UP Remedial Law Reviewer 2012 - 2014 upload

RRREEEMMMEEEDDDIIIAAALLL BAR REVIEWER UP LAW 2012

Criminal Procedure Civil Procedure

Evidence

Special Proceedings

LAW Dean Danilo L. Concepcion Dean, UP College of Law Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Eden Catherine Mopia Remedial Law Subject Heads Graciello Timothy Reyes Layout

UP LAW BAR OPERATIONS COMMISSION

REMEDIAL LAW REVIEWER

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RRREEEMMMEEEDDDIIIAAALLL BAR REVIEWER UP LAW 2012

BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner

Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary

Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor

COMMITTEE HEADS

Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae

Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat

Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing

Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR

Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout

Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare

Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations

Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations

Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo

Paula Plaza |Linkages

LAW REMEDIAL LAW TEAM 2012 Subject Heads |Eden Catherine Mopia LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes


\ RRREEEMMMEEEDDDIIIAAALLL LAW

2012 UP Law Bar Reviewer

Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law.

All Rights reserved.



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Criminal Procedure...................... 12 I. GENERAL MATTERS ...................... 12

A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused ............................... 12 B. Requisites for exercise of criminal jurisdiction ................................ 12 C. Jurisdiction of Criminal courts ...... 12

II. PROSECUTION OF OFFENSES .......... 14

1. Criminal actions, how instituted (Bar 1999) ....................................... 14 2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000) ................................ 15 3. Criminal actions, when enjoined .... 16 4. Control of prosecution ................ 16 5. Sufficiency of Complaint or Information ................................ 16 6. Designation of Offense ............... 18 7. Cause of the Accusation .............. 18 8. Duplicity of the Offense; Exception (Bar 2005) ................................. 19 9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002) .................... 19 10. Venue of criminal actions .......... 20 11. Intervention of offended party .... 20

III. PROSECUTION OF CIVIL ACTION ...... 20

1. Rule on implied institution of civil action with criminal action ............. 20 2. When civil action may proceed independently ............................. 21 3. When separate civil action is suspended ................................. 21 4. Effect of the death of accused or convict on civil action ................... 21 5. Prejudicial Question .................. 21 6. Rule on Filing Fees in civil action deemed instituted with the criminal action ...................................... 22

IV. PRELIMINARY INVESTIGATION ........ 22

1. Nature of right ......................... 22 2. Purposes of preliminary investigation .............................. 23 3. Who may conduct determination of existence of probable cause ............ 23 4. Resolution of investigating prosecutor ................................. 24

5. Review .................................. 24 6. When warrant of arrest may issue .. 24 7. Cases not requiring a preliminary investigation ............................... 25 8. Remedies of accused if there was no preliminary investigation ................ 25 9. Inquest .................................. 25

V. ARREST .................................... 26

1. Arrest, how made ..................... 27 2. Arrest without warrant, when lawful .............................................. 27 3. Method of arrest ....................... 28 4. Requisites of a valid warrant of arrest .............................................. 29 5. Determination of Probable Cause for issuance of warrant of arrest ........... 29 6. Distinguish probable cause of fiscal from that of a judge...................... 29

VI. BAIL ....................................... 30

1. Nature ................................... 30 2. When a matter of right; exceptions 31 3. When a matter of discretion ......... 32 4. Hearing of application for bail in capital offenses ........................... 32 5. Guidelines in fixing amount of bail . 32 6. Bail when not required ............... 33 7. Increase or Reduction of Bail ........ 33 8. Forfeiture and Cancellation of bail . 33 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation ................ 33 10. Hold Departure Order & Bureau of Immigration Watchlist ................... 33

VII. RIGHTS OF THE ACCUSED ............. 34

1. Rights of accused at the trial ........ 34 2. Rights of persons under Custodial Investigation ............................... 36

VIII.ARRAIGNMENT AND PLEA ................................................. 37

1. Arraignment and Plea, how made ... 37 2. When should plea of NOT GUILTY be entered ..................................... 38 3. When accused may enter a plea of guilty to a lesser offense ................ 38 4. Accused plead guilty to capital offense, what the court should do ..... 38 5. Searching Inquiry ...................... 38 6. Improvident plea ...................... 38 7. Grounds for suspension of arraignment .............................................. 38

CCRRREEEMMMEEEDDDIIIAAALLL

CCCRRRREMEDIAL LAW REVIEWER

LAW IX.MOTION TO QUASH ................................................. 39

1. Grounds ................................. 39 2. Distinguish from demurrer to evidence .............................................. 43 3. Effects of sustaining the motion to quash ....................................... 43 4. Exception to the rule that sustaining the motion is not a bar to another prosecution ................................ 44 5. Double Jeopardy ....................... 44 6. Provisional Dismissal .................. 45

X. .................................................. PRE-TRIAL ................................................. 46

1. Matters to be considered during pre-trial ......................................... 46 2. What the court should do when prosecution and offended party agree to the plea offered by the accused ....... 46 3. Pre-trial agreement ................... 47 4. Non-appearance during pre-trial .... 47 5. Pre-trial order ......................... 47 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution ................................. 48

XI. .........................................................TRIAL ................................................. 48

1. Instances when presence of accused is required by law ........................ 48 2. Requisites before trial can be suspended on account of absence of witness ..................................... 48 3. Trial in Absentia ....................... 49 4. Remedy when accused is not brought to trial within the prescribed period ...................................... 49 5. Requisites for discharge of accused to become a state witness.................. 49 6. Effects of Discharge of accused as state witness .............................. 50 7. Demurrer to Evidence ................ 50

XII. ............................................... JUDGMENT ................................................. 51

1. Requisites of a judgment ............. 51 2. Contents of Judgment ................ 51

3. Promulgation of judgment; instances of promulgation of judgment in absentia .................................... 53 4. When does judgment become final (four instances) ........................... 54

XIII.NEW TRIAL OR RECONSIDERATION ................................................. 54

1. Grounds for New Trial [ ............... 54 2. Grounds for Reconsideration ......... 54 3. Requisites before a new trial may be granted on ground of newly discovered evidence ................................... 54 4. Effects of granting a new trial or reconsideration ........................... 55 5. Application of Neypes Doctrine in Criminal Cases ............................. 55

XIV. ................................................... APPEAL ................................................. 55

1. Effect of an Appeal .................... 55 2. Where to appeal ....................... 55 3. How appeal taken .................... 56 4. Effect of appeal by any of several accused ..................................... 62 5. Grounds for dismissal of appeal ..... 62

