INTRODUCTION

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INTRODUCTION

The law on criminal procedure intersects and interweaves with constitutional law because of the inherent clash between the interest of the State to preserve public order, and the interest of the individual to have his rights protected. A discussion of criminal procedure would therefore be incomplete without a discussion of the Bill of Rights.

This reviewer therefore integrates the important points of the Bill of Rights together with the details of remedial criminal procedure in order to give the reader a more holistic understanding of criminal procedure. Substantive law, particularly criminal law, is likewise discussed when necessary.

RIGHTS OF THE ACCUSED CONSTITUTIONAL BASIS

Although the rights of the accused as enumerated under Rule 115, Sec. 1 pertain to the trial stage of the criminal prosecution, they are discussed here at the start of this reviewer in order to set the subsequent discussion of criminal procedure within the perspective of protection of the rights of the accused.

Right to be presumed innocent

Right to be informed of the nature and cause of the accusation

Right to be heard personally or by counsel

Right to speedy, impartial and public trial

Right to confront witnesses

Right to compulsory process

Right to discovery

Is there a right of discovery for the accused in criminal cases?

See the following provisions:

Rule 119, Sec. 12-- Conditional examination of witnesses on behalf of

accused

Rule 116, Sec. 10 -- Production or inspection of material evidence in

possession of prosecution

Rule 116, Sec. 9 -- Motion for bill of particulars

Rule 112, Sec. 3(b), par. 2 -- Issuance of subpoena by prosecutor to

accused attaching to it a copy of the complaint and its supporting affidavits and documents

(Note however that this is during preliminary investigation.)

It was held in the case of People v. Webb that a denial of discovery procedures to an accused in a criminal case is tantamount to a deprivation of the accuseds right to compulsory process which is guaranteed in the Constitution.

Is there a right of discovery for the prosecution in criminal cases?

Yes. See Rule 119, Sec. 15 (examination of witnesses for the prosecution)

Why is it that the right of discovery cannot be the same for both prosecution and accused?

It might violate the accuseds right against self-incrimination.

Right against self-incrimination

Scope of the privilege

The scope of the privilege against self-incrimination covers compulsory testimonial self-incrimination, i.e. that which will entail use of mental processes and/or communicative faculties. It has since been extended to include any evidence communicative in nature, acquired under circumstances of duress. (People v. Olvis, 154 SCRA 525)

Effect of violation

When the privilege against self-incrimination is violated outside of court (e.g., by the police), then testimony is not admissible under the exclusionary rule.

When the privilege is violated by the court itself, i.e. by the judge, the court is ousted of its jurisdiction, and all its proceedings are null and void, and is as if no judgment has been rendered. (See Chavez v. CA, 34 SCRA 663)

CUSTODIAL

INVESTIGATION Constitutional basis

Custodial investigation defined

Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. (People v. Marra, 236 SCRA 565)

As provided for in Sec. 2, R.A. 7438, custodial investigation includes the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed. This shall be without prejudice to the liability of the "inviting" officer for any violation of law.

Rights of person under custodial investigation

(1) Right against arbitrary detention (Art. 125 RPC)

(2) Right against torture, inhumane treatment (Art. 3, Sec. 12 #2 Consti)

(3) Right to remain silent (Art. 3 Sec. 12 #1 Consti)

(4) Right against solitary confinement (Art. 3 Sec. 12 #2 Consti)

(5) Right to be assisted by counsel at all times (RA 857) or by a national/international NGO duly accredited by the Office of the President (EO 155) see RA 7438

(6) Right to be informed that anything he says may and will be used against him (Miranda rights)

(7) Right to privacy of correspondence and communication (Art. 3 Sec. 3 #1 Consti)

(8) Right against unreasonable searches and seizures (Art 3 Sec. 2 Consti)

(9) Right to competent and independent counsel preferably of his own choice and be provided with one if he cant afford the services of counsel (Art. 3 Sec. 12 #1 Consti)

(10) Right to waive assistance of counsel provided it be done intelligently and with assistance of counsel (ibid)

1. Is there a right to conjugal visits?

No such right in custodial investigation, but see RA 7438, Sec. 2f.

2. Must the suspect be informed that his silence will not be used against him? Must he be given a mini-lecture on Crim. Pro?

Nowhere in the consti or ROC is it provided that the suspect must be informed that his silence does not bear any adverse consequence. However, it is believed that for a suspect to be considered as truly informed of his constitutional right to silence, he must be advised that such silence will not be taken against him. This is due to the fact that in many instances, persons arrested feel that it looks worse for them if they remain absolutely silent.

3. Is the right to be informed of the above rights satisfied if they are typewritten?

No. In People vs. Galit, it was held that each right must be explained to the accused in simple words in his own dialect/language. Such is the requirement for warnings to be valid and effective.

Police line-ups

IS A POLICE LINE-UP DEEMED PART OF CUSTODIAL INVESTIGATION?

In the case of Gamboa v. Cruz (162 SCRA 642), the petitioner had not yet been held to answer for a criminal offense when he was identified by the complainant at the police line-up. The Court held that in this case, the police line-up was not part of custodial investigation and therefore the right to counsel did not attach at that time. The Court held that when the process has not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession, the accused may not yet avail of the services of his lawyer.

The Gamboa ruling was reiterated in the case of People v. Santos (236 SCRA 686; 1993), wherein the Court noted that there was nothing in the records of the case that would show that in the course of the line-up, the police investigators sought to extract any admission or confession from the accused.

In the US case of US v. Wade (908 U.S. 218; 1957) however, which involved a post-indictment line-up, it was held that the absence of counsel during the line-up was violative of the accused's rights. The Court held that the post-indictment line-up was a critical stage of the prosecution at which the accused was as much entitled to the aid of counsel as at the trial itself.

Miranda Doctrine

Rights embodied in the Miranda doctrine

a. right to remain silent

b. right to counsel

c. right to be informed of the above rights

Constitutional changes in the Miranda doctrine

d. Waiver of assistance of counsel must now be in writing and in the presence of counsel

e. Persons under investigation are not only entitled to counsel, they are entitled to competent and independent counsel

4. Harmonize the ruling in Galman v. Pamaran with People v. Ayson

In Galman v. Pamaran, the court opined that the incriminatory testimonies given in the investigation conducted by the Agrava Board were not admissible in evidence by reason of non-compliance with the Miranda warnings. This ruling was made despite its acknowledgment that said testimonies were given before an administrative body, not in a criminal case, and that the suspects werent in custody at the time they gave their testimonies. The reason given was that the protection granted under the Phil. Consti was wider in scope than in the US because the word custodial was not included in our constitution, which extends its protection to any person under investigation for the commission of an offense.

In Pp vs. Ayson, the Court held that the constitutionally mandated Miranda warnings of the accuseds right to silence and counsel are applicable only to police in-custody interrogation as the commencement of adversarial proceedings against the suspect.

To harmonize the 2 cases, Prof. Tadiar commented that although the proceedings before the Agrava Board were certainly not police investigations, they undoubtedly were an integral part of a criminal investigation looking in the double murder. As such, the Agrava proceedings could be held as the commencement of the adversarial criminal process that mandates the right to counsel. This is inapplicable to the Ayson case which involved an administrative investigation by PAL management of a ticket clerk for alleged irregularities in the sale of tickets.

5. When do the Miranda rights apply?

From the moment of arrest.

6. Are Miranda rights available in checkpoints and Stop and Frisk situations?

No. There is as yet no arrest. The fact that one consents to the search in the face of armed military men does not constitute waiver of the right against Illegal Search (the person searched may still question the legality of the search).

