2021- VER.1 CRIMINAL PROCEDURE MDJ's Criminal Procedure Notes 2021-ver.1 LEGEND: White lines are for demonstration or illustration under one topic. Green line and arrow contemplates of a flow (procedurally what is next) Red line contemplates of fatal procedure NOTES www.milesfajardo.com J.Leonen cases and very likely to appear in exams Light blue boxes are super important infos Light green boxes are part of procedural illustrations "If this note finds its way to you I wish that you may be blessed with strength, courage, and perseverance to study. Only a few are willing to take the challenge and only a few are privileged to have it." - MDJ This criminal procedure notes is a compilation of scholarly works by different law professors, authors & prevailing jurisprudence. Use them at your own risk and advantage. I'm not selling this notes but a little donation for gratitude will be highly appreciated. -Sharing is caring- I'm making notes on various law subjects. If this type of note is really helpful to you, you may donate a little amount of money to assist me in creating more to aid others who require such illustrative legal notes. To donate here is my gcash number: 09179608482 CRIMINAL PROCEDURE Our Criminal Procedure is an Adversarial system. It contemplates two contending parties before the Court which hears them impartially and renders judgment after trial. CASE FLOW COMMISSION OF THE CRIME Crimes that do not requires Preliminary Investigation Crimes that requires Preliminary Investigation Preliminary Investigation Filing of Information Issuance of warrant 1 Chartered City 2 Provincial 3 Filing of Complaint with Prosecutors's office Direct Filing of Complaint in Court Crimes committed in flagrante delicto or hot pursuit Filing of Information NOTES www.milesfajardo.com Arrest Arrest Issuance of warrant Arrest Inquest Proceedings Arraignment Arrest Arraignment Filing of Information Pre-Trial Arraignment Pre-Trial Commitment Order Trial Pre-Trial Trial Arraignment Judgement Trial Judgement Pre-Trial Appeal Judgement Appeal Trial Service of Sentence Appeal Service of Sentence Judgement Service of Sentence 1 Issuance of warrant Appeal Service of Sentence Filing of Information Exercise of Criminal Jurisdiction Subject Matter | Person of the Accused | Territory Jurisdiction over: Subject Matter Conferred by law. Thus, can't be subject to waiver, agreement or consent of the parties. (Conjuangco. Jr. v Republic, 686 SCRA 472) Jurisdiction by Estoppel? (exception to the rule that Jurisdiction over subject matter can't be waived) Available to Criminal Case (People v. Regalario). If factual circumstances are same as in Tijam vs. Sibonghayon. Requisites: 1. Losing party participated in the proceeding 2. Ask an affirmative relief in the court 3. losing party only question the jurisdiction of the court after 15 years How determined? By the allegations in the information; it is determined by penalty imposable not the penalty imposed. ONCE JURISDICTION is ATTACHED it will CONTINUE up to the termination of the case regardless of what happen in the interim. Determined by the at the commencement of the criminal action not the law in effectat the time of the commission of the offence. Exception: SandiganBayan cases, it is determined at the time of the commission of the offense. 2 NOTES www.milesfajardo.com Person of the Accused Territory How acquired? Art 2 of RPC Voluntary Appearance Warrant Voluntary Appearance: 1. Asking affirmative relief from the Court 2. Filing of motion to quash, Except when the ground is lack of Jurisdiction over the person of the accused 3. Appearance of Counsel during arraignment 4. Entry of appearance of counsel for the accused 5. Act of posting bail without qualification Custody of the law vs Jurisdication over the person of the accused: When you ask something to court, like motion to quash or dismiss, it is understood that you submitted your self to the court and jurisdiction over the person is acquired. David vs Agbay (March 18, 2015) Custody of law is Required before the court can act upon the application of bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application thereof constitutes a waiver of defense of lack of jurisdiction over the accused. Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention Custody of the law Jurisdiction over the Person Accomplished either by arrest or voluntary surrender. Acquired upon his arrest or voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant (Miranda v.Tuliao, 520 Phil. 907, 919 (2006). On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. Article 2. Application of its provisions. - Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. Criminal Jurisdiction of Courts MTC - Metropolitan Trial Court/ Municipal trial circuit court/ Municipal Circuit Trial Court RTC - Regional Trial Court SB - Sandigan Bayan CTA - Court of Tax Appeals MTC NOT EXCEEDING 6 YRS Over all offenses punishable with imprisonment not exceeding six (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: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof VIOLATION OF CITY ORDIANCES Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction SB EXCEEDING 6 YRS Those where the penalty provided by law exceeds six (6) years imprisonment irrespective of the fine; Or even not exceeding 6 yrs, Certain cases: Violations of RA 9165 (Dangerous Drugs Act) Violation of IPL (Intellectual property law) Defamation under Art. 360 Violation of 9262 Anti-money laundering Violation of Cyber-Crime Law Those criminal cases falling under the appellate jurisdiction of SB Violation of Election Laws Who committed the offense Salary Grade 27 Elements of Jurisdiction of SB Know the crime committed RTC Who committed the offense Two elements must concur Know the crime committed Violations of RA 3019 – Anti-Graft and Corrupt Practices Act RA 1379 – Forfeiture Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees committed in relation to the office. Plunder Chapter II, Section 2,TitleVII, Book 2 of RPC Direct Bribery (Art. 210) Indirect Bribery (Art. 211) Qualified Bribery (Art. 211-A) Corruption of public official (Art. 212) (1) Officials of the executive branch occupying the positions ofregional director and higher, otherwise classified as Grade ’27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758),specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads: (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent (full pledge Colonel and higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government owned or controlled corporations, state universities or educational institutions or foundations. 3 NOTES www.milesfajardo.com (2) Members of Congress and officials thereof classified as Grade 27’ and higher under the Compensation and Position ClassificationAct of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade ’27’ and higher under the Compensation and Position Classification Act of 1989. SB Illustrative Cases “Jurisdiction over private persons” Geduspan vs. People, 451 SCRA 187 – Petitioner is a manager of Philhealth. Sandiganbayan has jurisdiction. It fall within Par. 1(g). The controlling doctrine is that private person may be charged in conspiracy with public officers. People vs. Sandiganbayan, 630 SCRA 489 – although member of Sangguniang Panglunsod, even with salary grade of only 26, Sandiganbayan has jurisdiction. Hence, it is a settled rule that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for violation RA 3019 (Uybocovs. People, December 10, 2014). OMBUDSMAN Even if the public officer prior the filing of an information died, the Graft Court will not be divested of its jurisdiction Who conduct investigation? Serana vs. Sandiganbayan, 542 SCRA 224 – student regent is within the jurisdiction of Sandiganbayan. So long as you are discharging governmental function, despite the fact that you are not receiving a salary, you are a public officer. Being a regent is within the category of Par. 1(g). “Offenses committed in relation to the office” When is an offense committed in relation to the office? Office must be a constituent element of the crime. - Example: Chapters 2 to 6, Title VII of the RPC – from Art. 204 to 245 NB: In these offenses public office or being a public officer is an element of the crime. If the public office is not an element of the crime, may an offense be still “classified as offense committed in relation to the office” so as to confer jurisdiction to SB? YES, if there is an intimate connection between the office and the offense or that the office was used in the commission of the crime (Sanchez vs. Demetriuo, 227 SCRA 627, 645). Nota Bene: Allege damages to the goverment or any bribery; or Allege damages to the goverment or any bribery arising from the same or closely related trasactions or acts in an amount not exceeding 1 Million pesos. RTC is the Court with Jurisdiction Thus, if you use your office to commit any other crime, rape, acts of laciviousness, etc... it falls within the SB. Esteban vs. Sandiganbayan, 453 SCRA 236 The accused here was charged with acts of lasciviousness on the basis of the complaint filed by a casual employee assigned to his office. not exceed 6 yrs De Lima vs. Guerrero, GR No. 229781, Oct 10, What is the crime for which De Lima was indicted 2017 of? For violation of Section 5, in relation to Section 3 (jj), Section 26 (b) and Section 28, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 Accused De Lima... by taking advantage of their office... with use of power, position, and authority, demand, solicit, and extort money from high profile inmates in new bilibid prison. This clearly suggest that it falls unto the jurisdiction of SB. NOTES www.milesfajardo.com RTC exceeds 6 yrs SB shall have Appellate Jurisdiction “We believe that the mere allegation in the amended information that the offense was committed by the accused public officer "in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused's official duties.” (Lacson vs. Executive Secretary, 301 SCRA 298). 4 -and- In cases where none of the accused are occupying positions corresponding to Salary Grade ’27’ or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. MTC The SC ruled that the Sandiganbayan has jurisdiction because the information alleged that the crime could not have been committed had the accused not used his position or office This intimate relation between the offense charged and the discharge of official duties "must be alleged in the information.” However, SC said, The designation of the RTC as the court with the exclusive jurisdiction over drugrelated cases is apparent in the following provisions: Articles 20, 61, 62, 90. Needs P.I Prosec & others primary jurisdiction Concurrent jurisdiction Thus, Ombudsman and others such as Prosecutor (DOJ), and authorized agencies of the government (NBI, PCGG), can concurrently exercise preliminary investigation and prosecution. Example: Which court has Jurisdiction? not exceed MTC 6 yrs Appeal RTC exceeds 6 yrs RTC R. 42 - Petition for Review SB shall have Appellate Jurisdiction The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court ARREST APPLY (RA 10660, amending PD 1606 and RA 8249) Play of rules Honasan II vs. DOJ Panel, April 13, 2004 Ombudsman Primary Jurisdiction to Investigate and prosecute Public Officers and employee involving violations of penal laws. If Case is within Exclusive Jurisdiction of SB Maybe filed first to Prosecutor's office for purpose of P.I because jurisdiction is concurrent. But, after resolution it should be approved by the Ombudsman before filing it with the SB With APPROVAL X, a public officer committed a crime of graft and corruption/ bribery/ , however, it does not fall under the jurisdiction of SB, because salary grade is only 26 or even grade 27 but Info does not allege damage to gov't nor it is allege but does not exceed 1M. . In Flagrante Delicto Ombudsman (RA 10660, amending PD 1606 and RA 8249) If Information does not Nota Bene: Accused is a PUBLIC OFFICIAL Cognizable by SB The investigation and prosecution must be approved by the Ombudsman because they have the PRIMARY jurisdiction over the cases falling under SB's Jurisdiction. If Case is NOT within Exclusive Jurisdiction of SB Filed to Prosecutor's office No need APPROVAL It does not need approval in the Ombudsman. Prosecutor may investigate and prosecute without the consent or approval of the Ombudsman To summarize, Ombudsman has the Primary Jurisdiction to Investigate Public Officers and employee involving violations of penal laws falling under the Jurisdiction of SB. The DOJ represented by Prosecutor and other authorized government agencies may concurrently Investigate and they do not need to ask for approval of the Ombudsman if the case is not within exclusive jurisdiction of SB, otherwise, it has to be approved by the Ombudsman. Interesting case: The Office of the Solicitor General (OSG), which is representing the Secretary of Justice, agrees with petitioners that prior approval by the Ombudsman is not required for the investigation and prosecution of the criminal case against the accused policemen (not falling under exclusive jurisdiction of SandiganBayan). The OSG correctly cites the case of Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, where the Court held that the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors. (Alawiya vs. Datumanong, 585 SCRA 267) RULE 110 Prosecution of Offenses Effect of the institution of criminal action on prescriptive period? The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws How is criminal action instituted? Section 1, Rule 110. Requires Preliminary Investigation Not requires Preliminary Investigation Filing with the proper officer for the purpose of conducting preliminary investigation Chartered City Provincial File Complaint with Prosecutor's Office Imposable penalty 4 years, two months and one day or more (Section 1, Rule 112) Direct filing of Complaint in Court Imposable penalty is LESS THAN 4 years, two months and one day or more (Section 1, Rule 112) Who Must Prosecute Criminal Actions? THE PROSECUTOR All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. - Section 5, Rule 110. Determine whether there is a prima facie case exists. Decide which of the conflicting testimonies should be believed Determine which witnesses shall be presented in Court. Determine what to charge Determine whom to charge Proceedings conducted by the court IN ABSENCE of the prosecutor is VOID! (Pinote vs Ayco, 477 SCRA 409) SC reminded the trial court that the prosecution of criminal action is under the direct control and supervision of public prosecutor! (People v Tan, 549 SCRA 489) A private party does not have the legal personality to prosecute the criminal aspect of a case, as it is the People of the Philippines who are the real party in interest The criminal case must be under the direction and control of the public prosecutor. Thus, when the public prosecutor does not give his or her conformity to the pleading of a party, the party does not have the required legal personality to pursue the case. (Valderrama v People Gr. No. 220054 March 27, 2017) May a private prosecutor prosecute a case even in the absence of the public prosecutor? of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. (Sec 5. Rule 110) Because of this role of the prosecutor: One cannot object if hearings are reset at the request of the public prosecutor due to his or her unavailability (Crisostomo vs. Singh, July 4, 2005). Promulgation of judgment should be reset in case of absence of the prosecutor (Crisostomo vs. Singh, July 4, 2005). Defense should not be allowed to present evidence in the absence of the prosecutor (Pinote vs. Ayco, December 13, 2005). Role of OSG in appeal in criminal case Rule: In case of dismissal of the case or acquittal of the accused, only the OSG may file an appeal or Petition for Certiorari to question the dismissal or acquittal. Article 90. Prescription of crime. Crimes punishable by: Death,reclusion perpetua or reclusion temporal shall prescribe in 20 years. A fflictive penalties shall prescribe in fifteen years. Correctional penalty shall prescribe in 10 years; with the exception of those punishable by arresto mayor, which shall prescribe in 5 years. The crime of libel or other similar offenses shall prescribe in 1 year. The crime of oral defamation and slander by deed shall prescribe in 6 months. Light offenses prescribe in 2 months. When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article (RPC) shall not be prosecuted except upon a complaint filed by the offended spouse 3) Seduction 4) Abduction 5) Acts of Lasciviousness offended party or her parents, grandparents or guardian or if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf as Parents Patriae. Pardon, as to prohibit the state from instituting private crimes, must be expressly done prior to the institution of the criminal action (Sec. 1,Act 3326) Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) after a year for offenses punished only by a fine or by imprisonment for not more than one month, or both; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) after eight years for those punished by imprisonment for two years or more, but less than six years; and (d) after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall prescribe after twenty years. Violations penalized by municipal ordinances shall prescribe after two months (Sec. 1,Act 3326). When is prescriptive period interrupted/ tolled? RPC | Special Laws Ordinances (Sec. 1,Act 3326) It is the filing of complaint or information in the office of the public prosecutor for purposes of preliminary investigation that interrupts the period of prescription The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy (Section 2, Act No. 3326). People vs Pangilinan, 672 SCRA 105 – “There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia vs. Reyes is not controlling in special laws.” In Zaldivia vs. Reyes (211 SCRA 277, 283), the SC interpreted “proceedings as judicial proceedings. Filing complaint or Information before the PUBLIC PROSECUTOR's OFFICE The filing of the case before the court interrupts the running of the prescriptive period for ORDINANCES, not Special laws. Filing complaint or Information before the COURT What if the court which the information or complaint was filed has no jurisdiction, will the it suspend the running of prescriptive period? YES! However, the private offended party may file an appeal without the intervention of the OSG insofar as the civil liability of the accused is concerned. (People v Go, GR. 201644 Sept 24, 2014) 1) Adultery 2) Concubinage PARDON Express or Implied Special Laws | Ordinances private prosecutor may be YES! the authorized in writing by the Chief Prosecution of PRIVATE CRIMES Private Crimes RPC Offended party is MINOR has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so Where the offended party, who is a minor, fails to file the complaint, her parents, if no parents the grandparents, if no grand parents the guardian may file the same. Reodica vs. Court of Appeals, 292 SCRA 91 Cases where the requirement is satisfied: A “Sinumpaang Salaysay” of the victim, accompanied by complaint filed by someone else (People vs. Sangil, GR No. 91158, May 8, 1992). Compliant filed by the Chief of Police on the basis on the sworn statement of the victim (People vs. Barrientos, GR No. 119835, January 28, 1998). Once the violation of the law becomes known through a direct original participation initiated by the victim (People vs. Yparraguire, July 5, 2000) The only rule is that private offended party merely initiated or commence the prosecution of the accused 5 NOTES www.milesfajardo.com PURPOSE: Sufficiency of the complaint or information COMPLAINT INFORMATION A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated (Section 3, Rule 110) An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court (Section 4, Rule 110). Complaint must (under oath) Information requires no Oath! be SWORN Complaint is subscribed by the offended party, peace officer or other public officer charged with enforcement of the law Information is subscribed by the prosecutor (Sec 6. Rule 110) A complaint or information is sufficient if it states the: 1) Name of the accused; 2) Designation of the offense given by the statute; 3) Acts or omissions complained of as constituting the offense; 4) Name of the offended party; This is to enable the accused: a.to make defense his b.to claim double jeopardy c.to inform the accused of the facts alleged The information MUST bear the written approval of the Chief Prosecutor or Provincial Prosecutor. Sec. 3( d), Rule 117 Quisay Case (2004): SC said it is a defect that is jurisdictional which can not be waived. Villa-Gomez Case (2020): It abandoned the Quisay ruling. SC said that the handling prosecutor's authority, particularly as it does not appear on the face of the information has no connection to the trial court's power to hear and decide a case. THUS, if an information has no written approval of the Chief Prosecutor or provincial prosecutor, and you as the counsel to the accused does not question it in a motion to quash, you waived it by your silence, acquiescence, or failure to raise such ground during arraignment or before entering a plea. 5) Approximate date of the commission of the offense; and 6) Place where the offense was committed (Code: N D A N D P) RATIONALE: This is a compliance with the constitutional requirement (Section 14(2), Art. III) that the accused must be informed of the nature and cause of the accusation against him. NON-COMPLIANCE: Such written approval of the chief prosecutor or provincial prosecutor is not a formal defect and not a jurisdictional defect. - If the Information is not sufficient as stated in sec 6. Rule 10. Accused can file a motion to quash. 1. “Name of the Accused” 2. Designation of the Offense 3. Cause of Accusation The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown 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 circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it (Section 8,Rule 110). The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment Section 7, Rule 110. Section 8, Rule 110. