constitution
DVOREF COLLEGE OF LAW
3. Acts passed by the legislature
4. Presidential decrees
5. Administrative circulars and decisions of the Supreme Court
6. Generally accepted principles of international law
SYSTEMS/TYPES OF CRIMINAL PROCEDURE
1. Inquisitorial
2. Accusatorial
3. Mixed
1

In the Philippines, our prevailing system is the mixed system. It is the mix of
accusatorial and inquisitorial systems. Although in accusatorial, the focus is more on
the accused (because the accused is given due process), there are certain instances
where the focus is not on the accused.
Example: Applications and issuances of search warrants.
- The person to whom the search warrant is implemented is not
considered. It is more on the applicant.
That is the reason why in a way, our criminal procedure becomes inquisitorial. But in
terms of trial, we always give the accused the presumption of innocence. The accused
is presumed innocent unless otherwise proven by proof beyond reasonable doubt. In
cases where there is doubt, the doubt is always in favor of the accused, hence,
acquitted.
Equipoise Rule
When the evidences of the prosecution and the defense are balanced or equal, it
should be tilted in favor of the accused and the accused should be acquitted.
The 1987 Constitution is also one of the sources of criminal procedure:
- Bill of Rights, some sections of which provides for:
a. The constitutional rights of the accused,
b. The rights of the accused during custodial investigation.
CRIMINAL JURISDICTION
JURISDICTION
Jurisdiction is the authority to hear, try, and determine a cause, be it criminal or civil.
CRIMINAL JURISDICTION
The authority of the court to hear, try, and decide a criminal case.
Jurisdiction is conferred by law
It cannot be subjected by the agreement of parties. It is only the law which confers
jurisdiction.
Q: Is jurisdiction the same as venue?
Venue is the place of trial. In criminal cases and criminal procedure, venue becomes
jurisdiction. In Philippine laws, one cannot file a criminal case except in the place
where the crime was committed. Hence, venue becomes an element of jurisdiction
insofar as criminal cases and criminal procedure are concerned.
If a party wants to change a venue, a petition for a change venue has to be filed
before the SC. It is one of the powers of the SC under Art. 8, Sec. 5 of the Constitution.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Examples: (1) If a crime is committed in Tacloban, it can only be filed in Tacloban
courts. (2) If a crime is committed in Basey, it should only be filed in Basey courts.
However in civil cases, there is a difference between jurisdiction and venue. In criminal
cases, venue becomes jurisdiction.
Relevant provision
Sec. 5 (4), Article 8, Constitution
Order a change of venue or place of trial to avoid miscarriage of justice
Q: If the crime is committed in one place, and another crime in another place,
where should the case be filed?
He can be sued anywhere. But in terms of commitment orders, he is committed to the
court where the crime was first filed. During trial, he is brought to that specific court
for trial.
This is common. There are instances where a person is already convicted of the crime
and is already serving sentence but is sued for another crime in another court.
Example: If the convicted person is already serving sentence in the Leyte Regional
Prison in Abuyog and a case was filed against him before the Burauen court, the
pending case filed before Burauen is given to Abuyog, and this is where he will be
tried.
The commitment is always with the court where the case was first filed. But he is only
brought to another court for trial.
REQUISITES FOR THE EXERCISE OF JURISDICTION
1. Jurisdiction over the subject matter
2. Jurisdiction over the territory
3. Jurisdiction over the person of the accused
TN: The lack of jurisdiction of the court can be questioned at any stage of the
DVOREF COLLEGE OF LAW
proceedings even for the first time on appeal. If the court without jurisdiction tries a
case knowing that it has no jurisdiction, all the proceedings are null and void.
JURISDICTION OVER THE SUBJECT MATTER
This is conferred by law at the time of the filing of the case.
The jurisdiction over the subject matter depends on the penalty imposable on the
crime committed, not the penalty which is actually imposed by the court.
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General Rule: If the imposable penalty of the crime committed is more than 6 years
(prision mayor), jurisdiction is with the RTC. If it does not exceed 6 years (up to prision
correcional), jurisdiction is with the first level courts, subject to certain exceptions.
Exceptions:
1. Libel (penalty of 4 years) – jurisdiction is with the RTC because the RPC itself
provides so.
2. Cases where one of the parties is a minor, whether private offended party of the
child in conflict with the law – jurisdiction is with the Family Courts. The Family
court is a RTC.
TN: When the accused is a minor, he/she is called a Child in Conflict with the Law
(CICL)
JURISDICTION OVER THE TERRITORY
Jurisdiction over the territory or the place where the crime is committed.
In the Philippines, we apply the territoriality principle which is one of the
characteristics of Criminal Law.
The principle of territoriality is important because that is the second requisite for the
exercise of jurisdiction. One cannot file a case except in the place where the crime is
committed, unless he files a petition for change of venue before the SC, and it was
granted.
General Rule: To determine the territoriality characteristic of criminal law, the
archipelagic doctrine is used.
Archipelagic Doctrine
Draw an imaginary line connecting all the islands of the Philippines and from that
imaginary line, we have a 3-mile territorial sea or 12 nautical miles. If the crime is
committed within the 3 mile jurisdiction, it is within the Philippine courts.
Exception: Even if the crime is committed outside the territorial jurisdiction of the
Philippines, the same can still be filed in Philippine Courts. This is found in Article 2 of
the RPC.
Relevant provision
Article 2, RPC. Application of its provisions. – Except as provided in treaties and laws
of preferential application, the provisions of this Code shall be enforced not only
within the Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
2. Should forge or counterfeit any coin or currency note of the Philippine
islands or obligations and securities issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands
of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions; or
5. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code.
Q: What is the requirement so that a crime, committed on a Philippine vessel
anywhere in the world, by a Filipino, can be sued in a Philippine court?
The vessel should be registered with the Maritime Industry Authority (Marina). These
vessels are allowed to carry the Philippine flag while travelling around the world.
Crimes committed while being public officers or employees, should commit an offense
in the exercise of their functions include malversation.
Q: Which court has jurisdiction over the cases?
Jurisdiction can be anywhere in the Philippines. However, if the case is already filed in
the court of Batanes (for example), it excludes all the other courts. It can be filed in any
court of the Philippines.
Continuing and Transitory Crimes
These are examples of plurality of crimes along with complex crimes. It is a crime
which arises out of one criminal resolution but consisting of several plans.
Situation: Juan was kidnapped in Tacloban City. He was brought against his will
to Carigara, Leyte. In Carigara, Leyte, he was killed. What crime did the accused
commit?
It depends on the intention of the accused. If the intention was to kidnap, the crime
committed is qualified kidnapping with homicide/murder because it becomes a special
complex crime.
DVOREF COLLEGE OF LAW
If the intention is not to kidnap, but to kill, it will not become a special complex crime.
Instead, he committed two offenses. It may be kidnapping and murder/homicide, as
the case may be.
Q: Is murder a transitory/moving crime?
Yes.
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Q: Which court has jurisdiction over continuing or transitory crimes?
It can be filed at Tacloban RTC, or Carigara RTC, or in any court where any of the
elements of the crime was committed. In other words, it can be filed in any of the
courts where any of the elements of the crime were committed.
JURISDICTION OVER THE PERSON OF THE ACCUSED
Q: How will the court acquire jurisdiction over the person of the accused?
1. By voluntary surrender of the accused
2. By the coercive process which is warrant of arrest.
TN: If the accused is not yet arrested, the hearing cannot proceed because the court
has not acquired jurisdiction over the person of the accused.
Example: If there is an issuance of a warrant of arrest today, and within a period of 6
months the accused is not arrested, the SC mandates the judges to archive the case
until after the accused is arrested, or after he voluntarily submits himself to the
jurisdiction of the court.
When the person voluntarily surrenders, he is entitled to an ordinary mitigating
circumstance. And if he enters a spontaneous plea of guilty, he is entitled to another
mitigating circumstance. In such a case, and without the presence of an aggravating
circumstance, it becomes a privileged mitigating circumstance which will entitle him to
a one degree lower penalty.
TN: The presence of two or more ordinary mitigating circumstance, with no
aggravating circumstance, it becomes a privileged mitigating circumstance. If it is a
privileged mitigating circumstance along with minority, then the penalty is lowered by
one degree.
TN: Even if the court has already issued a warrant, but it cannot be served upon the
person because his residence is unknown, and the person surrendered, it can be
appreciated as an ordinary mitigating circumstance of voluntary surrender.
Situation: Pedro filed a criminal case for murder against Juan and the case was
filed before the RTC of Burauen. When Juan learned about it, he went to his
lawyer and immediately filed a motion to quash. Did the court acquire
jurisdiction over his person? Is it tantamount to surrendering himself?
It depends. If the ground of the accused in his motion to quash is only to question the
jurisdiction of the court over his person, that is not tantamount to voluntary
appearance in court.
But if the motion adds other grounds, he submitted himself to the jurisdiction of the
court.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
TN: If you file a motion before arraignment, you name it Motion to Quash. After
arraignment, Motion to Dismiss. The effect of the two is the same.
If the court could find all of these three requisites for the exercise of jurisdiction, the
case is proper.
JURISDICTION OF COURTS
First-Level Courts
Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan Trial Courts
Except in cases falling within the exclusive original jurisdiction of the Regional Trial
Court and of the Sandiganbayan, the MTC shall exercise the following criminal
jurisdiction:
1. Exclusive original jurisdiction over all violations of city or municipal ordinances
committed within their respective territorial jurisdiction
2. Exclusive original jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine, and regardless of other
imposable or accessory penalties, including the civil liability arising from such
offenses irrespective of kind, nature, value or amount.
3. Exclusive original jurisdiction over offenses punishable with a fine of not more
than 4,000 pesos.
4. Damage to property through criminal negligence.
5. Summary procedure in certain cases.
Criminal cases punishable with imprisonment not exceeding 6 years irrespective
of the fine and other imposable or accessory penalties
This applies to cases where the imposable penalty does not exceed 6 years and a fine
because it is irrespective of the fine and other imposable or accessory penalties.
Q: What about if the imposable penalty is fine only?
DVOREF COLLEGE OF LAW
We have crimes in the RPC where the imposable penalty is fine. In other words, there
is no imprisonment prescribed, only a fine. It can be a form of civil liability or a penalty.
Fine is even classified as afflictive, correctional, and light. In criminal cases, the first
level courts have jurisdiction over offenses punishable with a fine of not more than
4,000 pesos.
If the penalty of fine alone exceeds 4,000, the jurisdiction is with the RTC.
4

TN: “irrespective of the fine and other accessory penalties” means that whether the
fine is 1 million pesos or not, the jurisdiction is with the first level courts.
The first level courts have jurisdiction over the case of reckless imprudence resulting to
damage to property, irrespective of the fine.
For cases which are within the jurisdiction of the first-level courts, some cases are
governed by the regular rules and these are governed by Rules 110-127 of the Revised
Rules of Criminal Procedure. On the other hand, there are also cases governed by the
Rules on Summary Procedure. These summary rules are only applied for cases which
are within the jurisdiction of the first-level courts.
Q: Of the cases which are within the jurisdiction of the first-level courts, which of
these cases are tried based on the Rules on Summary Procedure?
1. All violations of city or municipal ordinances committed within their respective
territorial jurisdiction.
2. Violations of B.P. 22
3. All other criminal cases where the penalty prescribed by law is imprisonment not
exceeding 6 months.
4. Violations of traffic laws, rules and regulations.
5. Violations of the rental laws.
Lupong Tagapamayapa
There are cases that must first be filed before the Lupon, Otherwise, if the case is filed
in court without conciliation first before the Lupon, it can be quashed on the ground
of failure to comply with the condition precedent.
The Lupon requirement is mandatory if the parties are residents of the same city or
municipality. If the conciliation is not successful, the lupon will issue a Certification to
File Action
General Rule: if the penalty does not exceed one year and the parties are residents of
the same place, the complaint must first be filed before the Lupon for conciliation.
Q: Which Lupon?
If residents reside in the same barangay – in that barangay.
If the parties reside at different barangays – the complaint must be filed at the
barangay where the respondent resides, at the option of the private complainant.
JTS: It can therefore be at the barangay of the private complainant, or in the barangay
of the respondent because it is at the option of the private complainant. But if it is
raised in the Bar, the complaint must be filed at the barangay where the respondent
resides, at the option of the private complainant.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
TN: Respondent – No case yet filed in court
If in case no conciliation was made before the Lupon, it will issue to the private
complainant a certification to file action. If there is already a Certification to File Action,
a case can now be filed in court.
Q: Are there exceptions to the rule that even if the parties reside at the same city
or municipality, there is no need to go to the Lupon?
Exception:
(a). If one of the parties is the government or a public officer particularly sued in
connection with the performance of his duties.
(b). Cases where there is no private offended party
- Violation of city or municipal ordinances
(c). The most common one is when the person is actually committing a crime in your
presence.
- In warrantless arrests, there is an obligation on the part of the arresting
officer to bring the person arrested to the proper judicial authority
within 36, 18, and 12 hours respectively. Otherwise, the arresting officer
may be sued for delay in the delivery of detained persons to the proper
judicial authority.
(d). When the accused is already detained.
Relevant provisions:
Local Government Code of 1991 (RA 7160)
Section 408. Subject Matter for Amicable Settlement; Exception Thereto. – The lupon
of each barangay shall have authority to bring together the parties actually residing in
the same city or municipality for amicable settlement of all disputes except:
a. Where one party is the government or any subdivision or
instrumentality thereof;
b. Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
xxx
d. Offenses where there is no private offended party;
xxx
DVOREF COLLEGE OF LAW
Section 409. Venue. –(a) Disputes between persons actually residing in the same
barangay shall be brought for amicable settlement before the lupon of the same
barangay.
(b) Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of the
respondents actually resides, at the election of the complainant. x x x
5
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

Section 412. Conciliation – (a) Pre-condition of filing of complaint in court. – No
complaint, petition, action, or proceeding involving any matter within the authority of
the lupon shall be filed or instituted directly in court or any other government office
for adjudication, unless there has been a confrontation between the parties before the
lupon chairman or the pangkat, and that no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat secretary as attested to by the
lupon or pangkat chairman or unless the settlement has been repudiated by the
parties thereto.
6. Violations on the Anti-Money Laundering Act if the accused is a public officer or
employee.
TN: If a private individual conspires with a public officer to commit any of the crimes
within the jurisdiction of the Sandiganbayan, he is also included in the charge.
Therefore, not only public officers and employees can be sued before the
Sandiganbayan.

Court of Appeals
(b) Where parties may go directly to court. – the parties may go directly to court in the
following instances: JTS: There are no cases which are within the exclusive original jurisdiction of the CA.
1. Where the accused is under detention But there are cases which are within the appellate jurisdiction of the CA.
xxx
1. All decisions of the RTC should be appealed to the CA.
Regional Trial Court
TN: In People vs. Mateo, in cases where the penalty imposed is reclusion perpetua or
1. Exclusive original jurisdiction over all offenses punishable with imprisonment death, appeal is no longer first to the SC but to the CA. If the party is still not satisfied,
exceeding six years. an appeal may be filed to the SC thereafter.
2. Offenses punishable with fine exceeding P4,000.
3. Jurisdiction over criminal cases under specific laws such as:
Supreme Court
a. Libel (Art. 360, RPC)
b. Violation of Comprehensive Dangerous Drugs Act of 2002 (Sec. 90, RA 1. The cases that can be filed before the RTC and the SC concurrently are criminal
9165) cases affecting ambassadors, public ministers and consuls.
c. Violations of intellectual property rights 2. Cases involving the constitutionality or validity of any treaty, executive
agreement, law, ordinance, or executive order or regulation.
3. Cases involving legality of any tax, import, assessment, or toll, or any penalty
Sandiganbayan
imposed in relation thereto
1. Crimes committed pursuant to RA 3019, otherwise known as the Anti-Graft and 4. Cases in which the jurisdiction of any inferior court is in issue
Corrupt Practices Act. Provided, that the salary grade of the accused is Grade 27 5. Cases in which only an error or question of law is involved.
and higher.