7. Police ran after a suspect who later hid himself in a building. The police sealed off all points of ingress and egress and later talked to the suspect by megaphone. The police used the information given against him later. Was the suspect deprived of Miranda rights? When is a person considered under detention?

Bautista said: A DOJ circular stated that when the questioning is already removed from in-field questioning, one the person is restricted in his physical movements in any significant way, then the rights arise already Theres no need to put the persons in a cell for him to be considered under detention. Going by the said definition, it is submitted that in the problem above, the suspect is effectively under detention as he is already surrounded by the police with no possible means of escape.

8. Bautista says:

Not that the scope of exclusion regarding the Privilege against Self-Incrimination and Miranda Rights is not as broad as that afforded when there is a violation of the Right against Privacy of Correspondence and Communication. In the latter, any evidence obtained in violation of said right will be inadmissible for any purpose in any proceeding.

9. Is there any presumption regarding statements given under police custody?

Yes. The presumption is that such statements were involuntarily made.

10. Is the taping of Bautistas lectures a violation of the Anti-Wiretapping law?

No, since it is with his consent and involves communication that is not the private one contemplated by law.

11. An illegal wiretap was made on the telephone of the accused and from listening to the wiretap, the police came to know of the name and address of a witness who they later got to testify against the accuse. Can such testimony be suppressed on the ground that the name and address of the witness was obtained by an illegal wiretap?

No. The fact the he voluntarily testified in court does not make it the fruit of a poisonous tree and though it may have an effect of attenuating the testimony of a witness; not however Sec. 4 of RA 4200: any communicated/spoken word, or the existence of contents, substance, purport, or meaning of the same or any part thereof, or any info therein contained and obtained/secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative/administrative investigation/hearing.

12. If the suspect is a lawyer, do the Miranda warning still have to be made?

Yes, because educational attainment is immaterial.

13. Is videotaping a film shown in the theater a violation of RA 4200?

No, thats not a private communication although said act may be a violation of the Copyright law.

Waiver of Miranda rights

What may be waived

The right to remain silent and to counsel may be waived, but never the right to be given the Miranda warnings.

Requirements for a valid waiver

(1) The waiver must be in writing.

(2) The waiver must made in the presence of counsel.

Burden of proving voluntariness of waiver

The burden of proving the voluntariness of the waiver of the Miranda warnings lies with the prosecution. (People v. Jara, 144 SCRA 516; 1986)

Exclusionary rule

What is the so-called exclusionary rule?

Any confession or admission obtained from the accused in violation of Sec. 12 (custodial investigation) or Sec. 17 (right against self-incrimination) of the Constitution shall be inadmissible in evidence against the accused.

Implications:(1) The confession / admission can be used against the co-accused.

(2) It can be used in impeachment cases.

(3) It can be used in rebuttal.

When is the exclusionary rule not applicable?

The Miranda rule, and therefore the exclusionary rule, are not applicable in the following situations:

(1) Confessions executed before Jan. 17, 1973;

(2) Res gestae statements (People v. Dy, 158 SCRA 111; 1988)

The declaration of the accused acknowledging guilt made to the police desk officer after the crime was committed may be given in evidence against him by the police officer to whom the admission was made, as part of the res gestae. (People v. Dy)

(3) Statements given in administrative investigations (People v. Ayson, 175 SCRA 216; 1989)

(4) Official forms prepared and accomplished in the normal course of audit regularly conducted by the Commission on Audit (Kimpo v. Sandiganbayan, 235 SCRA 53);

(5) X-ray examinations of the body (People v. Tranca, 235 SCRA 455)

Doctrine of fruit of the poisonous tree

Any evidence obtained pursuant to an illegal search or seizure shall be inadmissible against him. And any evidence obtained pursuant to such illegally-obtained evidence shall likewise be inadmissible.

Qualification to the rule: If the evidence could have been discovered even without the poisonous tree, then it is admissible.

Doctrine of attenuated taint

What is the doctrine of attenuated taint?

If the taint is so diffused or remote, then the evidence need no longer be excluded. For example, if the name of a witness is obtained through an illegal wiretap, but such witness voluntarily agrees to testify.

If the suspect in police custody voluntarily starts answering questions without aid of counsel, are the statements given admissible?

No, unless before doing so he had waived the right to remain silent and to counsel in writing and in the presence of counsel.

The theory in Miranda v. Arizona is that the atmosphere in police interrogation is inherently coercive, therefore, statements given under police custody are presumptively involuntary and the burden of showing voluntariness is on the prosecution.

ARREST NOTES:

The 2000 Rules changed the power of an RTC judge to issue warrants of arrest. See Rule 112, Sec. 6 of the old and new rules.

In general

Arrest defined

A warrant of arrest is an order addressed to a law enforcement officer commanding him to physically restrain a person to make him answer for the commission of an offense. (Rule 113, Sec. 1)

Kinds of arrests

With warrant

Without warrantWhen arrest takes place

When arrest takes place: What is the importance of knowing when?

Why is it important to know the precise time of arrest?

To determine whether or not there has been violation of the law against Arbitrary Detention.

Arrest with warrant

Grounds for issuance of warrantThe only ground for issuance of a warrant of arrest is probable cause. Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense had been committed by the person sought to be arrested.

Who may issueWho may issue (not effect) a warrant of arrest in our jurisdiction?

According to Harvey v. Santiago:

a. Judge if the purpose of the arrest is to enable the suspect to answer for a charge

b. CID Commissioner if the purpose is to execute a decision/order

Procedure for issuanceExecuting the warrant How arrest is made

An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. (Rule 113, Sec. 2) Who may serve a warrant of arrest

Can anybody be authorized to serve a warrant of arrest?

No. R.113 S.3 says the arresting officer (although it was not expounded who these arresting officers are).

Duty of arresting officer

It is the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

Time of arrest

An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6)

Method of arrest

No violence of unnecessary force shall be used in making an arrest. The arrested shall not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, 2nd paragraph)Warrantless arrests

Grounds

Who may effect; how effected

By peace officer

By private person

When is a warrant of arrest not necessary?

(1) When the accused is already under detention pursuant to a warrant issued by the MTC judge in Rule 112, Sec. 6 (b);

(2) When the complaint or information was filed pursuant to Rule 112, Sec. 7, i.e. a valid warrantless arrest;

(3) When the offense is penalized by fine only. (Rule 112, Sec. 6 (c))(4) When the accused lawfully arrested escapes or is rescued (Rule 113, Sec. 13)Consequences of an unlawful arrest

Modes of attacking the validity

How can you attack an unlawful arrest?

(1) Motion to quash (Alimpoos v. CA)

(2) Habeas Corpus (See Rule 102)

(3) Bail (but then you dont really go into the validity of the arrest here Note that under the new rules, an application for or admission to bail is no longer a bar to challenge the validity of an arrest)

Standing to challenge

Time to challenge

Sanctions

What are the consequences of an unlawful arrest?

Illegal arrest is a crime.

How much time between the commission of the offense and the arrest, a week ago? IN determining whether a warrantless arrest is valid or not do we inquire into whether there was adequate opportunity to obtain a warrant? Is the existence of opportunity and time a consideration in determining the validity of a warrantless arrest?

No. See People v. Amundin.

Bautista: take note of the crimes referred to in R. 113 Sec. 5a as continuing crimes laid down by Umil v. Ramos: rebellion, subversion, conspiracy/proposal to commit such crimes, and crimes/offenses committed in furtherance thereof or in connection therewith.

Does a warrant of arrest have to state the name of the person?

No. If unknown name, a sufficient description will do.

If you only have a picture of the suspect, is that enough?

It is submitted that there still has to be a sufficient description.