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record Proving the identity of the accused as the malefactor is the prosecution’s primary responsibility. Accordingly, the first duty of the prosecution is not only to prove the crime, but also to prove the identity of the criminal, for even if the commission of the crime can be established, there can be no conviction without the identity of the malefactor being clearly ascertained. (People vs. Espera, 706 SCRA 704) Should mistake in the name be treated as mistake in identity? NO! Positive identification pertains essentially to proof of identity and not necessarily to the name of the assailant. A mistake in the name of the accused is not equivalent, and does not necessarily amount to, a mistake in the identity of the accused especially when sufficient evidence is adduced toshow that the accused is pointed to as one of the perpetrators of the crime (People vs. Amodia, G.R.No. 173791,April 7, 2009) May accused be convicted or acquitted despite erroneous designation of name? YES! Where accused did not raise the question of his identity during the arraignment, he is deemed to have waived this defect and to have acquiesced to be tried under the erroneous name (People vs. Cagadas, G.R. No. 88044, January 23, 1991). 6 NOTES www.milesfajardo.com The designation of the offense is a critical element required under Sec. 6, Rule 110 of the Rules of Court for it assists in apprising the accused of the offense being charged. Its inclusion in the Information is imperative to avoid surprise on the accused and to afford him of the opportunity to prepare his defense accordingly How to write it in the information? The allegations in the information shall prevail over the designation of the offense. Thus, if the allegation stated in the facts are homiced and the deisgnation is murder. The allegations in the information shall prevail. Section 9, Rule 110. The Prosecutor MUST SPECIFY in the information the details of the crime and any circumstance that aggravates his liability for the crime. The requirement of sufficient factual averments is meant to inform the accused of the nature and cause of the charge against him in order to enable him to prepare his defense. Information contains: (play of the rule) 1 2 3 Designation of OFFENSE Designation of OFFENSE Designation of OFFENSE Facts & circumstances in the ALLEGATION Facts & circumstances in the ALLEGATION Facts & circumstances in the ALLEGATION Compliant Compliant with Sec 8 & 9, Rule 110. with Sec 8 & 9, Rule 110. with Sec 8 & 9, Rule 110. If there is no designation of offense in the information and such circumstance is established in the facts and circumstances in the information, it can be proved during trial. Designation without Factual circumstances in the allegation is a conclusion of law and not allegation of facts. What must be put in the information is the allegation of facts. Effect of failure to designate the offense The failure to designate the offense given by the statute or to mention the specific provision penalizing the act or erroneous specification of the law violated does not vitiate the information if the facts alleged clearly recite the facts constituting the offense (Malto vs. People 553 SCRA 642, 657-658). 4 ULTIMATELY: Designation of OFFENSE Facts & circumstances in the ALLEGATION Defective SUBJECT TO: MOTION TO QUASH or BILL of PARTICULARS Phil. v SOLAR (2019) The failure to state (designation or, or facts or circumstances) of an aggravating circumstance even if proven during the trial will not be appreciated Because it will ultimately violate the constitutional right of the accused to be informed of the nature and cause of the accusation against him Failure of the accused to avail of any of the said remedies constitute a WAIVER of his right to question the defective statement of the aggravating or qualifying circumstance in the information and consequently, the same may be appreciated against him if proven during trial. 5. Date of the Commission 4. Place of the Commission of the Crime Section 11, Rule 110. Section 10, Rule 110. Venue: is Jurisdictional The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification Venue in criminal cases is a jurisdictional matter. Venue must be established during trial, otherwise the case will be dismissed Place Where Action Is to Be Instituted (Section 15, Rule 110). (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. Date of Commission of the Offense. It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission Interesting case: A is married to B. A has an affair outside PH, in Italy. B filed for VAWC (RA 9262) on ground of psychological violence. A's contention is that the crime is done outside PH and PH has no jurisdiction. HELD: SC said A is not correct. One of the elements of the crime which is "the offender causes on the woman and/or child mental or emotional aguish" is one of the essential elements that has been occur in the PH. Thus, PH has jurisdiction. PERJURY (RPC, art 183) vs FALSE TESTIMONY Rules on DATE: Not material to crime Material to the crime For crimes in which the date of the commission is not essential element of the crime, the date of commission need not be stated with “ultimate precision” For cases where date is material ingredient of the offence, the precise date of the commission needs to be stated in the information, like infanticide under Article 255 of the RPC, or violation of gun ban If administratively, venue is at the place where the testimony under oath is given The crime of perjury committed through the making of a false affidavit under Article 183 of the RPC is committed at the time the affiant subscribes and swears to his or her affidavit since it is at that time that all the elements of the crime of perjury are executed. 6. Name of Offended Party Section 12, Rule 110. BP 22 venue Yalong v People Venue is where the place where the check is: Drawn Issued Delivered Dishonored Deposited (Brodeth v People) (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. General Rule: venue is where the crime is committed. — The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. a) In offenses against property, b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. the court must cause such true nameto be inserted in the complaint or information and the record. c) If the offended party is a juridical person it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law SPECIFIC Exceptions: Article 2, RPC SC orders change of venue (Sec.5[4],Art.VIII) Section 15(b) - Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, Section 15(c) - Where an offense is committed on board a vessel in the course of its voyage Cases cognizable by Sandiganbayan Libel (Art. 360) RA 8042 (Illegal recruitment cases), as amended If the subject matter of the offense is specific or one described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is not material and would not result in the violation of the accused's constitutional right to be informed of the nature and cause of the accusation against her (Senador vs. People, G.R. No. 201620, March 6, 2013, citing United States v. Kepner, Sayson v. People, and Ricarze v. Court of Appeals). GENERIC In crime against property, if the subject matter of the offense is generic, or one which is not described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is material and would result in the violation of the accused's constitutional right to be informed of the nature and cause of the accusation against the accused (United States v. Lahoylahoy,38 Phil. 330 (1918) In oral defamation, a crime against honor, the identity of the person against whom the defamatory words were directed is a material element. Thus, an erroneous designation of the person injured is material (People v. Uba, et al., 106 Phil. 332 (1959) 7 NOTES www.milesfajardo.com Duplicity of the Offense Amendment or Substitution (Sec. 13. Rule 110) (Sec. 14. Rule 110) Amendment A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses. It is ground for a motion to quash (Sec. 3(f), Rule 117). There are two types of Amendment PLEASETAKE NOTE: This ground is waivable. If accused failed to question the duplicity of crimes in the Information, in the trial he may be charge as many as crimes that can be charged to him based in the infrormation. Amendment Always Change Before plea is without leave of court Always with leave of court As to form, need not Preliminary Investigation needs Preliminary Investigation Refers offense Refers Information same Matter of right Matter of Discretion at any time before the accused enters his plea (arraignment) After the plea and during the trial, a formal amendment without leave of court with leave of court Substitution Formal or Substantial changes to IT INVOLVES FORMAL or SUBTANTIAL Changes FORM & SUBSTANCE Substantial new in FORMS only so long as it will not cause prejudice to the rights of the accused FORM Examples It does not change the nature of the crime allege New allegations which relate only to the range of the penalty that the court might impose in the event of conviction. It does not affect the essence of the offense It does not affect the essence of the offense adds specifications to eliminate vagueness in the information and not to introduce new and material facts It does not deprive the accused of the opportunity to meet new averment change in date, not substantial amendment, if the date is not essential element of the crime. TEST: When the formal amendment is PREJUDICIAL to the accused. It is a substantial amendment. amendment to include that victim became insane after the rape is not substantial amendment if insanity occurred after the case if filed. While Consipiracy is a Formal amendment, it will prejudice the accused if the amendment is allowed after his plea. (Corpus v. Pamular 2018) If the purpose of the amendment is to downgrade the nature of the offense charged in or exclude any accused from the complaint or information four information for illegal recruitment were amended to one information before arraignment. Formal if before arraignment. If after arriagnment it becomes substance. SUBSTANCE Only made upon MOTION with leave of court by the Prosecutor, with notice to the offended party. Example TEST: When amendment is PREJUDICIAL to the accused. It is a substantial amendment. from homicide to murder substantial amendment. Substitution 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 Section 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 RULE 111 Prosecution of Civil Action RULE Deemed Impliedly Instituted Rule Note: When a criminal action is instituted, the civil action for the recovery of the 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 the right to institute it separately or institute the civil action prior to criminal action. (Sec. 1, Rule 111). What is deemed instituted with the criminal action is only the action to recover civil liability arising from crime or ex delicto. Thus, this type of civil liability cannot proceed independently from the criminal action. However, its institution and prosecution may be reserved. When should you reserve the prosecution of civil action and when shall reservation be made? 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. Scenario: Effect: Civil action filed first 8 NOTES www.milesfajardo.com Criminal action filed subsequently Civil action shall be suspended in whatever stage it may. Suspension shall last until final judgement is rendered in the Criminal case. The filing of criminal action interrupts the prescriptive period of the civil action, because civil liability arising from the offense charged shall be deemed impliedly instituted with the criminal action Will acquittal in the criminal action extinguish the civil liability arising from crime? NO! The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist (Sec. 2, Rule 111) Instances where acquittal in a criminal case does not result in the extinguishment of civil liability: 1. Where acquittal is based on reasonable doubt. 2. Where the court express declares that the liability of the accused is only civil and not criminal 3. Where the liability is not derived from or based on the criminal act of which the accused is acquitted (Ching vs. Nicdao, April 27, 2007). Is counterclaim or cross-claim allowed in criminal cases? NO! Under the rules, “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.” (Sec. 1, Rule 111) Is it required to pay filing fee in criminal cases? Generally, no filing fees are charged for actual damages in criminal cases. Thus, the rules provide that except as otherwise provided in these Rule, no filing fees shall be required for actual damages Filing fees are to be paid only if other items of damages are alleged in the complaint or information of they are not alleged, they shall constitute a first lien on the judgment BUT filing fees should be filed in BP 22 & Estafa cases The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed Thus, you are not allowed to reserve the civil liability arising from the criminal action. However, a separate proceeding for the recovery of civil liability in cases of violation of BP 22 is allowed when civil case is filed ahead of the criminal case Effect of Death of the Accused Cases where civil action may proceed independently Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines NO NEED RESERVATIONS. THESE ACTIONS CAN PROCEED INDEPENDENTLY. BUT! In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action Violation of Constitutional Right defamation, fraud, and physical injuries Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: Constitutional rights of the people. Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property,such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Effect Effect Criminal case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased Shall extinguish the civil liability arising from the delict extinguishes his criminal liability as well as the civil liability based solely thereon. BUT!!! The independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be (Section 4, Rule 111). claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on some source of obligation other than delict. Is a final judgment rendered in the civil case absolving the defendant from civil liability a bar to criminal action? The right to bring the foregoing actions based on the Civil Code need not be reserved in the criminal prosecution,since they are not deemed included therein. A finaI judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defednat for the same act or omission subject of civil action (Sec. 5, Rule 111) Prejudicial Question The institution or waiver of the right to file a separate civil action arising from the crime charged does not extinguish the right to bring such action. (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action Separate Civil Action by the Accused NOTE: Previously filed or instituted administrative case may be cause the suspension of the criminal case and may be used as a prejudicial question. The accused could validly institute a separate civil action for quasidelict against the private complainant for the same act or omission he is accused of in a criminal case. This is allowed by par. 6, Sec. 1, Rule 111 which states that the counterclaim of the accused may be litigated in a separate civil action (Cabaero vs. Cantos, 271 SCRA 391). b) the resolution of such issue determines whether or not the criminal action may proceed. (Section 7, Rule 111). Case pending in HLURB was used as a prejudicial question in a case filed on prosecutor’s office (San Miguel Properties vs. Perez, 2013) Counter-claim can be subject of separate civil action. Interesting cases on prejudicial question: Petitioner, the GM of the corporation filed 2 counts of estafa against private respondent. Petitioner alleged that the corporation entrusted two vehicles to private respondent, but when asked to return thru a demand letter, private respondent refused to turn over the vehicles. Before the filing of the case, private respondent filed before SEC a complaint questioning the election of petitioner as GM. Private respondent filed a motion to suspend on the ground of prejudicial question? Should the motion be grated? YES! The case in the SEC will determine the guilt or innocence of private respondent. If it is established in the SEC that petitioner’s election as GM is invalid, the validity of the demand made by the petitioner in behalf of the corporation will put in question. It is as if no demand was made yet by the corporation. Thus, if there is no demand, there is yet no estafa thru misappropriation. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation.When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests (Section 6,Rule 111) Elements: The only limitation is that the offended party cannot recover more than once for the same act or omission Pimentel vs. Pimentel, 630 SCRA 436 Where civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to section 1, rule 111. This separate civil action may be enforced against the executor/administrator or estate of the accused depending on the source of obligation (People vs. Bayotas, 1994) NO! Nota bene: Pending appeal Effect Quasi-delict Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. After arraignment and during the pendency of the criminal action before arraignment An action for declaration of nullity of marriage is not a prejudicial question to a concubinage case. civil case MUST be determinative of the guilt or innocence of the accused in the criminal case. Because even if the petition for the nullity of marriage is granted, prose(Beltran vs. People, 334 SCRA 106) Pimentel vs. Pimentel, 630 SCRA 436 Private respondent filed an action for frustrated parricide against petitioner. Several months after, petitioner filed a declaration of nullity of their marriage. The petitioner file a motion to suspend on the ground of prejudicial question since the relationship between the private respondent and the petitioner is the key element of parricide. Should the motion be grated? NO! First, prejudicial question contemplates a situation where the civil case is first filed before the criminal case. Second, the issue in the civil case is not determinative of the guilt and innocence of the accused in the criminal case. 9 NOTES www.milesfajardo.com RULE 112 P.I results in in either the dismissal of the complaint for want of probable cause, or the filing of an Information in court. Preliminary Investigation (P.I) 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. (Section I, Rule 112) When is Preliminary Investigation required? Instances when probable cause need to be established By Prosecutor By the JUDGE for the purpose of filing “information” in Court (Section 1&3, Rule 112) 1. For the purpose of issuing warrant of arrest or necessity for the accused to remain in custody (Section 5&8, Rule 112) By Arresting Officer P.I REQUIRED P.I NOT REQUIRED 4 -2 -1 & up Exception to 4 -2 -1 & up Imposable penalty 4 years, two months and one day or more (Section 1, Rule 112) When respondent is arrested IN FLAGRANTE DELICTO (Section 5, Rule 113) and undergoing inquest. No need P.I NATURE The conduct of PI belongs is a function that belongs to Public Prosecutor (State's agent) & The determination of probable cause, is under our criminal justice system, an executive function that courts cannot interfere with in the absence of grave abuse of discretion. (Salapudin vs. CA, 691 SCRA 578, 597) ONLY a STATUTORY RIGHT The holding of preliminary investigation is not required by the constitution. Thus, it is not a constitutional right rather a statutory character and may be invoked only when specifically created by statute (Marinas vs. Siochi, 104 SCRA 423). Though not of constitutional grant, the denial of the same would deprive the accused the full measure of his right to due process (Duterte vs. Sandiganbayan, 289 SCRA 721). > Thus, WAIVABLE The right to PI may be waived for failure to invoke the right prior to or at the time of the plea (People vs. Gomez, 117 SCRA 73, 78) In fact, the absence of P.I will not affect the jurisdiction of Courts. Interesting cases on P.I: Hasegawa vs. Giron, 703 SCRA 549 Where Prosecutor dealt with Evidentiary matters. The validity and merits of a party's defense or accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level. By taking into consideration the defenses raised by petitioner, the Investigating Prosecutor already went into the strict merits of the case. Shu vs. Dee, GR 182573, April 23, 2014 The investigating prosecutor dismissed the complaint for falsification of the two deeds of real estate mortgage filed against respondent for lack of probable cause. The complaint was supported by the finding of the NBI that the signature of the complaint on the questioned deeds were not same. The investigating prosecutor opined that based on his observation, the questioned signatures are same. Thus, he dismissed the case for lack of probable cause. In arriving at these conclusions, the city prosecutor already delved into the merits of the respondents' defense. Contrary to the settled rule. Less than 4 -2 -1 Imposable penalty is LESS THAN 4 years, two months and one day or more (Section 1, Rule 112) PURPOSE TO ESTABLISH PROBABLE CUASE PROBABLE CAUSE in P.I PI is a mere inquiry or proceeding. It is not a trial. Its purpose is not to declare the respondent guilty beyond reasonable doubt. (Estrada vs. Obmbudsman, January 21, 2015) Thus, the quantum of proof in P.I is "whether the respondent PROBABLE guilty thereof, and therefore should be held for trial?". This is the ultimately the PROBABLE CAUSE in P.I Probable cause pertains to facts and circumstances sufficient to support a wellfounded belief that a crime has been committed and the accused is probably guilty thereof.