XV.SEARCH AND SEIZURE ................................................. 62

1. Nature of search warrant ............. 62 2. Distinguish from warrant of arrest .. 63 3. Application for search warrant, where filed ................................ 64 4. Probable Cause ........................ 66 5. Personal examination by judge of the applicant and witnesses ................. 66 6. Particularity of place to be searched and things to be seized ....... 67 7. Personal property to be seized ...... 68 8. Exceptions to search warrant requirement ............................... 68 9. Remedies from unlawful search and seizure ...................................... 71

XVI.PROVISIONAL REMEDIES ................................................. 72

1. Nature ................................... 72 2. Kinds of provisional remedies ........ 73


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Civil Procedure ........................... 77 GENERAL PRINCIPLES ...................... 77

A. Concept of Remedial Law ............ 77 B. Substantive Law as Distinguished from Remedial Law ............................. 77 C. Rule-making Power of the Supreme Court ....................................... 77 D. Nature of Philippine Courts .......... 78

JURISDICTION ................................ 79

A. Jurisdiction over the parties ........ 80 B. Jurisdiction over the subject matter 80 C. Jurisdiction over the issues .......... 81 D. Jurisdiction over the res or property in litigation ................................ 81 E. Jurisdiction of Courts ................. 82 F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation . 87 G. Totality Rule ........................... 88

I. ...................................................... ACTIONS ................................................. 88 II.CAUSE OF ACTION ................................................. 90

1. Meaning of cause of action .......... 90 2. Right of action versus cause of action .............................................. 90 3. Failure to state a cause of action ... 90 4. Test of the sufficiency of a cause of action ...................................... 91 5. Splitting a single cause of action and its effects .................................. 91 6. Joinder and misjoinder of causes of action ...................................... 91

III.PARTIES TO CIVIL ACTIONS ................................................. 91

1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants ............... 92 2. Compulsory and permissive joinder of parties ...................................... 94 3. Misjoinder and non-joinder of parties .............................................. 94 4. Class suit ............................... 94 5. Suits against entities without juridical personality................................. 95 6. Effect of death of party litigant .... 95

IV. ....................................................... VENUE ................................................. 96

1. Venue versus jurisdiction ............. 96 2. Venue of real actions ................. 96 3. Venue of personal actions ............ 96 4. Venue of actions against non-residents [Rule 5, Sec. 3]............................ 96 5. When the rules on venue do not apply .............................................. 96 6. Effects of stipulations on venue ..... 96

V. ................................................. PLEADINGS ................................................. 97

1. Kinds of Pleadings ..................... 97 2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure .....................101 3. Parts of a pleading ...................101 4. Allegations in a pleading ............102 5. Effect of failure to plead ............103 6. Default .................................104 7. Filing and Service of pleadings .....106 8. Amendment ...........................108

VI. SUMMONS ............................... 110

1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem .........................110 2. Voluntary appearance ...............110 3. Personal service ......................111 4. Substituted service ...................111 5. Constructive service (by publication) ...............................111 6. Extra-territorial service, when allowed ....................................112 7. Service upon prisoners and minors .112 8. Proof of service .......................112

VII. MOTIONS ............................... 113

1. Motions in general ....................113 2. Motions for Bill of Particulars .......114 3. Motion to Dismiss .....................115

VIII. DISMISSAL OF ACTIONS ............. 118

1. Dismissal upon notice by plaintiff; Two-dismissal rule .......................119 2. Dismissal upon motion by plaintiff; effect on existing counterclaim .......119 3. Dismissal due to the fault of plaintiff .............................................119 4. Dismissal of counterclaim, cross-claim or third-party complaint ................119



LAW IX. PRE-TRIAL .............................. 120

1. Concept of pre-trial .................. 120 2. Nature and purpose .................. 120 3. Notice of pre-trial .................... 120 4. Appearance of parties; effect of failure to appear ........................ 120 5. Pre-trial brief; effect of failure to appear ..................................... 121 6. Distinction between pre-trial in civil case and pre-trial in criminal case .... 122 7. Alternative Dispute Resolution (ADR) ............................................. 122

X. INTERVENTION ......................... 122

1. Requisites for intervention ......... 123 2. Time to intervene .................... 123 3. Remedy for the denial of motion to intervene ................................. 123

XI. SUBPOENA ............................. 123

1. Subpoena duces tecum .............. 124 2. Subpoena ad testificandum ......... 124 3. Service of subpoena .................. 124 4. Compelling attendance of witnesses; Contempt .................... 124 5. Quashing of subpoena [Rule 21, Sec. 4]........................................... 124

XII. MODES OF DISCOVERY .............. 125

1. Depositions pending action; Depositions before action or pending appeal ..................................... 125 2. Written interrogatories to adverse parties ..................................... 128 3. Request for Admission ............... 129 4. Production or inspection of documents or things .................................. 129 5. Physical and mental examination of persons .................................... 130 6. Consequences of refusal to comply with modes of discovery ................ 130

XIII. TRIAL .................................. 130

1. Adjournments and postponements 131 2. Requisites of motion to postpone trial ............................................. 131 3. Agreed statement of facts .......... 131 4. Order of trial; reversal of order .... 131

5. Consolidation or Severance of hearing or trial .....................................131 6. Delegation of reception of evidence .............................................132 7. Trial by commissioners ..............132

XIV. DEMURRER TO EVIDENCE .......... 133

1. Ground .................................133 2. Effect of denial .......................133 3. Effect of grant ........................133 4. Waiver of right to present evidence .............................................133 5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case .............................134

XV. JUDGMENTS AND FINAL ORDERS .. 134

1. Judgment without trial ..............135 2. Contents of a judgment .............135 3. Judgment on the pleadings .........136 4. Summary judgments .................136 5. Judgment on the pleadings versus summary judgments .....................137 6. Rendition of judgments and final orders ......................................137 7. Entry of judgment and final order .138

XVI. POST-JUDGMENT REMEDIES ....... 138

1. Motion for New Trial or Reconsideration ..........................138 2. Appeals in General ...................141 3. Relief from judgments, orders and other proceedings .......................153 4. Annulment of Judgments or final orders and resolutions ..................154

XVII. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS ................. 155