TN: If the salary grade is below 26, the case will be filed depending on the penalty of Family Courts
the offense committed. If it exceeds 6 years, the case should be filed at the RTC. If the
penalty is 6 years and below, the case should be filed at the first-level courts. 1. Cases involving violations of Anti-VAWC (RA 9262)

DVOREF COLLEGE OF LAW

2. Violations of The Child Abuse Law (RA 7610)
2. Sequestration and ill-gotten wealth cases 3. Criminal cases where one or more of the accused is below eighteen (18) years of
3. Violations on the law on bribery in all its forms including corruption of public age but not less than nine (9) years of age, or where one or more of the victims is
officers a minor at the time of the commission of the offense (RA 9344)
4. Anti-forfeiture cases (RA 1379) 4. Violation of Dangerous Drugs Act (RA 9165) but committed by minors.
5. Crimes committed by a public official or employee, whether simple or complexed
with other crimes, in relation to the performance of his official function, if the
salary grade is 27 and higher.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 6

RULE 110
PROSECUTION OF OFFENSES
Institution of criminal actions
Relevant provision:
Section 1. Institution of criminal actions. – Criminal actions shall be instituted as
follows:
(a) For offenses where a preliminary investigation is required pursuant to
section 1 of Rule 112, by filing the complaint with the proper officer for the
purpose of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint
with the office of the prosecutor. In Manila and other chartered cities, the
complaint shall be filed with the office of the prosecutor unless otherwise
provided in their charters.
The institution of the criminal action shall interrupt the running period of prescription
of the offense charged unless otherwise provided in special laws.
SITUATION: A client comes to your office and he wants to file a criminal case.
You are now preparing everything for the filing of the same. Where do you file
it?
It depends on the penalty prescribed for the crime committed. If the penalty
committed is at least 4 years, 2 months, and 1 day, file it before the office of the
prosecutor.
Lower than that, file it directly with the first level court or the office of the prosecutor.
Except however in Manila and other chartered cities. The law mandates that the filing
is only before the office of the prosecutor.
City prosecutor – offenses committed within Tacloban City.
Provincial prosecutor – offenses committed within the province of Leyte
The office of the prosecutor is the office which will conduct the required preliminary
investigation for the purpose of determining whether there is probable cause to file
the information. It is the office of the prosecutor which will actually file the information
before the court of competent jurisdiction.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
The Complaint or Information
Relevant provisions:
Section 2. The complaint or information. – The complaint or information shall be in
writing, in the name of the People of the Philippines and against all persons who
appear to be responsible for the offense involved.
Section 3. Complaint defined. – A complaint is a sworn written statement charging a
person with an offense, subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law violated.
Section 4. Information defined. – An information is an accusation in writing charging a
person with an offense, subscribed by the prosecutor and filed with the court.
Q: What are the requisites for a complaint or information?
It should be (1) in writing; (2) it must be in the name of the People of the Philippines;
(3) it must include all persons who are responsible for the commission of the offense.
TN: In criminal cases, there are two injuries involved: one is the social injury, which is
against the People of the Philippines; and the second is the personal injury when it
comes to civil liability.
That is why even if the victim is not interested to file a case, there are other witnesses
who can still prove the case beyond reasonable doubt because it is against the people
of the Philippines.
Q: Can you compel the prosecutor conducting the preliminary investigation to
include any person in the information?
It depends.
General Rule: The matter of whom to include in the information is discretionary on
the part of the prosecutor. It is based on the evidences presented during the conduct
of preliminary investigation.
DVOREF COLLEGE OF LAW
At the end of the day, it is the prosecutor who has the call. So, the private complainant
cannot just dictate on the prosecutor to include the person it wishes to be included.
Mandamus will not lie.
Exception: A prosecutor can be compelled to include a person in the complaint filed
and this will happen by means of a petition for mandamus.
Mandamus is to compel the prosecutor to include a person as one of the accused
even if the prosecutor refuses to do so. A petition for mandamus should be filed.
7

Example:
1. Grave abuse of discretion committed by the prosecutor.
- Despite of the overwhelming evidence that one of the accused has
committed the crime, the prosecutor still refuses to do so. In such case,
a petition for mandamus may be filed to compel the prosecutor to
include the particular person.
2. Other accused have an interest in the inclusion of their companions in the
commission of the crime, because they are jointly and severally liable with
them for indemnities that may be imposed upon them for the offense they
may have committed together.
TN: Although it is a matter of discretion on the part of the prosecuting attorney to
determine which persons “appear” responsible for the commission of the crime, yet
the moment he finds one to be so liable, it becomes his inescapable duty to charge
him with therewith and to prosecute him for the same. The provision then ceases to be
merely discretionary; it becomes mandatory.
Q: Can you enjoin (prevent or prohibit) the prosecutor from the conduct of
preliminary investigation? Can the court issue a TRO to prevent the prosecutor’s
office from the continuation of the conduct of preliminary investigation?
General Rule: No. A prosecutor cannot be enjoined from the conduct of preliminary
investigation because it is within the jurisdiction of the office of the prosecutor. That is
so provided to them by the Rules.
Exceptions: If the situation would fall under the 11 enumerated instances in the book
of Pamaran. (MEMORIZE)
1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question which is subjudice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court had no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for
vengeance;
10. When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied;
11. To prevent the threatened unlawful arrest of petitioners.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: Distinguish between complaint and information.
Information is one which is signed and filed with the prosecutor alone. Complaint is
one which is signed by the private offended party, by a peace officer, or any other
persons authorized by law.
A peace officer cannot file an information. It is only the fiscal. If the fiscal is convinced
that there is probable cause to file the information, the fiscal should prepare and sign
the corresponding information and prepare the same before the court.
Who must prosecute criminal actions
Relevant provision:
Section 5. Who must prosecute criminal actions. — All criminal actions commenced
by a complaint or information shall be prosecuted under the direction and control of
the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts
when the prosecutor assigned thereto or to the case is not available, the offended
party, any peace officer, or public officer charged with the enforcement of the law
violated may prosecute the case. This authority cease upon actual intervention of the
prosecutor or upon elevation of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both alive, nor, in any case, if the
offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be
prosecuted except upon a complaint filed by the offended party or her parents,
grandparents or guardian, nor, in any case, if the offender has been expressly
pardoned by any of them. If the offended party dies or becomes incapacitated before
she can file the complaint, and she has no known parents, grandparents or guardian,
the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the
offenses of seduction, abduction and acts of lasciviousness independently of her
DVOREF COLLEGE OF LAW
parents, grandparents, or guardian, unless she is incompetent or incapable of doing
so. Where the offended party, who is a minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to file the action granted to
parents, grandparents or guardian shall be exclusive of all other persons and shall be
exercised successively in the order herein provided, except as stated in the preceding
paragraph.
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No criminal action for defamation which consists in the imputation of the offenses
mentioned above shall be brought except at the instance of and upon complaint filed
by the offended party.
The prosecution for violation of special laws shall be governed by the provisions
thereof.
Q: Why do we still have to talk about complaint or information when what is
filed before the court is an information, not a complaint?
It is because there are private crimes in the Revised Penal Code (seduction, abduction,
acts of lasciviousness).
In private crimes, it cannot be filed by the fiscal alone. It must be preceded by a
complaint of the private offended party. Otherwise, if the prosecutor filed the
information in court without the complaint of the private offended party, the
information can be quashed on the ground of lack of jurisdiction.
Being private offenses, the private complainant must decide whether to pursue the
case, or not. There are instances where they would rather suffer her fate in silence than
go through the humiliation in public trial. We cannot eliminate the concept of
complaint in criminal procedure.
Even in defamation (which is a public offense), if such defamation concerns seduction,
abduction, and acts of lasciviousness, there has to be a complaint filed by the private
offended party. All other kinds of defamation do not need a complaint from the
private offended party.
TN: Rape is not a private crime.
Q: In crimes of seduction, abduction, and acts of lasciviousness, who can file the
complaint?
The private offended party.
Q: What about if she’s a minor?
General Rule: She alone can file it.
Exception: If she’s suffering from another kind of incapacity other than minority.
Example: Minor but insane.
Q: If this is the situation, who can file the complaint?
Parents. If there are no parents, it should be filed by the grandparents. In their
absence, it shall be filed by the guardian. In the absence of the guardian, it shall be
filed by the State. The particular order of filing is important.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: In the Family Code, who between the parents can file the complaint?
Either. Both have the parental authority over their child. Parental authority is jointly
exercised by the parents as provided for by the Family Code of the Philippines.
Q: In Section 5, there is a concept of adultery and concubinage. In these cases,
who can file the complaint?
The offended spouse. In concubinage – the wife; In adultery – the husband.
General Rule: What extinguishes the criminal liability of the accused is the pardon of
the President of the RP. A pardon of the private offended party is not a ground in
extinguishing the criminal liability of the accused because the offense is against the
people of the Philippines. Even if the victim has already forgiven the accused, the case
cannot be dismissed.
Exception: Adultery and concubinage is the exception to that rule. Pardon of the
offended spouse is a ground to extinguish the criminal liability of the accused.
Provided: (1) that the pardon be given to both, if both are still alive; (2) and the pardon
should be given before the case is filed in court.
Q: What is the other case where the pardon of the private offended party
extinguished the criminal liability of the accused?
Marital rape
Q: During trial, who prosecutes the case?
The public prosecutor
Q: Can private lawyer prosecute a criminal case and become a private
prosecutor?
General Rule: Yes. Because of the heavy workload of the public prosecutor, the law
allows private prosecutors to appear. However, it shall be under the control and
supervision of the government prosecutor.
Q: What will you ask so that the private prosecutor can prosecute even in the
absence of the government prosecutor? If you have that, even if the fiscal is not
around, you can still prosecute?
DVOREF COLLEGE OF LAW
Written authority from the Office of the City Prosecutor or the Office of the Provincial
Prosecutor. But it is always subject to the control and supervision of the public
prosecutor. The authority may be revoked anytime by the prosecutor’s office.
Q: Are there crimes where the private prosecutor is not allowed to appear?
Exceptions:
1. Crimes where there is no private offended party. These are crimes against
national security and Crimes against public order.
(a) Rebellion
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(b) Sedition
(c) Coup d‘etat
(d) Violation of city and municipal ordinances
If the crime has no private offended party, a private lawyer cannot appear as a
prosecutor.
TN: The reason why private prosecutors are allowed to appear is because of the civil
liability involved. Since there is no offended party in crimes against national security
and public order, it follows that there is no civil liability involved.
2. The filing of a separate civil action is reserved.
Q: If the filing of a separate civil action is reserved, can a private prosecutor
appear in the criminal case?
Not anymore because there is no civil liability involved.
Sufficiency of complaint or information
Relevant provision:
Section 6. Sufficiency of complaint or information. — A complaint or information is
sufficient if it states the name of the accused; the designation of the offense given by
the statute; the acts or omissions complained of as constituting the offense; the name
of the offended party; the approximate date of the commission of the offense; and the
place where the offense was committed.
When an offense is committed by more than one person, all of them shall be included
in the complaint or information.
Q: A complaint or information, to be valid must contain the following elements.
What should be in an information?
It must contain the (1) name of the accused; (2) the designation of the offense given
by the statute; (3) the acts or omissions complained of as constituting the offense; (4)
the name of the offended party; (5) the approximate date of the commission of the
offense; (6) and the place where the offense was committed.
Name of the accused
Relevant provision:
Section 7. Name of the accused. — The complaint or information must state the name
and surname of the accused or any appellation or nickname by which he has been or
is known. If his name cannot be ascertained, he must be described under a fictitious
name with a statement that his true name is unknown.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
If the true name of the accused is thereafter disclosed by him or appears in some
other manner to the court, such true name shall be inserted in the complaint or
information and record.
Q: If the name of the accused is not known, what should be done in the
information?
Include him as an unknown accused. The most common name used is John Doe - the
name of the person is not yet known at the time of the filing of the case, or at the time
of the filing of an information.
This is allowed by the Rules because anyway, if during the trial the name of the
accused is known, the information could just be amended accordingly to include his
name.
Designation of the offense and Cause of accusation
Relevant provisions:
Section 8. Designation of the offense. – The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offese, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.
Section 9. Cause of the accusation. — The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
Q: The words ‘acts or omissions constituting the offense committed’ seems to be
a highfaluting word. What do you mean when the law says ‘include in the
information the acts or omissions constituting the felony?’
SITUATION: Juan was sued for the crime of theft of coconuts. On or about July
10, 2017, at around 8 o’clock in the evening, in the city of Tacloban, Juan took
the coconuts owned by Maria against the latter’s will. Have you noticed there
DVOREF COLLEGE OF LAW
the acts or omissions constituting the felony?
There is: (1) took the coconut (2) against the will of Maria. Those are acts committed.
But it is not complete because there is no word “with intent to gain.” In theft, there
must be intent to gain as an element. It should be alleged in the information.
When the law says ‘acts or omissions constituting the felony,’ all of the elements of the
crime must be in the information.
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If one of the elements is missing, immediately file a motion to quash the information
on the ground that the facts charged do not constitute an offense. The crime is
definitely not committed.
JTS: If there are also aggravating circumstances, that should also be included in the
information. In fact, so that the crime may be murder, the qualifying aggravating
circumstances must be alleged in the information.
If it is not alleged, that is not murder but only homicide. If the crime was committed
with treachery but the prosecutor was not able to allege it in the information, the
crime committed is only homicide. Under the rules, a qualifying aggravating
circumstance, to convert or change the nature of the crime, must be alleged in the
information.
Q: The information stated “murder” in its caption but the allegations in the
information is for parricide. Which will prevail?
Parricide. In case of conflict between the designation of the offense as written in the
information to that of the acts or omissions in the information, the allegations in the
information must prevail.
Place of commission of the offense
Relevant provision:
Section 10. Place of commission of the offense. — The complaint or information is
sufficient if it can be understood from its allegations that the offense was committed
or some of the essential ingredients occurred at some place within the jurisdiction of
the court, unless the particular place where it was committed constitutes an essential
element of the offense or is necessary for its identification.
Q: Is it required that the place contained in the information must be the specific
place where the offense was committed?
No.
General Rule: The Rule says, as a general rule, that place of the commission of the
crime is already complied with as long as it is shown in the information that the crime
was committed within the territorial jurisdiction of the court.
JTS: Even if ‘the crime is committed in Tacloban,’ it is already sufficient. The word
“Tacloban City” would mean that the crime was committed within the territorial
jurisdiction of the place.
Exception: By way of exception to the rule, there are crimes where the place of the
commission is an element of the crime. The place of the commission of the crime must
be specifically alleged in these instances:
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
1. Trespass to dwelling
2. Robbery in an inhabited place
Date of commission of the offense
Relevant provision:
Section 11. Date of commission of the offense. – It is not necessary to state in the
complaint or information the precise date the offense was committed except when it is
the material ingredient of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission.
Q: Must the date when the crime was committed be specifically alleged in the
information so that the information will be considered as sufficient?
General Rule: It is not necessary to state in the complaint or information the precise
date.
Exception: The offense may be alleged to have been committed on a date as near as
possible to the actual date of its commission.
Q: The information says that the crime of rape was committed between January
2017 to April 2017. Is it sufficient?
Not sufficient. This is to give the accused an opportunity to defend himself against
charged against him.
Q: What if it says, the crime was committed on the first week of January 2017.
It is sufficient.
Q: What if it says, on or about January 13, 2017?
Yes.
JTS: That is the best example. If you see an information, it will always say “on or
about,” because the law says “as near as possible to the commission of the crime.”
Q: Why is it that in the crime of infanticide, the date when the crime was
committed must be specifically alleged in the information?
In infanticide, the victim should be less than 3 days of age.
DVOREF COLLEGE OF LAW
Name of the offended party
Relevant provision:
Section 12. Name of the offended party. – The complaint or information must state
the name and surname of the person against whom or against whose property the
offense was committed, or any appellation or nickname by which such person has
been or is known. If there is no better way of identifying him, he must be described
under a fictitious name.
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(a) In offenses against property, if the name of the offended party is unknown,
the property must be described with such particularity as to properly
identify the offense charged.
(b) If the true name of the person against whom or against whose property the
offense was committed is thereafter disclosed or ascertained, the court
must cause such true name to be inserted in the complaint or information
and the record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or
any name or designation by which it is known or by which it may be
identified, without need of averring that it is a juridical person or that it is
organized in accordance with law.
Q: What is our rule on the name of the offended party? Must it be alleged in the
information?
Yes
Q: What about if he is unknown? What should be done?
Describe him as an unknown, or a fictitious name. This is the same with the accused.
“John Doe”. If, during trial, the name is determined, an amendment would be made in
the information.
Q: What about if this is a crime against property (theft, robbery, estafa) and the
name of the offended party is unknown?
General Rule: In crimes against property, if the name of the offended party is
unknown, the property subject of the crime must be described with particularity.
Exception: Robbery with homicide, considering the gravity of the offense. This is the
only one crime where the law mandates that the name of the owner must be alleged
in the information and the information cannot just describe the property with
particularity. There is no other substitute but the name of the owner.
Q: What if the offended party is a juridical person (corporation, partnership,
cooperative)?
It is sufficient to state the name which the juridical person is known, including its
designation.
Example: XYZ Corporation.
Duplicity of the offense
Relevant provision:
Section 13. Duplicity of the offense. – a complaint or information must charge only
one offense, except when the law prescribes a single punishment for various offenses.
Q: The information charged your client for two offenses. Proper?
General Rule: Duplicity of offenses is not allowed.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
It is violation of the rule that the information must charge only one offense. A motion
to quash must be filed on the ground that the information charged more than one
offense before arraignment of the accused. Otherwise, it is deemed waived.
TN: This ground can be waived. If no question was made before the arraignment of
the accused, and the crimes were proven during trial, the court may convict him to as
many offenses as there are alleged in the information.
Exceptions:
(a) Complex Crimes
(b) Special Complex Crimes
(c) Continuous crime
(d) Crimes susceptible of being committed in various modes
(e) Crimes of which another offense is an ingredient
TN: The jurisdiction for complex crimes should be based on the more serious offense.
Q: The accused is sued for the crime of estafa thru falsification of private
document. Did the information charge more than one offense?
Yes
Q: What about this is estafa thru falsification of public document? Is the
information defective?
No, because it is a complex crime.
TN: There is no complex crime of estafa thru falsification of private document. There is
only a complex crime thru falsification of public document.
Q: Why is there no crime of estafa thru falsification of private document?
If that is alleged in the information, it is defective because the accused is already
charged for two offenses: (1) estafa, and (2) falsification of private document. It cannot
be complexed because of the Doctrine of Common Element.
The element of damage in estafa is the very same element of damage in falsification of
DVOREF COLLEGE OF LAW
private document.
TN: In falsification of public document, damage is not an element.
Q: Juan killed Pedro. When Pedro was already dying, Juan saw the watch of
Pedro with diamonds. So, he took the watch and left. Is it a special complex
crime, therefore, an exception to duplicity rule?
No. It is not a special complex crime. It is not robbery with homicide because the
intention was to kill Pedro. If the original intention was to kill, and the robbery was
12

