RULE 110 PROSECUTION OF OFFENSES How are criminal actions instituted?

Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required, 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 MTC or the complaint with the office of the prosecutor.

What is the effect of the institution of the criminal action on the period of prescription of the offense? The institution of the criminal action shall interrupt the running of the period of prescription of the offense unless otherwise provided in special laws. The rule does not apply to violations of municipal ordinances and special laws. The prescriptive periods for violations of special laws are interrupted only by the institution of judicial proceedings for their investigation and punishment, while violations of municipal ordinances prescribe after two months. Distinguish institution from commencement of an action. For offenses which require a preliminary investigation, the criminal action is instituted by filing the complaint for preliminary investigation. The criminal action is commenced when the complaint or information is filed in court. Can the offended party go directly to court to file a criminal action? No. Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman. TheLupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman. The complaint may also be filed if the settlement is repudiated by the parties Are there exceptions when the parties may go directly to court? 1. Where the accused is under detention 2. Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings 3. Where actions are coupled with provisional remedies 4. Where the action may be barred by the statute of limitations

When are amicable settlements not allowed? 1. Where one party is the government 2. Where one party is a public officer or employee and the dispute relates to the performance of his official functions 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000 4. W h e r e t h e r e i s n o p r i v a t e o f f e n d e d p a r t y 5. Where the dispute involves real properties located in different cities or municipalities 6. Disputes involving parties who reside in different barangays, cities, or municipalities 7. Other cases which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice.

What is the form required for 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. Why should a complaint or information be in the name of the People of the Philippines? Criminal actions must be commenced in the name of the People because just as a crime is an outrage against the peace and security of the people at large, so must its vindication be in the name of the People. However, it the action is instituted in the name of the offended party or of a particular city, the defect is merely of form and may be cured at any state of the trial. Why should the complaint or information be in writing? The complaint or information should be in writing so that the court has a basis for its decision, to inform the accused of the nature and cause of the accusation to allow him to present his defense, and so that nobody will forget the charge, given the fallibility of human memory. What is a complaint? 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.

Who may file a complaint? The complaint may be filed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. Who is the offended party? The offended party is the person actually injured or whose feeling is offended. He is the one to whom the offender is also civilly liable under Article 100 of the RPC. If the offended party dies before he is able to file a complaint, can his heirs file it in his behalf? No. The right to file a criminal action is personal and abates upon the death of the offended party. It is not transmissible to the heirs. Can you file a criminal complaint against a juridical person? No, a criminal action cannot lie against a juridical person. It the corporation violates the law, the officer, through whom the corporation acts, answers criminally for his acts. May criminal prosecutions be enjoined? No. Public interest requires that criminal acts must be immediately investigated and prosecuted for the protection of society. What are the exceptions to the rule that criminal prosecutions may not be enjoined? 1. To afford adequate protection to constitutional rights of the accused 2. 2.When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions 3. Where 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. W h e n d o u b l e j e o p a r d y i s c l e a r l y a p p a r e n t 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. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

If the complaint is not sworn to by the offended party, is it void? No. A complaint presented by a private person when not sworn to by him is not necessarily void. The want of an oath is a mere defect of form which does not affect the substantial rights of the defendant on the merits. When is a complaint required? A sworn written complaint is required if the offense is one which cannot be prosecuted de officio, o r i s private in nature (adultery, concubinage, abduction, seduction, acts of lasciviousness, defamation consisting in the imputation of any of the above offenses), or where it pertains to those cases which need to be endorsed by specific public authorities (Anti-Dummy Board with respect to the Anti-Dummy Law, National Water and Air Pollution Control Commission with respect to the Anti-Pollution Law). What is an information? An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. What is the difference between a complaint and an information Complaint 1. May be signed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. 2. Sworn to by the person signing it. 3. May be filed with the office of the prosecutor or with the court. Information 1. Always signed by the prosecuting officer. 2. Need not be under oath since the prosecuting officer filing it is already under his oath of office. 3. Always filed with court.

Who must prosecute criminal actions? The general rule is that all criminal actions commenced by the filing of a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in the Municipal Trial Courts and Municipal Circuit Trial Courts, if the prosecutor is not available, the offended party, any peace officer, or other officer charged with the enforcement of the law violated may prosecute. This authority ceases upon actual intervention by a prosecutor or upon elevation of the case to the RTC.

Can a prosecutor be compelled to file a particular complaint or information? No. A prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. The exercise of such judgment and discretion may generally not be compelled by mandamus, except if the prosecutor shows evident bias in filing the information and refuses to include a co-accused without justification. But before filing for mandamus to compel a fiscal to include another co-accused in the information, the party must first avail himself of other remedies such as the filing of a motion for inclusion. To whom should you appeal the decision of the prosecutor? The decision of the prosecutor may be modified by the Secretary of Justice or in special cases by the President of the Philippines. Is the prosecutor required to be physically present in the trial of a criminal case? According to People v. Beriales (1976 case), he should be present. If he is not physically present, it cannot be said that the prosecution was under his direction and control. But in People v. Malinao and Bravo v. CA, it was held that the proceedings are valid even without the physical presence of the Fiscal who left the prosecution to the private prosecutor under his supervision and control. After the case is filed in court, to whom should a motion to dismiss be addressed? Once the information is filed in court, the court acquires jurisdiction. Whatever disposition the prosecutor may feel should be proper in the case thereafter should be addressed for the consideration of the court, subject only to the limitation that the court should not impair the substantial rights of the accused or the right of the people to due process. Where should a motion for reinvestigation be filed? After a complaint or information has already been filed in court, a motion for reinvestigation should be addressed to the trial judge and to him alone.

If, after he has filed the case, the prosecutor thinks that a prima facie case exists, can he refuse to prosecute? No, he cannot refuse to prosecute. He is obliged by law to proceed and prosecute the criminal action. He cannot impose his opinion on the court. What is the distinction between the control by the prosecution and the control by the court? Before a case is filed in court, the prosecution has control over the following: 1. What case to file 2. Whom to prosecute