Does the warrant of arrest have a lifetime?

No, although after 10 days from receipt of the warrant of arrest, the head of the office to whom the warrant was delivered for execution must report to the issuing judge in case of failure to execute the same.

Can the warrant of arrest be served anywhere in the Phil?

Yes.

Anytime?

Yes.

Do you know what a reliable asset is?

Police informer.

Q. Mobil car 1 calls police in Mobil car 2 and says that they have a warrant of arrest for B who is now in Mobil car 2s area. Mobil car 1 says please assist us in arresting him. Police in car 2 sees B. Can they arrest him?

A. Yes. R113 S7. The officer need not have the warrant of arrest 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.

Q. Recently, I had a client, a collector of customs. An importer complained to him that a collector was hustling for a bribe in consideration for something. The matter was referred to the NBI who set an entrapment. The NBI officer posted himself outside of Alfredos. There was a meeting between the Chinese and the collector of customs and according to the collector, they handed some envelopes containing marked money. After that they arrested him without warrant. Is the arrest valid?

A. Yes. The person arrested has actually committed a crime in his presence. Arrested person can be said to have been caught in flagrante, hence arrest in valid. [US v. Fortaleza] An offense is committed in the presence of within the view of an officer within the meaning of the rule authorizing an arrest without a warrant when the officer sees the offense, although at a distance, or hears the disturbance created.

On what grounds may a warrant of arrest be issued?

Only one ground: probable cause.

On what ground may a warrantless arrest be made?

Probable cause.

Q. There is this Chinese importer who complained to the Commissioner of Customs that this customs official is trying to extort money from him. You are the legal adviser of the commissioner of customs. You advise him to get a warrant first. How do you go about getting a warrant for the arrest of this customs official?

A. Commissioner of Customs executes a complaint under oath, brings it and the Chinese to a judge who shall personally examine him and the Chinese to determine probable cause. If he determines probable cause exists, he issues a warrant of arrest.

Can the NBI agent make a warrantless arrest on the basis of information of a very reliable asset who proves to be correct?

No.

But can it be the basis of obtaining a warrant of arrest?

No, if on the basis of that information only.

Spouse was charged with an offense cognizable by the RTC and the information is filed. You are arrested without a warrant and there was no preliminary investigation. What should you do?

Before entering a plea, file a motion for preliminary investigation [People v. Monteverde].

Q. Does the filing of the complaint in the fiscals office interrupt the prescriptive period for the offense?

A. Yes. R110 S1 last paragraph

SEARCH & SEIZURE Constitutional basis

A. Scope of Constitutional Restraint

B. Scope of Protection

C. Requisites of a Valid Warrant

D. Grounds for Issuance

E. Form of Search Warrant

Scope of the prohibition

The prohibition against unreasonable searches and seizures is imposed only upon the government and its agencies tasked with the enforcement of the law. It does not extend to acts committed by private individuals.

Nature of right against unreasonable searches & seizures

The right against unreasonable searches and seizures is personal; it may be invoked only by the person entitled to it.

Waiver of right

Waiver of the right against unreasonable searches and seizures may be express or implied, but only by the person whose right is invaded, not by one who is not duly authorized to effect such waiver.

SEARCHES WITH WARRANT

Search Warrant defined

A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (Rule 126, Sec. 1)

Requirements of a valid search warrant

(1) Probable cause

Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

(2) Personally determined by the judge

Only a judge can determine probable cause to justify the issuance of a search warrant. In doing so, he cannot rely on the prosecutor's findings or certification.

Note: This is to be distinguished from the determination of probable cause by a judge in the issuance of a warrant of arrest. With warrants of arrest, a judge can issue a warrant on the basis of the information filed by the fiscal and the certification of probable cause. (See Rule 112, Sec. 6)

(3) One specific offense

Generally, a search warrant can be issued only in relation to one specific offense.

However, when existing laws prescribe a single punishment for various offenses, then one search warrant may be validly issued for several violations of the same law, as in the case of PD 1866 (See Prudente v. Dayrit, 180 SCRA 69) and R.A. 6425 or the Dangerous Drugs Act (See People v. Dichoso, 223 SCRA 174).

(4) After an examination under oath and in writing of facts personally known to the complainant and the witnesses he may produce;

The judge must take depositions and attach them to the record of the case. (Mata v. Bayona)

(5) Particularity of description

PURPOSE: To leave the officers of the law with no discretion regarding what articles

they should seize, to the end that unreasonable searches and seizures may not be made and abuses may not be committed.

SUFFICIENCY:The description of the place to be searched is sufficient if the officer with

the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. (Prudente v. Dayrit)

Failure to state with particularity the place to be searched and items to be seized makes the warrant used for fishing evidence a general warrant which is void.

However, it was held in the case of Kho v. Judge Makalintal (April 21, 1999) that the failure to specify detailed descriptions in the warrant does not necessarily make the warrant a general warrant. The description of the property need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property or its character is a concern. Further, the description is required to be specific only insofar as circumstances will allow.

Procedure for Issuance of a Search Warrant

Where filed

Examination

How Search is effected

Period of Validity of search warrant

Time

Property to be seized

The personal property that may be seized pursuant to the search warrant are:

(1) Subject of the offense;

(2) Stolen or embezzled and other proceeds, or fruits of the offense; or

(3) Used or intended to be used as the means of committing an offense. (Rule 126, Sec. 3)It is not necessary that the property to be searched or seized should be owned by the person against whom the warrant is issued; it is sufficient that the property is within his control or possession. (Burgos v. Chief of Staff, 133 SCRA 800)

Procedure

(1) Admittance to the place of directed search

The officer, upon reaching the place of directed search, must give notice of his purpose and authority to conduct the search to the lawful occupant of the place.

If the officer is refused admittance, he may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (Rule 126, Sec. 7)

(2) Conduct of search

Upon admittance, the officer must conduct the search in the presence of the lawful occupant of the premises or any member of his family, or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 8) Failure to comply with this requirement invalidates the search. (People v. Gesmundo)

(3) Seizure of property and issuance of receipt for the property seized

Once the property described in the warrant has been found and seized, the officer must give a detailed receipt for such property to the lawful occupant of the premises. In the absence of such occupant, the officer must leave a receipt in the place in which he found the seized property in the presence of at least two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 11)

(4) Delivery of property and inventory to the court

The officer must then make a return on the warrant and deliver forthwith the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. The judge shall ascertain whether the seizing officer complied with Rule 126, Sec. 11 (as regards issuance of the detailed receipt).

The return on the search warrant shall be filed and kept by the custodian of the log book on search warrant s who shall enter therein the date of the return, the result, and other actions of the judge. (Rule 126, Sec. 12)

A violation of these requirements shall constitute contempt of court. (Rule 126, Sec. 12)

WARRANTLESS SEARCHES

When may a valid warrantless search be made?

1. Search incident to a lawful arrest

2. Search of moving vehicles (But what about mobile homes?)3. Customs searches or seizure of goods concealed to avoid duties [Uykhetin v. Villareal, Papa v. Magno]

4. Seizure of evidence in plain view

5. Consented searches, or when there is a waiver of the right [De Garcia v. Locisin]

6. Administrative searches

7. Border searches

8. Checkpoints

9. Stop-and-frisk

10. Private searches (People v. Marti)Search incident to a lawful arrest

As a general rule, as an incident of an arrest, the place of premises where the arrest was made can also be searched without a search warrant. (Nolasco v. Cruz-Pano)

PERMISSIBLE AREA OF SEARCH:

(1) Person of the accused;

(2) premises or surroundings within the accused's immediate control

PURPOSE:(1) A weapon held by the arrested person may be turned against his captor; and

(2) The accused may destroy the proof of the crime if the arrested officer has to

first apply for a search warrant.