only an incident thereof, there is no special complex crime. Instead, there are two
crimes committed: (1) murder, and (2) robbery.
TN: In robbery with homicide, the original intention was to rob, and the killing was
only an incident or afterthought thereof. This is the same with robbery with rape. If the
intention was to rape, and the robbery was only an incident thereof, there is no
complex crime of robbery with rape. But if the intention was to rob, and the rape was
an incident thereof, robbery with rape is committed.
Q: The crime committed was frustrated homicide but the information alleged
physical injuries. Proper?
Yes. Physical injuries is necessarily included in frustrated homicide.
JTS: That is why if the prosecutor cannot prove the intent to kill, judges would convict
the accused for physical injuries. Between frustrated, attempted homicide, murder,
infanticide, parricide and physical injuries, the difference lies on intent to kill. If there is
no intent to kill, it becomes physical injuries.
Place where action is to be instituted
Relevant provision:
Section 15. Place where action is to be instituted. –
(a) Subject to existing laws, the criminal action shall be instituted and tried in
the court of the municipality or territory where the offense was committed
or where any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private
vehicle in the course of its trip, the criminal action shall be instituted and
tried in the court of any municipality or territory where said train, aircraft, or
other vehicle passed during its trip, including the place of departure and
arrival.
(c) Where an offense is committed on board a vessel in the course of its
voyage, the criminal action shall be instituted and tried in the court of the
first port of entry or of any municipality or territory where the vessel passed
during such voyage, subject to the generally accepted principles of
international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of
the Revised Penal Code shall be cognizable by the court where the criminal
action is first filed.
Q: What is the rule on place where the crimes are supposed to be instituted or
filed?
It should be filed at the municipality or place where any of the ingredients of the crime
was committed.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: What about if it is a moving vehicle?
If it is a train or other public or private vehicle, the information will be filed on those
places where the said train or other public or private vehicle passed including the
place of departure and arrival.
Q: What about vessels?
The information will be filed on those places where the vessels passed including the
port of entry.
Q: What about crimes committed aboard foreign vessels within the Philippine
territory? Will Philippine courts have jurisdiction?
There are two rules: (1) French Rule and (2) English Rule. It is the English Rule that
applies in the Philippines.
English Rule – General Rule: it can be filed in the Philippine court
Exception: If it only concerns the internal management of the vessel.
Amendment or substitution
Relevant provision: (Judge’s favorite)
Section 14. Amendment or substitution. – A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment may
only be made with leave of court and when it can be done without causing prejudice
to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense
charged in or excludes any accused from the complaint or information can be made
only upon motion by the prosecutor, with notice to the offended party and with leave
of court. The court shall state its reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon
DVOREF COLLEGE OF LAW
the filing of a new one charging the proper offense in accordance with Section 19,
Rule 119, provided the accused would not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance at the trial.
Q: Can an information be amended?
Yes, the information can be amended.
Q: Can it be amended in form and in substance too?
It depends.
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Before arraignment, an information can be amended in form and in substance.
After arraignment, only formal amended is allowed.
TN: General Rule: If the amendment is substantial, that is only allowed before
arraignment of the accused.
Exception: Even after arraignment, substantial amendment is allowed. Provided, it will
not prejudice the rights of the accused.
Q: When would you consider whether the amendment is a formal amendment?
It is only a formal amendment if it will not change the theory and defense of the
accused. If it will change the theory of the case, it will change the defense available to
the accused, hence, a substantial amendment.
SITUATION: This is a crime of theft. The prosecutor who filed the same was not
able to allege in the information the element of intent to gain. It was only found
out by the prosecutor who handled the case after the arraignment. He moved for
the amendment of the information to include intent to gain. The counsel for the
accused vehemently objected because the amendment is substantial. Would you
grant the motion?
Yes. It is not a substantial amendment. Placing intent to gain will not change the
defense of the accused.
Q: What about if what would be amended is just putting the word “conspiracy?”
It is only a formal amendment. Pamaran disagrees because it is actually a substantial
amendment.
JTS: I actually agree with Pamaran but don’t follow my agreement with Pamaran. If
there’s conspiracy, it would definitely change the defense of the accused. If there is no
conspiracy, the accused would not be convicted as principals. It might be on different
participation (principal, accessory, and accomplice).
TN: Clerical errors are incontestably formal amendments.
Q: What about if the amendment will downgrade the nature of the offense, or
will exclude any of the accused charged in the information?
Example: Originally murder  homicide
It is allowed by the Rules but it should be done before the arraignment of the accused.
Requisites:
(a) Motion by the prosecutor
(b) Notice to the offended party
(c) With leave of court
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
TN: Even if the amendment is done before the arraignment of the accused, but it is
actually to downgrade the offense committed, it can only be granted if the requisites
are present.
SITUATION: Trial was going on and the prosecution and the defense have
already rested. It was found out that there was a mistake in charging the proper
offense. What can be done?
The original information will be dismissed. The court will order to file a new
information with the correct offense. Provided, that the accused is not placed in
double jeopardy. That is the qualification.
In fact in accord with this, the author made reference to Sec. 19 of Rule 119. If this will
happen, the court will not order the release of the accused. Even if the original
information is dismissed, the court will not release the accused because anyway, a new
information will be filed.
Q: The information is homicide but there was a mistake in charging the proper
offense. It should have been murder. What the court did was to dismiss the
homicide and file a new information for murder. Proper?
No. An accused cannot be charged for a graver offense than that charged in the
information. He should therefore be convicted of only homicide despite the mistake in
charging the proper offense.
TN: The accused cannot be convicted for a graver offense than that charged in the
information.
Example where there can be an amendment of information:
1. The accused was charged with frustrated homicide but the evidences warrant
attempted homicide only.
2. Charged for theft but the evidence warrant estafa.
TN: In these cases, the accused is definitely not placed in double jeopardy.
DVOREF COLLEGE OF LAW
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RULE 111
PROSECUTION OF CIVIL ACTION
Institution of criminal and civil actions
Relevant provisions:
Article 100, RPC. Civil liability of a person guilty of felony. – Every person criminally
liable for a felony is also civilly liable.
Section 1. Institution of criminal and civil actions. – (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under circumstances
affording the offended party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused
by way of moral, nominal, temperate, or exemplary damages without specifying the
amount thereof in the complaint or information, the filing fees therefor shall constitute
a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the
complaint or information, the corresponding filing feels shall be paid by the offended
party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required
for actual damages.
No counter-claim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil action.
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to file such civil
action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended
party shall pay in full the filing fees based on the amount of the check involved, which
shall be considered as the actual damages claimed. Where the complaint or
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
information also seeks to recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay the filing fees based on the amounts alleged
therein. If the amounts are not so alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with the
court trying the latter case. If the application is granted, the trial of both actions shall
proceed in accordance with Section 2 of this Rule governing consolidation of the civil
and criminal actions.
Q: This Rule is a review in the light of what article in the Revised Penal Code?
Article 100 of the RPC, subject to the provisions of Rule 111 of the Rules of Court.
Q: How come that if a crime is committed, there is a criminal liability and a civil
liability as well?
Because when a crime is committed, there are two injuries: (1) social injury against the
State and (2) personal injury against the private offended party. One is criminal, the
other is civil.
Q: If a criminal case is filed in court, is it deemed to include the civil liability?
General Rule: When a case is filed it is deemed to include both the criminal and the
civil liabilities:
Exceptions:
1. When the offended party waives the civil action
2. The offended party expressly reserves his right to file a separate civil action
3. When the civil action was filed ahead of the criminal action
JTS: That is why when the offended party reserved his right to file a separate civil
action, the case can only be handled by a public prosecutor.
Q: When can reservation of the right to file a separate civil action be filed?
1. The private offended party may reserve his right to file a separate civil action
DVOREF COLLEGE OF LAW
before the prosecutor’s office during preliminary investigation.
2. If he forgot to do so and the case is filed in court, reservation may still be
done:
a. Before the prosecution starts presenting its evidence
b. Under circumstances affording the offended party a reasonable
opportunity to make such reservation.
Q: When can you say when the “prosecution starts to present its evidence?” In
every criminal case, there is an arraignment. The arraignment is the stage where
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the information is read to the accused and whether he pleads guilty or not guilty.
The accused pleaded not guilty. Can he still reserve the filing of a separate civil
action after arraignment?
Yes.
Q: After arraignment, there will be a preliminary conference and pre-trial
conference. During the pre-con and the pre-trial, can the offended party still
reserve?
Yes
Q: What about if the prosecution has already presented its first witness. Can he
still reserve?
No more. The words “before the prosecution starts to present its evidence” simply
means before the prosecution started to present its first witness.
TN: As long as the prosecution has yet to present its first witness, he can still reserve
the right to institute a special civil action.
When separate civil action is suspended
Relevant provision:
Section 2. When separate civil action is suspended. - After the criminal action has
been commenced, the separate civil action arising therefrom cannot be instituted until
final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been
instituted, the latter shall be suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until final judgment is rendered in
the criminal action. Nevertheless, before judgment on the merits is rendered in the
civil action, the same may, upon motion of the offended party, be consolidated with
the criminal action in the court trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the offended party in the criminal case and
of the parties to present additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled.
The extinction of the penal action does not carry with it extinction of the
civil action. However, the civil action based on delict shall be deemed extinguished if
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
there is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist.
Q: Reservation is allowed as long as it is done before the prosecution starts to
present its evidence. In reality, what is being tried is only the criminal case, not
the civil liability. When can you ultimately file the civil liability?
The filing of the civil case based on your reservation shall wait until after there is a final
judgment in the criminal case.
Q: The filing of civil cases also has prescriptive periods. What if the criminal case
takes 20 years to render a final judgment? Will the cause of action in the civil
action prescribe?
No. The prescriptive period for the civil action shall be tolled until the criminal case is
decided with finality.
Q: While waiting for the finality of the judgment in the criminal case, the accused
was acquitted. Can you still file the reserved civil action despite the acquittal of
the accused in the criminal action?
It depends on the basis of acquittal.
General Rule: If the acquittal was based on the fact that: (1) the accused did not
commit the crime at all or (2) because there was a justifying circumstance, there is no
criminal and civil liability. Therefore, the offended party can no longer reserve the civil
action.
Exception: If the acquittal was based on the failure of the prosecution to prove the
guilt of the accused beyond reasonable doubt, the acquittal will not include the civil
liability. The offended party can still reserve the filing of the civil action.
When civil action may proceed independently
Relevant provisions:
Section 3. When civil action may proceeded independently. — In the cases provided
for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent
civil action may be brought by the offended party. It shall proceed independently of
the criminal action and shall require only a preponderance of evidence. In no case,
DVOREF COLLEGE OF LAW
however, may the offended party recover damages twice for the same act or omission
charged in the criminal action.
Article 32, NCC. – Any public officer or employee or any private individual who
directly or indirectly obstructs, defeats, violates in any manner, impedes or impairs any
of the rights or liberties of another person shall be liable to the latter for damages:
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press or to maintain a periodical publication;
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4. Freedom from arbitrary or illegal detention;
5. Freedom of suffrage;
6. The right against deprivation of property without due process of law;
7. The right to a just compensation when private property is taken for public
use;
8. The right to the equal protection of the laws;
9. The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
10. The liberty of abode and of changing the same;
11. The privacy of communication and correspondence;
12. The right to become a member of associations or societies for purposes not
contrary to law;
13. The right to take part in a peaceable assembly to petition the Government
for redress of grievances;
14. The right to be a free from involuntary servitude in any form;
15. The right of the accused against excessive bail;
16. The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
17. Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
18. Freedom from excessive fines, or cruel and unusual punishment, unless the
same is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
19. Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence
an entirely separate and distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if the latter be
instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act
or omission constitutes a violation of the Penal Code or other penal statute.
Article 33, NCC. - In cases of defamation, fraud, and physical injuries a civil action for
damages, entirely separate and distinct from the criminal action, may be brought by
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.
Article 34, NCC. When a member of a city or municipal police force refuses or fails to
render aid or protection to any person in case of danger to life or property, such peace
officer shall be primarily liable for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance of evidence shall
suffice to support such action.
Article 2176, NCC. - Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter.
Section 5. Judgment in civil action not a bar. — A final judgment rendered in a civil
action absolving the defendant from civil liability is not a bar to a criminal action
against the defendant for the same act or omission subject of the civil action.
JTS: If both the criminal and the civil cases are filed within the same jurisdiction and
venue, a consolidation is proper. In consolidation, the evidence presented in the civil
case shall be automatically reproduced in the criminal action subject to further cross
examination on the part of the witnesses presented.
In an independent civil action, there is no need to reserve. It can be filed even if the
criminal case is pending. However, the law does not allow double recovery of damages
arising from the same acts or omission. That which awards a higher amount may be
chosen by the offended party.
TN: The term “physical injuries” in Article 33 has already been construed to include
bodily injuries causing death. (Carandang vs. Santiago) It is not the crime of physical
injuries defined in the Revised Penal Code. It includes not only physical injuries but
also consummated, frustrated, and attempted homicide. (Dulay vs. CA)
DVOREF COLLEGE OF LAW
Q: Does the term “physical injuries” cover reckless imprudence?
No.
JTS: The words “physical injuries” means the crime should be intentionally committed.
Reckless imprudence crimes cannot become independent civil actions.
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Prejudicial question
Relevant provisions:
Section 6. Suspension by reason of prejudicial question. - A petition for suspension of
the criminal action based upon the pendency of a prejudicial question in a civil action
may be filed in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the prosecution
rests.
Section 7. Elements of prejudicial question. — The elements of a prejudicial question
are: (a) the previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and (b) the resolution of
such issue determines whether or not the criminal action may proceed.
General Rule: The civil action will be tolled until the finality of the criminal case. There
is a need for reservation.
Exception: Independent civil action.
Q: Can there be an instance where the criminal case will be tolled until finality of
the civil case?
Yes, when there is a prejudicial question. It is now the criminal case waiting for the
decision of the civil case.
SITUATION: A married B. While the marriage still exists, B contracted another
marriage with C. The wife learned that B married entered into marriage with C.
What case should be filed by A against her husband?
Bigamy
SITUATION: She filed a case of Bigamy against her husband. The husband was
very wise. While the bigamy case was pending, the husband filed a petition for
declaration of nullity of his marriage with A before the RTC. After filing that
petition, he now filed a motion in the court which tried the bigamy case for
suspension on the ground of a prejudicial question. Will you grant the motion?
No. There is no prejudicial question and aside from that, the crime of bigamy was
already committed while the first marriage existed. All the elements of bigamy are
present.
Q: What are the two elements of prejudicial question?
1. There must be a previously instituted civil case, issues of which are
intimately related to the criminal case
2. The acquittal of the accused depends on the resolution of the civil case.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: Which of the two would apply to support your answer?
The first. To become a prejudicial question, the civil case must be filed ahead of the
criminal case. The law says previously instituted civil case. In the problem, the criminal
case for bigamy was filed ahead of the petition for the declaration of nullity of
marriage. Hence, it would not become a prejudicial question.
Q: Until when can you file a motion to suspend the hearing of the criminal case
on the ground of a prejudicial question?
Before the prosecution rests its case
Effect of death on civil actions
Relevant provision:
Section 4. Effect of death on civil actions. — The death of the accused after
arraignment and during the pendency of the criminal action shall extinguish the civil
liability arising from the delict. However, the independent civil action instituted under
section 3 of this Rule or which thereafter is instituted to enforce liability arising from
other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the
case may be. The heirs of the accused may be substituted for the deceased without
requiring the appointment of an executor or administrator and the court may appoint
a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the
manner especially provided in these rules for prosecuting claims against the estate of
the deceased.
If the accused dies before arraignment, the case shall be dismissed without
prejudice to any civil action the offended party may file against the estate of the
deceased.
Q: Hearing was going on and the accused died. Will that extinguish his criminal
DVOREF COLLEGE OF LAW
liability?
Yes
Q: What about the civil liability?
If he died before final judgment, both the criminal and the civil liabilities are
extinguished.
If he died after final judgment, the criminal liability is extinguished but the civil liability
survives.
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Q: How come that the criminal liability is extinguished? What is the legal
justification for that?
Because of the characteristic that penalty is personal in nature.
Q: The matter of whether there is extinguishment of criminal or civil liability
depends whether the accused died before or after final judgment in the criminal
case. When would you consider whether the judgment is final?
1. When there is no appeal 15 days from the promulgation of the decision
2. Accused waives his right to appeal
3. When the accused files an application for probation
4. Even before the lapse of the 15 day period, the accused has already
commenced to serve his sentence.
Q: If the accused appealed, and the accused died while his case was on appeal,
will it extinguish both his civil and criminal liabilities?
Yes, unless the appellate court resolved it with finality. Once there is an appeal, the
judgment is not yet final and executory. In this case, the criminal and civil liabilities are
extinguished.
General Rule: If the accused died before final judgment, the civil liability is
extinguished.
Exception: Even if the accused dies before final judgment, the civil liability still
survives when the action is predicated from a different source of obligation (People vs
Bayotas):
(a) Quasi-delicts
(b) Quasi-contracts
(c) Law
(d) Contracts
Q: Against whom would you file this?
The civil case may be filed against the (1) estate of the accused or (2) against his heirs
or legal representatives.
Q: What are the two cases of quasi-contracts?
1. Negotiorum Gestio
2. Solutio Indebiti
JTS: Quasi-delict is negligence not on the basis of the RPC but on the basis of the
Civil Code.
Q: Give me one crime where the law does not allow the filing of a separate civil
action.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
B.P. 22. Once a criminal case for violation of B.P. 22 is filed, it is deemed to include to
civil liability. In fact, you also have to file the corresponding filing fee.
JTS: We write you to file the filing fee within 5 days. Failure of which would dismiss the
case because of the principle in BP 22 that the law will never allow the filing of a
separate civil action.
RULE 112
PRELIMINARY INVESTIGATION
Preliminary Investigation
Relevant provision:
Section 1. Preliminary investigation defined; when required. — Preliminary
investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is
required to be conducted before the filing of a complaint or information for an offense
where the penalty prescribed by law is at least four (4) years, two (2) months and one
(1) day without regard to the fine.
Q: Before the prosecutor files the information in court, he must first conduct
preliminary investigation. Does it cover all cases?
Only for cases punished by imprisonment of at least 4 years, 2 months, and 1 day.
Therefore, if it is less than 4 years, 2 months, and 1 day, it can be filed even without
preliminary investigation.
Q: What is preliminary investigation?
It is an inquiry or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial. Simply put, determination of
probable cause to file information in court.
DVOREF COLLEGE OF LAW
Officers authorized to conduct preliminary investigation
Relevant provision:
Section 2. Officers authorized to conduct preliminary investigations. —
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
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(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
Q: Who can conduct preliminary investigation?
1. Provincial or City Prosecutors and their assistants
2. National and Regional State prosecutors
3. Other officers as may be authorized by law.
Q: Who are the officers authorized by law to conduct preliminary investigation?
(a) Office of the Ombudsman is the most common.
- Crimes committed by public officers or employees in relation to the
performance of their official functions, or violations of the Anti-Graft
and Corrupt Practices Act (RA 3019). It is the Office of the Ombudsman
which will determine the existence of probable cause to warrant the
filing of the information.
TN: Courts cannot conduct preliminary investigation.
JTS: Before 1995, first-level courts can conduct preliminary investigation. It ended in
1995.
SITUATION: A killed B with treachery. B died. What crime did A commit?
It depends.
If treachery is alleged in the information – murder
If A and B are not related to each other – murder
If they are related to each other – parricide
Or it may only be homicide
SITUATION: Presume it is murder. The complaint was filed before the Office of
the City Prosecutor of Tacloban City. Upon receipt of the complaint, the office
immediately filed the information in court without the conduct of preliminary
investigation. Before the accused was scheduled for arraignment, July 27, 2017,
the accused thru his counsel filed a motion to quash on the ground that there
was absence of preliminary investigation. The judge granted the motion to quash
and dismissed the information. Is the court correct?
No. The appropriate measure should have been a Motion to Remand the case to the
Office of the Prosecutor for the conduct of preliminary investigation, not a motion to
quash.
Q: How come the judge is not correct when he quashed the information?
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
The absence of a preliminary investigation does not affect the validity of the
information. It may, however, deprive the accused of due process.
JTS: Even if the case is punishable with a penalty of imprisonment of more than 4
years, 2 months, and 1 day where preliminary investigation is mandated to be
conducted prior to the filing of an information, the information is still valid even in the
absence such preliminary investigation.
It will not affect the validity of the information. The court should not dismiss the case.
Instead, it should remand the case to the Office of the Prosecutor and let them
conduct the preliminary investigation.
Q: Until when should you file the motion to remand?
It must be filed before the accused is arraigned; otherwise, it is deemed waived.
TN: The preliminary investigation should be conducted in criminal cases only.
Q: What is the remedy when the court dismissed the case because of the motion
to quash?
1. Re-file the case because there is still no double jeopardy since the accused
is yet to be arraigned.
2. Question the resolution of the judge but the only one who can question it is
the Office of the Solicitor General. The prosecutor will only handle the case
during trial. All others after trial, it is only the OSG who will handle the case.
Although there are exceptions provided for by the SC in one of their
decided cases.
JTS: You should just re-file although you have to go back to No. 1. Anyway, there is
still no double jeopardy since the accused was not arraigned.
Procedure
Relevant provision:
Section 3. Procedure. — The preliminary investigation shall be conducted in the
DVOREF COLLEGE OF LAW
following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause. They shall be in such
number of copies as there are respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify that he personally
20

examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and
its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these shall
be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon
for his defense. The counter-affidavits shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section, with copies thereof
furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party or a witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for
trial.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
JTS: In the conduct of preliminary investigation, the complaint shall be filed together
with the affidavits of the complaint and of the witnesses; one copy each for the
respondent and two copies before the Office. The offended party should also retain a
copy for himself.
TN: Respondent – the case is not yet filed; it is still with the prosecutor
Accused – the case is already filed
Q: The affidavits must be subscribed and sworn to. If you are the counsel of the
private complainant, can you subscribe it as a rule?
No. The affidavits must be subscribed by the (1) prosecutor, (2) or government official
authorized to administer oath, (3) it is only in the absence of the prosecutor or
government official where the lawyer can now notarize the affidavit.
Q: Upon filing of the affidavit of the complainant and the witnesses, if the
prosecutor finds no probable cause, he's allowed to dismiss it. Otherwise, if
there's a need to proceed with the investigation, what should be done?
A: Issue a subpoena to the respondent to submit his counter-affidavit and the affidavit
of his witnesses, which will be subscribed by the same persons who will subscribe the
affidavit of the complainant and his witnesses.
Q: What is the effect if the respondent, in spite of receipt of the subpoena, would
not submit any counter-affidavit?
A: Resolve the case based on the evidences presented by the complainant.
Q: Can the investigating prosecutor conduct a clarificatory hearing?
A: Yes
Q: In the clarificatory hearing, can the counsel ask questions directly to the
witness himself?
A: No
Q: What should be done by the counsel?
DVOREF COLLEGE OF LAW
A: Submit questions to the investigating prosecutor and then it will be the
investigating prosecutor who will ask the questions to the witness.
Q: Then the investigating prosecutor after the conduct of clarificatory hearing
will now resolve the case whether there is probable cause or move to dismiss the
case. After he does it, what is the next step?
A: The resolution of the investigating prosecutor shall be forwarded to the head of
office within 5 days.
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Q: Why is there a need to forward the same resolution to the city, provincial,
regional prosecutor or to the Office of the Ombudsman?
A: Because if the head of the office or the Ombudsman does not exhibit the
recommendation of the investigating prosecutor, he may decide to dismiss the
information.
Q: What about if the resolution of the investigating prosecutor is for dismissal
and then, when this was forwarded to the city prosecutor, the city prosecutor
finds the existence of probable cause and therefore it issued a resolution
reversing the resolution of the investigating prosecutor, what should be done
now?
A: He may file the information or direct another prosecutor to file the information
without the necessary conducting of another preliminary investigation.
Q: Because any resolution of the investigating prosecutor without the approval
of the city or provincial prosecutor, what is the effect of that?
A: The information is null and void. There has to be an approval, that is why the
resolution has to be forwarded to the chief of office for the purpose of approval. It’s
either the chief of office, the city, provincial prosecutor would reverse or just affirm the
recommendation. If the recommendation is for dismissal, but on review by the city
prosecutor, it finds the existence of probable cause, he may file by himself the
information or direct another prosecutor to file the information without the conduct of
preliminary investigation.
Problem: You are the respondent, you are aggrieved with the resolution of the chief
prosecutor finding the existence of probable cause, what should you do? Can you file
a motion for reconsideration within the same office before you go to the Secretary of
Justice? I repeat, can you file a motion for reconsideration of the resolution of the City
prosecutor recommending for the filing of the information because he was able to file
the existence of probable cause? Is a motion for reconsideration allowed?
A: Yes.
Q: How many days will you file the motion for reconsideration?
A: 10 Days. You can file a motion for recon, that's always an available remedy to all
cases. If you are aggrieved with the resolution, either dismissal, you are the private
complainant or respondent for filing, you all have the right to file a motion for recon in
the same office which render the resolution, the filing is only ten days from receipt of
the questioned resolution.
Q: Your motion for reconsideration was denied still, where will you go?
A: File a petition for review/appeal to the Secretary of Justice.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: How many days would you file a petition for review/appeal of the subject
resolution to the Secretary of Justice?
A: 15 days only. From receipt of the resolution, or when there is a motion for recon,
from receipt of motion for reconsideration, to file a petition for review/appeal to the
Secretary of Justice.
Q: The Secretary of Justice affirmed the resolution, what is your remedy, where
will you go? You are not yet still contented with the resolution. If this is a
resolution subject of a petition for review and the resolution for dismissal, but
the secretary finds the existence of probable cause and recommends for the
filing of the information, what should be done by the secretary of justice? Can he
file by himself the information?
A: Direct another prosecutor to file the information without the need to conduct
preliminary investigation.
Q: You are not yet contented, where will you go and question the resolution.
A: Court of Appeals
Q: Via what remedy? Can you go first to the Office of the President?
A: There is a circular authorizing the appeal to the Office of the President but only for
crime pinishable by perpetua or death. But this is only optional because anyway, the
aggieved party may go directly to the Court of Appeals.
Q: What kind of petition will you file to the Court of Appeals?
A: Petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure to the
Honorable Court of Appeals, on the ground of grave abuse of discretion.
Q: How many days can that be filed?
A: within 60 days form receipt of the order subject of the petition.
Q: If this is a resolution of the Office of the Ombudsman, where will you go?
A: You can go to the Supreme Court via petition for certiorari within 60 days from
receipt of the order subject of the petition.
DVOREF COLLEGE OF LAW
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Problem: I asked this last year in the brain damaging midterm examination. An
information is now filed in court, what should the court do and how many days should
the court do it?
A: Upon receipt of the information, the court should determine within ten days
whether there is a probable cause for the issuance of a warrant of the arrest of the
accused.
Q: While I was reviewing the records submitted by the prosecutor's office, i was
still in doubt whether there exists a probable cause, so what I did is to dismiss
the case on the ground that there is no probable cause, am I correct?
A: No
Q: What should the judge do?
A: If he is still in doubt, the judge should issue an order to the prosecutor to submit
additional evidences to support the filing within 5 days. It is only when the prosecutor
in spite receipt of the order would not submit additional evidences, that is the time
that the court now is allowed to dismiss the information.
Q: The court determines probable cause, if there is, the court issues warrant of
arrest. Can there be an instance that the court will not issue a warrant of arrest?
A: Yes, if the accused is already detained, we will not issue a warrant of arrest, but
Commitment Order. It is an order as to where the accused should be put, if it is on
BGMP or in the sub-provincial jail.
Q: Where can there be an instance that the accused is already detained?
A: Warrantless arrests. When in his presence, the accused has just committed..(The 3
instances)
Q: Do you know the other 2 instances where a person can be arrested without a
warrant?
A: 1. escapes...
Q: what is number 2?
A: when the crime has just been committed...
Q: In these particular instances, if the info is filed in court, the court instead of
issuing a warrant of arrest, would instead issue a commitment order. In either in
one of these 3 instances, is there really a need to conduct a preliminary
investigation before the information is filed in court?
A: No
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Q: Correct. Provided there must be what?
A: an inquest proceedings to be conducted and in fact, you can even go to the house
of a prosecutor even in the middle of the night and the prosecutor cannot refuse to
entertain the police officers
Q: Why?
A: Because of the time for the filing of the info in court.
Q: and the time would be?
A: 36 hours for afflictive, 18 hours for correctional and 12 hours for light offenses.
Otherwise, if the information is not filed within these hours, they have to release the
accused. The person arrested, or they can be sued for what crime?
A: Delay in the delivery of the detained persons... under article 125 of the Revised
Penal Code.
Problem: During the inquest proceedings, the respondent through his counsel said he
want to avail of his right to the conduct of regular preliminary investigation, should
the prosecutor grant it in all instances? Because if he will conduct a regular preliminary
investigation, for sure the case cannot be filed within 36, 18 and 12. What is one
condition when the prosecutor will allow that during the inquest proceeding,
otherwise if the respondent-accused will not do that, his request for the conduct of
regular preliminary investigation will not be accepted by the prosecutor. He must do
what?
A: He must sign a waiver of article 125, if he will not do so, 100 percent sure that the
inquest prosecutor will not allow his request. So that the officer will not be sued for
the violation of article 125 and so that they will not release the accused.
Q: Accused was arrested because he was committing a crime, the complaint was
filed at the prosecutor's office for the conduct of inquest proceedings,
Unfortunately the prosecutors in Tacloban City, went to Manila for a seminar and
the police officers are already afraid because its almost 36 hours. What should
the police officers do, if in case no prosecutor is available for a conduct of
inquest proceeding.
DVOREF COLLEGE OF LAW
A: They can directly file the complaint directly to the court, and the court will
determine whether the arrest without warrant is valid, if it is valid, the court remands
the case to the prosecutor for the filing of the information.
Q: What if it falls in Saturday or Sunday?
A: Even on any day, on any hour of the night, the prosecutor should always be
available.
Q: What if the prosecutors are not available?
23
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

A: The court should have a skeletal force even in Saturday or Sunday. Prosecutors it is the same procedure that we discussed earlier, but what if it is directly filed
cannot refuse to entertain the police officers even in the middle of the night. They with the first level court?
have to follow the law because they are running out of time, 36, 18 and 12...If there is a
A: It must be filed first to the office of the prosecutor. Even if it is directly filed with the
certification that no prosecutor is available the court will accept the request to file the
court, the court has still to remand it because it is only the office of the prosecutor
information directly to the court.
which has the power to issue an information. The court cannot issue an information. It
Q: The accused who was arrested lawfully without warrant and was subjected to has to be referred to the office of the prosecutor for the conduct of preliminary
inquest proceedings did not move for the conduct of regular preliminary investigation. Then it is returned back to the first level court, then the court should
investigation during the conduct of the inquest proceedings. The information determine the existence of probable cause. If accused is already arrested -
was filed by the prosecutor before the court. The crime he has committed is commitment order, if not- warrant of arrest.
punishable by at least 4 years 2 months and 1 day, what can be done there by the
Q: Can there be an instance where the first level court will not issue a warrant,
accused? 4 years 2 months and 1 day requires mandatory preliminary
instead the court will issue summons?
investigation.
A: The first-level courts, if it found the existence of probable cause, are allowed to
A: File a motion for the conduct of preliminary investigation within 5 days from the
time he learned of the filing of the information against him. If not, you can no longer issue summons instead of a warrant of arrest.
file for the conduct of preliminary investigation. If the motion is granted, the records
will be remanded by the court to the office of prosecutor for the conduct of TN: When it comes to this particular principle, practically the discretion lies on the
preliminary investigation. For the meantime, the proceedings in the court are presiding judge of the first-level courts, on a case to case basis, whether to issue
suspended until after the results of the preliminary investigations. summons instead of a warrant of arrest. The issuance of summons, instead of a
RECAP: once the information is already filed in court, the judge has ten days from warrant of arrest if there exists a probable cause, applies only to first-level courts.
receipt of the documents to determine the existence of probable cause. If the judge
determines the existence of probable cause and the accused is not yet arrested, the Example: Crimes governed by the rules on summary procedure (crimes punished
court orders the issuance of warrant of the arrest of the accused. But if the accused is by a penalty not exceeding 6 months)
already detained, the court will issue instead a commitment order. In cases of lawful
warrantless arrests (3 instances) preliminary investigation is not mandatory, what is In these crimes, the first-level courts are justified to issue summons instead
required is there must be inquest proceedings, preparatory to the filing of the of a warrant of arrest if the judge found the existence of probable cause. The court will
information, in the 36, 18, and 12 hours, respectively. However, during the inquest issue summons or notice to the accused for him to submit his counter-affidavit and
proceedings conducted by the prosecutor, if the accused wants to avail of the conduct
affidavit of the witnesses within 10 days from receipt of the order.
of regular preliminary investigation, he can do so but he must execute or sign a waiver
of his rights under article 125 of the Revised Penal Code. Even if he did not demand
for the conduct of a regular preliminary investigation during the inquest proceedings
and once the information is already filed in court and provided that the offense is
punishable by 4 years, 2 months and 1 day, still one remedy left. File a motion of the

DVOREF COLLEGE OF LAW

conduct of preliminary investigation within five days from the time he learned of the
filing of information against him.

Q: Would it be the same procedure if the case is filed within first level courts? ( If
it is less that 4 years, 2 months and 1 day, you have two options:1. to file it
directly with the court, 2. or file it with the office of the prosecutor, except in
Manila and other chartered cities where it has to filed only in the office of the
prosecutor) No problem, if it is filed before the office of the prosecutor, because

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 24

RULE 113
ARREST
Once there is probable cause after the conduct of preliminary investigation, the
information is filed before the court and the judge is given 10 days to determine the
existence of probable cause for the issuance of a warrant of arrest. The issuance of a
warrant for the arrest of the accused is one of the means by which the court acquires
jurisdiction over the person of the accused.
DEFINITION OF ARREST
Section 1, Rule 113. Arrest is the taking of a person into custody in order that he may
be bound to answer for the commission of an offense.
Place or Arrest
General rule: When we talk about the characteristic of criminal law, we say that it is
territorial in nature. Any person who commits an offense within the Philippine territory,
whether a foreigner or not, can be sued in the Philippines.
Exceptions:
1. Republic Act No. 75 provides for exemptions in relation to diplomatic
officials. Presidents, Vice-Presidents, public ministers, ambassadors and
diplomatic officials are immune from suit in the Philippines even when they
are within Philippine territory.
2. Another exception is provided under Section 11, Article 6 of the 1987
Constitution which provides that a senator or member of the House of
Representatives shall be privileged from arrest while the Congress is in
session for offenses punishable by imprisonment of not exceeding 6 years.
TN: This R.A. No. 75 does not apply to consuls, vice-consuls and other commercial
representatives of foreign nations.
Example: If the President of the United States comes to the Philippines and commits a
crime within the country, he is immune from suit within the Philippine territory
pursuant to R.A. No. 75
Exception to the exception: Foreign diplomatic officials who committed crimes
within the Philippines cannot claim immunity under R.A. No. 75 if the country of that
specific diplomatic official does not give the same privilege to Filipino diplomatic
officials. This is under the principle of reciprocity. If the foreign country gives the
privilege of immunity to Filipino diplomatic officials, then their diplomatic officials can
also claim the same privilege of immunity in the Philippines under R.A. No. 75.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Relevant provisions
Section 4, RA No. 75. Any writ or process sued out or prosecuted by any person in
any court of the Republic of the Philippines, or by any judge or justice, whereby the
person of any ambassador or public minister of any foreign State, authorized and
received as such by the President, or any domestic or domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods or chattels are
distrained, seized, or attached, shall be deemed void, and every person by whom the
same is obtained or prosecuted, whether as party or as attorney, and every officer
concerned in executing it, shall upon conviction, be punished by imprisonment for not
more than three years and a fine of not exceeding two hundred pesos in the discretion
of the court.
Section 7, RA No. 75. The provisions of this Act shall be applicable only in case where
the country of the diplomatic or consular representative adversely affected has
provided for similar protection to duly accredited diplomatic or consular
representatives of the Republic of the Philippines by prescribing like or similar
penalties for like or similar offenses herein contained.
Section 11, Art. 6, 1987 Constitution. A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in session. No Member
shall be questioned nor be held liable in any other place for any speech or debate in
the Congress or in any committee thereof.
Problem: You are the counsel of the accused, your client was arrested but you claim
that the arrest was invalid. The information is now filed in court. What can you do
legally to protect the interest of your client?
File a motion to quash the warrant of arrest.
TN: Once the motion to quash is granted, the accused is automatically released and it
can lead to the dismissal of the information.
TN: A petition for habeas corpus is not an appropriate remedy to the situation
because the writ of habeas corpus is no longer available after the information is filed
and a warrant of arrest is issued by the trial court. A petition of habeas corpus is only a
DVOREF COLLEGE OF LAW
temporary remedy. A habeas corpus presupposes that the person is illegally deprived
of his liberty. However, according to the rules, once a warrant of arrest is issued, the
detention of a person is legal that might be objected later.
Requisites for the Issuance of a Warrant of Arrest
Section 2, Article 3 of the 1987 Constitution provides for the requisites of the issuance
of a search warrant and a warrant of arrest. It is said to be issued only if there exists
probable cause to be determined personally by the judge after examination under
oath or examination of the complainant and the witnesses he may produce.
25