(Shu vs. Dee,April 23, 2014). The evidence necessary to establish probable cause is based only on the likelihood, or probability of guilt (Estrada vs. Ombudsman, supra) 2. in issuing search warrant (Section 4, Rule 126) in effecting warrantless arrest in hot pursuit (Section 5(b), Rule 113) P.I Preliminary Investigation P.E vs Preliminary Examination Executive Function Judicial Function by Prosecutor by a Judge BOTH establishes Probable Cause For the purpose of filing Information in Court Judge can't interfere with Prosecutor's function to determine probable cause. This is an encroachment of powers in lieu of doctrine of separation of powers. For the purpose of issuing warrant of arrest However, Judiciary has expanded power to review acts and decisions of the executive department, e.i Prosecutor's discretion in establishing probable cause when there is grave abuse of discretion. Prosecutor is exercising EXECUTIVE function when he is establishing probable cause. The right way to challenge his function is through PETITION FOR CERTIORARI Rule 65 and not Petition for review. (Estrada vs Ombudsman) Officers authorized to conduct Preliminary Investigation (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law. Comelec (Section 265 of Omnibus Election Code) DOCTRINAL RULE: In determining probable cause, the Prosecutor or the average man weighs facts and circumstances without resorting to the rules of evidence that, as a rule, is outside his technical knowledge. Is hearsay evidence sufficient to establish probable cause? YES! Technical rules in evidence should not be applied in P.I. because the determination of probable cause does NOT depend on the merit and admisibility of a party's testimony presented. It only deals only with the probability and not by proving it. Thus, in Estrada v. Ombudsman (Estrada), the Court declared that since a preliminary investigation does not finally adjudicate the rights and obligations of parties, "probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. (Estrada vs. Ombudsman, G.R. No. 212761, July 31, 2018). PCGG Ombudsman Power of Ombudsman to conduct Preliminary Investigation Ombudsman has the authority to INVESTIGATE & PROSECUTE on its own or on complaint by any person, any act or omission of ANY PUBLIC OFFICER or EMPLOYEE, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. (Section 15(1), RA 6770) It has the primary jurisdiction over cases cognizable with Sandiganbayan and in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases. It is not exclusive but concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors. (Honasan II vs. DOJ Panel, April 13, 2004) See SandiganBayan Jurisdiction Page 5 10 NOTES www.milesfajardo.com PROCEDURE of P.I Phase 1: Filing a Complaint You go to Prosecutor's office. File an affidavit of complaint together with your evidence to be presented to a Prosecutor. Prosecutor will now asses whether it has probable cause or not. Filing of Information P.I REQUIRED 4 -2 -1 & up Imposable penalty 4 years, two months and one day or more (Section 1, Rule 112) Submission of complaint to the Prosecutor who will become the INVESTIGATING PROSECUTOR Phase 2: Investigating Prosecutor's Resolution W/ PROBABLE CAUSE Upon receiving of Subpoena by the respondent. Respondent will file counter-affidavit. Submit Counter Affidavit Respondent files counter affidavit? 1. DISMISSED Respondent did not file counter affidavit? Hearing is optional to the Prosecutor. The prosecutor can conduct hearing, but only CLARIFICATORY hearing (to clarify information allege in the complaint and counter-affidavit) Investigating Prosecutor shall determine whether there is probable cause. Prosecutor shall resolve the case in lieu of the claimant's complaint only. W/out PROBABLE CAUSE If the prosecutor did not find any probable cause, it will dismiss the case. 2. The Investigating Prosecutor shall prepare a resolution about his finding on the complaint. R Prosecutor finds probable cause, it will issue a Subpoena address to the respondent W/out PROBABLE CAUSE O ISSUE SUBPOENA Reolution is a report on the findings of the probable cause. W/ PROBABLE CAUSE Prosecutor shall forward his resolution within 5 days from his fulfillment of resolution to Chief Prosecutor Prosecutor shall forward his resolution within 5 days from his fulfillment of resolution to Chief Prosecutor RESOLUTION RESOLUTION Recommend filing of INFORMATION Recommend Dismissal 3. Whether the resolution of the complaint is dismissed or recommendation for filing of information, it shall be SUBMITTED to the CHIEF Prosecutor for APPROVAL Phase 3: Chief Prosecutor Approval Where to transmit the RESOLUTION? Chief Prosecutor 1 Submission of Recommendation : It shall be acted upon by CHEIF prosec within 10 days from receipt of the Investigating Prosecutor's resolution. 2 Approved NOTES www.milesfajardo.com Course if NOT APPROVED Course if APPROVED Recommendation of Investigating office is: File Information To Dismiss File Information To Dismiss Chief Prosecutor: approved. approved. To Dismiss File Information Not approved the recommendation of Investigating Prosecutor the recommendation of Investigating Prosecutor NB: No Information may be filed without the approval of City or Provincial Prosecutor or Chief Prosecutor. (Rule 112. Sec 4.) Chief prosecutor MAY by himself prepare a different resolution. He may also file the information in court upon different resolution. EFFECT: File Info to court Dismiss the Complaint Dismiss the Complaint File Info to court Remedy is to file petition for review to SOJ 3 Remedies Chief Prosec Remedies: 11 Go to Jurisdiction of SandiganBayan Page. Whether APPROVED or NOT by Chief Prosecutor. Investigating Prosecutor shall sumbit it in the head office: A City prosecutor - Submit it to Chief Prosecutor If in Province - Provincial Prosecutor Region - Regional State Prosecutor In DOJ - Submit to Prosecutor General OMBUDSMAN Motion for Reconsideration can be availed of only ones on the finding of the probable cause. SOJ In case the information has already been filed in court, a copy of the motion to defer proceedings filed in court must also accompany the petition. File Petition for Review to SOJ within 15 days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation. Accused not yet been Arriagned. Accused had already been arraigned the arraignment shall be suspended if a petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office. The petition for review shall not be given due course by the SOJ (Section 7, NPS Rule on Appeal) Phase 4: Remedy and the SOJ REMEDY: file Petition for Review with the (SOJ). Effect: The Secretary of Justice (SOJ). Upon Petition OR The appeals does not hold the filing of the Information in court unless otherwise directed by the SOJ. Motu proprio SOJ may reverse or modify the resolution of the provincial or city prosecutor or chief state prosecutor & direct the prosecutor concerned either: To file the corresponding information without conducting another preliminary investigation OR The appellant may move for the suspension of arraignment pursuant to Section 11(c), Rule 116 (DOJ Circular No. 70, 2000 NPS Rule on Appeal, Section 9. To dismiss or move for dismissal (withdrawal) of the complaint or information with notice to the parties. Rule 65: Petition for Certiorari How to assail the resolution of Secretary of Justice/Ombudsman NB: The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. File MR or Reinvestigation within 15 days from receipt of the resolution Chief Prosec. Resolution Reversal by SOJ is withdrawal: SC File petition for review (15) days from receipt of the resolution to SOJ SOJ directs prosec to dismiss or move for dismissal (withdrawal) of the complaint or information with notice to the parties. SOJ OP RULE: THE COURT has DISCRETION to grant the motion to withdraw or not. File one time only MR or Reinvestigation within non-extendible 10 days from receipt of the resolution on appeal When the information is filed within the court, then it is within the jurisdiction of the COURT already. The Court may either grant the motion to withdraw by the SOJ or proceed with the criminal case. The Court is the best and sole judge on what to do with the case before it. (Crespo vs Mogul GR L-53373, 30 June 1987) Denied appeal SOJ Rule 65: Motion to withdraw by Prosecutor was granted by court: Requirement of COURT: The court SHALL make independeted finding of the LACK of Probable cause, separate from findings from the findings of the SOJ or Prosecution. OMBUDSMAN Denied Petition for Certiorari CA Because trial court not is ipso facto bound by the resolution of the Secretary of Justice, the court is the sole judge on what to do with the case before it. Phase 5: Filing of Information to court Judge shall personally evaluate the resolution and its supporting evidence RTC By the JUDGE 1. For the purpose of issuing warrant of arrest or necessity for the accused to remain in custody (Section 5&8, Rule 112) 2. in issuing search warrant (Section 4, Rule 126) Judge may dismiss the case if he finds no probable cause, otherwise he shall issue warrant of arrest. The determination of Probable cause by the judge is for issuance of Warrant of arrest. If he finds no probable cause he will not issue warrant of arrest and he will dismiss the case. He may order the prosecutor to present evidence to establish probable cause and resolved the same within 30 days from the filing of the information (section 5, Rule 112) Judge finds NO probable cause DISMISS the CASE 12 NOTES www.milesfajardo.com Judge finds probable cause he shall issue a warrant of arrest Withdrawal of Information already filed in Court When confronted with a motion to withdraw an Information on the ground of lack of probable cause based on a resolution of the Secretary of Justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding farther with the trial. While the Secretary’s ruling is persuasive, it is not binding on courts. When the trial court’s Order rests entirely on the assessment of the DOJ without doing its own independent evaluation, the trial court effectively abdicates its judicial power and refuses to perform a positive duty enjoined by law. (Lanier vs. People, March 19, 2014) If Judge is satisfied that there is no necessity for placing the accused under custody issue summons instead of a warrant of arrest. Crimes that do not requires Preliminary Investigation 1 Chartered City 2 Provincial 3 Filing of Complaint with Prosecutors's office Direct Filing of Complaint in Court Crimes committed in flagrante delicto or hot pursuit Filing of Information Issuance of warrant Issuance of warrant Chartered City Filing of Complaint with Prosecutors's office Filing of Information Less than 4 -2 -1 The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (Section 8, Rule 112 ) 2 Provincial Direct Filing of Complaint in Court Issuance of warrant Judge finds NO probable cause DISMISS the CASE NOTES www.milesfajardo.com When respondent is arrested IN FLAGRANTE DELICTO (Section 5, Rule 113) and undergoing inquest. No need P.I Imposable penalty is LESS THAN 4 years, two months and one day or more (Section 1, Rule 112) Arrest 13 Exception to 4 -2 -1 & up Imposable penalty is LESS THAN 4 years, two months and one day or more (Section 1, Rule 112) Arrest 1 P.I NOT REQUIRED Arrest Arrest Less than 4 -2 -1 PROCEDURE for Cases not Requiring P.I MTC If within ten (10) days after the filing of the complaint of information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. (section 5(b), Rule 112 ) How will the judge determine probable cause? Judge may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. (section 8, Rule 112) Judge finds probable cause he shall issue a warrant of arrest If Judge is satisfied that there is no necessity for placing the accused under custody issue summons instead of a warrant of arrest. Exception to 4 -2 -1 & up 3 Crimes committed in flagrante delicto or hot pursuit Arrest When respondent is arrested IN FLAGRANTE DELICTO (Section 5, Rule 113) and undergoing inquest. No need P.I Inquest proceedings will be conducted by prosecutor. If there is no inquest prosecutor, complaint may be filed directly in court. The accused may ask for PI but he must execute a waiver of Article 125, RPC, in the presence of his counsel The arrested person has the right to apply for bail After the filing of Information, within five (5) days from the knowledge thereof, accused my ask for PI When Arrested In FLAGRANTE DELICTO, Inquest procedings shall apply and not Preliminary investigation Inquest proceedings Two types of warrantless arrest to have inquest proceedings In Flagrante Delicto Arrest Probable Cause Arrest or Hot Pursuit Arrest A) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. B) When offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; Inquest Proceeding is an investigation conducted by a prosecutor in criminal cases where a person has been lawfully arrested and detained without warrant. Article 125, RPC Delay in the delivery of DETAINED person to the properJudicial authorities. Art. 125 contemplates of a valid warrantless arrest. If there is warrant of arrest, Art 125 shall not apply. Offernder is a PUBLIC OFFICER (policeman) or EMPLOYEE He detained a person for some legal grounds He fails to deliver such person to the proper judicial authorities within period stated below 12 hours 18 hours 36 hours Offense punishable by Light Penalties Offense punishable by Correctional penalties Offense punishable by Afflictive penalties DELIVERY Delivery means the filing of correct inforamation or complaint with the proper judicial authorities. It does not mean physical delivery or turnoverof arrested person to the court. PROPER JUDICIAL AUTHORITY Justice or judges vested with judicial power to order temporary detention or confinement of a person charged with having committed public offenses Prosecutors are not proper judicial authority, because they do not have power to order temporary detention What is the effect if the information was filed beyond the specified period? Filing of Information in court beyond the specified period does not cure illegality of detention. Hence, detaining officer is still liable under Art.125 Niether does it affect the legality of the confinement under process issued by the court 14 NOTES www.milesfajardo.com Determine whether the arrested person was arrested lawfully in accordance with Sec. 5(a) and (b),rule 113 He may ask the arrested person if he wants to avail his right of PI, but in the presence of his counsel, the arrested person will be asked to sign a waiver of the provision of Article 125. If arrest is illegal Prosecutor shall not proceed with the inquest and recommend the release of the arrested person which recommendation should be approved by the head If the arrest is found legal he shall proceed with the inquest and if he finds probable cause, an information will be filed. What if Offender wants to have PRELIMINARY INVESTIGATION The offender should WAIVED IN WRITING his rights under Art 125 RPC. Waiver must be UNDER OATH Must be with ASSISTANCE of COUNSEL Meaning, the offernder could be detained EFFECT: longer than what is stated in Art.125, RPC. But he shall have P.I. Can the accused appeal the resolution of the inquest prosecutor’s finding of probable cause to the SOJ? No. The Supreme Court in Leviste vs. Alameda, G.R. No. 182677, August 3, 2010, held that the remedy of appeal to the SOJ is not immediately available in cases subject of inquest. The private party should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the SOJ. Offernder does not want to Waive his rights under Art 125? Arresting officer MUST comply with Art.125, and file the case immediately in court without Preliminary Investigation RULE 113 Arrest The taking of a person into custody in order that he may bound to answer for the commission of an offense. (Section 1, Rule 113) How is arrest 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. C A S E Crimes that requires Preliminary Investigation F L O W Crimes that do not require Preliminary Investigation 1 Chartered City Preliminary Investigation Provincial Filing of Complaint with Prosecutors's office Filing of Information Filing of Information Issuance of warrant Direct Filing of Complaint in Court Issuance of warrant Issuance of warrant Arrest 3 2 Arrest Arrest Arrest No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2, Rule 113). Establish Probable Cause for Arrest WITH WARRANT Penalty of fine only no need arrest Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense. The failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Thus, The motorist detention due to traffic violations cannot be considered as custodial interrogation or formal arrest. (Luz vs. People, 667 SCRA 421) Crimes committed in flagrante delicto Issuance of WARRANT: 1. For the purpose of issuing warrant of arrest or necessity for the accused to remain in custody (Section 5&8, Rule 112) WARRANTLESS By the JUDGE Warrantless Arrest: 2. in issuing search warrant (Section 4, Rule 126) Requisites for the issuance of warrant of arrest Consti - Art 3, Section 2. The right of the people to be secure in their PERSONS, houses, papers, and effects against unreasonable searches and SEIZURES of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon PROBABLE CAUSE to be determined personally by the JUDGE after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. By Arresting Officer in effecting warrantless arrest in hot pursuit (Section 5(b), Rule 113) PROBABLE CAUSE to be determined personally by the JUDGE Personal examination of complainant and witnesses is not required, Judge is only required to examine the records of the case to determine Probable cause for issuance of warrant of arrest. If no probable cause then he will dismiss the case. Soliven vs. Makasiar, 167 SCRA 393 Ocampo vs. Abando, G.R. No. 176830, February 11, 2014 Procedure on Warrant TO arrest It shall be 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. (Section 3, Rule 113) Report of warrant Within 10 days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the Judge who issue the warrant. In case failure to execute the warrant, he shall state the reasons thereof (Sec. 4, Rule 113) 15 NOTES www.milesfajardo.com Execution of warrant Warrant is delivered to proper law enforcement for execution An arrest may be made on ANY DAY at ANY TIME of the DAY or NIGHT (Sec. 6, Rule 113) Prosec files Info Issuance of warrant Judge determines probable cause for issuance of Warrant of arrest The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within 10 days from receipt of warrant. NB: Warrant of Arrest is VALID UNTIL THE ARREST of the ACCUSED! The report on warrant of arrest shall only mean a report and will not affect the validity of the warrant of arrest. The court then after the report shall issue alias warrant. Note again that the 10 days effectivity of warrant is subjected to search warrant and not warrant of arrest. Thus, warrant of arrest is valid until the arrest of the accused and the search warrant is valid for only 10 days from its receipt. 3 Warrantless arrest Crimes committed in flagrante delicto By Private Person (Section 5, Rule 113) - A peace officer or PRIVATE PERSON may, without a warrant, arrest a Person: To be updated in ver. 2 of this notes Inquest proceedings: WARRANTLESS In Flagrante Delicto Arrest Probable Cause Arrest or Hot Pursuit Arrest In Flagrante Delicto Arrest Probable Cause Arrest or Hot Pursuit Arrest B) When offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; A) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Requisites: 1 Overt Act NB: The arresting officer here does not ACTUALLY SEEN the CRIME committed. Otherwise, it will fall to inflagrante delicto arrest. 2 In PRESENCE or WITHIN the VIEW of arresting officer. Requisites: 1 I. The person to be arrested MUST execute OVERT ACTS indicating he has just committed, is actually committing, or is attempting to commit a crime. iI. The is Overt Act must be related to crime for which accused is arrested III. The Overt act accompanied by reasonable suspicion must actually seen by the arresting officer 2 NO! because there is no overt act indicating that Y is committing a crime. Thus, arrest is illegal. Examples with OVERT ACT Rebellion v people - The arresting officer witnesses the accused handling a piece of plastic sachet to his companion (OVERT ACT). Arousing suspicion, the officers alighted from their vehicle and approached the accused. They found the accused holding three strips of aluminum foil and schets of alleged shabu. People v Pavia - A tip from a concerned citizen reached the police that pot session was taking place in the house of the alleged accused. They went to the place and through a small opening in the window, they were able to see accused sniffing shabu (OVERT ACT). People v Valdez - Accused was merely seen by an officer as looking around after getting off the bus and attempted to run away when tanod approached him (OVERT ACT). People v Claudio - Accused was carrying woven burilike plastic bag with what appears as camote but instead of placing bag besides him, he placed it at the back, narcotic agent checked the bag where marijuana smell emanates. (OVERT ACT). To disect, there has been a suspicion on the officer when the accused place his bag at the back. That is an overt act already. Examples Not inidcative of OVERT ACT Sanchez v People - The accused was merely seen by officers leaving the residence of a known drug peddler and boarding a tricycle. People v Delos Reyes - The Officer received a tip that an illegal drug transaction will take place in a specific area, using specified vehicles identified by informant. The accused were driversof those two vehicles, and there after seeing them and another person conversing, and seeing a white bag being passed around, the police arrested both accused. To direct the case, there is no overt act because, the passing of bag is not indicative of overt act or criminal activity to be committed. 