3. The manner of prosecution 4. The right to withdraw the case before arraignment even without notice and hearing. After a case is filed in court, the court has control over the following: 1. The suspension of arraignment 2. Reinvestigation 3. Prosecution by the prosecutor 4 . D i s m i s s a l 5. Downgrading of the offense or dropping of the accused even before plea What are the limitations on the control by the Court?(SINNATRa) 1. Prosecution is entitled to Notice of hearing 2. The Court must Await the result of a petition for review 3. The prosecutions stand to maintain prosecution should be Respected by the court 4. The ultimate Test of the courts independence is where the prosecutor files a motion to dismiss or withdraw the information 5. The Court has authority to review the Secretarys recommendation and reject if it there is grave abuse of discretion. 6. To reject or grant a motion to dismiss, the court must make its own Independent assessment of the evidence. 7. Judgment is void if there is No independent assessment and finding of grave abuse of discretion. What are the crimes that must be prosecuted upon complaint of the offended party? 1. Adultery and concubinage 2. Seduction, abduction, acts of lasciviousness 3. Defamation which consists in the imputation of an offense mentioned above What is a private crime? Private offenses are those which cannot be prosecuted except upon complaint filed by the aggrieved party. Strictly speaking, there is no such thing as a private offense since all offenses are an outrage against the State. They are denominated as private offenses only to give deference to the offended party who may prefer not to file the case instead of going through the scandal of a public trial. After a complaint for a private crime has been filed in court, what is the effect of pardon by the offended party? The pardon by the offended party will not have any effect on the prosecution of the offense. Once a complaint has been filed in court, jurisdiction over the offense will be acquired and will continue to be exercised by the court until termination of the case.

What is the meaning of the statement that compliance with the rule is jurisdictional? This means that the complaint filed by the offended party is what starts the prosecution, without which the courts cannot exercise their jurisdiction. Compliance with the rule does not confer jurisdiction because it is the law which confers jurisdiction upon the courts. Can the father file a complaint on behalf of his daughter for concubinage? No. The rule allowing the parents, grandparents, and guardians to file a complaint on behalf of the minor applies only to the offenses of seduction, abduction, and acts of lasciviousness. A complaint for adultery or concubinage may be filed only by the offended spouse. If the offended party in abduction, seduction, and acts of lasciviousness is of age, can her parents file the complaint for her? No. If the offended party is already of age, she has the exclusive right to file the complaint unless she becomes incapacitated. The parents, grandparents, and guardian only have exclusive, successive authority to file the case if the offended party is still a minor. If the offended party dies during the pendency of the case, is the criminal liability of the accused extinguished? No

X filed a sworn complaint for acts of lasciviousness before the prosecutor. Before the prosecutor could file the casein court, X died. Can the prosecutor still file the information in court? Yes. The desire of X to file the case is evident by her filing of her sworn complaint with the prosecutor. An information for robbery with rape was filed against X. X moved to dismiss the information on the ground that there was no complaint filed by the offended party. Should the case be dismissed? No. In robbery with rape, the complaint of the offended party is not necessary since the offense of robbery is not a private offense. The prosecution can be commenced without the complaint of the offended party. When is a complaint or information deemed sufficient? A complaint or information is sufficient if it states: 1. the 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. the place of the commission of the offense When is the error in the name of the accused not fatal to an information? Error in the name of the accused will not nullify the information if it contains sufficient description of the person of the accused. When should the error in the name or identity be raised by the accused? The error should be raised before arraignment, or else it is deemed waived. X was charged with homicide. Can he be possibly be convicted of murder? Yes. If the recitals in the complaint or information of the acts and omissions constituting the offense actually allege murder, X can be convicted of murder. This is because it is the recital of facts and not the designation of the offense that is controlling. X was charged with estafa, but the recital of facts actually alleges theft. Can X be convicted of theft? Yes, because it is the recital, not the designation of the offense that is controlling. X was charged with estafa, and the recital of facts allege estafa. Can X be convicted of theft? No. The two crimes have elements that are different from each other. To convict X of theft under an information that alleges estafa would violate his right to be informed of the nature and cause of the accusation against him. X was charged with rape committed through force and intimidation. Can he be convicted of rape where the woman is deprived of reason or is otherwise unconscious? No. Where the law distinguishes between two cases of violation of its provision, the complaint or information must specify under which of the two cases the defendant is being charged. In what case can an accused not be convicted of a crime different from that designated in the complaint or information even if the recitals allege the commission of the crime? If it involves: 1.a change of the theory of the trial 2.requires of the defendant a different defense 3.surprises the accused in any way

X was accused of illegal possession of firearms, but the information did not allege that X did not have any license to possess the firearm. Is the information valid? No. The absence of the license is an essential element of the offense. Therefore, it should be alleged in the complaint or information. X was charged with illegal possession of opium. X contends that the information was invalid for failure to allege that he did not have a prescription from a physician. Is X correct? No. The absence of the prescription is not an essential element of the offense and is only a matter of defense. It need not be alleged in the information. What are the offenses in which the particular place where the offense was committed is essential?

1.Violation of domicile 2.Penalty on the keeper, watchman, visitor of opium den 3.Trespass to dwelling 4.Violation of election law (prohibiting the carrying of a deadly weapon within a 30-meter radius of polling places) What are the offenses in which the time of the commission of the offense is essential? 1.Infanticide 2.Violation of Sunday Statutes (Election Law) 3 . A b o r t i o n In what case is the name of the offended party dispensable? In offenses against property, the name of the offended party may be dispensed with as long as the object taken or destroyed is particularly described to property identify the offense. In what cases is the name of the offended party indispensable? Slander, robbery with violence or intimidation. What is the rule on duplicity of offenses? A complaint or information must charge only one offense, except when the law provides only one punishment for various offenses (compound and complex crimes under Art. 48 of the RPC and special complex crimes). What is the effect of the failure of the accused to object to a duplicitous information? If the accused fails to object before arraignment, the right is deemed waived, and he may be convicted of as many offenses as there are charged.

X fired his gun once, but the bullet killed two persons. He was charged with two counts of homicide in one information. Can he be convicted under that information? Yes. It falls under the exception to the rule. This is a compound crime in which one act results in two or more grave or less grave felonies. The law provides only one penalty for the two offenses. X was charged with both robbery and estafa in one information. Can he be convicted of both offenses? It depends. If he objects to the duplicitous information before arraignment, he cannot be convicted under the information. But if he fails to object before arraignment, he can be convicted of as many offenses as there are in the information. What is the principle of absorption? In cases of rebellion, other crimes committed in the course of the crime are deemed absorbed in the crime of rebellion either as a means necessary for its commission or as an unintended effect of rebellion. They cannot be charged as separate offenses in themselves. The exception is when the common crimes are committed without any political motivation. In such a case, they will not be absorbed by rebellion. If homicide or murder is committed with the use of an unlicensed firearm, how many offenses are there? There is only one offense murder or homicide aggravated by the use of unlicensed firearm. This is by special provision of RA 8294.(Dissenting opinion of J. Sabio How can you complex when one is an RPC offense/malum in se and the other is a violation of a special law/malum prohibitum?) X was speeding on a highway when his car collided with another car. The other car was totally wrecked and the driver of the other car suffered serious physical injuries. How many informations or complaints should be filed against X? Only one information should be filed for serious physical injuries and damage to property through reckless imprudence. The information against X cannot be split into two because there was only one negligent act resulting in serious physical injuries and damage to property. Same case, but the injuries suffered by the driver were only slight physical injuries. How many informations should be filed? Two informations one for the slight physical injuries and the other for damage to property. Light felonies cannot be complexed.