Memorize this!
Section 2, Article 3. 1987 Constitution. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and
the persons or things to be seized.
Validity and Execution of the Warrant of Arrest
Q: Is there a time limit for the implementation of a warrant of arrest?
Yes. The warrant of arrest must be executed within 10 days from receipt by the head of
the office to whom the warrant has been delivered. If not executed, the officer must
make a return to the issuing judge and state the reason for his failure to execute the
same.
TN: Unlike a search warrant which the validity is only 10 days, after which it becomes
void, no time limit is fixed for the validity of a warrant of arrest. The warrant of arrest
must be served within 10 days. However, the warrant of arrest continues to be in force
even though it was not served within the time prescribed by law.
TN: The 10-day period is not for the validity of the warrant of arrest but merely a
directive to the police officers who are serving the warrant to make a return. Whether
the warrant was served or not served, the police officer has the obligation to report to
the judge what happened to the service of the said warrant of arrest.
TN: A warrant of arrest remains to be valid until after the accused is arrested or until
after the court could have ordered its revocation.
Relevant provision
Section 4, Rule 113. Execution of warrant. — The head of the office to whom the
warrant of arrest was delivered for execution shall cause the warrant to be executed
within ten (10) days from its receipt. Within ten (10) days after the expiration of the
period, the officer to whom it was assigned for execution shall make a report to the
judge who issued the warrant. In case of his failure to execute the warrant, he shall
state the reasons therefor.
Q: What are the obligations of a police officer after he has arrested a person
named in the warrant of arrest?
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Once the arrest is made, the officer has the obligation to deliver the person arrested to
the nearest station or jail.
Relevant provision
Section 3, Rule 113. Duty of arresting officer. — It shall be the duty of the officer
executing the warrant to arrest the accused and to deliver him to the nearest police
station or jail without unnecessary delay.
VALID WARRANTLESS ARREST
General rule: Before an officer can arrest a person, there must be a valid warrant of
arrest issued by the judge. Otherwise, the arrest of the person becomes null and void.
Exception: Valid warrantless arrest under Section 5, Rule 113 of the Revised Rules on
Criminal Procedure.
Section 5, Rule 113. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Paragraph B: Arrest in hot pursuit (second exception under section 5)
First requisite: An offense has just been committed
Problem: Here is an accused who committed a crime on July 27, 2017 at 8:00 in the
morning. He was arrested without a warrant the following day, July 28, 2017 at 8:00 in
DVOREF COLLEGE OF LAW
the morning. Is the arrest of the accused without a warrant valid?
No. The first requisite under paragraph b of section 5 states that “an offense has just
been committed”, meaning there must be a large measure of immediacy between the
time of the commission of the crime and the time of arrest. A 24-hour lapse is not
immediacy under the said requisite. Therefore, the warrantless arrest is not valid.
Exception: If it is a continuing offense
26

TN: Immediacy or proximity is dependent on a case to case basis. If you say in hot
pursuit, it might have been continuous. For example, the officers stopped pursuing at
9:00 in the evening and they only continued the following day at 8:00 in the morning,
and it was the time when they were able to arrest the accused. In that case, it is no
longer hot pursuit because they stopped pursuing the accused. If they stopped
somewhere else, it cannot be hot pursuit. That is why sometimes it can be 9 hours, it
can be 1 day, or it can be 2 days.
Second requisite: Personal knowledge
“he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it”
Q: Is it required for the arresting officer to actually see the commission of the
crime so that he can arrest the person?
No, the officer need not need to actually see the person committing the offense.
TN: Personal knowledge must be based upon probable cause which means an
actual belief or reasonable grounds of suspicion.
TN: For a warrant arrest to be valid under the exception number, 2 requisites must be
present. The offense has just been committed and there is reasonable ground to
believe that the person arresting has personal knowledge based on probable cause
that the person to be arrested has actually committed the offense.
TIME OF MAKING THE ARREST
Q: Can an arrest be made at any time of the day?
Yes, if it is a warrantless arrest.
Q: Why is it that an arrest at any time of the day or night cannot be applicable if
the person is arrested by virtue of a warrant?
Because it deprives the person arrested of his right to post bail.
METHODS OF ARREST
 Arrest of an officer by virtue of a warrant
 Warrantless arrest of an officer
 Arrest by a private person
In cases when a person is arrested, what is supposed to be the obligation of the
arresting officer in so far as the person to be arrested is concerned?
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Student: When an officer is making an arrest, he must inform—
Judge: Would you believe me that to make a very impressive answer, you have to
determine whether it is an arrest with a warrant and arrest without warrant
but by an officer or an arrest without a warrant by a private individual. So I
repeat, in connection with the question that is supposed to be the
obligation of the person who is arresting an accused depends, I repeat on
whether it is an arrest with a warrant of arrest or warrantless arrest but this is
done by a public officer or a warrantless arrest but done by a private
individual. So that if the arrest is with a warrant of arrest, what are supposed
to be the obligation of the officer arresting that person?
Student: An officer making an arrest by virtue of a warrant shall inform the person to
be arrested with the cause of the arrest and the fact that a warrant has been
issued—
Judge: Unless?
Student: Unless he has escaped or flee, forcibly resist or before the officer has the
opportunity to inform him, or when giving such information will imperil the
arrest.
Relevant provision
Section 7, Rule 113. Method of arrest by officer by virtue of warrant . — When making
an arrest by virtue of a warrant, the officer shall inform the person to be arrested of
the cause of the arrest and of the fact that a warrant has been issued for his arrest,
except when he flees or forcibly resists before the officer has opportunity to so inform
him, or when the giving of such information will imperil the arrest. The officer need not
have the warrant in his possession at the time of the arrest but after the arrest, if the
person arrested so requires, the warrant shall be shown to him as soon as practicable.
Judge: You are correct. What about in warrantless arrest but done by a public officer?
Student: A warrantless arrest done by a public officer, he must inform the person to
be arrested of his authority or official character, his intention to arrest him—
Judge: Unless?
DVOREF COLLEGE OF LAW
Student: Unless the person to be arrested has engaged into the commission of an
offense or he is pursued immediately after the offense has been committed
or he forcibly resist or when giving such information will imperil the arrest.
Relevant provision
Section 8, Rule 113. Method of arrest by officer without warrant . — When making an
arrest without a warrant, the officer shall inform the person to be arrested of his
authority and the cause of the arrest, unless the latter is either engaged in the
27

commission of an offense, is pursued immediately after its commission, has escaped,
flees or forcibly resists before the officer has opportunity so to inform him, or when
the giving of such information will imperil the arrest.
Judge: Okay what about if this done by the private individual?
Student: If it is done by a private individual, the private individual arresting must
inform the person to be arrested of his intention to arrest him and the cause
of the arrest. Unless he is committing an offense or if he is pursued
immediately after an offense has been committed or he flees or forcibly
resist or when giving such information will imperil to the arrest.
Relevant provision
Section 9, Rule 119. Method of arrest by private person. — When making an arrest, a
private person shall inform the person to be arrested of the intention to arrest him and
cause of the arrest, unless the latter is either engaged in the commission of an offense,
is pursued immediately after its commission, or has escaped, flees, or forcibly resists
before the person making the arrest has opportunity to so inform him, or when the
giving of such information will imperil the arrest.
Officer may summon assistance
Judge: Well said. Now, can anybody who’s making an arrest seek for assistance?
Student: No sir, only if he is a public officer.
Judge: Okay if he is a public officer, then?
Student: He can summon any person to assist him in effecting the arrest.
Relevant provision
Section 10, Rule 113. Officer may summon assistance. — An officer making a lawful
arrest may orally summon as many persons as he deems necessary to assist him in
effecting the arrest. Every person so summoned by an officer shall assist him in
effecting the arrest when he can render such assistance without detriment to himself.
Use of reasonable force when making an arrest
Judge: By the way, in the context of an arrest, can force be connected?
Student: Only reasonable force but violence or unnecessary force—
Judge: Not allowed.
Student: Not allowed.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Judge: How do you understand by the word, diba unnecessary force or violence is
not allowed. However, a reasonable force is allowed. That is very clear in the
provisions. How do you understand the concept of reasonable force?
Student: Reasonable force means the force necessary for the officer to defend himself
in case the person to be arrested resist and also if the reasonable force only
necessary to detain the person or to arrest him.
Right of the officer to break into building or enclosure
Judge: If a person is arresting then the person to be arrested went inside the house
or the building. What can be done by the person arresting?
Student: Sir, the rule provides that an officer can enter—
Judge: I repeat, change the word ‘enter’. There’s a word there that starts with letter
‘b’ that before you follow it. And it is definitely allowed by the rules.
Experience would always teach us that a person to be arrested would always
find ways and means to prevent being arrested. That’s why this particular
crime is given to anybody who is being arrested. He is allowed to?
Student: break?
Judge: He is allowed to break even those which are closed for them to be able
to enter and to capture the person to be arrested. In fact, he is also
allowed the same privilege if to do so would help in the escape of the
person arrested. It is what the law says, allowed to break any building and
the same right is given if to do so would actually liberate the person
arresting the accused.
Rights of a person arrested
1. Right to counsel
2. Right to be visited by counsel and immediate family members
DVOREF COLLEGE OF LAW
Once a person is already arrested, what certain rights should the law uphold the
person arrested. Remember, our discussion last meeting is the obligation of the
person who has arrested to bring him to the nearest police station or to the nearest
jail. In so far as the person arresting is concerned, what are certain rights which are
given to him by the rules? In fact the man is taken, the author Pamaran has
enumerated 2 laws, special laws which affords certain rights in so far as the person
arrested is concerned, what are those?
Student: The right to have counsel
28

Judge: The right of a counsel to visit the accused any time. What will happen if this
particular right of the accused is violated? Here is a counsel of the accused
who went to the police station to confirm with the person arrested but he
was not allowed by the jail guards to talk to the person arrested. Are there
certain sanctions?
Student: Yes sir. The person who prohibits or obstructs the counsel from conferring
privately with the person arrested shall be punished by arresto mayor (Sec.
1, R.A. No. 857)
Student: Another is the Right to be visited by his family?
Judge: Pwede. When the law says, to be visited by his immediate member of the
family, the word ‘immediate member of the family’ means?
Student: spouses, parent or the child, fiancée, grandparent
Judge: Aside from these, who else can visit the person arrested? Aside from the
immediate member of his family? In which case, there is also a
corresponding criminal liability if the same is violated.
Student: Medical doctor, priest, national government organizations
Judge: Correct. Those are the persons aside from counsels who are allowed to visit
the person to be arrested confined either in a police station or in a penal
establishment. What have you noticed? Where lies the difference between
visit of a counsel to visit and these particular persons? Is there a difference?
Student: The difference is the time of the visit.
TN: The counsel can visit the person arrested any time, whether day or night. On the
other hand, is so far as the particular persons enumerated (relatives, priest,
doctors, etc.) are concerned, they are given reasonable hours particularly on
time of the day.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
RULE 114
BAIL
As I told you, the reason why is it that the so-called arrest on night time and day time
is only allowed for warrantless arrest. In case of arrest of a warrant of arrest, it should
not be applied precisely because it would deprive the accused of his right to bail… and
I was telling you before even if the person arrested has already posted the requisite
bail as provided for by Rule 114, that will not be considered ha as a waiver of his right
to question the illegality of his arrest.
TN: Even if the accused has already posted bail in court, that will not be considered as
a waiver of his right to question the legality of his arrest as long as he questions the
legality of his arrest before he enters his plea.
Definition of bail
Student: Bail is a security given for the temporary release of a person subject to the
requirement that the accused will appear in court if required to
Relevant provision
Section 1, Rule 114. Bail defined. — Bail is the security given for the release of a
person in custody of the law, furnished by him or a bondsman, to guarantee his
appearance before any court as required under the conditions hereinafter specified.
Bail may be given in the form of corporate surety, property bond, cash deposit, or
recognizance.
Judge: Correct. That’s the simplest definition of what is bail but if you want to
memorize the legal definition, just memorize of course section 1 of rule 114, my dear
students. Bail can be in the following forms.
FORMS OF BAIL
1. Corporate surety
DVOREF COLLEGE OF LAW
2. Property bond
3. Cash deposit/Cash bail bond
4. Recognizance
Property bond
Judge: You know what this is the easiest so far among all the kinds of bonds, the
easiest is always posting bail cash bond. For surety, no problem. Although in
reality, this is usually done by insurance companies pero before that
insurance company to be allowed to post bail bonds for the accused, there
29

has to be certification from the Supreme Court of the Philippines and they
are allowed to do so. In property bond, this would mean any?
Student: Only real properties
Judge: In connection with a property bond, what is supposed to be the certain
requirements?
Student: It must be stated in the contract the description of the property
Student: To ensure the title … The number and the amount of bails for cases which are
not yet decided.
Judge: Okay. The court allowed the accused to post a property bond. What is the
obligation of the accused after he was allowed by the court to post a property bond
under our rules?
Student: Within 10 days, he should annotate the certificate of title—
Judge: Annotate the bond ha in the certificate of title or in the text declaration if for
the Registry of Deeds where the real property is located or if it is only a tax
declaration before the Assessor’s Office where the property is located. So
take note ha, it does not follow that you must always have a title before you
are allowed to post ha a real property bond because even if the real
property is not yet covered by a title as long as you have the corresponding
tax declaration, then that would still be allowed. However, take note ha, after
the property bond is approved by the Court and the accused is released, the
rule is very clear that he has 10 days ha to annotate the bail bond in the title
or in the tax declaration respectively. What is the effect if the accused failed
to annotate the bail bond in the Registry of Deeds of the property where it
is located? What is the effect if there is no annotation within 10 days from
the approval of the property bond?
Student: The bond is invalid, sir.
Relevant provision
Section 11, Rule 114. Property bond, how posted. — A property bond is an
undertaking constituted as lien on the real property given as security for the amount
of the bail. Within ten (10) days after the approval of the bond, the accused shall cause
the annotation of the lien on the certificate of title on file with the Register of Deeds if
the land is registered, or if unregistered, in the Registration Book on the space
provided therefor, in the Registry of Deeds for the province or city where the land lies,
and on the corresponding tax declaration in the office of the provincial, city and
municipal assessor concerned.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Within the same period, the accused shall submit to the court his compliance and his
failure to do so shall be sufficient cause for the cancellation of the property bond and
his re-arrest and detention.
Recognizance
Recognizance is that the accused enters into a contract and that the accused is left to
a responsible member of the community for his appearance in Court
TN: And the person who is in recognizance of the accused is under obligation to bring
him the accused whenever his presence is required. And it is a contract where the
accused is placed to respectable member of the community and that person is under
obligation to bring the accused to the court whenever the presence of the accused is
required.
What are the instances where the law allows that the accused be placed on
recognizance on a respectable member of the community and that person has the
obligation to bring the accused to Court whenever the presence of the accused is
required.
Instances to allow recognizance
(Memorize this)
1. If the accused has already served the minimum of his penalty using the
Indeterminate Sentence Law.
2. A violation of a municipal or city ordinance, a light felony or an offense with
penalty not exceeding 6 months or a fine of 2,000 pesos.
3. When the accused applies for probation but violated the conditions of this
probation pending summary hearing, he is either allowed to post bail or
even placed on recognizance
4. When the accused is a minor (child in conflict with the law)
5. The accused was arrested for failure to appear whenever required.
If the offender is a minor.
DVOREF COLLEGE OF LAW
TN: In Republic Act Number 9344, so if the accused is a CICL, he is a minor meaning under 18,
when he committed the offense, he can be placed on recognizance because under Republic Act
No. 9344, a person who is arrested and turns out to be a minor, he cannot be detained longer
than 8 hours.
He should be released to the persons enumerated therein not longer than 8 hours from
apprehension. Precisely, the law allows recognizance that is the courts allows the release of the
CICL on recognizance of his parents.
Student: He must only have violated a municipal or city ordinance.
30
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

Judge: Proceed. Has only violated city or municipal ordinances or has committed an Problem: The case is in Basey, he was arrested in Tacloban City. I issued a warrant of
offense arrest. He was arrested in Tacloban City. What can be done?

Student: He has committed a light felony The accused can file at any Regional Trial Court in Tacloban City.