You arrested a person without a warrant in the first floor of his house. Can you search the second floor without a search warrant?

No. The Nolasco v. Pano [ 139 SCRA 152] ruling was reconsidered in Nolasco v. Pano [147 SCRA 509] which held that a warrantless search made as an incident to a lawful arrest is to be strictly applied and absolutely limited only to a search of the person and of the place where the arrest was made.

Consensual / Consented Searches

The requisites for a valid waiver or consented search are as follows:

(1) The Constitutional right exists;

(2) The person involved had either actual or constructive knowledge of such right; and

(3) There was an actual intention to relinquish the right.

Q. You stay in a room at Philippine Plaza. Scenario:

NBI: [knocks]

A girl from the room: Sino sila?

NBI: NBI ho. Ito ho ba ang kwarto ni Mr. B?

Girl: Opo.

NBI: Nandyan ba siya?

Girl: Wala ho, nasa ibaba, baka nagdisco.

NBI: Pwede bang pumasok?

Girl: Pwede ho. [opens door]

NBI: [enters] Pwede bang tumingin-tingin?

Girl: Kahit ano ho pwede. [NBI finds shabu and dirty pictures]

Valid warrantless search?

A. Yes. [Lopez v. Commissioner of Customs 68 SCRA 320] Under the circumstances, that was the most prudent course of action (for the woman). It would save her and even petitioner Velasco himself from any gossip or innuendo. Nor could the officers of the law be blamed if they would act on the appearances. There was a person inside who from all indications was ready to accede to their request. Even ordinary courtesy would preclude them from inquiring too closely as to why she was there.

Bernas comment: If the right against unreasonable search and seizure is a personal right, may it be waived by somebody other than the person himself?

Bautista: Why, is the girl authorized to give consent?

Plain View

Requisites for a valid warrantless search under the plain view doctrine:

(1) Prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

(2) The evidence was inadvertently discovered by the police who have the right to be where they are;

(3) The evidence must be immediately apparent;

(4) Plain view justified the seizure of the evidence without any further search;

(5) The thing itself is illegal or prohibited.

The plain view doctrine is not applicable in cases wherein the subject items are not illegal per se, e.g. boy scout uniforms that are suspected to be counterfeit items.

Suppose there is a warrant for the search of the premises of B for shabu but they find betamax tapes which are pirated. Can they seize the tapes which are displayed?

No. Plain view doctrine presupposes that the criminal nature of the articles is clear at that point without further search. Perhaps, if they were armalites, yes, because B cannot possibly be licensed to have an armalite as he is not a soldier.

Checkpoints and Roadblocks

In the case of Valmonte v. De Villa (178 SCRA 211; 1989), it was held that a warrantless search at a checkpoint or roadblock is valid for as long as the vehicle is subjected to a mere visual search, and the occupants are not subjected to a body search.

Private Searches

In the case of People v. Marti (193 SCRA 57; 1991), it was held that if a search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authorities, the right against unreasonable searches and seizures cannot be invoked.

Remedies against unlawful searches and seizures

(1) Suppression of the evidence through either

(a) quashal of the search warrant - available only when there is a search warrant

(b) motion to suppress evidence - available whether or not there is a search warrant

(2) Criminal actions for illegal search

(3) Civil actions against those responsible

(4) Administrative actions

What is the remedy to an illegal search?

A motion to quash the search warrant and/or to suppress evidence. (See Rule 126, Sec. 14)

Search only up to the point within the immediate control of arrestee. If you arrested him in the front lawn of his house, you cannot go inside.

Dorm matron, UP security. Matron is very well trained, well equipped and said ok when security asked to search premises. Search valid?

Consent given by the matron is valid with respect to the general areas of the dormitory but with respect to the individual rooms, consent is not validly given unless the residents themselves would give consent.

PRELIMINARY INVESTIGATION PRELIMINARY INVESTIGATION

I. PURPOSE

II. ENTITLEMENT AS OF RIGHT

A. Effect of denial

III. WHO MAY CONDUCT

IV. PROCEDURE: Differences between:A. By MTC judge

B. By prosecutor / Ombudsman

V. REMEDIES FOR LACK OF / IRREGULAR P.I.

Preliminary investigation defined

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. (Rule 112, Sec. 1)

Purpose of preliminary investigation

The primary objective of preliminary investigation is to free the respondent from the inconvenience, expense, ignominy and stress of defending himself in the course of a formal trial, until the reasonable probability of his guilt has been passed upon in a more or less summary proceeding by a competent officer designated for that purpose.

Preliminary investigation serves as a sieve, funnel, in which you can filter cases which cannot stand the rigorous test of proof beyond reasonable doubt. The overriding consideration is that the accused should not be subjected to hasty, ill-considered or malicious prosecution. (Bautista)

ENTITLEMENT AS OF RIGHT

Is P.I. part of due process? What about those not entitled to P.I.? Are they denied of due process?

If it is granted by statute but denied, then there is violation of due process. If not granted by statute, then there is no denial of due process.

Is P.I. a constitutional right?

No, it is only a statutory right.

When required to be conducted

Preliminary invesitgation is required to be conducted before the filing of a complaint or information for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day (Prision correccional in its maximum period, upwards. Please check this, though.), regardless of the fine. (Rule 112, Sec. 1) Note that this is to be taken together with Rule 112, Sec. 7 (which deals with warrantless arrests).

Effect of denial of preliminary investigation

Preliminary investigation if denied can be demanded, but only before arraignment. Once a plea has been entered, PI can no longer be availed of. (Rule 114, Sec. 26)

Note that the ruling in Go v. CA is exceptional owing to the circumstances in that case.

WHO MAY CONDUCT

The following are authorized by law to conduct preliminary investigations:

1. Provincial or city prosecutors and their assistants

2. Judges of the MTC and MCTC judges (note that Metropolitan Trial Court judges are not included)3. National and regional state prosecutors

4. Such other officers as may be authorized by law

Ombudsman;

Metropolitan Trial Court judges of chartered cities where their charter allows them to do so;

COMELEC (Verify this!) SEC (Verify this!) SSS (Verify this!)Suppose the MTC judge conducts the P.I. and he finds no probable cause. What will he do?

Transmit to the fiscal the records of the case and recommend dismissal.

Suppose the fiscal disagrees with the judge, and he thinks that a case should be filed. Can he base a review of the records sent up to him by the judge to file an information?

No, fiscal has to conduct his own preliminary investigation.

PROCEDURE

In what instances can an MTC judge issue summons instead of a warrant of arrest?

See Rule 112, Sec. 9 (b), last sentence: If the judge is satisfied that there is no necessity for

placing the accused under custody, he may issue summons instead of a warrant of arrest.

Compare the procedure for the conduct of preliminary investigation by an MTC judge and by a prosecutor or the Ombudsman.

Differences:(1) MTC judge still has to submit his findings to the provincial / city

prosecutor for approval.

(2) MTC judge can issue warrants of arrest. (Rule 112, Sec. 6 (b))

In what instances is the reviewing prosecutor required to make a written ruling / resolution on the findings being reviewed?

See Rule 112, Sec. 5, par. 2: In all cases.

Can the respondent file a motion to dismiss in a preliminary investigation?

NO. Rule 112, Sec. 3 (c) explicitly provides that no motion to dismiss shall be filed in lieu of a counter-affidavit.

REMEDIES FOR LACK OF / IRREGULAR PI

What is the remedy for lack of / or irregular preliminary investigation?

Certiorari, prohibition, mandamus.

Prohibition to prohibit arraignment. Mandamus to compel preliminary investigation.