When can a complaint or information be amended? BEFORE PLEA, a complaint or information can be amended in form or in substance without leave of court, except if the amendment will downgrade the offense or drop an accused from the complaint or information. In such a case, the following requisites must be observed:

1. 2. 3. 4. 5.

must be made upon motion of the prosecutor with notice to the offended party with leave of court the court must state its reason in resolving the motion copies of the resolution should be furnished all parties, especially the offended party AFTER PLEA, only formal amendments may be made only with leave of court and when it can be done without causing prejudice to the rights of the accused.

When can a complaint or information be substituted? A complaint or information may be substituted if at any time before judgment, it appears that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged or of any other offense necessarily included therein, provided that he will not be placed in double jeopardy. What are the distinctions between amendment and substitution? 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change. 2. Amendment before plea can be effected without leave of court, but substitution is always done with leave of court since it involves the dismissal of the original complaint. 3. Where the amendment is only as to form, there is no need for a new preliminary investigation or plea; in substitution, another preliminary investigation and plea is required. 4. An amended information refers to the same offense charged or to one which necessarily includes or is necessarily included in the original charge, hence substantial amendments after plea cannot be made over the objection of the accused. Substitution requires that the new information is for a different offense which does not include or is not necessarily included in the original charge.

When are the rights of the accused prejudiced by an amendment? 1. When a defense which he had under the original information would no longer be available

2. When any evidence which he had under the original i nformation would no longer be available 3. When any evidence which he had under the original information would not longer be applicable to the amended information 4. What are substantial amendments? After plea, substantial amendments are prohibited. These are amendments involving the recital of facts constituting the offense and determinative of the jurisdiction of the court. All other matters are merely of form. Is an additional allegation of habitual delinquency and recidivism a substantial amendment? No. These allegations only relate to the range of the imposable penalty but not the nature of the offense. Is an additional allegation of conspiracy a substantial amendment? Yes because it changes the theory of the defense. It makes the accused liable not only for his own acts but also for those of his co-conspirators. (Old J. Sabio answer) The new answer is: No, it is not a substantial amendment in the following example: X is charged with murder as principal. Later, the complaint is amended to include two other persons who allegedly conspired with X. Can X invoke double jeopardy on the ground that the amendment is substantial? No. The amendment is merely a formal amendment because it does not prejudice the rights of X, who was charged as a principal to begin with. Is a change in the items stolen by the accused a substantial amendment? Yes because it affects the essence of the imputed crime and would deprive the accused of the opportunity to meet all the allegations in preparation of his defense. Is a change in the nature of the offense due to supervening event a substantial amendment? No, it is merely a formal amendment. Can the court order the dismissal of the original complaint before a new one is filed in substitution? No. The court will not order the dismissal until the new information is filed. Where should a criminal action be instituted? a. In the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred(Exception: Sandiganbayan cases)

b. If committed in a train, aircraft, or other public or private vehicle: in the court of any municipality or territory where the vehicle c. passed during its trip, including the place of departure or arrival d. If committed on board a vessel in the course of its voyage: in the court of the first port of entry or of any municipality or territory where the vessel passed during the voyage, subject to the generally accepted principles of international law e. Crimes committed outside the Phil but punishable under Article 2 of the RPC: any court where the action is first filed. What is a continuing or transitory offense? Transitory offenses are crimes where some acts material and essential to the crimes and requisite to their commission occur in one municipality or territory and some in another. Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing. Examples are estafa, abduction, malversation, libel, kidnapping, violation of BP22. How do you determine jurisdiction over a continuing crime? The courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. What are the rules on venue in libel cases? a. The criminal action for libel may be filed in the RTC of the province or the city where the libelous article is printed and first published. b. If the offended party is a private individual, the criminal action may also be filed in the RTC of the province where he actually resided at the time of the commission of the offense. c. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the criminal action may be filed in the RTC of Manila. d. If the offended party is a public officer whose office is outside Manila, the action may be filed in the RTC of the province or city where he held office at the time of the commission of the offense. Can the offended party intervene in the prosecution of the criminal action? Yes, except if he has waived, has reserved his right, or has already instituted the criminal action. The reason for this rule is because of Article 100 of the RPC which provides that every person criminally liable shall also be civilly liable and also because there are certain offenses which cannot be prosecuted except upon complaint of the offended party.

Do the offended parties have the right to move for the dismissal of a case? No. The right belongs only to the government prosecutor who is the representative of the plaintiff. Can the offended party file a civil action for certiorari in his own name if the RTC dismisses an information? Yes. In case of grave abuse of discretion amounting to lack of jurisdiction, the petition may be filed by the offended party because the offended party has an interest in the civil aspect of the case.

RULE 111 PROSECUTION OF CIVIL ACTION What is the general rule? The general rule is when a criminal action is instituted, the civil action for the recovery of the civil liability arising from the offense charged under Article 100 of the RPC shall be deemed instituted with the criminal action. What are the exceptions? The civil action is not deemed instituted in the following cases: 1. When the offended party has waived the civil action 2. When the offended party has reserved the right to institute it separately 3. When the offended party has instituted the civil action prior to the institution of the criminal action What is the civil action that is deemed instituted with the criminal action? Only the civil action for the recovery of civil liability arising from the offense under Article 100 of the RPC, not the independent civil actions under Article 32, 33, 34 and 2176 of the Civil Code. What is the dual concept of civil liability? This means that civil liability may arise from crimes or from quasi-delicts. Thus, a negligent act causing damage may produce two kinds of civil liability one arising from crime and another from quasi-delict. The only limitation is that the offended party may not recover twice from the same act. What are the differences between a crime and a quasi-delict?

1. Crimes affect public interest, while quasi -delicts are only of private concern

2. The RPC punishes or corrects the criminal act, while the Civil Code merely repairs the damage by means of indemnification 3. crimes are punished only if there is a law providing for their punishment, while quasi-delicts include all acts where fault or negligence intervenes. Therefore, quasi-delict is broader in scope. What constitutes civil liability? According to Article 104 of the RPC, it constitutes restitution, reparation, and indemnification for consequential damages. What is the basis for the broader concept of civil liability? The broader concept of civil liability means that every person criminally liable is also civilly liable. This is because in a criminal offense, there are two offended parties the state and the private offended party. If the complaint does not contain an allegation of damages, is the offender still liable for them? Yes because every person criminally liable is also civilly liable. This is subject to the exception when the offended party has waivedor has reserved the right to institute the civil action separately. When should the reservation be made? The reservation should be made before the prosecution presents its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. What is the reason for the rule requiring reservation? The reason is to prevent double recovery from the same act or omission. Can the accused file a counterclaim in the criminal case? No. In a BP 22 case, can the offended party make a reservation of the civil action? No. The criminal action shall be deemed to include the civil action, and the offended party is not allowed to make the reservation. The actual damages and the filing fees shall be equivalent to the value of the check.