16 An offense has just been committed NB: There must be urgency to catch the perpetuators (accused) because an offense has just been committed. If there is a lapse of appreciable time between the commission of the crime and the arrest, arrest shall be invalid and the proper remedy secure Warrant of arrest to Court The person making the arrest has PERSONAL KNOWLEGDE of the facts and circumstances that the person to be arrested has committed it. NB: This is the PROBABLE CAUSE requirement. Stated otherwise, the person making the arrest has probable cause that the accused is the one committed the crime. Ex. X said to A (police officer) that Y is possessing an illegal drug. A confronted Y and frisk him and search his body and found a sachet of shabu and arrest him. Is the arrest valid? www.milesfajardo.com CITIZEN'S ARREST Lawful arrest without warrant Arrest NOTES WARRANTLESS Arrest solely on a TIP is not "personal knowledge" 3 Based on these facts and circumstances that the arresting officer possessed at the time of the accused arrest, would a reasonably dicreet and prudent person believe that the accused committed the offense? NB: This is the test to the arresting officer. To form a believe that the facts and circumstances points to the person being the one who committed the crime that has been committed. Arrest of Escapee C) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgement or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Rights of the Accused: To be assisted by counsel at all times To remain silent To be informed of the above rights (miranda rights) To be visited by the immediate members of the family, by his counsel, or by non-gov't org., national or international. illegality of arrest Invalid Warrant of arrest EFFECTS: Invalid Warrantless arrest On jurisdiction of Courts NONE. What is affected is only the jurisdiction of the court over the person of the accused The illegality of the arrest CANNOT be the BASIS for ACQUITAL (People v Yau) It will not negate the validity of the conviction of the accused (Rebellion v People) On Bail: Cases of HOT PURSUIT People v Acol - When a policeman immediately responded to the report of the crime. The victim points the accused and the police run after them.The personal knowledge is established when the police is at the moment the victim points the accused. People v Tonon Jr. - The arrest was done on the same day was held valid. In the case, the arresting officer had knowledge of facts which he personally gathered in the course of his investigation, indicating that the accused was one of the perpetrators. Cases where HOT PURSUIT is not appreciated An application for admission to bail shall not bar the accused from challenging the validity of his arrest or legality of the warrant issued provided he raises his objection before he enter his plea (before arraignment) Thus, posting of bail is not a waiver of challenging the legality of the arrest. Arrest Rule: Accused can only question the legality of his arrest before he enters his plea (arraignment) Arraignment Accused enters plea without questioning the illegality of arrest The accused WAIVES the right to question the legality of his arrest. Posadas v Ombudsman - The killing was happend on Dec 8, 1994. It was only on Dec 11, 1994 that Posadas requested the NBI's assistance. NBI attempted to arrest the accused 3 days after the commission of the crime. Thus, the arrest was invalid because there is a lapse of time from the offense to the arrest. It cannot be said that the officers have personal knowledge of the facts. However, waiver of illegality of arrest does NOT EXTEND to evidence obtained as a result of illegal arrest. Thus, evidence obtained in illegal arrest are inadmissible. People v Del Rosario - The requirement that an offense has just been committed means that THERE MUST BE A LARGE MEASURE OF IMMEDIACY between the time the offense was committed and the time of arrest. If there was an appreciable lapse of time, a warrant of arrest must be secured. Thus, In Rolito Go v CA, the arrest of the accused 6 days after the commission of the crime was held invalid because the crime HAD NOT JUST BEEN COMMITTED. Ex. X was illegaly arrested and a sachet of shabu was confiscated. X was charge of a crime of possession of illegal drugs. During arriganment X does not file a motion to quash on the ground of illegal arrest. On the trial, prosecution is now offering the sachet of shabu as object evidence. X's counsel objected that the sachet of shabu is a fruit of a poisonous tree because it is a product of illegal arrest. Hence, inadmissible. RULE 114 BAIL MTC Bail - a Security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions of law. (Sec 1, Rule 114) Arrest BAIL As a Matter of Right RTC As a Matter of Discretion Before or After Conviction (on appeal) Before Conviction of offenses not punishable by death, reclusion perpertua or life imprisonment. RTC 2. Charged of offenses punishable by death, reclusion perpertua or life imprisonment. Where to file? Bail may be given in the form of corporate srety; property bond; cash deposit; or recognizance Arraignment Available only to: BAIL Person who is in CUSTODY of the LAW Appellate Court RTC Purpose: to GUARANTEE the accused APPEARANCE in Court To be filed & acted upon by the TRIAL COURT. Provided, original record has not yet been transmitted to appellate court Constitutional Rules on BAIL Article 3, Sec 13. Constitution 1. UPON Conviction of offenses not punishable by death, reclusion perpertua or life imprisonment. General Rule: All persons, before theri conviction for criminal offense, shall be entitled to bail. The suspension of the privilege of habeas corpus does not impair the right to bail No excessive bail shall be required To be filed in appellate court, if the decision from trial court changes from non-bailable to bailable. RTC When application of bail after conviction be RTC be denied? On extradition proceedings: NOT a matter of right. Extradition proceedings are not criminal proceedings. Discretionary upon showing by clear and convincing evidence that: The applicant will not be a flight risk there exist special, humanitarian and compelling circumstance However: It is modified in Gov't of Hongkong v Olalia, the right to bail by the extraditee is now relaxed. The reason for granting bail to an extraditee is the UNIVERSAL DECLARATION of HUMAN RIGHTS. Under such declaration, it is a generally accepted principle of international law, as such, it will automatically forms part of the law of the land of Philippines. The right to bail is NOT a matter of right but a matter of discretion on the part of the Commissioner of immigration and Deportation. Conditions to a BAIL: Duration: Bail shall reamin in force if approved until promulgation of the judgment Appearance: The accused shall appear before the proper court whenever required by the court or the Rules Trial in absentia: Failure of the accused to appear without justification and despite due notice shall be deemed a WAIVER of his right to be present thereat. In such case, trial may proceed without him Surrender Bond The bondsman shall surrender the accused to the court for execution of the final judgement (Sec 2, Rule 114) 1. If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail, OR 2. His bail shall be cancelled upon showing by the prosecution, with notice to the accused, of the "bail negating circumstances", (Sec 5, Rule 114) What are the "bail negating Circumstances" That Accused is recidivist, quasirecidivist, or habitual delinquent, or has committed the crime aggravated by the circumstances of reiteration That accused is previous escapee or violated the conditions of his previous bail without justification The he committed an offense while under probation, parole, or conditional pardon. Flight risk There is undue risk that he may commit another crime during pendency of appeal Arrest NB: (Leviste v CA) If the accused is convicted by the RTC with imposed penalty of imprisonment exceeding 6 years and there is no "bail negating circumstances", the grant of bail is still discretionary. It is not automatic on the part of the RTC to grant bail. If one negating circumstance is present, bail should be denied. Arraignment The grant of bail should not be conditioned upon prior arraignment of the accused. Thus, when bail is authorized, bail should be granted before arraignment. Otherwise, the accused will be precluded from filing a motion to quash which is to be done before arraignment. 17 NOTES www.milesfajardo.com NON BAILABLE OFFENSES Who may not be admitted to bail? (Sec 7, Rule 114) - Non bailable offenses No person charged with capital offense (death penalty), or reclusion perpetua or life imprisonment penalty, shall be admitted to bail, WHEN EVIDENCE OF GUILT IS STRONG Regardless of the stage of criminal prosecution Guidelines in non-bailable offenses: (Enrile v Sandiganbayan) 1. In all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Sec 15, Rule 114, amended) 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whatever or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion. (Sec 7 & 8, Rule 114) Requires prosec to recommend HEARING is MANDATORY in application for bail in non-bailable offenses 3. Decide whether the guilt of the Thus, when prosecution does not have objection for petition for bail and the judge grants the petition on that basis. 4. If the guilt of the accused is not It is a grave error on the part of the Judge to grant the petition without hearing. accused is strong based on the summary of evidence of the prosecution strong. discharge the accused upon approval of the bailbond, otherwise petition should be denied. Guilt is: Strong, Non approval of bail Not strong, Approval of bail When bail is not required? Upon order of court When a person has been in custody for a period equal to or more than possible maximum imprisonment prescribed for the offense charged if the maximum penalty to which the accused may be sentenced is distierro, he shall be released after 30 days of preventive imprisonment In cases filed with MTC for an offense punishable by imprisonment of less than 4-2-1 and the judge is satisfied that bail is not necessary If the accused is charged with violation of ORDINANCES, LIGHT Felony, the prescribed penalty for which is not higher than 6 months or fine of 2,000 or both where it is established that he is unable to post the required bail (Sec. 16, Rule 114) Where should bail be filed? (Sec 17, Rule 114) Matter of right 1. Bail in the amount fixed may be filed with court where the case if pending 2. In the absence or unavailability of the judge thereof, with any RTC Judge, MTC judge in the province, city, or municipality. 3. If the accused is arrested in a province, city, or municipality other than the case is pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is available, with MTC judge therein. Matter of discretion/ recognizance Determination of Probable cause is different from hearing for petition for bail The hearing for bail is different from the determination of the existence of probable cause. If the court finds existence of probable cause, the court is mandated to issue a warrant of arrest or commitment order if the accused is alreadyunder custody, as when he is validly arrested without warrant. It is only after this proceeding that the court can entertain a petition for bail where a subsequent hearing is conducted to determine if the evidence of guilt is weak or not. (Jorda v Bitas) 18 NOTES www.milesfajardo.com The application of bail may ONLY be filed in the court where the case is pending, whether on P.I, trial, or appeal. Not yet Charged Any person in custody who is not yet charged in court may apply for bail with any court in province, city or municipality where he is held. On Bail: (Sec 26, Rule 114) An application for admission to bail shall not bar the accused from challenging the validity of his arrest or legality of the warrant issued or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him; provided he raises his objection before he enter his plea (before arraignment) Thus, posting of bail is not a waiver of challenging the legality of the arrest. Recognizance: (Sec 3, RA 10389) Recognizance is a mode of securing the release of any person in custody or detention for the commission of an offense who is unable to post bail due to ABJECT POVERTY. -AND- that accused shall be in custody of somebody else. Indigent litigant: Those whose gross income and that of their immediate family do to exceed an amount double the monthly min. wage of an employee -and- who do not own real property with fair market value as stated in the current tax declaration of more than 300k (Section 18, Rule 141) NO hard and fast rule here to determine if one is to be considered an indigent The courts shall use their discretion in determining whether an accused should be deemed an indigent even if the salary and property requirements are not met. Other relevant factors and conditions demonstrating the financial incapacity of the accused at the time that he/she is facing charges in court may also be considered. When recognizance a matter of right? When the offense is not punishable by death, reclusion perpetua, or life imprisonment. Before or after conviction by MTC Before conviction of RTC Provided, the person is in custody for a period equal to or more than the min. of the principal penalty prescribed for the offense charged, without application of ISLAW, or any modifying circumstance, shall be released on the person's recognizance (Sec 5, RA 10389) Who may be the custodian? A person of goof repute and probity A resident of Brgy where the applicant resides Must not be a relative of the applicant within the 4th degree of consanguinity or affinity Must belong to any church, academe, social welfare, health sector, cause-oriented groups, charitable org, or org engaged in the rehabilitation of offenders duly accredited by the local social welfare and dev't officer. RULE 115 Right to Counsel Rights of the Accused I. Custodial Investigation Out of Court Right to Counsel during C.I Trial During Arrest Custodial Investigation From arraignment to promulgation of Judgement WAIVABLE in writing & in presence of a counsel Miranda Rights Right to remain silent Right to counsel Lastly, right to be informed of those rights Effect of violation of Miranda right? Any admission/ INADMISSIBLE Exclusionary Rule confession is called the When available? Only when the accused is in Custodial investigation When do we consider that an accused is under custodial investigation? Any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in some significant way. Example: A is a police officer, somebody reported to A that X stabs victim W and died. A now ask questions to X, if he is the one who stabs W. W said Yes. Right to remain silent Right to be Informed of such rights Right to competent and independent counsel Rights cannot be waived except in writing & in presence of a counsel Here, X admitted the crime. Question: Is X under custodial investigation? Ans: NO! X is not under custodial investigation. X is not taken into custody neither he is deprived of his freedom of action in some significant way. Question: Can X demand his Miranda? Ans: NO, because X is not under custodial investigation. Question: Is admission of X admissible as evidence? Ans: NO! because it is an admission Thus, Custodial investigation starts when the police investigations NO LONGER a GENERAL INQUIRY into an unsolved crime but has began to focus on a particular suspect taken into custody by the police who starts the interrogation and propoundquestions to the person to elicit incriminating statements Rule on Police line-up What are the rights of a person during custodial investigation? The right to remain silent and to be reminded that anything he says can and will be used against him – This refers not only to verbal confessions but also to acts. However, mechanical acts that does not require the use of intelligence (such as providing DNA samples) or to answers to general questions are not protected under this right. The right to an attorney or to counsel, preferably of his own choice (not exclusive); if no choice or not choice is not available, thus, one will be provided for him – This right is absolute and applies even if the accused himself is a lawyer. Thus, City Legal office is not independent, Mayor s cannot be considered independent, applicant in NBI is not an independent counsel in the investigation conducted by the NBI. Right against torture, force, violence, threat, intimidation or any other means which vitiate the free will of the person Right against secret detention places, solitary, incommunicado, or other similar forms of detention Interesting cases: A police line-up is not part of the custodial investigation since the group of accused at the stage is not yet being investigated. In line-up, the right to counsel does not yet attched. (People v Tolentino) Rule an accused is pointed However, when the accused has already been pointed, the investigation ceases to be a general inquiry. Thus the person pointed to has now the right to counsel for he is already under custodial investigation (Mesina v People) Admission in P.I Admission to a reporter Sunga (accused), during Preliminary Investigation, when accused admitted something, he was not assisted by a counsel. Does the admission admissible? While in custody, the accused has made an admission to Noli De Castro, a news reporter, that he committed the offense charged. Is the admission admissible? NO! It was held that P.I is not different from in-custody interrogations by the police, for a suspect who takes part in preliminary investigation will be subjected to no less than the State's processes, often times intimidating and relentless, of pursuing those who might be libel for the criminal prosecution. Thus, admission made during P.I without benefit of a counsel is INADMISSIBLE in evidence. (People v Sunga) YES! The confession/admission were made in response to a question by news reporter, and not a the police or any other investigating officer. Thus, admission made to a reporter while in custody is ADMISSIBLE. (People v Andan) Admission to a Brgy. Tanod Accused has been arrested by a brgy tanod and he made an admission without a counsel. Is the admission admissible? NO! The barangay tanods, including barangay Chairman, may be deemed as LAW ENFORCEMENT OFFICER similar to a police officer that can be said under custodial investigation. Thus, admission made to a brgy tanod without benefit of a counsel is INADMISSIBLE in evidence. (People v Malngan) Right that can be invoked anytime Right against self-incrimination It protects a person from TESTIMONIAL COMPULSION or a compelled testimony of COMMUNICATIVE in nature. 18 NOTES www.milesfajardo.com Thus, you cannot invoke to exclude your body from examination when it is requested or it is relevant because it is a MECHANICAL ACT and not COMMUNICATIVE in nature. Interesting cases: No infringement of the privilege when a person is required to put on clothing or shoes for size or for measuring or photographing (People v Otadora) Obtaining DNA samples from an accused is not a violation of the right (Herrera v Alba) Taking of paraffin test is not a violation of the right (People v Fieldon) However, Force re-enactment comes within the ban against self-incrimintaion (People v Olvis) Asking someone to give a specimen of his handwriting by writing is a violation of a right because writing is not a pure mechanical act as it involves the use of INTELLECT. (Beltran v Samson) TRIAL II. During Trial What are the rights of the accused during trial 1. To be pressumed innocent until contrary is provided reasonable doubt beyond 8. To be present and defend in peson and 2. To be informed of the nature and cause of the accusations against him 3. To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence shall not in any manner prejudice him. 4. Right agaist self-incrimination: To be exempt from being compelled to be a witness against himself. 5. To have compulsory process issued to secure the attendance of witness and production of other evidence in his behalf 6. To have speedy, impartial and public trial 7. To appeal in all cases allowed and in the manner prescribed by law. 9. The right to confrontation is PART of DUE PROCESS. Mary Jane was arrested in Indonesia for drug trafficking. She was sentenced to death penalty, because of timely intervention of the government, the sentenced was suspended. According to the PH, Mary jane was a victim of human trafficking by Sergio Et al. The gov't filed a case to those who victimized Mary Jane, and the best witness in that case is no other than Mary Jane herself. The gov't filed a motion for written interrogatories of Mary Jane in Indonesia. It was opposed by the defense because they claim they cannot use Rule 24 in criminal cases. The accused argued that the applicable way to take the deposition is Sec 15, Rule 119 NOTES www.milesfajardo.com The accused may waived his presence at the trial pursuant the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he has notice shall be considered a waiver of his right to be present thereat. When the accused under custody escapes, he is presumed to have waived his right to be present on all subsequent trail dates until custody over him is reagined. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of the counsel. To confront and cross-examine the witness against him at the trial. Either party may utilize as part of its evidence the testimonyof a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, to otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. Right to confront & cross-examine 19 by counsel at every stage of the proceedings, from arraignment to promulgation of the judgement. Presence of accused is mandatory in 3 instances: Arraignment Identification Promulgation of judgement. HELD: Rule 24 is Granted with GUIDELINES. 1st purpose: The accused were not deprived of their right to cross-examination. they are allowed to do so through written interrogatories. 