Judge: Correct, continue further Q: If the bond is filed with the Regional Trial Court in Tacloban City, what is the
obligation of the Court after receiving the bond?
Student: or an offense punishable by imprisonment not exceeding 6 months
The Court concerned has the obligation to immediately forward the records in
Judge: Okay. Pwede na yan. Recognizance is likewise allowed in cases the accused
connection with the bail application to the Court which issued the warrant of arrest
has only violated a municipal or city ordinance, a light felony, or any offense
and that Court may either accept the bond or increase the bond as the case may be.
my dear students penalty of which does not exceed 6 months. You are
correct, give me the 3rd.
Reduction of bail
If the accused has already served the minimum of his penalty using the
Indeterminate Sentence Law. Pwede na. Recognizance, next. We have 4. Give
You will agree with me that a bond can always be reduced?
me the 5th one. I’ll give you a clue: probation.
Student: Yes
Student: If the accused the offense—
Judge: Correct. Can you file a motion to reduce the bail bond? The bond is Php
Judge: And what about that probation there? Diba he was granted probation, and
100,000.00. You want to reduce to Php 50,000.00, is that allowable? What
in probation, there are certain conditions which must be followed by the
will you do if you are the counsel of the accused? The case is already
accused.
pending in Court pero you find the bail parang very high and the client
Yes, he has violated the conditions of this probation and that is charged for an offense cannot afford to pay the same. You want it to be reduced. What will you do
where there is no bail. I’m not talking about non-bailable offenses diba the if you are the counsel of the accused?
light felonies here. He can either move that he be allowed to post bail or he
Student: File a motion to reduce the bail bond
can be on recognizance.
Judge: Okay. You are correct. Can that be done if you file your bond in another
So those are, I repeat the instances where the accused will be placed on recognizance.
Court not the Court where the case is pending? I repeat. Can that be done?
Number 1, very important, when he has already served the minimum of his penalty.
There is that question that the law allows reduction of the bail bond. You
Number 2, charged only for a municipal or city ordinance, light felony, or offenses
just file a motion, my dear students, for the reduction of the bail bond.
punishable by a penalty not exceeding 6 months. Next, if he is a minor. Okay next, if
he applies for probation and then while on probation, he committed a violation of Can the reduction of bail be allowed in cases when you post the bail other than the
these conditions of this probation pending summary hearing is either allowed to post Court where the case is pending. For example, the case is filed in Basey, you
bail or even placed on recognizance. PLEASE TAKE NOTE OF THAT. Clear tayo on that. I were arrested in Tacloban City. You posted your bail in Tacloban City. Can
repeat ha corporate surety, property bond, cash bond and recognizance. you file a motion to reduce that bail before any Court of Tacloban City?
Student: No

DVOREF COLLEGE OF LAW

Where to file bail Judge: No. That is just a disadvantage because it is only the Court where the case is
pending has the discretion whether to reduce your bail bond or not so that
if you post your bail in another Court, other than the Court where the case is
Q: M, accused, is already arrested and detained in jail. Where should he file the
pending, definitely that Court has no discretion whatsoever to reduce the
bond?
bail bond so you don’t have a choice but to post the bail bond to the same.
General rule: In the court where the court is pending… but this is subject to certain Thank you. Are we clear my dear students?
qualifications You have read of course 12-11-2. No problem if the accused is charged for a
bailable offense?
Student: Ye

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 31

BAIL AS A MATTER OF RIGHT
Relevant provision
Section 4, Rule 112. Bail, a matter of right; exception. — All persons in custody shall
be admitted to bail as a matter of right, with sufficient sureties, or released on
recognize as prescribed by law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or
Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua, or life imprisonment.
Judge: What about if he is charged before the Court for an offense punishable by
reclusion perpetua, life imprisonment or death. Is he entitled to bail as a
matter of right?
Student: No sir
Judge: Okay. If you are the counsel of the accused, what will you do? So if the
accused, I repeat, is charged for an offense punishable by reclusion
perpetua, life imprisonment or death, in your Bill of Rights of the 1987
Philippine Consitution, the crime committed therefore is a nonbailable
offense. Pero if the range would be temporal to perpetua, pwede pa. Pero if
the range would start from perpetua to death, then it becomes a non-
bailable offense. If you are the counsel of the accused, what will you do?
Student: The counsel can still file for a motion—
Judge: Motion to allow bail before the Court. And in that motion, what should be done
there?
Student: In that motion, the lawyer should stipulate that the evidence of the accused
for his guilt is not strong.
Judge: Okay, so in the motion to allow bail, is it a hearing or what does 11-12-2 says?
Student: The Supreme Court Circular provides the summary hearing
Judge: Only a summary hearing where the prosecution having the burden to prove
the guilt of the accused—to prove that the guilt of the accused is strong. In
12-11-2, what are certain peculiar characteristics there in connection with
bail hearing for persons charged with nonbailable offenses? Aside from that
it is settled there that it is summary hearing. What are certain features have
you noticed there?
Students: If I’m not mistaken sir, there are the factors to be considered.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Judge: No. I’m not talking about the factors. What should be done during the hearing,
summary in nature. Certain peculiar characteristics of 12-11-2 in connection I repeat
for application for bail. If one is charged for a nonbailable offense aside from the fact
that it is a summary hearing which is also what is provided for in Rule 114 of the 2000
Revised Rules of Criminal Procedure.
Student: The parties should submit affidavit—
Judge: Or affidavits which are already filed in support of the filing of the case shall be
used by way of direct examination. Correct? That is what is clearly set forth there
meaning during the period, the summary procedure, if there sworn statements of the
private complainants what they will do just to identify the said affidavits and the Court
will now ask questions first to them. Pwede ba all RTC witnesses must be present
during the summary hearing?
Student: No sir
Judge: I repeat, are you required as much as possible, you are for the prosecution to
bring all these witnesses during the day period?
Student: Yes sir
Judge: Why? Because the Court can just ask one question from one to the other. That
is one particular feature of this Circular. What is another feature? In this circular, can
the accused also present his witnesses?
Student: Yes
Judge: That’s another which is not found in the 2000 Revised Rules of Criminal
Procedure. Kasi in the 2000 Revised Rules of Criminal Procedure, you noticed that only
the witnesses of the prosecution are presented noh because the prosecution has a
burden that the evidence of guilt of the accused is strong. Kasi pag strong, we deny
the bail. If not strong, we grant the bail based on the criteria already set forth not only
in that circular but likewise in one of the sections of Rule 114 diba. Here, the accused if
he wants to is likewise allowed to present his evidence to prove talaga that the
evidence of guilt is not strong. And once that is done, how many hours should the
Court rule on whether you will allow the accused to post bail or not?
DVOREF COLLEGE OF LAW
Student: Within 48 hours
Judge: Within 48 hours after the presentation of the last witness, they are mandated to
resolve immediately the motion within 48 hours. The Court granted the bail of the
accused because for the Court, based on the evidences presented by the prosecution
and the accused as well, the Court finds that evidence of guilt is not strong. A lawyer
or the prosecutor who handled the prosecution’s case filed an administrative
complaint against the judge. Is that allowable?
Student: No sir.
32

Judge: Not allowed. Otherwise, what will happen to the lawyer who filed an
administrative case against the judge simply because the judge granted the bail under
that circular?
Student: It is the fault of the prosecutor—
Judge: No. I repeat diba here it is discouraged that lawyers must avoid filing
administrative cases against judges who granted bail. Correct? Otherwise, under that
circular that lawyer who filed an administrative case against the judge can be held
administratively liable. That’s very clear in Supreme Court Circular No. 11-12-2, my
dear students. Clear tayo? Are you clear? No question at this point in time? Thank you.
Diba there are certain criteria which will guide the Court in fixing the amount of bail?
The rule likewise enumerated criteria in fixing the amount of bail. Give me just 2. In
fact that was one of this a justification of the Supreme Court when it granted bail to
Senator Juan Ponce Enrile on humanitarian consideration but basically there is a basis
for that according to the Supreme Court because it is one of the criteria which laid
down in fixing the amount of bail. Diba the health of the accused?
Student: Age of the accused
Judge: Yes. The age and health of the accused. The Supreme Court if you read the case
of Juan Ponce Enrile where the Sandiganbayan granted bail to Juan Ponce Enrile
charged with a nonbailable offense of plunder. Diba that was questioned but the
Supreme Court said no. There is a legal basis for that because very clear not only on
12-11-2 but likewise on Rule 114 of the 2000 Revised Rules of Criminal Procedure that
one of the considerations noh in fixing the amount of bail is the age and the health of
the accused. What else?
Student: The-
Judge: Financial capacity. In fact, this particular criteria are not only used by the Court
in granting bail to those they are charged for nonbailable offense but also used the
same criteria when we rule on a motion for the reduction of a bail. This are the same
criteria diba I said you can file a motion to reduce the bail then we also use the same
criteria my dear students whether to reduce the bail or not. One of which is the
financial capacity of the accused. If the accused is charged with a bailable offense, the
counsel files a motion to reduce bail bond if they would attach a certificate of
indigenous my dear students, we can even lower it because the amount is definitely
discretionary on the part of the Court but like what I said, there are certain
enumerations there both in 12-11-2 and one of the sections of rule 114 which will
guide the Court my dear students in cases when the accused is allowed to post bail
because the evidence of guilt is not strong for these are the same criteria which will be
used by the Court whether to grant a reduction or not, my dear students. Okay, in
filing a motion for bail okay, particularly on the motion for the reduction of bail, can
the Court just immediately grant it?
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Student: No
Judge: No. But the accused is in a hurry for a release, what can be done? In fact in our
rules noh, motions for reduction of bail is one of the priority motions of the Court.
What can we do to this particular period requirement but the grant would still be well
within the provision of this particular rules? Focus on the prosecutor.
Bail hearing
General rule: Whether bail is a matter of right or discretion, there should always be a
hearing.
Exception: There is an instance when the hearing may be dispensed with as long as
the prosecutor was notified and would give his recommendation as to amount of the
bail.
Q: When an accused post a bond, what are the conditions?
Accused must appear for trial.
Q: Until when would the bond be good?
1. Until after the RTC rendered jurisdiction whether such decision is in the exercise of
its original or appellate jurisdiction. It is only where the bail is a matter of right.
TN: If the accused fails to appear before the court when his presence is necessary. This
would amount to a waiver of his right to appear and therefore trial in absentia.
However, it would not deprive the counsel of the accused to be present during the
hearing if he wishes to protect the interest of the accused. Because it is only a waiver
of his right to be present not to be presented.
2. He binds himself to surrender after the execution of judgment
Q: Until when will the bail be released?
If the accused is acquitted, case is dismissed, final conviction (already serving
sentence)
Relevant provision
DVOREF COLLEGE OF LAW
Section 22, Rule 114. Cancellation of bail. — Upon application of the bondsmen, with
due notice to the prosecutor, the bail may be cancelled upon surrender of the accused
or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused,
dismissal of the case, or execution of the judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on the bond.
33

General rule: Bail should be returned to the bondsman where the accused is
acquitted, where the case is dismissed (whether dismissal on the merits, whether
provisional dismissal) or where the accused has already served his sentence.
TN: The money confiscated or forfeited in favor of the government does not go to
court but goes to the National Treasury.
Q: If RTC have already rendered a decision convicting the accused of the crime
charged, conviction is for more than 6yrs. Would the accused be deprived of
bail?
Yes.
Q: After conviction, accused appealed to CA, does it follow that the accused now,
while his appeal is pending, should be in jail? What would you do so that the
accused can avail of his bail?
File a motion/manifestation before the court which rendered the decision to allow the
accused to still make use of his bond while his case is pending appeal.
TN: Court grants this motion unless accused is quasi-recidivist, habitual delinquent,
reiteracion, probability of escape, evade sentence, violated conditions of his probation,
etc. However, when the penalty exceeds 6yrs and it falls upon these grounds, definitely
the accused will be denied bail.
Grounds for Denial or Cancellation of Bail
1. If the penalty imposed by the trial court is imprisonment exceeding six (6)
years
2. Upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
a. That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance of
reiteration;
b. That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid
justification;
c. That he committed the offense while under probation, parole, or
conditional pardon;
d. That the circumstances of his case indicate the probability of flight
if released on bail; or
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
e. That there is undue risk that he may commit another crime during the
pendency of the appeal.
Problem: There are instances where the accused is charged for murder but he was
convicted only for homicide. Meaning, bailable offense na sya. Accused filed motion
to allow bail while his appeal is pending but motion was filed in the RTC which
rendered decision. Can the RTC grant the motion?
No. The accused must file his motion,if the conviction changed from non-bailable to
bailable, on the appellate court not to the RTC which rendered decision.
TN: By the way, the motion of the accused to allow bail or to make use of his bail is
filed before the RTC even after 15days as long as we did not yet transmit the records
of the case to the other court.
Residual power of the court – includes actions on bail filed by the accused allowing
him to make use of his bail while his appeal is pending even after the 15day period
has already lapsed as long as we are still in possession of the records.
BAIL AS A MATTER OF DISCRETION
TN: After the RTC renders decision, bail becomes a matter of discretion. Even our
decision to grant bail is subject to review of the appellate court. If the appellate court
reverses the decision, well that’s now the discretion of the appellate court.
Q: Accused is charged and he posted bail and filed a motion to allow him to
travel abroad, the court denied his motion. Is the court correct?
Yes, because one of the conditions of the bail is for the accused to be present before
the court when his presence is necessary. But this is likewise discretionary on the part
of the court. If the court grants your motion because your reason was valid, the court
would require you post additional bond to secure your attendance/return.
Problem: In general, anyone can be a bondsman. If a bondsman wants to be relieved
of his responsibility because he always quarrels with the accused, he filed a motion to
withdraw his bond. The judge immediately granted the motion, immediately relieved
DVOREF COLLEGE OF LAW
him and allowed him to withdraw the cash bond. Is the court correct?
No. The bondsman must first surrender the accused to the court before his motion will
be granted.
TN: One of the conditions for the granting of bond is for the accused to be present
when his presence is necessary.
Problem: If accused despite notice did not appear and his appearance is unjustified.
On motion of the public prosecutor, the court cancelled the bond of the accused and
immediately forfeited the bond in favor of the government. Is the court correct?
34

The cancellation is correct/automatic but the forfeiture is not correct, it should not be
automatic. The court has the obligation to first notify the bondsman within 30 days to
explain why the accused failed to appear, and he must bring the accused within
30days from receipt of notice. It is only when the bondsman will not be able to do this
should the court can now forfeit the bond.
Problem: Pending preliminary investigation, accused is charged with a bailable
offense and he is already in jail because this was an inquest proceeding because he
was caught in flagrante delicto. What can be done here?
File a petition for bail before the court where the preliminary investigation is pending.
If the accused is not yet charged in court because preliminary investigation is still
pending, the law allows the accused to file petition for bail and upon hearing the
petition and if the court is convinced that you are charged with a bailable offense then
the court will grant accused’s petition.
TN: Bondsman is allowed to arrest the accused if the latter failed to appear before the
court. And he can ask for assistance from officers for the arrest.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
RULE 115
RIGHTS OF THE ACCUSED
The rights granted under Section 1, Rule 115 are constitutional rights except one
which is a statutory right because it is provided by a statute. The rest are constitutional
rights guaranteed by the Bill of Rights.
What are the rights of the accused in Rule 115?
1. To be presumed innocent until guilt is proved beyond reasonable doubt
- In case there is doubt, the doubt shall be presumed in favour of the accused.
Q: What is proof beyond reasonable doubt?
Proof beyond reasonable doubt is such, to the satisfaction of the court and keeping in
mind the presumption of innocence, as preclude every reasonable hypothesis except
that which it is given to support. It is the proof of moral certainty to the unprejudiced
mind of the court that the accused has actually committed the crime.
2. The right to be informed of the nature and cause of the accusation against
him.
- What is one part of trial where this particular right of the accused is given to
him? Arraignment. That’s why accused’s presence during arraignment
cannot be waived.
Problem: Before the arraignment of the accused, you were hired as his counsel. You
noticed that the allegations in the info are vague and indefinite. Under the
circumstance, what remedy can be availed of so that the accused may be able to
understand the nature and cause of the accusation against him?
You file a motion for bill of particulars to enable the accused to make an intelligent
plea. If the court grants your motion, it will issue order for the prosecution to make
specific insofar as the allegations in the info is concerned.
TN: If you allow the accused to be arraigned even if the info is vague and indefinite is
tantamount to waiver of the accused to avail this right
DVOREF COLLEGE OF LAW
TN: A motion to quash on the ground that the facts charged do not constitute an
offense presupposes that one of the elements of the crime is not alleged.
3. To be present in no distinctions of the proceedings and be assisted by his
counsel
- But he may waive his presence. In fact this is one of the conditions for bail
that he be allowed to be absent and so trial in absentia.
There are however instances when his presence is definitely required:
35

1. For purposes of identification,
2. During arraignment,
3. During the promulgation of judgment unless the crime charged is only a
light offense in which case it may be promulgated in the presence of the
counsel of the accused.
TN: (in connection with identification of the accused) Even if during the pre-trial, the
accused admitted his identity, it is not enough because in a 2016 decision of the SC, it
said that the identity of the offender must be proved just like the offense itself. Just as
the offense must be proved beyond reasonable doubt, then therefore the identity of
the accused must likewise be proven beyond reasonable doubt. Presence of accused
cannot be dispensed with if in case an eyewitness will identify the accused.
4. Right to testify as a witness in his own behalf
- Also includes the right not to testify.
Q: If he chose not to testify, would it be taken against him?
No. You cannot compel the accused to testify. This is based principle of the Right
against self-incrimination.
TN: So this is the difference between an ordinary witness and an accused. Kasi the
accused can refuse to testify and he can always anchor the same on his right against
self-incriminatin. But the ordinary witness can be compelled to testify. It is only when
an incriminating question is asked may the ordinary witness claim against self-
incrimination.
Q: The accused testified and undergone direct exam. After, he was cross-
examined by the prosecutor asking questions testing his credibility. Can that be
objected
It depends. Because he can only be cross-examined on matters covered by his direct
examination.
5. To be exempt from being a witness against himself
- Can the court compel the accused to undergo DNA testing to prove
paternity and filiation? Yes.
- Can you compel a woman to subject herself to a laboratory exam for the
purpose of determining if she is pregnant because she was charged of
adultery? Yes
- Can you compel the accused to fit in a shoes which was found in the crime
scene? Yes.
- Can you compel the accused to a urine exam after he was caught in
possession of dangerous drugs to determine whether he is positive of
drugs? Yes
- Can you compel the accused to wear a shirt which was also found in the
crime scene? Yes
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
- Can you compel the accused to fit the footprint to determine whether it fits
his foot? Yes
TN: The extent of right against self-incrimination is to matters purely mechanical
therefore not covered by the right. But you cannot compel the accused to write
handwriting because it involves mental aspect. The right covers mental state and
testimonials.
- In a recent case decided by the SC, the accused’s objection based on right
against self-incrimination from the very beginning compelling him to
undergo urine exam is valid.
6. Right to confront and cross-examine witnesses against him.
7. Right to compulsory process to secure attendance of witnesses and
evidence in his behalf.
Q: If it is for a witness to appear in court and testify, how would you call that?
Subpoena ad testificandum.
TN: If you want that witness to bring documents. It is called subpoena duces tecum.
TN: If the witness would refuse to testify, accused must move that they should post
bond to secure their attendance and if case they did not appear, move for the
cancellation of the bond and therefore order their arrest.
8. Right to have speedy, impartial and public trial
- If the court dismissed the case based on violation of his right to speedy trial,
it is tantamount to acquittal.
- Public trial – public can attend. But there are instances when the public will
be excluded during the trial but it is not a violation of accused’s right to
have public trial. What are these instances? 1. If one of the parties is a minor,
2. When evidence presented involves decency like in rape cases
Q: What is impartial trial?
There is a cold neutrality of the judge handling the case.
DVOREF COLLEGE OF LAW
TN: If you feel that the judge is bias, what would you do if you are the counsel for the
accused? File a motion for inhibition. This is not an automatic inhibition. Counsel must
file a motion.
9. Right to appeal
- Presupposes judgment of conviction
- Statutory right
- Accused has a choice to appeal or not to appeal. If you will not appeal, the
judgment will be final.
36
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

RIGHT TO SPEEDY TRIAL RULE 116

ARRAIGNMENT AND PLEA
If the case is dismissed on the ground of a violation of the right to speedy trial, that
dismissal is equivalent to acquittal. It cannot be refiled because it will place the
Q: What is arraignment?
accused in double jeopardy.
Arraignment is where the accused is informed of the nature and cause of the
Saldariega vs. Panganiban
accusations against him and he is asked whether or not he pleads guilty or not guilty.
The Supreme Court held that there was no violation of the right to speedy trial. In
Q: What is usually the procedure during the arraignment of the accused?
determining whether the accused's right to speedy trial was violated, the delay should
be considered in view of the entirety of the proceedings. The factors to balance are the The information is read to the accused in open court, in the presence of a judge or
following: clerk, in the language known and understood by the accused and he is asked whether
he pleads guilty or not guilty.
a. duration of the delay
b. reason of the delay TN: We are mandated after the plea of the accused to issue a certificate of
c. assertion of the right or failure to assert the right to speedy trial arraignment indicating such plea. However the rule says that the absence of such
d. prejudice caused by such delay in so far as the accused is concerned certificate of arraignment will not invalidate the arraignment done by the accused.
This is not a fixed rule, it depends on the case to case basis. The court is also guided Relevant provision
by the Speedy Trial Act in determining whether or not there is indeed a violation of
the right of the accused to speedy trial. Section 1(a), Rule 116. The accused must be arraigned before the court where the
complaint or information was filed or assigned for trial. The arraignment shall be made
in open court by the judge of clerk by furnishing the accused with a copy of the
complainant of information, reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not guilty. The prosecution may call
at the trial witnesses other than those named in the complaint or information.