When is the separate civil action 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 civil action was instituted, the civil action 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. Nonetheless, the civil action may be consolidated with the criminal action at any time before judgment on the merits upon motion of the offended party with the court trying the criminal action. The evidence presented at the civil action shall be deemed reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witness presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal actions shall be tried and decided jointly. Exception: When there is a prejudicial question in a previously filed civil action, it should be resolved first. Are the independent civil actions also deemed suspended with the filing of the criminal action? No. Only the civil action arising from the crime under Article 100 is suspended. The independent civil actions are not suspended and may continue even if the criminal action has been instituted. However, the offended party may not recover twice from the same act. He should only get the bigger award. What is the effect of an acquittal on the civil action? The general rule is the civil action is not necessarily extinguished by the acquittal of the accused. Even if the accused is acquitted, the court can still award civil liability in the following cases:1.When the acquittal is based on reasonable doubt2.When there is a declaration in the decision that the liability of the accused is only civil 3.When the civil liability is not derived from or based on the criminal act of which the accused is acquitted. However, if the decision contains a finding that the act from which the civil liability may arise does not exist, the civil liability is extinguished. Can you compel a judge by mandamus to award civil damages? Yes because every person criminally liable is also civilly liable and also because even if the accused is acquitted, there are cases when he is still civilly liable. What is the reason for allowing the civil liability to subsist in spite of the acquittal of the accused? This is because the parties in the criminal and civil action are different in the criminal action, the party is the state, while in the civil action, the party is the private offended party. Also, the two actions required different quantum of evidence. The criminal action requires proof of guilt beyond reasonable doubt, while the civil action requires mere preponderance of evidence.

What are the independent civil actions? The independent civil actions are those provided in Articles 32, 33, 34, and 2176 of the Civil Code. They may proceed independently of the criminal action and shall require only a preponderance of evidence. What is the effect of the death of the accused on the criminal and civil actions? If the accused dies after arraignment and during the pendency of the criminal action, both the criminal and civil liability arising from the crime shall be extinguished. However, the independent civil actions may be filed against the estate of the accused after proper substitution, and the heirs of the accused may also be substituted for the deceased. If the accused dies before arraignment, the case shall be dismissed, without prejudice to any civil action that the offended party may file against the estate of the deceased. When the defendant is absolved of civil liability in a civil action, can a criminal action still be filed against him? Yes. While every person criminally liable is also civilly liable, the converse is not true. Therefore, even if the defendant is absolved of civil liability in a civil action, a criminal action can still be filed against him. Besides, the state is a party in a criminal action, while only the private offended party is a party in the civil action. Moreover, the quantum of evidence in the civil action is only preponderance of evidence, while that required in the criminal action is proof beyond reasonable doubt. What is a prejudicial question? A prejudicial question is one based on a fact separate and distinct from the crime but is so intimately related to it that it determines the guilt or innocence of the accused. What are the elements of a prejudicial question? 1. The previously filed civil action involves an issue which is similar or is intimately related with an issue raised in the subsequent criminal action 2. The resolution of the issue will determine whether or not the criminal action may proceed. 3. When is an action for annulment of marriage prejudicial to a bigamy case? An action for annulment of marriage is prejudicial to a bigamy case only if the accused in the bigamy charge is also the one asking for annulment of the second (bigamous) marriage based on vitiation of consent. This is because in such a case, if the court declares that the partys consent was indeed vitiated and annuls the marriage, then it would also mean that the party did not willingly commit the crime of bigamy. It would thus be determinative of the guilt or innocence of the accused.

RULE 112 PRELIMINARY INVESTIGATION What is preliminary investigation? 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. When is it required? Before a complaint or information is filed, preliminary investigation is required for all offenses punishable by imprisonment of at least4 years, 2 months, and 1 day, regardless of the fine, except if the accused was arrested by virtue of a lawful arrest without warrant. In such a case, the complaint or information may be filed without a preliminary investigation unless the accused asks for a preliminary investigation and waives his rights under Article 125 of the RPC. What is the purpose of a preliminary investigation? 1. To determine if 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. 2. To protect the accused from the inconvenience, expense, and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. 3. To secure the innocent against hasty, mali cious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial. 4. To protect the state from having to conduct useless and expensive trials. 5. What is the scope of preliminary investigation? Preliminary investigation is merely inquisitorial and it is often the only means of discovering whether the offense has been committed and the persons responsible for it to enable the fiscal to prepare his complaint or information. It is not a trial on the merits and has no purpose but to determine whether there is probable cause to believe that an offense has been committed and that the accused is probably guilty of it. It does not place the accused in jeopardy. Is the right to a preliminary investigation a fundamental right? No, it is a statutory right and may be waived expressly or by silence. It is also not an element of due process, unless it is expressly granted by law. Can an accused demand the right to confront and cross-examine his witnesses during the preliminary investigation?

No. The preliminary investigation is not part of the trial. It is summary and inquisitorial in nature, and its function is not to determine the guilt of the accused but merely to determine the existence of probable cause. Is the lack of a preliminary investigation a ground for dismissing a complaint? No. The absence of a preliminary investigation does not affect the jurisdiction of the court but merely the regularity of the proceedings. The court cannot dismiss the complaint on this ground, and it should instead conduct the investigation or order the fiscal or lower court to do it. What is the effect of the absence of a certification that a preliminary investigation was conducted? It is of no consequence. What is important is that there was actually an investigation, that the accused was informed thereof and was allowed to present controverting evidence. When should the right to preliminary investigation be invoked? The accused should invoke it before plea, or else, it is deemed waived. What if the court denies the invocation of the right to a preliminary investigation, what is the remedy of the accused? He must immediately appeal it to the appellate court. He cannot later raise the issue for the first time on appeal. If the complaint or information is amended, should a new preliminary investigation be conducted? No. If the complaint or information is substituted, should a new preliminary investigation be conducted? Yes. Who may conduct a preliminary investigation? 1. 2. 3. 4. 5. Provincial or city prosecutors and their assistants Judges of the MTCs National and Regional State Presecutors Comelec with respect to election offenses Ombudsman with respect to Sandiganbayan offenses and other offenses committed by public officers6.PCGG with respect to ill-gotten wealth cases