1. Difference between finality of judgment for purposes of appeal; for purposes of execution ...................155 2. When execution shall issue .........156 3. How a judgment is executed .......157 4. Properties exempt from execution 159 5. Proceedings where property is claimed by third persons ...............160 6. Rules on Redemption ................161 7. Examination of Judgment Obligor When Judgment is unsatisfied .........162


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8. Examination of Obligor of Judgment Obligor .................................... 163 9. Effect of Judgment or Final Orders 163 10. Enforcement and Effect of Foreign Judgments or Final Orders ............. 164

XVIII. PROVISIONAL REMEDIES .......... 164

1. Nature of provisional remedies .... 164 2. Jurisdiction over provisional remedies .................................. 164 3. Preliminary Attachment ............. 164 4. Preliminary Injunction ............... 168 5. Receivership .......................... 172 6. Replevin ............................... 173

XIX. SPECIAL CIVIL ACTIONS ............ 174

1. Nature of special civil actions ...... 174 2. Ordinary civil actions versus special civil actions............................... 175 3. Jurisdiction and venue .............. 175 4. Interpleader ........................... 175 5. Declaratory Reliefs and Similar Remedies ................................. 176 6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA ............................................. 177 7. Certiorari, Prohibition and Mandamus ................................ 178 8. Quo Warranto ......................... 180 9. Expropriation ......................... 181 10. Foreclosure of Real Estate Mortgage ............................................. 184 11. Partition .............................. 186 12. Forcible Entry and Unlawful Detainer ............................................. 188 13. Contempt ............................ 192

Evidence .................................. 204 I. GENERAL PRINCIPLES .................. 204

A. Concept of Evidence ................. 204 B. Scope of the Rules of Evidence .... 204 C. Evidence in Civil Cases Versus Evidence in Criminal Cases ............. 204 D. Proof Versus Evidence ............... 204 E. Factum Probans Versus Factum Probandum ............................... 204 F. Admissibility of Evidence ............ 204 G. Burden of Proof and Burden of Evidence .................................. 206 H. Presumptions ......................... 206 I. Liberal Construction of the Rules of Evidence .................................. 206

J. Quantum of Evidence (Weight And Sufficiency of Evidence) ................206

II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ................................ 206

A. What Need Not be Proved ........206 B. Matters of Judicial Notice ........207 C. Judicial Admissions ................207 D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance 209

III. OBJECT (REAL) EVIDENCE ........... 209

A. Nature of Object Evidence .......209 B. Requisites for Admissibility .......209 C. Categories of Object Evidence ...210 D. Demonstrative Evidence ..........210 E. View of an Object or Scene ......210 F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 ...........210 G. Rule on DNA Evidence (A.M. No. 06-11-5-SC) ...................................210

IV. DOCUMENTARY EVIDENCE ........... 211

A. Meaning of Documentary Evidence 211 B. Requisites for Admissibility .......211 C. Best Evidence Rule ................212 D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC) .........................212 E. Parol Evidence Rule ...............213 F. Authentication and Proof of Documents ................................214

V. TESTIMONIAL EVIDENCE .............. 216

A. Qualifications of a Witness [Rule 130, sec. 20] ..............................216 B. Competency versus Credibility of a Witness ....................................216 C. Disqualifications of Witnesses ....216 D. Examination of a Witness .........218 E. Admissions and Confessions ......219 F. Hearsay Rule ........................221 G. Opinion Rule ........................223 H. Character Evidence ................223 I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC) ..........224

VI. OFFER AND OBJECTION .............. 225

A. Offer of Evidence ..................225 B. When to Make an Offer ...........225 C. Objection ...........................225 D. Repetition of an Objection .......225



LAW E. Ruling ................................ 225 F. Striking Out of an Answer ........ 226 G. Tender of Excluded Evidence .... 226

Special Proceedings .................. 228 PRELIMINARY MATTERS .................. 228 I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS ........ 230

A. Which court has jurisdiction ..... 230 B. Venue in judicial settlement of estate ..................................... 230 C. Extent of jurisdiction of Probate Court ...................................... 230 D. Powers and Duties of Probate Court 230

II. SUMMARY SETTLEMENT OF ESTATES ............................................... 230

A. Extrajudicial settlement by agreement between heirs, when allowed 230 B. Two-year prescriptive period .... 231 C. Affidavit of Self-adjudication by sole heir ................................... 231 D. Summary settlement of estates of small value, when allowed ............. 231 E. Remedies of aggrieved parties after extra-judicial settlement of estate ... 232

III. PRODUCTION AND PROBATE OF WILL ............................................... 233

A. Nature of probate proceeding ... 233 B. Who may petition for probate; persons entitled to notice .............. 233

IV. ALLOWANCE OR DISALLOWANCE OF WILL ......................................... 234

A. Contents of petition for allowance of will ..................................... 234 B. Grounds for disallowing a will ... 234 C. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate ........ 234

V. ALLOWANCE OR DISALLOWANCE OF WILL ......................................... 234

A. When and To whom letters of administration granted .................234 B. Order of preference ...............234 C. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration .............235 D. Powers and duties of Executors and Administrators; restrictions on the powers .....................................235 E. Appointment of Special Administrator .............................237 F. Grounds for removal of administrator .............................237

VI. CLAIMS AGAINST THE ESTATE ...... 237

A. Time within which claims shall be filed; exceptions .........................237 B. Statute of Non-claims .............237 C. Claim of Executor or administrator against the Estate .......................238 D. Payment of Debts ..................238

VII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS .... 240

A. Actions that may be brought against executors and administrators ..........240 B. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased 240

VIII. DISTRIBUTION AND PARTITION .... 241

A. Liquidation ..........................241 B. Project of Partition ................241 C. Remedy of an heir entitled to residue but not given his share ........242 D. Instances when probate court may issue writ of execution ..................242

IX. TRUSTEES .............................. 242

A. Distinguished from executor or administrator .............................242 B. Conditions of the Bond ............242 C. Requisites for the removal and resignation of a trustee .................242 D. Grounds for removal and resignation of a trustee ...............................243 E. Extent of authority of trustee ...243


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This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. ...... 243

X. ESCHEAT ................................ 243

A. When to file ........................ 243 B. Requisites for filing of petition .. 243 C. Remedy of respondent against petition; period for filing a claim ..... 244

XI. GUARDIANSHIP ........................ 244

A. General powers and duties of guardians ................................. 244 B. Conditions of the bond of the guardian .................................. 244 C. Rule on Guardianship over minors 244