2nd Purpose: the right to confrontation was also complied with as the judge was present during the taking of the depostiont throug written interrogatories. It has Two PURPOSE: Primarily, to afford the accused an opportunity to test the testimony of the witness by crossexamination Secondarily, to allow the e judge to observed the deportment of the witness. (People v Sergio, 2019) Right to Counsel during Trial The right to counsel during trial is IMMUTABLE. It cannot be waived! Different from custodial investigation, where right to counsel can be waived in writing and in presence of a counsel. Interesting cases: It has been held that "even the most intelligent or educated man may have no skill in the SCIENCE of LAW, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. (People v Holgado) There is no denial of right to counsel where a counsel de oficio is appointed during the absence of the accused's counsel de parte, or in this case the regular de oficio, pursuant to the court's desire to finish the case as early as practicable under the continuos trial system. Right to be informed 2. To be informed of the nature and cause of the accusations against him (Sec 14(b), Art. 3 Consti) Consequences of the right: Sec. 8 & 9, Rule 110 implementation of the constitutional right to be informed The acts or omission constituting the offense must be specifically and clearly alledge in the complaint or information. It must be in the language clear enough for the accused to understand it the aggravating and qualifying circumstances must be alledge in the information (see page 7) Right to testify on his own behalf He may be compelled to testify but he may choose to testify Now, if he testify, he can not refuse to answer question on crossexamination on the ground that it may incriminate him (People v Ayson) Accused can only be examined on matters covered by his direct examination (Sec 1(d), Rule 115) Thus, if the accused is being questioned on matters not mentioned in direct examination, your counsel must OBJECT! "objection your honor that question is not mentioned during direct examination"... His silence shall not prejudice him (Sec 1(d), Rule 115) Presumption of Innnocence 1. To be pressumed innocent until contrary is provided reasonable doubt beyond (Sec 14(2), Art. 3 Consti) Effect of presumption: Accused need not to present evidence to prove his innocence because it is already accorded to him by the constitution. The prosecution has the burden of proving the guilt od the accused. The presumption prevails over the presumption of regularity in the performance of official function Equipoise Rule When there are conflciting version of the prosecution and defense and where the evidence, facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt. The court HAS TO ACQUIT pursuant to presumption of innocence under the constitution (People v Erguiza) BUT: When the accused admits the killing but pleads self-defense, the burden SHIFTS to the accused to prove his innocence by clear and convincing evidence. SELF-DEFENSE, when invoked, implies the admission of by the accused that he committed the criminal act. (People v Delos Santos) Thus, the Prosecutor need not to prove anything because of the implied admission of the accused. Right to compulsory process Accused has the righ to subpoena witneses He has the right to compel the attendance of a witness and have him arrested if he failed to do so Right to speedy trial Sec 14(b) Art. 3 Consti - right to have speedy, impartial and public trial. Effect of violation of speedy trial: A dismissal based on a violation of the right to speedy trial is EQUIVALENT to an ACQUITTAL, and double jeopardy may attach even if dismissal is with the consent of the accused. It would bar further prosecution of the accused for the same offence (Condrada v People) RULE 116 Arraignment C A S E F L O W Crimes that do not requires Preliminary Investigation Crimes that requires Preliminary Investigation 1 Preliminary Investigation Filing of Information Chartered City 2 Provincial 3 Filing of Complaint with Prosecutors's office Direct Filing of Complaint in Court Crimes committed in flagrante delicto or hot pursuit Filing of Information Issuance of warrant Arrest Arraignment is the formal mode and manner implementing the constitutional right of the accused TO BE INFORMED of the NATURE and CAUSE of the accusation against him. Its purpose is to apprise the accused why he is being prosecuted by the State. It is therefore INDISPENSABLE. (Taglay v Daray) Interesting case: Facts: The judge found out that the accused was not yet arraigned but the proceedings has already been submitted for decision. The accused, despite not having arraigned, DID NOT OBJECT to the continuation of the proceedings and ACTIVELY participated in the trial. HELD: The accused deemed to have WAIVED the defect of no arraignment. Further, he is deemed to have been informed of the nature and cause of the accusation against him because he actively participated in the trial. (People v Pangilinan) How is arraignment made? Arrainment shall be made in OPEN COURT by the Judge or Clerck by FURNISHING the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not. What should the court do if the accused refuse to plead? When the accused refused to plead or makes a conditional plea, A PLEA of NOT GUILTY shall be entered for him (Sec 1 (c), Rule 116) When the accused pleads guilty but presents EXCULPATORY EVIDENCE, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him (Sec 1 (d), Rule 116) NOTES www.milesfajardo.com Inquest Proceedings Filing of Information Commitment Order Arraignment Arraignment Counsel De Oficio DUTY of the COURT before arraignment If the accused can't afford to have a counsel, court must provide him one A counsel de oficio can be any one who is good member of the bar, appointed at the discretion of the Judge. Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a REASONABLE TIME to cosult with the accused as to his plea before proceeding with the arraignment (Sec 8, Rule 116) The Court shall inform the accused his rights to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court MUST ASSIGN a COUNSEL de OFICIO to defend hin. (Sec. 6 Rule 116) Options/remedies of the accused before arraignement NOT GUILTY! Bill of particulars Motion for Suspension Motion to QUASH Question validity of warrant or arrest Date of arraignment Is presence of the accused required? The accused must be present (MANDATORY) at the arraignment and must PERSONALLY ENTER his PLEA. Both arraignment and plea must be put in record but failure to put in record shall not affect the proceeding (Sec 1(b), Rule 166) How about the presence of the offended party? 19 Arrest Arraignment Arraignment It will result in the nullity of proceedings before the trial court. (Taglay v Daray) Arrest Issuance of warrant Arrest NO ARRAIGNMENT? Issuance of warrant Not actually required. The arraignment can proceed without him But if he wants to bargain, the offended party shall be REQUIRED to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. Failure to appear, despite notification, accused may be allowed to enter his plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (Sec 1(f), Rule 116) Issuance of warrant When does arraignment starts? 3 Arrest Crimes committed in flagrante delicto or hot pursuit Detained Commitment Order When the accused is under preventice detention, his case shall be raffled and its record transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint. The Accused shall be arraigned within 10 days from the date of raffle. The pre-trial conference shall be conducted on the day of arraignment (A.M no. 15-06-10-SC, Part III(b)). Modes of Discovery 30 days Not a Detainee Arraignment The arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period (Sec 1(g), Rule 116) On arraignment When shall the court ENTER the plea of the accused? ENTER PLEA 1. If the accused REFUSES to enter Plea (presumed to enter not guilty) 2. If accused makes a conditional plea 3. If accused pleads guilty BUT presents exculpatory (acquittal) evidence. ...The plea bargaining... “a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge.” (Daan v SandiganBayan) 1 Plea to a lesser offense Plea bargaining agreement is principally a contract between the accused and the prosecutor whereby the judge is not a party. THERE MUST BE A CONSENT by the offended party and the prosecutor to make the plea valid. Without consent of the prosecutor the Plea bargaining agreement is VOID. 2 Plea bargaining in DRUG CASES RA 9165 - Section 23. PleaBargaining Provision. – Any person charged under any provision of this Act regardless of the imposable penalty shall NOT BE ALLOWED to avail of the provision on plea-bargaining. Requisites: The lesser offense is necessarily included in offense charged The plea must be with the consent of both OFFENDED party and PROSECUTOR . Enter plea on arraignment proper Exception: Failure to appear, despite notification, accused may be allowed to enter his plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (Sec 1(f), Rule 116) Plea Bargaining Framework in Drug Cases (A.M no. 18-03-16-SC) "A.M. No. 18-03-16-SC (Adoption of the Plea Bargaining Framework in Drugs Cases) - On August 15, 2017, En Banc Decision in G.R No. 226679 - Salvador Estipona, Jr. vs. Hon. Frank E. Lobrigo was rendered whereby Section 23 of RA. No. 9165 was declared unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution." Among others: After arraignment but before trial After the prosecution rested its case (Trial) NB: After arraignment but before trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec 2. RULE 116) YES! It was held that plea to a lesser offense may still be considered during the trial proper or even the prosecution has finished presenting its evidence and rested its case. NOTE that it is immaterial that a plea bargaining was made only after the prosecution already presented several witnesses (Daan v Sandiganbayan) 3 Pleaded guilty to a Capital offense "IT IS AS IF TRIAL SHALL PROCEED." (Sec 3, Rule 116) The court shall conduct SEARCHING INQUIRY into the VOLUNTARINESS and COMPREHENSION of the plea Require the prosecution to PROVE his GUILT and PRECISE degree of his CULPABILITY Allow the accused to PRESENT EVIDENCE in his behalf It was issued after the Court in Estipona case declared Sec. 23 of RA 9165 as UNCONSTITUTIONAL. The purpose of this Investigative Directive is to set policy and guidelines that shall be observed by PNP personnel in the plea bargaining of criminal cases involving victimless crimes. Shabu should be: Plea to Sec. 5 (PUSHER) Shabu should be less than 1 gram (0.01-0.99 grams) Section 12 Sec. 11 (POSSESSION) Shabu should be less than 5 gram (0.01-4.99 grams) Section 12 10 grams above NO PLEA Pascua v People, G.R. No. 250578 Sept. 7, 2020 Accused was charged of Sec.5 and plead to a lesser offense that has a probationable penalty. He apply for probation but was denied by the Judge. Is the accused entitled to probation? SC held that trial court is incorrect in NOT granting the probation. People v Reafol, G.R. No. 247575 Nov. 16, 2020 A plead barganing judgement which is rendered by the court over the objection by the Prosecutor is VOID! The rule is that the COURT cannot render judgement on PLEA BARGAIN over the objection of the Prosecutor. Why? Because it violates the Sec 2 RULE 116. There is no consent by the Prosecutor. Guidelines concerning pleas of guilty to capital offense People v Pagal G.R. No. 241257 Sept. 29, 2020 At the TRIAL Stage When the accused makes plea of guilty to a capital offense, the trial court must strictly abide by t he provisions of Sec. 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure. In particular, it must AFFORD the prosecution an opportunity to present evidence as to the guilt of the accused and the precise degree of his culpability. FAILURE TO COMPLAY with these MANDATES constitute GRAVE ABUSE of DISCRETION. 20 NOTES www.milesfajardo.com a. In case the plea of guilty to a capital offense is supported by proof beyond reasonable doubt, the trial court shall enter a judgment of conviction. b. In case the prosecution presents evidence but fails to prove the accused's guilt beyond reasonable doubt, the trial court shall enter a judgment of acquittal in favor of the accused. c. In case the prosecution fails to present any evidence despite opportunity to do so, the trial court shall enter a judgment of acquittal in favor of the accused The trial court shall require the prosecution to explain in writing within 10 days from receipt of its failure to present evidence. Any instance of collusion between the prosecution and the accused shall be healthwith to the full extent of the law At the APPEAL a. When the accused is convicted of a capital offense on the basis of his plea of guilty, whether improvident or not, and proof beyond reasonable doubt was established, the judgement of conviction shall be sustained b. When the accused is convicted of a capital offense solely on the basis of his plea of guilty, whether improvident or not, without proof beyond reasonable doubt because the prosecution was not given an opportunity to present its evidence, or was given the opportunity to present evidence but the improvident plea of guilt resulted to an undue prejudice to either the prosecution or the accused, the judgment of conviction shall be set aside and the case remanded for re-arraignment and for reception of evidence pursuant to Sec. 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure. c. When the accused is convicted of a capital offense solely on the basis of a plea of guilty, whether improvident or not, without proof beyond reasonable doubt because the prosecution failed to prove the accused's guilt despite opportunity to do so, the judgment of conviction shall be set aside and the accused acquitted. 4 Pleaded guilty to a NON-Capital offense (Sec 4, Rule 116) When the accused pleads guilty to a NON-CAPITAL OFFENSE, the court MAY receive evidence from the parties to determine the penalty to be imposed. Note that the presentation of evidence is not discretionary Note again that the reception of evidence is only for the determination of the penalty to be imposed. NB: Hearing to determine the penalty to be imposed is NOT MANDATORY. Because the reception of evidence is discretionary with the courts. (People v Flores, 2000) A plea of guilty can be withdrawn At any time before the judgement of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by plea of not guilty. (Sec 5, Rule 116) Withdrwal must be categorical (People v Salomillo) Bill of particulars Person's CONSTITUTIONAL right to be INFORMED of the nature and cause of accusation against him signifies that an accused should be given the necessary data on why he is subject of the criminal proceedings. It must be described with SUFFICIENT PARTICULARITY to enable the accused to defend himself properly. (People v Hon. Mencias) Motion for bill of particulars RULES Section 9, Rule 116 The accused may, BEFORE ARRAIGNMENT, move for a bill of particulars to enable him PROPERLY TO PLEAD and PREPARE for Trial. The motion shall SPECIFY the ALLEGED defects of the complaint or information and the details desired. PRACTICAL MOVE: If the information does not properly state the crime, the proper move by the accused is to file a motion to quash the information for failure to charge an offense. When is bill of particulars available Modes of Discovery Sec 10. Rule 116 (Rule 27) This rule refers to the right of the Accused to move for production or inspection of material evidence in the possession of the prosecution. It authorizes the defense to insect, copy or photograph any evidence of the prosecution in its possession after obtaining the permission of the court. To grant the motion for production and inspection of evidence, the motion must show good reasons with notice to all parties (Cruz Jr. v People) Effect of prosecution's failure to comply with the production or inspection Rue 116 is silent on the consequences of refusal by the prosecution to produce the evidence or documents subject of discovery. Thus we can apply the ff: Rule 29 of the Civil Procedure Rule 131, Section 3(e), that when evidence is suppresed, it is presumed adverse to the prosecution What are the grounds to suspend the arraignment? a) The accused appears to be suffering from an UNSOUND mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In sucg case, the court shall order his mental examination and, if necessary, his confinement for such purpose. b) There exist a PREJUDICIAL QUESTION c) lastly, a petition for review of the resolution of the prosecutor is pending at either the DOJ or the Office of the President; provided, that the period of suspension shall not exceed 60 dyas counted from the filing of the petition with the reviewing office (Sec 11, Rule 116) Does the pendency of Petition for Review before SOJ suspend the arraignment? If there is a pending petition for review before DOJ, the court (discretionary) may suspend the proceedings uon motion by the parties. However, the court should set the arraignmet of hte accused and direct the DOJ to submit the resolution disposing of the petition on or before the period fixed b ythe Rules which, in no instance, could be more than 60 days from the filing of the Petition for Review before the DOJ, otherwise, the court will proceed with the arraignment as scheduled and withour further delay (Auguinaldo v Ventus) The motion should be written, oral motion is not enough. There should be a copy of the aid appeal bearing the stamed date of reciept of the DOJ. (Spouses Trinidad v Ang, 2011) 21 NOTES www.milesfajardo.com When the information, though sufficiently charges an offense, if INSUFFICIENT to GIVE accused SUFFICIENT DETAILS of the alleged offenses. It SEEKS PARTICULARIZATION in the information to enable the accused to properly be informed of the charge against him and enable to prepare his defense. The particularity must be such that persons of ordinary intelligence may immediately known what the information meas. (Romualdez v Sanduganbayan) Information for Plunder against Sen.Enrile The information states among others: "by REPEATEDLY RECEIVING from NAPOLES... during and/or after PROJECT IDENTIFICATION... to the APPROPRIATE GOVERNMENT AGENCIES, of NAPOLES's NON-GOVERNMET ORGANIZATIONS..." "Repeatedly receiving" - SC said, it is insufficient, to merly allege that a set of acts had been repeatedly done, and aver that these acts resulted in the accumulation of 172,834,500, as in this case. The information SHOULD REFLECT with PARTICULARITY the PREDICATE ACTS that underlie the crime of PLUNDER, based on the enumeration in Sec. 1 (d) of RA No, 7080 You need to establish the PREDICATE ACTS, because the heart of Plunder Law lies in the phrase "Combination or series of overt or criminal acts". Hence, even if the accumulated ill-gotten wealth amounts to at least 50 million, a person cannot be prosecuted fro the crime of plunder if this resulted from SINGLE CRIMINAL ACT only. COnsidering that without a number of pvert act or criminal acts, there can be no crime of plunder, the various overt acts that constitute the COMBINATION and SERIES the infromation allege, are material facts that should not only be allege, BUT MUST BE STATED with SUFFICIENT DEFINITENESS so that the accused would know what he is specifically charge of and why he stands charged, so that he could properly defend himself against the charge. Bill of particulars Bill of particulars presupposes a VALID INFORMATION Quashal of Infomation Motion to quash is JURISDICTIONAL DEFECT on the account that the facts charged in the information does NOT CONSTITUTE an OFFENSE. Clearly then, a bill of particulars does not presupposes an INVALID infromation for it merely fills in the details on an otherwise valid information to enable an accused to make intelligent plea and prepare for his defense (Enrile v People) If the motion for Bill of Particulars is nor filed, defect is waived! The failure of the accused to move for specification of the details desired deprives him of the right to object to evidence that could be introduced and admitted under an Information of more or less terms but sufficiently charges the accused with definite time. (People v Marquez) RULE 117 Motion to Quash When is motion to quash available? The accused may move to quash the complaint or information, At any time BEFORE entering his plea. RULE on WAIBABILITY: If the accused did not question the defective information at any time before entering his plea, he is deemed to have waived any of the waivable defects in the information, including the supposed lack of particularity in the description of the attendant circumstances. (People v SOLAR) NW - Not waivable W - waivable GROUNDS: NOT Waivable a. That the facts CHARGED do not constitute an offense. NOT Waivable b. That the court trying the case has no jurisdiction over the offense charged. Waivable Waivable c. That the court trying the case has no jurisdiction over the person of the accused d. That the officer who filed the information had no authority to do so Waivable e. That it does not conform substantially to the rescribed form Waivable f. That more than one offense is charged except when a single punishment for various offenses is prescribed by law NOT Waivable NOT Waivable NOT Waivable g. That the criminal action or liability has been extinguised h. That it contains averments which, if true, would constitute a legal excuse or jurisdiction i. That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise without his express consent OMNIBUS MOTION RULE RULE: Failure of the aaccused to asset any ground of a motion to quash BEFORE HE PLEADS to the complaint or information, either because he did not file a motion to quash or failed to allege the same in the said motion. Effect: It shall be deemed a waiver of any objection (Section 9, Rule 117) Exception: a. Facts do not constitute an offense b. Lack of juristiction over subject matter h. Extinction of criminal liability i. Double Jeopardy Will the quashal of information bar to another prosecution? It will not bar another prosecution for the same offense. This means that another complaint or information may be filed (Sec 6, Rule 117) Exceptions: Extinction of criminal liability Double jeopardy The following are NOT grounds to quash the information: Execution of affidavit of desistance Absence of Probable cause Matter of defense Absence of Preliminary Investigation a. That the facts CHARGED do not constitute an offense. NW! Only the facts alleged in the information shall be considered. The allegations must be HYPOTHETICALLY admitted The court may consider amendment of the Information Illustrative Case: Accused was criminally charged for carrying a loaded firearm without the required written authorization from the COMELEC during election period. He file a motion to quash attaching in his motion a certificate of authorization from COMELEC. Accused motion to quash has been denied because it was held that it was not one of the grounds of motion to quash an information. Said attachedment is an evidentiary matter. (Los Banos v Pedro) Accused was indicted for bigamy. All the elements for bigamy was alleged in the information. Accused filed a motion to quash contending that his previous marriage with his first wife is already annuled. The motion to quash is denied. Thus, as a RULE, all grounds that is not provided in sec 3, Rule 117. Is a prohibited motion. b. That the court trying the case has no jurisdiction over the offense charged. NW! It must be based on the allegation in the information it must be based in law it is subject to re-filling to the court of proper jurisdiction e. W! That it does not conform substantially to the prescribed form Refer to Sec. 6 Rule 110 - Sufficiency of complaint or information - A complaint or information is sufficient if: 1. it states the name of the accused; 2. the designation of the offense given by the statute; 3. the acts or commissions complained of as constituting the offense; 4. the name of the offended party; 5. the approximatedate of the commission of the offense; 6. and the place where the offense was committed. 