PLEA OF NOT GUILTY

The court will enter a plea of NOT GUILTY in the following circumstances:

a. If the accused refuses to enter his plea

b. If the accused enters into a conditional plea
c. If the accused wants to enter a plea of guilty but raises exculpatory
evidences (he wants to raise any justifying or exempting circumstances)

DVOREF COLLEGE OF LAW

Conditional plea - when the accused will enter to a plea of guilty with a condition or
proviso that a certain penalty be imposed to him. The court in this case will also issue
a plea of not guilty.

Relevant provisions
Section 1(c), Rule 116. When the accused refuses to plead or makes a conditional
plea, a plea of not guilty shall be entered for him.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 37

Section 1(d), Rule 116. When the accused pleads guilty but presents exculpatory
evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered
for him.
RIGHT TO COUNSEL
TN: The accused must be assisted by a counsel before he enters his plea.
Q: If the accused wants to have a counsel de parte, what should the court do?
The court shall give him a reasonable time to find a counsel and prepare for the
arraignment.
Q: What if the accused cannot afford the services of counsel?
The court will assign a counsel de oficio who is competent depending on the severity
of the crime committed by the accused.
TN: Once a counsel de oficio is appointed and the case is scheduled for arraignment
at the time he is appointed as such, he can ask for deferment of the arraignment for
him to be able to study the case because there are grounds that if not raised before
arraignment will be considered waived.
PRESENCE OF THE PRIVATE COMPLAINANT
Q: Is the presence of the private complainant necessary during the arraignment?
Yes. For the purpose of plea bargaining and the determination of civil liability
TN: When a case is schedule for the arraignment of the accused, the court will likewise
issue a subpoena to the private complainant for him to be present during the
arraignment.
Relevant provision
Section 1(f), Rule 116. The private offended party shall be required to appear at the
arraignment for purposes of plea bargaining, determination of civil liability, and other
matters requiring his presence. In case of failure of the offended party to appear
despite due notice, the court may allow the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the offense charged with the conformity of the
trial prosecutor alone.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
PLEA BARGAINING
Q: What is plea bargaining?
Plea bargaining is when the accused enters a plea of guilty to a lesser offense as
charged in the information. (It must be necessarily included in the crime charged)
Example: One is charged for murder, he can plea bargain for homicide because
homicide is included in murder. (frustrated murder to attempted murder, malversation
to estafa)
General rule: The presence of the private complainant during the arraignment is
indispensable. In plea bargaining, there must be consent from the private offended
party and the prosecutor.
Exception: The private complainant was notified of the scheduled arraignment but
failed to appear. The accused is willing to enter a plea of guilty to a lesser offense but
the private complainant is not around, the court can proceed with the plea bargaining
with the consent of the prosecutor.
General rule:
Plea bargaining can be allowed during the arraignment or after arraignment but
before trial.
Exception:
Q: Can there be plea bargaining after the prosecutor is finished presenting its
evidences?
Yes. In the case of People vs. Villarama, the Supreme Court held that plea bargaining
may be allowed even after the prosecutor had rested its case as long as the
prosecution does not have sufficient evidence to establish the guilt of the accused of
the crime charged.
Example: The accused was charged for murder but the prosecution failed to prove the
qualifying aggravating circumstance (like treachery), the accused can still be allowed to
DVOREF COLLEGE OF LAW
enter a plea of guilty to the crime of homicide. (Because even if the court will not
allow it, at the end of the day, the accused will still be convicted for the crime of
homicide)
TN: If the accused pleads guilty to the lesser offense (i.e. charged of murder but
pleads guilty to the crime of homicide), it is not considered as a plea of guilty and
cannot be a mitigating circumstance. A plea of guilty must be to the crime charged in
the information. Amendment of the information or complaint is not necessary.
38

Q: Is there a remedy for a plea of guilty to the lesser offense to become a
mitigating circumstance?
Yes. You can move and require the prosecutor to amend the information and charge
the crime of homicide instead of murder. After amending the information, you let the
accused enter to a plea of guilty for homicide. In this case, the plea of guilty is a
mitigating circumstance because the accused now is pleading guilty to the crime
charged in the information.
Relevant provision
Section 2, Rule 116. Plea of guilty to a lesser offense – At arraignment, the accused,
with the consent of the offended party and the prosecutor, may be allowed by the trial
court to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed to plead
guilty to a lesser offense after withdrawing is plea of not guilty. No amendment of the
complaint or information is necessary.
PLEA OF GUILTY
Problem: The accused charged for murder. During the arraignment the accused
entered a plea of guilty. After he entered a plea of guilty, the court immediately
rendered a decision. Is the court correct?
No. The court would still require the prosecution to present its evidences to establish
the degree of culpability of the accused. For heinous crimes punishable by death,
reclusion perpetua or life imprisonment, the court cannot render a decision
immediately even if the accused plead guilty for the crime charged.
*Also, along the way during the presentation of evidences, the court may be
able to find some mitigating circumstances that will lower the punishment of
the accused.
Q: What if the accused pleaded guilty to a crime not punishable by death,
reclusion perpetua or life imprisonment, can the court immediately render a
decision?
Yes. But the court can still require for a hearing to prove the civil liability of the
accused.
TN: The hearing is dispensable. The judge can ask the private complainant how much
he is asking by way of civil liability. If the private complainant will not allow that, there
is a need for a hearing.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
Relevant provisions
Section 3, Rule 116. Plea of guilty to capital offense; reception of evidence – When
the accused pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of his plea
and shall require the prosecution to prove his guilt and the precise degree of
culpability. The accused may present evidence in his behalf.
Section 4, Rule 116. Plea of guilty to non-capital offense – When the accused pleads
guilty to a non-capital offense, the court may receive evidence from the parties to
determine the penalty to be imposed.
Q: The allegations in the information are vague and indefinite; will you allow the
accused to be arraigned?
No. File a motion for a Bill of Particulars
TN: There is a difference between a motion for bill of particulars and motion to quash
on the ground that the information does not constitute an offense. If you see that in
the information, one of the elements of the crime is missing, the remedy is a motion to
quash on the ground that the facts charged do not constitute an offense. If all the
elements of the crime are present but these elements are stated in a vague and
indefinite manner, the remedy is to file a motion for a bill of particulars.
IMPROVIDENT PLEA
Q: What is an improvident plea?
A plea where the accused was not able to understand the nature and the
consequences of his plea. It is in the category of an involuntary plea.
Remedy: File a motion to set aside the judgment of conviction on the ground of
improvident plea.
DVOREF COLLEGE OF LAW
- Must be done before judgment becomes final and executory
- The motion is discretionary on the part of the court
- If granted, the court will conduct a new trial or a retrial.
Relevant provision
Section 5, Rule 116. Withdrawal of improvident plea of guilty – At any time before
the judgment of conviction becomes final, the court may permit an improvident plea
of guilty to be withdrawn and be substituted by a plea of not guilty.
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investigation of the offense conducted by the prosecution or other investigating

SUSPENSION OF ARRAIGNMENT officers, as well as any designated documents, papers, books, accounts, letters,
photographs, objects, or tangible things not otherwise privileged, which constitute or
Q: Can there be legal justification to suspend for the meantime the arraignment contain evidence material to any matter involved in the case and which are in the
of the accused? possession or under the control of the prosecution, police, or other law investigating
agencies.
Yes.

Reasons for suspension of arraignment

1. The accused is suffering from an unsound mental condition

2. There exists a prejudicial question
RULE 117
3. A petition for review of the resolution of the prosecutor is pending at the
Department of Justice or Office of the President; provided it will not exceed MOTION TO QUASH
60 days from filing of the petition.

If the accused is suffering from unsound mental condition, the court would suspend If you want to dismiss a case before the arraignment of the accused, it is not a motion
the arraignment and subject the accused for mental examination. to dismiss but a motion to quash.

TN: If there is no resolution issued by the DOJ or the Office of the President within the General rule: A motion to quash is filed before the accused enters his plea, otherwise
60 day period, the court shall proceed with the arraignment of the accused. it is deemed waived or the accused can no longer file the motion after he was
arraigned.

PRODUCTION AND INSPECTION OF DOCUMENTS Exception: A motion to quash (called as a motion to dismiss if filed after arraignment)
can still be filed at any stage of the proceeding if:
Problem: You are the counsel of the accused. You want to know the extent of the
1. The facts charged do not constitute an offense
evidences presented by the prosecution so that you can prepare the defense. What
2. The court trying the case has no jurisdiction over the person of the accused
can be a remedy or mode of discovery that can be resorted to by the counsel of the
and the offense charged
accused?
3. The accused is placed in double jeopardy
File a motion for the production and inspection of documents. 4. The criminal liability or penalty thereof is already extinguished

TN: This is done to avoid surprise, suppression of evidence or alteration of any written TN: The jurisdiction of the court over the case can be raised even for the first time on
statements given the complainant and other witnesses. appeal.

Q: Does it include all documents or evidences which are in the possession of the Relevant provision
prosecution? What is the extent of the limitation, if any?
Section 1, Rule 117. Time to move to quash – at any time before entering his plea,

DVOREF COLLEGE OF LAW

No. Any documents can be subject to the production and inspection of evidences the accused may move to quash the complaint or information.
except privileged documents or communications.
General rule: If the court grants the motion to quash, the case can still be refiled (the
Relevant provision dismissal or the quashal is without prejudice)

Section 10, Rule 116. Production or inspection of material evidence in possession of Exception: If motion to quash is granted, the case cannot be refiled if:
prosecution – Upon motion of the accused showing good cause and with notice to the
1. The accused is placed in double jeopardy
parties, the court, in order to prevent surprise suppression, or alteration, may order the
2. The criminal liability or penalty thereof is already extinguished
prosecution to produce and permit the inspection and copying or photographing of
any written statement given by the complainant and other witnesses in any

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 40

Problem: A motion to quash was filed by the accused through counsel before the
court on the grounds that the facts charged do not constitute an offense. This is a case
for theft but there was no intent to gain. The court granted the motion and quashed
the information. Is the court correct?
No. It is curable by amendment. Instead of quashing or dismissing, the court shall
order the prosecutor to amend the information.
TN: The prosecutor is given 10 days to amend the information. It is only when the
prosecutor failed to comply with the order to amend that the court can grant the
motion to quash and dismiss the case.
Grounds where an amendment of the information shall be ordered instead of
quashing the information:
1. The facts charged do not constitute an offense
2. The information does not conform substantially to the prescribed form
GROUNDS FOR A MOTION TO QUASH
The facts charged do not constitute an offense – just look at the information and if
not all of the elements of the crime is alleged in the information, it does not constitute
an offense.
The court has no jurisdiction over the case – the court acquires jurisdiction over the
person of the accused through voluntary surrender and arrest by virtue of a warrant of
arrest.
The officer who filed the information has no authority – a prosecutor must file the
information (city or provincial prosecutor, the regional state prosecutor or the Office
of the Ombudsman for case under the Sandiganbayan or cases on violation of the
Anti-Graft and Corrupt Practices Act)
The information does not conform to the prescribed form
Example: The caption of the information, the name of the accused, etc.
That more than one offense is charged
Exception: Complex crimes, Special complex crimes, Continuing offense
TN: The ground that more than one offense is charged shall be raised before
arraignment because if not, the court may convict the accused as many offenses as
alleged in the information.
There are averments which would constitute a legal excuse or justification –
averments which, if proven, will constitute as justifying or exempting circumstance.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
The criminal liability or penalty has been extinguished – refers to the
extinguishment of criminal liability in criminal law which can be total or partial.
Grounds for the extinguishment of criminal liability:
1. Death of the accused
2. By amnesty
3. Service of sentence
4. By absolute pardon (by the President); Pardon on the part of the private
complainant – in cases of marital rape, adultery and concubinage as long as
both offenders are pardoned and done before the filing of the case
5. Prescription of the crime
 20 years – for crimes punishable by death, reclusion perpetua or
reclusion temporal
 15 years – crimes punishable by other afflictive penalties
 10 years – crimes punishable by correctional penalties except arresto
mayor
 5 years – crimes punishable by arresto mayor
 1 year – libel or other similar offenses
 6 months – oral defamation and slander by deed
 2 months – light offenses
TN: Counting for the period of prescriptive period starts from the discovery of the
crime by the person in authority, his agent or private offended party if the crime is
unknown. If the crime is known, count it from the day of the commission of the crime.
Q: What is the prescriptive period for the crimes punished under special laws?
Check first if the law if it provides for prescriptive period. If it does not provide to the
prescriptive period, apply Act 3326.
 1 year – offenses punished by a fine or by imprisonment for not more than 1
month, or both
 4 years – if punished by imprisonment for more than 1 month but less than
2 years
 8 years – if punished by imprisonment for 2 years or more, but less than 6
years
DVOREF COLLEGE OF LAW
 12 years – if punished by imprisonment for 6 years or more except treason
which shall prescribe after 20 years
 5 years – cases administered by the Bureau of Internal Revenue
 2 months – violations penalized by municipal ordinances
6. Marriage of the offended party – cases of rape, abduction, seduction and acts of
lasciviousness
7. Prescription of the penalty
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Problem: The accused was charge for murder (imprisonment for 20 years). On the day Q: If there is a provisional dismissal, can the case be refiled?
before the promulgation, he was able to escape. He went to the mountains and stayed
Yes. If the penalty does not exceed 6 years, refile it within 1 year. If the penalty exceeds
there for 21 years. On the 21st year, he went to the city and he was seen and arrested.
6 years, refile it within 2 years.
Did the penalty already prescribed?
TN: Start counting the period from the time of the issuance of the order of the
No. For a penalty to prescribe, the penalty must be by final judgment. He escaped
provisional dismissal. Failure to refile it within the period prescribed, the dismissal
before the promulgation of judgment therefore the penalty is not by virtue of a final
becomes final and executory.
judgment.
Q: If the court granted the motion to quash and the accused is detained, would
Relevant Provision
that automatically mean that since the information is quashed by the court, the
Section 3, Rule 117. The accused may move to quash the complaint or information in accused will be released?
any of the following grounds:
General rule: No, the accused will not be released. Even if the information is quashed,
a. That the facts charged do not constitute an offense unless the accused is admitted to bail, he remains in custody.
b. That the court trying the case has no jurisdiction over the offense charged
Exception: If motion to quash is granted, the accused shall be released if:
c. That the court trying the case has no jurisdiction over the person of the
accused 1. The criminal liability has been extinguished
d. That the officer who filed the information had no authority to do so 2. In case of a double jeopardy
e. That it does not conform substantially to the prescribed form
f. That more than one offense is charged except when a single punishment for
EXCEPTIONS TO DOUBLE JEOPARDY
various offenses is prescribed by law
g. That the criminal action or liability has been extinguished
h. That it contains averments which, if true, would constitute a legal excuse or Exceptions: In these circumstances, there is no double jeopardy
justification; and 1. The graver offense developed due to supervening facts arising from the
i. That the accused has been previously convicted or acquitted of the offense
same act or omission constituting the former charge
charged, or the case against him was dismissed or otherwise terminated 2. The facts constituting the graver charge became known or were discovered
without his express consent. only after a plea was entered in the former complaint or information
3. The plea of guilty to the lesser offense was made without the consent of the
DOUBLE JEOPARDY prosecutor and of the offended party except as provided in section 1 (f) of
Rule 116. (Except if the private offended party failed to appear despite due
Q: What are the requisites of double jeopardy? notice)

1. Valid complaint or information Example: Accused inflicted physical injury hitting the victim on his face without the
2. Filed before a court of competent jurisdiction intent to kill. It only required medical attendance of 14 days. The accused was charged
for less serious physical injuries before MTC Tacloban City. He was arraigned and

DVOREF COLLEGE OF LAW

3. Accused has been arraigned and pleaded to the charge
4. The accused was convicted or acquitted or the case was dismissed or
otherwise terminated without his express consent.
5. The second offense charged is the same as the first charged, or for an
attempt to commit the same of a frustration thereof.
6. The second offense necessarily includes or is necessarily included in the first
offense charged.
Q: What is a provisional dismissal?
The case was dismissed with the express consent of the accused.
entered a plea of not guilty. When trial was going on, the wound developed a
permanent scar on the face of the victim which is visible and conspicuous. As a
consequence, the prosecution moved to amend information from less serious physical
injury to serious physical injury. The motion was objected by the accused and his
counsel asserting that it will put the accused in double jeopardy. Is this correct?
No, the amendment of the information will not put the accused in double jeopardy.
The graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 42
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

TN: If the supervening event took place after the filing of the information and even if Exceptions:
the accused was already arraigned, the information can still be amended and it will not
1. Evidences obtained during cross-examination
place the accused in double jeopardy.
2. Evidences during rebuttal and sur-rebuttal
3. Evidence presented on redirect and recross-examination
4. Evidence used for impeachment purposes
5. Evidence not available during pre-trial despite diligence on the part of the
party presenting it

RULE 118 NON-APPEARANCE AT PRE-TRIAL CONFERENCE

PRE-TRIAL
Pre-trial conference is mandatory in criminal cases. Absence of a pre-trial
conference will render the proceedings of a criminal case null and void.
Q: What is the importance of a pre-trial conference?
It will help in the speedy disposition of the case. It will shorten the proceedings
because the admitted facts need not be proven during the trial.
Relevant provision
Sec. 4, Rule 118. Pre-trial order — After the pre-trial conference, the court shall issue
an order reciting the actions taken, the facts stipulated, and evidence marked. Such
order shall bind the parties, limit the trial to matters not disposed of, and control
the course of the action during the trial, unless modified by the court to prevent
manifest injustice.
Q: During the pre-trial, is the presence of the private complainant and the
accused required?
No, it is not required in criminal cases unlike in civil cases. The prosecutor and the
defense counsel are required to be present in the conduct of pre-trial.
TN: If the prosecutor and/or defense counsel failed to appear, the court can impose
sanction or cite the lawyer in contempt.
Q: Why is it that the accused is not required to appear during the pre-trial?
The accused is not required to appear during the pre-trial because it may violate his
right against self-incrimination.
Q: After the conduct of the pre-trial, what will the court issue?
Pre-trial agreement and Pre-trial order. These must be signed by the parties,
otherwise these will not be binding.