Can RTC judges conduct a preliminary investigation? No. Although this should not be confused with the authority of the RTC to conduct an examination for the purpose of determining probable cause when issuing a warrant of arrest. What is the procedure in conducting a preliminary investigation? 1. The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainants and his witnesses as well as other documents to establish probable cause. The affidavits must be subscribed and sworn before the prosecutor or government official authorized to administer oath or notary public. 2. Within 10 days from the filing of the complaint, the investigating officer shall either: a. dismiss it if he finds no ground to continue the investigation; or b. issue a subpoena to the respondent accompanied by the complaint and affidavits. The respondent shall have the right to examine the evidence, etc, etc

3. Within 10 days from receipt of the subpoena, the respondent shall submit his counter-affidavit, the affidavits of his witnesses, and other documents in his defense. Affidavits should also be sworn and subscribed. The respondent cannot file a motion to dismiss in lieu of a counter-affidavit. 4. If the respondent cannot be subpoenaed or if he fails to file his counteraffidavit within 10 days, the investigating officer shall resolve the complaint based on the evidence submitted by the complainant. 5. If there are facts and issued which need to be clarified, the investigating officer may set a hearing. The parties can be present, but they cannot crossexamine. The hearing shall be held within 10 days from the submission of the counteraffidavits or from the expiration of the period of their submission. It shall be terminated within 5 days. 6. Within 10 days from the termination of the investigation, the investigating officer shall determine whether or not there is probable cause to hold the respondent for trial.

Is a preliminary investigation a judicial proceeding? Yes because there is an opportunity to be heard and the production and weighing of evidence upon which a decision is rendered. Since it is a judicial proceeding, the requirement of due process in judicial proceedings is also required in preliminary investigations.

What is the difference between criminal investigation and preliminary investigation? Criminal investigation is a fact-finding investigation carried out by law-enforcement officers for the purpose of determining whether they should file a complaint for preliminary investigation. Preliminary investigation is conducted for the purpose of determining if there is probable cause to hold a person for trial. What is probable cause? Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Is the presence of counsel in the preliminary investigation mandatory? No. Preliminary investigation is a summary proceeding and is merely inquisitorial in nature. The accused cannot yet invoke the full exercise of his rights.

How does the investigating prosecutor resolve the findings after preliminary investigation? 1. If he finds probable cause to hold the respondent for trial, he shall prepare the resolution and certify under oath in the information that: a. he or an authorized officer has personally examined the complainant and his witnesses; b. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c. that the accused was informed of the complaint and of the evidence against him; d. that he was given an opportunity to submit controverting evidence.

2. If he finds no probable cause, he shall recommend the dismissal of the complaint. 3. Within 5 days from his resolution, he shall forward the record of the case to the provincial or city prosecutor of chief state prosecutor of the Ombudsman. They shall act on the resolution within 10 days from receipt and shall immediately inform the parties of such action. 4. No complaint of information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman. 5. If the investigating prosecutor recommends the dismissal of the complaint, but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or Ombudsman on the ground that probable cause exists, the latter may either a.by himself, file the information;

o r b.direct another assistant prosecutor to file the information without need for a new preliminary investigation. 6. The Secretary of Justice may, upon petition by a proper party or by itself, reverse or modify the resolution of the provincial or city prosecutor, the chief state prosecutor, or the ombudsman. In such a case, he shall direct the prosecutor concerned to either file the information without need for a new preliminary investigation or to dismiss or move for its dismissal if already filed in court. 7. If there was no preliminary investigation conducted, what is the remedy of the accused? (RICA P) 1. R efuse to enter plea 2. Insist on a preliminary investigation 3. File certiorari if refused 4. Raise it as an error on appeal 5.File a petition for prohibition What should the Secretary of Justice do if an information that has already been filed in court is appealed to him?

He should, as far as practicable, refrain from entertaining the appeal. The matter should be left to the determination of the Court. If the Secretary of Justice gives due course to the appeal, what should the trial judge do? He should suspend proceedings and defer arraignment pending the resolution of the appeal. Is the determination of probable cause a judicial or executive function? It depends. If it is made in a preliminary investigation for the purpose of determining whether there is reasonable ground to believe that the accused has committed the offense and should be held for trial, it is an executive function. If it is made for the issuance of a warrant of arrest by a judge, it is a judicial function. Can the accused file a motion to quash based on insufficiency of evidence? No. He cannot pre-empt trial by filing a motion to quash on the ground of insufficiency of evidence. Whether the function of determining probable cause has been correctly discharged by the prosecutor is a matter that the trial court itself does not and may not pass upon.

Is the finding of a judge that probable cause exists for the purpose of issuing a warrant of arrest subject to judicial review? No. It would be asking the court to examine and assess such evidence as has been submitted by the parties before trial and on the basis thereof, make a conclusion as whether or not it suffices to establish the guilt of the accused. What is the remedy of the complainant if the Secretary of Justice does not allow the filing of a criminal complaint against the accused because of insufficiency of evidence? He can file a civil action for damages against the offender based on Article 35 of the Civil Code. This would require a mere preponderance of evidence. What are the remedies of a party against whom a warrant of arrest has been issued? 1 . p o s t b a i l

2. ask for reinvestigation 3.petition for review 4.motion to quash the information 5 . i f d e n i e d , a p p e a l t h e j u d g m e n t a f t e r t r i a l (no certiorari) What is the procedure in resolving a complaint when the preliminary investigation is conducted by a judge? 1. Within 10 days after the termination of the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman for appropriate action. 2. The resolution shall state the findings of fact and law supporting his action together with the record of the case which shall include: a. the warrant if the arrest is by virtue of a warrant b. the affidavits, counter-affidavits, and supporting evidence c. t h e u n d e r t a k i n g o r b a i l a n d t h e o r d e r o f r e l e a s e d. t h e t r a n s c r i p t s o f t h e p r o c e e d i n g s e. the order of cancellation of the bail bond if the resolution is for the dismissal of the complaint 3. W i t h i n 3 0 d a ys f r o m t h e r e c e i p t o f t h e r e c o r d s , t h e p r o v i n c i a l o r c i t y p r o s e c u t o r o r t h e O m b u d s m a n s h a l l r e v i e w t h e resolution of the judge. 4. They shall act on the resolution, expressly and clearly stating the facts and the law on which it is based. 5. The parties shall be furnished with copies thereof. 6. They shall order the release of an accused who is detained if no probable cause is found against him.