JURISDICTION VENUE COMPLAINT & INFORMATION Comparison of the old and new rules

Old Rules2000 RulesCommentary

Rule 110, Sec. 1. How instituted. -- For offenses not subject to the rule on summary procedure in special cases, the institution of criminal actions shall be as follows:

(a) For offenses falling under the jurisdiction of the Regional Trial Courts, by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein;

(b) For offenses falling under the jurisdiction of the MTCs and MCTCs, by filing the complaint or information directly with the said courts, or a complaint with the fiscal's office. However, in Metro Manila and other chartered cities, the complaint may be filed only with the office of the fiscal.

In all cases, such institution shall interrupt the period of prescription of the offense charged.Rule 110, Sec. 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 MTCs and MCTCs, 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 of the period of prescription of the offense charged UNLESS OTHERWISE PROVIDED IN SPECIAL LAWS. The phrase "for offenses not subject to the rule on summary procedure in special cases" was deleted. Thus, under the new rules, the institution of all criminal actions shall be the same.

Under Sec. 1 of Rule 112, preliminary investigation is required for offenses punishable by imprisonment of at least 4 years, 2 months and 1 day (subject to the exception in Sec. 7 of Rule 112, i.e. lawful warrantless arrests)

This amendment is pursuant to the ruling in Zaldivia v. Reyes (211 SCRA 277), where the Supreme Court held that the Rules of Court cannot amend special laws.

Rule 110, Sec. 8. Designation of the offense. - Whenever possible, a complaint or information should state the designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it.

Rule 110, Sec. 9. Cause of accusation. The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment.Rule 110, Sec. 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 offense, and SPECIFY ITS QUALIFYING AND AGGRAVATING CIRCUM-STANCES. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Rule 110, Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the QUALIFYING AND AGGRAVA-TING 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 AGGRA-VATING CIRCUMSTANCES and for the court to pronounce judgment. The Rules now require the information to allege the qualifying and aggravating circumstances.

Rule 110, Sec. 5. Who must prosecute criminal actions.

Refer to codal for text. Rule 110, Sec. 5. Who must prosecute criminal actions.

Refer to codal for text. Rape is no longer considered a private offense since it is now classified as a crime against persons under R.A. 8353. Thus, it may be prosecuted by any person and not just upon a complaint filed by the offended party or her parents, grandparents or guardian.

Rule 110, Sec. 14. Amendment. - The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused.

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 the filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11, provided the accused shall not be placed in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

Rule 110, Sec. 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 the filing of a new one charging the proper offense in accordance with sec. 19, rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. This is self-explanatory.

I. Definition of complaint and information

II. How and where instituted

III. Who must prosecute

IV. Requisites of a complaint or information

V. Amendment of complaint or information

VI. Effect of filing on interruption of prescriptive period

VII. Remedies against a defective complaint or information

Definition of complaint and information

How and where instituted

Jurisdiction is determined by the extent of the penalty which the law imposes on the basis of the facts as recited in the complaint or information. Note that it is the imposable penalty that governs; not the penalty which the court may impose or actually imposes. (People v. Lagon, 185 SCRA 442)

Who must prosecute

Generally, the fiscal. However, in MTCs, MeTCs or MCTCs where the fiscal is not available, the offended party or a peace officer or public officer may prosecute.

Note that once the complaint or information has been filed in court, the fiscal loses jurisdiction to dispose of the case as he deems fit. (Republic v. Sunga, 162 SCRA 191)

Requisites of a complaint or information

Name of accused

Designation of offense

Acts / Omissions constituting offense

Name of offended party

Date of Commission of Offense

Place of Commission

Amendment of complaint or information

Before arraignment:If amendment is either in substance or form, without need for leave of

Court

After arraignment,

during trial:

Amendment in form only, with leave of court at its discretion, provided

that such amendment does not prejudice the rights of the accused.

Formal amendment: one that does not prejudice any essential right of the accused, nor affect the essence of the crime charged.

Substantial amendment: one that would change the basic theory of the prosecution by alleging a new way of committing the offense.

What is the test to determine whether an amendment is substantial or formal?

(1) If the amendment changes the nature of the information;

(2) Eliminates a defense;

(3) Increases quantum of evidence

Note: Conspiracy is neither formal nor substantial per se. It depends on the circumstances of the case.

Effect of filing on interruption of prescriptive period

Remedies against a defective complaint or information

THE CIVIL ASPECT Comparison of old and new rules

Old Rules2000 RulesCommentary

Rule 111, Sec. 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Art. 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of the said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages.

In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial.Rule 111, Sec. 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 impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his 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.

In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (Sec. 3) 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 thereof 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 fees 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 counterclaim, 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 BP 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 information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional 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 Sec. 2 of this Rule governing consolidation of the civil and criminal action. Under the 2000 Rules, only the civil liability arising from the offense charged is deemed instituted. This means that recovery of damages for civil liability under Art. 32, 33, 34 and 2176 of the Civil Code is not impliedly instituted in the criminal case, and may therefore be prosecuted separately even without a reservation. This is in contrast to the old Rules where all civil liability was deemed instituted in the criminal case.

Under the former rule, a waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of the civil actions separately waives the others. This is no longer provided for. The reservation and waiver referred to pertain only to the civil action for the recovery of civil liability arising from the offense charged. This does not include recovery under Art. 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, which may be prosecuted separately even without a reservation.

This provision was moved to Sec. 3 of Rule 111 of the 2000 Rules. The change is merely one of style and not of substance.

The exceptions are BP 22 cases, those civil actions not instituted within the proper time, and cases before the Sandiganbayan.

The 2000 rules have repealed the rulings in Shafer v. Judge, RTC of Olongapo (167 SCRA 376), Javier vs. IAC (171 SCRA 376) and Cabaero v. Cantos (citation unknown) which previously allowed the filing of third-party complaints as well as counterclaims. Now, under the 2000 Rules, these pleadings are no longer allowed. Any claim which could have been the subject thereof may be litigated in a separate civil action.

The 2000 Rules have incorporated Supreme Court Circular 57-97 on the filing of actions for violation of BP 22 mandating the inclusion of the corresponding civil action for which the filing fee shall be paid based on the amount of the check involved.

Note that in other cases (non-BP 22 cases), no filing fees are required for actual damages.

No counterpart provision.

Rule 111, Sec. 2, paragraph 2.

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 action contemplated herein is a civil action arising from the offense charged. If such civil action is either reserved, or filed separately ahead of the criminal case, the period of prescription does not run.

However, the period of prescription for civil actions under Art. 32, 33, 34 and 2176 of the Civil Code is not suspended because such actions can be instituted separately.

No counterpart provision.Rule 111, Sec. 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 Sec. 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 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.

Rule 111, Sec. 5. Elements of prejudicial question. - The 2 essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

Rule 111, Sec. 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.

The 2000 Rules expressly state that for a civil action to be deemed a prejudicial question, it must have been instituted prior to the criminal action.

IMPLIED INSTITUTION OF THE CIVIL ASPECT

Note that under the 2000 Rules, the only civil action deemed impliedly instituted with the criminal action is that for civil liability arising from the offense charged. All other civil actions arising from sources other than the delict are not impliedly instituted.

Note that under both the old and new rules, the exceptions to the general rule of the implied institution of the civil aspect are:

(1) When the offended party waives the civil action;

(2) When the offended party reserves his right to institute it separately; and

(3) When he institutes the civil action prior to the criminal action.

Does the offended party have the absolute right to institute a civil action ex delicto separately?