TN: The pre-trial order will guide the court in the trial of the criminal case. Such pre-
Q: What are the matters to be taken during the pre-trial conference? trial order can be amended in order to prevent manifest injustice.

1. Plea bargaining
2. Stipulation of facts
3. Marking for identification of evidence of the parties
4. Waiver of objections to admissibility of evidence

DVOREF COLLEGE OF LAW

5. Modification of the order of trial if the accused admits the charge but
interposes a lawful defense
6. Such matters as will promote a fair and expeditious trial of the criminal and
civil aspects of the case.

MARKING OF EXHIBITS AND LISTING OF WITNESSES

General rule: Exhibits not marked and witnesses not listed during the pre-trial will not
be allowed to be presented during trial.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 43

RULE 119
TRIAL
In the first part of this rule, it talks about speedy trial in reference to RA 8493:
Under RA 8493, the Speedy Trial Act, it provides that cases must be finished in 180
days. In fact it is even reduced after years of implementation to 120 days and ending
up with 80 days only.
Under the revised guidelines for continuous trial, it is only 180 days (6 months) from
arraignment down to the end of the trial. After the end of the trial, judges are given 90
days to decide the case except in drug cases judges are only given 15 days to decide.
This is a reproduction of RA 8493.
In the context of RA 8493, the Speedy Trial Act of 1998, there are allowable deductions
from the 180 days. So meaning this will be deducted from the total 180 days upon
which a case is pre-determinated.
Q. What do you think is the important factor to consider in cases where the case
is not right and is not finished in 180 days?
A. It will be a denial of the accused’s right to speedy trial.
And therefore if the case is not finished in 180 days, the counsel of the accused may
file a motion to dismiss the case on the ground for violation of the right of the
accused to speedy trial. And if the motion is granted by the court, this is synonymous
in tantamount to the acquittal of the accused. If it amounts to acquittal, then the case
cannot be refiled because that will place the accused in double jeopardy.
TN: There’s a rule here in RA 8493 which requires the cases to be terminated within
180 days from the time of the filing of the same. This is very important for the purpose
in determining whether indeed there’s a violation in the rights of the accused to
speedy trial. So if the case is not terminated within 180 days that will be incontestably
a violation to right of accused to speedy trial. And therefore if there is violation we can
move to dismiss the case and if the motion is granted that is equivalent to acquittal.
Incontestably, the case cannot be refiled because that will place the accused in double
jeopardy.
In the case of Saldariega vs Panganiban, it was also reiterated in determining when can
there be a violation of the right to speedy trial.
Q. Can you have modes of discovery in criminal cases?
A. Yes, there can be modes of discovery in criminal cases.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
But it is not termed as mode of discovery because that is more or less in civil cases. But
in terms of application these are what we call modes of discovery in criminal cases.
1. Conditional examination of defense witnesses
2. Conditional examination of prosecution witnesses
Actually in civil cases these 2 are synonymous with what we call deposition. Although
deposition is not used in criminal cases for what is used here is conditional
examination.
Q. The essential witness of the defense is too old and so sick that she cannot
appear in court. If you are the counsel of the defense what will you do?
A. File a motion for the conditional examination of the defense witness.
Q. The conditional examination of the defense witness can be availed of on what
ground? Or what are the grounds which will warrant the counsel of the defense
to file a motion for the conditional examination of defense witness?
1. If the witness supposed to testify is so sick and infirm
2. If the witness resides more than 100km from the court where she is
supposed to testify. (In civil procedure we call it viatory right, and the
witness cannot be compelled to testify but this is not available in criminal
case)
Q. If the conditional examination was granted by court because it was proven
that the witness is so sick and infirm, what will the court do?
A. If the ground is meritorious, the court will issue an order granting the motion and in
that order, the court will specify the time and date when the examination shall be
made.
Q. (The conduct of conditional examination) Before whom shall it be made?
A. It can be made before the judge who issued the order, or before any member of the
bar so designated by the court. If the order is issued by a superior court like RTC, then
RTC can order MTC judge likewise to accept the conditional examination of the
defense witness.
DVOREF COLLEGE OF LAW
Q. Is it required that the prosecutor is notified of the date and time of the
conduct of conditional examination?
A. Yes. The prosecutor must be notified. The notice shall be given at least 3 days
before the scheduled date for the taking of the conditional examination of the defense
witness, if the prosecutor fails to appear, it will be deemed as a waiver, and shall
proceed with the taking of the testimony of the defense witness.
Q. It is also equally given to the prosecution. There is also what we call the
conditional examination of the prosecution witnesses. What are the grounds?
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A. The grounds for the conditional examination of the prosecution witnesses General rule: It will be the prosecution then defense, then after defense rebuttal,
when you say rebuttal it’s prosecution, then sur-rebuttal except if the accused admits
1. If the prosecution witness is sick and infirm
the commission of the crime but interposes a lawful defense.
2. If the witness has to leave the Philippines without any definite date of
returning Exception: When the accused interposes lawful defense meaning he interposes
exempting or justifying circumstances. What we do here is we invert the trial, it should
Judge: When the prosecution witness might leave abroad, tapos there’s no definite
be the defense first who will be presenting their evidence ahead of the prosecution.
date of returning yet to the Philippines, can avail of the remedy of conditional
examination of prosecution witness. Precisely during our lecture in pre-trial, this is one of the matters which is stressed out
during the conduct of pre-trial conference because in cases when during the pre-trial
TN: If the motion is granted for the conditional examination of the prosecution
conference the court will ask the accused, what is your defense? The counsel will say
witness, an order will be issued specifying the date and time, the only difference with
self-defense, your honor. So the court will say, ok self-defense then we will invert the
the defense witness is that this can only be made before the judge.
trial.
TN: In defense, it can either be done before the judge, before any member of the bar,
Q. If there are 5 accused in the case, should there be a joint trial? Can there be a
superior to inferior, but in prosecution witnesses very different siya can only be done
separate trial for each?
before the judge where the case is pending. It need not be during trial talaga it maybe
in another time. A. Yes there should be a joint trial. But if the prosecution or the counsel of the
defendant file a motion for separate trial, then the court may allow separate trial.
It is also required that the accused be notified, if the accused fails to appear, the
conditional examination will still proceed. Generally, it’s too unfair if you’re going to try it one by one dapat if there are several
accused in the case, the rule is joint trial but the law however allows either the
Q. What will you do if an essential witness under prosecution defense is not
prosecution or the defense to file a motion to have a separate trial. It might be that
interested to appear? And you are afraid that you cannot prove the case because
the defense of one is different from the others. There’s a possibility that the defense
the witness is so hardheaded eh, he doesn’t want to appear but he is the only
might ask for a separate trial which can be granted by the court by way of exception to
eyewitness. Under this circumstance what can be done legally? (He’s adamant to
the rule.
appear in court)
Problem: The prosecution has already presented its evidence, the accused is charge
A. File a motion to require the witness to post a bail.
for theft. Unfortunately in the presentation of the prosecution’s witnesses, the crime
was not theft but estafa. What can be done in this circumstance? Will the case for theft
be dismissed? Will the court release the accused?
Judge: You file a motion let the witness post bail. I will grant it definitely. Why? If he
will not appear then I will cancel the bail and he is incarcerated and then after he A. We will dismiss the case for theft, but don’t release the accused. And file now an
testify. There’s more feat there that a subpoena. Imagine ka you require her to post a information for estafa.
bail. If she will not do it arrest her. If she posted a bail, she still did not appear, you
Problem: But what about if the crime is attempted murder? But during the
cancel the bail and then you issue a warrant for her arrest, incarcerate her, don’t tell
presentation of prosecution’s witnesses, actually the crime should not have been
me that she will not be afraid. That’s one of the remedies here. It means that our law is

DVOREF COLLEGE OF LAW

attempted but frustrated kasi the doctor testified that the wounds suffered by victim is
replete with remedies available to both prosecution and defense in the dispensation of
mortal and serious. Diba in determining whether the crime is attempted or frustrated
justice.
depends on the severity of the wound inflicted. So the doctor says no it’s not, the
TN: There can be bail to secure the attendance of witness. That is one of the rules so wound sustained by the victim is not serious. It could have been frustrated murder. So
provided here. what the court did is to dismiss the attempted murder and instead file a new
information for frustrated murder. Is that legally correct? Or like murder siya, only to
Q. In the trial, who starts to present the evidence first? find out pala that the victim and the accused has a relationship. It should have been
A. It would depend. parricide. So what was done by the court was dismiss the murder and released the
accused and instead file a new information for parricide?

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 45

A. No it cannot be legally done, because you cannot charge an accused higher the one
charged in the original information. There can be a dismissal of information which is
filed because of mistake and charge now the proper information as long as the new
information will not charge a higher offense than the original information upon which
the accused was charge, so cannot be.
Attempted to frustrated, cannot be because frustrated is definitely higher than
attempted.
Murder to parricide, cannot be because parricide is higher or is graver than murder.
That is just the limitation in connection with the principle of charging a crime and
there is a mistake so far as the information is concerned.
TN: Q. The prosecution was having a problem, it has already presented four witnesses
against five accused, but the prosecution is not convinced that base on the testimony
of these four prosecution witnesses cannot still prove the guilt of the five accused
beyond reasonable doubt. What will you do?
A. The prosecution can file a motion to discharge the accused.
Under the circumstances, the best that can be done by the prosecutor is to file a
motion to discharge one of the accused or two of the accused as state witness. The
law does not say that only one, you can discharge as many as there are accused.
Q. When can you file this motion? Until when only? What is the limit? Otherwise
you could no longer file the motion.
A. You can file the motion until the prosecution rest his case.
TN: You can do so before the prosecution rest his case. When will the prosecution rest
his case? In reality, you already presented your last witness the fifth witness. You are
told by the court to formally offer now your exhibits. You’re exhibits were offered. And
the court admitted the exhibits. You now say, with the admission, your honor, the
prosecution rest his case.
That is only up to that time that you can file a motion to discharge one of the accused
as state witness. But in the motion there must be a hearing. The court cannot just
grant it without hearing.
Q. In your motion, what will you attach which will warrant the court of your
motion to discharge one of the accused? And that is in fact the one that will be
considered by the court in determining whether the motion be granted or
denied.
A. The affidavit of the accused to be discharged as state witness shall be attached to
the motion.
“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr.
CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018
TN: If the court will deny the motion will it be detrimental to the interest of the
accused? No. Even if the accused has already executed an affidavit, apparently an
affidavit which favors the prosecution, but unfortunately the court was not convinced,
so the court will deny the motion. The law says that affidavit shall be inadmissible as
evidence. So there is no worry, whether it is granted or it is denied because whatever
affidavit executed by that supposed accused to be discharged as state witness, once it
is denied shall be inadmissible as evidence against the accuse.
Memorize: You can only discharge the accused as a state witness if the following
elements are present.
1. Absolute necessity of the testimony of the accused
2. If the prosecutor has no other evidence to prove the guilt of the accused
3. If the accused should not appear to be the most guilty
4. The accused has not at any time been convicted of a crime involving moral
turpitude.
5. The testimony of the accused can be substantially corroborated in its
material point
TN: Q: Can you still say that one is not the most guilty if there’s a conspiracy?
Diba in conspiracy, the act of one is the act of all. The information alleged that
the three accused conspired to kill juan. Can you still claim that one of them is
not the most guilty inspite of the presence of conspiracy? How will you
determine?
A: Yes, you can still claim that one of them is not the most guilty.
You take note the participation of the accused. If he is the lookout lang then he is not
the most guilty. You determine already the extent of their participation. It is wrong to
conclude that simply because there’s an allegation of conspiracy that you could no
longer file a motion to discharge one of them as a state witness that is a wrong notion.
You can still do that but you look at the extent it their participation. Between the one
who stabbed and the one who served as a lookout, of course the one who served as a
lookout is the one who not most guilty.
If the accused will pass with these five qualifications, then the court may discharge him
as a state witness.
DVOREF COLLEGE OF LAW
Q.The court discharged the accused as state witness, the court was able to prove
that the five requisites are all present. What is the beneficial effect if an accused
is discharged?
1. He will be acquitted as long as he will testify in favor of the prosecution.
Because if he is discharged but he will not testify he will not be acquitted.
2. Witness protection program of the government, you will not be charge of
the offense.
46
 CRIMINAL PROCEDURE | 1st Semester, A.Y. 2017-2018

What are some immunity granted in special laws? (just read in Pamaran)
TN: The basic difference in the witness protection program and that of discharge. In
discharge there presupposes that there’s already a pending case filed against you. In
witness protection program, even if the case is not filed against you, you can already
be included in the witness protection program under the DOJ.
If you were discharged, after you testify you can also apply in the witness protection
program so you can avail of the benefits. There are plenty of benefits. Although your
life is restricted because you cannot just move around without the consent of the DOJ
but there are plenty of benefits there.
The rule says, that if an accused was discharged as state witness in favor of the
prosecution he is eligible to apply in the witness protection program of the
government so that he can avail of the privileges and benefits due to persons who’s
under the witness protection program.
Problem: The prosecution has already presented six witnesses, thereafter formally
offered prosecution’s exhibits. The exhibits were admitted by the court. If you’re the
counsel of the accused, if you feel that the evidence presented by the prosecution is
insufficient to sustain conviction. What will you do? At the end of the day, you will
notice that the six witnesses were not able to identify the accused because they were
not eyewitnesses. So you feel that there’s insufficiency of prosecution’s evidence to
sustain conviction of the accused. Under this circumstance what can be done?
A. As the counsel of the accused, I can file for a motion for leave to file demurrer to
evidence.
File a motion for leave to file demurrer to evidence. How many days would you file the
motion? File the motion of non-extendable period of 5 days from the time prosecution
rest his case.
You start counting the five day period to file a motion for leave to file demurrer to
evidence on the ground of insufficiency of the evidences presented by the prosecution
non-extendable. The prosecution has also five days to submit his comments.
So, instead of filing a motion first, what the counsel of the accused did is immediately
file the demurrer to evidence. The court denied the demurrer. What is the
disadvantage? The defense can no longer present their evidence.
If you filed the motion first, but the court denied your motion, you can still present
your evidence. But if you immediately resorted to filing the demurrer first, and
unfortunately the demurrer was denied by the court, defense loses his right to present
his evidences.
Under the new rules now, motion can be done orally after the prosecution rest. And
now the formal offer of exhibits is already oral. After you presented your last witness
you should now be ready to formally offer your exhibits. After the prosecution rest,
you can now orally manifest to the court that you are filing a motion for leave to file
demurrer to evidence on the following grounds. Then the court resolves the motion
immediately.
Q. Can a case be reopened even if the court has already rendered judgement of
conviction?
A. Yes. Reopening of case can be done even after the court has rendered judgement
but before finality of the decision.
You can reopen the case even if there’s already judgement rendered by the court as
long as that judgement is not yet final and executory.
Q. What is the ground that one must allege?
A. Case can be reopened to avoid miscarriage of justice.
Reopening of the case can be done by the court motu propio.
Q. Can the prosecution as well as the defense file this motion of reopening the
case?
A. Yes, both the prosecution and the defense can file this motion. This is the only
motion that is file to both side.

JS: If I grant your motion what will happen? Sa totoo lang if I grant a motion for leave In other motions like motion to new trial, motion for reconsideration, it is only the
defense granted that right. In reopening of a case, the law did not limit to the defense

DVOREF COLLEGE OF LAW

to file demurrer to evidence, 100% acquittal yan. Why would we waste our time. I
never never grant a motion for leave if I will not acquit the accused? only, even the prosecution is allowed likewise to file a motion to reopen the case in
order to avoid miscarriage of justice.
What will you do? Your motion is granted. You file now the demurrer to evidence
itself. How many days? 10 days from the receipt of the order granting the motion.
Tapos prosecution has also 10 days.

Q. Can there be a shortcut? Can you file a demurrer to evidence immediately into
the filing a motion first?

A. Yes.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 47