What happens if the judge fails to resolve the case within 10 days from the termination of the investigation? This constitutes dereliction of duty and is a ground for dismissal of the judge. What is the difference between preliminary investigation conducted by the prosecutor and one conducted by the judge? The prosecutor is not bound by the designation of the offense in the complaint. After preliminary investigation, he may file any case as warranted by the facts. The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed.

If the investigating judge did not issue a warrant for the arrest of the a c c u s e d d u r i n g t h e p r e l i m i n a r y investigation, what is the remedy of the prosecutor if he believes that the accused should be immediately placed under custody? He should file the information in court, so that the RTC may issue the warrant of arrest. He should not file for mandamus because that could take two years to resolve. What is a warrant of arrest? A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon grounds stated therein. When may a warrant of arrest be issued? By the RTC 1. Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. 2. He may immediately dismiss the case if the evidence fails to establish probable cause. 3.If he finds probable cause, he shall issue a warrant of arrest o r a c o m m i t m e n t o r d e r i f t h e a c c u s e d h a s a l r e a d y b e e n arrested by virtue of a warrant issued by the MTC judge who conducted the preliminary investigation or if he was arrested by virtue of a lawful arrest without warrant. 4.In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved within 30 days from the filing of the complaint or information. By the MTC

1. If the preliminary investigation was conducted by a prosecutor, same procedure as above 2. If the preliminary investigation was conducted by the MTC judge and his findings are affirmed by the prosecutor, and the corresponding information is filed, he shall issue a warrant of arrest. 3. However, without waiting for the conclusion of the investigation, he may issue a warrant of arrest if he finds after: a.an examination in writing and under oath of the complainant and his witnesses b.in the form of searching questions and answers that probable cause exists AND that there is a necessity of placingnthe accused under immediate custody in order not to frustrate the ends of justice. What are the kinds of offenses that may be filed with the MTC for preliminary investigation? 1. Those which are cognizable by the RTC 2. Those cognizable by the MTC where the penalty is at least 4 years, 2 months, and 1 day regardless of the fine When is a warrant of arrest not necessary? 1. When the accused is already under detention issued by the MTC 2. When the accused was arrested by virtue of a lawful arrest without warrant 3. W h e n t h e p e n a l t y i s a f i n e o n l y 4. Are John Doe warrants valid? Generally, John Doe warrants are void because they violate the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested. But if there is sufficient description to identify the person to be arrested, then the warrant is valid. What are the principles governing the finding of probable cause for the issuance of a warrant of arrest? 1. T h e r e i s a d i s t i n c t i o n b e t w e e n t h e o b j e c t i v e o f d e t e r m i n i n g p r o b a b l e c a u s e b y t h e p r o s e c u t o r a n d b y t h e j u d g e . T h e prosecutor determines it for the purpose of filing a complaint or information, while the judge determines it for the purpose of issuing a warrant of arrest whether there is a necessity of placing him under immediate custody in order not to frustrate the ends of justice. 2. Since their objectives are different, the judge should not rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. The judge must decide independently and must have supporting evidence other than the prosecutors bare report.

3. It is not required that the complete or entire records of the case d uring the preliminary investigation be submitted to and examined by the judge. He must have sufficient supporting documents upon which to make his independent judgment. How should the complaint or information be filed when the accused is lawfully arrested without warrant? The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. What is the remedy of the person arrested without warrant if he wants a preliminary investigation? Before the complaint or information is filed, he may ask for one provided that he signs a waiver of his rights under Article 125 of the RPC in the presence of counsel. He may still apply for bail in spite of the waiver. The investigation must be terminated within 15days.After the complaint of information is filed but before arraignment, the accused may, within 5 days from the time he learns of his filing, ask for a preliminary investigation. What is an inquest? An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court. What are the guidelines to safeguard the rights of an accused who has been arrested without a warrant? 1. The arresting officer must bring the arrestee before the inquest fiscal to determine whether the person should remain in custody and charged in court or if he should be released for lack of evidence or for further investigation. 2. T h e c u s t o d i a l i n v e s t i g a t i o n r e p o r t s h a l l b e r e d u c e d t o w r i t i n g , a n d i t s h o u l d b e r e a d a n d a d e q u a t e l y e x p l a i n e d t o t h e arrestee by his counsel in the language or dialect known to him. What is the procedure in cases not requiring a preliminary investigation? 1. If filed with the prosecutor, the prosecutor shall act on the complaint b a s e d o n t h e a f f i d a v i t s a n d o t h e r s u p p o r t i n g documents submitted by the complainant within 10 days from its filing. 2. If filed with the MTC: a. If within 10 days from the filing of the complaint or information, the judge finds no probable cause after personally examining the evidence in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the complaint or information.

b. He may require the submission or additional evidence, within 10 days from notice. If he still finds no probable cause, he shall dismiss the case. c. If he finds probable cause, he shall issue a warrant of arrest or a commitment order and hold him for trial. If he thinks that there is no necessity for placing the accused under custody, he may issue summons instead. RULE 113 ARREST What is arrest? Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. How is an arrest made? Arrest is made by an actual restraint of the person to be arrested or by his submission to the custody of the person making the arrest. What does it mean when jurisprudence says that the officer, in making the arrest, must stand his ground? It means that the officer may use such force as is reasonably necessary to effect the arrest. What is the duty of the arresting officer who arrests a person? He must deliver the person immediately to the nearest jail or police station. Within what period must a warrant of arrest be served? There is no time period. A warrant of arrest is valid until the arrest is effected or until it is lifted. The head of the office to whom the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned for execution must make a report to the judge who issued it within 10 days from the expiration of the period. If he fails to execute it, he should state the reasons therefor. When is an arrest without warrant lawful? A peace officer or private person may arrest without warrant: 1. When in his presence, the person to be arrested has committed, is actually committing, or is about to commit an offense; 2. W h e n a n o f f e n s e h a s j u s t b e e n c o m m i t t e d , a n d h e h a s p r o b a b l e c a u s e b a s e d o n p e r s o n a l k n o w l e d g e o f f a c t s a n d circumstances that the person to be arrested has committed it; and 3. 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