XII. ADOPTION ............................. 248

A. Distinguish domestic adoption from inter-country adoption ................. 248 B. Domestic Adoption Act ............ 248

XIII. WRIT OF HABEAS CORPUS ......... 249

A. Contents of the Petition .......... 250 B. Contents of the Return ........... 250 C. Distinguish Peremptory Writ from Preliminary Citation ..................... 251 D. When Writ Not Proper or Applicable 251 E. When Discharge Not Authorized . 251 F. Distinguished from Writ of Amparo and Habeas Data ......................... 252 G. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) ......... 252

XIV. WRIT OF AMPARO ................... 254

A. Coverage ............................ 254 B. Distinguish from Writ of Habeas Corpus and Habeas Data ................ 254

C. Distinguish Writ of Amparo From Search Warrant ...........................254 D. Who may file .......................255 E. Contents of Return ................255 F. Omnibus Waiver Rule ..............256 G. Effect of Failure to File a Return 256 H. Procedure for Hearing on the Writ 256 I. Institution of Separate Actions ..256 J. Effect of Filing of a Criminal Action 256 K. Consolidation .........................256 L. Interim Reliefs Available to Petitioner and Respondent ..........................256 M. Quantum of Proof in Application for Issuance of Writ: Substantial Evidence .............................................257

XV. CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY ........ 258

A. Differences under the Applicable Rules (Rule 103, Rule 108, RA 9048) ..258 B. Grounds for change of name .....258

XVI. ABSENTEES ........................... 258

A. Purpose of the Rule ................258 B. Who may file; when to file .......259

XVII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY ........ 259

A. Entries subject to cancellation or correction under Rule 108, in relation to RA 9048 ....................................259

XVIII. APPEALS IN SPECIAL PROCEEDING ............................................... 259

A. Judgments and orders for which appeal may be taken ....................260 B. When to appeal ....................260 C. Modes of appeal ....................260 D. Rule on Advance Distribution ....260


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RRREEEMMMEEEDDDIIIAAALLL LAW BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE

Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners

Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer

Hazel Angeline Abenoja|Auditor

COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads

Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures

Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions

Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics

Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise

Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar

Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS

Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations

Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food

Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages

Criminal Procedure


BAR REVIEWER UP LAW 2012

REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Crim Pro Head | Arvin Razon Contributors | Jauhari Azis Ricardo Gutierrez Ofelia Leano Patricia Madarang Ellery Magbato Rafael Santos Jamie Yu LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes

Criminal Procedure REMEDIAL LAW

Criminal Procedure Civil Procedure

Evidence Special Proceedings

I. General Matters II. Prosecution of Offenses III. Prosecution of Civil Action IV. Preliminary Investigation V. Arrest VI. Bail VII. Rights of the Accused VIII. Arraignment and Plea IX. Motion to Quash X. Pre-trial XI. Trial XII. Judgment XIII. New Trial or Reconsideration XIV. New Appeal XV. Search and Seizure XVI. Provisional Remedies

I. GENERAL MATTERS

A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused Jurisdiction over Subject Matter Jurisdiction over the class of cases to which the

particular case belongs; It is defined by law; determined by the extent of the penalty which the law imposes based on the facts as recited in the complaint/information constitutive of the offense charged.

General rule: The courts jurisdiction to try a criminal action is to be determined by the law at the time of the institution of the action. [Palana vs People (2007)] Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction already obtained by a court. - Principle of adherence of jurisdiction/continuing

jurisdiction- jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. Once vested, it cannot be withdrawn or defeated by a subsequent valid amendment of the information. [People vs Chupeco (1965)]

Exception: Where the succeeding statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal, which will continue the proceeding.

Jurisdiction over the Person of the Accused The person charged with the offense must have been brought to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. [Antiporda vs Garchitorena (1999), citing Arula vs Espino (1969)] Acquired either by:

ARREST of person or VOLUNTARY SUBMISSION by the person Voluntary appearance of the accused is accomplished by: His pleading to the merits (filing a motion to quash

(except if the ground is to question the jurisdiction of the court, e.g. re validity of arrest, over the person [Miranda vs Tuliao (2006)]), appearing for arraignment, or entering trial) or

By filing Bail

Jurisdiction Over the Subject Matter

Jurisdiction Over The Person of the Accused

Derived from the law. It can never be acquired solely by consent of the accused.

May be acquired by consent of the accused or by waiver of objections.

The absence of courts jurisdiction over the subject matter may be raised at any stage of the proceeding. The right to make such objection is never waived.

Failure of the accused to make objection in time would constitute a waiver of the objection.

B. Requisites for exercise of criminal jurisdiction WON the court has jurisdiction over the offense by

virtue of the imposable penalty and its nature (SUBJECT MATTER JURISDICTION)

WON the court has jurisdiction over the person of the accused

WON the action has been filed within the TERRITORIAL JURIDICTION of the court - Refers to VENUE (see below) or the place where

the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. [Sec 15(a), Rule 110]

- For transitory/ continuing offenses, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People vs Grospe (1988)]

C. Jurisdiction of Criminal courts How Determined Determined by the allegations of the complaint or

information. By examination of the complaint/information to

ascertain that the facts set out and punishment fall under jurisdiction of court. [People vs Ocaya (1978)]

Jurisdiction over Complex Crimes (2003 Bar): lodged with the court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. [Cuyos vs Hon. Garcia (1988)]


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Military Courts General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units who commit crimes under the RPC or special laws, regardless of who the co-accused or victims are.

Exception: When, as determined by the ordinary court during arraignment, the offense is service-oriented, then it will be tried by the court martial. Provided: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts.

Jurisdiction of Courts

MTC/MeTC/MCTC RTC SANDIGANBAYAN

Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32(1), BP 129]

Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof. [Sec. 32(2), BP 129] - Provided, however, that in

offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. [Sec. 32(2), BP 129]

Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. [Sec. 32, BP 129]

Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution, October 15, 1991] - Violations of traffic laws/rules/

regulations; - Violations of rental law; - Cases where the penalty

prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000.

Exception: a criminal case falling under the aforementioned list where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court/tribunal/body. [Sec. 20, BP 129] Exception: Those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan, which shall hereafter be exclusively taken cognizance of by the latter. [Sec. 20, BP 129]

Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years, or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344]

Cases against minors cognizable under the Dangerous Drugs Act, as amended [RA 8369, Family Courts Act of 1997]

Violations of Republic Act No. 7610, the Child Abuse Act.