YES, except in the following cases:

(1) BP 22 cases (Rule 111, Sec. 1 (b));

(2) When not instituted within the proper time;

(3) Cases before the Sandiganbayan.

RESERVATION OF CIVIL ACTION

EFFECT OF DEATH OF THE ACCUSED

What is the effect of death of the accused on the civil actions?

It depends:

(1) 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.

(2) If the accused dies after arraignment and during pendency of the criminal action, civil liability arising from the delict shall be extinguished. HOWEVER, an independent civil action instituted under Rule 111, Sec. 3 or from other sources of obligation may be continued against (a) the estate or (b) legal representative of the accused after proper substitution, as the case may be. (Rule 111, Sec. 4)FILING FEES

Must filing fees be paid every time a criminal case is filed?

It depends on whether the claim is only for actual damages, or if there is an additional claim for moral, nominal, temperate or exemplary damages.

If only actual damages are claimed?

Generally, no filing fees are required. However, if the case is one involving BP 22, filing fees must be paid basd on the amount of the check involved, which shall be considered as the actual damages claimed. (Rule 111, Sec. 1b)

If the complaint or information seeks to also recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. (Rule 111, Sec. 1 (b))

PREJUDICIAL QUESTIONS

As a general rule, criminal actions are preferred over civil actions, i.e. the civil action shall be suspended when the criminal action has been filed.

However, there are exceptions to this rule of preference, namely:

(1) Independent civil actions, i.e. Art. 32, 33, 34 and 2176 of the Civil Code;

(2) When the civil case is subsequently consolidated with the criminal action (Sec. 2, Rule 111); and

(3) A civil action involving a prejudicial question

What is a prejudicial question?

A prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. (Berbari v. Concepcion, 40 Phil. 837) A civil question is prejudicial when it refers to a fact separate and distinct from the offense but intimately connected with it, which question determines the guilt or innocence of the accused. (De Leon v. Mabanag, 70 Phil. 202)

The doctrine of prejudicial question comes into play generally in a situation where the civil and criminal actions are pending and in the former an issue must be preemptively resolved before the criminal action may proceed. This does not apply where no civil, but only an administrative, case is involved. (Manikad, et al. v. Tanodbayan, G.R. No. 65097, Feb. 20, 1984)

What are the elements of a prejudicial question?

(1) The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and

(2) The resolution of such issue determines whether or not the criminal action may proceed. (Rule 111, Sec. 7)In cases of prejudicial questions, is reservation required?

No. See the cases of Maniago v. CA and San Ildefonso Lines.

Where can a petition for suspension of the criminal action based on a prejudicial question in a civil action be filed?

(1) If the criminal action has not yet been filed in court for trial, it may be filed in the office of the prosecutor or the court conducting the preliminary investigation. Note that this is the earliest time.(2) If the criminal actions has already been filed in court, it may be filed in the same criminal action at any time before the prosecution rests. (Rule 111, Sec. 6) Note that this is the latest time.In case of prejudicial question, which action is suspended?

Criminal action. This is because the issue in a civil action is intimately connected to the issue in the criminal action and thus needs to be determined first before the criminal action may proceed.

Examples of prejudicial questions:

Civil action for annulment of marriage filed by the woman, where there is a criminal action for abduction and filed by her against he male contracting party. The dismissal of said action and the consequent declaration of the validity of said marriage constitutes a defense or mode of extinction of said criminal case under Art. 344 of the Revised Penal Code. (Montilla v. Yatco, 61 O.G. 8376) Civil action brought by plaintiff to annul the sale of land by defendant to a 3rd person, and a criminal case for estafa, where plaintiff alleged that the same land was previously sold by defendant to him but where defendant raised the defense that his signature appearing on the deed of sale to the plaintiff was falsified. (Ras v. Rasul, Sept. 18, 1980)Examples of actions not deemed to be prejudicial questions:

Civil action for dissolution of the conjugal partnership on the ground of mismanagement by the husband, where the criminal offense is concubinage (Cabahug-Mendoza v. Valera, 92 Phil 1001) Civil action for the annulment of a certificate of title issued upon the basis of a falsified affidavit of adjudication, where the criminal offense is falsification (De la Cruz v. City Fiscal of Dagupan, 106 Phil. 851) Civil case for quieting of title to property alleged to have been the subject of a falsified deed of sale, where the criminal offense is falsification (Dasalla, et al. v. City Attorney of Quezon City, May 30, 1962) Civil case for annulment of the second marriage brought by the second wife, where the first wife has filed a criminal case against the husband for bigamy (People v. Aragon, 94 Phil. 357; Landicho v. Relova, Feb. 23, 1968) However, where the husband was charged with bigamy by the second wife and the husband filed a civil action against the second wife for the annulment of the marriage on the ground that he was forced to contract said subsequent marriage, such civil action is prejudicial since annulment on that ground would establish that his act in contracting the second marriage was involuntary, and hence, no criminal liability would attach. (Zapanta v. Montesa, Feb. 28, 1962)

Validity of a receipt, impugned in a civil action as having been obtained by fraud, where the criminal case is one for estafa. Such defense may be passed upon in said criminal case or conviction may be based on other grounds. (Jimenez v. Averia, et al., Mar. 29, 1968)EFFECT OF ACQUITTAL ON CIVIL LIABILITY

Is it possible for the accused to be acquitted, and yet to be civilly liable for the act charged to be criminal?

Yes, if the court made no finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. Extinction of the penal action generally does not carry with it extinction of the civil action. (Rule 111, Sec. 2)

Said query whether an action for breach of contract arising from the same act or omission as the basis of the criminal charge, is impliedly instituted you think that the express mention of the articles of the CC excludes culpa contractual?

The way I read it, the 2nd paragraph amplifies the general statement in the first paragraph. The civil liability in the first paragraph consists of the 5 mentioned in the 2nd par.

That may be so because of the wording. I think you are right. However, it may be a failure to consider the intention really is to assimilate all the civil actions based on the same act or omission. I think the express enumeration may have left open the matter of culpa contractual. In fact, culpa contractual is not mentioned among those actions, which may be prosecuted independently and separately and concurrently with the criminal action. But it can. That also pulls the rug under your expressio unios argument. I think that this one can also be prosecuted separately. It should be impliedly instituted.

Sir: We have a private prosecutor in a criminal proceeding and have a civil litigation together with a criminal case.

The accused has a right to refuse to take the witness stand. Can the private prosecutor call him to the stand as an adverse party witness in respect to the civil liability? Since we have fused/merged trial. You notice the provision which speaks of the civil action being consolidated if it was already pending before, it would be consolidated with the criminal action although you can ask additional evidence and also in defining the jurisdiction of the Sandiganbayan.

What is the peculiarity in cases before the Sandiganbayan about the civil aspect of offenses being tried by the Sandiganbayan? All cases bearing on the civil aspect of the crime should be jointly tried in the Sandiganbayan proceeding and if not so tried, then it should be waived.

Cannot be expressly reserved, be separately instituted. Perhaps Apples point may acquire some added validity when reckoned with the Sandiganbayan decree ecause in those cases, it would be extremely unfair for an accused who has a cause of action for breach of contract not to be able to institute an independent action for breach of contract because theres a criminal case filed in Sandiganbayan because in that case, there is absolute prohibition for a separate action. What is the rationale for giving priority to this criminal aciton over the civil action? Why do we say, go ahead first with the criminal action and let us suspend the civil action except in those cases where an independent civil action may be prosecuted.

You remember the Seneris doctrine?

A:There could be a finding in the criminal action that the fact from which the civil liability might arise did not exist.