6! What if the information does not allege facts constituting treachery, is the defect waivable? Yes, Waivable! (People v SOLAR) c. That the court trying the case has no jurisdiction over the person of the accused W! When there is illegality of arrest subject to waiver when the accused enters plea the waiver does not extend to the evidence obtained as a result of illegal arrest NB: Jurisdiction over the person of the accused is aquired upon his arrest or voluntary appearance (people v Umbero) When the accused asked an affirmative relief from the court, there is voluntary appearance (Santiago v Vasquez) When the accused specifically questions the jurisdiction of the court over his person, like motion to quash warrant of arrest, it is not considered voluntary appearance, as long as he have not yet enters his plea. (People v Go.) d. That the officer who filed the information had no authority to do so W! The RULES provides that "no complaint or information may be filed or dismissed by an investigating prosecutor without prior written authority or apporaval of the provincial or city prosecutor or ombudsman. This requirement is Mandatory. (Quisay v People) Remeber that this ruling was already ABANDONED by VILLA-GOMEZ case. It is not Mandatory at all, it can be Waived! Thus, if an information has no written approval of the Chief Prosecutor or provincial prosecutor, and you as the counsel to the accused does not question it in a motion to quash, you waived it by your silence, acquiescence, or failure to raise such ground during arraignment or before entering a plea. VILLA-GOMEZ f. W! That more than one offense is charged except when a single punishment for various offenses is prescribed by law The accused may be convicted for as many offenses charged in the information as are proved during the trial. g. NW! That the criminal action or liability has been extinguished Art. 89 RPC - Absolute extinguishment Death Service of Sentence Amnesty Absolute Pardon Prescription Prescription of Penalty Marriage of offended women Art. 94RPC - Partial extinguishment Conditional Pardon Commutation of sentence Allowance for good conduct 22 NOTES www.milesfajardo.com i. NW! DOUBLE JEOPARDY 4th requisite in double jeopardy explained: Requisites: 1. A valid Complaint or Info 2. Filed in Competent court 3. A Valid plea was entered by the accused 4. Acquittal or conviction of the accused, or the dismissal or termination the case against him without his express consent. Dismissal should be without accused express consent. No DJ if with his express consent. Exceptions: moves with consent but DJ will takes place Demurrer to evidence Dismissal due to speedy trial Discharged as state witness Different kinds of DISMISSAL: No DJ - No Double.J DJ - Double Jeopardy NO DJ Provisional Dismissal - case can be revived in a period according to rules. DJ Dismissal Evidence for Insufficiency DJ Dismissal for violation of speedy trial DJ a. | b. | c. | d. | e. | f. | h. g. Extinction of criminal liability i. Double jeopardy Reason: Curable Reason: NOT Curable Withdrawal of Inforamtion NO DJ before arraignment DJ after arraignment and Withdrawn over the objection of the accused Tantamount to acquittal Effect: If the elements of double jeopardy are present, the accused may not be prosecuted anew for the original offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the original complaint to information (sec 7. Rule 117) Interesting case: (Aguilar v Judge San Pedro, 2010) The accused was CONVICTED for reckless imprudence resulting in slight physical injuries. Now, he is being charged with reckless imprudence resulting in homicide and damage to property. Both cases arose from the same incident. HELD: Reckless imprudence is a SINGLE CRIME, its consequences on persons and property are material only to determine the penalty. Therefore, prior conviction or acquittal of reckless imprudence BARS subsequent prosecution for the same quasioffense. Section 8, Rule 117 - A case shall not be provisionally dismissed EXCEPT with the EXPRESS CONSENT of the accused and with notice to the offended party. of Dismissal because Info was Quashed! NO DJ Provisional Dismissal NO DJ in the Following: The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both, shall become permanent 1 year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. Requisite of Provisional dismissal 1. The prosecution with the express conformity of the accused, or the accused moves for a provisional dismissal of his case; or both the prosecution and the accused move for its provisional dismissal 2. the offended party is notified of the motion for provisional dismissal of the case 3. The court issues an Order granting the motion and dismissing the case provisionally 4. The public prosecutor is served with a copy of the Order of provisional dismissal of the case (Bonsubre, jr. v Yerro) Where do we compute the 1 or 2 period for reviving the case as criminal case? Reckoned from the issueance of the ORDER OF DISMISSAL. HOWEVER, SC held that this the order shall only be permanent AFTER the service of the ORDER of dismissal on the Prosecutor who has CONTROL of the prosecution. The Prosecutor cannot be expected to comply with the timeline UNLESS he is served with the copy of the order of dismissal (Co v New Prosperity Plastic, 2014) The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge the facts constituting the graver charge become known or were discovered only after plea was entered in the former complaint the ple of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party, except as provided in sec 1(f) of Rule 116. 23 NOTES www.milesfajardo.com RULE 118 C A S E COMMISSION OF THE CRIME Pre-Trial Sec 1, Rule 117 - Pre-trial; mandatory in criminal cases. - In all cases cognizable by SB, RTC, MTC, the court shall, AFTER ARRAIGNMENT and within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period ois provided for in special laws or circulars of the SC. Arraignment -and- MANDATORY Pre-Trial Crimes that do not requires Preliminary Investigation Crimes that requires Preliminary Investigation Pre-trial in criminal cases is MANDATORY After F L O W w/in 30 days from the date the court acquires jurisdiction over the person of the accused However there is a new rule to be observed under the CONTINUOUS TRIAL RULE. Preliminary Investigation Chartered City Provincial 2 3 Filing of Information Filing of Complaint with Prosecutors's office Direct Filing of Complaint in Court Crimes committed in flagrante delicto or hot pursuit Issuance of warrant Arrest Arraignment MANDATORY Pre-Trial 1 Filing of Information Issuance of warrant Arrest Issuance of warrant Arrest Inquest Proceedings Arrest Arraignment Filing of Information Arraignment MANDATORY Pre-Trial MANDATORY Pre-Trial Commitment Order Arraignment MANDATORY Pre-Trial THUS, New rule on Continuous trial: Detainee within 10 calendar days from the date of the court's receipt of the case for a detained accused Arraignment MANDATORY Pre-Trial within 30 calendar days from the date the court acquires jurisdiction (either arrest or voluntary surrender) over a non-detained accused Arraignment and Pre-trial shall be conducted on the SAME DAY! Non-appearance during pre-trial Sec. 3 Rule 118. Non-appearance at Pre-trial Conference - If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. Schedule of arraignment and Pre-trial - Once the court acquired jurisdiction over the accused, the arraignment and the pre-trial shall be set within 10 calendar days from the date of the court's receipt of the case for a detained accused, and within 30 calendar days from the date the court acquires jurisdiction (either arrest or voluntary surrender) over a non-detained accused, unless a shorter period is provided by special law or SC. (A.M No. 15-06-10-SC, Revised Guidelines for Continuous Trial of Criminal Cases Pre-trial Order Sec. 4 Rule 118. - After the pre-trial conference, the court shall issue an ORDER reciting the the actions taken, the facts stipulated, and evidence marked. Such order SHALL bind the parties, limit the trial to matters not disposed of, and control the course of the action during trial, unless modified b ythe court to prevent manifest injustice. Matters to be considered during Pre-trial A. B. C. Plea Bargaining Stipulation of facts Marking for identification of evidence of the partis D. Waiver of obections to admissibility of evidence E. Modification of the order of trial of the accused admits the charge but interposes a lawful defense; and F. Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case Pre-Trial agreements Pre-Trial (Sec 2, Rule 118) ALL agreements or admissions made or entered during the pre-trial conference shall be: Reduced in writing and SIGNED by the ACCUSED & COUNSEL Otherwise, they cannot be USED AGAINST the ACCUSED. Thus, in People v Uy, the SC held that even granting for the sake of argument that the accused admitted during the pre-trial the exhibits against him, said admission cannot be used in evidence against him because the JOINT ORDER was not SIGNED by the PARTIES. To bind the accused, the PRE-TRIAL ORDER MUST be SIGNED not only by him but also his COUNSEL as well. 24 NOTES www.milesfajardo.com C A S E RULE 119 F L O W COMMISSION OF THE CRIME TRIAL Crimes that do not requires Preliminary Investigation Crimes that requires Preliminary Investigation 1 Preliminary Investigation Filing of Information Trial Provincial 2 3 Filing of Complaint with Prosecutors's office Direct Filing of Complaint in Court Crimes committed in flagrante delicto or hot pursuit Filing of Information Issuance of warrant After a plea of not guilty is entered, the accused shall have at least 15 days to prepare fro trial. (Sec 1. Rule 119) Chartered City Issuance of warrant Arrest Arrest Issuance of warrant Arrest Inquest Proceedings Arraignment Arrest Arraignment Filing of Information Pre-Trial Arraignment Pre-Trial Commitment Order New rule on Continuous trial: Trial Trial shall be set NOT LATER than 30 days from the termintaion of the Pre-trial conference. (A.M. No. 12-11-2-SC) Pre-Trial Arraignment Trial Trial Regular Cases: Trial MANDATORY Trial Drug Cases: Arraignment Arraignment Pre-Trial Judgment MANDATORY Trial Judgment Trial to be finished 60 days from filing of info Promulgation is within 15 days from time of submission of decision Pre-Trial Pre-Trial 30 days 30 days 180 days Presentation of prosecution and defense 90 days Promulgation of decision Environmental Cases: Intellectual Property Rights cases Arraignment Arraignment Trial MANDATORY Judgment MANDATORY Trial Judgment Pre-Trial Pre-Trial 30 days Trial to be finished 90 days or 3 months from filing of info 30 days Memo 30 days Decision is 60 days from receipt of last memo Trial to be finished 120 days or 4 months from filing of info (each party has 60 days each) 30 days Memo Judgment is 90 days from submission of decision Disposition period shall be within 10 months from the date of arraignment Cases referred to mediation Arraignment Accused right to speedy disposition of the case Sec. 10 Rule 119. - No provision of law on speedy trial and no rule implementing the sam shall be interpreted as BAR to any change of denial of the right to speedy trial guaranteed by Sec 14(2), Art 3. 1987 Constitution. What cosntitute INORDINATE delay in the cases filed before the OMBUDSMAN? MANDATORY Mediation Trial 30 days mediation period Trial to be finished 180 days Judgment Pre-Trial refer to mediation Judgment is 90 days from submission of decision In deremining whether there is violation of the right of a respondent to speedy disposition of cases in cases filed before the OMBUDSMAN, the period for fact-finding investigation should not be counted. For the purpose of determining whether inordinate delay exist, a case is deemed to have commenced from the filing of the formal complaint and subsequent conduct of preliminary investigation (Cagang v SB, GR. No. 206438, July 31, 2018) 25 NOTES www.milesfajardo.com Order of trial (Sec. 11 Rule 119) Conditional Examination of Witnesses Applying modes of discovery Prosecution presents Evidence For Defense Witness The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. A. B. Rebuttal Sur-rebuttal The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. C. Admissions Submitted of Evidence for decision Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. D. When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. E. Reverse TRIAL If accused admits the crime BUT interposes lawful defenses, such as SELF-DEFENSE. A. Defense presents Evidence I don't want to testify. How much is the bail? B. Prosec presents Evidence How to secure attendance of a MATERIAL witness (Sec. 11 Rule 119) Bail to secure appearance of material witness. — When the court is satisfied, upon proof or oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. STATE WITNESS If you are a state witness, you are discharged with your criminal liability. TANTAMOUNT TO ACQUITTAL (Sec 18, Rule 119) 2 ways to become a state witness (Ampatuan, Jr v De Lima) By discharge from criminal case pursuant to Sec 17 of rule 119 By approval of his application for admission into the WITNESS PROTECTION PROGRAM of the DOJ in accordance with RA 6981 (Witness Protection Security and Benefit Act) Under Sec 17, Rule 119 Requisites: 1. There must be 2 or more accused who are jointly charged with the commission of an offense 2. The motion for discharge is filed by the prosecutor before it REST its CASE 3. The prosecution is required to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge 4. The accused give consent to be a state witness The prosecution shall file a MOTION Period to file? The motion shall be filed before the prosecution rest its case The court shall require the prosecution to present evidence and sworn statement of each proposed state witness. The court shall conduct a hearing in support of the discharge. Play of Rules is now subject of RULES of EVIDENCE Defense presents Evidence The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case. (Sec. 12 Rule 119) Application for examination of witness for accused before trial. — When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. Defense Witness is: SICK or other reasonable ground not to attend For Prosecution Witness (Sec. 15 Rule 119) When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the order of the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. Prosec Witness is: Too Sick or infirm to appear at the trial as directed by the order of the court He has to leave the Philippines with no definite date of returning 100 KM away from place of trial How made? (Sec. 13, Rule 119) How made? (Sec. 15, Rule 119) The examination shall be taken before a judge (place where witness is residing), or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The conditional examination of the Prosec witnesses can ONLY be done BEFORE the COURT where the case is PENDING (Vda de Manguera v Risos) The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. A copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The testimony shall be recorded. Deposition for defense witness must be done BEFORE TRIAL According to People v Webb, it can be gleaned from the definition of deposition and in keeping with the mode of discovery, it should be taken BEFORE and NOT During the TRIAL. However, in People v Sergio. See page 19 May Rule 23 of the Rules of Civil Procedure be applied in criminal cases? HELD: Rule 23 is Granted with GUIDELINES. There is no way they Sec 15, Rule 199 would apply because Mary Jane is not sick nor has to leave Philippines with no definite date of returning. Thus, SC in this exceptional case warrant the liberal application of the rules to serve the ends of justice. Will it violate the right of the accused to meet the witnesses face to face? NO. The purpose of the rigth to confrontation are as follows: Primarily, to afford the accused an opportunity to test the testimony of the witness by crossexamination Secondarily, to allow the judge to observed the deportment of the witness. It was properly observed becausethe court give guidelines in deposing Mary Jane 1st purpose: The accused were not deprived of their right to crossexamination. they are allowed to do so through written interrogatories. You can cross-examine thru written interrogatories. 2nd Purpose: the right to confrontation was also complied with as the judge was present during the taking of the depostiont throug written interrogatories. 26 NOTES www.milesfajardo.com What needs to be proved before the court may discharged the accused as a state witness? (Sec. 17, Rule 119) a. There is absolute necessity for the testimony of the accused whose discharge is requested b. The is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; c. The testimony of said accused can be substantially corroborated in its material points; d. Said accused does not appear to be the most guilty; and e. Said accused has not at any time been convicted of any offense involving moral turpitude. - Insufficiency of Evidence Demurrer to Evidence (Sec. 23, Rule 119) Filed after the prosecution rested its case Filed either with leave of court or without leave of court If filed with leave of court and is denied by the court, the accused will still be allowed to present evidence If filed without leave of court and is denied by the court, the accused will not be allowed to present evidence and the case will be submitted for decision. On trial: When prosecutor is done presenting all his evidence. Mistake in CHARGING the proper offense Rule 119, Section 19. When mistake has been made in charging the proper offense. — 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. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. In relation to Sec. 14 Rule 110 par. (3) 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 section 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. "In dismissing the original case upon the filing of the proper information." 2nd Info 1 Prosecution rested its case. The counsel for accused may file motion to demurrer to evidence before he presents his evidence FIle Demurrer to Evidence 2 DENIED OR After the prosecution rest its case, the court may dismiss the action on the ground of insufficiency of evidence on its own initiative. GRANTED Demurrer with LEAVE OF COURT Demurrer withOUT LEAVE OF COURT The counsel for accused may file motion to demurrer to evidence before he presents his evidence the accused will not be allowed to present evidence and the case will be submitted for decision. Substitution or Amendment? (Pacoy v Cajigal, 2007) Rule: Where the 2nd information involves the same offense, or offense which necessarily includes or is necessarily included in the first information - AMENDMENT is sufficient If not, where the new information charges an offense which is distinct and different from that initially charged SUBSTITUTION is proper. OR Dismiss the case MOTU PROPIO upon insufficiency of evidence Grant the demurrer due to insufficiency of evidence. Tantamount to ACQUITTAL On Appeal Order of Denial on motion for leave of court to file demurrer shall not be reviewable by appeal or Certiorari R.65 Prosec Remedy? RULE 65. CERTIORARI. Go on with trial and present evidence 27 NOTES www.milesfajardo.com RULE 120 Judgement Promulgation (Sec. 1, Rule 120) Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. Interesting case: In Rivera v People, the judge made an order in OPEN COURT dismissing the case for failure to adduce evidence on the part of the prosecution. Later the Judge issued an order setting aside his order in open court and allowed prosecution to present evidence. The accused objected on the ground of double jeopardy. It was held that there is no double jeopardy because the Judge issued a verbal order of dismissal. Thus, void. The Judgment must be personally written and signed by the judge. Judge A (Manila RTC) Lateral transfer Variance between allegation & proof (Sec. 4, Rule 120) The accused shall be convicted of the offense proved which is included in the offense charged or of the offense charged which is included in the offense proved. Example: Allegation: Proved: Conviction: Murder Homicide Homicide Homicide Murder Homicide Note that the conviction is always on the lower offense. Q.C RTC NB: A case already submitted for decision shall be decided by the Judge to whom they were submitted, even if the judge was laterally transferred to a different RTC. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside of the province or city, the judgment may be promulgated by the clerk of court. How is judgement promulgated when the accused is detained Accused is: (Sec. 5, Rule 120) Acquited Convicted (Sec. 2, Rule 120) Civil liability may still be awarded Judgment shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely fails to prove his guilt beyond reasonable doubt. In either case, the judgement shall determine if the act or omission from which the civil liability might arise did not exist. 2 kinds of acquittal Judgement shall state: (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. (Sec. 5, Rule 120) An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as allege in the complaint or information, constitute the latter. An offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter (Sec. 5, Rule 120) Promulgation of Judgement Judgement When do we say that an offense is included in another offense? If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court. Who gives notice? The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. How promulgated is made when accused failed to appear? In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. Judgement is CONVICTION but fails to appear 1 2 Acquittal on the ground that the accused is not the AUTHOR of the act or omission complained of. Acquittal based on reasonable doubt on the guilt of the accused NO CIVIL LIABILITY MAY ATTACH 28 NOTES www.milesfajardo.com CIVIL LIABILITY MAY ATTACH When the civil liability attaches, the offended party may appeal the civil liability. (Sanchez v Far East Bank & Trust Co.) 3 Categories of acquittal where civil liability arises (Salazar v Peopl): Acquittal based on reasonable doubt Court declared that the liability of accused is only civil Where civil liability of the accused does not arise from the crime where the accused was acquitted. EFFECT: If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. REMEDY: Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (6a) Acquited Convicted DOUBLE JEOPARDY NOW CAN BE INVOKED GO TO REMEDIES AGAINST JUDGMENT OF CONVICTION Remedies Modification of Judgement Re-opening Modification of Judgement of proceedings (Sec 7, Rule 120) (Sec 24, Rule 119) Motion for New Trial (Sec 1, Rule 121) Re-opening MODIFICATION Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. Accused is: Final Judgement A judgment becomes final after the lapse of the period for perfecting an appeal Convicted APPEALS (Sec 1, Rule 121) (Rule 122) REOPENING of proceedings (Sec 7, Rule 120) A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. FILE a motion for modification of judgement Reconsideration Against Judgement of Conviction upon motion only Judgement Promulgation Motion for motu proprio or upon motion (Sec 24, Rule 119) At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarrage of justice. The proceedings shall be terminated within thirty (30) days from the order grating it. Judgement Promulgation Accused is: REOPEN motu proprio or upon motion, with hearing in either case Final Judgement A judgment becomes final after the lapse of the period for perfecting an appeal Convicted NB: After parties have already rested their case, the TRIAL may be RE-OPENED for further reception of evidence. (Cabarles v Maceda) New Trial or Reconsideration (Sec 1, Rule 121) New trial or reconsideration. — At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) Shall be in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence, the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the prosecutor. (Sec 4, Rule 121) Judgement Promulgation Accused is: Convicted File MR or NT Apply Fresh Period Rule (Neypes Rule) Final Judgement A judgment becomes final after the lapse of the period for perfecting an appeal The movant has a Fresh period of 15 days from receipt of the notice of order denying or dismissing the MR/NT within which to file a notice of appeal MR Motion for Reconsideration (Sec 1, Rule 121) If granted Grounds: upon motion only & In WRITING The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings The original judgment shall be set aside or vacated and a new judgment rendered accordingly. Motion for New Trial New Trial (NT) upon motion only & In WRITING (Sec 1, Rule 121) Grounds: (a) The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; *during the trial means Arraignment to Rendition of Judgement (b) The new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. Requisites of newly discovered evidence: Evidence must be discovered AFTER TRIAL It could not have been previously discovered & produce at the trial even with exercise of reasonablediligence It is new and material evidence If introduced and admitted, it would PROBABLY change the Judgement. If granted If granted On the ground of errors of law or irregularities committed during the trial On the ground of newly-discovered evidence All proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. The evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. The original judgment shall be set aside or vacated and a new judgment rendered accordingly. 29 NOTES www.milesfajardo.com APPEALS (Rule 122) Appeal RULE 122 - 125 Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Sec 1, Rule 122) Acquited Modification Reopening Convicted DOUBLE JEOPARDY NOW CAN BE INVOKED MR | NT The prosecution cannot appeal the case because the right of the accused against double jeopardy shall bar them. However, there is still a remedy and that is RULE 65. Apply Fresh Period Rule (Neypes Rule) File Notice of appeal A judgment becomes final after the lapse of the period for perfecting an appeal Judgement Promulgation Prosec Remedy? Final Judgment Appeal must be taken 15 days from: 1. Promulgation of judgement 2. Notice of Final order RULE 65. CERTIORARI. File a petition for certiorari under Rule 65 in the higher court questioning if there is grave abuse of discretion on the judge amounting to lack and excess of jurisdiction. Decided by: Appeal to: Notice of Appeal under Rule 40 1 MTC RTC shall be taken by filing a notice of appeal with MTC and by serving a copy thereof upon the adverse party. Petition for review under Rule 42 MTC NOTA BENE: In criminal cases, an appeal THROWS the CASE WIDE OPEN for REVIEW (meaning everything can be questioned) and the reviewing court can correct errors or even reverse the trial court's decision on grounds other than those that the parties raised as errors. (Guy v People) RTC CA Notice of Appeal under Rule 41 2 RTC CA 3 Death Penalty CA Automatic Review RTC (Sec 11, Rule 122) (a) An appeal taken by one or more of several; accused SHALL NOT AFFECT those who did not appeal Except insofar as the judgment of the appellate court is favorable and applicable to the latter. (b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. (c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. CA CA If RTC imposes death penalty, CA shall Automatically review it. SC CA imposes Death Penalty CA renders judgement, but refrains from making an ENTRY of judgment and certifies the case and elevate to SC fro review No notice of appeal in Death penalty No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court. The records shall be forwarded to the Supreme Court for automatic review and judgment within five (5) days after the fifteenth (15) day following the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter. (10a) 4 CA CA NOTES www.milesfajardo.com shall be taken by filing a notice of appeal with the RTC or final order appealed from and by serving a copy thereof upon the adverse party. The appeal to the Supreme Court in cases where the penalty imposed by the RTC is reclusion perpetua, or life imprisonment or lesser appeal, shall be by filing a notice of appeal with RTC Appeal by ANY SEVERAL ACCUSED? 31 MTC orig jurisdiction and RTC is the appellate jurisdiction, then File petition for review with CA within 15 days from receipt of notice. SC SC CA imposes Reclution perpetua or Life imprisonment Rule 41. Notice of Appeal Other than Death, Reclution perpertua or Life imprisonment Rule 45. Petition for Review on Certiorari RULE 126 Search & Seizures Constitutional rights Article 3, Sec 2. Constitution Search Warrant (SW) (Sec 1, Rule 126) 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. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. NB: The rule against unreasonable searches and seizures is a protection AGAINST GOV'T intrusions (Sec 2, Art 3. Consti). It does NOT extend to acts committed by private individual and entities (Sesbreno v Ca, 2014) Search Warrant a MODE OF DISCOVERY REMEMBER: Any evidence obtained in violation of Sec 2 shall be inadmissible for any purpose in any proceeding. (Sec 3, Art 3. Consti) NB: A search warrant is NOT a criminal action nor does it represent a commencement of a criminal action. It is not a proceeding against a person but it SOLELY for the DISCOVERY and to get POSSESSION of personal property, it can be prosecuted without the direct control and participation of the public prosecutor (Worldwide Web Corp v People, 2014) Where to apply search warrant? (Sec 2, Rule 126) Any court within whose territorial jurisdiction a crime was committed. For compelling reasons stated in the application, any court within the judicial region (RTC) where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. HOWEVER, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Requisites for issuance of search warrant In cases involving HEINOUS CRIMES. illegal gambling, DANGEROUS DRUGS and illegal possession of fire-arms. Execituve Judge & Vice executive judges of RTCs Manila & Q.C in application filed by PNP, NBI, PAOC-TF, and REACT-TF The SC also included PDEA & BOC among those agencies which can apply search warrant. (AM No, 99-20-09-SC) NB: The search warrant issued by Executive Judge and Vice Executive judges are enforceable to the whole PH. Properties that may be subject to seized (Sec 3, Rule 126) (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. RULE: Only personal properties described in the search warrant MAY be seized. Exception: PLAIN VIEW DOCTRINE. seizure of evidence in "plain view (Allan Liwanag v People) Requisites: (1) Law enforcement officers in search of the evidence have a prior justification (ei. conducting search with warrant) for an intrusion or are in a position from which they can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officers that the item they observed may be evidence of a crime, a contraband or is otherwise subject to seizure. Search incident to lawful arrest (Sec 13, Rule 126) A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. 32 NOTES www.milesfajardo.com (Sec 4, Rule 126) NB: Reiteration of the Article 3, Sec 2. Constitution Modification A search warrant shall not issue except upon: 1 probable cause in connection with one specific offense 2 to be determined personally by the judge 3 1 after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines "One specific offense" RULE: One search warrant = One offense The constitution requires that a search warrant must be issued in connection with one specific offense. The single offense requirement is meant to prevent the issuance of SCATTERSHOT WARRANT. The specific offense requirement reinforces the constitutional requirement that a search warrant should issue on the basis of probable cause. (Stonehill v Diokno, 1967) HOWEVER, the rule is not violated when search warrant covers SEVERAL counts of a CERTAIN specific OFFENSES (Columbia Pictures v CA, 1996) Ex. 20 counts of falsification or 10 counts of estafa Interesting Case: One search warrant, one offense rule People v Pastrana - search warrant was issued for violation of Securities Regulation Code and for Estafa, the SC ruled that it is a scattershot warrant People v Dichoso - the search warrant was issued for violation of RA 6425 (Old law on dangerous drug Act) without specifying what provision of that law was violated. The SC upheld its validity. There are many violations inside RA 6425, but SC ruled it is sufficiently valid. "determined personally by the judge" 2 3 Probable Cause for SW Who issue? By the JUDGE In issuing search warrant (Section 4, Rule 126) Probable Cause for filing of Info May be based on Hearsay (Estrada v Ombudsman) The existence of such FACTS and CIRCUMSTANCES which would lead a reasonable discreet and prudent man to believe that the offense has been committed and that the objects sought in connection with the offense are in the place to be searched (Century Chinese Medicine Co. V People) PLACE THINGS 1. As a rule, place to be searched must be stated in particularity. However, even if the place to be search is not particularly described in the search warrant but the implementing officer has personal knowledge as to the place to be search, because he is the one who applied for the issuance of search warrant, then there is no violation of particularity of place. (Yao, Sr. v People) Thus, if the searching officers are familiar with the place to be searched, then the requirement of particularity is complied with. Probable Cause for SW Can't be based on HEARSAY Must be based on the PERSONAL KNOWLEDGE of the COMPLAINANT and the WITNESSES Thus, the determination of the judge of the probable cause must be based on the personal knowledge of the one who applies for search warrant and its waitnesses 1. As a rule, warrant is valid when it enable the police officers to readily identify the properties to be seized and leaves them no discretion regarding the articles to be seized. 2. In Vallejo v CA, the court clarifed that technical precision of description is NOT required. "it is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, sot that the warrant shall not be a mere roving commission." 2. Any designation or description that points out the place to the exclusion of others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement of particularity. (ei. sketch map in the warrant) How shall the examination of the judge be conducte? (Section 5, Rule 126) The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Particularity of Place and Things INVALID warrants: How shall the examination by the judge SHOULD be conducted? Although there is no hard and fast rule governing how a judge should conduct his investigation, it is neverthe less required that the examination must be PROBING and EXHAUSTIVE, not merely routinary, general, peripheral, perfunctory or pro format. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application (Yao Sr. v People) VALID warrants: "Book of accouts, financial records... etc... and OTHER DOCUMENTS AND PAPERS SHOWING ALL BUSINESS TRANSACTION...". An invalid warrant. because it seems that almost everything has to be taken. They did not make any particularity. (Stonehill v Diokno) "Television sets, video cassette recorders, rewinders... etc... and other machines used or intended to be used in unlawful reproduction, sale, rental/lease, distribution of abovmentioned video tapes. An invalid warrant. (20th Century Fox Film Corp v CA) "multiple sets of books, ledgers, journals... etc... Invalid warrant. (Uy v BIR) "Unlicensed firearms of various calibers and ammunitions for said firearms" (Kho v Makalintal) "Undetermined amount of marijuana or indian hemp". Valid. (People v Tee) Seach Warrant Implementation WHEN? (Section 9, Rule 126) The warrant must direct that it be served in the daytime, UNLESS the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. HOW? (Section 8, Rule 126) No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof 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. (Section 7, Rule 126) The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, 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. 33 NOTES www.milesfajardo.com (Section 11, Rule 126) The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (Section 11, Rule 126) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. Motion to quash or suppress evidence Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved by the latter court Remedy when the search warrant is quashed There is case No case yet As an incident to the main case In anticipation of the criminal case to be filed It is a final order, the remedy is APPEAL It is merely an Interlocutory order. The remedy if Rule 65. Certiorari if there is grave abuse of discretion. Search incidental to a lawful arrest Seizure of evidence in Plain view Stop and Frisk Exigent or emergency circumstances Consented warrantless search Search of vessels and aircraft Custom search Inspection of buildings and other premises fo the enforemsent of fire, sanitary or building regulations Search incident to lawful arrest (Sec 13, Rule 126) Then search Peace officers are limited only to rountine checks where examination of the vehicle is limited to visual inspection. Before the vehicle may be subjected to extensive search such would be permissible only if the officers made it upon PROBABLE CAUSE. (People v Libano) Check points Only visual search, routinary search is valid. PLAIN VIEW DOCTRINE. seizure of evidence in "plain view (Allan Liwanag v People) Requisites: (1) Law enforcement officers in search of the evidence have a prior justification (ei. conducting search with warrant) for an intrusion or are in a position from which they can view a particular area; A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. NB: the search is limited to search for DANGEROUS WEAPON, for anything that may have been used for the commission of the offense or proof of the commission of the offence. However, SEARCH CAN BE EXTEND " within the area of IMMEDIATE control of the arrest. (Valeroso v CA) Thus, X is arrested besides his car. Can search be extended to X's car? The answer is YES! Y is arrested while onboard of his motorcycle. Can search be extended to his motorcycle? The answer is YES! However, if X is arrested outside his house wherein his house is just 15 meters away. The search can not be extended to X's house, because the house is not anymore within the area of immediate control of the arrest. (3) it is immediately apparent to the officers that the item they observed may be evidence of a crime, a contraband or is otherwise subject to seizure. Stop and Frisk Accused is not committing a crime. A genuine reason must exist, in light of the police officer's experience and surrounding condition, to warrant the belief that the person detained has weapons concealed about him. Two fold interest: Effective crime prevention and detection Safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed (People v Comprado, 2018) Thus, in Posada v CA, two policemen were conducting a surveillance within the premises of the Rizal Memorial Colleges when they spotted the accused carrying a buri bag and acting suspiciously. They approached the accused and identified themselves as police officers. The accused attempted to flee but his attempt to get away was thwarted by the policemen who then checked the buri bag wherein they found guns, ammunition, and granade. The Search is VALID. People v Cogaed, 2014) Stop and Frisk Search is Preventive in nature and for the safety and selfpreservation of the police officer Search is done to preserve evidence and ensure there is no weapons It is the prosecution that shall prove with clear and convincing evidence that there is waiver of right. NOTES Search incident to lawful arrest There is a crime committed in FLAGRANTE DELICTO A person to be searched is given his consent to the law enforcer in areas in which such person has reasonable expectation of Privacy It cannot be inferred by silence. Also, it cannot be presumed. (People v Cogaed) www.milesfajardo.com V No crime has been yet comiitted Consented Serach 34 No ACT! Just PURE VIEW (2) the discovery of the evidence in plain view is inadvertent; and Exception to seacrh warrant requirement Valid arrest first Search of moving vehicles Requisite: The right exist The person involved had knowledge, either actual or constructive, of the existence of such right the said person had no actual intention to reliquishe the right Cybercrime Warrant A.M No. 17-11-03-SC It sets out the procedure for the preservation, disclosure, interception, search, seizure, and/or examination, custody, and destruction of computer data as provided under Cybercrime Prevention Act of 2012 (R.A. 10175) Who can issue Cybercrime warrant? RTC Issued by designated Cybercrime courts, which are also the special commercial courts under RTC. Who shall acquire jurisdiction over the Cybercrime offenses? Court where the place of the cybercrime offense was committed Wehre the computer system is situated The place where the damage was caused. Does the provider need to disclose to the subscriber regarding Cybercrime Warrant Subscriber: Person who gives his data to the Personal examination by the Judge In a form of searching questions must be written and under oath Where cybercrimecrime enfreced? warrant Types of Cybercrime Warrant? be Within & Outside the Philippines Period of validity of cyberwarrant 10 days from issuance, with the option of extending another 10 days. The Service provider is required to preserve the data for a min. of 6 months and further 6 months from the date of receipt of the order from the law enforcement authorities. Law enforcement may order a one-time extension for another 6 months provided that notification shall be made tot he office of the Prosecutor upon transmission. Service Provider: Company who stores data of the subscriber It may be a telecommunications or infrastructure provider. Requirement in issuance Cybercrime warrant Preservation Warrant A warrant usually issued for law enforcement authorities ordering a provider to preserve data while law enforcement works to obtain a disclosure warrant. This does not allow law enforcement to view the data but merely to order the provider to hold on to the data of the subscriber Cybercrime Warrant Preservation Warrant Disclosure Warrant Interception Warrant Search, Seizure and Examination Warrant Examination Warrant for lawfully obtained Data Destruction Warrant Disclosure Warrant (Disclosure of Computer Data) A warrant issued for disclosing the data of a subscriber, including all network traffic and data related. Unlike a preservation warrant, this actually will allow law enforcement to view the data. Service provider shall disclose or submit the subscriber's information, traffic data or other relevant data. The service provider have to comply with the disclosure warrant within 72 hours. The law enforcement officers are allowed to keep copies of the data obtained provided that the data shall be STRICTLY CONFIDENTIAL for purpose of INVESTIGATION. Interception warrant (Interception of Computer Data) Warrant issued to law enforcement, enabling them to conduct activities such as listening, recording, monitoring and surveillance of data through the use of electronic tapping or interception of computer data pertaining to the accused. The law enforcement officer need not disclose the interception of the accused, except, if no return has been filed by the law enforcement agent to the court, the accused shall be informed of all the interception activities conducted pertaining to his person and his data. Disclosure is prohibited. The provider must keep the order and its compliance CONFIDENTIAL. Search, Seizure and Examination Warrant Law enforcement ay seize and conduct a search and examination of the data obtained from an accused. The accused can seek to return the seized data provided that a forensic image has been made by law enforcement. Forensic images a copy of the entire data structure ofan item of the accused. 