Cases of domestic violence against women and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. [RA 8369, Family Courts Act of 1997]

Violations of intellectual property rights [A.M. No. 03-03-03-SC (2003); RA 8293]

Money Laundering Cases [RA 9160] Exception: those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan

Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249: violations of RA 3019, RA 1379, and Chapter II, Section 2, Title VII, Book II of the RPC Officials enumerated are the ff: - Officials of the executive

branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (RA 6758)

- Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989

- Members of the judiciary without prejudice to the provisions of the Constitution

- Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution

Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office

Requisites: - Accused is any one of the

public officials enumerated in subsec. (a) of Sec. 4 of Ra 8249, grade 27 or higher

- Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes

- The offender commits such other offense or felony in relation to his office

Cases filed in pursuant to and in connection with EO 1, 2, 14, 14-A, issued in 1986


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MTC/MeTC/MCTC RTC SANDIGANBAYAN

Violations of BP 22 [A.M. No. 00-11-01-SC (2003)]

Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129]

4. When injunction may be issued to restrain criminal prosecution General rule: The prosecution of a criminal case, even at the stage of preliminary investigation and reinvestigation, may not be enjoined by prohibition/injunction.

Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. Exceptions (Bar 1999) To afford protection to the constitutional rights of

the accused; Necessary for the orderly administration for

justice or to avoid multiplicity of actions; There is a prejudicial question which is sub judice; The acts of the officer are without or in excess of

authority; The prosecution is under an invalid

law/ordinance/regulation; When double jeopardy is clearly apparent; The court has no jurisdiction over the offense; A case of persecution rather than prosecution; The charges are manifestly false and motivated by

the lust for vengeance; There is clearly no prima facie case against the

accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]

Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

II. PROSECUTION OF OFFENSES

1. Criminal actions, how instituted (Bar 1999)

In general A criminal action is commenced in this jurisdiction by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation.

Institution and Commencement of actions For offenses which require a preliminary

investigation pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine), the criminal action is instituted by filing the complaint with the appropriate officer for PI. [Sec. 1(a), Rule 110]

In offenses cognizable by inferior courts, the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. [Sec. 1(b), Rule 110]

In Metropolitan Manila and other chartered cities, the complaint may be filed with the office of the public prosecutor unless otherwise provided in their charters. [Sec. 1(b), Rule 110]

The criminal action is commenced when the complaint or information is filed in court.

Effect of the Institution of criminal action on the prescriptive period (Bar 1993) General Rule: The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. [Sec. 1, Rule 110] Prescription is interrupted with the filing of the case even if the court is without jurisdiction, even if it be merely for purposes of preliminary examination or investigation. [Francisco vs CA (1983)] Exception: The Court held that the interruption of the prescriptive period upon the institution of the complaint under Sec.1 of Rule 110 does not apply to cases for violation of special acts and municipal ordinances. This is governed by Act No. 3326 and is interrupted only by the institution of judicial proceedings (not administrative proceedings) for its investigation and punishment. [Zaldivia vs Reyes (1992)] However, in Sanrio Company Ltd. vs Lim (2008), the SC confirmed that under Section 2 of Act 3326, the prescriptive period for violation of special laws starts on the day such an offense was committed and is interrupted by the institution of proceedings against the respondent. In this case petitioner filed its complaint-affidavit with the TAPP of DOJ, and as such the prescriptive period was tolled. In Panaguiton, Jr. vs DOJ (2008), the Court declared that they cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. It can also be effectively tolled by the filing of the BP 22 petition before the Office of the Prosecutor. In SEC v Interport Resources Corporation (2008), the Court held that the prescriptive period is interrupted by commencing the proceedings for the prosecution of the accused, accomplished by initiating the preliminary investigation by the SEC, which was declared as equivalent to the PI conducted by the DOJ in criminal cases.


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Note: The above cases involve violation of special laws. [Riano]

2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000) General Rule: All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor [Rule 110, Sec. 5] The public prosecutor is a quasi-judicial officer and a representative of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. Exception: In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the courts approval. The authority will continue up to the end of the trial even in the absence of a public prosecutor until revoked or withdrawn. The private prosecutor is the attorney representing the offended where the civil action for recovery of civil liability is instituted with the criminal case.

Cases that cannot be prosecuted de oficio Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party are the following: Adultery/concubinage [Sec. 5, Rule 110] Seduction, abduction, acts of lasciviousness Defamation which consists of imputation of any of

the foregoing offenses. Rationale: The aggrieved party might prefer to suffer the outrage in silence rather than go through the scandal of a public trial.

Offended parties who can file the complaint In adultery and concubinage The offended

spouse. Both guilty parties should be included if both are alive. [Sec 5, Rule 110] However, a criminal prosecution will not prosper if the offended party consented to the offense.

Seduction, abduction and acts of lasciviousness The offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by them. [Sec 5, Rule 110]

In oral defamation can only be brought upon instance and upon complaint of the offended party.

Effect of Death of offended party

- Once a complaint is filed, the will of the offended party is ascertained and the action

proceeds. Death after filing the complaint would not deprive the court of the jurisdiction to try the case.

- The State shall initiate the action on behalf of the offended party in case of his death/incapacity and he has no known parents/grandparents/ guardians.

- In adultery/concubinage, such death does not extinguish the criminal liability of accused.

Desistance by offended party

- It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity.

- An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action.

Pardon by offended party

- In rape, seduction, abduction and acts of lasciviousness of a minor The pardon will be effective if given by both parents and the offended party.

- In seduction, abduction and acts of lasciviousness - Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5]

- The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna (1902)]

- If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender.

General rule: Pardon must be made before the filing of the criminal complaint in court. Exception: In rape, where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence.

If there is more than one accused, the pardon

must be extended to all offenders. Marriage between offender and offended party. Pardon or desistance extinguishes civil liability. Pardon or express condonation has the effect of

waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations.

Under Sec. 27 of RA 7610, complaints on cases of unlawful acts mentioned in the law committed against children, may be filed by any of the ff: Offended party Parents or guardians Ascendant or collateral relative within the third

degree of consanguinity Officer, social worker, or representative of a

licensed child-caring institution Officer or social worker of the DSWD Barangay chairman


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At least 3 concerned, responsible citizens where the violation occurred.