A police officer was chasing a person who had just committed an offense. The person went inside a house, so the police officer followed. Inside the house, the police officer saw drugs lying around. Can he confiscate the drugs? Can he use them as evidence? Yes. The plain view doctrine is applicable in this case because there was a prior valid intrusion, the police officer inadvertently discovered the evidence, he had a right to be there, and the evidence was immediately apparent. What if the officer merely peeks through the window of the house and sees the drugs can he confiscate them? Can he use them as evidence? He can confiscate them, without prejudice to his liability for violation of domicile. He cannot use them as evidence because the seizure cannot be justified under the plain view doctrine, there being no previous valid intrusion. When should an arrest be made? It can be made on any day and at any time of the day and night. Can an officer arrest a person against whom a warrant has been issued even if he does not have the warrant with him? Yes, but after the arrest, if the person arrested requires, it must be shown to him as soon as practicable. RULE 14 BAIL What is bail? 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. What are the forms of bail? Bail may be in the form of: 1. c o r p o r a t e s u r e t y 2. p r o p e r t y b o n d 3. c a s h d e p o s i t 4. r e c o g n i z a n c e What is recognizance? Recognizance is an obligation of record, entered into before a court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. When is bail a matter of right and when is it a matter of discretion? In the MTC, it is a matter of right before or after conviction, regardless of the offense. In the RTC, it is a matter of right before conviction, except for offenses punishable by death, reclusion

perpetua, or life sentence and the evidence of guilt is strong, in which case it is discretionary. After conviction, bail is a matter of discretion regardless of the offense. The application for bail may be filed and acted upon by the trial court as long as the original record of the case has not been transmitted to the appellate court. However, if the decision of the trial court changed the nature of the offense from non-bailable to bailable, the application should be addressed and resolved by the appellate court. When can the prosecution move for the cancellation or denial of bail of the accused? If the penalty imposed by the trial court is imprisonment greater than 6 years, the prosecution may move for denial or cancellation of the bail of the accused, with notice to the accused, upon showing of the following circumstances:1.That he is a recidivist, quasi-recidivist, habitual delinquent, or committed the offense with the aggravating circumstance of reiteracion.2.The he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification.3.That he committed the offense while on probation, parole or conditional pardon4.That the circumstances of his case indicate the probability of flight if released on bail; or 5.That there is undue risk that he may commit another crime during the pendency of the appeal.

When is a bail hearing necessary? Bail hearing is mandatory when bail is a matter of discretion. It is incumbent upon the prosecution to show that the evidence of guilt is strong. Even if the prosecution is absent or refuses to present evidence, the court cannot grant bail without conducting a hearing. The court must first be convinced that the evidence does not warrant the denial of bail.

What is required of the judge who denies an application for bail? The order should contain a summary of the evidence presented and the reason for the denial, otherwise it shall be void. This is in order to safeguard the constitutional right to presumption of innocence and also because there is a need for clear grounds before a person can be denied of his liberty. If there is a likelihood that the accused would jump bail, what should the court do? 1. I n c r e a s e t h e a m o u n t o f b a i l 2. Require periodic reports of the accused to court 3. Warn him that the trial may proceed in absentia 4. What is a capital offense? A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

What are the duties of the trial judge in case an application for bail is filed? 1. Notify the prosecutor of the hearing or require him to submit his recommendation 2. C o n d u c t a h e a r i n g 3. Decide whether the evidence of guilt is strong based on the summary of evidence of the prosecution 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. If evidence of guilt I sstrong, the petition should be denied.

What are the guidelines in setting the amount of bail? 1. F i n a n c i a l a b i l i t y o f t h e a c c u s e d 2. N a t u r e a n d c i r c u m s t a n c e s o f t h e o f f e n s e 3. P e n a l t y f o r t h e o f f e n s e 4. C h a r a c t e r a n d r e p u t a t i o n o f t h e a c c u s e d 5. A g e a n d h e a l t h o f t h e a c c u s e d 6. W e i g h t o f e v i d e n c e a g a i n s t t h e a c c u s e d 7. Probability of the accused appearing at the trial 8. F o r f e i t u r e o f o t h e r b a i l 9. The fact that he was a fugitive from the law when arrested 10. Pendency of other cases where the accused is on bail

Where should bail be filed? It may be filed with the court where the case is pending. In the absence of the judge thereof, bail may be filed with any RTC or MTC judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with and RTC of said place, or if no judge is available, with any MTC judge therein. But where bail is a matter of discretion or where the accused seeks to be released on recognizance, bail may only be filed in the court where the case is pending. Any person in custody who is not yet charged may apply for bail with any court in the province, city or municipality where he is held. What is the remedy of the accused if he is denied bail? He should file a special civil action in the CA, not the SC within 60 days. Does an application for bail bar the accused from questioning the validity or his arrest, the validity of the warrant, or the manner of conducting the preliminary investigation? No, provided that he raises these questions before plea.

RULE 115 RIGHTS OF THE ACCUSED What are the rights of the accused in criminal prosecutions? 1. To be presumed innocent until the contrary is proved beyond reasonable doubt; 2. To be informed of the nature and cause of the accusation against him; 3. To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment; 4. To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination; 5. To be exempt from being compelled to be a witness against himself; 6. To confront and cross-examine the witnesses against him at the trial; 7. To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf; 8. To have a speedy, impartial, and public trial; 9. To appeal in all cases allowed and in the manner prescribed by law.

Due ProcessWhat are the two aspects of the right to due process? 1. Substantive due process this refers to the intrinsic validity of the law 2. Procedural due process one that hears before it condemns, proceeds upon inquiry, and renders judgment only after trial and based on the evidence presented therein. Is it necessary to have trial-type proceedings in order to satisfy the requirement of due process? No. There is no need for trial-type proceedings in order to satisfy due process. What is important is that there was an opportunity to be heard. Notice and hearing are the minimum requirements of due process. In general, what are the requirements of procedural due process? 1. There must be an impartial and competent court with judicial power to hear and determine the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceeding; 3. The defendant must be given an opportunity to be heard; 4. Judgment must be rendered upon lawful hearing. 5. In criminal cases, what are the requirements of procedural due process? The requirements in criminal cases are more stringent. They are: 1. The accused must have been heard by a court of competent jurisdiction; 2. He must have been proceeded against under orderly processes of the law;

3. He may be punished only after inquiry and investigation; 4. T h e r e m u s t b e n o t i c e t o t h e a c c u s e d ; 5. The accused must be given an opportunity to be heard; 6. Judgment must be rendered within the authority of a constitutional law. 7. Presumption of Innocence What is the meaning of the right of presumption of innocence? The right means that the presumption must be overcome by evidence of guilt beyond reasonable doubt. Guilt beyond reasonable doubt means that there is moral certainty as to the guilt of the accused. Conviction should be based on the strength of the prosecution and not on the weakness of the defense. The significance of this is that accusation is not synonymous with guilt. What are the exceptions to the constitutional presumption of innocence? 1. Presumptions If there is a reasonable connection between the fact presumed and the fact ultimately proven from such fact Examples: a. W h e n a n a c c o u n t a b l e p u b l i c o f f i c e r f a i l s t o a c c o u n t f o r f u n d s o r p r o p e r t y t h a t s h o u l d b e i n h i s c u s t o d y, h e i s presumed to be guilty of malversation; b. Persons in possession of recently stolen goods are presumed guilty of the offense in connection with the goods. 2. Self-Defense One who invokes self-defense is presumed guilty. The burden of proving the elements of self-defense(unlawful aggression, reasonable necessity of the means used to prevent or repel it; lack of sufficient provocation on the part of the one defending himself) belongs to the accused. What is a reverse trial? Usually, the prosecution presents its evidence to establish the guilt of the accused first. But a reverse trial happens if the accused admits the killing but claims self-defense. He must first establish the elements of self-defense in order to overturn the presumption that he was guilty of the offense. Right to be present at the trial What are the requisites of a valid trial in absentia? 1. T h e a c c u s e d h a s a l r e a d y b e e n a r r a i g n e d ; 2. H e h a s b e e n d u l y n o t i f i e d o f t h e t r i a l 3. His failure to appear at the trial is unjustifiable. 4. Can the right to be present at the trial be waived? Yes, except in the following situations, where the presence of the accused at the trial is required: 1. A r r a i g n m e n t ;