35 NOTES www.milesfajardo.com An interception of communication and data can be done provided that such interception is reasonably related to data being seized, searched or examined. The examination of data shall be conducted within the period provided by the court bu t not shall be extended for morethan 30 days. Examination Warrant (Examine data obtained lawfully) Is a warrant issued when an item has been seized through lawful warrantless arrest by law enforcement for purpose of forensic examination of data. Destruction Warrant Allows law enforcement to partially or completely destroy data subject to preservation and examination. The court can order the return of the data subject to destruction provided that there is no preliminary investigation or case instituted after 31 days from deposit, or upon lack of probable cause. Inspired by these laws Section 90 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) A.M. No. 18-03-09-SC, June 26, 2018) "To have speedy, impartial and public trial" The continuous trial system is a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on scheduled dates without needless postponement, the factual issues for trial, well-defined at the pre-trial and the wholeproceedings termintaed and ready fro judgement within 90 days from the date f the initial hearing, unless for meritorious reasons, an extension is permitted. Speedy trial of child abuse cases are mandated. It is provided therein that the trial shall commence within 3 days from the date the accused is arraigned and no postponement of initial hearing shall be granted, except on meritorious cases. It is mandated that the court should finish the trial within 60 days from filing of the Information and must render a decision within 15 days from the time it is submitted for decision. Continuous trial system Revised Guidelines for continuous trial is specifically directed to JUDGES Sec 21 of the Rules and Regulations ont he Reporting and investigation of Child Abuse. Sec. 3 of RA 951 On illegal possession of firearms - continuous trial is mandated Sec 1 of rule 17 of A.M No. 09-9-9-SC Sec 2, Rule 14 of A.M No. 10-3-10-SC On the rules of procedure on Environmental case which requires trial not to exceed 3 months On rules of procedure for intellectual property rights cases - it is provided therein that each party shall have a max period of 60 days to present evidence in chief. The system requires the PRESIDING JUDGE ADHERE FAITHFULLY to the session hours prescribed by law, to maintain full control of the proceedings and to efficiently allocate and use time and court resources to avoid delays. PROCEDUREs O N Hearings Trial - Held from Monday Thursday, 8:30 and 2:00 PM Motion for Inhibition Motion for inhibition based n grounds under Rule 137 shall be resolved immediatelyor within 2 Calendar days from date of filing. Sec 21. RA. 9165 (Dangerous drug act) Guidelines In the sworn statements or affidavits, the apprehending or seizing officer must state their compliance with the sec 21 of R.A No. 9165 In case of non-observance of the provision, the seizing officers must state the justification or explanation thereof as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized items. If there is no justification or explanation expressly declared in the sworn statements of affidavits, the investigation fiscal must not immediately file the case before court. Instead, he must refer the case for further preliminary investigation in order to determine the existence of probable cause, If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a warrant of arrest or commitment order or dismiss the case outright for lack of probable cause. 36 NOTES www.milesfajardo.com Prohibited Motions to Motions, Arraignment and Pretrial, and Promulgation of Decisions shall be held in mornings of Fridays. (Sec 7, Rule 15) M O T I O N S RULE: It shall be denied by the Judge OUTRIGHT without need of comment or opposition 1 Motion for Judicial Determination of Probable cause. The judge has 3 options upon filing fo the information: Dismiss the case if evidence on record clearly not establish probable cause Issue warrant of arrest if it finds probable cause Order the prosecutor to present additional evidence in case of doubt as tot he existence of probable cause 2 Motion for P.I filed beyond 5 day period in inquest proceedings under sec.6, Rule 112. Or accused failed to participate in the P.I despite due notice 3 Motion for P.I Filed beyond 5 day period in inquest proceedings under sec.6, Rule 112. Or accused failed to participate in the P.I despite due notice Or by the accused after the information has been filed 4 Motion for REINVESTIGATION of the prosecutor: 1. Motion filed without leave of court 2. when P.I is not required 3. When P.I is required but grounds is not meritorious. 5 Motion to quash when the ground is not one of those stated in Sec 1, Rule 117. 6 Motion to suspend arraignment not based onthe grounds stated in Sec 11, Rule 116. (a) The accused appears to be suffering from an unsound mental condition which effective renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. Another ground pending investigationprior to arraignment. The arriagnment may be suspended. 7 Motion to suspend on the ground of prejudicial question, when no civil case has been filed pursuant to Sec 7, Rule 111. Meritorious Motions Procedure Filing of motion Comment by the adverse party Shall be filed within a non-extendible period of 10 calendar days from receipt of the order of the court to file the same Resolution of court The court shall resolve the motion within nonextendible period of 10 calendar days from the expiration of 10 day period to file comment by the adverse party. The court, in its discretion, may set the motion for hearing within nonextendible 10 days from the expiration of 10 day period to file a comment by the adverse party, in which case the same shall be submitted for resolution after the termination of the hearing, and shall be resolved within non-extendible period of 10 calendar days thereafter. Reply and memorandum need not be submitted. MR for Motions The motion for reconsideration of the resolution of a meritorious motion shall be filed within a nonextendible period of 5 calendar days from receipt of such resolution, and the adverse party shall be given an equal period of 5 calendar days from receipt of the motion for consideration within which to submit its comment. Thereafter, the motion for reconsideration shall be resolved b ythe court within non-extendible period of 5 calendar days from the expiration fo the 5-day period to submit a comment by the adverse party. Motion for Postponement A motion for postponement is GENERALLY PROHIBITED! Except if it is based on: Acts of God Force Majeure Physical inability of the witness to appear and testify Rule: If the motion is granted based on those above exceptions, the moving party shall be warned that the presentation of its evidence must still be finished on the dates previously agreed upon in the pretrial. AND THE MOTION MUST BE ACCOMPANIED by the RECIEPT of payment for postponement, otherwise it shall be dismissed, outright. Consolidation Newly-filed Cases- when newly filed criminal cases involving offenses based on the same facts or forming part of a series of offenses of similar character, are accompanied by a motion for consolidation filed by the Office of the Prosecutor, the Executive Judge shall cause the raffle to only one court which shall then resolve said motion for consolidation, preferably don't he date of the arraignemnt and int he presence of the accused and counsel 37 NOTES www.milesfajardo.com Revival of Provisionally dismissed case The revival shall conform to the requisites and the periods provided under Sec 8, Rule 117. Provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount or both shall be permanent 1 year after issuance of the order without the case having been revived. Provisional dismissal of offenses punishable by imprisonment of more than 6 yrs after the shall become permanent 2 yrs after the issuance of the order without the case having been revived Withdrawal of Inforamation Withdrawal of information is not TIME-BARRED by the law on provisional dismissal under Sec 8. Rule 117. In Torres Jr., v Aguinaldo, a motion to withdraw information was filed and not a motion to dismiss. Thus, unlike a motion to dismiss, a motion to withdraw is information is not time-barred and does not fall within the ambit of Sec 8, Rule 177, which provides that the law on provisional dismissal becomes operative once the judge dismisses, with the express consent of the accused and with notice to the offended party. Schedule of Arraignement & Pretrial Once the court has acquired jurisdiction over the person of the accused, the arrangement and pretrial shall be set within 10 days from the date of the court's receipt of the case for a detained accused, and 30 calendar days from the date the court acquires jurisdiction over the accused, unless a shorter period is provided by special law or SC. NOTICE of arraignment and pretrial shall be sent to the accused, his counsel, private complainant or complaining law enforcement agent, publicprosecutor, and witnesses whose names appear in the information for purposes of PLEA-BARGAINING, arraignement and pretrial. WAIVER OF READING OF INFO - it can be allowed, provided that the accused and his counsel fully understand and consented to it. The consent must be stated in the minutes and certificate of arraignment and the order of arraignment. The court shall explain the waiver of the accused in the language known to him, and ensure the accused full understanding of the consequences of the waiver before approving the same. Cases that can be refered to Mediation Crimes where payment may prevent criminal prosecution or may extinguish criminal liability: B.P Blg. 22 (Boucing check law) SSS LAW PAGIBIG LAW - RA No. 9679 Crimes against property under Title 10 RPC, where the obligation may be civil in nature Theft (Art 308, RPC), via MTC Esfata (Art 315 (1), RPC), except estafa under (2) & (3) Other forms of swindling (Art 316, RPC) Swindling of Minor (Art 317, RPC) Other deceits (Art 318, RPC) Malicious Mischief (Art 327, RPC) Crimes against HONOR (Title 13, RPC), where liability may be civil in nature: Libel (Art 355, RPC) Threatening to publish and offer to present such publication for compensation (Art 356, RPC) Prohibited Publication of acts referred to in the course of official proceedings (Art 357, RPC) Grave Slander or grave oral defamation (Art 358 par 1 RPC) Simple Slander or Oral defamation (Art 358 par 2 RPC) Liberl under RA 10175 Criminal negligence under title 14 RPC Intellectual Property rights cases where liability may be civil in nature When do you refer cases to mediation? The referral of the case for mediation to the Philippine Mediation Center (PMC) unit shall be made only after the conduct of arraignment and the pretrial/preliminary conference. The court shall serve the Order fo Referral to the PMC unit immediately after the arrangement and the pretrial. The mediation shall be terminated within a non-extendible period of 30 days from the date of referral by the court to the PMC unit. After the lapse of the mediation period or if mediation fails, trial shall proceed. Conduct of pretrial ABSENCE - The court shall proceed with the pre-trial despite the absence of the accused and or the private complainant, provided they were duly notified of the same, and the counsel for the accused, as well as the public prosecutor, are present. STIPULATIONS - Proposals for stipulation shall be done with he active participation of the court itself and shall not be left alone to the counsels. MARKING OF EVIDENCE - The documentary evidence of the prosecution and the accused shall be marked. PRE-TRIAL ORDER - The pretrial order shall immediately be served upon the parties and counsel on the Same day after the termination fo the pre-trial COMPLIANCE with RULES - Courts must strictly comply with the guidelines to be OBSERVED in the CONDUCT of pre-trial uner AM NO. 03-1-09-SC. Petition for Bail Petition for bail filed after the filing of the information shall be set for summary hearing after arraignment and pretrial. Testimony of a witness in petition for bail may be in the form allowed by subheading III, item no. 11, par .b (Form of Testimonu) of the Revised Guidleines, provided that the demeanor of the witness is not essential in determining his credibility RESOLUTION PERIOD - it shall be resolved within a non-extendible period of 30 calendar days from the date of first hearing, except in drug cases which shall be heard and resolved within 20 calendar days, without need of oral argument and submission of memoranda, consistent with the summary nature of proceedings. MOTION FOR RECONSIDERATION on resolution of petition for bail shall be resolved within a nonextendible period of 10 calendar days from the submission of the motion Regular Cases: Arraignment Trial MANDATORY Judgment Pre-Trial 30 days 180 days Presentation of prosecution and defense 90 days Promulgation of decision Regular Cases with bail Arraignment BAIL MANDATORY Trial Judgment Pre-Trial 30 days Hearing and resolution for a period of 30 days 120 days Presentation of Evidence 60 days - Prosec 90 days - Defense 90 days Promulgation of decision Drug Cases with bail Filing of Information Arraignment MANDATORY Trial BAIL Judgment Pre-Trial 10 days Hearing and resolution for a period of 20 days 30 days Presentation of Evidence 5 days - Prosec 25 days - Defense 15 days Promulgation of decision Trial to be finished not later than 60 days from the filing of the information Form of Testimony For First level courts In all criminal cases, including those covered by the Rule on Sumary procedure, the testimonies of the witness shall consist of the duly subscribed WRITTEN statements given to law enforcement or peace officers or the affidavits or counter-affidavits submitted before the investigating prosecutor and if such are not available, testimonies shall be in the form of JUDICIAL AFFIDAVITS, subject to additional direct and crossexamination questions For SB and CTA Where the demeanor of the witness is not essential in determining the credibility of the witness, the testimonies of the witness shall be the duly subscribed Written statements given to law enforcement or peace officer or the affidavits or counter-affidavits submitted before the investigation prosecutor, and if such are not available,testimonies shall be in the form of JUDICIAL AFFIDAVITS, subject to additional direct and crossexamination questions 38 NOTES www.milesfajardo.com Trial MODES OF DISCOVERY The court shall encourage the accused and the prosecution to avail of: FOR THE ACCUSED - Sec 12 & 13, Rule 119 on the application for examination of witness for accused before trial and how it is made. Deposition shall be taken before a judge or a member of the bar in good standing FOR THE PROSECUTION - Sec 15, Rule 119 on the conditional examination of witness for the prosecution Deposition shall be taken before the court where the case is pending Absence of COUNSEL DE PARTE in the absence of counsel de parte, the hearing shall proceed upon appointment by the court of a COUNSEL DE OFICIO OFFER OF EVIDENCE Offer of evidence and objection thereto shall be made ORALLY. A party is required to make his/her oral offer of evidence on the same day after the presentation of his/her last witness, and the opposing party is required to immediately interpose his/her oral objection thereto. Thereafter, the court shall make a ruling on the offer of evidence in OPEN COURT. DEMURRER TO EVIDENCE After the prosecution has rested its case, the court shall inquire from the accused if he desires to move for leave of court to file a demurrer, or to proceed with the presentation of his evidence. if the accused orally moves fro leave, then court shall orally resolve the motion for leave if the motion is denied, accused will present evidence on the date previously scheduled If granted, the court will give the accused 10 days. Prosecution will comment within 10 days. Court shall resolve within 30 days. THE COURT SHALL STRICTLY ADHERE TO THE RULE THAT A WITNESS HAS TO BE FULLY EXAMINED IN ONE DAY ONLY PROMULGATION The court shall annouce in OPEN COURT and include in the order submitting the case for decision, the date of the PROMULGATION of its decision which shall not be more than 90 calendar days from the date the case is submitted for decision, except when the case is covered by special rules and other laws which provide for a shorter period. ON MOTION FOR RECON OR NT must be filed within 15 days from promulgation It shall be resolved within non-extendible period of 10 days from submission of comment of the prosecution. With to without comment, the court shall resolve the motion within ten day period CRIMINAL PROCEDURE SUMMARY COMMISSION OF THE CRIME P.I REQUIRED P.I NOT REQUIRED 4 -2 -1 & up Exception to 4 -2 -1 & up Imposable penalty 4 years, two months and one day or more (Section 1, Rule 112) Less than 4 -2 -1 Imposable penalty is LESS THAN 4 years, two months and one day or more (Section 1, Rule 112) When respondent is arrested IN FLAGRANTE DELICTO (Section 5, Rule 113) and undergoing inquest. No need P.I COMPLETE CASE FLOW Crimes W/out P.I Crimes W/ P.I A 1 2 Chartered City Preliminary Investigation 3 Provincial Filing of Complaint Direct Filing of with Prosecutors's Complaint in Court office Crimes committed in flagrante delicto or hot pursuit Arrest Inquest Proceedings Rule: Check the play of Jurisdiction on Page 3 &4 Authorized PETITION FOR BAIL Filing of Information 3 Jurisdiction over the accused is already acquired C o A 1 2 Issuance of warrant n Acquiring Jurisdiction over the accused PleaBargaining 10 days Commitment Order Arraignment Motions: 1. Motion to quash 2. Motion for postponement 3. Motion for bill of particulars Arrest MANDATORY Pre-Trial 30 days t i 30 days Mediation n Philippine Mediation Center u 30 days mediation period lapse of 30 days, or mediation fails Trial o Presentation of evidence 180 days u Judgment s TRIAL RULE 90 days Prosecutor 90 days Demurrer Promulgation of decision Judgement Promulgation PETITION FOR BAIL or 90 days Accused or Reverse trial Modification Reopening Acquited Convicted DOUBLE JEOPARDY NOW CAN BE INVOKED MR |NT Prosec Remedy? RULE 65. CERTIORARI. File a petition for certiorari under Rule 65 in the higher court questioning if there is grave abuse of discretion on the judge amounting to lack and excess of jurisdiction. Apply Fresh Period Rule (Neypes Rule) File APPEAL Judgement Promulgation Notice of appeal 15 days Appeal must be taken 15 days from: 1. Promulgation of judgement 2. Notice of Final order Final Judgment A judgment becomes final after the lapse of the period for perfecting an appeal - END - 39 NOTES www.milesfajardo.com RULE 127 Provisional Remedies in Criminal Cases RULE 127 Provisional Remedies in Criminal Cases Section 1. Availability of provisional remedies. — The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (1a) Section 2. Attachment. — When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and a) When the accused resides outside the Philippines. (2a) - Provisional remedies are best discuss in Civil procedure - 40 NOTES www.milesfajardo.com How to best understand Crim pro I II PROBABLE CAUSE CRIM PRO QUADRANT RIGHTS OF THE ACCUSED Rules on proceedings JURISDICTION To be updated in ver. 2 of this notes I PROBABLE CAUSE For warrantless arrest By arresting officer in effecting warrantless arrest or in hot pursuit (Section 5(b), Rule 113) Filing a case for specific public officials For purpose of filing a case By the JUDGE By Prosecutor Ombudsman Primary Jurisdiction to Investigate and prosecute Public Officers and employee involving violations of penal laws. Issuance of Warrant of Arrest for the purpose of filing “information” in Court (Section 1&3, Rule 112) P.I Preliminary Investigation For the purpose of issuing warrant of arrest or necessity for the accused to remain in custody (Section 5&8, Rule 112) P.E vs Preliminary Examination Executive Function Judicial Function by Prosecutor by a Judge BOTH establishes Probable Cause For the purpose of filing Information in Court Judge can't interfere with Prosecutor's function to determine probable cause. This is an encroachment of powers in lieu of doctrine of separation of powers. 41 NOTES www.milesfajardo.com For the purpose of issuing warrant of arrest However, Judiciary has expanded power to review acts and decisions of the executive department, e.i Prosecutor's discretion in establishing probable cause when there is grave abuse of discretion. Issuance of Search Warrant By the JUDGE (Section 5, Rule 126) The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Issuance of Cybercrime Warrant Developing THANK YOU -ENDNOTES www.milesfajardo.com