3. Criminal actions, when enjoined General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction.

Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Exceptions (Bar 1999) To afford protection to the constitutional rights of

the accused; Necessary for the orderly administration for

justice or to avoid multiplicity of actions; There is a prejudicial question which is sub judice; The acts of the officer are without or in excess of

authority; The prosecutions is under an invalid

law/ordinance/regulation; When double jeopardy is clearly apparent; The court has no jurisdiction over the offense; A case of persecution rather than prosecution; The charges are manifestly false and motivated by

the lust for vengeance; There is clearly no prima facie case against the

accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]

Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

4. Control of prosecution General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. [Sec. 5, Rule 110] Exception: In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, The private prosecutor may be authorized in

writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.

The authority may be revoked or withdrawn. [Sec. 5, Rule 110]

Criminal action is still prosecuted under the direction and control of the public prosecutor. [Riano]

Extent of the prosecutors control Prior to the filing of the case

- The prosecutor has the discretion to file or not to file a criminal action.

- The prosecutor is vested with discretion as to who is to prosecute and for what; he cannot be compelled to file a particular information. However, if the evidence presented at the PI leaves no doubt as to what crime was committed and by whom, then mandamus is available to compel the prosecuting officer to file the corresponding complaint or information

in accordance with the evidence [Bernabe vs Bolinas, (1966)].

After a case is filed

- Once a criminal case has been filed in court, it is the prosecutors duty, regardless of his personal convictions or opinions, to proceed with the presentation of his evidence to enable the court to arrive at its own judgment as to the accuseds culpability.

- After an action has been filed in court, the prosecutor has no power to dismiss the action without the courts consent.

While the Secretary of Justice has the authority to review the acts of his subordinates in criminal cases, the court has always has the discretion to try a motion to dismiss which the prosecution may file after the Secretary of Justice reverses an appealed decision. [Roberts Jr. vs CA, (1996)] The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice.

Effects of the lack of intervention by the fiscal in the trial Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it cant be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People vs Beriales, (1976)].

5. Sufficiency of Complaint or Information

Complaint defined 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. [Sec. 3, Rule 110] Persons authorized to file the complaint:

- Offended party - Any peace officer - Other public officer charged with the

enforcement of the law violated. Filed in the name of the People of the Philippines.

[Sec 2, Rule 110] Complaint refers to private crimes. Criminal cases under the Revised Rules on

Summary Procedure shall be either by complaint or by information; provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of an information (which means by the prosecutor), except when the offense cannot be prosecuted de oficio.


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The complaint must be under oath. But lack of oath is not a formal defect and will not invalidate a judgment.

Information defined An accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court. [Sec. 4, Rule 110; People vs Cinco (2009)] It is filed by the prosecutor and need not be under

oath. But it must be signed and subscribed by the fiscal/prosecutor.

What the prosecutor signs under oath is the certification that he has conducted the required preliminary investigation (PI). Lack of certification does not invalidate judgment. [People vs. Bulaong (1981)]

Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction. Lack of authority of the officer signing the information is an infirmity in the information, and cannot be cured by silence, acquiescence, or even by express consent. [Cudia v CA (1998)]

Information refers to public crimes. The "complaint" referred to in Rule 110

contemplates one filed in court, not with the fiscal. In that case, the proceeding must be started by the aggrieved party himself.

As a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it.

But a "complaint" filed with the fiscal prior to a judicial action may be filed by any competent person. [Ebarle v. Sucaldito (1987)]

Form & Substance Sufficiency of complaint or information A complaint or information is sufficient if it states: the name of the accused; the designation of the offense given by the

statute; the acts or omissions complained of as constituting

the offense; the name of the offended party; the approximate date of the commission of the

offense; and the place where the offense was committed. [Sec.

6, Rule 110] Test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty, of the offense charged. [Lazarte, Jr. vs Sandiganbayan (2009)] The purpose of the requirement for the informations validity and sufficiency is to enable the accused to suitably prepare for his defense, since he is presumed to have no independent

knowledege of the facts that constitute the offense. [People vs Cinco (2009)] Name of the accused It must include the name and surname of the

accused, as well as any appellation or nickname by which he has been or is known.

If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. His true name will be inserted if eventually disclosed or appears in some manner to the court. [Sec. 7, Rule 110]

If there are more than 1 accused, name all of them. [Sec. 6, Rule 110]

Place of commission of offense General rule: It is sufficient if it can be understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court. Exception: If the particular place where it was committed: Constitutes an essential element of the offenses

charged; OR Is necessary for its identification. [Sec. 10, Rule

110] Time of commission of the offense General rule: The precise date is not necessary. Exception: When the date is a material ingredient of the offense. [Sec. 11, Rule 110] The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly. Need not be exact

- As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused, then the information is valid.

When date is so remote: defective - The allegation in the information of on or

about the year 1992 is defective as it violates Sec. 11, Rule 110 and the accuseds right to be informed of the nature and cause of the accusation against him, because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992.

Remedy in case of defect in averment of time - A motion for a bill of particulars under Sec. 6,

Rule 116. - The accused may also file a MTQ on the

ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him. But defect in the date is not a ground for MTQ under Rule 116.


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Name of the offended party [Sec. 12, Rule 110] If an offense against person: Name and surname;

nickname/appellation; fictitious name, if real name is unknown.

If an offense against property: - If name is unknown, particularly describe the

property to identify the offense; - If the name is later known, insert it; - If a juridical person, name or known name;

without need to aver that it is juridical. Where the name of the injured party is necessary

as matter of essential description of the crime charged, the complaint must invest such person with individuality by either naming him or alleging that his name is unknown.

In crimes against property, ownership must be alleged as matter essential to the proper description of the offense. [US vs Lahoylahoy (1918)] Designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. [Sayson vs People (1988), cited in Ricarze vs CA (2007)]

A mistake in the name of the accused is not equivalent to a mistake in the identity especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. [People vs Amodia (2009)]

An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial. [Frias vs People (2007)] Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved for a bill of particulars or for quashal of information before arraignment, otherwise he is deemed to have waived his objections to such a defect. [People vs Teodoro (2009)]

6. Designation of Offense Aver the acts and omissions constituting the

offense. Specify the qualifying and aggravating

circumstances for them to be considered in the imposition of the penalty. [Sec. 8 and 9, Rule 110; People vs Tampos (2009)] (Bar 2001)

This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof. In case of a conflict between the designation of the crime and the recital of ultimate facts constituting the offense, the latter prevails over the former. [People vs Quemeggen (2009)] Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to

make sure the accused fully understands what he is being charged with. [Guy vs People (2009)]

7. Cause of the Accusation A variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. [Matrido v People (2009)]

Purpose To enable a person of common understanding to

know what offense is intended to be charged; To enable the court to pronounce proper

judgment.