Sir:Good. But also what if there could be a finding? So you save time so there is no need for a civil case. You may be able to save the time and expenditure for a civil case. You may be able to save the time and expenditure for a civil case. Give me an instance of a case where such a finding may be made that he basis for civil liability does not exist.

A:2 women claiming to be wife of one person. The first files criminal charge of bigamy, but in a civil case, the issue of validity of the first marriage comes up.

Sir:The right to reserve the institution of a separate civil action is given in all cases. True or false?

A:True, except Sandiganbayan.

Sir:R 111, S 1, 2nd par. When you have the right to independent action, you have a right to reserve. What does that mean? They can be instituted concurrently?

These are the different concepts. One is the right to reserve. That is given in all cases. Now, the right to proceed concurrently is limited to those 4 cases in 2nd paragraph, without having to wait. In all cases, you have the right to reserve. Its only a question if you can do it at the same time or you have to wait.

Sir:Is there a deadline for making a reservation in a criminal action?

A:Yes, before prosecution starts to present its evidence.

Sir:Unless? In other words, there might be a time even after the prosecution has started its evidence, still you may be allowed to make your reservation.

Example?

A:If fiscal instituted action without intervention of offended party. After arraignment, proceeded to present its evidence without the private party having the chance to reserve.

Sir:Possible. Or more commonly if the accused pleads guilty right away.

Sir:An action based on contract may proceed independently. So, our conclusion a while ago that only civil actions based on 32, 33, 34 and 2176 CC may proceed independently is not completely correct.

A:Yes, in that sense.

Sir:A court in criminal case may issue a writ of preliminary attachment. How about MTC? The civil liability arising from the offense on civil action impliedly instituted in the criminal action in the MTC might involve more than P 20,000. May MTC issue writ of preliminary attachment to secure claim for more than?

A:Yes.

Sir:So it has larger civil jurisdiction in a criminal case than it has in a civil case.

BAIL Constitutional basis

I. Definition and purpose

II. Kinds

III. Rules for when bail may be availed of

A. When Allowed

(1) Matter of Right

(2) Matter of Discretion

B. When not allowed

C. When not required

IV. Conditions

V. Entitlement

VI. Application (includes who may grant)VII. Posting

VIII. Forfeiture

Definition and purpose

The right to bail flows from the presumption of innocence in favor of the accused. (De la Camara v. Enage, 41 SCRA 1)

When right may be invoked

Rules for when bail may be availed of

When bail is a matter of right

Bail is a matter of right in the following instances:

In criminal cases before the MTC:Before or after conviction

In criminal cases before the RTC:Before conviction, where the penalty is

less than reclusion perpetua, death or life imprisonment

When bail is a matter of discretion

(1) Matter of Discretion

Bail is a matter of discretion in the following instances:

In criminal cases before the RTC:After conviction, where the penalty is

less than reclusion perpetua, death or life imprisonment

When bail is not allowed

Bail is not allowed when the crime involved is a capital offense where evidence of guilt is strong. (Note that it is the prosecution which has the burden of showing that evidence of guilt is strong.)

Bail is likewise not allowed after final judgment. The exception to this is when the accused applies for probation before the judgement becomes final. (Note that the Probation Law must be applicable to both the penalty and the offense.)

When bail is not required

Kinds

A. Surety Bond

B. Property Bond

C. Cash Bond

D. Recognizance - Personal underwriting by accused or good citizen of community.

Conditions

At what stages of the criminal action is the accused required to be present?

1. arraignment

2. for identification

3. promulgation of judgment, except if the case is one involving a light offenseRight to bail and the right to travel abroad

Standards for fixing bail

Entitlement

Application (includes who may grant)

Where does one apply for bail? (Rule 114, Sec. 17)

As a general rule, bail is applied for / filed with the court where the case is pending.

Exceptions:

1. judge where case is pending is not available

2. Accused arrested in a place other than where case is pending

3. Accused has not yet been chargedUntil when is bail good?

Unless cancelled, bail remains in force at all stages of the case until promulgation of judgment by RTC. (Rule 114, Sec. 2)

Posting

Forfeiture

What is the effect of failure of the accused out on bail to attend a hearing despite due notice?

(1) Bond -- If the hearing is one wherein the accuseds presence is mandatory, the

bond is forfeited. (However, if his presence is not required, there will be no effect on the bond.) Moreover, the Court will give the sureties 30 days within which to produce their principal (or to give the reason for his non-production), and to show cause why no judgment should be rendered against them for the amount of their bail (i.e., explain why the accused did not appear before the court when first required to do so).

(2) Trial -- Trial in absentia, provided that accused has already been arraigned.

Question: Is the accuseds presence waived for that date only or for all other

dates thereafter?

Waiver of the right to bail

Who are NOT entitled to bail as of right?

1. reclusion perpetua, life imprisonment, death when evidence of guilt is strong

2. after conviction by the RTC imposing penalty of imprisonment exceeding 6 years but not more than 20 years and any of the grounds enumerated

3. conviction reclusion perpetua, life imprisonment, death

Sirs view If you are convicted and penalty is more than 6 years, not as a matter of right but discretionary if any of the 5 conditions

Matter of right

a. before or after conviction by MTC

Bail MTC RTC; still good upon appeal

b. before conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment

6 years and above 20 + 5 grounds = no discretion

SEC 24. If there is final judgment no bail because convicted, but can apply for probation before finality

What are the stages of bail?

(1) applying

(2) fixing

(3) posting

Where to apply not the same as where to post

look at type of bond see sec 11 and sec 14

Court where you apply fixes amount of bail

but this is NOT necessarily the court which will release you but where you post bail

e.g. charged in RTC Manila. Fix bail at P30,000. Can you post bail in RTC QC? Yes, 2nd paragraph sec 19

If post with treasurer get receipt and go to court you want the warrant to be recalled by the court

Applying v. Fixing v. Posting

just because court approves bail does not equate to posting

after approval of bail get ? then post

posting= where? any where case is pending or arrested?

theres no provision where to post bail

can post bail anywhere

Must forward what?

e.g. issue warrant Manila

release Q.C. ( cant approve application but once Manila approves, QC can release)

Bail = confusing = as to applying, fixing and posting

When is the liability of surety extinguished?

1. acquitted

2. dismissal

3. death

4. convicted and surrenders

Sec 21 = appeared as required

There used to be a letter of instruction waiving presence of accused

Bail fixed at P100,000 if surety or P10,000 if cash. Is this valid? Yes.

Bail if in cash can it be applied to fine and civil damages

fine Yes

Civil liability No, might not be his money

What if explain why cant produce

produce body OR give reason for his non-production

possibility that liability of bondsman will be reduced

If out on bail, can he travel abroad? No, unless with court permission may lose jurisdiction impairs contract of bondsman

Is this not impairment of liberty? Still in jail although out on bail bondsman is his jailer = bondman can arrest (no need for warrant) sec 23

practice notice to the bondsman is notice to the accused

Sir:Who is not entitled to bail? Is there anyone not entitled to bail?

A:No.

Sir:Everybody is entitled to bail. There is no one not entitled to bail. Everybody is entitled even those charged with reclusion perpetua and where evidence of guilt is strong. (?)

Sir:Even after conviction but pending appeal, they are entitled to bail?

A:Yes.

Sir:What is the difference of (1) those accused with offenses punishable by lesser penalties or RP where evidence of guilt is not strong; and (2) those accused with RP evidence is strong?

A:(1) Bail is a matter of right. (2) Bail is discretionary upon court

Sir:If you are charged with an offense in the RTC, may you apply for bail in the MTC of the same province?

A:R 114, S 14, 2nd sentence, ....bail may be filed also in MTC.

Sir:I said applied. Here are the concepts. The court which fixes the bail. The court that accepts the bail, and therefore releases the accused on bail.