2. During promulgation of judgment, except if it is for a light offense; 3. When the presence of the accused at the trial is necessary for purposes of identification, unless he admits beforehand that he is the same person charged. Right to Counsel Is there a difference between the right to counsel during custodial investigation and the right to counsel during the trial? Yes. In custodial investigation, the right to counsel can only be waived in writing AND with the assistance of counsel. The counsel required in custodial investigation is competent and independent counsel, preferably of his own (the suspects) choice. During the trial, the right to counsel means the right to effective counsel. The requirement is stricter during custodial investigation because a trial is done in public, while custodial investigation is not. The danger that confessions will be extracted against the will of the defendant during custodial investigation does not really exist during trial. During trial the purpose of counsel is not so much to protect him from being forced to confess but to defend the accused. Why is the right to counsel afforded during trial? The right to counsel is embraced in the right to be heard. When should the right to counsel be invoked? The right to counsel may be invoked at any stage of the proceedings, even on appeal. However, it can also be waived. The accused is deemed to have waived his right to counsel when he voluntarily submits himself to the jurisdiction of the Court and proceeds with his defense. But in US v. Escalante and People v. Nang Kay (p. 532 of Herrera Textbook), the Court held that the defendant cannot raise the question of his right to have an attorney for the first time on appeal. If the question is not raised in the trial court, the prosecution may go to trial. The question will not be considered in the appellate court for the first time when the accused fails to raise it in thelower court. Is the duty of the court to appoint counsel-de-oficio mandatory at all times? No. The duty to appoint counsel-do-oficio is mandatory only up to arraignment. Does the mistake of counsel bind the client? As a rule, the mistake of counsel binds the client. Therefore, the client cannot question a decision on the ground that counsel was an idiot. However, an exception to this is if counsel misrepresents himself as a lawyer, and he turns out to be a fake lawyer. In this case, the accused is entitled to a new trial because his right to be represented by a member of the bar was violated. He was thusdenied of his right to counsel and to due process.

Is the right to counsel absolute? No. The right of choice must be reasonably exercised. The accused cannot insist on counsel that he cannot afford, one who is not a member of the bar, or one who declines for a valid reason, such as conflict of interest. Also, the right of the accused to choose counsel is subject to the right of the state to due process and to speedy and adequate justice. When can the accused defend himself in person? The accused can defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel. Right to be a Witness on His Own Behalf What is the weight of the testimony of an accused who testifies on his own behalf but refuses to be cross-examined? The testimony will not be given weight. It will not have probative value because the prosecution was not given a chance to test the credibility of the testimony through cross-examination. Right Against Self-Incrimination What is the scope of the right against self-incrimination? The right against self-incrimination covers testimonial compulsion only and the compulsion to produce incriminating documents, papers, and chattels. It does not cover the compulsion to produce real or physical evidence using the body of the accused

Is there an exception to the right against self-incrimination? The right cannot be invoked when th e State has the right to inspect documents under its police power, such as documents of corporations.

What is the rationale for protecting the right against self-incrimination? There are two reasons: 1. For humanitarian reasons: To prevent the State, with all its coercive powers, from extracting testimony that may convict the accused. 2. For practical reasons: The accused is likely to commit perjury if he were compelled to testify against himself. Who may invoke the right against self-incrimination, and when can they invoke the right? 1.An ordinary witness may invoke the right, but he may only do so as each incriminating question is asked.2.The accused himself may invoke the right, and unlike the ordinary

witness, he may altogether refuse to take the witness stand and refuse to answer any and all questions .But, once the accused waives his right and chooses to testify in his own behalf, he may be cross-examined on matters covered in his direct examination. He cannot refuse to answer questions during cross-examination by claiming that the answer that he will give could incriminate him for the crime with which he was charged. However, if the question during cross-examination relates to a crime different from that with which he was charged, he canstill invoke the right and refuse to answer. Can the accused or witness invoke the right against self-incrimination if he is asked about past criminality? It depends. If he can still be prosecuted for it, questions about past criminal liability are still covered by the protection of the right against self-incrimination. But if he cannot be prosecuted for it anymore, he cannot invoke the right. What are the rights of the accused in the matter of testifying or producing evidence? 1. Before the case is filed in Court but after he has been taken into custody or otherwise deprived of his liberty a. the right to be informed of b. his right to remain silent and to counsel c. the right not to be subjected to force, violence, threat, intimidation, or any other means which vitiate free will d. the right to have evidence obtained in violation of these rights rejected 2. A f t e r t h e c a s e i s f i l e d i n c o u r t a. to refuse to be a witness b. not to have any prejudice whatsoever result to him by such refusal c. to testify in his own behalf subject to cross-examination by the prosecution d.while testifying, to refuse to answer a specific question which tends to incriminate his for some crimeother than that for which he is being prosecuted. What are immunity statutes? The immunity statutes are classified into two use immunity statutes and transactional immunity statutes. Use immunity prohibits the use of a witness compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. (Therefore, the witness can still be prosecuted, but the compelled testimony cannot be used against him.) Transactional immunity grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. (Here, the witness cannot be prosecuted at all .) Examples are state witnesses and those who furnish information about violations of the Internal Revenue Code, even if they themselves offered bribes to the public official.

What is the effect of the refusal of the accused to refuse to testify in his behalf? As a general rule, the silence of the accused should not prejudice him. However, in the following cases, an unfavorable inference is drawn from the failure of the accused to testify: 1. If the prosecution has already established a prima facie case, the accused must present proof to overturn the evidence of the prosecution. 2. If the defense of the accused is alibi and he does not testify, the inference is that the alibi is not believable. Is DNA testing covered by the right against self-incrimination?