Allegations required to safeguard right to be informed Allegations must be in ordinary or concise

language, sufficient to enable a person of common understanding to know what offense is being charged.

This must be done both for the offense charged and the circumstances involved in its commission. [Sec. 9, Rule 110]

The prosecutors characterization of the crime is immaterial and purposeless. The facts stated in the body of the complaint/information determine the crime of which the accused stands charged and for which he must be tried.

Qualifying and aggravating circumstances must be alleged; otherwise, they are not to be considered even if proven during the trial. [Sec. 8, Rule 110]

What to allege Where the law prescribes exceptions

General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove.

Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions.

Where exceptions form as ingredients of offense If the exception is needed for defining the offense, then the information should negate the exception. [US vs Chan Toco (1908)] Where complex crime is charged Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the


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defendant can only be convicted of the offense proven.

8. Duplicity of the Offense; Exception (Bar 2005) General rule: The information must charge only one offense. [Sec. 13, Rule 110] Objection to a complaint or information which charges more than one offense must be timely interposed before trial. [Sec 3, Rule 120] Failure to do so constitutes a waiver, [People v Tabio (2008)] and the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense. [Sec 3, Rule 120] Exception: When the law prescribes a single punishment for various offenses Purpose: To give the accused the necessary knowledge of the charge to enable him to prepare his defense. Hence, when an information charges more than one offense, the accused may file a MTQ on the ground of duplicity of offenses.

Several modes of committing offense not duplicitous General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. Exceptions: Complex crimes Special complex crimes Continuous crimes Crimes susceptible of being committed in various

modes Crimes which another offense is an ingredient

[People vs Camerino (1960)]

9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002)

Amendments in form and substance before plea General rule: It must be made before the accused enters his plea. Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court. The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order.

Amendments made after plea and during trial

Formal can only be made under two conditions - Leave of court must be secured - It does not cause prejudice to the rights of the

accused. [Sec 14, Rule 110] The test as to WON a defendant is prejudiced by the amendment of information is o WON a defense under the information as it

originally stood would be available after the amendment is made, and

o WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. [People vs Casey (1981)]

Substantial proscribed. [People vs Zulueta

(1951)] - Substantial matter in a complaint is the recital

of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. [Almeda vs Villaluz (1975)]

- Exception: if it is beneficial to the accused. [Ricarze vs CA (2007)]

Substitution a complaint or information may be substituted 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, provided the accused would not be placed in double jeopardy. [Sec 14, Rule 110] Subject to the Sec 19, Rule 119, when it

becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information.

Distinction between substitution and amendment (Bar 1994)

AMENDMENT SUBSTITUTION

Formal or Substantial changes

Substantial change form original

Can be effected without leave of court

Must be with leave of court

Only as to form, there is no need for another PI and retaking of plea

Another PI is entailed and accused has to plead anew

Amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy

Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy


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10. Venue of criminal actions

Place where action is to be instituted Venue of criminal actions shall be instituted and tried in the court of the municipality or territory where the offense was committed; or where any of its essential ingredients occurred.

[Sec. 15(a), Rule 110]

How venue or jurisdiction determined Venue in criminal cases is jurisdictional, being an

essential element of jurisdiction. One cannot be held to answer for any crime

committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. The place where the accused was arrested is of no moment. [People vs Enriquez]

Where crime is continuing A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. [People vs Gorospe (1984)]

Written defamation Action to be instituted and filed in the RTC of the

province or city where the libelous article is printed and first published.

Additional rules: if offended party is - a private individual, the action may also be filed

in the province where he actually resides at the time of the commission of the offense.

- a public officer, the action may be filed in the court of the province or city where he held office at the time of the commission of the offense. [Art. 360, RPC]

Note: If information is filed in the place where the defamatory article was printed or first published, it must state that the libelous material was either printed or first published in the place of the filing of the information, and not merely allege that the paper or magazine is of general/considerable circulation. [Riano on Foz, Jr. v People (2009)]

Offense committed on railroad Action to be instituted and filed in the court of

any municipality or territory where said train, aircraft or vehicle passed thru, including place of departure or arrival. [Sec. 15(b), Rule 110]

Rule applies only when the crime was committed in the COURSE of the trip.

Offense committed on a vessel Action may be instituted and tried in the court of the first port of entry or any municipality or territory where the vessel passed during such voyage, subject to generally accepted principles of international law. [Sec. 15(c), Rule 110]

Offense committed outside the Philippines Cognizable by the court where the criminal action is first filed. [Sec. 15(d), Rule 110]

11. Intervention of offended party [Sec. 16, Rule 110] General rule: An offended party has the right to intervene in the prosecution of a crime Note: This is still subject to the control of the prosecutor. [Phil. Rabbit Bus Lines vs People (2004)] Exceptions: Where, from the nature of the crime and the law

defining and punishing it, no civil liability arises in favor of a private offended party.

Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.

Offended party has already instituted action - Any move on the part of the complainant or

offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic vs Sunga (1988)]

- When private prosecutor is allowed to intervene: [A.M. No. 02-2-07-SC] o All criminal actions either commenced by

complaint or by information shall be prosecuted under the direction and control of a public prosecutor.

o In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.

- The private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. [Sec. 5, Rule 110]

III. PROSECUTION OF CIVIL ACTION

1. Rule on implied institution of civil action with criminal action

How instituted

General rule: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action. [Sec. 1, Rule 111] Reason: principle that every person criminally liable for a felony is also civilly liable. [Art. 100, RPC]


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Exception: If the offended party: Waives the civil action; Institutes the civil action prior to the criminal

action; or Reserves the right to institute it separately [ABS-

CBN Broadcasting Corporation vs Ombudsman (2008)]

Exception to this exception Claims arising out of a dishonored check under BP

22 where no reservation to file such civil action separately shall be allowed. (Bar 2001; 2002)

Claims arising from an offense which is cognizable by the Sandiganbayan where there is likewise no right to reserve the filing of the civil action separately from the criminal action. [Sec. 4, PD 1606, as amended by RA 8249]

An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute it, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. [Garcia vs Florido (1973)]

Only civil liability arising from the crime charged as a felony is deemed instituted with the criminal action. Civil actions referred to in Civil Code 32, 33, 34, and 2176 shall remain separate, distinct and independent of any criminal prosecution which may be based on the same act. [Phil. Rabbit Bus Lines Inc vs People (2004)]

Does not include civil liability that the offended party waives, reserves or those instituted prior to the criminal action.