Sir: May the MTC of QC fix and release on bail a person not charged before it? I did not say accept the bail.

A:S 16, 2nd par. ...file xxx.

Sir: But that provision presupposes that the bail was fixed. I am talking of QC-MTC fixing and accepting bail of one not charged before it. In S 16, 2nd paragraph, why should he file bail when it has not yet been fixed?

Sir:Read provision where accused is arrested and not yet charged, and he can put up bail?

A:R 114, S 14 (c) xxx apply

Sir:Apply. That means is has not yet been fixed.

A:But S 6 The judge who granted the application shall fix the bail. So in S 14 (c), if the person applies for bail in court, necessarily the court who approves application must also fix the bail. Thus, whoever approves application may fix the bail.

Sir:But a bail already fixed may be filed in another court other than that which fixed it.

A:Rules for fixing of baill and acceptance of bail is under S 14. Once bail is fixed, the court authorized t accept bail should only be pending unless branch is unavailable, or arrested somewhere else.

Sir:How about if he is arrested without being charged?

A:He can file it in any court where he is held.

Sir:What amount if bail? Who will fix the bail?

A:Where he applied.

Sir:So that is different now. The court will fix the bail. Who will fix the bail of person arrested but not charged? Any court in the province where he is held.

Sir:What are the kinds of bail? Can the court require of accused to fix bail at P 20,000 surety, but if case P 10,000 lang?

How about: the court required that if the bail be real property bond that if be real estate in the province and must have been owned by surety for at least 5 years. Is that reasonable bail requirement? The requirement that is must have been owned for at least 5 years has been held to be unreasonable if the property is Torrens titled. The implication was that it was reasonable if property was not titled.

Sir:P 500,000 bail for homicide charge where the accused is a government clerk?

Sir:Regarding problem on P 20,000 surety bond or P 10,000 cash bond. Usually, to attain a bail bond of P 20,000, you might be asked to put up collateral, even cash, sometimes for P 10,000. But there are time like right now where there are very few bonding companies that have clearance to issue bail bonds about 5. If the accused is a government clerk only and he is charged with homicide, half a million bail excessive? What is the test? What is the impact of his financial capacity? Whether bail is excessive or not depends on the circumstances of the accused and the crimes charged like where some crimes are very rampant, the Court may be justified in fixing very stiff bail.

ARRAIGNMENT & PLEA I. Nature and purpose of arraignment

II. Procedure

III. Plea

A. Purpose

B. Types

(1) Guilty

(2) Not Guilty

(3) Refusal to enter plea

(4) Qualified or Conditional admission

(5) Plea Bargain

IV. Pre-Arraignment Remedies

V. Effects of Arraignment and Entry of Plea

VI. Availability of Provisional Remedies

Nature and purpose of arraignment

What is arraignment? (Rule 116, Sec. 1)

Pagbabasa in Filipino. The information is read to the accused in a language which he understands and is given a copy thereof. He is then asked to enter his plea. If he doesnt have a lawyer, he is given a counsel de oficio.

Procedure

Plea

Purpose of plea

Types of plea

(1) Guilty

(2) Not Guilty

(3) Refusal to enter plea

(4) Qualified or Conditional admission

(5) Plea Bargain

What are the possible pleas?

(1) Guilty

(2) Not guilty

(3) Conditional plea of guilty (This is considered as not guilty.)(4) Pleads guilty but presents exculpatory evidence (Considered as not guilty)(5) Plea of guilty to a lesser offense

(6) Mute (This is considered as not guilty.)(7) Evasive (considered as not guilty)

Plea of guilty: when is reception of evidence mandatory? discretionary?

If the accused pleads guilty to a capital offense, reception of evidence as to the voluntariness and full comprehension of the consequences of his plea, proof of guilt, and precise degree of culpability is mandatory. This is so that the Supreme Court will have something to review once the case goes up on automatic review.

However, if the accused pleads guilty to a non-capital offense, reception of evidence is merely discretionary.

Is a negotiated plea or a plea to a lesser offense allowed?

Yes. Under the Rules, a lesser offense is one that is necessarily included in the offense charged. (Rule 116, Sec. 2) It is allowed to be made either during arraignment, or after arraignment but before trial provided that the earlier plea of not guilty is withdrawn. It can also be made by the trial prosecutor in the event that the accused fails to appear during the arraignment despite due notice. (Rule 116, Sec. 1(f))

Note: An offense charged is deemed to be necessarily included in the offense

proved when the essential ingredients of the former constitute or form part of those constituting the latter. (Rule 120, Sec. 5)

It must be stressed, however, that a plea to a lesser offense or to one that is necessarily included in the offense charged does NOT apply to crimes covered by special laws (e.g. possession of drugs under the Dangerous Drugs Act)

When is a plea deemed improvident? What are its effects?

A plea is deemed improvident when the accused finds out that there was a mistake in the admission. The Court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. (Rule 116, Sec. 5)

Note: If the accused pleaded guilty because he misappreciated the penalty to be

Imposed, this is not deemed an improvident plea.

Can a withdrawn plea of guilty be used as an admission?

No, doesnt make sense if used against him

Plea Bargaining

Pre-Arraignment Remedies

Availability of Provisional Remedies

Is it possible for the accused to waive reading of information?

Generally, no.

Even if pleads guilty if later on there is evidence to show incomplete self -defense change to not guilty

mute not guilty

evasive not guilty

Who are required to be present during arraignment? (Rule 116, Sec. 1 (f))

1. accused - Must be present.

2. offended party for plea bargaining and civil liability.If the offended party fails to appear despite due notice, a plea of guilty to a lesser offense which is necessarily included in the offense charged may be entered with the conformity of the trial prosecutor alone. Effects of Arraignment and Entry of Plea

What are the consequences of an entry of plea?

The moment you plea, you can no longer:

1. move to quash (except on those 4 exceptional grounds);

2. question validity of the arrest;

3. question lack of preliminary investigation;

4. amend the information without leave of court;

5. move for a bill of particulars (Rule 116, Sec. 9)Moreover,

Sec 7, Rule 117 (b) The conviction of the accused shall not be a bar to another

prosecution for an offense which necessarily includes the offense charged in the former complaint or information if the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information.

Jeopardy attaches, since one of the requirements is that the accused has been arraigned.

Trial can be conducted in absentia thereafter.

Do we allow for reconsidered plea?

Yes. If prosecution and offended party consents provided further that it is necessarily included in the information.

variance can be convicted if elements of lesser offense are included

plea of guilt can be withdrawn = before conviction

plea of guilty can be withdrawn before reception

Time Frame :30 days from date court acquires jurisdiction over person

What are the exceptions? Motion to quash, etc.

reserve action = reserve before prosecution starts presenting evidence (R111, sec 1 par2)

Answer as long as deny allegations in information, its up to prosecution to prove

at pre-trail there can be some admission (ex. reserve trial)

Plea signifies that accused understands charge

a denial (like answer)

jeopardy attaches

New Rules aggravating circumstances = must be alleged in the complaint (even generic)

Plea of guilt can be withdrawn before judgment improvident plea

What if pending appeal? Yes like a withdrawal of appeal (sec 12, R122)

What about withdrawal of appeal if already in appellate court?

see sec 18 R 124 = Civil cases

can withdraw sec 3 R50 before filing of appellees brief as a matter of right

Can decisions of the RTC be reviewed by Sandiganbayan? Yes, if salary grade is below 27

Negotiated Plea Bargainin like blackjack favorable to both accused and prosecution State conviction saves time/resources

Can the accused be arraigned in absentia?

No. Not even if he is going to plead guilty.