2. When civil action may proceed independently

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.

Procedure for making the reservation: - Filing a manifestation in the criminal case that the

offended party is reserving his right to file a separate civil action;

- Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action.

The rule requiring reservation does not apply to Arts. 32-34 and 2176, CC. These civil actions can be filed and prosecuted independently of the criminal action.

No counterclaim, cross-claim or 3rd-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. [Sec. 1, Rule 111]

3. When separate civil action is suspended

After the criminal action has been commenced, the

separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. [Sec 2, Rule 111]

The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime.

Civil actions mentioned in Sec. 3, Rule 111 under Arts. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

4. Effect of the death of accused or convict on civil action [Sec. 4, Rule 111; ABS-CBN Broadcasting vs Ombudsman (2008)]

If death is before arraignment Dismissal of case without prejudice to filing of civil action against estate of the deceased.

If death is after arraignment and during pendency of criminal action Extinguishes civil liability arising from the delict. Exception: Independent civil actions instituted under Arts. 32, 33, 34 and 2176 of the Civil Code, or those 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 his estate.

If death is while appeal is pending extinguishes criminal liability and civil liability based thereon. If the civil liability is predicated on a source of obligation other than delict, it survives notwithstanding the death of the accused [People vs Ayochok (2010)]

5. Prejudicial Question (1999 Bar)

Elements of prejudicial question General Rule: a prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal.

The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal.

It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. [Ras vs Rasul (1980)]

Rationale: to avoid two conflicting decisions in the civil case and in the criminal case. [Sy Thiong Siou vs Sy Chim (2009)]


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Effect (Bar 1995, 1999, 2010) General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence. Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case.

Requisites [Sec. 7, Rule 111] Previously initiated civil action involves an issue

similar or intimately related to the issue raised in the subsequent criminal action; and

The resolution of such issue determines WON the criminal action may proceed.

Where to file petition [Sec. 6, Rule 111] Office of the prosecutor (in the PI stage); Court conducting the PI; or Court where criminal action has been filed for

trial, at any time before the prosecution rests. Note: The Rule precludes a motu proprio suspension of the civil action. [Riano]

6. Rule on Filing Fees in civil action deemed instituted with the criminal action

Filing fees of civil action deemed instituted in criminal action Filing fees apply when damages are being claimed by the offended party. General Rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. [Sec. 1, Rule 111] When the amount of damages, other than actual,

is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial;

In any other casei.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages. [General vs Claravall (1991)]

Exceptions: In criminal actions for violation of BP22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved. [A.M. No. 04-2-04]

IV. PRELIMINARY INVESTIGATION

1. Nature of right 2. Purposes of preliminary investigation

3. Who may conduct determination of existence of probable cause

4. Resolution of investigating prosecutor

5. Review 6. When warrant of arrest may issue 7. Cases not requiring a preliminary

investigation 8. Remedies of accused if there was no

preliminary investigation

9. Inquest

1. Nature of right

Preliminary investigation, defined It is an inquiry or proceeding to determine

whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. [Sec. 1, Rule 112]

The conduct of a PI is the initial step towards the criminal prosecution of a person.

Nature of the Right to PI It is a statutory right in those instances where it is

required, and to withhold it would violate the constitutional right to due process. [People vs Oandasa (1968)]

It is part of the guarantees of freedom and fair play. [La Chemise Lacoste, S.A. vs Fernandez (1984)]

The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right but a substantial right

Right to Preliminary Investigation The right to preliminary investigation is a personal

right which the accused may waive either expressly or by implication.

When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court. [People vs Perez (1960)]

The right is deemed waived by: - the failure to claim it before the accused

pleaded [People vs Magpale (1940)] - silence of the accused [People vs Mijares

(1951)] - failure to request it within 5 days from time he

learns of the filing of the complaint/information - when accused already posted bond for his

release and subsequently went to trial without claiming his right to PI [People vs Selfaison (1961)]

- a fortiori absence of the accused [Sec. 3(d), Rule 112; de Guzman vs People and Sandiganbayan (1982)]

An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that


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he raises the challenge before entering his plea [Sec. 26, Rule 114].

2. Purposes of preliminary investigation To determine whether or not a crime has been

committed and whether or not there is probable cause to believe that the accused is guilty. [Raro vs Sandiganbayan (2000)]

To protect the accused from the inconvenience, expense and burden of defending himself in a formal trial

To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials. [Tandoc vs Resultan (1989)]

Scope of PI A PI is merely inquisitorial, and it is often the

only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and does not place the persons against whom it is taken in jeopardy.

It is not the occasion for the full and exhaustive display of the parties evidence [Raro vs SB (2000)]

The accused has no right to cross-examine the witnesses which the complainant may present. [Paderanga vs Drilon, 1991]

A PI takes on an adversarial quality, because its purpose is to secure the innocent against hasty, malicious 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 before an accused person is placed on trial. [Raro vs SB (2000)]

3. Who may conduct determination of existence of probable cause Generally [Rule 112, Sec. 2 as amended by A.M.

No. 05-8-26-SC] - Provincial/city prosecutors and their assistants; - National and regional state prosecutors; - Other officers as may be authorized by law.

COMELEC, when vested COMELEC may conduct investigation as regards election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec. 265, Omnibus Election Code] The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Such involves the exercise of administrative powers, thus the COMELEC en banc, may in the first instance, may act on the investigation and subsequently decide on the filing of the criminal action. [Baytan vs COMELEC (2003)]

Ombudsman

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. [Sec. 12, Art. XI, Consti]

The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well.

- If the offense comes within the jurisdiction of

regular courts, the Ombudsman may endorse the same to, and deputize the provincial/ city prosecutor who has jurisdiction over the case for proper preliminary investigation.

- If the offense is cognizable by the Sandiganbayan, the preliminary investigation has to be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman requiring that the complaint must be under oath.

Note: RTC judges have NO power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and MCT

UP Remedial Law Reviewer 2012 - 2014 upload

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